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sc_petitionerstate	45	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. PENNSYLVANIA v. BRUDER No. 88-161. Decided October 31, 1988 Per Curiam. Because the decision of the Pennsylvania Superior Court in this case is contrary to Berkemer v. McCarty, 468 U. S. 420 (1984), we grant the petition for a writ of certiorari and reverse. In the early morning of January 19, 1985, Officer Steve Shallis of the Newton Township, Pennsylvania, Police Department observed respondent Thomas Bruder driving very erratically along State Highway 252. Among other traffic violations, he ignored a red light. Shallis stopped Bruder’s vehicle. Bruder left his vehicle, approached Shallis, and when asked for his registration card, returned to his car to obtain it. Smelling alcohol and observing Bruder’s stumbling movements, Shallis administered field sobriety tests, including asking Bruder to recite the alphabet. Shallis also inquired about alcohol. Bruder answered that he had been drinking and was returning home. Bruder failed the sobriety tests, whereupon Shallis arrested him, placed him in the police car, and gave him Miranda warnings. Bruder was later convicted of driving under the influence of alcohol. At his trial, his statements and conduct prior to his arrest were admitted into evidence. On appeal, the Pennsylvania Superior Court reversed, 365 Pa. Super. 106, 528 A. 2d 1385 (1987), on the ground that the above statements Bruder had uttered during the roadside questioning were elicited through custodial interrogation and should have been suppressed for lack of Miranda warnings. The Pennsylvania Supreme Court denied the State’s appeal application. In Berkemer v. McCarty, supra, which involved facts strikingly similar to those in this case, the Court concluded that the “noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not ‘in custody’ for the purposes of Miranda” Id., at 440. The Court reasoned that although the stop was unquestionably a seizure within the meaning of the Fourth Amendment, such traffic stops typically are brief, unlike a prolonged station house interrogation. Second, the Court emphasized that traffic stops commonly occur in the “public view,” in an atmosphere far “less ‘police dominated’ than that surrounding the kinds of interrogation at issue in Miranda itself.” Id., at 438-439. The detained motorist’s “freedom of action [was not] curtailed to ‘a degree associated with formal arrest.’” Id., at 440 (citing California v. Beheler, 463 U. S. 1121, 1125 (1983)). Accordingly, he was not entitled to a recitation of his constitutional rights prior to arrest, and his roadside responses to questioning were admissible. The facts in this record, which Bruder does not contest, reveal the same noncoercive aspects as the Berkemer detention: “a single police officer ask[ing] respondent a modest number of questions and requesting] him to perform a simple balancing test at a location visible to passing motorists.” 468 U. S., at 442 (footnote omitted). Accordingly, Berkemer s rule, that ordinary traffic stops do not involve custody for purposes of Miranda, governs this case. The judgment of the Pennsylvania Superior Court that evidence was inadmissible for lack of Miranda warnings is reversed. It is so ordered. We did not announce an absolute rule for all motorist detentions, observing that lower courts must be vigilant that police do not “delay formally arresting detained motorists, and . . . subject them to sustained and intimidating interrogation at the scene of their initial detention.” Berkemer v. McCarty, 468 U. S. 420, 440 (1984). Reliance on the Pennsylvania Supreme Court’s decision in Commonwealth v. Meyer, 488 Pa. 297, 412 A. 2d 517 (1980), to which we referred in Berkemer, see 468 U. S., at 441, and n. 34, is inapposite. Meyer involved facts which we implied might properly remove its result from Berkemer’s application to ordinary traffic stops; specifically, the motorist in Meyer could be found to have been placed in custody for purposes of Miranda safeguards because he was detained for over half an hour, and subjected to questioning while in the patrol car. Thus, we acknowledged Meyer’s relevance to the unusual traffic stop that involves prolonged detention. We expressly disapproved, however, the attempt to extrapolate from this sensitivity to uncommon detention circumstances any general proposition that custody exists whenever motorists think that their freedom of action has been restricted, for such a rationale would eviscerate Berkemer altogether. See Berkemer, supra, at 436-437. We thus do not reach the issue whether recitation of the alphabet in response to custodial questioning is testimonial and hence inadmissible under Miranda v. Arizona, 384 U. S. 436 (1966). Question: What state is associated with the petitioner? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
sc_issuearea	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. DELAWARE STATE COLLEGE et al. v. RICKS No. 79-939. Argued October 7, 1980 Decided December 15, 1980 Powell, J., delivered the opinion of the Court, in which Btjkger, C. J., and White, BlachmtjN, and Rehnquist, JJ., joined. Stewart, J., filed a dissenting opinion, in which BrenNAN and Marshall, JJ., joined, post, p. 262. SteveNS, J., filed a dissenting opinion, post, p. 265. Nicholas H. Rodriguez argued the cause for petitioners. With him on the briefs were Harold Schmittinger and William D. Fletcher, Jr. Judith E. Harris argued the cause and filed briefs for respondent. Robert E. Williams, Douglas S. McDowell, and Daniel R. Levinson filed a brief for the Equal Employment Advisory Council as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed by Solicitor General McCree, Deputy Solicitor General Wallace, Edwin S. Kneedler, Leroy D. Clark, Joseph T. Eddins, and Lutz Alexander Prayer for the United States et al.; and by David M. Rabban and Victor J. Stone for the American Association of University Professors. Justice Powell delivered the opinion of the Court. The question in this case is whether respondent, a college professor, timely complained under the civil rights laws that he had been denied academic tenure because of his national origin. I Columbus Ricks is a black Liberian. In 1970, Ricks joined the faculty at Delaware State College, a state institution attended predominantly by blacks. In February 1973, the Faculty Committee on Promotions and Tenure (the tenure committee) recommended that Ricks not receive a tenured position in the education department. The tenure committee, however, agreed to reconsider its decision the following year. Upon reconsideration, in February 1974, the committee adhered to its earlier recommendation. The following month, the Faculty Senate voted to support the tenure committee’s negative recommendation. On March 13, 1974, the College Board of Trustees formally voted to deny tenure to Ricks. Dissatisfied with the decision, Ricks immediately filed a grievance with the Board’s Educational Policy Committee (the grievance committee), which in May 1974 held a hearing and took the matter under submission. During the pendency of the grievance, the College administration continued to plan for Ricks’ eventual termination. Like many colleges and universities, Delaware State has a policy of not discharging immediately a junior faculty member who does not receive tenure. Rather, such a person is offered a “terminal” contract to teach one additional year. When that contract expires, the employment relationship ends. Adhering to this policy, the Trustees on June 26, 1974, told Ricks that he would be offered a 1-year “terminal” contract that would expire June 30, 1975. Ricks signed the contract without ob-jeetion or reservation on September 4, 1974. Shortly thereafter, on September 12, 1974, the Board of Trustees notified Ricks that it had denied his grievance. Ricks attempted to file an employment discrimination charge with the Equal Employment Opportunity Commission (EEOC) on April 4, 1975. Under Title YII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, however, state fair employment practices agencies have primary jurisdiction over employment discrimination complaints. See 42 U. S. C. § 2000e-5 (c). The EEOC therefore referred Ricks’ charge to the appropriate Delaware agency. On April 28, 1975, the state agency waived its jurisdiction, and the EEOC accepted Ricks’ complaint for filing. More than two years later, the EEOC issued a “right to sue” letter. Ricks filed this lawsuit in the District Court on September 9, 1977. The complaint alleged, inter alia, that the College had discriminated against him on the basis of his national origin in violation of Title VII and 42 U. S. C. § 1981. The District Court sustained the College’s motion to dismiss both claims as untimely. It concluded that the only unlawful employment practice alleged was the College’s decision to deny Ricks tenure, and that the limitations periods for both claims had commenced to run by June 26, 1974, when the President of the Board of Trustees officially notified Ricks that he would be offered a 1-year “terminal” contract. See n. 2, supra. The Title YII claim was not timely because Ricks had not filed his charge with the EEOC within 180 days after that date. Similarly, the § 1981 claim was not timely because the lawsuit had not been filed in the District Court within the applicable 3-year statute of limitations. The Court of Appeals for the Third Circuit reversed. 605 F. 2d 710 (1979). It agreed with the District Court that Ricks’ essential allegation was that he. had been denied tenure illegally. Id., at 711. According to the Court of Appeals, however, the Title YII filing requirement, and the statute of limitations for the § 1981 claim, did not commence to run until Ricks’ “terminal” contract expired on June 30, .1975. The court reasoned: “ ‘ [A] terminated employee who is still working should not be required to consult a lawyer or file charges of discrimination against his employer as long as he is still working, even though he has been told of the employer’s present intention to terminate him in the future.’ ” Id., at 712, quoting Bonham v. Dresser Industries, Inc., 569 F. 2d 187, 192 (CA3 1977), cert. denied, 439 U. S. 821 (1978). See Egelston v. State University College at Geneseo, 535 F. 2d 752 (CA2 1976); cf. Noble v. University of Rochester, 535 F. 2d 756 (CA2 1976). The Court of Appeals believed that the initial decision to terminate an employee sometimes might be reversed. The aggrieved employee therefore should not be expected to resort to litigation until termination actually has occurred. Prior resort to judicial or administrative remedies would be “likely to have the negative side effect of reducing that employee’s effectiveness during the balance of his or her term. Working relationships will be injured, if not sundered, and the litigation process will divert attention from the proper fulfillment of job responsibilities.” 605 F. 2d, at 712. Finally, the Court of Appeals thought that a rule focusing on the last day of employment would provide a “bright line guide both for the courts and for the victims of discrimination.” Id., at 712-713. It therefore reversed and remanded the case to the District Court for trial on the merits of Ricks’ discrimination claims. We granted certiorari. 444 U. S. 1070 (1980). For the reasons that follow, we think that the Court of Appeals erred in holding that the filing limitations periods did not commence to run until June 30, 1975. We agree instead with the District Court that both the Title YII and § 1981 claims were untimely. Accordingly, we reverse. II Title VII requires aggrieved persons to file a complaint with the EEOC “within one hundred and eighty days after the alleged unlawful employment practice occurred.” 42 U. S. C. § 2000e-5 (e). Similarly, § 1981 plaintiffs in Delaware must file suit within three years of the unfavorable employment decision. See n. 5, supra. The limitations periods, while guaranteeing the protection of the civil rights laws to those who promptly assert their rights, also protect employers from the burden of defending claims arising from employment decisions that are long past. Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 463-464 (1975); see United Air Lines, Inc. v. Evans, 431 U. S. 553, 558 (1977). Determining the timeliness of Ricks’ EEOC complaint, and this ensuing lawsuit, requires us to identify precisely the “unlawful employment practice” of which he complains. Ricks now insists that discrimination motivated the College not only in denying him tenure, but also in terminating his employment on June 30, 1975. Tr. of Oral Arg. 25, 26, 31-32. In effect, he is claiming a “continuing violation” of the civil rights laws with the result that the limitations periods did not commence to run until his 1-year “terminal” contract expired. This argument cannot be squared with the allegations of the complaint. Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination. United Air Lines, Inc. v. Evans, supra, at 558. If Ricks intended to complain of a discriminatory discharge, he should have identified the alleged discriminatory acts that continued until, or occurred at the time of, the actual termination of his employment. But the complaint alleges no such facts. Indeed, the contrary is true. It appears that termination of employment at Delaware State is a delayed, but inevitable, consequence of the denial of tenure. In order for the limitations periods to commence with the date of discharge, Ricks would have had to allege and prove that the manner in which his employment was terminated differed discriminatorily from the manner in which the College terminated other professors who also had been denied tenure. But no suggestion has been made that Ricks was treated differently from other unsuccessful tenure aspirants. Rather, in accord with the College’s practice, Ricks was offered a 1-year “terminal” contract, with explicit notice that his employment would end upon its expiration. In sum, the only alleged discrimination occurred — and the filing limitations periods therefore commenced — at the time the tenure decision was made and communicated to Ricks. That is so even though one of the effects of the denial of tenure — the eventual loss of a teaching position — did not occur until later. The Court of Appeals for the Ninth Circuit correctly held, in a similar tenure case, that “[t]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.” Abramson v. University of Hawaii, 594 F. 2d 202, 209 (1979) (emphasis added); see United Air Lines, Inc. v. Evans, 431 U. S., at 558. It is simply insufficient for Ricks to allege that his termination “gives present effect to the past illegal act and therefore perpetuates the consequences of forbidden discrimination.” Id., at 557. The emphasis is not upon the effects of earlier employment decisions; rather, it “is [upon] whether any present violation exists.” Id., at 558 (emphasis in original). III We conclude for the foregoing reasons that the limitations periods commenced to run when the tenure decision was made and Ricks was notified. The remaining inquiry is the identification of this date. A Three dates have been advanced and argued by the parties. As indicated above, Ricks contended for June 30, 1975, the final date of his “terminal” contract, relying on a continuing-violation theory. This contention fails, as we have shown, because of the absence of any allegations of facts to support it. The Court of Appeals agreed with Ricks that the relevant date was June 30, 1975, but it did so on a different theory. It found that the only alleged discriminatory act was the denial of tenure, 605 F. 2d, at 711, but nevertheless adopted the “final date of employment” rule primarily for policy reasons. Supra, at 255-256. Although this view has the virtue of simplicity, the discussion in Part II of this opinion demonstrates its fallacy as a rule of general application. Congress has decided that time limitations periods commence with the date of the “alleged unlawful employment practice.” See 42 U. S. C. § 2000e-5 (e). Where, as here, the only challenged employment practice occurs before the termination date, the limitations periods necessarily commence to run before that date. It should not be forgotten that time-limitations provisions themselves promote important interests; “the period allowed for instituting suit inevitably reflects a value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones.” Johnson v. Railway Express Agency, Inc., 421 U. S., at 463-464. See Mohasco Corp. v. Silver, 447 U. S. 807, 820, 825 (1980). B The EEOC, in its amicus brief, contends in the alternative for a different date. It was not until September 12, 1974, that the Board notifiéd Ricks that his grievance had been denied. The EEOC therefore asserts that, for purposes of computing limitations periods, this was the date of the unfavorable tenure decision. Two possible lines of reasoning underlie this argument. First, it could be contended that the Trustees’ initial decision was only an expression of intent that did not become final until the grievance was denied. In support of this argument, the EEOC notes that the June 26 letter explicitly held out to Ricks the possibility that he would receive tenure if the Board sustained his grievance. See n. 2, supra. Second, even if the Board’s first decision expressed its official position, it could be argued that the pendency of the grievance should toll the running of the limitations periods. We do not find either argument to be persuasive. As to the former, we think that the Board of Trustees had made clear well before September 12 that it had formally rejected Ricks’ tenure bid. The June 26 letter itself characterized that as the Board’s "official position.” Ibid. It is apparent, of course, that the Board in the June 26 letter indicated a willingness to change its prior decision if Ricks’ grievance were found to be meritorious. But entertaining a grievance complaining of the tenure decision does not suggest that the earlier decision was in any respect tentative. The grievance procedure, by its nature, is a remedy for a prior decision, not an opportunity to influence that decision before it is made. As to the latter argument, we already have held that the pendency of a grievance, or some other method of collateral review of an employment decision, does not toll the running of the limitations periods. Electrical Workers v. Robbins & Myers, Inc., 429 U. S. 229 (1976). The existence of careful procedures to assure fairness in the tenure decision should not obscure the principle that limitations periods normally commence when the employer’s decision is made. Of. id., at 234-235. C The District Court rejected both the June 30, 1975, date and the September 12, 1974, date, and concluded that the limitations periods had commenced to run by June 26, 1974, when the President of the Board notified Ricks that he would be offered a "terminal” contract for the 1974-1975 school year. We cannot say that this decision was erroneous. By June 26, the tenure committee had twice recommended that Ricks not receive tenure; the Faculty Senate had voted to support the tenure committee’s recommendation; and the Board of Trustees formally had voted to deny Ricks tenure. In light of this unbroken array of negative decisions, the District Court was justified in concluding that the College had established its official position — and made that position apparent to Ricks — ho later than June 26, 1974. We therefore reverse the decision of the Court of Appeals and remand to that court so that it may reinstate the District Court’s order dismissing the complaint. Reversed and remanded. According to the Court of Appeals, the grievance committee almost immediately recommended to the Board that Ricks’ grievance be denied. 605 F. 2d 710, 711 (CA3 1979). Nothing in the record, however, reveals the date on which the grievance committee rendered its decision. The June 26 letter stated: June 26, 1974 Dr. Columbus Ricks Delaware State College Dover, Delaware Dear Dr. Ricks: On March 13, 1974, the Board of Trustees of Delaware State College officially endorsed the recommendations of the Faculty Senate at its March 11, 1974 meeting, at which time the Faculty Senate recommended that the Board not grant you tenure. As we are both aware, the Educational Policy Committee of the Board of Trustees has heard your grievance and it is now in the process of coming to a decision. The Chairman of the Educational Policy Committee has indicated to me that a decision may not be forthcoming until sometime in July. In order to comply with the 1971 Trustee Policy Manual and AAUP requirements with regard to the amount of time needed in proper notification of non-reappointment for non-tenured faculty members, the Board has no choice but to follow actions according to its official position prior to the grievance process, and thus, notify you of its intent not to renew your contract at the end of the 1974-75 school year. Please understand that we have no way of knowing what the outcome of the grievance process may be, and that this action is being taken at this time in order to be consistent with the present formal position of the Board and AAUP time requirements in matters of this kind. Should the Educational Policy Committee decide to recommend that you be granted tenure, and should the Board of Trustees concur with their recommendation, then of course, it will supersede any previous action taken by the Board. Sincerely yours, /s/ Walton H. Simpson, President Board of Trustees of Delaware State College In addition to the College itself, other defendants (petitioners in this Court) are Trustees Walton H. Simpson, William H. Davis, William G. Dix, Edward W. Hagemeyer, James C. Hardcastle, Delma Lafferty, James H. Williams, William S. Young, Burt C. Pratt, Luna I. Mishoe, and Pierre S. duPont IV (ex officio); the academic dean, M. Milford Caldwell (now deceased); the education department chairman, George W. McLaughlin; and tenure committee members Romeo C. Henderson, Harriet R. Williams, Arthur E. Bragg, Ora Bunch, Ehsan Helmy, Vera Powell, John R. Price, Herbert Thompson, W. Richard Wynder, Ulysses Washington, and Jane Laskaris. Section 1981 provides: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” The statute of limitations in § 1981 cases is that applicable to similar claims under state law. Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 462 (1975). The parties in this case agree that the applicable limitations period under Delaware law is three years. Because the claims were not timely filed, we do not decide whether a claim of national origin discrimination is cognizable under § 1981. Under certain circumstances, the filing period is extended to 300 days. 42 U. S. C. § 2000e-5 (e); see Mohasco Corp. v. Silver, 447 U. S. 807 (1980). Sixteen paragraphs in the complaint describe in detail the sequence of events surrounding the tenure denial. Only one paragraph even mentions Ricks’ eventual departure from Delaware State, and nothing in that paragraph alleges any fact suggesting discrimination in the termination of Ricks’ employment. The complaint does allege that a variety of unusual incidents occurred during the 1974-1975 school year, including one in which the education department chairman, George W. McLaughlin, physically attacked Ricks. This incident allegedly resulted in McLaughlin’s conviction for assault. Counsel for Ricks conceded at oral argument that incidents such as this were not independent acts of discrimination, Tr. of Oral Arg. 29-30, but at most evidence that could be used at a trial. Complaints that employment termination resulted from discrimination can present widely varying circumstances. In this case the only alleged discriminatory act is the denial of tenure sought by a college professor, with the termination of employment not occurring until a later date. The application of the general principles discussed herein necessarily must be made on a case-by-case basis. Brief for EEOC as Amicus Curiae 19-22; 605 F. 2d, at 712-713. The Court of Appeals also thought it was significant that a final-date-of-employment rule would permit the teacher to conclude his affairs at a school without the acrimony engendered by the filing of an administrative complaint or lawsuit. Id., at 712. It is true that “the filing of a lawsuit might tend to deter efforts at conciliation.” Johnson v. Railway Express Agency, Inc., 421 U. S., at 461. But this is the “natural effec[t] of the choice Congress has made,” ibid., in explicitly requiring that the limitations period commence with the date of the “alleged unlawful employment practice,” 42 U. S. C. § 2000e-5 (c). It is conceivable that the Court of Appeals’ "final day of employment” rule might discourage colleges even from offering a “grace period,” such as Delaware State’s practice of 1-year “terminal” contracts, during which the junior faculty member not offered tenure may seek a teaching position elsewhere. If September 12 were the critical date, the § 1981 claim would be timely. Counting from September 12, the Title VII claim also would be timely if Ricks is entitled to 300 days, rather than 180 days, in which to file with the EEOC. In its brief before this Court, the EEOC as amicus curiae noted that Delaware is a State with its own fair employment practices agency. According to the EEOC, therefore, Ricks was entitled to 300 days to file his complaint. See n. 7, supra. Because we hold that the time-limitations periods commenced to run no later than June 26, 1974, we need not decide whether Ricks was entitled to 300 days to file under Title VII. Counting from the June 26 date, Ricks’ filing with the EEOC was not timely even with the benefit of the 300-day period. See also B. Schlei & P. Grossman, Employment Discrimination Law 235 (1979 Supp.), and cases cited therein. We do not suggest that aspirants for academic tenure should ignore available opportunities to request reconsideration. Mere requests to reconsider, however, cannot extend the limitations periods applicable to the civil rights laws. We recognize, of course, that the limitations periods should not commence to run so soon that it becomes difficult for a layman to invoke the protection of the civil rights statutes. See Oscar Mayer & Co. v. Evans, 441 U. S. 750, 761 (1979); Love v. Pullman Co., 404 U. S. 522, 526-527 (1972). But, for the reasons we have stated, there can be no claim here that Ricks was not abundantly forewarned. In NLRB v. Yeshiva University, 444 U. S. 672, 677 (1980), we noted that university boards of trustees customarily rely on the professional expertise of the tenured faculty, particularly with respect to decisions about hiring, tenure, termination, and promotion. Thus, the action of the Board of Trustees on March 13, 1974, affirming the faculty recommendation, was entirely predictable. The Board’s letter of June 26, 1974, simply repeated to Ricks the Board’s official position and acknowledged the pendency of the grievance through which Ricks hoped to persuade the Board to change that position. We need not decide whether the District Court correctly focused on the June 26 date, rather than the date the Board communicated to Ricks its unfavorable tenure decision made at the March 13, 1974, meeting. As we have stated, see n. 13, supra, both the Title VII and § 1981 complaints were not timely filed even counting from the June 26 date. 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_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". ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA v. KING. No. 5559. Circuit Court of Appeals, Fourth Circuit. April 9, 1947. F. Dean Rainey and C. F. Haynsworth, Jr., both of Greenville, S. C. (Haynsworth & Haynsworth and Rainey and Fant, all of Greenville, S. C., on the brief), for appellant. Miller C. Foster and Jesse W. Boyd, both of Spartanburg, S. C. (Johnson, Johnson & Foster, of Spartanburg, S. G, on the brief), for appellee. Before PARKER, SOPER, and DOBIE, Circuit Judges. DOBIE, Circuit Judge. The scope of an aviation exclusion clause in a contract of life insurance is the question raised by this appeal. The insured, Lieutenant Drew L. King, a resident of South Carolina, was a flight observer serving with the Civil Air Patrol. He met his death on February 9, 1943, and this suit was instituted by the beneficiary of the policy, the appellee here, against the insurance company, appellant, for the full amount of the policy. The lower court awarded judgment to the plaintiff on stipulated facts. The insurance company has duly appealed. At eight o’clock in the morning of the day mentioned the insured and a pilot left their base for a routine coastal patrol flight off the shores of North Carolina. The patrol was made in a land based plane along with another plane of like make. About an hour and one-half after take-off, the plane in which the insured was riding developed serious engine trouble. This emergency forced the pilot to bring the plane down at sea some thirty miles from the coast. Apparently the descent was sufficiently controlled to permit putting the plane on the water in a normal landing position. The men managed to inflate their life jackets and free themselves from the plane before it sank a few minutes later. There is no question that both men were alive at this time as they were seen to signal the other plane. 'A subsequent examination confirmed the belief that the men were not injured by the impact of the plane striking the water. Meanwhile the occupants of the second plane, after dropping an emergency kit, circled the distressed men and tried to establish radio contact with the base. At Noon, which was two and one-half hours later, no help had arrived and the second plane, because of a shortage of gasoline, was forced to return to the base. The men in the- water were alive at that time. When a Navy boat finally arrived at two in the afternoon, both men were dead. A Naval physician (not an eyewitness to the events) issued a statement of death after examining the bodies, which contained the diagnosis: “Drowning as result of exposure in the water after failure of airplane motor.” The contract of insurance, which the insured had made in South Carolina with the appellant insurance company, contained the following clause: “This order shall not be liable to any person for any benefit for death resulting from participation, as a passenger or otherwise, in aviation or aeronautics, (except as a fare paying passenger in a licensed aircraft operated on a regular schedule).” Although South Carolina law would be controlling, the highest court in that State has never considered the precise question here involved. Accordingly the lower court, in an effort to apply South Carolina law, resorted to some general maxims of insurance law that have been invoked on occasions by South Carolina courts. By stressing particularly the insured’s uninjured physical dis-engagement from the airplane, and coupling this with the rule of construction that ambiguous or doubtful clauses must be resolved against an insurer, the District Court reached the conclusion that the exclusion clause of the policy was not applicable. We are unable to agree with that conclusion either on reason or authority. Aside from the many authorities on this question (to which we will advert later in this opinion), we think the exclusion clarise clearly comprehends the very situation that here developed. Any other conclusion must ignore the plain meaning and presence of the word “resulting.” To give that word the effect that it must have in everyday speech (and as understood by laymen as well as lawyers) obviates the necessity for technical and artificial rules of construction. In our view of the case it is as undesirable as it is unnecessary to borrow from the law of torts the nuances and subtleties which attend such a phrase as “proximate cause” and to attempt an application of these nuances and subtleties to the facts of the instant case. There is little, if anything, to construe. In undertaking an aerial flight over the ocean in a land-based plane, man must reckon with the perils of the sea which are as imminent and real as the unrelenting force of gravity. Just as flight over the land brings forth the danger of violent collision with the earth, we have the dangers of the sea in over-water flight. That men may remain alive for varying periods of time before succumbing does not change the picture. We think it a rather violent fiction to say that death, under such circumstances, comes from accidental drowning. Common knowledge and experience fairly shout of the dangers of shock, exposure and drowning when a flight is taken over water in the winter time in a land based plane. Out of the abundance of wisdom that comes with hind-sight it might have been better to have also inserted the words “directly or indirectly” in the exclusion clause. Actually such words were not vital here and would have added little to the force of the word “resulting.” We are asked by counsel for appellee to notice the harrowing experiences and remarkable rescue of Captain Eddie Rickenbacker. The contention is made that when a man leaves a plane under such conditions he is in a position of “potential safety,” i. e., he can be saved. To pursue this somewhat ingenious argument is to invert the real question of the case. It is true that rescue, routine or fortuitous, may remove a man from peril. But it does not follow that the failure of rescue brings the peril that causes death. When the insured was in the cold waters of the Atlantic Ocean in February, he was not in a position of “potential safety.” He was in imminent peril of death, unless rescue came and also came quickly. We are unable to see how, under these circumstances, death resulted in any way other than from participation in aviation. There is more than ample authority to support this view. In Neel v. Mutual Life Ins. Co. of N.Y., 2 Cir., 131 F.2d 159, the insured, after landing his plane on the ocean, was drowned while trying to reach shore. Under a similar aviation exclusion clause, the insurer was held not liable. Judge Augustus Hand, speaking for the Court, said (131 F.2d at page 160) : “The policy provides that Double Indemnity shall not be payable if death resulted ‘from participation in aeronautics’ and it seems quite contrary to the natural meaning of the proviso to say that Stubbs did not meet his death from ‘participation in aeronautics’ merely because he may hot have been killed by impact upon the water. If he landed in the open sea, even though without immediate injury, drowning was an almost inevitable consequence. To say that his death did not result ‘from participation in aeronautics’ would exclude from the proviso of the policy the most ordinary risks involved and limit the effect of the clause in an unexpected and unreasonable way. As Judge Cardoza said in Bird v. St. Paul F. & M. Ins. Co., 224 N.Y. 47, 120 N.E. 86, 87, 13 A.L.R. 875: ‘General definitions of a proximate cause give little aid. Our guide is the reasonable expectation and purpose of the ordinary business man when making an ordinary business contract. It is his intention, expressed or fairly to be inferred, that counts. * * * The same cause producing the same effect may be proximate or remote as the contract of the parties seems to place it in light or shadow. That cause is to be held predominant which they would think of as predominant. A common-sense appraisement of everyday forms, of speech and modes of thought must tell us when to stop. It is an act of “judgment as upon a matter of fact.” ’ ” This was followed in Green v. Mutual Benefit Life Ins. Co., 1 Cir., 144 F.2d 55, in which the insured, a Naval aviator, was forced to land his plane on the water and was drowned while attempting to reach his life raft. Other instructive cases are Pittman v. Lamar Life Insurance Co., 5 Cir., 17 F.2d 370; Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99, 57 A.L.R. 615; and Blonski v. Banker’s Life Co., 209 Wis. 5, 243 N.W. 410. Compare: Commercial Union Assurance Co. v. Pacific Union Club, 9 Cir., 169 F. 776; Pacific Union Club v. Commercial Union Assurance Co., 12 Cal.App. 503, 509, 107 P. 728; Tierney v. Occidental Life Insurance Co. of California, 89 Cal.App. 779, 265 P. 400. Counsel for the beneficiary virtually conceded in oral argument (as indeed they must) that the Neel and Green cases, supra, are indistinguishable in principle from this case. They rely, however, on Bull v. Sun Life Assurance Co. of Canada, 7 Cir., 141 F.2d 456, certiorari denied, 323 U.S. 723, 65 S.Ct. 55, 89 L.Ed. 581. In that case the insured went down a few hundred yards from shore, after his plane was damaged by anti-aircraft fire. After the emergency landing, the insured was seen standing on the fuselage, attempting to launch a rubber boat. Other members of the crew, who had already escaped in a rubber raft dived into the water when a Japanese plane swept low to strafe the crippled American plane. An explosion was heard, the crippled plane burst into flames, and the insured was never seen again. In holding the insurer liable, the Court, by a two to one decision, emphasized the war risk of enemy fire and noted that the jury could have found this intervening force caused death. We agree with the observation in the Green case which viewed the intervening force in the Bull case as a distinguishing feature. 144 F.2d 55 at page 58. We come, then,' to the last argument of the plaintiff (appellee) which is that, irrespective of the foregoing, the South Carolina law would permit recovery in a case of this character. This phase of the argument rests primarily on the dictum in Bolt v. Life & Casualty Ins. Co. of Tennessee, 156 S.C. 117, 152 S.E. 766, 767: “* * * our court has made it the almost universal rule to construe any clause of an insurance policy against the insurer, when there existed the least doubt as to the meaning of the language employed.” We agree that this is an exceedingly broad statement. Nevertheless, in our view of the instant case, the meaning of the language employed in the policy is clear on its face. In any event, we believe that the highest court in South Carolina would not make specific application of such a generalized dictum, which, if applied to the facts here, would fly in the face of reason and the very considerable authority that has expressed the view we now follow. It would certainly not conform with accepted theories of proximate cause. See Horne v. Atlantic Coast Line R. Co., 177 S.C. 461, 181 S.E. 642. Counsel for appellee, while not contending that we are bound by it, have cited a decision rendered in the Court of Common Pleas for the County of Spartanburg which allowed the same plaintiff to recover on a similar policy with another insurance company on the same statement of facts now before us. That opinion, not binding on other South Carolina courts, is not binding' on us and we cannot treat it as a final expression of South Carolina law. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. While we entertain nothing but respect for that court, we must reject its view of this case for the reasons previously expressed. That opinion, it might be added, which was rendered July 29, 1946, relied on the District Court’s ruling in the instant case now before us. The case of Goethe v. New York Life Ins. Co., 183 S.C. 199, 190 S.E. 451, is urged as an instance in which terms in insurance policies should be construed according to the ordinary and usual understanding of its signification by “common people.” We are unable to see how this strengthens the plaintiff’s case, for our conclusion is reached by the express adoption of the rule urged by plaintiff. We have carefully considered other cases cited by the plaintiff: McGee v. Globe Indemnity Co., 173 S.C. 380, 175 S.E. 849; Young v. Life & Casualty Ins. Co. of Tennessee, 204 S.C. 386, 29 S.E.2d 482; Myers v. Ocean Mftg. Co., 4 Cir., 99 F.2d 485; Manufacturers Accident Indemnity Co. v. Dorgan, 6 Cir., 58 F. 945, 22 L.R.A. 620, and find them inapplicable and not controlling. The judgment of the lower court is reversed. 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_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, Plaintiff-Appellee, v. Ralph Michael LEPISCOPO, Defendant-Appellant. No. 71-1379. United States Court of Appeals, Tenth Circuit. April 18, 1972. Ralph Michael Lepiscopo, pro se. Robert J. Roth, U. S. Atty., and Richard L. Meyer, Asst. U. S. Atty., on brief, for plaintiff-appellee. Before LEWIS, Chief Judge, DOYLE, Circuit Judge, and WINNER, District Judge. PER CURIAM. The appellant Lepiscopo was tried before a jury in the District Court for the District of Kansas and found guilty of a violation of 18 U.S.C. § 1792, conveying from place to place within a United States penitentiary a weapon designed to kill, injure or disable any officer, agent, employee or inmate. The appellant was confined in the federal penitentiary at Leavenworth, Kansas at the time of the offense. The weapon involved was a knife made from a 12-inch piece of %-inch steel sharpened to a point on one end and wrapped with string and tape for a grip at the opposite end, clearly a weapon within the meaning of the statute. Throughout the proceedings in this case the appellant conducted his own defense. He steadfastly refused the assistance of counsel even though the trial judge, over appellant’s objection, had appointed “stand-by” counsel to provide assistance if appellant requested it. The appellant’s defense to the charge was that he was insane at the time of the offense. The defense of insanity is not a simple one, and it is apparent from the record that the appellant needed an attorney. But as the trial judge recognized, an accused cannot be forced to accept an attorney’s services even when appointed by the court. It is also apparent from the record that much of the appellant’s conduct at the trial was intended to harass both court and counsel, and generally disrupt the judicial process. The trial judge is to be commended for his patience and diplomacy in handling a difficult situation. In his appeal pro se the appellant claims that he was denied his right to compulsory process. He requested several witnesses, five of these were denied by the trial judge. Two of those denied were expert witnesses from Atlanta, Georgia, where the appellant had been imprisoned prior to transfer to Leavenworth; the remainder were inmates at other federal prisons. Rule 17(b) Fed.R.Crim.P. provides that witnesses will be subpoenaed at government expense “upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense.” A motion to have a witness produced at government expense is addressed to the sound discretion of the court and is not an absolute right. United States v. Mason, 10 Cir., 440 F.2d 1293; Speers v. United States, 10 Cir., 387 F.2d 698, cert. denied, 391 U.S. 956, 88 S.Ct. 1864, 20 L.Ed.2d 871. These witnesses were to testify on the insanity issue. None of them had seen or talked to the defendant for over a year prior to the offense. The court justifiably ruled that their testimony was not necessary to an adequate defense. There was no abuse of discretion by the trial judge. The appellant complains on appeal that he was not allowed by the trial judge to examine a certain report in possession of the F.B.I. agent who testified at the trial. He claims this was a violation of his rights under the Jencks Act, 18 U.S.C. § 3500. The Jencks Act provides that after a witness has testified on direct examination, the government must produce any written statement of the witness in its possession “which relates to the subject matter as to which the witness has testified.” The “statement” that appellant requested was an F.B.I. report concerning the indictment and arraignment of appellant. The report did not relate to anything in the witness testimony on direct examination nor does it appear to be a producible “statement” within the meaning of 18 U.S.C. § 3500(e). The appellant argues for reversal on the grounds that the prosecuting attorney, in his closing argument commented on the appellant’s failure to testify. Such a comment is reversible error. United States v. Nolan, 10 Cir., 416 F.2d 588. But the prosecutor’s comment was not of that type. After summarizing and reviewing to the jury the government's evidence, the prosecutor commented, “All of this evidence is uncontradicted.” It is permissible for the prosecutor to call the jury’s attention to the fact that the evidence against the defendant is uncontradicted, especially when the facts in issue could have been controverted by persons other than the defendant. Doty v. United States, 10 Cir., 416 F.2d 887. The appellant complains that the trial judge gave an erroneous instruction on insanity. There is no merit whatsoever to this contention as the trial judge gave the instruction approved by this court in Wion v. United States, 10 Cir., 325 F.2d 420. The appellant concludes with the generalization that he did not receive a fair trial. The record does not support this contention. Affirmed. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_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". Richard J. RAPAK, Plaintiff-Appellee, v. COMPANION LIFE INSURANCE COMPANY, Defendant-Appellant. No. 91-1712. United States Court of Appeals, Fourth Circuit. Argued Oct. 31, 1991. Decided April 6, 1993. Duval Cravens Ravenel, Baker, Barwick, Ravenel & Bender, Columbia, SC, argued, for defendant-appellant. Robert P. Wood, Sherrill & Rogers, P.C., Columbia, SC, argued, for plaintiff-appel-lee. Before PHILLIPS and WILKINS, Circuit Judges, and WARD, Senior United States District Judge for the Middle District of North Carolina, sitting by designation. OPINION WILKINS, Circuit Judge: The issue before us concerns the interpretation and application of an incontestability clause as required by S.C.Code Ann. § 38-65-210 (Law. Co-op.1989) in a group life insurance policy. Because the issue raised was one of state law which the courts of South Carolina had not resolved, we certified the question to the Supreme Court of South Carolina. Construing the express language of the insurance policy, the court held that the incontestability clause must be given effect. Consequently, we affirm the decision of the district court. I. In May of 1970, Gloria A. Rapak commenced employment with White Oak Man- or Capital Convalescent Center in Columbia, South Carolina. On July 15, 1980, Companion Life Insurance Company (Companion Life) issued to White Oak Manor a group life insurance policy providing a scheduled benefit amount of $4,000 for all employees. Mrs. Rapak executed a Notice of Election form designating her husband, Richard J. Rapak, as the beneficiary of the death benefit. As a result of a terminal illness, Mrs. Rapak ceased employment in July of 1982 and never returned to work. In 1983, White Oak Manor increased the life insurance benefits available under the Companion Life group policy by supplementing the existing policy with an endorsement that increased the life insurance benefit for its employees from $4,000 to $54,000. Full-time employment by White Oak Manor was an express condition of eligibility for this increase. The application of White Oak Manor for the increased group life insurance coverage included a list of current employees and a certification that all persons to be insured under the policy were “full-time, active employees working 30 or more hours per week” as required by policy provisions. Although not employed by White Oak Manor at this time, or at any time thereafter, Mrs. Ra-pak’s name was included on this list of full-time, current employees. White Oak Manor completely funded the policy without contribution from employees, paying monthly premiums based on a roster of current employees of White Oak Manor. White Oak Manor did not inform Companion Life that Mrs. Rapak ceased employment in 1982 or that she was not employed at the time of the increase. However, her name was continually listed on the roster of White Oak Manor employees until her death on September 26, 1987. White Oak Manor subsequently submitted a claim on behalf of Mr. Rapak seeking death benefits under the policy in the amount of $54,000, noting on the claim form that the last date on which Mrs. Ra-pak was employed was August of 1982. Companion Life allowed the claim in the amount of $4,000, but declined to award the $50,000 in benefits representing the increased coverage on the ground that Mrs. Rapak was not eligible for this insurance because she was not employed by White Oak Manor at inception of the increased coverage or at any time thereafter. Following a bench trial, the district court concluded that Mr. Rapak was entitled to recover $54,000 in benefits. The court determined as a matter of law that the incontestability clause barred Companion Life from raising the defense of ineligibility based on Mrs. Rapak’s employment status at the time the increased coverage took effect. Companion Life appeals from this adverse ruling. II. The group policy issued by Companion Life contains an eligibility clause, which provides: The amount(s) of Personal Insurance of each employee insured hereunder shall be in accordance with the following Schedule. Any change in amount in accordance with said Schedule shall become effective on the fifteenth of the insurance month following the date of change in the employee’s classification, provided, that if the employee is absent from active work and is disabled on the date a change in amount would become effective in accordance with this paragraph, such change shall not become effective until the date on which he is actively at work on full-time unless said change is a reduction in amount of insurance due to attainment of a specified age or retirement of the employee. An incontestability clause in the policy further provides: After this policy has been in force for a period of two years, it shall become incontestable as to statements of the Policyholder contained in the application; and no statement made by any employee relating to his insurability shall be used in contesting the validity of the insurance with respect to which such statement was made, after the insurance has been in force during [the] life time of the insured prior to the contest for a period of two years nor unless it is contained in a written instrument signed by him and a copy of the instrument containing the statement is or has been furnished to such person or beneficiary. The incontestability clause is similar to a clause required under South Carolina law to be included in all insurance policies issued in the state. See S.C.Code Ann. § 38-65-210(2) (Law. Co-op.1989). The pertinent statute provides in relevant part: Provisions required in all policies. No policy of group life insurance may be delivered in this State unless it contains in substance the following provisions or provisions which in the opinion of the Commissioner are more favorable to the persons insured or at least as favorable to the persons insured and more favorable to the policyholder.... (2) A provision that the validity of the policy may not be contested, except for nonpayment of premiums, after it has been in force for two years from its date of issue and that no statement made by any person insured under the policy relating to his insurability may be used in contesting the validity of the insurance with respect to which the statement was made after the insurance has been in force before the contest for a period of two years during the person’s lifetime nor unless it is contained in a written instrument signed by him. Id. Thus, the issue presented is whether an incontestability clause contained in an employer-funded group life insurance policy bars the insurer from asserting a defense that the named insured was ineligible for insurance because the named insured was not an employee at the inception of the increased coverage as an express condition required. Opposing answers to this question are found in two lines of cases. See generally Annotation, Misrepresentation as to Employer-Employee Relationship as Within Incontestability Clause of Group Insurance, 26 A.L.R.3d 632 (1969). The majority of courts have followed the rule of Simpson v. Phoenix Mutual Ufe Insurance Co., 24 N.Y.2d 262, 299 N.Y.S.2d 835, 838, 247 N.E.2d 655, 657 (1969), holding that the incontestability clause bars the defense. The district court followed the Simpson line of cases to find in favor of Mr. Rapak. A substantial minority of jurisdictions, however, have adopted the contrary rule represented by Crawford v. Equitable Life Assurance Society of the United States, 56 Ill.2d 41, 305 N.E.2d 144, 149-50 (1973), to hold that the clause does not preclude the defense. The answer to this question is dispositive of this appeal. Because our review of the cases revealed no controlling precedent from the courts of South Carolina, we concluded that the issue should be resolved authoritatively by the state supreme court. Accordingly, we certified to the Supreme Court of South Carolina the following question: Whether an incontestability clause contained in an employer-funded group life insurance policy bars the insurer from defending its decision not to pay death benefits on the ground that an express condition of coverage that the insured be a full-time employee was not met because the insured was not employed by the employer at the inception of coverage or at any time thereafter. Supra at 803. The Supreme Court of South Carolina answered the certified question in the affirmative, relying on the plain language of the policy rather than on statutory construction. Rapak v. Companion Life Ins. Co., — S.C.-,-, 424 S.E.2d 486, 488 (1992). Reasoning that “the policy itself expressly provides a two-year contestability period ‘as to statements of the Policyholder’ rather than simply providing for contestability regarding ‘the validity of the policy’ as the statute does,” the court concluded that “[s]ince Mrs. Rapak’s employment status was certified by statement of the policyholder ... it became incontestable after two years from inception of the supplemental policy.” Id. Accordingly, we affirm the decision of the district court. AFFIRMED. . Mrs. Rapak actually worked for MGR, Incorporated, which subsequently changed its name to White Oak Manor Capital Convalescent Center. For ease of discussion we refer to MGR, Incorporated and White Oak Manor Capital Convalescent Center as "White Oak Manor." . The decision of White Oak Manor to continue paying premiums for Mrs. Rapak and not to notify Companion Life of her cessation of employment apparently resulted from humanitarian concerns 'and as an expression of gratitude for her faithful service. 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_appsubst	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. IOWA CITY, IOWA, et al. v. IOWA CITY LIGHT & POWER CO. No. 10852. Circuit Court of Appeals, Eighth Circuit June 28, 1937. D. C. Nolan, of Iowa City, Iowa, for appellants. C. D. Waterman and Wayne G. Cook, both of Davenport, Iowa (Dan C. Dutcher and Dutcher, Ries & Dutcher, all of Iowa City, Iowa, and Lane & Waterman, of Davenport, Iowa, on the brief), for appellee. Before GARDNER, WOODROUGH, and BOOTH, Circuit Judges. Rehearing denied Sept. 27, 1937. WOODROUGH, Circuit Judge. This suit in equity was brought by the Iowa City Light & Power Company against the city of Iowa City, its mayor and solicitor and members of the city council, to enjoin the defendants from enforcing a gas rate ordinance passed by the city council April 19, 1935, and from interfering with or obstructing the plaintiff in the distribution of natural gas to the city and its inhabitants. The plaintiff is the successor in interest to the Iowa City Gas Light Company which was granted a 25 year gas franchise by the city in 1909. The franchise expired in 1934, but there are no other means to supply gas to the city and its inhabitants, and the light and power company continues to operate as the only gas utility in the city and performs such gas utility service according to the terms of the franchise without objection from anyone. It alleged in its bill of complaint (among other things) that the gas rate ordinance of April 19, 1935, was confiscatory, void, and unenforceable, and the master to whom the case was referred so found and reported upon consideration of the evidence, and the court affirmed the report and enjoined the rates. From that part of the decree no appeal has been taken. But it was also alleged in the bill of complaint that the light and power company had the right and had been directed by resolution of the city council, passed November 16, 1934, to serve natural gas instead of manufactured gas to its customers. That the franchise of 1909 did not, by its terms, prescribe or limit or define the character of the gas to be furnished to the city and the plaintiff has furnished different kinds of gas under its franchise, including water gas, coal gas and carbureted watér gas. That it had elected to comply with the direction of the city council to serve natural gas and had incurred the expense necessary to bring the natural gas from the pipe line where it was available into the city, but that the defendants, in passing the gas rate ordinance of April 19, 1935, which fixed rates for manufactured gas only, expressed their intention to interfere with the right of the plaintiff to serve natural gas to the city and its inhabitants and have refused to permit the introduction of the natural gas and have forbidden the plaintiff the privilege of installing it. The trial court found that the company had the right to serve natural gas and enjoined the defendants from in any way interfering with the plaintiff in serving natural gas in place of manufactured gas to the inhabitants of Iowa City. At the time the suit was brought and the injunction was entered the defendants were refusing to grant permits to the plaintiff to make necessary street excavations to connect up the natural gas line with the existing distribution system at the gas works. The decree, therefore, included mandatory provisions to permit the necessary excavations to be made. Such mandatory provisions of the decree were not stayed pending this appeal and it is stated at the bar that all necessary excavations have been made by the company and the connection has been completed so that now only the adjustment of customers’ equipment and substitution of gas in the mains remains to be done in order to effect the change in the service from manufactured to natural gas. The appellants, seeking to reverse that part of the decree which enjoins defendants from preventing the service of natural gas, have contended, (1) that the suit was not cognizable in equity, (2) that the gas franchise of 1909 did not grant the right to use the city streets to supply natural gas either expressly or by implication, (3) that there was no power in the city to compel natural gas to be supplied and so there was no mutuality of obligation and the company must fail, (4) that even if the franchise authorized serving natural gas the company should not be permitted to extend its facilities in order to supply natural gas since the term of the franchise had expired, (5) the discretionary power of the city to withhold street excavation permits should not be controlled by the court, and, (6) to install natural gas would impose a burden and damage to gas consumers. (1). Equity: We find no merit in the contention that the trial court was without jurisdiction in equity. The federal jurisdiction was established by the diversity of citizenship and more than $3,000 involved, as well as by the allegations that determination of the controversy involved construction of the Fifth and Fourteenth Amendments to the Federal Constitution and section 10 of article 1 thereof. In part the object of the suit was to enjoin the enforcement of rates to he charged by the utility for gas and the power of the federal equity courts to entertain bills in equity for that purpose and to grant such relief in proper cases has been too long established to require citations. 1 Hughes, Fed. Practice, 433, § 567. As the suit was properly brought in equity to enjoin the enforcement of the confiscatory rates it was the duty of the equity court to retain and exercise is jurisdiction to adjudicate all the issues presented. Alexander v. Hillman, 296 U.S. 222, 242, 56 S.Ct. 204, 80 L.Ed. 192; Hartford Accident & Indem. Co. v. Southern Pacific Co., 273 U.S. 207, 217, 47 S.Ct. 357, 71 L.Ed. 612; United States v. Union Pac. Ry. and Western Union Tel. Co., 160 U.S. 1, 51, 16 S.Ct. 190, 40 L.Ed. 319; Gabrielson v. Hogan (C.C.A.8) 298 F. 722, 726. (2). The franchise: There is no limitation or definition contained in the charter of 1909 concerning the character of gas which tile city authorized the Iowa City Gas Light Company to supply. The language of the grant was: “An Ordinance Granting the Iowa City Gas Light Company, Its Successors or Assigns Permission To Use the Streets, Alleys and Public Grounds of Iowa City For the Purpose of Laying Down Pipes For Conveying Gas For the Supplying of Said City and the Inhabitants Thereof With Gas. “Be It Ordained by the City Council of Iowa City, Iowa: “Section 870. That the Iowa City Gas Light Company, its successors or assigns be and are hereby authorized and the privilege is hereby granted the said Iowa City Gas Light Company, its successors or assigns for the term of tvrenty-five years, subject to the conditions herein expressed, to use the streets, alleys and public grounds of Iowa City, including any territory that may hereafter be annexed to said Iowa City, for the purpose oí laying down pipes for conveying gas for the supplying said city and the inhabitants thereof with gas.” There was a forfeiture clause: “Provided further, if in the future the said Iowa City Gas Light Company, its successors or assigns ceases in good faith to manufacture gas and to use the franchise herein granted for the period of ninety days then said Iowa City may annul and cancel all rights herein granted by giving ninety days’ notice in writing to said Iowa" City Gas Light Company, its successors or assigns, of its intention so to do.” The name of the grantee of the franchise, “Iowa City Gas Light Company,” is reminiscent of an important use of gas .in former times. Possibly gas best adapted to lighting purposes would then be uppermost in the mind of those voting a gas franchise. But we see no reason to read a restricting limitation on the kind of gas to be furnished under the • franchise. Of course, the gas must be suitable for and adapted to the uses for which it is intended. So much is implied in the franchise, but no more. The franchise was not conditioned that it might be forfeited if the grantee ceased to manufacture gas but, so far as forfeiture was provided for in the charter, the right was given to the city only if- the grantee ceases to manufacture gas and use the franchise (that is, “if it ceases to use the city streets for * * * conveying gas for supplying said city * * * with gas”). No condition of the franchise, either expressly or by implication, excluded natural gas. City of Laurel v. Mississippi Gas Co. (C.C.A.5) 49 F.(2d) 219; Central Power Co. v. City of Hastings (D.C.) 52 F.(2d) 487. (3). Mutuality: The franchise contemplated that the grantee and its assigns and successors should have the responsibility of supplying gas and regulatory powers remained with the city, and to that extent there were mutual and reciprocal obligations. But as there was no specification in the franchise of any particular kind, quality, or character of gas which the city could require the company to furnish, the city cannot prevent the company from supplying a gas which is suitable for the uses for which it is intended and required. We do not consider Union Light, Heat & Power Co. v. Young, 146 Ky. 430, 142 S.W. 692, relied on by appellants, to be applicable. (4). The expiration of the franchise: It is well settled that a public service utility operating under a city franchise is not released from its duty to render service at the moment its franchise runs out. Where the city inhabitants have become dependent upon the service and no other arrangements have been made to supply it, the obligation to serve remains on the utility whose properties still occupy the streets and public places. Neither is the city absolved from its duties by the termination of the franchise. The reciprocal duties which result from necessity when the term of the franchise expires are no less certain because the conditions are of indefinite duration. While they continue, the utility must keep the service up and the city must require the rates to be reasonable. It follows that the utility must continue to use its best effort to render its service efficiently and economically, and a reasonable choice of means remains with the company. If in order to accomplish that end it is necessary for it to lay more pipe-in streets in which it has not yet laid them, the temporary nature of its tenure in nowise relieves it of its duty, nor deprives it of its right, to keep up with the requirements of its service. The rights of the utility company in the streets are not exactly the same as such rights were prior to the termination of the franchise. The right of occupancy of the street, whether by sufferance or at will, under the circumstances disclosed, arose by implication and was terminable by reasonable notice. But the fact that the charter has expired, would, of itself, afford the city, no justification to prevent the utility from installing natural gas where such installation was within the purview of the charter under which the utility service was developed and carried on. City and County of Denver v. Denver Union Water Co., 246 U.S. 178, 190, 38 S.Ct. 278, 62 L.Ed. 649; City of Roswell v. Mountain States Tel. & Tel. (C.C.A.10) 78 F.(2d) 379, 386; Hill v. Elizabeth City (C.C.A.4) 298 F. 67; State ex rel. County Attorney v. Des Moines City Ry., 159 Iowa, 259, 140 N.W. 437; Cedar Rapids Water Co. v. City of Cedar Rapids, 118 Iowa, 234, 91 N.W. 1081, 1090. (5). Street excavations: The city has reserved to it at all times a reasonable discretion in the matter of granting or withholding permits to excavate for laying gas pipes in the streets. The evidence clearly disclosed that before the mandatory injunction was issued herein excavation permits were being refused the gas and light company because the city officers were denying the right of the company to supply natural gas and the appellants continue to justify the refusal of permits on that ground. As it appears that the necessary excavations to complete the installations desired by the company have now been made, it is deemed unnecessary to elaborate upon the contentions under this heading. As we are in accord with the trial court’s conclusion that natural gas may lawfully be installed by the company, it is not to he anticipated that excavations necessitated by that service will be unreasonably refused by the city. (6). Would natural gas cause damage and burden? The plaintiff alleged in its bill of complaint that the natural gas which it proposes to distribute is a material improvement over the gas heretofore furnished, of higher thermal content, and capable of being furnished at substantially less cost to the consumer. That there is a constant increase in prices incident to the manufacture of gas and that, if the rate for manufactured gas were substantially increased, sales would tend to decrease and that the use of manufactured gas is no longer economically sound and that competitive conditions in the industry can be met only by the utilization of natural gas. The defendants put these claims in issue and alleged that natural gas is inferior in many respects and particularly that it is more hazardous; it is dirtier; contains many foreign elements that are not found in manufactured gas; that it does not have, nor can an even pressure be maintained; that the thermal or B.T.U. content thereof, although it may be of a higher quantity, is not capable or susceptible of being efficiently used or as high efficiency obtained from natural gas in respect to its higher B.T.R. or thermal content as can be obtained from manufactured or artificial gas. They also alleged that the cost to the company of installing natural gas will increase the capital investment so as to impose an unreasonable burden on the consumers. The master analyzed the considerable volume of testimony upon the fact issues so presented and found that the natural gas proposed to be furnished by the utility is more practicable in that it is cheaper and approximately as efficient as manufactured gas. The trial court, on consideration of the master’s report and the exceptions thereto, overruled the exceptions and approved and confirmed the report. Our study of the testimony has led to the conclusion that the findings are in accord with the preponderance and that the trial court did not err in sustaining them. Each of the assignments of error has been considered, but none is sustained. Affirmed. Question: What is the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number. Answer:
songer_respond1_7_5	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). William McQUEEN et al., Plaintiffs, Appellees, v. Bertram DRUKER et al., Defendants, Appellants. No. 7726. United States Court of Appeals, First Circuit. Feb. 24, 1971. Robert J. Sherer, Boston, Mass., with whom Thomas D. Garvin Jr., and Michael Putziger, of Roche, Carens & De-Giacomo, Boston, Mass., were on brief, for appellants. Michael L. Altman and Brian Michael Olmstead, Dorchester, Mass., for appel-lees. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. COFFIN, Circuit Judge. Appellees are tenants in a 500 unit apartment complex, Castle Square, in the South End of Boston — the same subsidized housing facility constructed and operated under section 221(d) (3) of the National Housing Act, 12 U.S.C. § 17151(d) (3), which was involved in Hahn v. Gottlieb, 430 F.2d 1243 (1st Cir. 1970). This suit originated when appellant landlord, in accordance with the terms of the lease, notified these tenants in May, 1970, that it was not to be renewed after the July 31, 1970 termination date. Appellees brought this action under 42 U.S.C. § 1983, asserting jurisdiction under 28 U.S.C. §§ 1331, 1343, and seeking an injunction against their threatened eviction; a declaration that eviction must be predicated on cause, with notice, hearing and assurance of alternative housing; and compensatory and punitive damages. The district court found sufficient federal and state involvement to make applicable the due process clauses of the Fifth and Fourteenth Amendments and the First Amendment. It enjoined the eviction, and made two declarations of rights and responsibilities. First, it declared that the statutory scheme for § 221(d) (3) housing impliedly requires a good-cause notice to evict and that state court proceedings, observing this substantive federal ruling, would provide procedural due process. Second, it declared that, since “the chief reason” for the landlord’s notice to quit was “associational activities” on behalf of fellow tenants, petitions to the Federal Housing Authority, and litigation, the First and Fourteenth Amendments barred any eviction so grounded. 317 F.Supp. 1122 (D.Mass. 1970). The large problem for us is whether the landlord’s action in exercising his contractual right under the lease not to renew and in seeking to evict appellees, can rationally be said to be such “state action” as to call into play the Fourteenth Amendment. More precisely, the question is whether the landlord, though not an ostensible agent of the state, has such a relationship with the state that his activities take on the color of state law. United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966). The district court, relying on Colon v. Tompkins Square Neighbors, 294 F.Supp. 134 (S.D. N.Y.), as well as on Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), and Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), reasoned that “With respect to Castle Square, the federal and state governments have elected to place their power, property, and privilege behind the landlords’ authority over the tenants, and have insinuated themselves into a position of interdependence with the landlords.” The landlord claims that this case involves only “a regulation of the operations of a private business, not a vesting in it of the functions of government” and argues, citing Grossner v. Trustees of Columbia University in the City of New York, 287 F.Supp. 535, 548 (S.D. N.Y. 1968), that “the receipt of money from the State is not, without a good deal more, enough to make the recipient an agency or instrumentality of the Government”. He attacks the court’s finding in the words of Mr. Justice Harlan’s dissent in Wilmington Parking Authority, supra, 365 U.S. at 727, 81 S..Ct. at 862, as the result of “undiscriminatingly throwing together various bits and pieces”. We do not agree. Our scrutiny of the landlord-state relationship indicates far less privateness in the landlord’s enterprise, far more of a governmental function, and “a good deal more” than receipt of governmental financial help. They are inescapably the “bits and pieces” on which an ultimate judgment must rest after “sifting facts and weighing circumstances”, Wilmington Parking Authority, supra, 365 U.S. at 722, 81 S.Ct. 856. We concede that little guidance in making a principled decision is found in such serpentine words as “insinuated”, Wilmington Parking Authority, supra, 365 U.S. at 725, 81 S.Ct. 856, “involved”, Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), “entwined”, Evans v. Newton, 382 U.S. 296, 301, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966), or “intertwining”, Grossner, supra, 287 F.Supp. at 548. Commentators have varied in approving or disapproving this lack of precision, but all have recognized it. Recognizing that the state coloration required by § 1983 is inevitably opaque, we nevertheless hazard our analysis. Defendant purchased the Castle Square property from the Boston Redevelopment Authority (BRA), which had condemned it in connection with its urban renewal program. The federal incentive to private entrepreneurs, inducing them to take part in helping achieve the national objective of providing housing for needy and displaced families, is insurance of mortgage loans up to 90 per cent of a project’s cost, supplementation of mortgagors’ interest payments above 3 per cent, and assurance of a 6 per cent return on investment through rent adjustments. In addition to limiting the exposure of private enterprise, the federal law imposes requirements which must be adopted by participating states. For example, federal law requires that, in disposing of urban renewal property, the BRA must place restrictions on the use of property in order to ensure that it is used in accordance with approved urban renewal plans or for low or moderate income housing. 42 U.S.C. §§ 1460(c) (4), 1455, and 1457. State law requires similar restrictions. Mass.Gen.Laws ch. 121, §§ 26YY and 26 LL. Consequently, the BRA has required the landlord through a lengthy Land Disposition Agreement to adhere to many standards governing the physical plant (e.g., prior approval for construction, improvements and demolition, a minimum investment in works of art, facilities for the handicapped, equal employment opportunity); limitations on rental. agreements as to amount, duration, and increases; admissions policies (e.g., income levels of applicants, priority to four classes of displaced persons and four classes of commercial occupants, and allowing the Boston Housing Authority to select tenants for 10 per cent of the residential units); management (e.g., use solely in accordance with the South End Urban Renewal Plan, consultation with BRA “with respect to its rental program, including preparation of advertising matter, brochures, leases, establishment of rental offices, and all aspects of said program which relate to or have an effect upon the selection of tenants”, inspection at all reasonable hours); transfer of title (e. g., compliance with any “conditions * * * the Authority may find desirable in order to achieve and safeguard the purposes of the Massachusetts Housing Authority Law, and the Plan.”). The state supervision of the “private” operations here seems to us to be more than the placing of state “power, property and prestige” behind the discriminatory action of a private restaurateur-lessee in a public building. Burton v. Wilmington Parking Authority, supra, 365 U.S. at 725, 81 S.Ct. 856. Here the landlords are, in return for an assured consideration, and subject to specific and continuing oversight, helping the state realize its specific priority objective of providing for urban renewal displacees and its more general goal of providing good quality housing at rents which can be afforded by those of low and moderate income. The stronger posture of government supervision present in this case is not unrelated to the fact that the government has chosen to attract the participation of private persons in carrying out a specific governmental purpose. In Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966), the Court held that a park, serving the community and having a municipal purpose, could not be insulated from the effect of the Fourteenth Amendment by transfer of title to private trustees. It also observed that “If the municipality remains entwined in the management and control of the park, it remains subject to the restraints of the Fourteenth Amendment just as the private utility in Public Utilities Comm’n v. Pollak, 343 U.S. 451, 462, [72 S.Ct. 813, 96 L.Ed. 1068], remained subject to the Fifth Amendment because of the surveillance which federal agencies had over its affairs.” 382 U.S. at 301, 86 S.Ct. at 489. Here the function, while perhaps not so traditionally governmental as parks, fire or police services, or libraries, is today one of the major concerns of most cities of substantial size. And to the performance of that function by the landlord, governmental authority contributes significant operational surveillance. We view our task of “sifting facts and weighing circumstances” as one to be done to the end of determining when it is fair and reasonable to hold an individual subject to the same duties of observance of constitutional rights as are imposed on a governmental unit. Mere receipt of financial subsidy and subjection to some regulation are the conditions of much of our societal life. Neither factor — or both together — is dispositive of “state action”. But, while we disavow any effort to be definitive, we conclude that at least when a specific governmental function is carried out by heavily subsidized private firms or individuals whose freedom of decision-making has, by contract and the reserved governmental power of continuing oversight, been circumscribed substantially more than that generally accorded an independent contractor, the coloration of state action fairly attaches. This brings us to the implications of the applicability of the Fourteenth Amendment to the landlord’s pending action to evict appellees. Appellant’s burden is to establish that the district court’s finding was clearly erroneous. We have examined the record and find abundant evidence supporting the district court’s determination. The appellant distributed a flyer to all tenants announcing his intention to evict the appellees including as a reason “the many confrontations * * * with the McQueens” as compelling his actions. The manager of Castle Square in his testimony admitted telling the appellees’ counsel that the conflict with the McQueens had become a “cause celebre” and that the landlord could not tolerate being confronted. The appellant did not deny that his motive was retaliatory at least in part. He presented in addition a panoply of alternate reasons for the eviction, all of which had been unsuccessfully tendered previously in state eviction proceedings against the McQueens. The court was well within its bounds to discount these grounds and find the dominant and primary motive one of retaliation against the appellees for their exercise of First Amendment rights. Cf. NLRB v. Billen Shoe Co., 397 F.2d 801 (1st Cir. 1968). This established, it must follow that, whatever other rights or privileges may be available, appellees are at least protected from this eviction. The appellees in addition request a further declaration that the Castle Square landlord may not evict a tenant without giving notice of good cause for the eviction accompanied by a hearing thereupon in order to satisfy due process. Because of our disposition of this appeal on the grounds stated above, we do not have to reach this latter question. As far as this tenant is concerned, the landlord may not evict him for holding over after termination of his lease because, as found by the district court, the eviction was brought because of the exercise by the tenants of their First Amendment Rights. The procedural rights of a tenant whose eviction is not motivated by constitutionally impermissible reasons is not presented by this appeal. Furthermore, we doubt whether any “case or controversy” is involved when a tenant requests a declaration of procedural rights as to an imagined future eviction which has never been threatened. The Declaratory Judgment Act requires more concreteness than this. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937); 6A Moore ¶ 57.12. Finally, while Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1968), laid down the procedural rights of tenants in wholly public housing projects as a result of non-constitutional analysis, we are disinclined to attempt to define any additional constitutional rights of tenants in a § 1983 case in the absence of a more real crucible of controversy. The judgment of the district court is affirmed insofar as it enjoins appellant from proceeding further with respect to his May 20, 1970 notice of termination of the McQueen tenancy and with respect to the proceedings for eviction of the McQueens which appellant began in the Boston Municipal Court on August 31, 1970. . During the pendency of this litigation one of the two named landlord-defendants died. We shall therefore refer to the sole appellant as “landlord” as a matter of convenience. . The landlord’s subsequent eviction action, by agreement, awaits final resolution of this appeal. . We base this decision on state, not federal involvement, the former being the only issue argued on. appeal by appellees. . This case dealt with very similar facts. We do not feel that Colon is inconsistent with the subsequent Second Circuit case, McGuane v. Chenango Court, Inc., 431 F.2d 1189 (1970), which seems to hold only that mere receipt of mortgage insurance under the National Housing Act does not make a private apartment house owner an agency of a state. With this proposition we of course agree as our discussion indicates. . The commentary might be broadly grouped into articles which decry the indefiniteness of the concept; e. g., Lewis, Burton v. Wilmington Parking Authority —A Case Without Precedent, 61 Colum. L.Rev. 1458 (1961), Note, The Distin-tegration of a Concept — State Action Under the 14th and 15th Amendments, 96 U.Pa.L.Rev. 402 (1948) ; articles which would jettison the concept and seek an appropriate substitute for it; e. g., Horowitz, The Misleading Search for “State Action” Under the Fourteenth Amendment 30 S.Cal.L.Rev. 208 (1957), Van Alstyne & Karst, State Action, 14 Stan.L.Rev. 3 (1961) ; and articles which find merit in the concept’s open-endedness only as second choice to its demise as a restriction on the 14th Amendment; e. g., Black, “State Action”, Equal Protection, and California’s Proposition 14, 81 Harv. L.Rev. 69 (1967). . By subsequent agreement between the landlord and the BHA this commitment ' was raised to a maximum option of 25% as part of tlie-BHA’s leased housing program, under -which the BHA guarantees rental payments. ' In addition, the City of Boston has granted the landlord a concessionary tax rate of 15% of income. Both these arrangements decrease the landlord’s risk of non-payment of rents, the former by assuring the landlord of at least 25% of his rents each month without recourse to collection efforts, and the latter by pegging his tax obligations to rents actually received. Although the regulatory agreement with the FHA assures the landlord a 6% return, altering the rent schedules to produce such a return necessarily involves some delay. The arrangements with the BHA and the City therefore act to ease the financial shock sustained during this required lead time. . See also Kerr v. Enoch Pratt Free Library of Baltimore City, 149 F.2d 212 (4th Cir. 1945), and Derrington v. Plum-mer, 240 F.2d 922 (5th Cir. 1956). . Compare Powe v. Miles, 407 F.2d 73 (2d Cir. 1968), where in an interesting juxtaposition of eases, the court held that disciplinary action against students in the Liberal Arts College of Alfred University was held not to be under color of state law, while similar action against students of the state-controlled New York State College of Ceramics on the same campus was held to be state action. Our instant ease falls between the two, but closer to the second. . Indeed, the particular activity engaged in by appellees is within the spirit if not the letter of the Massachusetts law giving a tenant a right of action against a landlord “who threatens or takes reprisals * * * for reporting * * * a suspected violation of any health or building code or of any other municipal by-law or ordinance, or state law or regulation which has as its objective the regulation of residential premises * * Mass.Gen.Laws Ch. 186, § 18. Cf. also Edwards v. Habib, 130 U.S.App.D.C. 126, 397 F.2d 687 (1968). . Appellant has protested a ruling of the district court refusing to reopen the record to receive evidence which, so far as we can see, was within the power of appellant to present earlier. The evidence bore on only one of a number of facts relating to appellant’s motives. The ruling of the court was well within its discretion. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
songer_appnatpr	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Severiano Olivarez GONZALEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Vincente CARREREA, a/k/a Severiano Olivares, Defendant-Appellant. Nos. 75-1358 and 76-1197. United States Court of Appeals, Fifth Circuit. March 18, 1977. Bertrand C. Moser (Court-appointed), Houston, Tex., for defendants-appellants. Edward B. McDonough, Jr., James R. Gough, Jr., Anna E. Stool, George A. Kelt, Jr., Asst. U. S. Attys., Houston, Tex., for U. S. in 75-1358. Michael P. Carnes, U. S. Atty., Judith A. Shepherd, James A. Rolfe, Asst. U. S. Attys., Dallas, Tex., for U. S. in 76-1197. Before GOLDBERG, SIMPSON and FAY, Circuit Judges. FAY, Circuit Judge: THE CASES The appellant, Severiano Olivarez Gonzalez, also known as Vincente Cesar Carrerra, also known as “Chente” Carrerra, was charged along with Jose Lopez Garcia in a three-count indictment in the Southern District of Texas. The charges included (1) conspiracy to possess with the intent to distribute heroin; (2)possessing with intent to distribute heroin; and (3) distributing heroin. The overt acts supporting the conspiracy, the possession, and distribution allegedly occurred on May 29, 1974. After a trial by jury in Laredo, Texas, the Government dismissed Count I, the appellant, Gonzalez, was found guilty on Count II and acquitted on Count III, and Garcia was found guilty on Counts II and III. The appellant was sentenced on Count II to serve a term of imprisonment of five years followed by a special parole term of three years. Gonzalez’ appeal from the Laredo conviction forms the basis of Case 75-1358, and the issues raised herein differ from those raised in a separate appeal by Garcia. See United States v. Garcia, 526 F.2d 958 (5th Cir. 1976). In a different indictment, returned by a grand jury of the Northern District of Texas, appellant was charged under the name Vincente Carrerra, along with Garcia and others, with conspiracy to distribute and to possess with intent to distribute heroin. Following a later trial by jury on this indictment in Dallas, Texas, appellant was found guilty and sentenced to a ten-year term of imprisonment to run consecutively to the sentence imposed in Laredo, plus a three year special parole term. The appeal from the Dallas conviction forms the basis of Case 76-1197, and will be considered in conjunction with the Laredo appeal due to the interrelated issues involved. THE FACTS The nature of the assigned errors makes it necessary to understand the basic facts underlying the indictments. The conspiracy charged in the Dallas indictment concerned a variety of drug activities between January and June of 1974. There is no indication, however, that appellant was in any way connected with any of these activities or the co-indictees prior to May 29 of that year. Gonzalo Marquez, a government informant and one of the two principle government witnesses, had arranged to meet Garcia on May 29 at the Woolco parking lot in Laredo for the purpose of buying one pound of heroin from Garcia. On the morning of May 29, Marquez and Drug Enforcement Agency (DEA) Agent Gilberto Alvarez drove from Dallas to Laredo, followed in another automobile by two other DEA agents. Marquez and Alvarez arrived at the designated meeting place about 6:00 p. m. and about fifteen minutes later Garcia arrived in a pick-up truck being driven by appellant. Agent Alvarez testified that Marquez and Garcia exited their respective vehicles and met between the two vehicles and that appellant then joined them, being introduced by Garcia to Marquez as “Chente”. According to Alvarez, Garcia and Marquez discussed the details of a one pound transfer of heroin which was to occur later that evening and a future delivery of additional heroin. Garcia stated the one pound was ready for delivery and that he had brought a sample. Appellant then reached into the pick-up truck through a window and produced a small packet which he handed to Garcia who in turn handed it to Marquez. Everyone left the scene. Alvarez further testified that after field testing the substance Marquez telephoned Garcia who said that “Chente” (appellant) would obtain the drugs and that they would meet at the parking lot at 8:00 p. m. that night to complete the transaction. Alvarez and Marquez returned to the rendezvous point at the scheduled time. About ten minutes later, Garcia arrived on a motorcycle driven by Gonzalez. Garcia got off the motorcycle and directed Gonzalez to drive away a short distance and act as a lookout. Gonzalez left, and Garcia then reached into his pants and produced a package containing one pound of heroin, which he handed to Alvarez. Garcia then motioned to appellant who came back and picked him up. During the next few days, Marquez and Garcia had several phone conversations concerning the purchase of the additional heroin. On June 4, 1974, Marquez and Garcia arranged to meet in the same parking lot after appellant obtained the drugs. About 4:00 p. m. that afternoon, Marquez went to the meeting and saw Garcia arrive in an automobile driven by appellant. Only having one of three kilos promised, appellant told Marquez that he was making arrangements to bring the remainder to Dallas. Garcia delivered one package of heroin to Marquez and then he and Marquez drove to Dallas in Marquez’s automobile. Several times during the journey they stopped and Garcia called appellant because, according to Garcia, appellant was securing the remaining drugs and delivering them to Dallas. In the last call, appellant supposedly told Garcia to bring the money back to Laredo and the two kilos would be transferred there. Garcia was arrested after the men arrived in Dallas. DEA agents arrested appellant at his home in Laredo on the evening of June 5. At the Laredo trial, Garcia and appellant took the stand in their own behalf. Their testimony varied from that of Alvarez about the first Woolco meeting at 6:00 p. m. Appellant testified that at the 6:00 p. m. meeting, neither he nor Garcia got out of the pick-up and denied that he had reached into the pick-up or had ever handed a package to Garcia. Appellant also said that he gave Garcia two rides as a favor to a neighbor, but that he did not know Garcia was in possession of narcotics or that the meetings in the parking lot had anything to do with drugs. Garcia, whose defense was entrapment, corroborated appellant’s testimony. Garcia admitted that at the 6:00 p. m. meeting, he delivered a sample of heroin to Marquez, but denied that appellant had handed it to him. Garcia also testified that he never told appellant that he had heroin in his possession or that the purpose of the trips to Woolco was connected with narcotics traffic. The testimony of appellant was in part corroborated by Lance T. Wade, a government witness. Wade was a DEA agent who had the 6:00 p. m. Woolco meeting under surveillance. Wade, contrary to the testimony of Alvarez, testified that at the 6:00 p. m. meeting, Gonzalez and Garcia never got out of the pick-up truck. p There is also conflicting testimony as to Tihe'events that followed appellant’s arrest. DEA Agent Laurel stated that after the arrest and again later that evening in the DEA office he read appellant in Spanish the full panoply of Miranda rights and that appellant, in response to Laurel’s interrogation, incriminated himself by admitting that when he transported Garcia to the Woolco parking lot on the motorcycle at 8:00 p. m. (May 29) he knew Garcia was illegally in possession of narcotics. On the other hand, appellant denied that he had ever been advised of any of his constitutional rights, denied saying that he was aware that Garcia possessed narcotics on their trips to Woolco a few days before, and that he had requested but was denied permission to call his attorney. CONFESSION HEARING The issue presented by the appeal from the Laredo indictment and trial is whether the trial court erred by not conducting a hearing out of the jury’s presence to determine the admissibility of appellant’s incriminating statements, pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). When the government counsel first sought to elicit from Agent Laurel the statements appellant made while in custody on June 5, appellant’s attorney objected as follows: “I am going to object to any testimony this witness may give on the grounds that the defendant was not taken before a magistrate immediately upon being arrested, and that any admissions he might have made would be inadmissible.” Appellant concedes that the objection does not by itself clearly indicate that he was complaining that Agent Laurel failed to comply with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but submits that the court’s response indicates that this was its interpretation of the objection. The court had replied: “I think if he was thoroughly warned, it would be admissible. You may go forward.” Appellant’s attorney did not contest the court’s interpretation of his prior objection and both sides proceeded to question Agent Laurel and appellant about the warnings. At the conclusion of the trial, the court gave a lengthy jury instruction on the Miranda question without objection from counsel. Thus, appellant argues, the trial court and counsel were apparently aware that appellant had interposed a Miranda objection to the confession, and thus the court’s failure to conduct a hearing, without the jury present, to determine the agent’s compliance with Miranda and the appellant’s waiver of his constitutional rights violated the Supreme Court’s mandate in Jackson v. Denno, supra, and Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967). Based on the lack of any such hearing, appellant believes he is entitled to a new trial on the confession issue regardless of the strength of the other evidence against him, which he contends is minimal and weak in light of the highly prejudicial effect of the alleged confession. Jackson v. Denno entitles defendants to a hearing “fully adequate to insure a reliable and clear-cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend.” 378 U.S. at 391, 84 S.Ct. at 1788, 12 L.Ed.2d at 924. The court’s conclusion that the confession is voluntary must appear from the record with unmistakable clarity. Sims, supra, 385 U.S. at 544, 87 S.Ct. at 643, 17 L.Ed.2d 598. Although Jackson v. Denno concerned the voluntariness of a confession in the sense of it not being given against the defendant’s free will, this Court in Turner v. United States, 387 F.2d 333 (5th Cir. 1968), confronted the need for a Jackson hearing when the challenge to the validity of the confession was based on the absence of Miranda warnings. Viewing objections to confessions based on physical or mental coercion as being no different than objections based on the failure to give Miranda warnings, this Court held that Jack son v. Denno and Sims v. Georgia, supra, required that the district court conduct a hearing out of the jury’s presence, independently determining compliance with Miranda, before a confession may be introduced to the jury. 387 F.2d 333, 334. This requirement is also expressed in Title 18, U.S.C. § 3501. The trial court, however, is under no obligation to conduct a Jackson v. Denno hearing when there is no issue of voluntariness of a confession properly before it. In the instant case, the record reveals that appellant did not file a motion to suppress the confession prior to trial; he did not clearly object either before or during the trial to Agent Laurel’s testimony as containing statements that were coerced, involuntary, or made in defiance of Miranda; he never requested the court to conduct a voluntariness hearing without the jury present; evidence raised on appellant’s behalf did not squarely raise the issue of the voluntariness of his confession; and appellant did not raise the voluntariness issue either at the close of the government’s case when he joined in his co-defendant’s motion for judgment of acquittal or at the close of all the evidence prior to the submission of the case to the jury. The objection raised by appellant’s trial counsel was a McNabb-Mallory type objection, and was not sufficiently clear to put the trial court on notice that a Jackson v. Denno hearing was needed. The appellant waived his right to such a hearing and is precluded from now raising its absence as error because he failed to properly challenge in the trial court the confession offered in Agent Laurel’s testimony. United States v. Yamashita, 527 F.2d 954 (9th Cir. 1975); United States v. Moffett, 522 F.2d 1379 (5th Cir. 1975); United States v. Goodson, 502 F.2d 1303 (5th Cir. 1974); Puryear v. United States, 378 F.2d 29 (5th Cir. 1967). Accord, United States v. Sabin, 526 F.2d 857 (5th Cir. 1976), where this court held that the trial court was not required to hold a voluntariness hearing when the issue of voluntariness was not an issue at trial but first raised on appeal and when the unsolicited statements made by the defendant were not within Miranda’s protection. Furthermore, there does seem something inconsistent about appellant complaining he was never given a hearing on the issue of Miranda warnings or voluntariness of his confession in light of his testimony that he never made a confession! COLLATERAL ESTOPPEL The second ground raised in these appeals is that the doctrine of collateral estoppel should have barred testimony in the Dallas trial that on May 29, 1974, the appellant handed a sample of heroin to Garcia, which testimony appellant contends was fatally damaging. Prior to the Dallas trial, appellant filed a motion to prevent any testimony from Government witnesses about appellant’s activities on May 29 as described in Overt Act No. 13 of the indictment. The basis of the motion, which the district court denied, was that the defendant-appellant had already been tried in Laredo for the offenses that occurred on May 29, and that to try him again in Dallas on these same overt acts would expose him to double jeopardy. One of the leading cases on the subject, Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), explains collateral estoppel • as meaning “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d 475. The protection of collateral estoppel is an established rule of federal criminal law, id., and extends to prevent redetermination of evidentiary facts as well as ultimate facts, Blackburn v. Cross, 510 F.2d 1014 (5th Cir. 1975); Wingate v. Wainwright, 464 F.2d 209, 213-14 (5th Cir. 1972); Yawn v. United States, 244 F.2d 235 (5th Cir. 1957). When collateral estoppel is raised by a defendant, the task then becomes to decipher exactly what facts have been or should be deemed to have been determined at the first trial. Adams v. United States, 287 F.2d 701, 703 (5th Cir. 1961). According to Ashe, supra, after a defendant has been acquitted in one trial, the doctrine requires the court in a subsequent trial to examine the pleadings, evidence, jury charge and other relevant material in the record of the first trial to determine “whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” [footnote and citations omitted]. 397 U.S. 436, 444, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469, 476. Adams v. United States, supra, restated the proposition to the effect that when a “fact is not necessarily determined in the former trial, the possibility that it may have been does not prevent re-examination of that issue.” 287 F.2d 701, 705. See also Johnson v. Estelle, 506 F.2d 347, 350 (5th Cir. 1975); McDonald v. Wainwright, 493 F.2d 204 (5th Cir. 1974). Focusing on the facts of the instant case, appellant argues that the jury’s convicting him on Count 2 (possession with intent to distribute) and acquitting him on Count 3 (distribution), particularly in light of the indictment charging and the court instructing that aiding and abetting would be sufficient to convict, can lead to only one logical explanation. That is, the Laredo jury did not believe Agent Alvarez’ testimony that at the six o’clock meeting Garcia and appellant got out of the pick-up and that appellant thereafter reached into the truck and produced the heroin sample which he handed to Garcia. Appellant submits that, to reach the result it did, the Laredo jury must have believed that appellant knew that Garcia had heroin in his possession intending to distribute it and must have disbelieved the testimony that appellant handed heroin to Garcia, indicating that the latter issue of fact was resolved once and barred from being litigated again. The Government offers a different view of the Laredo jury’s verdict. It suggests that the conviction on Count II necessarily implies the jury’s belief that appellant had guilty knowledge and criminal intent at the time of that 8 o’clock meeting, which means that they must have believed Alvarez, at least in part, because he was the only eyewitness whose testimony clearly inculpated appellant. The Government submits that, in ascertaining appellant’s guilt, it was not essential for the Laredo jury to make any determination of fact regarding the first meeting, since the indictment did not mention that meeting, the testimony about that meeting was used only to show intent and knowledge, and the jury could have found the requisite intent if they merely believed Alvarez’ testimony that appellant was assigned to maintain a “look out” at the later meeting. Alternatively, the Laredo verdicts may have been the result of sympathy or an incorrect understanding of the law. This Court finds that the doctrine of collateral estoppel is not applicable to the facts of this case. Although the conspiracy charged in the Dallas indictment includes some of the same activities as involved in the Laredo indictment, there are simply too many alternatives for the Laredo jury’s not guilty verdict on Count III. It does not necessarily mean that the jury disbelieved Agent Alvarez’ testimony that the appellant reached into the pick-up and took out a package and handed it to Garcia. One possibility is that the jury believed the testimony but did not believe that appellant was “distributing”. The jury may have reasoned he was simply mechanically assisting the owner of the heroin in distributing it, or the jury may have concluded that one in joint possession cannot be guilty of distributing to another in joint possession (and there may well be some legal basis to this theory). There are many possible reasons for the jury’s verdict and without extrasensory perception, we cannot say that any one is necessarily inherent in the verdict. Under the circumstances of this case, the Government was not collaterally estopped from prosecuting the appellant on the Dallas indictment nor from introducing Agent Alvarez’ testimony about the handling of the drug. Moreover, there is ample evidence in the record to sustain the appellant’s convictions. INFORMER-CREDIBILITY INSTRUCTION Appellant further contends that, if he prevails on the collateral estoppel issue and the contested evidence is disregarded, the informant’s (Marquez) testimony lacked corroboration, in view of which, the district court’s failure to give a special instruction on informant testimony was plain error. Although it is not necessary for the Court to consider this issue in light of our conclusion on collateral estoppel, we do note that no special instruction was ever requested. The trial judge has an obligation to give proper instructions, but the primary responsibility to request such instructions remains with counsel. If no instruction is requested by counsel, a conviction will be reversed only if the reviewing court finds plain error. See United States v. Garcia, 528 F.2d 580 (5th Cir. 1976), and cases cited therein. If we were considering this issue, we would not find plain error here. The convictions in both cases are affirmed. . 21 U.S.C. §§ 841(a)(1) and 846. . 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2(a). . 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2(a). did) . Although the dismissal of Count I was noted on the docket after the jury trial and included in the final judgment that followed the sentencing, the records indicate that the defendant was not arraigned on Count I and never pled to it, which comports with the Government’s assertion that counsel and the trial court understood in advance of the trial that Count I would be dismissed. . The conspiracy count was one of three counts included in the indictment. Gonzalez was named in two of the 16 overt acts: “13. On or about May 29, 1974, GILBERTO ALVAREZ, GONZALO MARQUEZ, JOE GARCIA and VINCENTE CARRERRA met in Laredo, Texas 16. On or about June 4, 1974, GONZALO MARQUEZ, JOE GARCIA and VINCENTE CARRERRA met in Laredo, Texas . .” . On appeal, this Court affirmed the convictions of Garcia and Guillermo Sandoval, but reversed the conviction of Mario Sandoval,, United States v. Garcia et al., 528 F.2d 580 (5th Cir. 1976). See note 15 infra. . “On the other hand, if you are convinced beyond a reasonable doubt that he did in fact know there was narcotics involved, that he was carrying narcotics, then you would be warranted in convicting on each count — with this qualification, you will remember there was testimony from Mr. Laurel, I believe it was, the arresting agent. He told us that at the time he made the arrest of this defendant, he and several other officers went to his house, that the man came out without a shirt on and he went in the house and got a shirt, and that at the time of the arrest he read the man his constitutional rights from a little card that the officer carried with him. He told us he read it to him in Spanish, and the English translation was read to us here in English. It was essentially this: That you are advised that you have constitutional rights as follows, you don’t have to make any statement, you are entitled to have a lawyer with you if you want him, if you can’t employ a lawyer you are entitled to have one appointed to represent you without charge, and various things of that sort. The defendant denied having any — let me back up. I believe Mr. Laurel’s testimony told us that when they got to the office some thirty minutes or an hour later and started to ask the defendant questions, and take a history sheet, I believe they call it, date of birth and residence and that sort of thing, that he warned him again and gave him a warning the second time. The defendant has denied that that took place. He has denied that he was warned. In the course of his testimony, Mr. Laurel told us that in talking to the defendant Gonzalez, he, Gonzalez, admitted that he knew that his friend Garcia was carrying the narcotics when he took him back to the parking lot. I instruct you that a defendant who is under arrest, as Gonzalez was at the relevant time, is entitled as a matter of law to be warned of his constitutional rights. If he is not given that warning, any admission that he may make, any incriminating statement, such as I knew my friend Garcia had the narcotics in his possession, is not admissible against him. Hence, in considering the testimony, if you are convinced beyond a reasonable doubt that in fact he was warned, as Mr. Laurel has told us, once is enough, you don’t need to do it twice, but if he was read the little card which was read to us here in evidence, and was warned of his rights, you may consider his admission, if you believe Laurel’s testimony that the defendant did make such an admission that he, Gonzalez, knew that Garcia was carrying narcotics when he took him to the parking lot. On the other hand, if you have a reasonable doubt as to whether or not in fact he received such a warning, you would not consider that admission for any purpose.” . Appellant argues that the jury’s acquitting him on Count III (distribution or aiding and abetting distribution by another person) leads to the conclusion that the jury did not believe Agent Alvarez’ testimony, leaving as evidence only the confession and the fact that appellant drove Garcia to the two meetings on May 29. . McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), make inadmissible confessions obtained after defendant was detained for an unreasonable length of time without being brought before a magistrate or judicial officer, as required by law. In the instant case, there is no inference of any overbearing; the appellant confessed within two hours after the arrest and was brought before a magistrate the morning following his arrest. . The objection may have been inspired by a peculiar Texas procedure whereby a defendant must be taken before a magistrate who then gives him what in effect is Miranda warnings. Art. 15.17 and Art. 14.06, Texas Code of Crim. Procedure. The Texas procedure further requires that any confession be in writing. Art. 38.22, Texas Code of Crim.Procedure. Government counsel suggest that attorneys often urge ...this Texas practice on federal courts and that bn£he district court judge may have thought it - jvas the reason behind the objection. . When discussing the requirements of Title 18, U.S.C. § 3501, the Court in Moffett stated: Appellants’ counsel did make a pre-trial motion to suppress their oral statements, and renewed this motion several times during the trial, but a careful reading of the record reveals that the basis of these objections was as to the timeliness of the Miranda warnings given appellants by the Border Patrol agents who effected the stop and search. Consequently no issue of voluntariness was raised, either before or during the trial which would have required the trial court to hold a § 3501 hearing outside the jury’s presence. 522 F.2d 1379, 1380-81. . Smith v. Estelle, 527 F.2d 430 (5th Cir. 1976), n. 3, states: “A Jackson v. Denno hearing is of course constitutionally mandated for a defendant who timely urges that his confession is inadmissible because not voluntarily given, [citation omitted].” 527 F.2d 430, 431. (emphasis added) . See footnote 5 supra. . Appellant submits that eliminating the testimony of Alvarez and Marquez about appellant’s handing the heroin to Garcia at the six o’clock meeting substantially reduces the Government’s showing of appellant’s involvement in the conspiracy, leaving only (1) appellant’s presence with Garcia on May 29 at the 6:00 and 8:00 meetings at Woolco; (2) appellant’s presence with Garcia on June 4; (3) Marquez’ double hearsay testimony about appellant’s activities which Marquez gleaned from telephone conversations with Garcia;' 'ánd (4) Marquez’ uncorroborated account of a' óónversation he had with appellant on June 4. . United States v. Garcia is the appeal from the convictions of this appellant’s Dallas co-defendants. This Court reversed with respect to Mario Sandoval even though no instruction was requested due to the Court finding plain error in the exceptional circumstances of that case. The informant’s testimony regarding Mario was totally uncorroborated by any other witness and was contradicted by the testimony of Mario, himself, and by the only two witnesses present when the events testified about occurred; the informer received an extraordinarily high stipend for his assistance; and other circumstances combined “to cast a dark shadow on the credibility of this witness [the informer].” 528 F.2d 580, 588. The convictions of the other appellants in that case, Guillermo Sandoval and Jose Garcia, were affirmed since the informer’s testimony about them was corroborated by other witnesses. Id. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_casetyp1_7-2	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". MASON v. BROWN. No. 6194. United States Court of Appeals, Fourth Circuit. Argued Jan. 9, 1951. Decided Jan. 31, 1951. Ashby B. Allen, Richmond, Va. (George E. Allen, and Allen, Allen & Allen, Richmond, Va., on the brief), for appellant. Alexander H. Sands, Jr., Richmond, Va. (Sands, Marks & Sands, Richmond, Va., on the brief), for appellee. Before PARKER, Chief Judge, DOBIE, Circuit Judges, and WEBB, District Judge. DOBIE, Circuit Judge. This action was brought in the United States District Court for the Eastern District of Virginia by plaintiff Mason, a citizen of Virginia, against defendant Brown, a citizen of North Carolina. The jury returned a verdict of $5,000.00 for the plaintiff which, on motion of defendant, was set aside by the District Judge as unsupported by the evidence and a verdict was directed for defendant. Final judgment was accordingly entered for defendant, and plaintiff has appealed. This case arose out of personal injuries suffered February 11, 1950, by plaintiff when she was run down by defendant’s car. Defendant admits that there is substantial evidence to support the jury’s finding that he was negligent. We shall assume that plaintiff was also negligent in darting out from between two parked cars to cross the street in the middle of the block. Our only concern, then, is to determine whether plaintiff, in spite of her negligence, presented substantial evidence to support the verdict of the jury on the theory of “last clear chance.” We must view the evidence as favorably as possible to conform to the jury’s verdict. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed 916; Bell v. United States, 4 Cir., 1950, 185 F.2d, 302; Traders & General Insurance Co. v. Powell, 8 Cir., 177 F.2d 660. The scene of the accident was Grove Avenue, in a residential district of Richmond, Virginia, 42 feet wide, amply ranked on both sides with parked cars, and traversed by occasional traffic. Shortly after seven P.M., plaintiff, for the purpose of crossing the street, stepped from between two parked cars onto the north side of this street at a point about 75 feet west of the intersection of Grove and Allen Avenues. Hurrying to catch a bus, she walked quickly to the center of the street, where she paused to avoid a car approaching ffom her right. The course of defendant’s car was from plaintiff's left and rear; he was driving at an excessive speed and stopped almost, but not quite, short of plaintiff. Defendant’s car left skid marks 54 feet in length, stopping at the point where plaintiff had theretofore been standing and was then lying. Plaintiff was visible from at least 200 feet distant and there was evidence tending to show that plaintiff had stopped in the middle of the street before defendant entered this range. Defendant argues that plaintiff stopped for no good reason at all. But the contrary could have been inferred from plaintiff’s testimony: “A * * * I walked to the middle of the street and stood there for this sedan to pass. That is all I know. “Q. Where were you when you were struck? A. In the middle of the street standing still.” The fact that plaintiff’s companion on this unfortunate trip contradicted her in testifying that this car had already passed is beside the point. Where, as in plaintiff’s testimony, there is an evidentiary basis for the jury’s verdict, the jury is free to disregard whatever evidence is inconsistent with its conclusion. Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 90 L.Ed. 916. An eyewitness, Watkins, who was in his parked car about 200 feet from the scene of the accident, testified that defendant passed him and: “A. I saw Mrs. Mason when his car was with my car. Mrs. Mason was in the middle of the street at the time. * * * * * * “A. I saw Mrs. Mason there when 'he was practically beside me. # * * # * * “Q. When he started to pass you, you saw Mrs. Mason at that time? A. About in the middle of the street.” Plaintiff testified that she saw no car closer than the middle of the next block when she stepped from between the two .parked cars. Both parties agree that under the last clear chance doctrine, when a plaintiff has been and is negligent but is in a helpless condition immediately preceding the mishap and therefore unable to avoid it, plaintiff may nevertheless recover if the defendant saw or should have seen plaintiff in time to avoid the collision by the use of reasonable care. Anderson v. Payne, 189 Va. 712, 722, 54 S.E.2d 82, 87. Virginia has gone far in adopting the humanitarian approach to the doctrine of last clear chance, allowing recovery in spite of a plaintiff’s continuing negligence, if the plaintiff is unable to save himself and if the defendant should discover, by the exercise of reasonable care, the plaintiff’s plight in time to avoid the accident. Harris Motor Lines v. Green, 184 Va. 984, 37 S.E.2d 4, 171 A.L.R. 359; State of Maryland, for use of Joynes v. Coard, 175 Va. 571, 9 S.E.2d 454. See §§ 479, 480, Restatement of the Law of Torts, Virginia Annotations, by Dean William T. Muse, T. C. Williams School of Law. From the facts, we think the jury could properly have drawn the conclusion that plaintiff was unable by her own efforts to escape from the dangerous situation into which she had negligently put herself. Going back, across the path of defendant’s car, even were she aware of its presence, was clearly out of the question. And going forward, as she testified, into the path of the eastbound car was no remedy. In our opinion the jury could also have found, on any one of the following theories, that defendant had a last clear chance to avoid this accident: (1) That defendant should have seen plaintiff from at least 200 feet, and could have stopped before striking her. The jury was not bound to accept the testimony as to the speed of the car — fifty miles per hour, and could have settled on a lesser figure. But even at a speed of fifty miles per hour, and if we take into account the 75 feet that defendant would have traveled during a reaction time of one second, the jury could have found the remaining distance, at least 125 feet, sufficient for stopping; (2) That there was sufficient space between plaintiff and the parked cars to permit defendant to avoid both. This fact is supported not only by direct testimony, but also by subtracting from 21 feet (the street was 42 feet wide) the sum of the widths of plaintiff, defendant’s car, and the cars parked. And that defendant should have seen the situation and taken this action; (3) And we think the jury could have gone so far as to find that defendant should have chosen to drive into the parked cars rather than into plaintiff. Defendant had come to an almost complete stop, and this action could have been taken without serious danger of injury to anyone. For these reasons the order of the District Court is reversed, and this case is remanded to that court with instructions to reinstate the verdict of the jury and enter final judgment for plaintiff. Reversed and remanded. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
sc_caseorigin	160	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. MICHIGAN-WISCONSIN PIPE LINE CO. v. CALVERT, COMPTROLLER OF PUBLIC ACCOUNTS, et al. NO. 198. Argued January 5-6, 1954. Decided February 8, 1954. D. H. Culton and S. A. L. Morgan argued the cause for appellants. On the brief were Arthur R. Seder, Jr., Everett L. Looney, R. Dean Moorhead, Mr. Culton and Mr. Morgan for the Michigan-Wisconsin Pipe Line Company, and E. H. Lange, Cene M. Woodfin, Chas. I. Francis, Mr. Looney, Mr. Moorhead and Mr. Culton for the Panhandle Eastern Pipe Line Company, appellants. John S. L. Yost entered an appearance for appellant in Nos. 200 and 201. W. V. Geppert, Assistant Attorney General of Texas, and John Ben Shepperd, Attorney General, argued the cause for appellees. With them on the brief was William, W. Guild, Assistant Attorney General. Mr. Justice Clark delivered the opinion of the Court. The appellants, two natural gas pipeline companies, brought separate suits against Texas State officials, appellees here, in a state district court, seeking a determination that a Texas tax statute as applied to appellants violates the Commerce Clause of the Constitution of the United States, and seeking recovery of money paid under protest in compliance with the statute. The District Court sustained appellants’ contentions and entered judgment in their favor. The Court of Civil Appeals reversed, holding that the tax statute as applied is constitutional. 255 S. W. 2d 535. The Supreme Court of Texas “refused” appellants’ applications for writs of error. By state statute and procedural rule, the docket notation “refused” in denying application for writ of error signifies that the State Supreme Court deems the judgment of the Court of Civil Appeals a correct one and the principles of law declared in the opinion correctly determined. Appellants were uncertain whether appeal to this Court was properly from the Court of Civil Appeals or the Supreme Court of Texas, as “the highest court of a State in which a decision could be had” within the meaning of 28 U. S. C. § 1257. Hence each appellant appealed from each of the courts. We postponed to the hearing of the cases on the merits a determination of the jurisdictional question. 346 U. S. 805. We think that appeals in these cases were properly from the Court of Civil Appeals. In American Railway Express Co. v. Levee, 263 U. S. 19 (1923), the Supreme Court of Louisiana had refused a writ of certiorari to the State Court of Appeal “for the reason that the judgment is correct.” Mr. Justice Holmes, speaking for a unanimous Court, said: “. . . [Ujnder the Constitution of the State the jurisdiction of the Supreme Court is discretionary . . . and although it was necessary for the petitioner to invoke that jurisdiction in order to make it certain that the case could go no farther, . . . when the jurisdiction was declined the Court of Appeal was shown to be the highest Court of the State in which a decision could be had. Another section of the article cited required the Supreme Court to give its reasons for refusing the writ, and therefore the fact that the reason happened to be an opinion upon the merits rather than some more technical consideration, did not take from the refusal its ostensible character of declining jurisdiction. Western Union Telegraph Co. v. Crovo, 220 U. S. 364, 366. Norfolk & Suburban Turnpike Co. v. Virginia, 225 U. S. 264, 269. Of course the limit of time for applying to this Court was from the date when the writ of cer-tiorari was refused.” 263 U. S., at 20-21. In Lone Star Gas Co. v. Texas, 304 U. S. 224 (1938), with the present Texas procedural provisions in effect, this Court’s mandate issued to the Court of Civil Appeals in a case where the State Supreme Court had “refused” writ of error. See also United Public Service Co. v. Texas, 301 U. S. 667 (1937). Accordingly the appeals in Nos. 199 and 201, from the Supreme Court of Texas, are dismissed. We proceed to consider Nos. 198 and 200. The question presented is whether the Commerce Clause is infringed by a Texas tax on the occupation of “gathering gas,” measured by the entire volume of gas “taken,” as applied to an interstate natural gas pipeline company, where the taxable incidence is the taking of gas from the outlet of an independent gasoline plant within the State for the purpose of immediate interstate transmission. In relevant part the tax statute provides that “In addition to all other licenses and taxes levied and assessed in the State of Texas, there is hereby levied upon every person engaged in gathering gas produced in this State, an occupation tax for the privilege of engaging in such business, at the rate of 9/20 of one cent per thousand (1,000) cubic feet of gas gathered.” Using a beggared definition of the term “gathering gas,” the Act further provides that “In the case of gas containing gasoline or liquid hydrocarbons that are removed or extracted at a plant within the State by scrubbing, absorption, compression or any other process, the term ‘gathering gas’ means the first taking or the first retaining of possession of such gas for other processing or transmission whether through a pipeline, either common carrier or private, or otherwise after such gas has passed through the outlet of such plant.” It also prohibits the “gatherer” as therein defined from shifting the burden of the tax to the producer of the gas, and provides that the tax shall not be levied as to gas gathered for local consumption if declared unconstitutional as to that gathered for interstate transmission. Michigan-Wisconsin Pipe Line Company and Panhandle Eastern Pipe Line Company, appellants, are Delaware corporations and are natural gas companies holding certificates of convenience and necessity under the Natural Gas Act of 1938 for the transportation and sale in interstate commerce of natural gas. The nature of their activities has been stipulated. Michigan-Wisconsin has constructed a pipeline extending from Texas to Michigan and Wisconsin. At points in these two States and in Missouri and Iowa it sells gas to distribution companies which serve markets in those areas. It sells no gas in Texas. The company-produces no gas; it purchases its supply from Phillips Petroleum Company in Texas, under a long-term contract. Phillips collects the gas from the wells and pipes it to a gasoline plant, where certain liquefiable hydrocarbons, oxygen, sulphur, hydrogen sulphide, dust and foreign substances are removed preparatory to the transmission of the residue. As this residue gas leaves the absorbers, it flows through pipes owned by Phillips for a distance of 300 yards to the outlet of its gasoline plant, at the boundary between property of Phillips and property of Michigan-Wisconsin. Phillips has installed gas meters in its pipes at this point. The gas emerging from the outlet flows directly into two 26-inch pipelines of Michigan-Wisconsin. It is this “taking” that is made the taxable incidence of the statute. After the gas has been taken into the Michigan-Wisconsin pipes, it flows a distance of approximately 1,215 feet to a compressor station owned and operated by Michigan-Wisconsin, at which station the pressure of the gas is raised from about 200 pounds to some 975 pounds to facilitate movement to distant markets. In the course of its flow through this station the gas is compressed, cooled, scrubbed and dehydrated and then passes into a 24-inch pipeline which carries it 1.74 miles to the Oklahoma border and thence to markets outside Texas. Additional motive power is furnished by 15 other compressor stations in other states through which the gas is transported. The entire movement of the gas, from producing wells through the Phillips gasoline plant and into the Michigan-Wisconsin pipeline to consumers outside Texas, is a steady and continuous flow. All of Michigan-Wisconsin’s gas is purchased from Phillips for transportation to points outside Texas, and is in fact so transported. Exclusive of the tax in question, Michigan-Wisconsin pays an ad valorem tax on the value of all its facilities and leases within the State. The State also levies on producers a tax of 5.72% of the value at the well of all gas produced in the State and a special tax to cover expenses in enforcing the conservation and proration laws. The appellees place much emphasis upon the fact that Texas through these conservation and proration measures has afforded great benefits and protection to pipeline companies. It is beyond question that the enforcement of these laws has been not only in the public interest but to the commercial advantage of the industry. But, though this be an appealing truth, these benefits are relevant here only to show that essential requirements of due process have been met sufficiently to justify the imposition of any tax on the interstate activity. No challenge is made of the validity of the tax under the Due Process Clause, the appellants basing their objections only on the Commerce Clause, and when we proceed to examine the tax under the latter its validity “depends upon other considerations of constitutional policy having reference to the substantial effects, actual or potential, of the particular tax in suppressing or burdening unduly the commerce.” Nippert v. Richmond, 327 U. S. 416, 424 (1946). We proceed, therefore, to discuss only those relevant factors involved in the testing of the tax under the Commerce Clause. The tax here assailed applies equally to gas moving in intrastate and interstate commerce. It is levied in addition to all other licenses and taxes and is denominated an occupation tax for the privilege of engaging in the “gathering of gas.” Obviously appellants are not engaged in “gathering gas” within the meaning of that term in its ordinary usage; but the tax statute gives the term a transcendent scope; as to appellants’ operations it is defined as “the first taking ... of possession of such gas for other processing or transmission . . . after such gas has passed through the outlet” of a gasoline plant. The State Appellate Court realistically found “the taxable event described by the statute” to be “the taking or retaining of the gas at the gasoline plant outlet It thought that since this local activity was not subject to repetition elsewhere, “the sole question is whether such local activities are so closely related to and such an integral part of the interstate business of [appellants] who transport gas in interstate commerce as to be within the scope of the Commerce Clause of the Constitution.” The court concluded that such taking “is just as local in nature as the production itself is local,” and held the tax valid principally on the authority of Utah Power & Light Co. v. Pfost, 286 U. S. 165 (1932), and Hope Natural Gas Co. v. Hall, 274 U. S. 284 (1927). We accept the State court’s determination of the operating incidence of the tax, and we think the court has correctly stated the essential question presented. But we are unable to agree with its answer thereto or with its conclusion of constitutionality. Appellants’ business is the interstate transportation and sale of natural gas. Under the Commerce Clause interstate commerce and its instrumentalities are not totally immune from state taxation, absent action by Congress. Frequently it has been said that interstate business must pay its way, Postal Telegraph-Cable Co. v. Richmond, 249 U. S. 252, 259 (1919); Western Live Stock v. Bureau of Revenue, 303 U. S. 250, 254 (1938); and the Court has done more than pay lip service to this idea. Numerous cases have upheld state levies where it is thought that the tax does not operate to discriminate against commerce or unduly burden it either directly or by the possibility of multiple taxation resulting from other taxes of the same sort being imposed by other states. The recurring problem is to resolve a conflict between the Constitution's mandate that trade between the states be permitted to flow freely without unnecessary obstruction from any source, and the state’s rightful desire to require that interstate business bear its proper share of the costs of local government in return for benefits received. Some have thought that the wisest course would be for this Court to uphold all state taxes not patently discriminatory, and wait for Congress to adjust conflicts when and as it wished. But this view has not prevailed, and the Court has therefore been forced to decide in many varied factual situations whether the application of a given state tax to a given aspect of interstate activity violates the Commerce Clause. It is now well settled that a tax imposed on a local activity related to interstate commerce is valid if, and only if, the local activity is not such an integral part of the interstate process, the flow of commerce, that it cannot realistically be separated from it. Memphis Natural Gas Co. v. Stone, 335 U. S. 80, 87 (1948); Western Live Stock v. Bureau of Revenue, supra, at 258. And if a genuine separation of the taxed local activity from the interstate process is impossible, it is more likely that other states through which the commerce passes or into which it flows can with equal right impose a similar levy on the goods, with the net effect of prejudicing or unduly burdening commerce. The problem in this case is not whether the State could tax the actual gathering of all gas whether transmitted in interstate commerce or not, cf. Hope Natural Gas Co. v. Hall, supra, but whether here the State has delayed the incidence of the tax beyond the step where production and processing have ceased and transmission in interstate commerce has begun. Cf. Utah Power & Light Co. v. Pfost, supra. The incidence of the tax here at issue, as stated by the Texas appellate court, is appellants’ “taking” of gas from Phillips’ gasoline plant. This event, as stipulated, occurs after the gas has been produced, gathered and processed by others than appellants. The “taking” into appellants’ pipelines is solely for interstate transmission and the gas at that time is not only actually committed to but is moving in interstate commerce. What Texas seeks to tax is, therefore, more than merely the loading of an interstate carrier, which was condemned in Joseph v. Carter & Weekes Stevedoring Co., 330 U. S. 422, 427 (1947), for thé gas here simultaneously enters the pipeline carrier and moves on continuously to its outside market. “There is no break, no period of deliberation, but a steady flow ending as contemplated from the beginning beyond the state line.” United Fuel Gas Co. v. Hallanan, 257 U. S. 277, 281 (1921). As early as Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 213 (1885), this Court said, “Receiving and landing passengers and freight is incident to their transportation.” But receipt of the gas in the pipeline is more than its “taking”; from a practical standpoint it is its “taking off” in appellants’ carrier into commerce; in reality the tax is, therefore, on the exit of the gas from the State. This economic process is inherently unsusceptible of division into a distinct local activity capable of forming the basis for the tax here imposed, on the one hand, and a separate movement in commerce, on the other. It is difficult to conceive of a factual situation where the incidence of taking or loading for transmission is more closely related to the transmission itself. This Court has held that much less integrated activity is “so closely related to interstate transportation as to be practically a part of it.” We are therefore of the opinion that the taking of the gas here is essentially a part of interstate commerce itself. The Court of Civil Appeals, as we have stated, relied largely on Utah Power & Light Co. v. Pfost, supra. But that case involved a license tax on the generation of electricity produced in a hydraulic power plant within the State of Idaho and transmitted to Utah. The question the Court was called upon to solve was whether “the generation of electrical energy, like manufacture or production generally, [is] a process essentially local in character and complete in itself; or is it so linked with the transmission as to make it an inseparable part of a transaction in interstate commerce?” The Court thought it inaccurate to say that the entire system was purely a transferring device. “On the contrary,” it said, “the generator and the transmission lines perform different functions, with a result comparable, so far as the question here under consideration is concerned, to the manufacture of physical articles of trade and their subsequent shipment and transportation in commerce.” Cited to support this principle was Oliver Iron Mining Co. v. Lord, 262 U. S. 172 (1923), where a state tax levied on all “engaged in the business of mining or producing iron ore or other ores” was upheld since the “ore does not enter interstate commerce until after the mining is done, and the tax is imposed only in respect of the mining” (at 179); and Hope Natural Gas Co. v. Hall, supra, which upheld a tax on “producers of natural gas reckoned according to the value of that commodity at the well.” But the tax here is not levied on the capture or production of the gas, but rather on its taking into interstate commerce after production, gathering and processing. The State Appellate Court recognized that nothing was done to the gas at the point of “taking”; its form was not changed in any way; it merely continued its journey. However, the court thought that it would be unfair to base a decision on the fluid nature of natural gas, and that there was in fact a two-step process, taking and transmission, with interference in between found in title passing and processing. But the processing, on which this tax is not imposed, was done by Phillips and took place prior to the taxable event of “taking.” As for the interference of title passing, appellees readily admit this levy was designed to avoid taxing the sale; and we think that, as a basis for finding a separate local activity, the incidence must be a more substantial economic factor than the movement of the gas from a local outlet of one owner into the connecting interstate pipeline of another. Such an aspect of interstate transportation cannot be “carve[d] out from what is an entire or integral economic process,” Nippert v. Richmond, supra, at 423, by legislative whimsy and segregated as a basis for the tax. The separation must be realistic. Here it is perhaps sufficient that the privilege taxed, namely the taking of the gas, is not so separate and distinct from interstate transportation as to support the tax. But additional objection is present if the tax be upheld. It would “permit a multiple burden upon that commerce,” Joseph v. Carter & Weekes Stevedoring Co., supra, at 429, for if Texas may impose this “first taking” tax measured by the total volume of gas so taken, then Michigan and the other recipient states have at least equal right to tax the first taking or “unloading” from the pipeline of the same gas when it arrives for distribution. Oklahoma might then seek to tax the first taking of the gas as it crossed into that State. The net effect would be substantially to resurrect the customs barriers which the Commerce Clause was designed to eliminate. “The very purpose of the Commerce Clause was to create an area of free trade among the several States. That clause vested the power of taxing a transaction forming an unbroken process of interstate commerce in the Congress, not in the States.” McLeod v. Dilworth Co., 322 U. S. 327, 330-331 (1944). Reversed. Cf. Western Union Telegraph Co. v. Priester, 276 U. S. 252 (1928). Tex. Laws 1951, c. 402, § XXIII. The two appellants, through the distribution companies, supply gas for consumer markets with a population of about 12,000,000 people. As noted by the court below, “Except for minor variations Panhandle conducts its activities in the same manner as Michigan-Wisconsin. Panhandle loads its interstate pipeline with gas from the outlets of three gasoline plants, rather than with gas from only one plant; it produces a portion of the gas which it takes at the outlet of one of such plants; and it makes sales in Texas to three small customers, rather than sending all of its gas outside the State.” We agree with that court that for purposes of this decision Panhandle’s operations are not significantly different from those of Michigan-Wisconsin. Only the interstate aspects of the enterprise are in question. The operations of Michigan-Wisconsin, which transmits all of its gas out of Texas, most clearly present the question to be decided and will be the basis of our discussion. This approach was utilized by the State court; and appellees do not suggest that the situations of the two appellants are different for purposes of decision here. Appellees challenge at the outset of their argument this Court’s jurisdiction to consider these appeals, on the ground that appellants present no question, federal or otherwise, for the Court’s determination. The argument is in substance that appellants’ grounds of protest in the State courts set forth a number of alleged operating incidences of the tax, none of which coincided with the operating incidence found by the Court of Civil Appeals; that the State court’s finding on this subject is conclusive and binding on this Court; that appellants, in urging that the tax is a burden on and discriminatory against interstate commerce, are advancing new grounds not considered by the State courts and hence waived under the Texas protest statute; in short, that the issue of the validity of the tax was not properly raised. We think there is no substance to this contention. In their complaints and continuously thereafter appellants specifically challenged the validity of the tax statute under the Commerce Clause. The trial court held the tax invalid as violating the Commerce Clause. The Court of Civil Appeals expressly stated that the question for its decision was whether the statute as applied to appellants “violates the commerce clause of the Constitution of the United States. If so it is void, if not it is valid.” Since the State courts have clearly treated the single issue here presented as properly raised and preserved, and since appellees first suggested the contrary in their brief on argument 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. 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songer_discover	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's interpretation of rules relating to discovery or other issues related to obtaining evidence favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". James M. MARX, Plaintiff, Appellant, v. KELLY, HART & HALLMAN, P.C., d/b/a Kelly, Appleman, Hart and Hallman, et al., Defendants, Appellees. No. 90-1733. United States Court of Appeals, First Circuit. Heard Dec. 4, 1990. Decided March 26, 1991. Bernard Bressler with whom Robert Brantl and Bressler, Amery & Rothenberg, New York City, were on brief, for plaintiff, appellant. Jeffrey B. Rudman with whom Peter J. Macdonald, Heidi E. Brieger and Hale and Dorr, Boston, Mass., were on brief, for defendants, appellees Hale and Dorr. Before BREYER, Chief Judge, CAMPBELL and CYR, Circuit Judges. LEVIN H. CAMPBELL, Circuit Judge. The only issue presented in this appeal is whether the district court abused its discretion in dismissing appellant’s complaint for failure to comply with discovery orders pursuant to Fed.R.Civ.P. 37(b)(2)(C). Having reviewed the record in this case, we conclude that the judgment of the district court did not constitute an abuse of discretion. We therefore affirm. I. In December, 1988, James M. Marx filed a lawsuit in the Superior Court of New Jersey, naming as defendants two law firms, Kelly, Appleman, Hart and Hallman (located in Texas), and Hale and Dorr, a Boston, Massachusetts, firm. Marx alleged that the law firms had incorrectly advised him regarding a stock acquisition, thereby causing him substantial financial losses. The defendants removed the case to the United States District Court for the District of New Jersey, where they then moved to dismiss it pursuant to Fed.R. Civ.P. 12(b)(2) for lack of in personam jurisdiction. On January 22, 1990, the district court allowed the motion. Marx’s appeal from that dismissal is currently pending before the Third Circuit. On December 29, 1989, while defendants’ motion to dismiss was still pending in the New Jersey district court, Marx filed the present action against the same two defendants in the United States District Court for the District of Massachusetts. Marx says that his purpose in bringing the present action was to toll the statute of limitations in Massachusetts, thus protecting against the possibility that his action in the District of New Jersey would ultimately be dismissed. Marx’s complaint in the proceeding below stated, therefore, that, [tjhis same action is pending in the U.S. District Court of New Jersey and this Complaint is a protective filing as as [sic] a result of a pending Motion to Dismiss by the defendants for lack of personal jurisdiction. Marx states in his brief on appeal that he “intended to litigate this matter exclusively in New Jersey.” Hale and Dorr filed an answer to the complaint in the District of Massachusetts case on January 16, 1990, and, three weeks later, served its first request for production of documents. In response, Marx did nothing. He neither produced the requested documents, objected to the request, nor sought an extension of time from the district court within which to act. Nor did Marx move, at that time, to stay the case. On March 15th, after Marx had failed to respond in any way to the request within the thirty day period prescribed by Fed.R. Civ.P. 34(b), Hale and Dorr moved to compel production of the documents, pursuant to Fed.R.Civ.P. 37(a)(2). The following day, Marx dismissed his attorney, retained new counsel and notified the district court of the change. At that time, Marx filed a cross-motion to stay the proceedings in the District of Massachusetts, pending resolution of his appeal in the Third Circuit. On April 30, 1990, the district court denied Marx’s motion for a stay and granted Hale and Dorr’s motion to compel. The district court's order required Marx to serve a response to defendant Hale and Dorr's document request and to produce all requested documents on or before the close of business on Friday, 5/18/90. (emphasis in original). The district court also stated as part of this order, Any objections have been waived by failure to serve objections within the time provided by Rule 34(b), Fed.R.Civ.P. Two days before May 18, 1990 — the production deadline established by the court— Marx’s lawyer notified Hale and Dorr by letter that the documents would be produced in New York City “on and after May 18, 1990” (emphasis supplied). The next day, one day before the deadline established by the court’s order to produce, appellant filed another motion, seeking clarification of the court’s order and requesting the court to shift the location of production from Boston to New York City. On May 18, 1990, the final day for production under the court’s order, Marx served on Hale and Dorr a document entitled “Response to Hale and Dorr’s First Request for Production of Documents,” stating that “[t]he documents called for in the Request are available for inspection and copying [in New York City].” However, attached to the response was an appendix identifying over five hundred documents that were being withheld on the grounds of attorney-client privilege. No elaboration or explanation of the privilege claim was provided. On June 8th, Hale and Dorr moved to dismiss the action pursuant to Fed.R.Civ.P. 37(b)(2)(C) for failure to comply with discovery requests. Marx filed an opposition to the motion to dismiss. On June 26th, the district court allowed the motion and dismissed the complaint “by reason of deliberate failure to obey the Order of the Court.” II. The choice of sanctions for failing to comply with an order of the district court lies within the sound discretion of the court. Spiller v. U.S.V. Laboratories, Inc., 842 F.2d 535, 537 (1st Cir.1988). Absent an abuse of discretion, this court will not disturb a district court’s dismissal of an action for failure of the plaintiff to comply with court orders. National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976). The question on appeal is not whether the appellate court would, under the same circumstances, have imposed a more lenient penalty, but whether the district court abused its discretion in imposing the sanction it did. Velazquez-Rivera v. Sea-Land Service, Inc., 920 F.2d 1072, 1075 (1st Cir.1990). A plaintiff who appeals from a Rule 37 dismissal bears a heavy burden of demonstrating that the district judge was clearly not justified. Damiani v. Rhode Island Hospital, 704 F.2d 12, 17 (1st Cir.1983). To be sure, the district court’s sanction must be "just.” See Fed.R.Civ.P. 37(b); Velazquez-Rivera, 920 F.2d at 1075. This circuit has stated that “[dismissal with prejudice ‘is a harsh sanction’ which runs counter to our ‘strong policy favoring the disposition of cases on the merits.’ ” Figueroa Ruiz v. Alegria, 896 F.2d 645, 647 (1st Cir.1990) (citation omitted). Nonetheless, the Supreme Court has made it plain that the availability of dismissal as a sanction is essential to deter and penalize egregious conduct. National Hockey League, 427 U.S. at 643, 96 S.Ct. at 2781. We believe that the plaintiff’s conduct evidenced a deliberate pattern of delay and disregard for court procedures that was sufficiently egregious to incur the sanction of dismissal. It is evident, and Marx concedes, that he did not wish to proceed in the District of Massachusetts while his New Jersey case was alive. Marx apparently held the mistaken belief that he could simply ignore the former case while he pursued the more conveniently located one in New Jersey. It is true that Marx’s Massachusetts complaint styled that action “a protective filing,” but simply by affixing that label Marx could not exempt himself from duties prescribed in the Federal Rules. Marx’s first dereliction was to ignore defendant’s production request. Under Rule 34(b), he was required to comply with the request or file appropriate objections within 30 days. By doing nothing, Marx engaged in conduct that, without more, was sanctionable. See Fed.R.Civ.P. 37(d). After Hale and Dorr moved to compel production, Marx did retain new counsel and move for a stay. On April 30, however, the district court denied the motion for stay, and granted Hale and Dorr’s motion to compel. The court also ruled on April 30th that, “Any objections have been waived by failure to serve objections within the time provided by Rule 34(b).” By indicating that “any objections” were waived, this ruling raised an obvious red flag to Marx and his counsel relative to Marx’s future right to withhold documents on grounds of privilege. Nonetheless, Marx persisted in foot-dragging. Although the district court’s order gave him three weeks to comply with Hale and Dorr’s production request. Marx waited until two days before the final deadline to notify Hale and Dorr that the documents would be made available in New York “on and after May 18, 1990.” When Hale and Dorr objected to this arrangement, Marx sought “clarification” from the court with respect to the location for the production of documents by filing a “Motion for Clarification” on May 17,1990, the day before the deadline established by the court’s order. Neither the May 16th letter to Hale and Dorr, nor the May 17th motion filed with the court, sought clarification with respect to whether — in light of the April 30th order — Marx would be allowed to withhold privileged documents. Nor did they assert an objection to producing privileged documents, or give any indication that it was Marx’s intention to withhold documents based on an assertion of privilege. On May 18, 1990, the final day for the production of the documents, at 5:25 p.m., Marx served via fax a “Response” to Hale and Dorr’s document request. Marx’s response advised Hale and Dorr that the requested documents would be available for inspection and copying at the offices of Marx’s counsel in New York City and listed, for the first time, over five hundred documents that Marx was withholding on grounds of privilege. Obviously regarding this move as the final straw in what had become a series of delaying tactics, the district court granted Hale and Dorr’s motion to dismiss Marx’s lawsuit under Rule 37(b), citing Marx’s “deliberate failure to obey the Order of the Court.” Marx argues that, by making some documents available to Hale and Dorr and by listing the documents withheld on the basis of privilege, he fully complied with Hale and Dorr’s request and the district court’s production order. In making this argument, Marx relies on Hale and Dorr’s explicit exclusion of privileged material from three out of the firm’s thirty-seven requests for specific documents. This explicit exclusion in these three requests should, he argues, be interpreted as limiting to nonprivileged materials the scope of all documentary discovery requests. In support of this theory, Marx also points to Hale and Dorr’s general instruction requesting that he list all documents withheld on the basis of privilege. He contends that, properly construed, Hale and Dorr’s discovery request provided expressly for the holding back of privileged materials; therefore, he had no obligation either to produce the privileged documents or even to explain or justify his assertion of privilege. Privileged documents were, he contends, simply outside the scope of the request. Marx’s above argument fails to recognize, however, that the documentary requests and instructions were all drafted at the beginning of the discovery process, before Hale and Dorr could know that Marx was not going to respond to its request in a timely and proper way. The fact that, pri- or to plaintiff’s derelictions, defendant might have anticipated the withholding of documents pursuant to a proper claim of privilege, did not allow Marx to short-circuit Rule 34(b) procedures for the raising of objections. Nor can Hale and Dorr be deemed to have surrendered in advance the benefit of the district court’s subsequent order of April 30th, ruling that all objections had been waived. Fed.R.Civ.P. 26(b) itself limits the scope of discovery to “any matter, not privileged, involved in the pending action ...” (emphasis supplied), but this limit is not self-executing. The burden is on the party asserting a privilege to do so in a timely and proper manner and to establish the existence and applicability of the privilege. Privilege claims may be raised as an objection to a specific documentary production request. See Fed.R. Civ.P. 34(b). But the assertion of privilege must be timely and must also be accompanied by sufficient information to allow the court to rule intelligently on the privilege claim. See id.; Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 541 (10th Cir.1984), cert. dismissed, 469 U.S. 1199, 105 S.Ct. 983, 83 L.Ed.2d 984 (1985). Here, plaintiff’s assertion of privilege was untimely; ran counter to the court’s April 30 waiver order; and was totally uninformative. In context, it gave the appearance of a further stalling tactic rather than a good faith effort to comply with the Rules and the court’s April 30 order. Marx argues that the district court’s order of April 30th exceeded the court’s authority insofar as it determined that all objections had been waived on account of Marx’s failure to serve objections within the 30-day period. In particular, Marx says that such an order is invalid if deemed to foreclose later objections on grounds of the attorney-client privilege. We disagree. Fed.R.Civ.P. 34(b) requires that a party upon whom a request for discovery is served respond within thirty days, either stating its willingness to comply or registering its objections. If the responding party fails to make a timely objection, or fails to state the reason for an objection, he may be held to have waived any or all of his objections. See 4A Moore’s Federal Practice 1134.05[2] (citing Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, and Krewson v. City of Quincy, 120 F.R.D. 6 (D.Mass.1988)). Marx not only failed to register any objection to the discovery request within the appropriate period following Hale and Dorr’s initial request, he subsequently failed to object within the time period defined by the court’s order compelling discovery, nor, within that period, did he seek relief from the court’s waiver order. III. In light of his original failure to respond to the production request and the court’s subsequent statement that any objections had been waived, we hold that Marx withheld the privileged documents at his own peril. The district court’s conclusion that Marx’s tardy assertion of privilege was but one more stalling tactic, taken in bad faith and without intention of compliance, was not unreasonable. We hold that the district court acted within its discretion in imposing dismissal as the sanction. Affirmed. Costs to appellees. . In an order dated June 11, 1990, the district court allowed in part the plaintiffs motion for clarification, outlining three possible locations for production, the offices of Hale and Dorr in Boston, the offices of Marx’s local counsel in Boston, or the offices of Marx's counsel in New York City. If the documents were to be produced in New York City, Marx would be required to reimburse the travel expenses of Hale and Dorr attorneys. By the time this order was issued, however, the focus of the dispute had shifted from the place of production to the issue of privilege. Objecting to the withholding of the allegedly privileged documents, Hale & Dorr apparently did not travel to New York to inspect the documents produced. . Rule 34(b) provides that, following a production request, the party served must, within 30 days, state "that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated.” By not so objecting on privilege grounds to requests deemed objectionable, Marx failed to follow the normal avenue the Federal Rules provide for raising the issue of privilege. . Three of Hale and Dorr’s specific requests for documents pertained to meetings and conversations between Marx and his lawyers concerning the Net Operating Losses of Ztel. These included the phrase “to the extent not privileged” or referred to “nonprivileged documents.” . We add that Hale and Dorr’s mention in three of the thirty-seven document requests of the possible exclusion of privileged materials could hardly relieve Marx of the burden of asserting the privilege properly with respect to the other thirty-four requests that did not mention any such possible exclusion. Indeed, that Hale and Dorr explicitly excluded privileged material from only three of its specific requests suggests that it sought, unless otherwise indicated, all other responsive documents. . If the forced waiver order were deemed excessive, Marx was under a duty to challenge the order directly, by moving to have it modified, rather than by simply ignoring and violating it as he did. See, e.g., Vakalis v. Shawmut Corp., 925 F.2d 34 (1st Cir.1991) (upholding the district court’s sanction of dismissal when party chose to ignore rather than challenge directly the court's order). Question: Did the court's interpretation of rules relating to discovery or other issues related to obtaining evidence favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed 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". 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: 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_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. OREGON v. MITCHELL, ATTORNEY GENERAL No. 43, Orig. Argued October 19, 1970 — Decided December 21, 1970 ' Black, J., delivered an opinion announcing the judgments of the Court and expressing his own view of the cases. Douglas, J., filed a separate opinion, post, p. 135. HARLAN, J., filed an opinion concurring in part and dissenting in part, post, p. 152. BreNNAN, White, and Marshall, JJ., filed an opinion dissenting from the judgments in part and concurring in the judgments in part, post, p. 229. Stewart, J., filed an opinion concurring in part and dissenting in part, in which Burger, C. J., and BlackmuN, J., joined, post, p. 281. Lee Johnson, Attorney General of Oregon, argued the cause for plaintiff in No. 43, Orig. With him on the briefs were Diarrriuid F. O’Scannlain, Deputy Attorney General, Jacob B. Tanzer, Solicitor General, and Al J. Laue and Thomas H. Denney, Assistant Attorneys General. Charles Alan Wright argued the cause for plaintiff in No. 44, Orig. With him on the brief were Crawford C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, Alfred Walker, Executive Assistant Attorney General, and J. C. Davis, W. O. Shultz II, and John Reeves, Assistant Attorneys General. Solicitor General Griswold argued the cause for defendant in Nos. 43, Orig., and 44, Orig., and for the United States in Nos. 46, Orig., and 47, Orig. With him on the briefs were Attorney General Mitchell, pro se, Assistant Attorney General Leonard, Peter L. Strauss, and Samuel Huntington. Gary K. Nelson, Attorney General of Arizona, and John M. McGowan II, Special Assistant Attorney General, argued the cause and filed a brief for defendant in No. 46, Qrig. Robert M. Robson, Attorney General of Idaho, argued the cause for defendant in No. 47, Orig. With him on the brief was Richard H. Greener, Assistant Attorney General. Brief of amicus curiae in all cases was filed by A. F. Summer, Attorney General, Delos Burks, First Assistant Attorney General, William A. Attain, Assistant Attorney General, and Charles B. Henley for the State of Mississippi. Briefs of amici curiae in Nos. 43, Orig., 46, Orig., and 47, Orig., were filed by Melvin L. Wulf for the American Civil Liberties Union, and by John R. Cosgrove for Citizens for Lowering the Voting Age et al.„ Brief of amicus curiae in Nos. 43, Orig., and 46, Orig., was filed by William A. Dobrovir, Joseph L. Rauh, Jr., David Rubin, Stephen I. Schlossberg, John A. Fillion, Nathaniel R. Jones, Clarence Mitchell, and J. Francis Pohlhaus for the Youth Franchise Coalition et al. Briefs of amici curiae in No. 43, Orig., were filed by Joseph A. Califano', Jr., and Clifford L. Alexander for the Democratic National Committee, and by Messrs. Jones, Mitchell, and Pohlhaus for the Department of Armed Services and Veterans Affairs of the National Association for the Advancement of Colored People. Brief of amicus curiae for the State of Indiana in support of plaintiff in No. 44, Orig., was filed by Theodore L. Sendak-, Attorney General, Richard C. Johnson, Chief Deputy Attorney General, and William F. Thompson, Assistant Attorney General, joined by the Attorneys General for their respective States, as follows: Joe Purcell of Arkansas, Robert M. Robson of Idaho, Jack P. F. Gremillion of Louisiana, Clarence A. H. Meyer of Nebraska, Warren B. Rudman of New Hampshire, Robert Morga-h of North Carolina, Helgi Johanneson of North Dakota, Paul W. Brown of Ohio, Gordon Mydland of South Dakota, Vernon B. Romney of Utah, Slade Gorton of Washington, Chauncey H. Browning, Jr., of West Virginia, and James E., Barrett of Wyoming. Brief of amicus curiae in No. 47, Orig., was filed by Andrew P. Miller, Attorney General, and Anthony F. Troy and Walter A. McFarlahe,- Assistant Attorneys General, for' the Commonwealth of Virginia. Together with No. 44, Orig., Texas v. Mitchell, Attorney General, No. 46, Orig., United States v. Arizona, and No. 47, Orig., United States v. Idaho, also on bills of complaint. Mr. Justice Black, announcing the judgments of the Court in an opinion expressing his own view of the cases. In these suits certain States resist compliance with the Voting Rights Act Amendments of 1970, Pub. L. 91-285, 84 Stat. 314, because they believe that the Act takes away from them powers reserved to the States by the Constitution to control their own elections. By its terms the Act does three things. First: It lowers the minimum age of voters in both state and federal elections from 21 to 18. Second: Based upon a finding by Congress that literacy tests have been used to discriminate against voters on account of their color, the Act enforces the Fourteenth and Fifteenth Amendments by barring the use of such tests in all elections, state and national, for a five-year period. Third: The Act forbids States-from disqualifying voters in national elections for presidential and vice-presidential electors because they have not met state residency requirements. For the reasons set out in Part I of this opinion, I believe Congress can fix the age of voters in national elections, such as congressional, senatorial, vice-presidential and presidential elections, but cannot set the voting age in state and local elections. For reasons expressed in separate opinions, my Brothers Douglas, Brennan, White, and Marshall join me in concluding that Congress can enfranchise 18-year-old citizens in national elections, but dissent from the judgment that Congress cannot extend the franchise to 18-year-old citizens in state and local elections. For reasons expressed in separate opinions, my Brothers The Chief Justice, Harlan, Stewart, and Blackmun join me in concluding that Congress cannot interfere with the age for voters set by the States for state and local elections. They, however, dissent from the judgment that Congress can control voter qualifications in federal elections. In summary, it is the judgment of the Court that the 18-year-old vote provisions of the Voting Rights Act Amendments of 1970 are constitutional and enforceable insofar as they pertain to federal elections and unconstitutional and unenforceable insofar as they pertain to state and local elections. For the reasons set out ifi Part II of this opinion, I believe that Congress, in the exercise of its power to enforce the Fourteenth and Fifteenth Amendments, can prohibit the use of literacy tests or other devices used to discriminate against voters on account, of their race in both state and federal elections. For reasons expressed in separate opinions, all of my Brethren join me in this judgment. Therefore the litéracy-test provisions of the Act are upheld. For the reasons set out in Part III of this opinion, I believe Congress can set residency requirements and provide for absentee balloting in elections for presidential and vice-presidential electors. For reasons expressed in separate opinions, my Brothers The Chief Justice, Douglas, Brennan,' Stewart, White, Marshall, and Blackmun concur in. this judgment. My Brother Harlan, for the reasons stated in his separate opinion, considers that the residency provisions of the statute are unconstitutional. Therefore the residency and absentee balloting provisions of the Act are upheld. Let judgments be entered accordingly. I The Framers of our Constitution provided in Art. I, §2, that members of the House of Representatives should be elected by the people and that the voters for Representatives should have “the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” Senators were originally to be elected by the state legislatures, but under the Seventeenth Amend- . ment Senators are also elected by the people, and voters for Senators have the same qualifications as voters for Representatives. In the very beginning the responsibility of the States for setting the qualifications of voters in congressional elections was made subject to the power of Congress to make or alter such regulations if it deemed it advisable to do so. This was done in Art. I, § 4, of the Constitution which provides: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Lavj make or alter such Regulations, except as to the Places of chusing Senators.” (Emphasis supplied.) Moreover, the power of Congress to make election regulations in national elections is augmented by the Necessary and Proper Clause. See McCulloch v. Maryland, 4 Wheat. 316 (1819). In United States v. Classic, 313 U. S. 299 (1941), where the Court upheld congressional power to regulate party primaries, Mr. Justice Stone speaking for the Court construed the interrelation of these clauses of the Constitution, stating: “While, in a loose sense, the right to vote for representatives in Congress is sometimes spoken of as a right derived from the states . . . this statement is true only in the sense that the states are authorized by the Constitution, to legislate on the subject as provided by § 2 of Art. I, to the extent that Congress has not restricted state action by the exercise of its powers to regulate elections under § 4 and its more general power under Article I, § 8, clause 18 of the Constitution 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.’ ” 313 U. S., at 315. See also Ex parte Siebold, 100 U. S. 371 (1880); Ex parte Yarbrough, 110 U. S. 651 (1884); Swafford v. Templeton, 185 U. S. 487 (1902); Wiley v. Sinkler, 179 U. S. 58 (1900). The breadth of power granted to Congress to make or alter election regulations in national elections, including the qualifications of voters, is demonstrated by the fact that the Framers of the' Constitution and the state • legislatures which ratified it intended to grant to Congress the power to lay out or alter the boundaries of the congressional districts. In the ratifying conventions speakers “argued that the power given Congress in Art. I, § 4, was meant to be used to vindicate the people’s right to equality of representation in the House,” Wesberry v. Sanders, 376 U. S. 1, 16 (1964), and that Congreswould “ 'most probably . . . lay the state off into districts.’ ” And in Colegrove v. Green, 328 U. S. 549 (1946), no Justice of this Court doubted Congress’ power to rearrange the congressional districts according to population; the fight in that case revolved about the judicial power to compel redistricting. Surely no voter qualification was more important to the Framers than the geographical qualification embodied in the concept of congressional districts. The Framers expected Congress to use this power to eradicate “rotten boroughs,” and Congress has in fact used its power to prevent States from electing all Congressmen at large. There can be no doubt that the power to alter congressional district lines is vastly more significant in its effect than the power to permit 18-year-old citizens to go to the polls and vote in all federal elections. Any doubt about the powers of Congress to regulate congressional elections, including the age and other qualifications of the voters, should be dispelled by the opinion of this Court in Smiley v. Holm, 285 U. S. 355 (1932). There, Chief Justice Hughes writing for a unanimous Court discussed the scope of congressional power under § 4 at some length. He said: “The subject matter is the ‘times, places and manner of holding elections for Senators and Representatives.’ It cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved. . . . “This view is confirmed by the second clause of Article I, section 4, which provides that ‘the Congress may at any time by law make or alter such' regulations/ with the single exception stated. The phrase 'such regulations’ plainly refers to regulations of the same general character that the legislature of the State is authorized to prescribe with respect to congressional elections. In exercising this .power, the Congress may supplement these state regulations or may substitute its own. ... It ‘has a general supervisory power over the whole subject.’ ” Id., at 366-367. In short, the Constitution allotted to the States the power to make laws regarding national elections, but .provided that if Congress became dissatisfied with the state laws, Congress could alter them. A newly created national government could hardly have been expected to survive without the ultimate power to. rule itself and to fill its offices under its own laws. The Voting Rights Act Amendments of 1970 now before this Court evidence dissatisfaction of Congress with the voting age set by many of the States for national elections. I would hold, as have a long line of decisions in this Court, that Congress has ultimate supervisory power over congressional elections. Similarly, it is the prerogative of Congress to oversee the conduct of presidential and vice-presidential elections and to set the qualifications for voters for electors for those offices. It cannot be seriously contended that Congress has less power over the conduct of presidential elections than it has over, congressional elections. On the other hand, the Constitution was also intended to preserve to the States the power that even the Colonies had to establish and maintain their own separate and independent governments, except insofar as the Constitution itself commands otherwise. My Brother Harlan has persuasively demonstrated that the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections. My major disagreement with my Brother Harlan is that, while I agree as to the States’ power to regulate the elections of their own officials, I believe, contrary to his view, that Congress has the final authority over federal elections. No function is more essential to the separate and independent existence of the States and their governments than the power to determine within the limits of the Constitution the qualifications of their own voters for state, county, and municipal offices and the nature of their own machinery for filling local public offices. Pope v. Williams, 193 U. S. 621 (1904); Minor v. Happersett, 21 Wall. 162 (1875). Moreover, Art. I, § 2,' is a clear indication that the Framers intended the States to determine the qualifications of their own voters for state offices, because those qualifications were adopted for federal offices unless Congress directs otherwise under Art. I, § 4. It is a plain fact of history that the Framers never imagined that the national Congress would set the qualifications for^ voters in every election from President to local constable or village alderman. It is obvious, that the whole Constitution reserves to the States the power to set voter qualifications in state and local elections, except to the limited extent that the people through constitutional amendments have specifically narrowed the powers of the States. Amendments Fourteen, Fifteen, Nineteen, and Twenty-four, each of which has assumed that the States had general supervisory power over state elections, are examples of express limitations on the power of the States to govern themselves. And the Equal Protection Clause of the Fourteenth Amendment was never intended to destroy the States’ power to govern themselves, making the Nineteenth and Twenty-fourth Amendments superfluous. My Brother Brennan’s opinion, if carried to its logical conclusion, would, under the guise of insuring equal • protection, blot out all state power, leaving the 50 States as little more than impotent figureheads. In interpreting what the Fourteenth Amendment means, the Equal Protection Clause should not be stretched to nullify the States’ powers over elections which they had before the Constitution was adopted and which they have retained throughout our history. Of course, the original design of the Founding Fathers was altered by the Civil War Amendments and various' other amendments to the Constitution. The Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments have expressly authorized Congress to “enforce” the limited prohibitions of those amendments by “appropriate legislation.” The Solicitor General contends in these cases that Congress can set the age qualifications for voters in state elections under its power to enforce the Equal Protection Clause of the Fourteenth Amendment. Above all else, the framers of the Civil War Amendments intended to deny- to the States the power to discriminate against persons on account of their race. Loving v. Virginia, 388 U. S. 1 (1967); Gomillion v. Lightfoot, 364 U. S. 339 (1960); Brown v. Board of Education, 347 U. S. 483 (1954); Slaughter-House Cases, 16 Wall. 36, 71-72 (1873). While this Court has recognized that the Equal Protection Clause of the Fourteenth Amendment in some instances protects against discrim-inations other than those on account of race, see Reynolds v. Sims, 377 U. S. 533 (1964); Hadley v. Junior College District, 397 U. S. 50 (1970); see also Kotch v. Board of River Port Pilots, 330 U. S. 552 (1947), and cases cited therein, it cannot be successfully argued that the Fourteenth Amendment was intended to strip the States. of their power, carefully preserved in the original Constitution, to govern themselves. The' Fourteenth Amendment was surely not intended to make every discrimination between groups of people á constitutional denial of. equal .protection. Nor was the Enforcement Clause of the Fourteenth Amendment intended to permit Congress to prohibit every discrimination between groups of people. On the other hand, the Civil War Amendments were unquestionably designed to condemn and forbid every distinction, however trifling, on account of race. . To .fulfill their goal of ending racial discrimination and to prevent direct or indirect state legislative encroachment on the rights guaranteed by the amendments, the Framers gave Congress power to enforce each of the Civil War Amendments. These enforcement powers are broad. In Jones v. Alfred H. Mayer Co., 392 U. S. 409, 439 (1968), the Court held that § 2 of the Thirteenth Amendment “clothed ‘Congress with power to pass all laws necessary and pro'per for abolishing all badges, and..incidents of slavery in the United States.’” In construing § 5 of the Fourteenth' Amendment, the Court has 'stated: “It is not said the judicial power of the general government shall extend to enforcing the prohibitions and to protecting the rights and. immunities, guaranteed. It is not said that branch of the government shall be authorized to declare void, any action of a State in violation of the prohibitions. It is the power of Congress which. has been enlarged.” Ex parte Virginia, 100 U. S. 339, 345 (1880). (Emphasis added in part.) And in South Carolina v. Katzenbach, 383 U. S. 301 (1966) (Black, J., dissenting on other grounds), the Court upheld the literacy test ban of the Voting Rights Act of 1965, 79 Stat. 437, under Congress’ Fifteenth Amendment enforcement power. As broad as the congressional enforcement power is, it is not unlimited: Specifically, there are at least three limitations upon Congress’ power to enforce the guarantees of the Civil War Amendments. First, Congress may not by legislation repeal other' provisions of the Constitution. Second, the power granted to Congress was not intended to strip the States of their power to govern themselves or to convert our national government of enumerated powers into a central government of unrestrained authority over every inch of the whole Nation. Third, Congress may only “enforce” the provisions of the amendments and may do so only by “appropriate legislation.” Congress has no power under the enforcement sections to undercut the amendments’ guar-anteés of personal equality and freedom from discrimination, see Katzenbach v. Morgan, 384 U. S. 641, 651 n. 10 (1966), or to undermine those protections of the Bill of Rights which we have held the Fourteenth Amendment made applicable to the States. Of course, we have upheld congressional legislation under the Enforcement Clauses in some cases where Congress has interfered with state regulation of the local electoral process. In Katzenbach v. Morgan, supra, the Court upheld a statute which outlawed New York’s requirement of literacy in English as a prerequisite to voting as this requirement was applied to Puerto Ricans with certain educational qualifications. The New York statute overridden by Congress applied to all elections. And in South Carolina v. Katzenbach, supra (Black, J., dissenting on other grounds), the Court upheld the literacy test ban of the Voting Rights Act of 1965. That Act proscribed the use of the literacy test in all elections in certain areas. But division of power between state and national governments, like every provision of the Constitution, was expressly qualified by the Civil War Amendments’ ban on racial discrimination. Where Congress attempts to remedy racial discrimination under its enforcement powers, its authority is enhanced by the avowed intention of the framers of the Thirteenth, Fourteenth, and Fifteenth Amendments. Cf. Harper v. Virginia Board of Elections, 383 U. S. 663, 670 (1966) (Black, J., dissenting). In enacting the 18-year-old vote provisions of the. Act now before the Court, Congress made no legislative findings that the 21-year-old vote requirement was used by the States to disenfranchise voters on account of race. I seriously doubt that such a finding, if made, could be supported by substantial evidence. Since Congress has attempted to invade an area preserved to the States by the Constitution without a foundation for enforcing the Civil War Amendments' ban on racial discrimination, .1 would, hold that Congress has exceeded its powers in attempting to lower the voting age in state and local elections. On the other hand, where Congress legislates in a domain not exclusively reserved by the Constitution to the States, its enforcement power need not-be tied so closely to the goal of eliminating discrimination on account of race. To invalidate part of the Voting Rights Act Amendr ments of 1970, .however, does not mean that the entire Act must fall or that the constitutional part of the 18-year-old vote provision cannot be given effect. In passing the Voting Rights Act Amendments of 1970, ■Congress recognized that the limits of its power under the Enforcement Clauses were largely undetermined, and therefore included a broad severability provision: “If any provision of this Act or the application of any provision thereof to any person or circumstance is judicially determined to be invalid, the remainder of this Act or the application of such provision to other persons or circumstances shall not be affected by such determination.” 84 Stat. 318. In this case,.it is the judgment of the Court that Title III, lowering the voting age to 18, is invalid as applied to voters in state- and local elections. .It is also the judgment of the Court that Title III is valid with respect to national elections. We would fail to follow the express will of Congress in interpreting its own statute if we refused to sever these two distinct aspects of Title III. Moreover, it is a longstanding canon of statutory-construction that legislative enactments are to be enforced to the extent that they are not inconsistent with the Constitution, particularly where the valid portion of the statute does not depend upon the invalid part. See, e. g., Watson v. Buck, 313 U. S. 387 (1941); Marsh v. Buck, 313 U. S. 406 (1941). Here, of course, the enforcement of the 18-year-old vote in national elections is in no way dependent upon its enforcement in state and local elections. II In Title I of the Voting Rights Act Amendments of 1970 Congress extended the provisions of the Voting Rights Act of 1965 which ban the use of literacy tests in certain States upon the finding of certain conditions by the United States Attorney General. The Court upheld the provisions of the 1965 Act over my partial dissent in South Carolina v. Katzenbach, supra, and Gaston County v. United States, 395 U. S. 285 (1969). The constitutionality of Title I is not raised by any of the parties to these suits. In Title II of the Amendments Congress prohibited until August 6, 1975, the use of any test or device resembling a literacy test in any national, state, or local election in any area of the United States where such test is not already proscribed by the Voting Rights Act of 1965. The State of Arizona maintains that Title II cannot be enforced to the extent that it is inconsistent with Arizona’s literacy test requirement, Ariz. Rev. Stat. Ann. §§ 16-101.A.4, 16-101.A.5 (1956). I would hold that the literacy test ban of the 1970 Amendments is constitutional under the Enforcement Clause of the Fifteenth Amendment and that it supersedes Arizona’s conflicting statutes under the Supremacy Clause of the Federal Constitution. In enacting the literacy test ban of Title II Congress had before it a long histdry of the discriminatory use of literacy .tests to disfranchise voters on account of their race. Congress could have found that as late as the summer of 1968, the percentage registration of nonwhite voters in seven Southern States was substantially below the percentage registration of white voters. Moreover, Congress had before it striking evidence to show that the provisions of the 1965 Act had had in the span of four years a remarkable impact on minority group voter registration. Congress also had evidence to show that voter registration in areas with large Spanish-American populations was consistently below the state and national averages. In Arizona, for example, only two counties out of eight with Spanish surname populations in excess of 15% showed a voter registration equal to the statewide .average. Arizona' also has a serious, problem of deficient voter registration among Indians. Congressional concern over the use of a literacy test to disfranchise Puerto Ricans in New York State is already a matter of record in this Court. Katzenbach v. Morgan, supra. And as to the Nation as a whole, Congress had before it statistics .which demonstrate that voter registration and voter participation are consistently greater in States without literacy tests. Congress also had before it this country’s history of discriminatory educational opportunities in both the North and the South. The children who were denied an equivalent education by the “separate but equal” rule of Plessy v. Ferguson, 163 U. S. 537 (1896), overruled in Brown v. Board of Education, 347 U. S. 483 (1954), are now old enough to vote. There is substantial, if not overwhelming, evidence from which Congress could have concluded that it is a denial of equal protection to condition. the political participation of children educated in a dual school system upon their educational achievement. Moreover, the history of this legislation suggests that concern with educational, inequality was perhaps uppermost in the minds of the congressmen who sponsored the Act. The hearings are filled with references to educational inequality. Faced with this and other evidence that literacy tests reduce voter participation in a discriminatory manner not only in the South but throughout, the Nation, Congress was supported by substantial evidence in concluding that a nationwide ban on literacy tests was appropriate to enforce the Civil War amendments. Finally, there is yet another reason for upholding the literacy test provisions of this Act. In imposing a nationwide ban on literacy tests, Congress has recognized a national problem for what it is — a serious national dilemma that touches every corner of our land. In this legislation Congress has recognized that discrimination on account of color and racial origin is not confined to the South, but exists in variofis parts of the .country. Congress has decided that the way to solve the problems of racial discrimination is to deal with nationwide discrimination with nationwide legislation. Compare South Carolina v. Katzenbach, supra, and Gaston County v. United States, supra. III In Title II of the Voting Rights Act Amendments Congress also provided that in presidential and vice-presidential elections, no voter could be denied his right to cast a ballot because he had not lived in the jurisdiction long enough to meet its residency requirements. -Furthermore, Congress provided uniform national rules for absentee toting in presidential and vice-presidential elections. In enacting these regulations Congress was attempting to insure a fully effective voice to all citizens in national elections. What I said in Part I of this opinion applies with equal force here. Acting under its broad authority to create and maintain a national government, Congress unquestionably has power under the Constitution to regulate federal elections. The Framers of our Constitution were vitally concerned with setting up a national government that could survive. Essential to the survival and to the growth of our national government is its power to fill its elective offices and to insure' that the officials who fill those offices are as responsive as possible to the will of the people whom they represent. IV Our judgments today give the Federal Government the power the Framers conferred upon it, that is, the final control of the elections of its own officers. Our j udgments also, save for the States the power to control state and local elections which the Constitution originally reserved to them and which no subsequent amendment has taken from them. The generalities of the Equal Protection Clause of the Fourteenth Amendment were not designed or adopted to render the States impotent to set voter qualifications in elections for their own local officials and agents in the absence of some specific constitutional limitations. In Nos. 43, Orig., and 44, Orig., Oregon and Texas, respectively, invoke the original jurisdiction of this Court to sue the United States Attorney General seeking an injunction against the enforcement of Title III (18-year-old vote) of the Act. In No. 46, Orig., the United States invokes our original jurisdiction seeking to enjoin Arizona from enforcing its laws to the extent that they conflict with the Act, and directing the officials of Arizona to comply with the provisions of Title II (nationwide literacy test ban), § 201, 84 Stat. 315, and Title III (18-year-old vote), §§301,' 302, 84 Stat. 318, of the Act. In No. 47, Orig., the United States invokes our original jurisdiction seeking to enjoin Idaho from enforcing its laws to the extent that they conflict with Title II (abolition of residency requirements in presidential and vice-presidential elections), §202, 84 Stat. 316, and Title III (18-year-old vote) of the Act. No question has been raised concerning the standing of the parties or the jurisdiction of this Court. Article I, § 4, was a compromise between those delegates to the Constitutional Convention who Wanted the States to have final authority over the election of all state and federal officers and those who wanted Congress to make laws governing national elections, 2 J. Story, Commentaries on the Constitution of the United States 280-292 (1st ed. 1833). The contemporary interpretation of this compromise reveals that those who favored national authority over national elections prevailed. Six States included in their resolutions of ratification the recommendation that a constitutional amendment be adopted to curtail the power of the Federal Government to regulate national elections. Such an amendment was' never adopted. A majority of the delegates to the Massachusetts ratifying convention must have assumed that Art. I, § 4, gave very broad powers to Congress. Otherwise that convention would not have recommended an amendment providing: “That Congress do not exercise the powers vested in them by the 4th section of the 1st article, but in cases where ■ a state shall neglect or refuse to make the regulations therein mentioned, or shall make regulations subversive of the rights of the people to a free and equal representation in Congress, agreeably to the Constitution.” 2 J. Elliot’s Debates on the Federal Constitution 177 (1876). The speech of Mr. Cabot, one delegate to the Massachusetts convention, who argued that Art. I, § 4, was “to be as highly prized as any in the Constitution,” expressed a view of the breadth of that section which must have been shared by most of his colleagues: “[I]f the state legislatures are suffered to regulate conclusively the elections of the democratic branch, they may . . . finally annihilate that control of the general government, which the people ought always to have . . . .” Id., at 26. And Cabot was supported by Mr. Parsons, who added: “They might make an unequal and partial division of the states into districts for the election of representatives, or' they might even disqualify one third of the electors. Without these powers in Congress, the people can have no remedy; but the 4th section provides a remedy, a controlling power in a legislature, composed of senators and representatives of twelve states, without the influence of our commotions and factions, who will hear impartially, and preserve and restore to the people their equal and sacred rights of election.” Id., at 27. See Wesberry v. Sanders, 376 U. S. 1, 14-16 (1964). See, e. g., Act of Aug. 8, 1911, 37 Stat. 13. My Brother Stewart has cited the debates of the Constitutional Convention to show that Ellsworth, Mason, Madison, and Franklin successfully opposed granting Congress the power to regulate federal elections, including the qualifications of voters, in the original Constitution. I read the history of our Constitution differently. Mr. Madison, for example, explained Art. I, § 4, to the Virginia ratifying convention as follows: “[I]t was thought that the regulation of time, place, and manner, of electing the representatives, should be uniform throughout the continent. Some States might regulate the elections on the principles of equality, and others might regulate them otherwise. This diversity would be obviously unjust. . . . Should the people of any state by any means be deprived of the right of suffrage, it was judged proper that it should be remedied by the general government.” 3 J. Elliot’s Debates on the Federal Constitution 367 (1876). And Mr. Mason, who was supposedly successful in opposing a broad grant of power to Congress to regulate federal elections, still found it necessary to support an unsuccessful Virginia proposal to curb the power of Congress under Art. I, § 4. Id., at 403. See, e. g., Ex parte Siebold, 100 U. S. 371 (1880); Ex parte Yarbrough, 110 U. S. 651 (1884); United States v. Mosley, 238 U. S. 383 (1915); United States v. Classic, 313 U. S. 299 (1941). With reference to the selection of the President and Vice President, Art. II, § 1, provides: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . . .” But this Court in Burroughs v. United States, 290 U. S..534 (1934), upheld the power of Congress to regulate certain aspects of elections for presidential and vice-presidential electors, specifically rejecting a construction of Art. II, § 1, that would have Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_geniss	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. 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". Max M. JOHNSON, Appellant, v. John W. TURNER, Warden, Utah State Prison, Appellee. No. 287-69. United States Court of Appeals, Tenth Circuit. July 21, 1970. Phillip Pankoff, Denver, Colo., for appellant. Lauren N. Beasley, Chief Asst. Atty. Gen., Salt Lake City, Utah (Vernon B. Romney, Atty. Gen., on the brief) for appellee. Before BREITENSTEIN, SETH and HOLLOWAY, Circuit Judges. HOLLOWAY, Circuit Judge. This appeal is taken from a denial of habeas corpus relief sought under 28 U. S.C. § 2254. Appellant Johnson is confined in the Utah State prison under an indeterminate sentence of one to ten years imposed in March, 1968, following a grand larceny conviction. He sought post-conviction relief in the State District Court by assertion of some issues raised here, but was denied such relief after a hearing at which appellant was present and represented by counsel. It appears that then both an appeal from the State trial court’s denial of post-conviction relief and an original petition for habeas corpus or coram nobis relief failed in the Utah Supreme Court. Appellant’s federal habeas corpus proceeding was then commenced in April, 1969. The trial court’s Memorandum Decision stated that the petition, transcripts and files had been examined; that no issues of substance involving the Constitution or laws of the United States were presented, the petition being without merit; that the Utah District Court had properly considered the questions and denied relief; and that as to State law questions involved, the State Court interpretation was conclusive. The writ was denied in April, 1969, without a hearing and this appeal followed. Appellant submitted his case in the State Court post-conviction proceeding on the basis of the original trial record and a stipulation as to testimony his trial attorney would have given. From that record, and the transcript of the post-conviction proceeding, the material facts are as follows. Appellant was tried on an information charging grand larceny by taking an electric guitar of a value in excess of $50. The principal prosecution witness, Newell, testified that he operated a music center in American Fork, Utah; that on January 14, 1968, he met with one Rudd and appellant ; that Rudd wanted to borrow an electromatic typewriter belonging to Newell; that Newell loaned them the key to his place of business for this purpose; and that appellant picked up the key as Rudd was returning after a short absence from the room. A few days later Newell found that two guitars, including the one in question, and an amplifier were missing from the store. Newell contacted Rudd and appellant about the loss and appellant denied any knowledge of it. When Newell contacted the Sheriff’s office a report of the guitar being pawned was found. The instrument was located at a pawnshop whose owner testified appellant pawned the guitar. Newell identified the guitar at trial and said its cost to him was $200. Unsavory facts about the case disturbed the Utah Courts and concern us. Newell admitted prior discussion with Rudd and Johnson about a money raising scheme. He conceded that it was a fraudulent plan involving the use of false identification and credit cards but said that he was not to know its details. Apparently Newell was to help raise funds to start the project by allowing use of his personalized checks which he signed. His testimony is unclear as to whether his balance was sufficient at the time to cover the amounts discussed, and he said at one point that his share of the proceeds from the scheme would enable him to cover the checks. Appellant’s counsel developed Newell’s involvement by cross-examination. The defense theory was that Newell consented to taking of the guitars, and also that Newell was an accomplice whose uncorroborated testimony could not support a conviction. Newell denied giving Rudd or appellant permission to take anything but the typewriter. The State Trial Court observed that Newell’s testimony was almost inconceivable, but that this was for the jury to decide. The pawnshop owner identified the guitar and said appellant had pawned it on January 16. The Sheriff confirmed Newell’s report of the loss. He testified that appellant came to his office as requested; that he said they had the key to get the typewriter but could not find it; and that later he went back and took the guitars and the amplifier. Rudd testified for appellant and detailed the money raising scheme. He said Newell was to put up $300 for obtaining fictitious identification. He said that Newell gave them his key to get the typewriter to type out the checks, but that there was no discussion in his presence about the guitars. The scheme involving the credit cards was not carried out. This was the substance of the defense proof. The jury rejected the defense and found appellant guilty. His post-conviction proceedings failed in the Utah State Courts and in the Federal District Court, and this appeal followed. First appellant argues that his trial by eight jurors under Art. I, § 10 of the Utah Constitution deprived him of his federal constitutional rights guaranteed by the Sixth and Fourteenth Amendments. He says that trial by jury carries the meaning recognized in this country and in England when the Constitution was adopted including, among other things, a jury of twelve men. See Patton v. United States, 281 U.S. 276, 288, 50 S.Ct. 253, 74 L.Ed. 854. It is now recognized that the Fourteenth Amendment guarantees jury trial in State Court trial of serious criminal cases which would come within the Sixth Amendment guarantee of trial by jury in the Federal Courts. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L. Ed.2d 491; Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522. From these propositions appellant contends that his trial by a jury of eight infringed his federal constitutional rights. The historical underpinning of appellant’s argument has been removed by the recent decision in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446. There the Court sustained a robbery conviction by a jury of six in the Florida courts over the same objection made by appellant here. The opinion of the Court held that “ * * * the 12-man requirement cannot be regarded as an indispensable component of the Sixth Amendment.” Id. at 100, 90 S.Ct. at 1905. Thus the Sixth and Fourteenth Amendments did not bar use of the jury of eight as provided by the Utah Constitution for appellant’s trial. Secondly, it is argued that New-ell was an accomplice whose uncorroborated testimony could not support the conviction of appellant. See § 77-31-18, Utah Code Annotated. Insofar as the argument raises merely a point of procedure under Utah law, the issue is not cognizable in this federal habeas corpus proceeding where only claims of violation of federal law are heard. 28 U.S.C. § 2254(a). We see no constitutional issue raised by the contention. Third, appellant says that the guitar in evidence was not shown to be the one which was stolen as described in the information and that other essential proof was lacking. The sufficiency of the evidence to sustain a conviction is not subject to review in our federal habeas corpus proceedings unless the conviction is so devoid of evidentiary support as to raise a due process issue. Mathis v. Colorado, 425 F.2d 1165 (10th Cir.); Edmondson v. Warden, 335 F.2d 608, 609 (4th Cir.). We are satisfied that the record does not present such a constitutional problem. Fourth, appellant says the complaint and information were fatally defective by not stating the criminal statute alleged to have been violated, and by not alleging that the defendant intentionally committed the act. Again insofar as the argument raises merely issues of State law, the contentions are not cognizable in a federal habeas corpus proceeding. The State questions were decided adversely to appellant by the Utah Courts. Assuming that appellant also intends to argue lack of notice and of due process, we are not persuaded by such a constitutional contention. In substance the complaint and information accused appellant of grand larceny, charging that he stole a Mosrite Electric Guitar of a value over $50, belonging to Newell, on January 14, 1968, in Utah County. We are satisfied that appellant was fairly apprised of the nature of the charge and of the facts alleged by the State to constitute the offense so that due process was not infringed. Beauchamp v. United States, 154 F.2d. 413 (6th Cir.), cert. denied, 329 U.S. 723, 67 S.Ct. 66, 91 L.Ed. 626; Barber v. Gladden, 327 F.2d 101 (9th Cir.), cert. denied, 377 U.S. 971, 84 S.Ct. 1654, 12 L. Ed.2d 741. Fifth, appellant says that the proffered testimony of one Smith that Newell had stated to him that he gave appellant permission to take the guitars was improperly excluded so that appellant’s right to compulsory process was denied under principles recognized in Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L.Ed.2d 1019. The State objects to consideration by us of the issue because it was not presented to the State Courts. The record shows no assertion of this constitutional claim in the Utah Courts or in the Federal District Court and it may not be considered here, absent special circumstances. Garrison v. Patterson, 405 F.2d 696, 698 (10th Cir.); Lucero v. United States, 425 F.2d 172 (10th Cir., opinion filed April 27, 1970). The issue may involve significant interplay with State procedural law and we conclude that we should not consider the substance of the claim which has not been presented to the State Courts. We have examined the record and other contentions of appellant including an assertion of unconstitutionality of the Utah grand larceny statute, and none are supported by the authorities or by reason. None of appellant’s contentions show any infringement of his constitutional rights. Affirmed. . Appellant attempted to introduce testimony that Newell stated a few days after the loss that he had given permission for the guitars to be taken. The offer was excluded because of the manner of its attempted introduction. Similar proof was the basis of a motion for a new trial which was denied. . Under previous federal constitutional decisions State criminal trials by juries of less than twelve were upheld. See Maxwell v. Dow, 176 U.S. 581, 603-604, 20 S.Ct. 494, 44 L.Ed. 597; and Coates v. Lawrence, 46 F.Supp. 414, 423 (S.D.Ga. 1942), aff’d 131 F.2d 110 (5th Cir. 1942), cert. denied 318 U.S. 759, 63 S.Ct. 532, 87 L.Ed. 1132 (1943). 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_appsubst	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 "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Appellee, v. David Bernard BARASH, Appellant. No. 459, Docket 30432. United States Court of Appeals Second Circuit. Argued June 24, 1966. Decided Aug. 3, 1966. Louis Bender, New York City, Lloyd A. Hale, New York City, of counsel, for appellant. Robert L. King, New York City (Robert M. Morgenthau, U. S. Atty. for Southern District of New York; Neal J. Hurwitz, John E. Sprizzo, Asst. U. S. Attys., of counsel), for appellee. Before MOORE, FRIENDLY and FEINBERG, Circuit Judges. FRIENDLY, Circuit Judge: A grand jury in the District Court for the Southern District of New York returned a rather confusing 32 count indictment against David Bernard Barash, a certified public accountant and attorney, relating to improper payments to internal revenue agents in connection with their office audit examinations of income tax returns of Barash’s clients. Counts . 1-12 charged him with giving money to Agents Clyne, Montello and DeSibio in 1960, 1961, 1962 and on January 18, 1963, with intent to influence their official acts in violation of 18 U.S. C. § 201, and counts 13-16 charged him with gifts to Agents Clyne, Montello, Wolf and an agent subsequently identified as Coady for a similar purpose later in 1963 in violation of 18 U.S.C. § 201 (b) as the statute now stands. Counts 17-20 charged him with making the same gifts alleged in counts 13-16 for and because of the agents’ official duties, in violation of 18 U.S.C. § 201(f), added in the amendment of October 23, 1962, which became effective 90 days after passage. Finally counts 21-32, which related to the same payments alleged in counts 1-12, charged him with aiding and abetting Clyne, Montello and DeSibio in receiving illegal fees for the performance of their duties in violation of 26 U.S.C. § 7214(a) (2). After trial before Judge MacMahon and a jury, Barash was acquitted on the six counts relating to Montello and Wolf but found guilty on the twenty-six (involving thirteen transactions) which concerned Clyne, DeSibio and Coady. He was sentenced to imprisonment of a year and a day on each count, the sentences to run concurrently. Thé Government’s case was presented through the agents. Clyne and DeSibio had pleaded guilty to offenses charged in the instant indictment and to others; Coady had been operating in an undercover capacity. Clyne, who was the receiving party in ten of the thirteen incidents resulting in convictions, testified to a pattern of conduct substantially as follows.: Barash would inform Clyne of clients who had received “call-in” letters instructing them to appear for audit of their returns before the group of agents that included Clyne. In violation of office procedures Clyne would obtain the returns and related papers from his supervisor’s file and assign the audits to himself. Barash would suggest relatively small disallowances in unsubstantiated deductions for travel and entertainment expenses, and would offer Clyne compensation for thus passing the returns. When Clyne obliged, Barash would make payments ranging from $20 to $50 per return. DeSibio, who figured in two incidents in 1961, gave similar testimony except that he did not say Bar-ash had taken the initiative in getting the audits assigned to him. Coady testified that in July 1963 Barash, after being introduced to him by a fellow-employee, Jeanne Lupescu, asked if Coady could get a tax return from the files and assign it to himself; when Coady answered in the affirmative, Barash furnished him the details, requested a “no-change” report the next day and, on Coady’s assent, said he had an envelope for him and shortly returned with one containing $50. The theory of the defense was that Clyne and DeSibio had implicated Ba-rash in order to get favorable consideration as to their sentences for other crimes, and that Coady had distorted an incident that was wholly innocent. Ba-rash denied offering anything to the agents in connection with the audits, although he admitted having given Christmas presents of $25 or $50 to Clyne in 1960,1961 and 1962 and making a $50 payment in January 1963, having DeSibio to lunch, and having made a $50 gift to Coady in appreciation of the latter’s expediting the audit and in response to a remark, admittedly made by Coady, that he was soon going off to Marine Corps summer camp. Barash also testified as to pressure from Clyne, beginning with a mild suggestion on an audit in the spring of 1961 and mounting in intensity thereafter, all of which Clyne had denied on cross-examination, and was again to deny on rebuttal. Barash raises many claims of trial error; the Government defends the judge’s rulings and instructions and argues in the alternative that any error can be quarantined to particular counts and is immaterial in view of the concurrent sentences. See Lawn v. United States, 355 U.S. 339, 359, 362, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). However, as Judge Clark made clear for us, the doctrine of the one good count is not a fetish; we must inquire whether “the nature of the error committed below or other circumstances suggest that the accused might have received a longer sentence than otherwise would have been imposed, or that he has been prejudiced by the results of the proceedings.” United States v. Hines, 256 F.2d 561, 563 (2 Cir. 1958). We begin with the two counts relating to Coady, the single agent whose slate was clean and whose testimony may thus have carried particular weight. Cross-examination had emphasized that Barash had given him $50 only after the audit had been concluded and therefore could not have intended the payment to influence any action on his párt. The Government sought to counter this by asking Coady on redirect whether prior acts had led him to believe he would be paid. He mentioned three— the suggestion that he pull the return and assign it to himself, the request for a no-change without substantiation, and, over objection, the introduction of Ba-rash to him by Jeanne Lupescu “because Miss Lupescu had never introduced me to anyone except someone who was going to pay me off.” Granted that a promise to pay can be conveyed only by a wink of the eye, it is questionable whether even if all this evidence were properly received, the Government made out enough to go to the jury on the bribery count with respect to Coady. But the testimony as to Lupescu should not have been admitted. Its hearsay nature, which would have been obvious if Coady had said Lupescu had told him that Barash had previously paid her or other agents and thus was an accountant of the paying kind, was not removed because she conveyed her meaning without the use of words. The guiding principle was stated long ago by Baron Parke in the leading case of Wright v. Tatham, 7 Ad. & E. 313, 388-389, 112 Eng.Rep. 488, 516-17 (1837): “ * * * proof of a particular fact which is not of itself a matter in issue, but which is relevant only as implying a statement or opinion of a third person on the matter in issue, is inadmissible in all cases where such a statement or opinion not on oath would be of itself inadmissible.” See Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L.Rev. 177, 190-192 (1948); McCormick, Evidence § 229 (1954), and cases cited. The Government, not seriously challenging this, argues that the evidence was nevertheless admissible since, without regard to the truth of the implicit assertion, it showed that when Coady dealt with Barash, he expected to be paid. It is true enough that evidence admissible for one purpose is not rendered inadmissible “because it does not satisfy the rules applicable to it in some other capacity and because the jury might improperly consider it in the latter capacity,” and that under such circumstances the opponent of the evidence will not- prevail by interposing a general objection and is entitled only to a limiting instruction on timely request. 1 Wigmore, Evidence § 13, at 300 (3d ed. 1940); Malatkofski v. United States, 179 F.2d 905, 914 (1 Cir. 1950); United States v. Smith, 283 F.2d 760, 764 (2 Cir. 1960), cert. denied, 365 U.S. 851, 81 S.Ct. 815, 5 L.Ed.2d 815 (1961); United States v. Mont, 306 F.2d 412, 415-416 (2 Cir.), cert. denied, 371 U.S. 935, 83 S.Ct. 310, 9 L.Ed.2d 272 (1962). But here Coady’s state of mind was irrelevant unless induced by Barash, a fact as to which the Lupescu story was hearsay; it was thus inadmissible for any purpose. Since the evidence was highly material and the jury cannot realistically be supposed to have considered it only in relation to the bribery count, the convictions on both Coady counts would have to be reversed if they stood alone. Another error occurred in the course of cross-examination of Clyne. When defense counsel asked if he had ever threatened Barash, Clyne answered in the negative. Counsel then proceeded to cross-examine on the basis of tape recordings, furnished to him by the Government, which Coady had made of a “bull-session” at a hotel between himself, Clyne and another corrupt agent, wherein Clyne frankly revealed his practice of putting pressure on accountants to pay off. In sharp contradiction of what Clyne had just testified and in support of what Barash was later to testify, counsel developed, without objection, that Clyne boasted of having told Barash he was “getting away with murder”; that on discovering Barash was trying to have some audits done without paying off, Clyne told him he had cut his throat in Clyne’s group; that he complained of how in another case Barash had beaten him out of fifty dollars, and on this or another occasion Clyne had asked $150 but got only $100; and that he had compared Barash unfavorably with Eugene Kenner, see 354 F.2d 780, who “when he comes in on a case, you never have to ask him.” Inexplicably a question whether Clyne remembered having told Coady “you get your money’s worth with Gene Kenner; you’ll get robbed * triggered an objection. The judge sustained this, saying, in the presence of the jury, that he had been waiting for it all afternoon and that if the Assistant United States Attorney had objected earlier, “We might have saved an awful lot of time.” Defense counsel then asked whether Clyne told Coady “about a particular case that you had where you set the taxpayer up by being very tough on the audit. * * * ” At this point the judge asked counsel to approach the bench, said the court had been very patient with him all afternoon, admonished that the tape could be used only for impeachment, and concluded “you are needlessly prolonging this cross-examination by going into all this stuff and you are not using it for the purpose of impeachment. Now, cut it out!” Impeachment was the precise enterprise in which defense counsel had been properly engaging, and to good effect. Clyne had denied ever having any trouble with Barash, ever trying to get money from him, ever saying Barash would be subjected to delays, and ever stating that Barash had cut his own throat by failing to pay an agent in the group. Quite apart from possible relevancy on the issue of intent to bribe, Clyne’s making of unsuccessful threats and his dislike of Barash were pertinent on the score of bias, and self-contradiction could properly be shown. 3 Wig-more, Evidence §§ 1021, 1022. Indeed, so far as concerns cross-examination as distinguished from extrinsic proof, impeachment as to prior inconsistent statements is proper even with respect to “collateral” matters “which the witness has testified to on direct or cross.” McCormick, Evidence § 36; 3 Wigmore, Evidence § 1023. For the defense to establish that Clyne had lied about not making threats would have an importance transcending that particular issue; the jury might well have concluded that, having lied on one subject, he had lied on all. If the judge had followed his own bent and prevented any cross-examination as to the tapes, the convictions on the twenty counts relating to Clyne would surely have to be reversed. However, due to the United States Attorney’s lack of objection, defense counsel was able to get a large amount of the recordings before the jury — enough to include the point in his summation. Under such circumstances we would normally decline to entertain a claim of erroneous exclusion of evidence in the absence of an offer of proof that would enable us to determine whether the evidence was relevant and more than cumulative. See Wigmore, Evidence § 20, at 357 n. 6; F.R.Civ.P. 43 (c); Price v. United States, 68 F.2d 133, 134-135 (5 Cir.), cert. denied, 292 U.S. 632, 54 S.Ct. 640, 78 L.Ed. 1486 (1934); Davis v. R. K. O. Radio Pictures, Inc., 191 F.2d 901, 903-904 (8 Cir. 1951). But we are not disposed to be thus insistent when an attorney who, while pursuing an appropriate line of cross-examination in a criminal trial, has been curtly commanded to “cut it out.” Moreover, the judge’s remarks on sustaining the first objection and on rebuttal, see fn. 6, in effect instructed the jury to disregard the impeaching evidence that had already been elicited. We also think the charge was in error, in two respects. Although the instruction that only a threat of death or serious bodily injury would make out the defense of duress appears correct enough, cf. D’Aquino v. United States, 192 F.2d 338, 358-359 (9 Cir.), cert. denied, 343 U.S. 935, 72 S.Ct. 772, 96 L.Ed. 1343 (1951); ALI, Model Penal Code § 2.09 (Proposed Official Draft 1962), that was only part of the story since Barash had also requested instructions as to the bearing of threats of economic harm on the intent required for conviction. This court has recently observed that “The intent to influence, accompanying the corrupt giving or accepting of something of value, is an essential element” of the offense of bribery defined in 18 U.S.C. § 201(b), United States v. Irwin, 354 F.2d 192, 197 (2 Cir. 1965), cert. denied, 383 U.S. 967, 86 S.Ct. 1272, 16 L.Ed.2d 308 (1966). We think that if a government officer threatens serious economic loss unless paid for giving a citizen his due, the latter is entitled to have the jury consider this, not as a complete defense like duress but as bearing on the specific intent required for the commission of bribery. Cf. United States v. Miller, 340 F.2d 421, 425 (4 Cir. 1965). While it is arguable that this is also true with respect to giving gratuities under 18 U.S.C. § 201(f), or to being an accessory to the receipts prohibited by 26 U.S, C. § 7214(a), offenses which have no requirement of specific intent, see United States v. Irwin, supra, 354 F.2d at 197, and carry a significantly lower punishment, we incline to the view that as to these offenses economic pressure is irrelevant. The other error also relates to the bribery counts. After correctly instructing that the Government must prove “money was offered or promised or given knowingly and wilfully with a corrupt intent to influence” the employee, and that this may be proved not only by what was said by the accused “but also from his acts and conduct and the circumstances and reasonable inferences to be drawn from them,” the judge went on to say: “It is reasonable to infer that a person ordinarily intends the natural and probable consequences of acts knowingly done. So unless the contrary appears from the evidence, you may draw an inference that the defendant intended the natural consequences which one standing in his circumstances and possessing his knowledge should reasonably have expected from any of his acts which he knowingly did.” He continued that if the jury found “circumstances of secrecy or intrigue or of the deviousness or of the use of cash or attempts to conceal the real nature of the acts or transactions,” it might consider these as bearing on the defendant’s criminal intent. Despite its ancient vintage, see Agnew v. United States, 165 U.S. 36, 53, 17 S.Ct. 235, 41 L.Ed. 624 (1897), utterance of the quoted platitude serves no useful purpose, since insofar as the statement has logical validity the jury would know it anyhow; more important, in a bribery case it creates a serious risk that the jury might think the Government’s burden of showing the required specific intent could be met by proof of payment alone “unless the contrary appears from the evidence”- — -presumably evidence the defense would have to present. Many courts of appeals' have looked askance on such an instruction in criminal trials, and some decisions have reversed because of its use, Bloch v. United States, 221 F.2d 786, 788-789 (9 Cir. 1955); Chappell v. United States, 270 F.2d 274, 279 (9 Cir. 1959); Mann v. United States, 319 F.2d 404, 407-410 (5 Cir. 1963), cert. denied, 375 U.S. 986, 84 S.Ct. 520, 11 L.Ed.2d 474 (1964). Although others have held reversal was not required when the instruction as a whole sufficiently insured against the jury’s being misled, Sherwin v. United States, 320 F.2d 137, 148-151 (9 Cir. 1963), cert, denied, 375 U.S. 964, 84 S.Ct. 481, 11 L.Ed.2d 420 (1964); Estes v. United States, 335 F.2d 609, 615-617 (5 Cir. 1964), cert. denied, 379 U.S. 964, 85 S.Ct. 656, 13 L.Ed.2d 559 (1965); United States v. Denton, 336 F.2d 785, 788 (6 Cir. 1964); United States v. Releford, 352 F.2d 36, 40 (6 Cir. 1965), cert. denied, 382 U.S. 984, 86 S.Ct. 562, 15 L.Ed.2d 562 (1966), we are not satisfied that was the case here. On the contrary, when this instruction was combined with the charge on duress and the judge’s observation that “One of the purposes of the bribery laws is to nip corruption in the bud, and citizens are obliged in such circumstances not to go along with a crime, but to complain about it to the proper authorities,” the jury could well have thought that the Government satisfied. its burden under the bribery counts by proof of payment alone. It follows that the convictions on all the bribery counts, 1-6, 8-12, 14 and 16, are subject to reversal for the last mentioned error in the charge; that the convictions on the Clyne bribery counts relating to payments after threats of serious economic harm, namely, 2, 11, 12 and 14, are further subject to reversal for failure to instruct that the jury could consider threats of this as bearing on specific intent to the extent indicated above; that the convictions on all the Clyne counts, namely, 1-6, 9, 11, 12, 14, 18, 21-26, 29, 31 and 32, are subject to reversal for erroneous restriction of cross-examination; and that the convictions on the Coady counts, 16 and 20, are subject to reversal for the erroneous admission of the statement concerning Lupescu. This leaves only two counts, 28 and 30, charging Barash with aiding and abetting DeSibio in the receipt of two payments of $25. We are dealing here with an attorney and certified public accountant of hitherto unblemished reputation, vouched for, among others, by the Surrogate of Westchester County, a Justice of the Supreme Court of New York, and the County Executive of Westchester. We are far from being certain that the restriction and deprecation of the impeachment of Clyne, the chief Government witness, and the admission of the Lupescu hearsay statement in the testimony of Coady, the undercover agent, did not have a spill-over effect on the DeSibio counts; that the jury might not have exercised its prerogative of leniency if these charges alone had been before it; or that the judge would have given the same sentence for convictions on these two aiding and abetting counts as he did for those on the twenty-six, including convictions for bribery. Applying the rule of United States v. Hines, supra, 256 F.2d 561, we think our duty to “require such further proceedings to be had as may be just under the circumstances,” 28 U.S.C. § 2106, demands a reversal and a remand for a new trial. Reversed. . So far as concerns the offense of bribery, the amendment effected by 76 Stat. 1119 (1962) was only a rewording and made no change of substance. . Specifically Barash testified that in November 1961, on the audit of the returns mentioned in counts 11 and 31, Clyne refused to loot at his substantiation, saying that unless he were paid from $100 to $200 per audit, Barash would never get a ease approved in Clyne’s group and Clyne would “louse” him up in other groups; and in the summer of 1962, Clyne said “You cut your throat in this particular group, and as far as I am concerned, you may have cut it in other groups.” . An additional claim, that a payor to an internal revenue officer cannot be an aider and abettor of the latter’s violation of 26 U.S.C. § 7214(a), is foreclosed by United States v. Kenner, 354 F.2d 780, 785 (2 Cir. 1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1223, 16 L.Ed.2d 301 (1966). On its facts the Kenner decision would also rule out a claim that the Government may not proceed against a payor both as a principal under 18 U.S.C. § 201 and as an aider and abettor of a violation of 26 U.S.C. § 7214(a). The point, however, was not raised or discussed in Kenner, and has likewise not been raised in this case. We thus have no occasion to consider whether Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961), is applicable to offenses such as those here at issue. . We therefore need not consider defendant’s further complaint as to the charge on entrapment by Coady. Although what the judge said as to burden of proof was indeed in conflict with our decisions in United States v. Sherman, 200 F.2d 880, 882-883 (2 Cir. 1952), and United States v. Pugliese, 346 F.2d 861, 862-863 (2 Cir. 1965), it is questionable whether there was any showing of inducement sufficient to raise the issue. Cf. United States v. Riley, 363 F.2d 955 (2 Cir. 1966). . “Throat” and “dollars” were preceded by an adjective that in former days would have been characterized as “unprintable.” . When Government counsel returned to the subject on redirect and asked Olyne what he meant by saying he made a “charge” with respect to a return, the judge interrupted and “sustained” his own objection, saying “I have told both of you, and I will now charge the jury— maybe I will get it home to counsel — that even if he did charge, even if he did demand the money, that would not constitute an offense as charged unless he put the defendant in serious threat of bodily injury or death. Now, that is the law. So let us have no more of this wandering all over Robinson’s barn on the business of whether he charged or whether he asked for it. That is of no moment.” Defense counsel excepted. Irrespective of whether this is “the law” the judge’s remarks improperly ignored and told the jury to ignore the testimony as impeachment. . The statute, 18 U.S.C. § 201, provides: “(b) Whoever, directly or indirectly, corruptly gives, offers or promises anything of value to any public official * * * with intent— (1) to influence any official act; or (2) to influence such public official * * * to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or (3) to induce such public official * * * to do or omit to do any act in violation of his lawful duty, * * Shall be fined not more than $20,000 or three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both. * * * ” The case put would plainly not come under subdivisions (2) or (3) and a jury could conclude that a payment solely to eliminate a roadblock to what a citizen is entitled is not to “influence” any official act. . “(f) Whoever, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly gives, offers, or promises anything of value to any public official, former public official, or person selected to be a public official, for or because of any official act performed or to be performed by such public official, former public official, or person selected to be a public official * * * Shall be fined not more than $10,000 or imprisoned for not more than two years, or both.” . Due exception to this was taken. . We may as well express our views as to one matter that will probably arise on such a trial. Clyne was allowed to state, over objection, that in August 1960 Ba-rash had arranged for him to receive ten “call-in” letters, and that he obtained the returns and related papers, assigned the audits to himself, went to Barash’s office for the audits and, after completing them, received $225. The objection was that since only three of these returns figured in the indictment — the Government having been unable to identify the others — -the prosecution had been improperly allowed to introduce evidence of other crimes. As explained in our recent opinion in United States v. Bozza, 365 F.2d 206, 212-214 (1966), the rule applied on this subject in the federal courts does not require any such artificial truncation of a single piece of evidence. Question: What is the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number. Answer:
sc_adminaction_is	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. OHRALIK v. OHIO STATE BAR ASSN. No. 76-1650. Argued January 16, 1978 Decided May 30, 1978 Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Stewaet, White, Blackmun, and SteveNS, JJ., joined. Marshall, J., filed an opinion concurring in part and concurring in the judgment, post, p. 468. RehNQUIST, J., filed a statement concurring in the judgment, post, p. 477. BreNNAN, J., took no part in the consideration or decision of the ease. Eugene Gressman argued the cause and filed briefs for appellant. John R. Welch argued the cause for appellee. With him on the brief were Albert L. Bell, Edward N. Heiser, and Thomas E. Palmer. William B. Spann, Jr,, and H. Blair White filed a brief for the American Bar Assn, as amicus curiae urging affirmance. Girardeau A. Spann and Alan B. Morrison filed a brief for Public Citizen et al. as amici curiae. Mr. Justice Powell delivered the opinion of the Court. In Bates v. State Bar of Arizona, 433 U. S. 350 (1977), this Court held that truthful advertising of “routine” legal services is protected by the First and Fourteenth Amendments against blanket prohibition by a State. The Court expressly reserved the question of the permissible scope of regulation of “in-person solicitation of clients — at the hospital room or the accident site, or in any other situation that breeds undue influence — by attorneys or their agents or 'runners.’ ” Id., at 366. Today we answer part of the question so reserved, and hold that the State — or the Bar acting with state authorization- — constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent. I Appellant, a member of the Ohio Bar, lives in Montville, Ohio. Until recently he practiced law in Montville and Cleveland. On February 13, 1974, while picking up his mail at the Montville Post Office, appellant learned from the postmaster’s brother about an automobile accident that had taken place on February 2 in which Carol McClintock, a young woman with whom appellant was casually acquainted, had been injured. Appellant made a telephone call to Ms. McClintock’s parents, who informed him that their daughter was in the hospital. Appellant suggested that he might visit Carol in the hospital. Mrs. McClintock assented to the idea, but requested that appellant first stop by at her home. During appellant’s visit with the McClintocks, they explained that their daughter had been driving the family automobile on a local road when she was hit by an uninsured motorist. Both Carol and her passenger, Wanda Lou Holbert, were injured and hospitalized. In response to the McClintocks’ expression of apprehension that they might be sued by Holbert, appellant explained that Ohio’s guest statute would preclude such a suit. When appellant suggested to the McClintocks that they hire a lawyer, Mrs. McClintock retorted that such a decision would be up to Carol, who was 18 years old and would be the beneficiary of a successful claim. Appellant proceeded to the hospital, where he found Carol lying in traction in her room. After a brief conversation about her condition, appellant told Carol he would represent her and asked her to sign an agreement. Carol said she would have to discuss the matter with her parents. She did not sign the agreement, but asked appellant to have her parents come to see her. Appellant also attempted to see Wanda Lou Holbert, but learned that she had just been released from the hospital. App. 98a. He then departed for another visit with the McClintocks. On his way appellant detoured to the scene of the accident, where he took a set of photographs. He also picked up a tape recorder, which he concealed under his raincoat before arriving at the McClintocks’ residence. Once there, he re-examined their automobile insurance policy, discussed with them the law applicable to passengers, and explained the consequences of the fact that the driver who struck Carol’s car was an uninsured motorist. Appellant discovered that the McClintocks’ insurance policy would provide benefits of up to $12,500 each for Carol and Wanda Lou under an uninsured-motorist clause. Mrs. McClintock acknowledged that both Carol and Wanda Lou could sue for their injuries, but recounted to appellant that “Wanda swore up and down she would not do it.” Ibid. The McClintocks also told appellant that Carol had phoned to say that appellant could “go ahead” with her representation. Two days later appellant returned to Carol’s hospital room to have her sign a contract, which provided that he would receive one-third of her recovery. In the meantime, appellant obtained Wanda Lou’s name and address from the McClintocks after telling them he wanted to ask her some questions about the accident. He then visited Wanda Lou at her home, without having been invited. He again concealed his tape recorder and recorded most of the conversation with Wanda Lou. After a brief, unproductive inquiry about the facts of the accident, appellant told Wanda Lou that he was representing Carol and that he had a "little tip” for Wanda Lou: the McClintocks’ insurance policy contained an uninsured-motorist clause which might provide her with a recovery of up to $12,500. The young woman, who was 18 years of age and not a high school graduate at the time, replied to appellant’s query about whether she was going to file a claim by stating that she really did not understand what was going on. Appellant offered to represent her, also, for a contingent fee of one-third of any recovery, and Wanda Lou stated "O. K” Wanda’s mother attempted to repudiate her daughter’s oral assent the following day, when appellant called on the telephone to speak to Wanda. Mrs. Holbert informed appellant that she and her daughter did not want to sue anyone or to have appellant represent them, and that if they decided to sue they would consult their own lawyer. Appellant insisted that Wanda had entered into a binding agreement. A month later Wanda confirmed in writing that she wanted neither to sue nor to be represented by appellant. She requested that appellant notify the insurance company that he was not her lawyer, as the company would not release a check to her until he did so. Carol also eventually discharged appellant. Although another lawyer represented her in concluding a settlement with the insurance company, she paid appellant one-third of her recovery in settlement of his lawsuit against her for breach of contract. Both Carol McClintock and Wanda Lou Holbert filed complaints against appellant with the Grievance Committee of the Geauga County Bar Association. The County Bar Association referred the grievance to appellee, which filed a formal complaint with the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio. After a hearing, the Board found that appellant had violated Disciplinary Rules (DR) 2-103 (A) and 2-104 (A) of the Ohio Code of Professional Responsibility. The Board rejected appellant's defense that his conduct was protected under the First and Fourteenth Amendments. The Supreme Court of Ohio adopted the findings of the Board, reiterated that appellant’s conduct was not constitutionally protected, and increased the sanction of a public reprimand recommended by the Board to indefinite suspension. The decision in Bates was handed down after the conclusion of proceedings in the Ohio Supreme Court. We noted probable jurisdiction in this case to consider the scope of protection of a form of commercial speech, and an aspect of the State’s authority to regulate and discipline members of the bar, not considered in Bates. 434 U. S. 814 (1977). We now affirm the judgment of the Supreme Court of Ohio. II The solicitation of business by a lawyer through direct, in-person communication with the prospective client has long been viewed as inconsistent with the profession’s ideal of the attorney-client relationship and as posing a significant potential for harm to the prospective client. It has been proscribed by the organized Bar for many years. Last Term the Court ruled that the justifications for prohibiting truthful, “restrained” advertising concerning “the availability and terms of routine legal services” are insufficient to override society’s interest, safeguarded by the First and Fourteenth Amendments, in assuring the free flow of commercial information. Bates, 433 U. S., at 384; see Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748 (1976). The balance struck in Bates does not predetermine the outcome in this case. The entitlement of in-person solicitation of clients to the protection of the First Amendment differs from that of the kind of advertising approved in Bates, as does the strength of the State's countervailing interest in prohibition. A Appellant contends that his solicitation of the two young women as clients is indistinguishable, for purposes of constitutional analysis, from the advertisement in Bates. Like that advertisement, his meetings with the prospective clients apprised them of their legal rights and of the availability of a lawyer to pursue their claims. According to appellant, such conduct is “presumptively an exercise of his free speech rights” which cannot be curtailed in the absence of proof that it actually caused a specific harm that the State has a compelling interest in preventing. Brief for Appellant 39. But in-person solicitation of professional employment by a lawyer does not stand on a par with truthful advertising about the availability and terms of routine legal services, let alone with forms of speech more traditionally within the concern of the First Amendment. Expression concerning purely commercial transactions has come within the ambit of the Amendment’s protection only recently. In rejecting the notion that such speech “is wholly outside the protection of the First Amendment,” Virginia Pharmacy, supra, at 761, we were careful not to hold “that it is wholly undifferentiable from other forms” of speech. 425 U. S., at 771 n. 24. We have not discarded the “commonsense” distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech. Ibid. To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment’s guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, we instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression. Moreover, “it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 602 (1949). Numerous examples could be cited of communications that are regulated without offending the First Amendment, such as the exchange of information about securities, SEC v. Texas Gulf Sulphur Co., 401 F. 2d 833 (CA2 1968), cert. denied, 394 U. S. 976 (1969), corporate proxy statements, Mills v. Electric Auto-Lite Co., 396 U. S. 375 (1970), the exchange of price and production information among competitors, American Column & Lumber Co. v. United States, 257 U. S. 377 (1921), and employers’ threats of retaliation for the labor activities of employees, NLRB v. Gissel Packing Co., 395 U. S. 575, 618 (1969). See Paris Adult Theatre I v. Slaton, 413 U. S. 49, 61-62 (1973). Each of these examples illustrates that the State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity. Neither Virginia Pharmacy nor Bates purported to cast doubt on the permissibility of these kinds of commercial regulation. In-person solicitation by a lawyer of remunerative employment is a business transaction in which speech is an essential but subordinate component. While this does not remove the speech from the protection of the First Amendment, as was held in Bates and Virginia Pharmacy, it lowers the level of appropriate judicial scrutiny. As applied in this case, the Disciplinary Rules are said to have limited the communication of two kinds of information. First, appellant’s solicitation imparted to Carol McClintock and Wanda Lou Holbert certain information about his availability and the terms of his proposed legal services. In this respect, in-person solicitation serves much the same function as the advertisement at issue in Bates. But there are significant differences as well. Unlike a public advertisement, which simply provides information and leaves the recipient free to act upon it or not, in-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection. The aim and effect of in-person solicitation may be to provide a one-sided presentation and to encourage speedy and perhaps uninformed decisionmaking; there is no opportunity for intervention or counter-education by agencies of the Bar, supervisory authorities, or persons close to the solicited individual. The admonition that “the fitting remedy for evil counsels is good ones” is of little value when the circumstances provide no opportunity for any remedy at all. In-person solicitation is as likely as not to discourage persons needing counsel from engaging in a critical comparison of the “availability, nature, and prices” of legal services, cf. Bates, 433 U. S., at 364; it actually may disserve the individual and societal interest, identified in Bates, in facilitating “informed and reliable decisionmaking.” Ibid. It also is argued that in-person solicitation may provide the solicited individual with information about his or her legal rights and remedies. In this case, appellant gave Wanda Lou a “tip” about the prospect of recovery based on the uninsured-motorist clause in the McClintocks’ insurance policy, and he explained that clause and Ohio’s guest statute to Carol McClintock’s parents. But neither of the Disciplinary Rules here at issue prohibited appellant from communicating information to these young women about their legal rights and the prospects of obtaining a monetary recovery, or from recommending that they obtain counsel. DR 2-104 (A) merely prohibited him from using the information as bait with which to obtain an agreement to represent them for a fee. The Rule does not prohibit a lawyer from giving unsolicited legal advice ; it proscribes the acceptance of employment resulting from such advice. Appellant does not contend, and on the facts of this case could not contend, that his approaches to the two young women involved political expression or an exercise of associational freedom, “employ [ing] constitutionally privileged means of expression to secure constitutionally guaranteed civil rights.” NAACP v. Button, 371 U. S. 415, 442 (1963); see In re Primus, ante, p. 412. Nor can he compare his solicitation to the mutual assistance in asserting legal rights that was at issue in United Transportation Union v. Michigan Bar, 401 U. S. 576 (1971); Mine Workers v. Illinois Bar Assn., 389 U. S. 217 (1967); and Railroad Trainmen v. Virginia Bar, 377 U. S. 1 (1964). A lawyer’s procurement of remunerative employment is a subject only marginally affected with First Amendment concerns. It falls within the State’s proper sphere of economic and professional regulation. See Button, supra, at 439-443. While entitled to some constitutional protection, appellant’s conduct is subject to regulation in furtherance of important state interests. B The state interests implicated in this case are particularly strong. In addition to its general interest in protecting consumers and regulating commercial transactions, the State bears a special responsibility for maintaining standards among members of the licensed professions. See Williamson v. Lee Optical Co., 348 U. S. 483 (1955); Semler v. Oregon State Bd. of Dental Examiners, 294 U. S. 608 (1935). “The interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been ^officers of the courts.’ ” Goldfarb v. Virginia State Bar, 421 U. S. 773, 792 (1975). While lawyers act in part as “self-employed businessmen,” they also act “as trusted agents of their clients, and as assistants to the court in search of a just solution to disputes.” Cohen v. Hurley, 366 U. S. 117, 124 (1961). As is true with respect to advertising, see Bates, supra, at 371, it appears that the ban on solicitation by lawyers originated as a rule of professional etiquette rather than as a strictly ethical rule. See H. Drinker, Legal Ethics 210-211, and n. 3 (1953). “[T]he rules are based in part on deeply ingrained feelings of tradition, honor and service. Lawyers have for centuries emphasized that the promotion of justice, rather than the earning of fees, is the goal of the profession.” Comment, A Critical Analysis of Rules Against Solicitation by Lawyers, 25 IT. Chi. L. Rev. 674 (1958) (footnote omitted). But the fact that the original motivation behind the ban on solicitation today might be considered an insufficient justification for its perpetuation does not detract from the force of the other interests the ban continues to serve. Cf. McGowan v. Maryland, 366 U. S. 420, 431, 433-435, 444 (1961). While the Court in Bates determined that truthful, restrained advertising of the prices of “routine” legal services would not have an adverse effect on the professionalism of lawyers, this was only because it found “the postulated connection between advertising and the erosion of true professionalism to be severely strained.” 433 U. S., at 368 (emphasis supplied). The Bates Court did not question a State’s interest in maintaining high standards among licensed professionals. Indeed, to the extent that the ethical standards of lawyers are linked to the service and protection of clients, they do further the goals of “true professionalism.” The substantive evils of solicitation have been stated over the years in sweeping terms: stirring up litigation, assertion of fraudulent claims, debasing the legal profession, and potential harm to the solicited client in the form of overreaching, overcharging, underrepresentation, and misrepresentation. The American Bar Association, as amicus curiae, defends the rule against solicitation primarily on three broad grounds: It is said that the prohibitions embodied in DR 2-103 (A) and 2-104 (A) serve to reduce the likelihood of overreaching and the exertion of undue influence on lay persons, to protect the privacy of individuals, and to avoid situations where the lawyer’s exercise of judgment on behalf of the client will be clouded by his own pecuniary self-interest. We need not discuss or evaluate each of these interests in detail as appellant has conceded that the State has a legitimate and indeed “compelling” interest in preventing those aspects of solicitation that involve fraud, undue influence, intimidation, overreaching, and other forms of “vexatious conduct.” Brief for Appellant 25. We agree that protection of the public from these aspects of solicitation is a legitimate and important state interest. Ill Appellant’s concession that strong state interests justify regulation to prevent the evils he enumerates would end this case but for his insistence that none of those evils was found to be present in his acts of solicitation. He challenges what he characterizes as the “indiscriminate application” of the Rules to him and thus attacks the validity of DR 2-103 (A) and DR 2-104 (A) not facially, but as applied to his acts of solicitation. And because no allegations or findings were made of the specific wrongs appellant concedes would justify disciplinary action, appellant terms his solicitation “pure,” meaning “soliciting and obtaining agreements from Carol McClintock and Wanda Lou Holbert to represent each of them,” without more. Appellant therefore argues that we must decide whether a State may discipline him for solicitation per se without offending the First and Fourteenth Amendments. We agree that the appropriate focus is on appellant’s conduct. And, as appellant urges, we must undertake an independent review of the record to determine whether that conduct was constitutionally protected. Edwards v. South Carolina, 372 U. S. 229, 235 (1963). But appellant errs in assuming that the constitutional validity of the judgment below depends on proof that his conduct constituted actual overreaching or inflicted some specific injury on Wanda Holbert or Carol McClintock. His assumption flows from the premise that nothing less than actual proved harm to the solicited individual would be a sufficiently important state interest to justify disciplining the attorney who solicits employment in person for pecuniary gain. Appellant’s argument misconceives the nature of the State’s interest. The Rules prohibiting solicitation are prophylactic measures whose objective is the prevention of harm before it occurs. The Rules were applied in this case to discipline a lawyer for soliciting employment for pecuniary gain under circumstances likely to result in the adverse consequences the State seeks to avert. In such a situation, which is inherently conducive to overreaching and other forms of misconduct, the State has a strong interest in adopting and enforcing rules of conduct designed to protect the public from harmful solicitation by lawyers whom it has licensed. The State’s perception of the potential for harm in circumstances such as those presented in this case is well founded. The detrimental aspects of face-to-face selling even of ordinary consumer products have been recognized and addressed by the Federal Trade Commission, and it hardly need be said that the potential for overreaching is significantly greater when a lawyer, a professional trained in the art of persuasion, personally solicits an unsophisticated, injured, or distressed lay person. Such an individual may place his trust in a lawyer, regardless of the latter’s qualifications or the individual’s actual need for legal representation, simply in response to persuasion under circumstances conducive to uninformed acquiescence. Although it is argued that personal solicitation is valuable because it may apprise a victim of misfortune of his legal rights, the very plight of that person not only makes him more vulnerable to influence but also may make advice all the more intrusive. Thus, under these adverse conditions the overtures of an uninvited lawyer may distress the solicited individual simply because of their obtrusiveness and the invasion of the individual’s privacy, even when no other harm materializes; Under such circumstances, it is not unreasonable for the State to presume that in-person solicitation by-lawyers more often than not will be injurious to the person solicited. The efficacy of the State’s effort to prevent such harm to prospective clients would be substantially diminished if, having proved a solicitation in circumstances like those of this case, the State were required in addition to prove actual injury. Unlike the advertising in Bates, in-person solicitation is not visible or otherwise open to public scrutiny. Often there is no witness other than the lawyer and the lay person whom he has solicited, rendering it difficult or impossible to obtain reliable proof of what actually took place. This would be especially true if the lay person were so distressed at the time of the solicitation that he could not recall specific details at a later date. If appellant’s view were sustained, in-person solicitation would be virtually immune to effective oversight and regulation by the State or by the legal profession, in contravention of the State’s strong interest in regulating members of the Bar in an effective, objective, and self-enforcing manner. It therefore is not unreasonable, or violative of the Constitution, for a State to respond with what in effect is a prophylactic rule. On the basis of the undisputed facts of record, we conclude that the Disciplinary Rules constitutionally could be applied to appellant. He approached two young accident victims at a time when they were especially incapable of making informed judgments or of assessing and protecting their own interests. He solicited Carol McClintock in a hospital room where she lay in traction and sought out Wanda Lou Holbert on the day she came home from the hospital, knowing from his prior inquiries that she had just been released. Appellant urged his services upon the young women and used the information he had obtained from the McClintocks, and the fact of his agreement with Carol, to induce Wanda to say “O. K.” in response to his solicitation. He employed a concealed tape recorder, seemingly to insure that he would have evidence of Wanda’s oral assent to the representation. He emphasized that his fee would come out of the recovery, thereby tempting the young women with what sounded like a cost-free and therefore irresistible offer. He refused to withdraw when Mrs. Holbert requested him to do so only a day after the initial meeting between appellant and Wanda Lou and continued to represent himself to the insurance company as Wanda Holbert’s lawyer. The court below did not hold that these or other facts were proof of actual harm to Wanda Holbert or Carol McClintock but rested on the conclusion that appellant had engaged in the general misconduct proscribed by the Disciplinary Rules. Under our view of the State’s interest in averting harm by prohibiting solicitation in circumstances where it is likely to occur, the absence of explicit proof or findings of harm or injury is immaterial. The facts in this case present a striking example of the potential for overreaching that is inherent in a lawyer’s in-person solicitation of professional employment. They also demonstrate the need for prophylactic regulation in furtherance of the State’s interest in protecting the lay public. We hold that the application of DR 2-103 (A) and 2-104 (A) to appellant does not offend the Constitution. Accordingly, the judgment of the Supreme Court of Ohio is Affirmed. Mr. Justice Brennan took no part in the consideration or decision of this case. Carol also mentioned that one of the hospital administrators was urging a lawyer upon her. According to his own testimony, appellant replied: “Yes, this certainly is a case that would entice a lawyer. That would interest him a great deal.” App. 53a. Despite the fact that appellant maintains that he did not secure an agreement to represent Carol while he was at the hospital, he waited for an opportunity when no visitors were present and then took photographs of Carol in traction. Id., at 129a. Appellant maintains that the tape is a complete reproduction of everything that was said at the Holbert home. Wanda Lou testified that the tape does not contain appellant’s introductory remarks to her about his identity as a lawyer, his agreement to represent Carol McClintock, and his availability and willingness to represent Wanda Lou as well. Id., at 19a-21a. Appellant disputed Wanda Lou’s testimony but agreed that he did not activate the recorder until he had been admitted to the Holbert home and was seated in the living room with Wanda Lou. Id., at 58a. Appellant told Wanda that she should indicate assent by stating “O. K.,” which she did. Appellant later testified: “I would say that most of my clients have essentially that much of a communication. ... I think most of my clients, that’s the way I practice law.” Id., at 81a. In explaining the contingent-fee arrangement, appellant told Wanda Lou that his representation would not “cost [her] anything” because she would receive two-thirds of the recovery if appellant were successful in representing her but would not “have to pay [him] anything” otherwise. Id., at 120a, 125a. The insurance company was willing to pay Wanda Lou for her injuries but would not release the check while appellant claimed, and Wanda Lou denied, that he represented her. Before appellant would “disavow further interest and claim” in Wanda Lou’s recovery, he insisted by letter that she first pay him the sum of $2,466.66, which represented one-third of his “conservative” estimate of the worth of her claim. Id., at 26a-27a. Carol recovered the full $12,500 and paid appellant $4,166.66. She testified that she paid the second lawyer $900 as compensation for his services. Id., at 38a, 42a. Appellant represented to the Board of Commissioners at the disciplinary hearing that he would abandon his claim against Wanda Lou Holbert because “the rules say that if a contract has its origin in a controversy, that an ethical question can arise.” Tr. 256. Yet in fact appellant filed suit against Wanda for $2,466.66 after the disciplinary hearing. Ohralik v. Holbert, Case No. 76-CV-F-66 (Chardon Mun. Ct., Geauga County, Ohio, filed Feb. 2, 1976). Appellant’s suit was dismissed with prejudice on January 27, 1977, after the decision of the Supreme Court of Ohio had been filed. The Board of Commissioners is an agent of the Supreme Court of Ohio. Counsel for appellee stated at oral argument that the Board has “no connection with the Ohio State Bar Association whatsoever.” Tr. of Oral Arg. 24. The Ohio Code of Professional Responsibility is promulgated by the Supreme Court of Ohio. The Rules under which appellant was disciplined are modeled on the same-numbered rules in the Code of Professional Responsibility of the American Bar Association. DR 2-103 (A) of the ABA Code has since been amended so as not to proscribe forms of public advertising that would be permitted, after Bates, under amended DR 2-101 (B). DR 2-103 (A) of the Ohio Code (1970) provides: “A lawyer shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer.” DR 2-104 (A) (1970) provides in relevant part: “A lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice, except that: “(1) A lawyer may accept employment by a close friend, relative, former client (if the advice is germane to the former employment), or one whom the lawyer reasonably believes to be a client.” The Board found that Carol and Wanda Lou “were, if anything, casual acquaintances” of appellant; that appellant initiated the contact with Carol and obtained her consent to handle her claim; that he advised Wanda Lou that he represented Carol, had a “tip” for Wanda, and was prepared to represent her, too. The Board also found that appellant would not abide by Mrs. Holbert’s request to leave Wanda alone, that both young women attempted to discharge appellant, and that appellant sued Carol McClintock. An informal ban on solicitation, like that on advertising, historically was linked to the goals of preventing barratry, champerty, and maintenance. See Note, Advertising, Solicitation and the Profession’s Duty to Make Legal Counsel Available, 81 Yale L. J. 1181, 1181-1182, and n. 6 (1972). “The first Code of Professional Ethics in the United States was that formulated and adopted by the Alabama State Bar Association in 1887.” H. Drinker, Legal Ethics 23 (1953). The “more stringent prohibitions which form the basis of the current rules” were adopted by the American Bar Association in 1908. Note, 81 Yale L. J., supra, at 1182; see Drinker, supra, at 215. The present Code of Professional Responsibility, containing DR 2-103 (A) and 2-104 (A), was adopted by the American Bar Association in 1969 after more than four years of study by a special committee of the Association. It is a complete revision of the 1908 Canons, although many of its provisions proscribe conduct traditionally deemed unprofessional and detrimental to the public. See Valentine v. Chrestensen, 316 U. S. 52 (1942); Pittsburgh Press Co. v. Human Relations Comm’n, 413 U. S. 376 (1973); Bigelow v. Virginia, 421 U. S. 809 (1975); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748 (1976). The immediacy of a particular communication and the imminence of harm are factors that have made certain communications less protected than others. Compare Cohen v. California, 403 U. S. 15 (1971), with Chaplinsky v. New Hampshire, 315 U. S. 568 (1942); see Brandenburg v. Ohio, 395 U. S. 444 (1969); Schenck v. United States, 249 U. S. 47 (1919). Whitney v. California, 274 U. S. 357, 375 (1927) (Brandeis, J., concurring). We do not minimize the importance of providing low- and middle-income individuals with adequate information about the availability of legal services. The Bar is aware of this need and innovative measures are being implemented, see Bates, 433 U. S., at 398-399 (opinion of Powell, J.). In addition, the advertising permitted under Bates will provide a further source of such information. In Railroad Trainmen v. Virginia Bar, the Court highlighted, the difference between permissible regulation of lawyers and regulation that impinges on the associational rights of union members: “Here what Virginia has sought to halt is not a commercialization of the legal profession which might threaten the moral and ethical fabric of the administration of justice. It is not ‘ambulance chasing.’ ” 377 U. S., at 6. The Court implicitly approved of the State’s regulation of conduct characterized colloquially as “ambulance chasing.” See generally Cohen v. Hurley, 366 U. S. 117 (1961); Note, 30 N. Y. U. L. Rev. 182 (1955). Indeed, in ruling that the railroad workers had a constitutional right “to gather together for the lawful purpose of helping and advising one another” in asserting federal statutory rights, 377 U. S., at 5, the Court adverted to the kind of problem with which Ohio is concerned in prohibiting solicitation: “Injured workers or their families often fell prey on the one hand to persuasive claims adjusters eager to gain a quick and cheap settlement for their railroad employers, or on the other to lawyers either not competent to try these lawsuits against the able and experienced railroad counsel or too willing to settle a case for a quick dollar.” Id., at 3-4. In recognizing the importance of the State’s interest in regulating solicitation of paying clients by lawyers, we are not unmindful of the problem of the related practice, described in Railroad Trainmen, of the solicitation of releases of liability by claims agents or adjusters of prospective defendants or their insurers. Such solicitations frequently occur prior to the employment of counsel by the injured person and during circumstances posing many of the dangers of overreaching we address in this case. Where lay agents or adjusters are involved, these practices for the most part fall outside the scope of regulation by the organized Bar; but releases or settlements so obtained are viewed critically by the courts. See, e. g., Florkiewicz v. Gonzalez, 38 Ill. App. 3d 115, 347 N. E. 2d 401 (1976); Cady v. Mitchell, 208 Pa. Super. 16, 220 A. 2d 37 Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_appel1_1_3	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. MANNION et al. v. PENN. (Court of Appeals of District of Columbia. Submitted March 12, 1925. Decided April 6, 1925. Petition for Rehearing Denied April 18, 1925.) No. 1734. 1. Patents <§=>II2(I) — Junior parties in interference proceeding can deríve no benefit from fact that patent has been inadvertently issued to them pending senior party’s application. Junior parties in interference proceeding can derive no benefit from fact that patent has been inadvertently issued to them pending senior party’s application. 2. Patents <§=>91 (4)— Diligence of junior parties in interference proceeding in perfecting invention, entitling them to priority, held not shown. In interference proceeding, involving priority of patent consisting of plug of resilient material, designed to clean condenser tubes, evidence showing early experimentation by junior parties held not to show diligence in perfecting invention, entitling them to priority. Appeal from Commissioner of Patents. Interference proceeding involving priority of invention between Marion Penn, senior party, and Martin Mannion and Robert C. Arthur, junior parties. Prom a decision granting priority to the senior party, the junior parties appeal. Affirmed. J. E. Edson and W. L. Symons, both of Washington, D. C., for appellants. W. R. Kennedy, of New York City, for appellee. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. VAN ORSDEL, Associate Justice. The junior parties, Mannion and Arthur, appeal from the decision of the Commissioner of Patents awarding priority of invention to appellee, Penn. The invention set out in the claims of the issue is described in the opinion of the Commissioner as follows: “The invention relates to a plug designed to be forced by water or compressed air through condenser tubes for the purpose of cleaning the same. The plug in shape resembles a spool. Its flanged end portions act as wipers which wipe the sediment from the inner surface of the tube and expel it from the end thereof as the plug is forced through the tube.” Some of the counts state that the plug is made of resilient material, some that the intermediate portion is grooved, some that the intermediate portion tapers towards the flanges, and some that the flanged end portions have a greater diameter than the intemiediate portions. Mannion and Arthur filed their application July 1, 1921; Penn filed March 28, 1921. A patent inadvertently was issued to Mannion and Arthur during the pendency of Penn’s application. The burden of proof, therefore, rests upon Mannion and Arthur, the junior parties, since they can derive no benefit from the fact that they are patentees. Mannion and Arthur rely chiefly upon the making and testing of plugs made of wood with disks nailed to the ends. These plugs, it appears, were used to clean tubes of a condenser in 1918. The wooden plugs, however, proved practically worthless, since they would split in the operation. The counts of the issue, however, have little, if any, reference to the wooden plugs, but are limited to either an elastic plug or a plug with the intermediate portion between the flanges grooved. Mannion and Arthur produced evidence to the effect that, at the time the wooden leather plugs were tested, they had in contemplation a plug composed of rubber. The tribunals below held that, even assuming this testimony to be correct, Mannion and Arthur had not been diligent in perf ecting the invention, and could not claim a reduction to practice prior to their filing date. That they were lacking in diligence in this particular when Penn came into the field, is indubitably established. In this view of the case, the concurring decisions of the tribunals of the Patent Office, awarding priority to Penn, are correct. The decision of the Commissioner of Patents is affirmed. Question: 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_casetyp1_7-3-5	D	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - misc economic regulation and benefits". CINCINNATI GAS & ELECTRIC CO., Columbus & Southern Ohio Electric Co., Dayton Power & Light Co., Ohio Edison Co., Ohio Power Co., Shell Oil Co., Austin Powder Co., E. I. du Pont de Nemours & Co., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY and Douglas M. Costle, Administrator of the Environmental Protection Agency, Respondents. Nos. 76-2090, 77-1367, 76-2232, 77-1361, 76-2241, 77-1357, and 76-2278. United States Court of Appeals, Sixth Circuit. Argued Oct. 21, 1977. Decided June 29, 1978. See also, 6 Cir., 578 F.2d 666. Louis E. Tosí, C. Randolph Light, Fuller, Henry, Hodge & Snyder, Toledo, Ohio, Daniel W. Kemp, Cincinnati, Ohio, for Cincinnati Gas & Elec. Co., Shell Oil Co., et al. James Van Carson, Squire, Sanders & Dempsey, Cleveland, Ohio, for Austin Powder Co. Carl B. Everett, Legal Dept., E. I. du Pont de Nemours & Co., Wilmington, Del., for E. I. du Pont de Nemours & Co. Ronald C. Hausmann, E.P.A., Paul M. Kaplow, Dept, of Justice, Washington, D. C., Mary Ann Muirhead, Region V, E.P.A., Chicago., 111., Ned Williams, Director, Ohio E.P.A., Columbus, Ohio, for respondents. Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges. EDWARDS, Circuit Judge. This opinion deals with certain additional issues presented in 23 industry petitions covering 32 major power and industrial companies in Ohio objecting to the United States EPA’s plan for control of SO2 pollution in Ohio. These additional issues concern only point sources of SO2 pollution in Ohio’s rural areas or areas with complex terrain. This opinion should be read as supplementary to the opinion of this court dated February 13,1978, Cleveland Electric Illuminating Co., et al. v. Environmental Protection Agency, et al., 572 F.2d 1150 (6th Cir. 1978). Our focus herein is upon the following petitioners and the designated facilities belonging to them. These petitioners protest certain features of the United States EPA model (MAXT-24) employed for predicting plant pollution in rural and complex terrain areas: Nos. 76-2090, 77-1367: Cincinnati Gas & Electric Co., all facilities (Hamilton & Clermont Counties). Columbus & Southern Ohio Electric Co., all facilities (Athens, Coshocton, Picka-way Counties). Dayton Power & Light Co., all facilities not covered by opinion dated February 13, 1978 (Adams County). Ohio Edison Co. (Jefferson County) Sam-mis Plant only. Ohio Power Co., all facilities (Washington and Morgan Counties). No. 76-2278: E. I. du Pont de Nemours & Co., all facilities (Hamilton County). Nos. 76-2232, 77-1361: Shell Oil Co., all facilities (Washington County). Nos. 76-2241, 77-1357: Austin Powder Co., all facilities (Vinton County). The MAXT-24 model (Second Maximum 24-Hour Dispersion Model with Terrain Adjustments) is designed for use in predicting SO2 pollution resulting from single sources located in rural areas; Unlike the RAM model employed in urban areas, which we dealt with in Cleveland Electric Illuminating Co., supra, MAXT-24 does not provide estimates of comparative contributions to total SO2 pollution from a number of point sources. The MAXT-24 model treats each point source as an isolated problem, and only general background SO2 pollution data are added into the formula. In other respects the MAXT-24 model strongly resembles the RAM model. Thus, like RAM, MAXT-24 starts with a solid ascertainable data base, namely, the established design capacity of the power or steam generating plants in question related to the sulfur content of the fuel used by such plants. Emissions data are developed from these factors. Subsequently, stack height, wind, weather, and terrain data are added. Like RAM, MAXT-24 employs a Gaussian plume formula and assumes vertical and horizontal dispersion of the pollution plume. It employs the Pasquill-Gifford stability classifications and coefficients. Like RAM, the MAXT-24 model was designed by United States EPA largely as a result of industry criticism of the use of rollback modeling. As was true in relation to the RAM results, the results of use of MAXT-24 were generally less strict than those contemplated by the 1972 and 1974 Ohio EPA SO2 regulations. Indeed, the comments this court made in Cleveland Electric Illuminating Co., supra, in Section 3 of the opinion are largely applicable to EPA’s adoption of MAXT-24 and we cite and rely on said Section 3 in holding that in general (and with one exception noted below) the EPA’s adoption and use of the MAXT-24 model is not arbitrary or capricious and, like the use of the RAM model, must be affirmed by this court. Despite the discussion above, we are not certain that any of the petitions we deal with in this opinion seriously disputes the general validity of the MAXT-24 model. What these petitioners clearly do contend is that the MAXT-24 model results are badly skewed to their great economic disadvantage by 1) the Class A assumption employed to estimate pollution dispersion in the least stable wind condition, and 2) the failure of EPA to employ the half ground displacement theory in estimating pollution impact on hilly terrain. I THE CLASS A ASSUMPTION ISSUE The MAXT-24 model makes use of a set of six coefficients for determining plume dispersal. The classes of coefficients employed were based upon six different weather conditions. The term Class A is employed to describe both the least stable weather condition and the set of assumptions which is based on the most direct and quickest impact of the pollution plume upon ground level with the least prior dispersal. The six Pasquill-Gifford coefficients employed in MAXT-24 are derived from a Nebraska study made in the 1950’s and are referred to by United States EPA as “time-tested.” What this defense appears to ignore, however, is that petitioners in this instance (contrary to the general attack upon the six coefficients employed in RAM) are not objecting to the use of the coefficients; they are attacking the accuracy of one set of them — the Class A set associated with “gusty winds.” Specifically they claim that the Class A assumption is fallacious in that it assumes a longer period of downward draft than occurs in fact and fails to make allowance for the lateral dispersal which would accompany such a vertical wind at the point of impact. The lead brief for the utilities presents the case thus: In all modeling of rural power plants, EPA utilized dispersion coefficients under Class A stability conditions which have no support in data, which have been repudiated by most modelers and which are demonstrated inaccurate by this record. As applied to this rulemaking, this seemingly simple assumption is exceedingly important because, for almost Vs of the power plants in Ohio, it was the determining factor in establishing emission limits. The meaning of “Class A. ” Diffusion models can account for thousands of bits of data. Most important are meteorological data of which stability classes are an aspect. Specifically, stability classes are categorizations of the atmosphere’s ability to disperse plumes. These classes are divided into six categories ranging from extreme dispersion of plumes (Class A) to minimum dispersion (Class F). Under Class A, a plume is assumed to disperse very rapidly to the ground level before there is any substantial dilution. This, in turn, leads to predictions of high ground level concentrations. The fundamental issue, therefore, is whether the Class A assumption describes the manner in which plumes disperse at rural power plants and whether the phenomena it depicts really occur. Brief of Utility Petitioners at 31-32 (emphasis in original). Petitioners then detail the results of three separate studies which they claim attack and undermine the validity of the Class A coefficients, and generally urge substitution of Class B coefficients. These studies are the privately financed study by Enviroplan, Inc., a similarly produced study by Smith-Singer Meteorologists, and a strongly critical report resulting from the Specialists’ Conference of February 22-24, 1977, sponsored by United States EPA itself through the Argonne National Laboratory. To this argument the EPA’s response is as follows: EPA properly determined that the “Class A” stability factors should continue to be used until new field data proved them incorrect. Petitioners argue that EPA should have changed the dispersion coefficients used in the rural MAX (CRSTER) model for analyzing ground level concentrations caused by a source in very unstable weather, known as “Class A” conditions. In the remand comment period, the utility petitioners presented various theories that the model did not accurately reflect the way wind patterns in such weather conditions affect dispersion patterns and that therefore the model might be overestimating ground level concentrations for a 3-hour analysis. Petitioners argue that it was arbitrary or capricious for EPA not to accept theories presented in their comments. EPA recognized in the STSD [Supplemental Technical Support Document] at 55 that there was a growing concern among atmospheric modeling scientists about the issue. EPA determined, however, that until further studies could be done to substantiate the theories, there was no experimental or field data to justify changing the dispersion curves or to determine how the dispersion equations should be changed. And since petitioners did not submit any data, no change could be made in the equations used. Id. EPA Brief at 48-49. We are, of course, aware that decision-making (particularly in this highly technical area) is the primary responsibility of the agency and not the responsibility of this court. See Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). As we said in Cleveland Electric Illuminating Co., supra: Our standard of review of the actions of United States EPA is whether or not the action of the agency is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Clean Air Act Amendments of 1977, Pub.L.No.95-95, § 305(a), 91 Stat. 775 (to be codified as 42 U.S.C. § 7607(d)(9)(A)). Thus, we are required to affirm if there is a rational basis for the agency action and we are not “empowered to substitute [our] judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, [91 S.Ct. 814, 28 L.Ed.2d 136] (1971). 572 F.2d at 1161. On this present record we conclude that United States EPA’s employment of the Class A assumption in determining pollution dispersion under “least stable” wind conditions in rural areas and areas of complex terrain is not a rational decision and is arbitrary and capricious. As we read EPA’s position on this point, it is that no better solution has been proposed. This answer, however, ignores the Enviroplan and Smith-Singer studies. More importantly, it ignores the conclusions of the experts’ conference convened by Argonne National Laboratory at United States EPA’s own request. The report of that conference suggested “elimination of the A curve and the use of the B curve for both A and B stability categories.” See Report of the Specialists’ Conference on the EPA Modeling Guideline, Feb. 22-24, 1977, Chicago, Illinois, at § 2.7.5: “Vertical Dispersion Estimates.” By pointing out this proposed solution, we do not mandate its acceptance by United States EPA. Our ultimate action on this score is simply to remand this issue to United States EPA for further study. This might result in the writing of a new record which supplies the now missing support for the use of Class A coefficients for the least stable wind condition in rural counties, or it might result in United States EPA’s adoption of use of the Class B coefficients for the two least stable wind conditions, or it might result in a new record which supports a wholly new solution. II THE TERRAIN ADJUSTMENT PROBLEM The original MAXT-24 model assumed that the pollution plume moves downwind in a straight line from a point determined by the height of the smoke stack plus plume rise (“effective stack height”). Under that assumption, if effective stack height is 600 feet and there is a hill 800 feet high downwind, a receptor site located 600 feet up that hill will therefore in theory receive the full impact of the pollutants in the center of the plume. Petitioners’ attack upon this set of assumptions is, we believe, best stated by the Shell Oil Co. brief: The reference to “the effect of the terrain on the plume” is an easily understood concept. Since the wind which blows the plume toward a hill (terrain) cannot blow through the hill, it must blow up and over the hill. This effect causes all the layers of air above the wind at ground level, and hence the plume itself, to be carried up and over the hill rather than hitting directly into its side. A widely recognized means of accounting for such a situation, and one which EPA has used, is to incorporate mathematical changes in the model which reduce the receptor height by the one-half difference between stack base and receptor elevation and limit the approach of the center line of the plume to ten meters above the receptor. Shell and its consultant, Enviroplan, recommended this change to U.S. EPA. Moreover, this change was supported in the modeling literature by two other independent experts — Briggs and Egan. Also, another consultant, Environmental Research & Technology, Inc. (“ERT”), recommended the same adjustment in a report submitted to EPA during the comment period for Columbus & Southern Ohio Electric Co. See “A Technical Review of the U.S. EPA Ohio State Implementation Plan for Sulfur Dioxide,” January 1977, prepared for C&SOE. (App. 210-213.) Indeed, this approach is so well recognized that EPA, Region II, approved its use in sustaining a revision of the implementation plan for Puerto Rico. See 40 Fed.Reg. 52410 (1975). Brief of Shell Oil Co., at 19-20. As to this argument, the EPA brief contains this comment and admission: Contrary to petitioners’ claims, EPA utilized available monitoring data wherever possible. As set forth in detail in both the Final and the Supplemental Technical Support Documents, EPA conducted validation studies of the dispersion model used to set emission limitations for isolated, rural power plants. See STSD at 53-55, and the FTSD at 27-34. The validation studies compared model predictions of SO2 ground level concentrations to actual air quality monitor data. These comparisons indicated that for sources located on flat terrain, the correlation between monitor data and predictions was quite good with the model tending to underpredict, but that for power plants located on hilly terrain, the comparisons showed consistent overpredictions. EPA Brief at 45-46 (footnote omitted). The EPA brief then goes on to assert that certain adjustments have been made in the model “so that it could handle dispersion in hilly terrain more accurately,” and then cited the Supplemental Technical Support Document at page 55. The STSD material referred to follows: The validation studies which compared model predictions of SO2 ground level concentrations to actual air quality monitor data indicated that in certain situations the model overpredicted and needed modification. The problem usually occurred when air quality monitors were at elevations higher than the top of the stack. To correct this, terrain data used in the model was limited in such a way that terrain features were always assumed to be no higher than the stack height of the source stack in question. This was deemed to be an appropriate adjustment because the validation study showed a high degree of correlation between model predictions and sample readouts from monitors positioned on terrain lower than stack height in elevation. When this assumption was mathematically incorporated into the model, the validation studies showed that the model accurately predicted the ground level concentrations observed by the monitors. Petitioners proposed a different method for modifying the model to account for complex terrain situations, but the proposal is not based on any validation studies of the CRSTER model. The Agency has no way of determining if the proposal is a better modification to the model than the modification made by the Agency after the validation studies. The Agency, therefore, has determined that the model does not need further modifications because of any information presented by the petitioners. EPA Brief at 54-55. While the record does not establish conclusively that this adjustment made by United States EPA in the remand period will prove a satisfactory solution to the problem posed, neither does the record offer evidence to the contrary. We note, of course, that United States EPA has disowned the apparent implication in its brief that it had made validation studies of this latest adjustment for hilly terrain. And, in fact, our holding on this issue should not be read as this court’s rejection of petitioners’ half ground displacement theory in favor of the United States EPA adjustment outlined above. There may well be occasion for the agency to continue to review this issue. All we hold is that on the present record, we cannot find that United States EPA’s present terrain adjustment in MAXT-24 is “arbitrary or capricious.” For the reasons indicated above, the petitions of Dayton Power & Light Co. (Adams County facilities only), Ohio Power Co. (all facilities), Columbus & Southern Ohio Electric Co. (Coshocton County facility only), and Austin Powder Co. (all facilities) are remanded to the United States EPA for reconsideration of the employment of Class A coefficients in least stable wind conditions in rural counties. All petitions referred to at the beginning of this opinion are denied to the extent that they attack the MAXT-24 model as to the terrain adjustment feature. Ill OTHER ISSUES We also hold that there is no merit to objections based on failure to calibrate the MAXT-24 model (or failure to reject its results because of claims of overprediction as demonstrated by some monitor readings). See Cleveland Electric Illuminating Co., supra, 572 F.2d at. 1163-64, numbered paragraph 7. Shell contends that its emission limitation should be expressed in terms of pounds S02 per hour rather than pounds S02 per million British Thermal Units. The Shell proposal would require the EPA either to assume that stack gas temperature and exit velocity (the important factors bearing on plume rise and thus ultimately on ground level SO2 concentration) are relatively constant, or alternatively to monitor stack gas temperature and exit velocity. Clearly, EPA considers policing such a system to be an impossible task. EPA’s formula, by contrast, requires only the use of fixed, easily ascertainable date — the plant’s design-rated capacity. We regard EPA’s choice of formula, which minimizes administrative costs while obeying the Clean Air Act’s command to “insure attainment and maintenance” of national ambient air standards, 42 U.S.C. § 1857c-5(a)(2)(B) (1970), to be within the range of the agency’s discretion. We have considered the other issues raised by Shell and find them to be without merit. Disputes between petitioners and EPA concerning appropriate SO2 background levels, emission data, or other fact issues will not be decided by this court until completion of the administrative review of such issues which was suggested by this court and agreed upon by the parties. Based upon what has been said by this court in Cleveland Electric Illuminating Co. v. EPA, supra, and in this opinion, and finding no other material issues, we dismiss the following petitions in toto: Cincinnati Gas & Electric Co., Shell Oil Co. Final dispositions in the petitions of Columbus & Southern Ohio Electric Co., Ohio Edison Co., and E. I. du Pont de Nemours & Co. will be entered on resolution of the remaining issues therein. . See Cleveland Electric Illuminating Co., supra, Section 3, 572 F.2d at 1160-64. . The following summary is drawn from Cleveland Electric Illuminating Co., supra, Appendix A, 572 F.2d at 1165-74: US EPA 1976-77 Ohio EPA Ohio EPA MAX regs are: 1972 1974 regs for: regs for: 1. less strict than 19 16 of petitioners’ facilities a stricter than 1 5 ambiguous b compared with 3 2 2. less strict than 31 27 of Ohio counties modeled entirely with MAX stricter than 3 6 ambiguous b compared with 5 6 3. less strict than 38 32 of Ohio counties in which MAX was employed stricter than 3 6 ambiguous b compared with 12 15 a Including facilities to the regulation of which petitioners do not object. b l.e., stricter for some stacks or facilities and less strict for others; or employing different units of measurement, rendering comparison impossible. The 1972 Ohio EPA plan was submitted to United States EPA on January 30, 1972, but was “withdrawn” by the Governor of Ohio on August 27, 1972. The 1974 Ohio EPA plan was submitted to United States EPA on September 22, 1974, and was withdrawn on July 16, 1975. See Cleveland Electric Illuminating Co., supra, 572 F.2d at 1156. . This conference was initiated by United States EPA and one of the participants was the Director of EPA Region V, which Region includes Ohio. The conference occurred during the remand period of this litigation, and three months before the finally amended regulations were promulgated. We consider the Conference Report to be properly a part of the appellate record. . Newly recodified as 42 U.S.C.A. § 7410(a)(2)(B) (1977 Pamphlet). Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"? A. social security benefits (including SS disability payments) B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps) C. state or local economic regulation D. federal environmental regulation E. federal consumer protection regulation (includes pure food and drug, false advertising) F. rent control; excessive profits; government price controls G. federal regulation of transportation H. oil, gas, and mineral regulation by federal government I. federal regulation of utilities (includes telephone, radio, TV, power generation) J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government K. civil RICO suits L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above) M. admiralty - seamens wage disputes N. admiralty - maritime contracts, charter contracts O. admiralty other Answer:
songer_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. In re BATAVIA METAL PRODUCTS, Inc. FILBEN MFG. CO., Inc., v. BATAVIA METAL PRODUCTS, Inc. No. 9389. Circuit Court of Appeals, Seventh Circuit. Feb. 28, 1948. Harry Shriman and Schwartz, Allen & Shriman, all of Chicago, Ill., for appellant. J. H. Schwartz and Norman H. Nachman, and Schwartz and Cooper, all of Chicago, Ill., for appellee. Before SPARKS, MAJOR, and MIN-TON, Circuit Judges. MINTON, Circuit Judge. On November 1, 1945, the alleged bankrupt, hereinafter referred to as the debtor, entered into a license agreement with the appellant by the terms of which the latter licensed the debtor to manufacture and sell certain automatic phonographs. The license agreement is not in the record. It does not appear when the bankruptcy proceedings were instituted, but subsequent thereto, on August 30, 1946, an infringement suit was filed in the District Court for the Northern District of Illinois against the debtor by Rock-Ola Manufacturing Corporation in which it claimed the infringement of certain patents owned by it. Thereafter, the appellant filed a petition in the bankruptcy proceedings to terminate the license agreement, which the referee accordingly did. On February 20, 1947, the debtor filed a verified petition in the bankruptcy proceedings setting up the fact of the pendency of the infringement suit, apparently growing out of the uses made of the patents, pursuant to the license agreement with the appellant. The petition also set forth the cancellation of the license agreement by the appellant and the discontinuance of the manufacture and sale of the automatic phonographs, and an agreement with the attorneys for Rock-Ola for the entrance of a consent decree in the infringement suit, with a waiver of damages and accounting, but with the usual restraining orders, each party to pay his own costs. The petition also prayed that the debtor be authorized to settle and dispose of the infringement suit on that basis. No one appeared in opposition to this petition or filed any pleadings in answer thereto. The prayer of the debtor was granted, and an order authorizing the disposition of the infringer ment suit was entered after a consideration of the verified petition and the statement and argument of counsel. The order recited the filing of the petition and statement of counsel that the debtor had ceased the manufacture and sale of the automatic phonographs involved in the patent suit and recited further that prior to the institution of the proceedings the debtor had manufactured and sold the automatic phonographs by virtue of the license agreement with the appellant, which license agreement had been cancelled; that due notice of the filing of the debtor’s petition had been given to all of the parties in interest; and it - was ordered that the officers of the debtor be authorized to enter into the consent decree with the usual restraining orders; and “that there shall be no accounting between the parties, the claim of plaintiff in said action for profits and damages to be waived as to any infringing sale or use prior hereto, Batavia to have the right to make non-infringing sales of parts and accessories of the phonograph now on hand and that each party to said patent action shall pay its own costs.” A petition to review this orde r was filed by the appellant, and the objecdons asserted therein were that on the hearing of the petition of the debtor for authority to settle the infringement suit, the debtor’s counsel represented, apparently truthfully, that prior to the institution of the infringement suit the debtor had manufactured a substantial quantity of parts and materials for the assembly of the automatic phonographs which were assets of the debtor’s estate and of substantial value, and if sold as scrap, these assets would have only a nominal value, and that under the terms of the proposed consent decree grave doubt would exist as to the rights of the debtor to dispose of these materials except as scrap; secondly, the petition complained that there was no allegation in the pleading, nor was any evidence introduced, to support the recital in the order sought to be reviewed that the debtor had manufactured and sold automatic phonographs by virtue of the license agreement with the appellant; thirdly, that the appellant had also been sued for infringement by Rock-Ola in the District Court of Minnesota, although infringement of what does not appear, that a declaratory judgment was there sought against the appellant, that the adjudication of that suit would dispose of the issues in the infringement suit herein, and that the debtor knew of this suit and did not inform the referee or the District Court of it; and that the appellant as a creditor of the debtor is aggrieved and the debtor’s estate jeopardized and injured by the order. The District Court denied the petition to review and confirmed the referee’s order. This appeal is from this order of the District Court. The appellant’s objections seem frivolous to us. As to the first, namely, the likelihood that the District Court’s proposed consent decree may not permit the valuable materials of the debtor’s estate to be sold except as scrap. It is contended that under the proposed consent decree grave doubts would arise as to the rights of the debtor to dispose of the materials except as scrap. The short answer to that is that we do not know whether there is a basis for such grave doubt or not, as a copy of the proposed consent decree is not in the record, and no proceeding is now before us authorizing the sale of the materials as scrap. It will be time enough to meet that when the issue is presented. We cannot assume that the District Court would authorize a disposition of valuable assets except in the interest of the debtor’s estate. As to the second proposition, that manufacture and sale of the automatic phonographs were made before the institution of the bankruptcy proceedings. True, in the verified petition of the debtor for authority to enter the consent decree there is no allegation to support the referee’s finding. We do not know what counsel represented to the referee on the presentation of the said petition that might have given support to the recital in the order. The recital is not necessary to support any part of the court’s order. It may be treated as surplusage. In any event, such recital, if unsupported, was not harmful and did not adversely affect the debtor’s estate, and that is all the referee had to consider. Whatever rights the appellant had in the estate were in the appellant’s claim for money damages. The consent decree did not authorize any money judgment for any sum against the debtor. It did not shrink the debtor’s estate one cent. The debtor had nothing to lose by abiding by the order except its freedom to manufacture and sell, pursuant to the license agreement. The debtor had already ceased such manufacture and sale, and the appellant by its affirmative action had terminated the license agreement. It needs no argument to demonstrate that the third contention of the appellant is without merit. The debtor owed no duty to the appellant to protect it in the infringement suit in Minnesota or to inform the referee or the District Court that such suit was pending. The debtor was not a party to that suit. The referee’s concern, and that of the District Court, was only to see that the debtor’s estate was protected and by so doing protect all of the creditors. Whether an infringement suit against the debtor shall be settled by a consent decree, with a waiver of damages and accounting, requires the exercise of discretion by the referee and the District Court, and their determination cannot be disturbed here, in the absence of a clear showing of an abuse of such discretion. In re Kansas City Journal-Post Co., 8 Cir., 144 F.2d 816, 817, 818; In re Anderson Thorson & Co., 7 Cir., 125 F.2d 325; Scott et al. v. Jones, 10 Cir., 118 F.2d 30, 32; In re Riggi Bros. Co. Inc., 2 Cir., 42 F.2d 174, 176. On this record, we cannot see how the court could be guilty of an abuse of discretion in authorizing a consent decree by the debtor which enjoined the debt- or from doing only what it had already ceased doing. It is even more difficult to see how the appellant, a creditor who had helped to bring about such cessation, could be aggrieved. The judgment of the District Court is affirmed. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_app_stid	36	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. David Allen CHAPIN, Petitioner-Appellee, v. R.C. MARSHALL, Respondent-Appellant. No. 82-3417. United States Court of Appeals, Sixth Circuit. Argued March 14, 1983. Decided April 15, 1983. Rehearing and Rehearing En Banc Denied July 19, 1983. Simon Karas, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellant. Jill E. Stone, Ohio Public Defender, Columbus, Ohio, for petitioner-appellee. Before ENGEL, Circuit Judge, WEICK, Senior Circuit Judge, and BALLANTINE, District Judge. Honorable Thomas A. Ballantine, Jr., United States District Judge for the Western District of Kentucky, sitting by designation. PER CURIAM. Ronald C. Marshall, Superintendent of the Southern Ohio Correctional Facility at Lucasville, Ohio, appeals from an order of the United States District Court for the Southern District of Ohio granting the writ of habeas corpus to David Allen Chapin. On March 15, 1979 a jury convicted Chapin of aggravated murder in violation of Ohio Rev.Code § 2903.01(A), and Chapin was sentenced to a term of life imprisonment. Chapin appealed to the Court of Appeals of Clermont County, arguing that the trial court erred by overruling his counsel’s mid-trial request for a competency hearing. On March 5, 1980 the Court of Appeals reversed Chapin’s conviction on this ground, but on December 5,1981 the Supreme Court of Ohio overruled the Court of Appeals, and reinstated Chapin’s conviction. State v. Chapin, 67 Ohio St.2d 437, 424 N.E.2d 317 (1981). Chapin then filed a petition for writ of habeas corpus with the United States District Court for the Southern District of Ohio. Chapin’s sole ground for habeas corpus relief was the trial court’s refusal to hold a competency hearing after the trial commenced. On June 2, 1982 the district court granted Chapin’s petition, and this appeal followed. Evidence offered at trial established that Chapin shot and killed his longtime friend and roommate, Donald Leming, during the late evening of October 3 or the early morning of October 4, 1978. Apparently an argument concerning religion precipitated the crime. Petitioner placed his roommate’s body in the trunk of his car, and drove to a State Highway Patrol Office, where he told the dispatcher on duty that he was wanted for murder. Petitioner said he was “going to kill someone” and when asked whom, stated that he had already killed him. The dispatcher officer then asked petitioner to leave. Later that same morning, Chapin drove to Raymond Walters College, where he was a student, and spoke to his former botany professor, Dr. DeJong. Chapin told DeJong that he had a dead human body- in his car trunk, and asked DeJong if he wanted it for lab dissection. Petitioner then stated that the body was that of his best friend and that his friend had willed his body to science. Chapin also stated that he had been drinking, had gotten into an argument with his friend, and had shot him in self-defense. DeJong notified the police, who then took Chapin into custody. On October 30, 1978, several months before trial, Chapin’s counsel filed a suggestion of incompetency to stand trial. Chapin was referred for psychiatric examination, and a competency hearing was held on December 6, 1978. Chapin was found competent to stand trial at that time. Trial commenced on March 7, 1979. On the fourth day of trial defense counsel made a motion in chambers for a second competency hearing. Defense counsel asserted that Chapin’s mental condition had deteriorated, and also presented several psychiatrists who testified that Chapin was mentally ill and in fact had a long history of mental illness. The trial court, however, overruled Chapin’s request for a' second competency hearing on the basis of the December 6,1978 decision holding that Chapin was competent to stand trial. In granting habeas corpus relief, the district court stated that Chapin had presented evidence which raised a reasonable doubt concerning his competency to stand trial, and that therefore the trial judge was constitutionally required to hold a competency hearing. Chavez v. United States, 641 F.2d 1253, 1258 (9th Cir.1981). On appeal, the state argues that defense counsel’s mid-trial suggestion of incompetency did not warrant a second competency hearing. In reversing the Ohio Court of Appeals and reinstating Chapin’s conviction, the Ohio Supreme Court thoroughly reviewed all of the evidence and observed: Our task herein is ultimately to determine whether appellee received a fair trial and whether, under the facts in this cause, appellee met the requisite standard of “good cause shown,” pursuant to the present R.C. § 2945.37, which would warrant a hearing on the issue of competency to stand trial. The record clearly indicates that a hearing concerning competency to stand trial was held approximately three months before trial, whereupon the evidence submitted, which included psychiatric reports, resulted in the decision that appellee was competent to stand trial. Thus, all prior medical reports clearly indicated that appellee was competent to stand trial. The record further discloses that, except for one minor, isolated instance, appellee had not displayed any ludicrous or irrational behavior at trial which would suggest to the court that an additional hearing was necessary. The record is devoid of any objective indications as to how and to what extent appellee’s mental condition has changed. The only suggestion of appellee’s declining mental condition is a sole unqualified and unsubstantiated assertion made by defense counsel on the fourth day of the trial. The claim of incompetency to stand trial was that an additional defense counsel had talked to appellee over the weekend and that by reason thereof there was a serious question as to appellee’s competency to stand trial. Defense counsel simply concluded without further specific indications or evidence that “I do not believe that David [appellee] has the ability to assist counsel in his own defense.” It is clearly evident that there is no objective indication demonstrated by appellee’s conduct, medical reports or specific reference by defense counsel of irrational behavior or the like that would indicate “good cause shown” for the allowance of an additional hearing. State v. Chapin, 67 Ohio St.2d 437, 441-42, 424 N.E.2d 317 (1981). Upon such findings, which were unanimously reached by the Ohio Supreme Court and to which we defer, 28 U.S.C. § 2254(d), we conclude that it was error for the district judge to reach a contrary decision even though as an initial matter another trier of fact might have so concluded. We are particularly impressed by the ability of the state trial judge to actually observe Mr. Chapin’s demeanor during the trial and by the absence of any concrete indication that Chapin’s mental condition in any way impeded his ability to assist in his own defense. Accordingly, The judgment of the district court is reversed and the cause remanded with instructions to dismiss the petition. On the fifth day of trial, after the trial court had denied the motion for a hearing of competency to stand trial, the appellee, during the testimony of a defense witness, stood up and began to slowly exit the courtroom. This is the only questionable occurrence exhibited by the appellee in the courtroom. The record is devoid of any other subtle nuances or questionable actions by the appel-, lee during trial. Therefore, it seems that appellee was, in general, quite alert and attentive throughout this long trial, which is supportive of appellant’s argument that an additional hearing is unnecessary. 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_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. Douglas B. KOGER and Palma Koger, Appellants, v. UNITED STATES of America, Appellee. No. 84-1315. United States Court of Appeals, Fourth Circuit. Argued Oct. 31, 1984. Decided Feb. 26, 1985. William H. Thomas, III, Greenville, S.C. (Dobson & Dobson, Greenville, S.C., on brief), for appellants. Nancy Morgan, Tax Div., Dept, of Justice, Washington, D.C. (Glenn L. Archer, Jr., Asst. Atty. Gen., Washington, D.C., Charles R. Brewer, U.S. Atty., Asheville, N.C., Michael L. Paup, William S. Esta-brook, Tax Div., Dept, of Justice, Washington, D.C., on brief), for appellee. Before WIDENER, PHILLIPS and ERVIN, Circuit Judges. WIDENER, Circuit Judge: This is an appeal of an order entered by the district court dismissing a complaint filed by the taxpayers seeking to enjoin the government from collecting assessed income tax deficiencies. The taxpayers’ complaint also sought a release of a federal tax lien which the Internal Revenue Service (IRS) had filed against the taxpayers’ property after deficiency assessments had been made. The government moved to dismiss the taxpayers’ complaint for failure to state a claim upon which relief could be granted, and the district court dismissed the case on that ground pursuant to FRCP 12(b)(6). It is from this dismissal order that the taxpayers took their appeal. We agree that the complaint should be dismissed, but on a different ground. Douglas B. Roger and Palma Roger (taxpayers) were residents of Cocoa Beach, Florida in 1978 and 1979, and, for the years at issue here, the taxpayers’ income tax returns indicated a Cocoa Beach address. In 1981, the taxpayers became residents of Blowing Rock, North Carolina and indicated this new address on their 1981 income tax return. Despite their change in address, when the IRS, Florida District, determined that deficiencies existed for the Rogers’ tax years of 1978 and 1979, a statutory notice of deficiency was sent by certified mail to the Rogers in 1982 at their Cocoa Beach, Florida address. Although this notice was returned undeliverable, the IRS assessed deficiencies against the taxpayers for tax years 1978 and 1979. The taxpayers claim that they first received notice of the tax deficiencies in April 1983, after the IRS had already made the deficiency assessments. They also assert that they never received actual notice of the proposed deficiency. While the Rogers maintain that they have not received the statutory notice of deficiency, see IRC § 6212, upon receiving notice of the assessments, taxpayers through their accountant informed the IRS that no notice of the proposed deficiency had been received prior to the deficiency assessments. Additionally, the Rogers allege that, after the IRS notified them of the 1978 and 1979 assessments, they requested the IRS to send actual notice of deficiency, but that the IRS failed to do so prior to its filing of a federal tax lien against the taxpayers in October 1983. A few weeks after the IRS filed its tax lien, the taxpayers brought suit in the district court seeking to enjoin the IRS from collecting the assessments for 1978 and 1979 and to require release of the federal tax lien. Essentially, the Rogers’ complaint alleged that any assessment or collection effort by the IRS in respect of tax deficiencies for 1978 and 1979 would be improper because the IRS failed to provide an adequate notice of the proposed deficiency, prior to assessment, as required by IRC §§ 6212, 6213. As a result of this failure to comply with IRC provisions, the taxpayers alleged that they would suffer irreparable injury if the court failed to issue the injunction because further illegal collection activity by the IRS would continue to impair their business reputation and ability to transact business. The complaint further alleged that since payment of the illegally assessed taxes would damage the taxpayers’ business interests irreparably, no adequate remedy at law existed to preclude the issuance of an injunction. As stated, the government filed a motion to dismiss the Rogers’ complaint under FRCP 12(b)(6), which the district court granted, and taxpayers appealed. While this appeal was pending, however, the taxpayers fully paid the assessed income tax deficiencies, as well as the penalties and interest thereon, and thereby effected a release of the federal tax lien. Because the taxpayers have paid fully the assessed deficiencies as well as the penalties and interest thereon, we must consider whether such payment, during the pendency of this appeal, has rendered the case moot. Article III of the Constitution limits our power to hear only those cases involving an actual case or controversy. Furthermore, actual controversy must exist at all stages of review rather than only at the time of the filing of the complaint. Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209,1215 n. 10, 39 L.Ed.2d 505 (1974). Therefore, even if a controversy existed at the time the Rogers filed their complaint, we are without jurisdiction to hear their appeal if payment of the deficiencies has rendered the case moot during the appeal. State of California v. San Pablo & Tulare Railroad, 149 U.S. 308, 13 S.Ct. 876, 37 L.Ed. 747 (1893). Accordingly, only upon a finding that the case is not moot may we reach the merits of the case. Generally, subject only to quite limited exceptions, when a court denies a taxpayer’s request for an injunction to prohibit his government from collecting taxes, an appeal of this denial presents a moot question over which an appellate court has no jurisdiction, if the taxpayer has paid the taxes during the pendency of the appeal. Singer Manufacturing Co. v. Wright, 141 U.S. 696, 12 S.Ct. 103, 35 L.Ed. 906 (1891); Little v. Bowers, 134 U.S. 547,10 S.Ct. 620, 33 L.Ed. 1016 (1890); R.J. Reynolds Tobacco Co. v. Robertson, 80 F.2d 966 (4th Cir.), cert. denied, 297 U.S. 719, 56 S.Ct. 596, 80 L.Ed. 1004 (1936); see also Harvey v. Early, 160 F.2d 836, 837 (4th Cir.1947). Notwithstanding the fact that payment of the taxes and release of the tax lien have been accomplished during the pendency of this appeal, the taxpayers argue that the appeal of the dismissal order nevertheless is not moot. While we in no way condone the fact that the taxpayers have been denied a prepayment forum in the Tax Court because they did not receive the statutory notice of deficiency, this denial of a prepayment forum does not obviate the fact that the deficiencies have been fully paid, and whatever our concerns with the government’s method, we nonetheless lack jurisdiction to hear the case unless an actual controversy exists. Turning to their contentions, we first consider two interrelated arguments which, essentially, ask us to find this case not moot for policy reasons. More specifically, the taxpayers claim that since Congress drafted an explicit exception to the Anti-Injunction Act to enable taxpayers to contest alleged deficiencies, prior to payment, by filing a petition in the Tax Court within 90 days of receiving notice of a proposed deficiency, the procedure employed here by the IRS in failing to give effective notice within this 90-day period defeats Congressional intent to provide a prepayment forum. Thus, taxpayers claim that this procedure, maintained as proper by the IRS, presents an important public issue inasmuch as the IRS has frustrated Congressional intent and has undermined the jurisdiction of the Tax Court. Because, the argument goes, this is a significant public issue with a likelihood of repetition, public interests would be undermined if the appeal were held moot. We do not think this is a permissible consideration, Little, supra, 134 U.S. at 558, 10 S.Ct. at 623, but even if it is we do not accept the argument for two reasons. First, the capable-of-repetition doctrine which permits a federal court to hear a claim which is capable of repetition, yet evades review, is inapposite to the facts of this case. “[T]he capable-of-repetition doctrine applies only in exceptional situations, and generally only where the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality.” City of Los Ange-les v. Lyons, 461 U.S. 95, 109, 103 S.Ct. 1660, 1669, 75 L.Ed.2d 675 (1983), citing DeFunis v. Odegaard, 416 U.S. 312, 319, 94 S.Ct. 1704, 1707, 40 L.Ed.2d 164 (1974). We do not think that the taxpayers have made a showing that they again will be subjected to the same procedure of alleged illegal assessments following improper notice. Also, the claim of illegal assessment will not evade review to the extent that the taxpayers may be able to vitiate the effect of any illegal assessment in a claim and suit for refund. As a second policy argument, the taxpayers claim that we should hear the case on the merits because dismissal of the case as moot would sanction a procedure by which the government could force an appeal to become moot. In particular, the taxpayers argue that following dismissal of their complaint in the district court, the Collection Division of the IRS proceeded to levy on the taxpayers’ home and property, thereby forcing them to pay the alleged deficiencies to avoid forced foreclosure prior to the resolution of the dismissal issue on appeal. The Rogers claim that our dismissal of the appeal would reward the IRS for its own misdeeds and would offend the appellate process since the post-dismissal collection activity forced the taxpayers to pay the alleged illegal assessments to avoid forced liquidation during the pendency of this appeal. Accordingly, taxpayers assert forced payment of the assessments should not render the appeal moot. We, however, cannot find on this ground that the appeal is not moot. While the taxpayers perceive that unilateral action by the IRS has forced them to pay the assessments and thereby prejudice their appeal, the taxpayers in actuality were not without power to seek a stay or injunction of the district court dismissal order during the pendency of the appeal. See FRCP 62; FRAP 8(a). The same point was made in Little v. Bowers, supra, 134 U.S. at 553, 10 S.Ct. at 621, and decided against the taxpayer. Since the Rogers chose, during the pendency of the appeal, to pay the assessments, without seeking a stay or injunction pending appeal, we cannot say that the IRS unilaterally forced the appeal to become moot. Thus, while we express no opinion whether unilateral action on the part of the IRS in forcing payment of assessed deficiencies necessarily preserves on appeal any controversy existing at the time the injunction suit was filed, see Little v. Bowers, at 553-558, 10 S.Ct. at 621-623, cf. Singer, supra, 141 U.S. at 700, 12 S.Ct. at 104, we decline to find this case not moot on this ground. We have considered the other assignments of error and are of opinion they are without merit. In accordance with United States v. Munsingwear, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950), we vacate the judgment of the district court and remand to that court to dismiss the taxpayers’ complaint as moot for lack of jurisdiction “which will clear the path for future relitigation of the issues between the parties.” 340 U.S. at 40, 71 S.Ct. at 107. The judgment of the district court is VACATED AND REMANDED WITH INSTRUCTIONS. . Taxpayers argue that the notice they received in April 1983 indicating that taxes had been assessed for 1978 and 1979 did not amount to a "notice of deficiency” authorized by IRC § 6212(a). A § 6212 notice of deficiency must be sent to a taxpayer’s last known address before the IRS may make an administrative assessment of the tax deficiencies. IRC §§ 6212(b)(1), 6213(a). Since the Rogers received notice of the deficiencies after the IRS had made the assessments, the argument goes, the post-assessment notice did not constitute a notice of deficiency within the meaning of IRC § 6212(a). . IRC section numbers are the same as 26 U.S.C. Thus, IRC § 6212 is 26 U.S.C. § 6212. . Section 6212 requires the IRS to send a notice of deficiency (90-day letter) to a taxpayer’s “last known address” so that the taxpayer may file a petition in the Tax Court to seek redetermination of the deficiencies. IRC § 6213(a). In contrast to a refund suit which must be brought in either the District Court or Court of Claims following payment of tax deficiencies, a suit in the Tax Court provides a taxpayer with a prepayment forum. . IRC § 7421(a) generally prohibits any suit seeking to enjoin the collection or assessment of any federal tax. Section 7421(a), however, contains explicit exceptions to the general prohibition against injunction actions. Of relevance here, § 7421(a) specifically excepts any action provided for in § 6212(a) and § 6213(a). Section 6212 authorizes issuance of deficiency notice and § 6213(a) contains authorization for injunction actions by providing that if collection or assessment action is begun either before 90 days have elapsed after the mailing of the notice of deficiency or after a taxpayer has filed a petition in the Tax Court, then the taxpayer may bring suit to enjoin such proceeding. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_r_subst	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 "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Keith MOE and Joanne Moe, individually and on behalf of their minor children, Billie, Brian, and Roberta Moe, Appellants, v. BROOKINGS COUNTY, SOUTH DAKOTA, Appellee. No. 80-2111. United States Court of Appeals, Eighth Circuit. Submitted June 16, 1981. Decided Oct. 2, 1981. John D. Wagner, argued, East River Legal Services, Brookings, S.D., for appellants. Mark V. Meierhenry, Atty. Gen., LeAnn Larson Finke, Mark W. Barnett, argued, Asst. Attys. Gen., Pierre, S.D., Clyde R. Calhoon, Brookings County State’s Atty., Brookings, S.D., for appellee. Before McMILLIAN and ARNOLD, Circuit Judges, and HANSON, Senior District Judge. The Honorable William C. Hanson, Senior United States District Judge for the Northern and Southern Districts of Iowa, sitting by designation. ARNOLD, Circuit Judge. The Moe family brought this action under 42 U.S.C. § 1983, alleging a violation of the Due Process Clause of the Fourteenth Amendment by reason of the failure of Brookings County, South Dakota, to administer the County Poor Relief program, S.D. C.L. §§ 28-13-1 et seq. (1976 & Supp.1980), in accordance with written, objective, and ascertainable standards. Plaintiffs sought declaratory, injunctive, and compensatory relief. Seven days after the action was commenced and prior to any response or appearance by defendant, Brookings County, the District Court entered the following order: It appears to the Court that Plaintiffs basically allege a violation of their fourteenth amendment rights to due process. Plaintiffs claim that the County of Brookings has failed to provide them with due process in that the county has no written, objective, or ascertainable standards for the administration of county poor relief funds. It further appears to this Court that abstention by this Court in this case is proper so as to avoid needless conflict with the administration by the State of South Dakota of its own affairs. Therefore, it is ORDERED that this Court shall abstain from further action in this case. Keith Moe v. Brookings County, South Dakota, No. 80-4188 (D.S.D. Nov. 20, 1980). Plaintiffs now appeal, claiming that no sufficient ground exists for the federal courts to abstain from the exercise of the jurisdiction that Congress has conferred upon them, 28 U.S.C. § 1343. We agree and reverse. I. The complaint (which is virtually all we have before us) alleges that Keith and Joanne Moe are husband and wife and have three children, ages five, three, and two. They have been residents of Brookings County, South Dakota, since August of 1977, and presently live in the City of Brookings. Except for a part-time janitorial job that lasted one month, Mr. Moe has been unemployed since April of 1980. The assets of the Moe family consist of a 1974 Chevrolet, a 1971 Ford which is inoperable, and miscellaneous personal property valued at approximately $500.00. South Dakota requires counties to relieve and support poor residents under what is referred to as the County Poor Relief program. The county commissioners of each county have the primary responsibility of administering the program, pursuant to S.D.C.L. § 28-13-16 (Supp.1980), which provides: County commissioners to have oversight and care of poor persons. The county commissioners in each county shall have the oversight and care of all poor persons in the county so long as those persons remain a county charge, and shall see that those persons are properly relieved and taken care of in the manner provided by law, and shall perform all the duties with reference to such poor persons that may be prescribed by law. The commissioners may designate a county official to - assist in the coordination of poor relief information with other counties. The complaint further alleges the following facts: Plaintiffs have applied to the county commissioners for relief on several occasions. By letter to the Board of Commissioners of May 15, 1980, Mrs. Moe requested assistance for herself and her children. She received no response. Next a staff attorney of the East River Legal Services Corporation wrote a letter on behalf of the Moes to the Brookings County State Attorney, with copies to all county commissioners and to the county auditor, requesting assistance as well as guidelines pertaining to eligibility. Again there was no response. After another request from the same staff attorney that was met with no response, Mr. Moe on August 28, 1980, requested an appearance before the Board of Commissioners. He was granted an appearance before the Board on September 4, at which time he outlined his financial condition. Mr. Moe was admonished for what the Board regarded as his wife’s mismanagement of their food budget, and was told he would receive no relief if the Board learned that he had been in any of the town’s bars. At this meeting the Moes were awarded $100, which was later paid directly to their landlord. In October 1980, Mr. Moe again appeared before the commissioners. They agreed to pay the Moes’ landlord another $100 for one month’s rent. Mr. Moe was also advised that this was the last time he could expect assistance. When he again spoke with the county auditor’s office on November 7, 1980, he was told that no relief request could be tendered until the November 20 meeting of the Commission. Soon after the Moes filed this lawsuit. II. Within a week of the commencement of this action, the District Court abstained sua sponte, citing a need to “avoid needless conflict with the administration by the State of South Dakota of its own affairs.” The county makes two principal arguments in support of the District Court’s action. For the reasons set forth below, we agree with neither. “Abstention from the exercise of federal jurisdiction is the exception, not the rule.” Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). The first basis for abstention advanced by the defendant county in support of the court’s order has its origins in the case of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Pullman requires a federal court to refrain from exercising jurisdiction when the case involves a potentially controlling issue of state law that is unclear, and the decision of this issue by the state courts could avoid or materially alter the need for a decision on federal constitutional grounds. The present case does not fall within this category of abstention. The state law in question is not unclear, nor is it fairly susceptible of an interpretation that would avoid the need for a decision on constitutional grounds. It is plain from a reading of the statutory scheme that the availability of assistance under the program is completely within the discretion of the county commissioners. This lack of standards is precisely the circumstance that plaintiffs claim entitles them to relief. See White v. Roughton, 530 F.2d 750 (7th Cir. 1976); Baker-Chaput v. Cammett, 406 F.Supp. 1134 (D.N.H.1976). Resolution of this suit may adversely affect the “administration by the State of South Dakota of its own affairs,” but this by itself has never been a sufficient basis for application of the Pullman doctrine. “Where there is no ambiguity in the state statute, the federal court should not abstain but should proceed to decide the federal constitutional claim.” Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S.Ct. 507, 511, 27 L.Ed.2d 515 (1971). The county next argues that abstention of the type ordered in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), is applicable here. In Burford the Supreme Court ordered abstention because review by the federal courts would be disruptive of a complex state regulatory scheme that provided for an elaborate review system through specialized agencies and specialized state courts. Such is not the case here. Although S.D.C.L. § 28-13-40 provides for an appeal to the State Circuit Court of any decision of the Board of County Commissioners, this remedy does not involve a complex regulatory scheme or system of review like that in Burford. Abstention is not appropriate “merely because a State court could entertain [the suit].” Alabama Public Service Commission v. Southern R. Co., 341 U.S. 341, 361, 71 S.Ct. 762, 774, 95 L.Ed. 1002 (1951) (Frankfurter, J., concurring). III. Accordingly, we reverse and remand for further proceedings not inconsistent with this opinion. We of course intimate no view on the merits of plaintiffs’ Fourteenth Amendment claim. . S.D.C.L. § 28-13-1 (Supp.1980), under which plaintiffs made their application, provides as follows: County duty to relieve poor persons — Taxation — Determination of eligibility. Every county shall relieve and support all poor and indigent persons who have established residency therein, as that term is defined in §§ 28-13-2 to 28-13-16.2, inclusive, and who have made application to the county, whenever they shall stand in need. Each board of county commissioners may raise money by taxation for the support and employment of the poor. If a person is receiving benefits from the department of social services, the board of county commissioners may determine if he is eligible for county relief. . In George v. Parratt, 602 F.2d 818, 820-22 (8th Cir. 1979), we listed five factors to be considered when deciding whether to apply the Pullman abstention doctrine. The five are as follows: (1) what effect abstention will have on the rights to be protected, (2) whether there are available state remedies, (3) whether the challenged state law is unclear, (4) whether the challenged state law is fairly susceptible of an interpretation that would avoid the federal constitutional question, and (5) whether abstention will avoid unnecessary federal interference in state operations. . E. g., S.D.C.L. § 28-13-16 provides that the county commissioners “shall have the oversight and care of all poor persons ....” Section 28-13-16.1 is entitled “Waiting period imposed at board’s discretion while residency investigated.” Section 28-13-23, which provides for annual payments to “competent poor persons,” reads in part [t]he board of county commissioners may in its discretion allow and pay to poor persons who may become county charges .... Section 28-13-38 provides for temporary re- lief to nonresidents. It reads: Whenever any person entitled to temporary relief as a poor person shall be in any county in which he has not established residency, the commissioners thereof may, if the same is deemed advisable, grant such relief .... . In Zablocki v. Redhail, 434 U.S. 374, 380 n. 5, 98 S.Ct. 673, 677 n. 5, 54 L.Ed.2d 618 (1978), the Supreme Court said that “there is, of course, no doctrine requiring abstention merely because resolution of a federal question may result in the overturning of a state policy.” Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number. Answer:
songer_procedur	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. Sayre W. KLEBANOFF, Plaintiff-Appellant, United States of America, Intervening Plaintiff-Appellee, v. The MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Defendant and Plaintiff on Interpleader Counterclaim, v. Sayre W. KLEBANOFF, Defendant on Interpleader Counterclaim, The Tradesmens National Bank of New Haven, and W. Paul Flynn, Trustee in Bankruptcy, Estates of Sayre W. Klebanoff and M. Edward Klebanoff, Defendants-Appellees on Interpleader Counterclaim. No. 333, Docket 30011. United States Court of Appeals Second Circuit. Argued May 10, 1966. Decided June 27, 1966. Ira B. Grudberg, New Haven, Conn. (Jacobs, Jacobs, Jacobs & Jacobs, New Haven, Conn., on the brief), for plaintiff-appellant. Kenneth L. McCardle, Dept, of Justice (Jon O. Newman, U. S. Atty., for District of Conn., Richard M. Roberts, Acting Asst. Atty. Gen., Lee A. Jackson and I. Henry Katz, Attys., Dept, of Justice, on the brief), for intervening plaintiff-appellee. Lawrence W. Iannotti, New Haven, Conn. (Richard H. Bowerman, Gumbart, Corbin, Tyler & Cooper, New Haven, Conn., on the brief), for Tradesmens Nat. Bank of New Haven, defendant-ap-pellee. James T. Brennan, West Haven, Conn. (Charles H. Fischer, Fischer & Fischer, West Haven, Conn., on the brief), for W. Paul Flynn, Trustee in Bankruptcy, Estates of Sayre W. Klebanoff and M. Edward Klebanoff, defendant-appellee. Before WATERMAN, KAUFMAN and ANDERSON, Circuit Judges. KAUFMAN, Circuit Judge: Mrs. Sayre W. Klebanoff appeals from a partial summary judgment award of $58,896.09 in life insurance proceeds plus interest to W. Paul Flynn as trustee in bankruptcy of Mrs. Klebanoff’s bankrupt estate. The District Judge, who was confronted with a complex factual setting, dealt thoroughly with the manifold contentions of the multiple parties and, as a result, the issues raised here already have been substantially pruned and refined for appellate consideration. Because of our disagreement, however, with the disposition below of a central issue in the case, we remand for consideration in the light of this opinion. I. The material facts were undisputed and are extensively set forth in Chief Judge Timbers’ reasoned opinion reported at 246 F.Supp. 935 (D.Conn.1965). We shall, therefore, merely summarize so much of the facts as are necessary to shed light on the legal issues presented. Mrs. Klebanoff’s husband, M. Edward Klebanoff (Edward), died on November 9, 1962. Prior to that time, he was the owner of ten life insurance policies issued by the Mutual Life Insurance Company of New York (MONY). Although Mrs. Klebanoff was the named beneficiary under each of these insurance contracts, Edward reserved all significant powers over them, including the right to designate a different beneficiary. In the summer of 1962, the Klebanoff’s financial underpinnings began to give way. Having borrowed substantial sums from the Tradesmens National Bank of New Haven (Tradesmens) on their promissory notes, both Klebanoffs defaulted in payments of principal and interest aggregating in excess of $75,000. On July 6, August 9 and September 7, 1962, Tradesmens commenced three actions in the Superior Court for New Haven County against the Klebanoffs and MONY seeking to recover the sums alleged to be due on the notes. In connection with this litigation, certain attachments and garnishments were effected and injunctions were obtained against both Kle-banoffs and MONY temporarily enjoining them from “paying or permitting or causing to be paid the cash surrender value of any policy of insurance issued by [MONY] on the life of M. Edward Klebanoff and against changing or causing or permitting to be changed the beneficiary of any said policy of insurance or loaning money or causing money to be loaned against the security of any such policy or its cash surrender value and against pledging, assigning, transferring or in any other manner disposing of any of said policies or causing or permitting the same to be pledged, assigned, transferred or in any other manner disposed of.” Meanwhile, several other creditors of the Klebanoffs filed an involuntary petition in bankruptcy against them. As a result, the Klebanoffs were adjudicated bankrupt as of August 22, 1962 and W. Paul Flynn became trustee in bankruptcy of each of their estates. On July 9, 1963 (Edward having died the previous fall), Mrs. Klebanoff commenced the instant action against MONY seeking to recover, as named beneficiary, the proceeds of the ten life insurance policies which MONY had issued on her husband’s life. In its role as stakeholder, MONY interpleaded by way of counterclaim, the adverse claimants to the proceeds of these policies — Mrs. Klebanoff, Tradesmens, and Flynn, as trustee in bankruptcy of the bankrupt estates of both Klebanoffs. The parties agreed to reserve other issues for subsequent determination and Mrs. Klebanoff moved for partial summary judgment. The District Judge determined that Flynn, as trustee of Mrs. Klebanoffs bankrupt estate, was entitled to the insurance proceeds. In so deciding, he rejected the claims of Tradesmens, Mrs. Klebanoff and Flynn, as trustee of Edward’s bankrupt estate. And, although the ramifications were far more complicated below, on appeal, the dispute has evolved into a contest for the insurance proceeds between Mrs. Klebanoff and Flynn, as trustee of her estate. In this Court, Tradesmens supported the trustee’s position and the trustee, in his capacity as representative of Edward’s estate, in turn has not pressed his claim to the insurance proceeds. II. In less than sparkling clear prose, section 70(a) (5) of the Bankruptcy Act, 11 U.S.C. § 110(a) (5), defines the conditions upon which a trustee may reach property claimed by a bankrupt such as proceeds of the life insurance policies in which Mrs. Klebanoff has asserted-an interest: The trustee of the estate of a bankrupt * * * upon his * * * appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition initiating a proceeding under this Act, except insofar as it is to property which is held to be exempt, to all of the following kinds of property wherever located * * * [:] property, including rights of action, which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded, or sequestered * * . This provision has been elucidated by Collier who, citing authority, states: If a policy [of insurance] in existence at the time of bankruptcy names the bankrupt as beneficiary without any reservation by the insured of the power to change such designation, the bankrupt has a vested though potential interest that vests in the trustee as an asset of the estate, subject of course, to the conditions that the property is transferable or leviable and is not exempt. 4 Collier on Bankruptcy, If 70.23 at 1198 (14th ed. 1964). (Emphasis added.) Thus, the principal issue presented is whether Mrs. Klebanoff possessed a “vested” interest in the policies issued on her husband’s life. If her interest was “vested” and, in addition, satisfied the other requirements of section 70(a) (5), the trustee could properly step into her shoes and claim the insurance proceeds. If, however, this property was not “vested,” the trustee had no basis for asserting an interest in the proceeds and the property would have passed to Mrs. Klebanoff, subject, of course, to proper tax claims, etc. In determining the nature of Mrs. Kle-banoff’s interest in the insurance proceeds, we must look to Connecticut law. 4 Collier on Bankruptcy, ff 70.15 at 1034 (14th ed. 1964). But, since no Connecticut case directly in point has come to our attention, our decision will be aided by reasoned application of other authorities, albeit peripheral. Allen v. Home National Bank, 120 Conn. 306, 310, 180 A. 498, 500 (1935), cited for our consideration by Trades-mens and Flynn, does not support their position but actually undermines it. The Supreme Court of Errors of Connecticut described the wife’s interest as beneficiary of her husband’s life insurance policies in Allen as * * more than a mere expectancy. Where no right to change is reserved in the policy, the rights of the named beneficiary cannot be impaired by the assured and the company without his assent. * * * [w]here, as here, the right to change is reserved to the assured, the interest of the beneficiary is yet deemed to be vested, although qualified in that it is subject to be defeated by an exercise of the right reserved. * * * “So long as the power of defeasance is not exercised, [beneficiaries] stand in the position of one having a title which the law will recognize, and for the protection of which they are entitled to the usual legal and equitable remedies.” (Emphasis added.) In the instant case, Edward at all times reserved the right to change the beneficiary of his policies. Thus, even under the Allen formulation, Mrs. Kle-banoff did not possess an absolute “vested” interest in her husband’s insurance; rather her right to receive the proceeds of these policies was “vested subject to divestment.” For this reason, O’Connell v. Brady, 136 Conn. 475, 72 A.2d 493 (1950) and Connelly v. Wells, 142 Conn. 529, 115 A.2d 444 (1955) also offer little solace to Tradesmens and Flynn. The federal courts have long recognized that when state law is utilized to define property rights in a federal statute, the substance and not the characterization of those rights must be examined in order to determine their true nature. See, e. g., In re Hogan, 194 F. 846 (7th Cir. 1912). And, recently, a wife’s interest in her husband’s insurance policies was held to be subject to tax liens arising in favor of the United States against the owner-husband during his lifetime because “[t]o whatever extent the policies constituted ‘property’ or 'rights to property,’ ” they belonged, under Connecticut law, to the husband at the time the liens attached. United States v. McWilliams, 234 F.Supp. 117, 121 (D.Conn.1964). The ratio decidendi of these cases leads us to the conclusion that if the Connecticut courts were squarely called upon to rule on the facts presented here, they would conclude, as we do, that Edward’s reservation of the right to change the beneficiary of his insurance policies deprived Mrs. Klebanoff of an absolute vested interest in them. We have found nothing to indicate that Connecticut would depart from the prevailing precept that where an insurance contract “names the bankrupt [i. e., Mrs. Klebanoff] as beneficiary, subject to change by the insured, the bankrupt has no vested interest during the life of the insured.” 4 Collier on Bankruptcy, jf 70.23 at 1198-99 (14th ed. 1964). Indeed, it appears that once it is clear that a beneficiary is entitled to the proceeds of insurance policies, Connecticut applies a policy of protecting these proceeds by exempting them, under certain circumstances, from incursions by succession and inheritance taxes. See Conn.Gen.Stat.Anno. § 12-342. Nor are we persuaded that Mrs. Klebanoff’s interest became vested by virtue of the temporary injunctions obtained by Tradesmens in the Superior Court for New Haven County prohibiting Edward from changing the beneficiary of his policies. Upon proper application a temporary injunction “may be dissolved or modified.” Conn.Gen.Stat.Anno. § 52-475. Thus, prior to his death there remained the possibility that Edward could have taken steps to dissolve the injunctions. This, he might have accomplished by several methods such as posting a bond, refinancing his indebtness or inducing someone to guarantee his obligations. While it is true that Edward did not pursue any of these steps, the fact remains that so long as these or other methods of dissolution existed, the injunctions were never fixed or permanent. Consequently, the existence of these temporary injunctions did not change the nature of Mr. Klebanoff’s interest. For these reasons, the trustee was not authorized pursuant to section 70(a) (5) to take over Mrs. Klebanoff’s claim to the proceeds of her husband’s life insurance policies. III. It is also urged that even if section 70(a) (5) is inapplicable, the trustee should prevail under the more general language of section 70(a). That section in pertinent part provides: All property, wherever located, except insofar as it is property which is held to be exempt, which vests in the bankrupt within six months after bankruptcy by bequest, devise or inheritance shall vest in the trustee * * * Tradesmens and Flynn do not dispute that the property transferred by virtue of the insurance contracts did not pass by “bequest, devise or inheritance” as those words have been defined. They maintain, however, that in this modern age, sophisticated methods have been devised to transfer wealth from one generation to the next and that the insurance policy route is one way to accomplish this objective. Therefore, they say, these technical property terms in section 70(a) should be interpreted broadly to encompass insurance proceeds. This argument is spurious, for, in this case, we are construing a bankruptcy statute and not embellishing principles of common law. Our guidelines of interpretation are relatively narrow; and, we are unpersuaded that we should rewrite the Bankruptcy Act in such drastic fashion when it was simple enough for Congress to have provided what Tradesmens and Flynn urge. It is interesting, moreover, that Congress was not unaware of this suggested interpretation. Prior to 1938, when the Chandler Act amended the Bankruptcy statute, no future interest which a bankrupt might acquire as the result of a prospective bequest, devise or inheritance, vested in the trustee unless the testator or ancestor died prior to bankruptcy. Because of the inequitable results which this general rule produced, the drafters of the 1938 amendment spelled out a specific and limited exception to property passing by “bequest, devise or inheritance.” 4 Collier on Bankruptcy, IJ70.27 at 1232-33 (14th ed. 1964). It would have been reasonable and appropriate for congress to have included insurance proceeds within this exception if it so desired. But, it failed to do so and in these circumstances we cannot and should not step into the breach. Moreover, the liberal construction of section 70(a), which is urged here, has been considered and rejected by at least one Circuit. In Friedman v. McHugh, 168 F.2d 350 (1st Cir. 1948), it was claimed that the word “inheritance” as employed in section 70(a) encompassed the right of a bankrupt father to recover for the death of his son under the provisions of the Federal Employer’s Liability Act (FELA) and, a fortiori, the right of the trustee of the father’s bankrupt estate to claim these FELA death benefits. After a detailed analysis, the court concluded that it “would torture and distort the word ‘inheritance’ to make it apply to ‘something that accrues as a result of death.’ ” 168 F.2d at 353. The construction urged by Tradesmens and Flynn is, in the language of Collier, “unsound.” 4 Collier on Bankruptcy, IJ70.23 at 1199 (14th ed. 1964). We have considered the other contentions advanced by the parties and find them either without merit or unnecessary of determination. The case is remanded for further proceedings not inconsistent with this opinion. . The facts were established by admissions to the pleadings, answers to interrogatories, a stipulation between the parties, exhibits submitted to the court and the records of related proceedings in the Bankruptcy Court and the Superior Court for New Haven County. . The net proceeds of these policies due and payable upon Edward’s death, it was agreed, totaled $58,896.09 plus interest . To further confuse an already complicated proceeding, the United States intervened and asserted a claim based on federal tax liens against Mrs. Klebanoff for alleged unpaid income taxes, interest and penalties owed by the Klebanoffs totaling $66,617.32 for the taxable years 1960 and 1961. Because of our disposition of this case, the government’s claim to the funds will have to be considered on remand. In this court, the United States has attempted to protect its liens by filing a brief as “appellee and as amicus curiae.” So, without expressing any opinion on the merits of the government’s claim, the victory on this appeal may ultimately prove to be pyrrhic. . We affirm Chief Judge Timbers’ denial of recovery of the insurance proceeds by Tradesmens and by Mynn, as trustee of Edward’s bankrupt estate. These rulings were not challenged on appeal and there is no indication that they were erroneous. We also leave undisturbed the award to MONY of costs, reasonable counsel fees and expenses limited strictly to the inter-pleader counterclaim proceedings. . Hogan dealt with Wisconsin law which, not unlike Connecticut, described a beneficiary’s interest in another’s insurance policies as “vested * * * subject to be divested” where the insured reserved the power to designate a different beneficiary. Considering a question similar to that confronting us, the Court was persuaded that catchwords or labels were not decisive on the basic issue of whether the beneficiary possessed a “vested” interest: “ * * * [Wjith the interest of the beneficiary thus settled, as dependent on the option of the insured during his lifetime, these mentions thereof as ‘a vested interest subject to be divested’ at the will of the insured, are without force * * * to confer or impose property right[s] * * * within the purview of the Bankruptcy Act.” 194 F. at 851. . In light of our conclusion that section 70a (5) is inapplicable because Mrs. Kleba-noff’s interest in the insurance policies was not vested, it is unnecessary to determine whether the other elements of that section were satisfied since the trustee cannot recover in any event. Similarly, it is not necessary for us to reach the question whether the trustee was entitled to all the proceeds of the life insurance policies or merely their cash surrender value at the time of bankruptcy. 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_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. Frances PARENTE, Appellant, v. Margaret HECKLER, as Secretary of Health and Human Services, Appellee. No. 737, Docket 83-6244. United States Court of Appeals, Second Circuit. Argued Feb. 3, 1984. Decided May 30, 1984. Mark Hus, Community Action for Legal Services, Inc., Brooklyn, N.Y. (Steven M. Bernstein, Brooklyn, N.Y., of counsel), for appellant. Michael P. DiRaimondo, Sp. Asst. U.S. Atty., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Miles M. Tepper, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee. Before LUMBARD, OAKES and CAR-DAMONE, Circuit Judges. OAKES, Circuit Judge: Frances Párente appeals from a decision of the United States District Court for the Eastern District of New York, Thomas C. Platt, Jr., Judge, which affirmed a determination by the appellee Secretary of Health and Human Services that Párente was no longer disabled, and hence no longer entitled to the Social Security disability benefits which appellant had received since the Secretary had first found her disabled in 1976. Based on our recent holding in De Leon v. Secretary, 734 F.2d 930 (2d Cir.1984), that “the Secretary may terminate [disability] benefits to a person previously adjudged to be disabled only upon substantial evidence that the individual’s condition has improved to the point that he or she is no longer disabled, or that the initial finding of disability was erroneous,” we reverse. It is abundantly clear from the administrative record that the Secretary made absolutely no determination that there was any improvement or even change in appellant’s physical or psychological condition, but merely conducted what amounted to a de novo hearing on the question of disability. Irrespective of the Secretary’s most recent determination, there can be no doubt that Párente has long suffered from serious physical and emotional disorders. In 1976 she applied for and was granted Social Security disability benefits due to “emotional and various physical problems.” Prior to 1976 appellant had been treated for an ovarian cyst. At the time the cyst was removed, appellant also had a pancreatic tumor removed, and a hysterectomy was performed. Appellant was, and continues to be, extremely obese; she is 5 feet 3 inches tall and weighs over 300 pounds, at one time being up to 347. She cannot lean over to pick up things. She has trouble breathing. She climbs stairs one by one. On September 8, 1981, she was hospitalized with a pleural effusion, possibly indicating heart difficulty. She has edema in her legs from her knees to her ankles, increased by standing. She is frequently nauseous and has ileitis. But as the 1976 proceeding made clear, even more disabling than appellant’s physical ailments were her psychological and emotional problems. A social worker’s 1976 report in support of Parente’s application for benefits described her as having “a thought disorder, probably schizophrenia, paranoid type.” The social worker observed that Párente has “very few friends ____ In addition, her appearance is extremely poor, she is disheveled and unkempt. She suffers from paranoid ideation and loose association ____ Insight and judgment are poor____” Though she had worked from 1951 to 1970, appellant had been unemployed for six years when her application for benefits was granted in 1976. She has not worked since that time. In October, 1981, the Social Security Administration notified appellant that, pursuant to its “Accelerated CDI (Continuing Disability Investigation) Program,” it intended to terminate her benefits. While recognizing appellant’s exogenous obesity, the appellee’s position, based on the examinations of a psychiatrist and an internist, was that “[t]he impairment does not meet or equal the level of severity described in the Listing of Impairments.” The appellee concluded that “[b]ased on the medical evidence [Párente] retains the capacity to perform simple, repetitive tasks,” and was thus no longer disabled. It is very debatable whether there was substantial evidence on the record to support the ALJ’s finding that appellant is not disabled, an issue we need not reach but about which we have grave doubts, especially in light of his failure to discuss the opinion of her treating physician. Eche-varria v. Secretary of Health and Human Services, 685 F.2d 751, 756 (2d Cir.1982). But it is clear that the AU made no effort whatsoever — other than to include some predictable boilerplate — to determine whether her condition had improved. We note, for example, that although the AU did recognize that the initial determination of disability was based on appellant’s “schizophrenia, paranoid type,” no evidence was even presented at the hearing that this condition or disability had been alleviated. In this area the AU relied on a psychiatric evaluation performed by a consulting psychiatrist “who reported a transient situational disturbance” and who, despite offering appellant “a good prognosis,” also recommended that she see a psychiatrist on a regular basis. The doctor did not address the question whether he believed appellant was suffering from schizophrenia, let alone offer any evidence of an improvement in her condition. While the doctor did indicate on a form that appellant’s impairments in various areas were “moderate” rather than “severe,” we note that he also stated that appellant’s capacity to “meet production, quality and attendance standards” was, based on his examination, “severely impaired.” We note also that the designation of a “moderate” impairment on the form provided the consultant psychiatrist— which the Secretary would have us believe is strong evidence of a lack of a disability— must be read in context of the range of choices provided to the doctor who is called upon to categorize an impairment: “None,” “Mild,” “Moderate,” “Severe.” We need not repeat what we said in De Leon except to emphasize that first to classify a claimant as disabled and then draw precisely the opposite legal conclusion without substantial evidence of improvement violates not only the termination statute but basic considerations of fairness. As that is what we are confronted with in this ease, the decision below is reversed. Judgment reversed. 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_genapel2	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 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 and Albert J. Valentas, Internal Revenue Agent, Plaintiffs-Appellants, v. HUMBLE OIL & REFINING COMPANY, Defendant-Appellee. No. 72-3029. United States Court of Appeals, Fifth Circuit. Sept. 8, 1975. Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Mary J. McGinn, Charles E. Anderson, Gilbert E. Andrews, Crombie J. D. Garrett, Robert E. Lindsay, Attys., Tax Div., Dept, of Justice, Washington, D. C., for plaintiffs-appellants. Walter B. Morgan, Robert G. Standlee, Houston, Tex., for defendant-appellee. Before GEWIN and MORGAN, Circuit Judges, and GORDON, District Judge. PER CURIAM: The Supreme Court of the United States on April 28, 1975 vacated the judgment of this court in the case of United States v. Humble Oil and Refining Company, 488 F.2d 953 (5th Cir. 1974) and remanded the case'for further consideration in light of United States v. Bisceglia, 420 U.S. 141, 95 S.Ct. 915, 43 L.Ed.2d 88 (1975). We have carefully considered Bisceglia and have concluded that it does not require a reversal of our decision in this case. Both cases involve the enforceability of a “John Doe” summons issued by the Internal Revenue Service. While the Bisceglia Court held the “John Doe” summons before it to be enforceable, we decline to construe that holding as a blanket endorsement of the use of “John Doe” summonses in every situation without reference either to the purpose of the summons or to the factual circumstances which underlie its issuance. At issue in Bisceglia was the enforceability of a “John Doe” summons issued by the IRS to a bank. The impetus behind the issuance of the summons was the deposit with the bank of some 400 badly deteriorated one hundred dollar bills by an unknown bank customer. This extraordinary transaction gave rise to a strong suspicion of unpaid taxes. An agent was assigned to investigate, and the issuance of the summons constituted the first step in the investigative process. In the case now before us the IRS issued a “John Doe” summons in order to discover the identities of all lessors of mineral leases surrendered by Humble Oil in the calendar year 1970. The information sought did not relate to a specific, extraordinary transaction as in Bisceglia. Nor were there any factu- . ally demonstrable grounds to suggest the likelihood of unpaid taxes. The summons was not issued to facilitate any ongoing investigation. Rather, the information was sought from Humble to expedite research on an IRS project concerning compliance with the lease restoration requirements of the Internal Revenue Code. An adjustment of tax liabilities may have incidentally resulted from the project, but the primary purpose of the project was research. We do not believe that the provisions of 26 U.S.C. §§ 7601 and 7602 authorize the IRS to force private citizens to do its research. Nor do we believe that Bisceglia sanctions this use of the summons power. The judgment is therefore affirmed. 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_appbus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Leora J. BISHOP, Appellant, v. William F. McKEE, Administrator of Federal Aviation Agency; John W. Macy, Jr., Commissioner, Civil Service Commission; L. J. Andolsek, Commissioner, Civil Service Commission; Robert E. Hampton, Commissioner, Civil Service Commission; and the United States of America, Appellees. No. 9545. United States Court of Appeals Tenth Circuit. Aug. 26, 1968. Leora J. Bishop, pro se. Robert L. Berry, Asst. U. S. Atty. (B. Andrew Potter, U. S. Atty., was with him on the brief), for appellees. Before MILLER, Senior Circuit Judge, and LEWIS and SETH, Circuit Judges. Of the District of Columbia Circuit, sitting by designation. DAVID T. LEWIS, Circuit Judge. Appellant, in 1966, was discharged and removed from civil service status as a civilian employee in the Aeronautical Center Medical Clinic of the Federal Aviation Agency at Oklahoma City. After termination of administrative proceedings she filed this action in the District Court for the Western District of Oklahoma and now appeals pro se from an adverse summary judgment entered by that court. This case has been presented to us with the complete sincerity of one who believes she has been victimized by her fellow employees and agency superiors and with the typical broad scope of complaint that accompanies lack of legal expertise. From our examination of the voluminous record we find three issues that can survive within the jurisdictional limitations accorded judicial review in this court: Did the Agency substantially comply with all required procedural steps in effectuating appellant’s removal? See Bailey v. Macy, 10 Cir., 378 F.2d 1021; Seebach v. Cullen, 9 Cir., 338 F.2d 663, cert, denied, 380 U.S. 972, 85 S.Ct. 1331, 14 L.Ed.2d 268; Brown v. Zuckert, 7 Cir., 349 F.2d 461, cert, denied, 382 U.S. 998, 86 S.Ct. 588, 15 L.Ed.2d 486. Was appellant improperly denied a constitutional right to examine her accusers ? Was the Agency action in imposing the remedy of removal so harsh as to reflect only caprice in view of the total circumstances ? We can find nothing in this record to indicate that the action against appellant did not follow the required and regulatory steps provided in such cases. Mrs. Bishop was served notice of the Agency’s proposed action in compliance with 5 C.F.R. 752.202 and the proceedings developed with regularity to termination by decision of the Board of Appeals and Review in Washington. And although the application of somewhat comparable procedures has been considered and held to have prohibited constitutional overtones we can find no authority that the procedures contain an inherent denial of due process. However, we must note that these procedures have allowed appellant, accused of being a gossip, to have been found guilty of that charge through the legal gossip of affidavits and the ex parte statements of persons taken in interview by Security Officers. Although we feel bound to view this anomaly as not amounting to a constitutional prohibition we offer it no affirmative con-fort. At the hearing conducted by an examiner for the Regional Office (Dallas) appellant was confronted by and cross-examined witnesses produced by the Agency. By letter addressed to the Chief of Personnel Relations at the Aeronautical Center appellant had requested that nine other employees of the Center be made available as witnesses at the hearing. At such time (1964) the applicable regulation provided: “An appellant is entitled to appear at the hearing on his appeal personally or through or accompanied by his representative. The agency is also entitled to participate in the hearing. Both parties are entitled to produce witnesses but as the Commission is not authorized to subpoena witnesses the parties are required to make their own arrangements for the appearance of witnesses.” 5 C.F.R. 772.305(c). The requested witnesses did not appear but there is nothing here to indicate that appellant made any subjective attempt to obtain their presence. Such was her initial burden under the regulation. Williams v. Zuckert (on rehearing), 372 U.S. 765, 83 S.Ct. 1102, 10 L. Ed.2d 136. Finally, pointing to her prolonged and excellent record for competency as a civil servant, appellant contends that she should have been reassigned within rather than discharged from the service. The remedy necessary to promote the efficiency of the civil service is a matter peculiarly and necessarily within the discretion of the Civil Service and cannot be disturbed on judicial review absent exceptional circumstances not here present. Studemeyer v. Macy, 116 U.S.App.D.C. 120, 321 F.2d 386. Affirmed. . Mr. Justice Douglas, dissenting in Williams v. Zuckert, 371 U.S. 531, 533-536, 83 S.Ct. 403, 9 L.Ed.2d 486. . Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed. 1012. 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_respond1_1_4	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant. In re HOLLINS & ARROUSEZ ELECTRIC & ENGINEERING CO. ALLIS-CHALMERS MFG. CO. v. MOORE et al. Circuit Court of Appeals, Ninth Circuit. February 25, 1929. No. 5644. Ray Howard and A. S. Gold, both of Los Angeles, Cal. (Nathan Silk, of Los Angeles, Cal., of counsel),.for appellant. Rupert B. Turnbull, of Los Angeles, Cal., for appellees. Before RUDKIN and DIETRICH, Circuit Judges, and BEAN, District Judge. BEAN, District Judge. This is a proceeding by the Allis-Chalmers Manufacturing Company to recover possession or impress an equitable lien on the assets of the bankrupt firm of Hollins & Arrousez Electric & Engineering Company. Por some time prior to September 22, 1926, the bankrupt had been engaged in the business of manufacturing, buying, selling, and renting electrical machines and equipment, and in the production and sale of moving pictures. On September 22, 1926, they made a general assignment for the benefit of creditors, and were adjudged bankrupts on January 24, 1927. Por some time prior to the assignment they had been buying electrical machines of the petitioner, and, after making certain additions thereto, reselling them to the general public. There are six sets of such machines or appliances involved in this controversy. Pive of them were sold by the petitioner to the bankrupt at divers times between December 28, 1925, and May 2,1926, on conditional sales contracts, by the terms of which the vendor retained the title until the evidence of indebtedness given in part payment was paid in full. The other set, referred to in the record as the Cohn set, was shipped by the petitioner from its factory at Milwaukee, Wis., to the bankrupt at Los Angeles, and received by them some time prior to July, 1926. On July 29 of that year a proposed contract for this machine, similar in terms to that covering the other machines, was offered the bankrupt by the local representative of the petitioner, and accepted by them, but it was not approved by the home office at Milwaukee. In the meantime the bankrupt, after mounting the machine on a trailer and adding other electrical equipment thereto, sold the complete machine, receiving about $19,-000 therefor, which amount was deposited by them to their credit in their general banking account and used by them in the general conduct of their business prior to the making of the assignment in September of 1926. There is no evidence that any part of such amount or the proceeds thereof were in the bankrupt’s estate at the time of the adjudication, or that such estate is enhanced thereby. The bankrupt, with the consent and approval of the petitioner, sold the other five sets, without having first paid the purchase price thereof, to various parties taking conditional sales contracts in their own names, similar in form to that between the petitioner and the bankrupt, receiving from the purchasers (except Cecil B. Mille Company, corporation) cash or commercial paper payable to them for the deferred payments, and the cash and the proceeds from the commercial paper, which they discounted, deposited by the bankrupt in their general banking account, and used by them in the conduct of their business prior to September, 1926. The sale to the Ceeil B. Mille Company was made in March, 1926, and the bankrupt received, as part of the purchase price, machinery or applicances of the approximate value of $6,000. The petitioner, however, permitted this machinery to remain in the possession of the bankrupt, and to be treated by them as their property, and it passed to the creditors' committee under the assignment in September, 1926. At the time of the adjudication the bankrupt was indebted in excess of $400,000 and had assets of the value of less than $100,000. The special master and the court held that under these facts the petitioner was not entitled to any part of the assets of the bankrupt or an equitable lien thereon, and hence this appeal. The petitioner claims that the amounts received by the bankrupt for the sale of the property in question was in the nature of a trust fund, and received for the use and benefit of the petitioner. It therefore invokes the general rule that, where property has been wrongfully obtained or applied, a court of equity will intervene to secure it to the owner, if it can be identified or traced into any other shape, by holding it to be his property or giving him a lien thereon. Central Nat. Bank v. Connecticut Mut. L. Ins. Co., 104 U. S. 56, 26 L. Ed. 693; In re Dunn & Co. (D. C.) 193 F. 212. But, assuming that the vendee of property under a conditional sales contract who sells it without the' consent of the owner and before paying the purchase price, or one who wrongfully converts the property of another by selling it, receives the proceeds thereof in trust for the owner, the rule invoked by the petitioner has no application to the facts of the instant ease. The five sets were sold by the bankrupt and the proceeds received and used by them as their own property, with the knowledge, consent, and approval of the petitioner, for the reason, as the agent testified, that he considered the bankrupt “then in good financial condition,” and therefore did not take an assignment of the contracts from the purchasers, although the bankrupt was ready and willing to make sueh assignment. The petitioner therefore waived any right which it might have to, or lien on, the proceeds received by the bankrupt from the sale of the five sets, and at the time of the adjudication stood in the position of a creditor of the bankrupt for the amount remaining .due on the original contract between it and the bankrupt. It is true the agent testified that it was the understanding between him and the bankrupt at the time the sales were made that the proceeds should be held by the bankrupt for the petitioner, but this is. wholly inconsistent with the acts of the parties, and, if there was such an agreement, it was clearly waived or abrogated by their subsequent conduct. There is no evidence that any part of the money received by the bankrupt from the sale of the Cohn set, or the proceeds thereof, was a part of the assets of the bankrupt at the time of the adjudication, either in specie or in changed form. It may be that, when trust funds are wrongfully mingled by the trustee with his own, a court of equity will, for the purpose of doing justice under circumstances not here present, treat the whole as a trust fund, and intervene to protect the owner by giving him a lien on the entire fund, if the trust fund can be traced into it, but the burden of- proof is upon the one claiming such a right, and, if he is unable to identify the funds as representing the proceeds of his property, his claim must fail. First Nat. Bank of Princeton v. Littlefield, 226 U. S. 110, 33 S. Ct. 78, 57 L. Ed. 145; Schuyler v. Littlefield, 232 U. S. 707, 34 S. Ct. 466, 58 L. Ed. 806; Bogert on Trust, p. 521. Such a lien cannot be impressed on property which is not shown to have been enhanced or augmented by the unlawful application. 37 C. J. 320. Affirmed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant? A. auto B. chemical C. drug D. food processing E. oil refining F. textile G. electronic H. alcohol or tobacco I. other J. unclear Answer:
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. BROTHERHOOD OF RAILROAD TRAINMEN et al. v. HOWARD et al. No. 458. Argued April 22, 1952. Decided June 9, 1952. Charles R. Judge argued the cause for petitioners. With him on the brief was Wayland K. Sullivan. Joseph C. Waddy and Victor Packman argued the cause for Howard, respondent. With them on the brief was Henry D. Espy. Eugene C. Nahler, James L. Homire, Cornelius H. Skinker, Jr. and Alvin J. Baumann submitted on brief for the St. Louis-San Francisco Railway Co., respondent. Mr. Justice Black delivered the opinion of the Court. This case raises questions concerning the power of courts to protect Negro railroad employees from loss of their jobs under compulsion of a bargaining agreement which, to avoid a strike, the railroad made with an exclusively white man’s union. Respondent Simon Howard, a Frisco train employee for nearly forty years, brought this action on behalf of himself and other colored employees similarly situated. In summary the complaint alleged: Negro employees such as respondent constituted a group called “train porters” although they actually performed all the duties of white “brakemen”; the Brotherhood of Railroad Trainmen, bargaining representative of “brakemen” under the Railway Labor Act, had for years used its influence in an attempt to eliminate Negro trainmen and get their jobs for white men who, unlike colored “train porters,” were or could be members of the Brotherhood; on March 7, 1946, the Brotherhood finally forced the Frisco to agree to discharge the colored “train porters” and fill their jobs with white men who, under the agreement, would do less work but get more pay. The complaint charged that the Brotherhood’s “discriminatory action” violated the train porters’ rights under the Railway Labor Act and under the Constitution; that the agreement was void because against public policy, prejudicial to the public interest, and designed to deprive Negro trainmen of their right to earn a livelihood because of their race or color. The prayers were that the court adjudge and decree that the contract was void and unenforceable for the reasons stated; that the Railroad be “enjoined from discontinuing the jobs known as Train Porters” and “from hiring white Brakemen to replace or displace plaintiff and other Train Porters as planned in accordance with said agreement.” The facts as found by the District Court, affirmed with emphasis by the Court of Appeals, substantially established the truth of the complaint’s material allegations. These facts showed that the Negro train porters had for a great many years served the Railroad with loyalty, integrity and efficiency; that “train porters” do all the work of brakemen; that the Government administrator of railroads during World War I had classified them as brakemen and had required that they be paid just like white brakemen; that when the railroads went back to their owners, they redesignated these colored brakemen as “train porters,” “left their duties untouched,” and forced them to accept wages far below those of white “brakemen” who were Brotherhood members; that for more than a quarter of a century the Brotherhood and other exclusively white rail unions had continually carried on a program of aggressive hostility to employment of Negroes for train, engine and yard service; that the agreement of March 7, 1946, here under attack, provides that train porters shall no longer do any work “generally recognized as brakeman’s duties”; that while this agreement did not in express words compel discharge of “train porters,” the economic unsoundness of keeping them after transfer of their “brakemen” functions made complete abolition of the “train porter” group inevitable; that two days after “the Carriers reluctantly, and as a result of the strike threats” signed the agreement, they notified train porters that “Under this agreement we will, effective April 1, 1946, discontinue all train porter positions.” Accordingly, respondent Howard, and others, were personally notified to turn in their switch keys, lanterns, markers and other brakemen’s equipment, and notices of job vacancies were posted to be bid in by white brakemen only. The District Court held that the complaint raised questions which Congress by the Railway Labor Act had made subject to the exclusive jurisdiction of the National Mediation Board and the National Railroad Adjustment Board. 72 F. Supp. 695. The Court of Appeals reversed this holding. It held that the agreement, as construed and acted upon by the Railroad, was an “attempted predatory appropriation” of the “train porters’ ” jobs, and was to this extent illegal and unenforceable. It therefore ordered that the Railroad must keep the “train porters” as employees; it permitted the Railroad and the Brotherhood to treat the contract as valid on condition that the Railroad would recognize the colored “train porters”, as members of the craft of “brakemen” and that the Brotherhood would fairly represent them as such. 191 F. 2d 442. We granted certiorari. 342 U. S. 940. While different in some respects, the basic pattern of racial discrimination in this case is much the same as that we had to consider in Steele v. L. & N. R. Co., 323 U. S. 192. In this case, as was charged in the Steele case, a Brotherhood acting as a bargaining agent under the Railway Labor Act has been hostile to Negro employees, has discriminated against them, and has forced the Railroad to make a contract which would help Brotherhood members take over the jobs of the colored “train porters.” There is a difference in the circumstances of the two cases, however, which it is contended requires us to deny the judicial remedy here that was accorded in the Steele case. That difference is this: Steele was admittedly a locomotive fireman although not a member of the Brotherhood of Locomotive Firemen and Enginemen which under the Railway Labor Act was the exclusive bargaining representative of the entire craft of firemen. We held that the language of the Act imposed a duty on the craft bargaining representative to exercise the power conferred upon it in behalf of all those for whom it acts, without hostile discrimination against any of them. Failure to exercise this duty was held to give rise to a cause of action under the Act. In this case, unlike the Steele case, the colored employees have for many years been treated by the carriers and the Brotherhood as a separate class for representation purposes and have in fact been represented by another union of their own choosing. Since the Brotherhood has discriminated against “train porters” instead of minority members of its own “craft,” it is argued that the Brotherhood owed no duty at all to refrain from using its statutory bargaining power so as to abolish the jobs of the colored porters and drive them from the railroads. We think this argument is unsound and that the opinion in the Steele case points to a breach of statutory duty by this Brotherhood. As previously noted, these train porters are threatened with loss of their jobs because they are not white and for no other reason. The job they did hold under its old name would be abolished by the agreement; their color alone would disqualify them for the old job under its new name. The end result of these transactions is not in doubt; for precisely the same reasons as in the Steele case “discriminations based on race alone are obviously irrelevant and invidious. Congress plainly did not undertake to authorize the bargaining representative to make such discriminations.” Steele v. L. & N. R. Co., supra, at 203, and cases there cited. Cf. Shelley v. Kraemer, 334 U. S. 1. The Federal Act thus prohibits bargaining agents it authorizes from using their position and power to destroy colored workers’ jobs in order to bestow them on white workers. And courts can protect those threatened by such an unlawful use of power granted by a federal act. Here, as in the Steele case, colored workers must look to a judicial remedy to prevent the sacrifice or obliteration of their rights under the Act. For no adequate administrative remedy can be afforded by the National Railroad Adjustment or Mediation Board. The claims here cannot be resolved by interpretation of a bargaining agreement so as to give jurisdiction to the Adjustment Board under our holding in Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239. This dispute involves the validity of the contract, not its meaning. Nor does the dispute hinge on the proper craft classification of the porters so as to call for settlement by the National Mediation Board under our holding in Switchmen’s Union v. National Mediation Board, 320 U. S. 297. For the contention here with which we agree is that the racial discrimination practiced is unlawful, whether colored employees are classified as “train porters,” “brakemen,” or something else. Our conclusion is that the District Court has jurisdiction and power to issue necessary injunctive orders notwithstanding the provisions of the Norris-LaGuardia Act. We need add nothing to what was said about inapplicability of that Act in the Steele case and in Graham v. Brotherhood of Firemen, 338 U. S. 232, 239-240. Bargaining agents who enjoy the advantages of the Railway Labor Act’s provisions must execute their trust without lawless invasions of the rights of other workers. We agree with the Court of Appeals that the District Court had jurisdiction to protect these workers from the racial discrimination practiced against them. On remand, the District Court should permanently enjoin the Railroad and the Brotherhood from use of the contract or any other similar discriminatory bargaining device to oust the train porters from their jobs. In fashioning its decree the District Court is left free to consider what provisions are necessary to afford these employees full protection from future discriminatory practices of the Brotherhood. However, in drawing its decree, the District Court must bear in mind that disputed questions of reclassification of the craft of “train porters” are committed by the Railway Labor Act to the National Mediation Board. Switchmen’s Union v. National Mediation Board, supra. The judgment of the Court of Appeals reversing that of the District Court is affirmed, and the cause is remanded to the District Court for further proceedings in accordance with this opinion. It is so ordered. St. Louis-San Francisco Railway Company and its subsidiary St. Louis-San Francisco & Texas Railway Company. 44 Stat. 577, as amended, 48 Stat. 1185, 45 U. S. C. §§ 151 et seq. In addition to doing all the work done by ordinary brakemen, train porters have been required to sweep the coaches and assist passengers to get on and off the trains. As the Court of Appeals noted, “These aisle-sweeping and passenger-assisting tasks, however, are simply minor and incidental, occupying only, as the record shows, approximately five per cent of a train porter’s time.” 191 F. 2d 442, 444. One part of the District Court’s order was affirmed. The Court of Appeals held that the District Court had properly enjoined the Railroad from abolishing the position of “train porters” under the notices given, on the ground that these notices were insufficient to meet the requirements of § 2, Seventh, and § 6 of the Railway Labor Act. The view we take makes it unnecessary for us to consider this question. 47 Stat. 70, 29 U. S. C. §§ 101 et seq. 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_casetyp1_7-3-1	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. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - taxes, patents, copyright". JAX ICE & COLD STORAGE CO., a Corporation, Trading as Jax Brewing Company, Appellant, v. Conway P. COE, United States Commissioner of Patents, and Jackson Brewing Company, a Corporation, Appellees. No. 7554. United States Court of Appeals for the District of Columbia. Argued Nov. 12, 1940. Decided Dec. 9, 1940. Writ of Certiorari Denied April 7, 1941. See 61 S.Ct. 837, 85 L.Ed.-. Thomas L. Mead, Jr., of Washington, D. C., and Ernest P. Rogers, of Atlanta, Ga., for appellant. W. W. Cochran, U. S. Patent Office, R. F. Whitehead, and Herbert H. Porter, all of Washington, D. C., for appellees. Before STEPHENS, VINSON, and EDGERTON, Associate Justices. PER CURIAM. This case is governed by Coe v. Hobart Manufacturing Company, 70 App.D.C. 2, 102 F.2d 270, and J. C. Eno (U.S.) Limited v. Coe, 70 App.D.C. 337, 106 F.2d 858. We have carefully considered the earnest and thoughtful argument of appellant’s counsel that we should overrule those cases, but we are still of opinion that they were rightly decided. The judgment appealed from is therefore affirmed. Question: What is the specific issue in the case within the general category of "economic activity and regulation - taxes, patents, copyright"? A. state or local tax B. federal taxation - individual income tax (includes taxes of individuals, fiduciaries, & estates) C. federal tax - business income tax (includes corporate and parnership) D. federal tax - excess profits E. federal estate and gift tax F. federal tax - other G. patents H. copyrights I. trademarks J. trade secrets, personal intellectual property 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. Mary Jean GARDNER, Plaintiff-Appellant, v. SOUTHERN RAILWAY SYSTEMS, Defendant-Appellee. Nos. 81-2307, 81-2459. United States Court of Appeals, Seventh Circuit. Argued Feb. 26, 1982. Decided April 22, 1982. David E. Gray, Bowers, Harrison & Kent, Evansville, Ind., for defendant-appellee. David V. Miller, Grove, Miller & Krohn, Evansville, Ind., for plaintiff-appellant. Before CUMMINGS, Chief Judge, POSNER, Circuit Judge, and BARTELS, Senior District Judge. Of the United States District Court for the Eastern District of New York. PER CURIAM. Appellant, Mary Jean Gardner, personal representative of the estate of her late husband, Gregory Gardner, appeals from a judgment of the United States District Court for the Southern District of Indiana, Evansville Division (Brooks, J.), after a jury trial in favor of appellee, the Southern Railway Company. Appellant raises two issues on appeal: (1) whether the district court erred by excluding appellant’s evidence of a prior collision through which appellant sought to charge the Railway with notice of a dangerous condition at a railway intersection and (2) whether the district court erred in allowing appellee to amend its answer shortly before trial, denying that the deceased stopped his truck prior to crossing the railroad tracks. On cross-appeal, the Railway claims that the district court’s denial of its Motion for Bill of Costs was an abuse of discretion. We affirm as to the issues raised by the appellant and reverse and remand for further proceedings as to the issue raised by the Railway. This action arises out of a fatal collision involving the deceased, Gregory Gardner, which occurred at a railway crossing at approximately 9:45 A.M. on February 24, 1978 in Pike County, Indiana while deceased was driving an empty coal-hauling truck north in Pike County Road 100 West. While crossing the railroad’s tracks at the junction of County Road 100 West, he was struck and killed by a westbound Southern Railway Company train, consisting of three engines, one car and a caboose. In her complaint, filed February 4, 1980, appellant claimed that at the time of the accident, the Railway was negligent in failing to maintain its crossing so as to provide decedent with an unobstructed view of the Railway’s tracks as required by Indiana Code 8-6-7.6-1. The testimony of the officer in charge of investigating the accident, ex-State Trooper Davis, established that at the time of the collision deceased did not have the sight distance required by the Indiana Code because of trees, brush and undergrowth which obstructed his view. Sometime following the February 24, 1978 collision, through discovery proceedings, appellant discovered that on November 30, 1976, another fatal collision involving the Railway’s train and a truck had occurred at the same crossing. An examination of photographs taken at the time of that collision revealed that the physical conditions at the time were essentially the same as those on February 24, 1978. The Indiana State Police Accident Report made of that prior accident disclosed that the accident occurred under substantially the same circumstances as the collision involving the deceased. However, on April 18, 1981, the Railway filed a Motion in Limine requesting the court to exclude all evidence of the prior collision. On April 15, 1981, appellant filed its Memorandum in Opposition to this Motion maintaining that by reason of the prior accident, the Railway was charged with notice of the extra-hazardous conditions at the crossing fifteen months before the collision involving the deceased. At its final pre-trial conference on June 12, 1981, the Court granted the Railway’s Motion in Limine. At trial, appellant offered to prove notice to the Railway of a dangerous and hazardous condition by other means such as photographs of the crossing taken on the day of the prior accident and the testimony of the two Indiana State Police Officers who investigated the prior accident. The photographs and the testimony of both officers with respect to their investigation of the collision were excluded. The Court did, however, permit one officer to testify (without being identified as a police officer) to the fact that he had been at the crossing prior to the subject collision and to relate what he had observed. We refer now to the second issue raised by appellant. In its original answer, filed March 6, 1980, the Railway admitted that the deceased stopped his vehicle at the fatal intersection. Additionally, on April 15, 1980, the Railway filed a Request for Admissions in which it asked appellant to admit that the deceased had stopped his vehicle at the critical intersection. Nevertheless, on May 15, 1981, the final day of discovery, the Railway moved the court for leave to amend its answer to raise as a factual question the issue of whether or not the deceased had stopped his truck prior to attempting to cross the railroad tracks. There was other evidence concerning the stop at the railroad crossing on the day of the collision. The Railway’s employee, Gordon Byrd, obtained a tape-recorded statement from a witness, Randal Lewis, who was driving a vehicle a short distance behind the deceased at the time of the accident. At that time, Lewis said that he saw no taillights go on in the rear of the deceased’s truck. This statement was used by the Railway to impeach Lewis at trial. The tape recording had never been turned over to apj)ellant during discovery although it was submitted to the jury with appellant’s consent. Our final consideration is the Railway’s cross-appeal. A Bill of Costs was filed by the Railway on July 9, 1981, wherein it requested that certain expenses amounting to Two Thousand Nine Hundred Fifty-one Dollars and Sixty-five Cents ($2,951.65) incurred by the Railway in connection with the trial be taxed to the appellant. Appellant filed her Objection to the demand for Taxation of Costs and Memorandum in Support of her Objections thereto, on July 15, 1981. The Railway’s Reply to Plaintiff’s Objection to Taxation of Costs was filed on July 24, 1981. No other pleadings were filed on this issue and no hearing was held. On August 3, 1981, the district court issued an order denying the Railway’s motion for Bill of Costs. But the order contained no finding that the Railway had been guilty of any misconduct or that appellant was indigent. Accordingly, the Railway cross-appealed the denial of its Bill of Costs pursuant to 28 U.S.C. § 1291. PRIOR ACCIDENT We agree with appellant’s interpretation of the law applicable to prior accident evidence in railroad collision cases. A railroad can be found negligent not only in the manner in which it operates its trains, but also because it failed to take adequate precautions at a grade crossing which it knew or should have known to be extra-hazardous. Stevens v. Norfolk & W. Ry. Co., 171 Ind.App. 334, 357 N.E.2d 1, 4 (1977); see also Menke v. Southern Railway Company, 603 F.2d 1281 (7th CirM979). Evidence of prior accidents which occurred at that crossing under similar conditions may be admitted to show that the railroad had prior knowledge that a dangerous and hazardous condition existed. New York Central Railroad Co. v. Sarich, 133 Ind.App. 516, 180 N.E.2d 388, 398 (Ind.App.Ct.1965); 5A Personal Injury § 1.05[l][j], pp. 124-27. Moreover, as the Third Circuit and other circuits suggest, it is appropriate to relax the requirement of similar conditions when the offer of proof is to show notice of the dangerous character of the crossing rather than defendant’s negligence. Evans v. Pennsylvania Railroad Co., 255 F.2d 205, 210 (3rd Cir. 1958); McCormick, Evidence (Horn Book Series), p. 352; compare McCormick v. Great Western Power Co., 214 Cal. 658, 8 P.2d 145, 81 ALR 678 (1932); City of Taylorville v. Stafford, 196 Ill. 288, 63 N.E. 624 (1902). The controlling principle in cases of this type, however, appears in Rule 403 of the Federal Rules of Evidence, reading: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Unless we find, therefore, that the district court abused its discretion in excluding the evidence, we must affirm. United States v. Catalano, 491 F.2d 268, 274 (2nd Cir.), cert. denied, 419 U.S. 825, 95 S.Ct. 42, 42 L.Ed.2d 48 (1974); Shepard v. General Motors Corp., 423 F.2d 406, 408 (1st Cir. 1970). Judge Brooks undoubtedly considered many factors including photographs in rendering his decision. First, conditions and surrounding circumstances at the crossing at the time of the prior accident on November 30, 1976, were different, at least in some respects, from those which existed on February 24, 1978. Second, because no action was ever brought nor any claim filed on behalf of the previous decedent, it is not known whether conditions at the crossing or decedent’s own negligence were responsible for the 1976 accident. That no action was ever brought may suggest the latter. Third, notwithstanding the ambiguity surrounding the prior accident, the jury might infer from evidence of the prior accident alone that ultra-hazardous conditions existed at the site and were the cause of the later accident without those issues ever having been proved. In any case, the district court permitted appellant to present testimony that the conditions which existed at the crossing at the time of the February 24, 1978 collision had been evident some time l>efore. Thus the dangerous conditions were presented in a non-prejudicial manner. These facts could certainly lead a reasonable person to conclude that the danger of prejudice and delay from admitting such evidence would substantially outweigh its probative value. Under these circumstances, we find no abuse of discretion in excluding this evidence. THE AMENDED ANSWER Appellant asserts that the district court erred in allowing the Railway to amend its answer shortly before trial to the prejudice of the appellant and despite undue delay, bad faith and dilatory motive on the part of the Railway. Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend his or her pleading ’ more than twenty days after it is served “only by leave of court or by written consent of the adverse party: and leave shall be freely given when justice so requires.” In Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962), the leading case upon this question, the Supreme Court stated: If the underlying facts or circumstances relied upon by the plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claims on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of amendment, futility of amendment, etc. —the leave sought should, as the rules require, be “freely granted.” Of course, the Court added, “the grant or denial of an opportunity to amend is within the discretion of the District Court . . . . ” Id. The Railway pleaded contributory negligence in its original answer and so alerted appellant to the possibility that an argument would be made as to the non-stop. The Railway filed its motion for leave to amend its answer only once it became apparent both that eyewitness Lewis intended to change the story he had originally told the Railway and that appellant had no unimpeachable testimony of deceased’s stopping. Appellant filed her own series of motions at the eleventh hour. In any event, appellant was left with at least twenty-six days following- the Railway’s motion in which to respond, which would seem to have been more than sufficient since appellant knew of all the possible eyewitnesses. Under these circumstances, the district court’s decision seems perfectly reasonable. Apjiellant also asserts that appellee should have been bound by its admission regarding the deceased’s stopping contained in its own Request for Admissions. Rule 36(b) of the Federal Rules of Civil Procedure indeed provides that “[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” The rule continues: Subject to the provisions of Rule 16 governing amendments of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and any party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. Although the Railway never sought to amend this particular admission, it did seek and obtain leave to amend its answer following the last pre-trial conferences denying that a stop was made by the deceased. The purpose of Rule 36 is to permit the person obtaining the admission to rely thereon in preparation for trial. Compare Moosman v. Blitz, 358 F.2d 686 (2d Cir. 1966). There is no way in which appellant in this case could have relied on such admission to her prejudice in view of the amendment to the Railway’s answer as permitted by the court. Under the circumstances of this case, permission to amend the answer was tantamount to permission to withdraw the admission. THE CROSS-APPEAL On cross-appeal, the Railway asserts that the district court’s denial of its Bill of Costs, without finding either that appellee was guilty of some misconduct or that appellant was indigent, was an abuse of discretion. Rule 54(d) of the Federal Rules of Civil Procedure creates a presumption that the prevailing party is entitled to costs. Lichter Foundation, Inc. v. Welch, 269 F.2d 142, 146 (6th Cir. 1959); 10 C. A. Wright and A. R. Miller, Federal Practice and Procedure, Civil, § 2668 at 142 (1973). To overcome that presumption the losing party must show something more than mere good faith on its part. Popeil Brothers, Inc. v. Schick Electric, Inc., 516 F.2d 772, 776 (7th Cir. 1975). We have no evidence of such a showing here. Moreover, the district court failed to explain why it denied appellee’s Bill of Costs. When a trial court refuses to award costs to the prevailing party, it should state its reasons for such disallowance. Unless an appellate court knows why a trial court refused to award costs to the prevailing party, it has no real basis upon which to judge whether the trial court acted within the proper confines of its discretion. Walters v. Roadway Exp., Inc., 557 F.2d 521 (5th Cir. 1977). Serna v. Manzano, 616 F.2d 1165, 1168 (10th Cir. 1980). Judgment affirmed except as to costs and remanded for a redetermination of costs and findings in case of disallowance. . In a number of jurisdictions, before evidence of prior accidents is admissible to show notice, it must be shown that a specific physical or structural condition of the crossing was a proximate or contributing cause of the present collision. 5A Personal Injury § 1.05[l][j], pp. 126-27; see Jewell v. Pennsylvania R.R., 55 Del. 6, 183 A.2d 193 (1962); So. Pac. R.R. v. Watkins, 83 Nev. 471, 435 P.2d 498 (1967); So. Pac. R. R. v. Harris, 80 Nev. 426, 395 P.2d 767 (1964). . In Young v. Illinois Central Gulf R. R. Co., 618 F.2d 332 (5th Cir. 1980), there are so many other rulings constituting abuses of discretion that the case can hardly support the proposition that the simple failure to admit prior accident testimony was itself an abuse. . Appellant’s Specifications of Negligence and witness lists were filed seven days prior to the original trial date of March 23, 1981 instead of January 15, 1981, as was requested by the court, forcing appellee to seek a continuance. Appellant’s Motion for Leave to Add Additional Witnesses and Exhibits, the first clear indication that appellant intended to offer prior collision evidence, was filed ten days before the rescheduled trial date of April 13, 1981. On May 15, 1981, the last day of discovery before the yet rescheduled trial date of June 15, 1981, appellant added an additional Specification of Negligence. Finally, during trial appellant again moved to amend her allegations to conform to her evidence. . Rule 54(d) of the Federal Rules of Civil Procedure reads: Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs . .. (emphasis added). 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_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. Helen K. KAISER, Administratrix of the Estate of Carole Lu Kaiser, Deceased, Plaintiff and Appellant, v. Carroll O. LOOMIS, Defendant and Appellee. No. 17637. United States Court of Appeals Sixth Circuit. March 27, 1968. Herbert Phillipson, Jr., Dowagiac, Mich., James Thomas Sloan, Jr., Kalamazoo, Mich., by Herbert Phillipson, Jr., Dowagiac, Mich., on brief, for appellant. G. Anthony Edens, Grand Rapids, Mich., Luyendyk, Hainer & Karr, by John D. B. Luyendyk, Grand Rapids, Mich., on brief; Seymour, Seymour & Conybeare, Benton Harbor, Mich., of counsel, for appellee. Before PHILLIPS and EDWARDS, Circuit Judges and McALLlSTER, Senior Circuit Judge. EDWARDS, Circuit Judge. The only question posed by this appeal is whether an American citizen, born in one of the states of the United States to parents who were citizens of that state, can lose the state citizenship for purposes of diversity jurisdiction which he acquired at birth without first acquiring a new domicile. We hold that he cannot. This is a personal injury case in which plaintiff’s daughter, Carole Lu Kaiser, was killed when the automobile in which she was riding was struck by an automobile driven by defendant-appellee, Carroll O. Loomis. Federal jurisdiction was claimed on grounds of diversity of citizenship under 28 U.S.C. § 1332 (1964). The case was tried before a District Judge in the United States District Court for the Western District of Michigan. A jury verdict of $30,000 was returned for plaintiff. Jurisdiction over the controversy had been contested from the outset of the litigation, with defendant claiming that the required diversity of citizenship did not exist. The District Judge reserved this question for decision until after the taking of the jury verdict. He ultimately granted defendant’s motion to reopen proofs and then made certain findings of fact and dismissed the whole cause of action for lack of diversity of citizenship. The Judge’s opinion said in part: “In the amended complaint, the plaintiff claims that the defendant was, at the time of the institution of suit, a citizen of the State of Illinois. Admittedly, the defendant was not at that time a resident; that is, was not domiciled, was not living, in the State of Illinois. He was at that time a resident or living or domiciled, using all those terms as synonymous, in Ad-dis Ababa, Ethiopia, as a medical missionary. •Jr * X * -X- “Our attention is called to the fact that the defendant has on numerous instances given his permanent address the place at which he could always be reached, as Anna, Illinois, which, according to the proofs, is the residence of his parents. “It appears affirmatively that the defendant has not in fact, resided, been domiciled at, or lived at Anna, Illinois, for a number of years. In the interim period he has lived in Michigan as a trainee at the Berrien County Hospital. He has lived in New York temporarily as a trainee for overseas duty as a missionary doctor. He now lives in Addis Ababa, Ethiopia, obviously on a temporary basis by any criteria that has been brought to the attention of the court. “From all of the proofs, it appears that the defendant was at one time a resident of Anna, Illinois. He moved from Anna, Illinois, several years before the institution of this suit. There is nothing in the evidence in the nature of affidavit, deposition or answer to interrogatory which convinces this court that the defendant has had the intention of being a resident or citizen of the State of Illinois for many years. “Unfortunately for the plaintiff— and the court does deem it unfortunate —it appears to the satisfaction of the court that, in reality, the defendant does not have any actual citizenship in any specific state. He comes directly under the ruling of the Third Circuit Court of Appeals in Pemberton v. Colonna, 290 F.2d 220. He is a citizen of the United States residing abroad. But he hasn’t the slightest intention, according to what this court can gather from the proofs adduced, of making Addis Ababa, a place where he is now living, anything in the way of a permanent residence. “If we were depending on residence, it does not appear that Addis Ababa is his residence. It is only the place where he, as a medical missionary, is temporarily living, subject to his receiving an assignment to the same or a later post at the discretion of the assigning authorities of the Presbyterian Church. Admittedly, they can’t require him to go any place else. “But from all the evidence before the court, there isn’t anything from which the court can conclude that as of the time that, this lawsuit was filed in July, 1964, the defendant, Carroll O. Loomis, was a citizen of the State of Illinois.” The additional fact supplied by the record and undisputed-is that defendant was born in Illinois to parents who then did and still do live there. He resided there (aside from two years in service) until he moved to Michigan. The District Judge held “that, in reality, the defendant does not have any actual citizenship in any specific state * * . He is a citizen of the United States residing abroad.” He concluded that dismissal of this suit was required by the rule of Pemberton v. Colonna, 290 F.2d 220 (3d Cir. 1961). In Pemberton, however, the facts as found showed that plaintiff had established domicile in Mexico. The Third Circuit held on those facts that plaintiff was not a citizen of any state but was a citizen of the United States “domiciled” abroad. The critical distinction between this case and the Pemberton case is the difference between “residence” and “domicile.” “Citizenship” for purposes of the diversity statute is synonymous not with “residence” but with “domicile.” Napletana v. Hillsdale College, 385 F.2d 871 (6th Cir. 1967); Williamson v. Osenton, 232 U.S. 619, 34 S.Ct. 442, 58 L.Ed. 758 (1914). We cannot agree that any facts shown in this record lead to the legal conclusion reached by the District Judge that “the defendant does not have any actual citizenship in any specific state.” “Citizenship” for purposes of the diversity statute is determined as of the date of commencement of the action. Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1 L.Ed.2d 1205 (1957); Mullen v. Torrance, 22 U.S. (9 Wheat.) 237, 6 L.Ed. 154 (1824). It is clear that when this action was started, defendant was a resident of Ethiopia. But the well-supported findings of the District Judge pertaining to the temporary character of defendant’s residence in Addis Ababa prohibit any finding of domicile in a foreign country. When defendant was born in Illinois to parents who were domiciled there, he took the domicile of his father. Lamar v. Micou, 112 U.S. 452, 470, 5 S.Ct. 221, 28 L.Ed. 751 (1884); Bjornquist v. Boston & A.R. Co., 250 F. 929, 5 A.L.R. 951 (1st Cir.), cert. denied, 248 U.S. 573, 39 S.Ct. 11, 63 L.Ed. 427 (1918); Yarborough v. Yarborough, 290 U.S. 202, 211, 54 S.Ct. 181, 78 L.Ed. 269 (1933). That domicile persists until and unless it is changed. Mitchell v. United States, 88 U.S. (21 Wall.) 350, 353, 22 L.Ed. 584 (1874). In this last case the United States Supreme Court also dealt with the factors which establish a change of domicile : “To constitute the new domicile two things are indispensable: First, residence in the new locality; and, second, the intention to remain there. The change cannot be made except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change.” Mitchell v. United States, 88 U.S. (21 Wall.) 350, 353, 22 L.Ed. 584 (1874). In Stine v. Moore, 213 F.2d 446, 448 (5th Cir. 1954), the court said, “citizenship is not necessarily lost by protracted absence from home, where the intention to return remains.” And dealing with burden of proof on the issue of citizenship for diversity purposes, the court stated: “The burden of proving diversity jurisdiction, when challenged, is upon the plaintiff; but when it is shown, as in this case, that the [party] had a former domicile in [another state], the presumption is that it continues to exist, and the burden shifts to the defendant to prove that it has changed.” Stine v. Moore, 213 F.2d at 447. The record we have reviewed requires the conclusion that defendant was domiciled in and was a citizen of Illinois at least up to 1960. It also supports the District Judge’s finding that his residence in Ethiopia is temporary in character and, hence, could not effect a change of domicile. The question remaining is whether or not defendant bore the burden of proof to show that defendant changed his domicile from Illinois to Michigan during his residence in the latter state. At oral argument of his motion to dismiss, counsel for defendant conceded that defendant was not a citizen of Michigan at the time of filing of this complaint. The language employed, however, suggests that this concession may have been made as a result of misapprehension of law. Since the proofs are somewhat in dispute on this score, we think this question is in the first instance one for the District Judge to resolve. We find no merit to appellant’s claim pertaining to inadmissibility of certain evidence. The issue of jurisdiction is heard by the judge alone. We feel the District Judge is capable of weighing the extent of hearsay or of self-service motivation involved in the contested statements. Reversed and remanded for further proceedings consistent with this opinion. . “§ 1332. Diversity of citizenship; * * (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between— (1) citizens of different States; (2) citizens of a State, and foreign states or citizens or subjects thereof; * * * » 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_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". J. C. PENNEY COMPANY, Inc., Appellant, v. D. D. JONES TRANSFER & WAREHOUSE COMPANY, Inc., Appellee. No. 12799. United States Court of Appeals Fourth Circuit. Argued Jan. 8, 1969. Decided March 26, 1969. Edward R. Baird, Norfolk, Va., for appellant. Marshall T. Bohannon, Jr., Norfolk, Va. (Herbert & Bohannon, Norfolk, Va., on brief), for appellee. Before HAYNSWORTH, Chief Judge, and BRYAN and BUTZNER, Circuit Judges. BUTZNER, Circuit Judge: J. C. Penney Company, Inc., stored goods in a warehouse operated by D. D. Jones Transfer & Warehouse, Inc., under a contract that provided: “All property received in storage will be held at owner’s risk or loss * * * from * * * fire, or any other cause beyond our [Jones’] control * * Over Penney’s objection, the district judge held that this clause placed on Penney the burden of going forward with the evidence and of ultimately proving Jones was negligent in either causing, or failing to extinguish, a fire that destroyed the goods. In reaching this conclusion, the judge rejected Penney’s contention that the burden was on Jones to show that the loss was not due to Jones’ negligence. Since the cause of the fire could not be definitely ascertained, assignment of the burden of proof was crucial. We believe the district judge correctly interpreted the law of Virginia applicable to this diversity action, and we affirm the judgment for Jones entered on the jury’s verdict. The district judge concluded that this case is governed by Revenue Aero Club, Inc. v. Alexandria Airport, Inc., 192 Va. 231, 64 S.E.2d 671 (1951). There the owner of an airplane agreed that the airport, which undertook to repair the plane, would not be responsible for damage caused “by fire, theft or loss of any kind beyond [the airport’s] control.” After the plane was destroyed by fire, the owner sued, alleging both breach of contract and negligence. At the trial the owner proved delivery to the airport and the destruction of the plane, but not the cause of the fire. The trial court held this evidence insufficient to establish liability and entered judgment for the airport. In affirming, the Supreme Court of Appeals reiterated Virginia’s well-established rule that when the owner sues on an ordinary bailment contract he makes out a prima facie case by establishing delivery of his property and the bailee’s failure to return it. The bailee may escape liability only by showing the property was destroyed without his fault. But, the Court continued, the agreement that the airport would not be responsible for loss of any kind beyond its control made the general rule of bailments inapplicable. While the agreement did not exonerate the airport from its own negligence, it placed upon the owner the burden of going forward with the evidence and ultimately proving the airport’s fault. Although Revenue Aero dealt with the liability of a bailee who was a mechanic, its rules govern bailments in general and apply to warehousemen. In determining the liability of warehouse-men, the Supreme Court of Appeals has drawn generously on the law of bailments developed in cases involving carriers, mechanics, stevedores, and lawyers. And it has expressly held that the common law, and not statutes dealing with ware-housemen, apportions the burden of proof in warehouse bailment controversies. Canty v. Wyatt Storage Corp., 208 Va. 161, 156 S.E.2d 582, 584 (1967) ; John Nix & Co. v. Herbert, 149 Va. 131, 140 S. E. 121, 123 (1927). The “owner’s risk” clause found in the case before us and in Revenue Aero are similar. Consequently, Revenue Aero is decisive, and the district judge correctly placed the burden of proving negligence on Penney. Nor is the “owner’s risk” clause invalidated by Virginia’s Warehouse Receipts Act. Penney suggests that § 61-6 of the Act, which forbids a warehouseman from inserting in his receipt any terms and conditions contrary to the Act, must be read along with § 61-11, which places upon a warehouseman the burden of establishing the existence of a lawful excuse for his failure to return property left in his care. Here, however, § 61-6 is not applicable. Penney used Jones’ warehouse for a number of years, but Jones never issued warehouse receipts to Penney. Instead, Jones issued, and Penney accepted, unloading reports that contained the “owner’s risk” clause. The reports did not meet the requirements for receipts found in § 61-5 of the Act. Missing were the following essential terms: the location of the warehouse where the goods were stored, a statement indicating whether the goods would be delivered to the bearer or to a specified person, the rate of the storage charges, and the signature of the warehouseman. Absence of these terms reveals the parties did not intend to deal through warehouse receipts. Cf. Graves v. Garvin, 272 F.2d 924, 929 (4th Cir. 1959). And nothing in the Act required them to do so. We conclude, therefore, that Jones and Penney were free to fashion their own contract for the storage of goods and that the “owner’s risk” clause was valid. The judgment is affirmed. . This is the rule upon which Penney relies. It was most recently applied in Canty v. Wyatt Storage Corp., 208 Va. 161, 156 S.E.2d 582 (1967). There the Court entered judgment for the owners of property who had proved only delivery to a warehouseman and destruction by fire. The cause of the fire was not shown. The Court pointed out that the effect of the rule was not to shift the ultimate burden of proof from the owner, but merely to shift to the warehouseman the burden of going forward with evidence to prove that the loss was not due to his failure to exercise due care. See also Miller v. Tomlinson, 194 Va. 367, 73 S.E.2d 378 (1952) (garage) ; Glenn v. Haynes, 192 Va. 574, 66 S.E.2d 509, 26 A.L.R.2d 1334 (1951) (attorney) ; John Nix & Co. v. Herbert, 149 Va. 131, 140 S.E. 121, 55 A.L.R. 1098 (1927) (warehouseman.) . With respect to the negligence count in Revenue Aero, the Court held that the burden of proof was also on the owner and that loss by fire from an unexplained origin created no presumption of negligence. Accord, Marsh v. Pennsylvania R.R. Co., 159 Va. 694, 167 S.E. 274 (1933). . Va.Code Ann. §§ 61-1 to -58 (1950), repealed by Acts 1968, c. 69. The Act was superseded by the Uniform Commercial Code. Va.Code Ann. §§ 8.7-101 to 8.7-603 (1965). The loss in this ease occurred, however, before January 1, 1966, when the Uniform Commercial Code became effective. Va.Code Ann. § 8.10-101 (1965). Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_district	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". William Earl HEAD, Petitioner-Appellant, v. UNITED STATES BOARD OF PAROLE (U. S. BOARD COMMISSION), Respondent-Appellee. No. 76-2064. United States Court of Appeals, Seventh Circuit. Submitted Feb. 11, 1977. Decided Feb. 11, 1977. W. Patrick Downes, Hammond, Ind., for petitioner-appellant. John R. Wilks, U. S. Atty., Fort Wayne, Ind., Andrew B. Baker, Jr., Asst. U. S. Atty., Hammond, Ind., for respondent-appellee. Before SWYGERT, SPRECHER and TONE, Circuit Judges. This appeal was originally decided by unreported order on February 11, 1977. See Circuit Rule 35 (formerly Circuit Rule 28). The court has subsequently decided to issue the decision as an opinion. PER CURIAM. Pursuant to Rule 2 of the Federal Rules of Appellate Procedure, this case is considered on the briefs without oral argument, the question presented being insubstantial in light of Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976). On the authority of that case, the judgment of the District Court is affirmed. We reject petitioner’s argument that Moody v. Daggett “only applies to those parolees who have a detainer placed against them while they are in a federal prison.” The reasoning in that case applies to the case at bar, in which the federal detainer was placed against appellant while he was in a state prison. Petitioner’s contention that he was denied the opportunity to present evidence in mitigation because of the death of Richard Young, one of his co-defendants in the state criminal case, is also without merit. Petitioner does not contend that he learned of what Young would have said from Young himself, but alleges that he learned of this from other persons who came to visit petitioner, so the showing that the alleged evidence ever existed is not strong. It is not alleged that any of the other witnesses to the event in issue, all of whom are still alive, would support Young in exculpating petitioner. Moreover, while Young was still alive, petitioner did not urge Young’s alleged exculpatory testimony as a basis for a new trial in the state case or any other state or federal relief. We cannot say that petitioner has made a showing of prejudice that would enable us to distinguish Moody v. Daggett. Affirmed. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_counsel1	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 appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party McWHORTER v. UNITED STATES. No. 13693. United States Court of Appeals Fifth Circuit. Jan. 31, 1952. W. L. Longshore, Birmingham, Ala., for appellant. George Huddleston, Jr., Asst. U. S. Atty., John D. Hill, U. S. Atty., Birmingham Ala., for appellee. Before HOLMES, BORAH, and STRUM, Circuit Judges. BORAH, Circuit Judge. This Í9 an appeal from a conviction for perjury. The indictment charged that on or about October 12, 1950, the defendant, Lola Mildred McWhorter, was duly sworn as a witness before the United States 'Commissioner for the Northern District of Alabama in a case involving a violation of Title 18, Section 2421, United States Code, and willfully, falsely and knowingly gave testimony material to the issues involved therein, namely, whether one Joseph Ralph Morrow had transported the defendant in interstate commerce for the purpose of prostitution. The indictment set forth that in the course of her testimony before the Commissioner she swore that she had entered into an agreement with Morrow to travel with him from Arab, Alabama to Chattanooga, Tennessee for the purpose of engaging in prostitution in Tennessee; that upon their arrival in Tennessee Morrow made arrangements for her to practice prostitution; and that she did so on one occasion. The indictment further charged that at the time the defendant gave this testimony before the United States Commissioner she knew it was false and perjurious and did not believe it to be true. At the trial L. D. Redden, an Assistant United States Attorney, testified that he was present at the preliminary hearing before the 'Commissioner when the defendant was sworn as a witness and that she gave testimony on that occasion as set forth in the indictment. Redden further stated that tlie defendant appeared as a witness before the United States Grand Jury in April 1951, which was then inquiring into a complaint which charged Morrow with transporting the defendant in interstate commerce for the purpose of prostitution, and that she then swore that she had travelled from Alabama to Tennessee with Morrow on one occasion but that it was not the understanding or agreement between them that she would engage in acts of prostitution and that she did not practice prostitution on this trip. Whereupon she was asked whether she recalled giving testimony to the contrary before the United States Commissioner and she answered that she did recall her previous testimony under oath but that it was false and untrue. A special agent of the Federal Bureau of Investigation was called as a government witness at the perjury trial and swore that he was also present at the preliminary hearing before the United States Commissioner. In so far as here material, this witness merely corroborated Redden as to the defendant’s testimony before the 'Commissioner. The only other witness offered by the prosecution was a member of the Grand Jury who corroborated Redden as to the statements made by defendant at its investigation. At the close of the government’s case the defendant moved for a judgment of acquittal. The motion was overruled and defendant declined to offer any evidence. The important question presented by this appeal is whether the trial judge erred in overruling the motion for judgment of acquittal. It is the general rule that to authorize a conviction for perjury the falsity of the statement alleged to have been made by the defendant must be established eithex by the testimony of two independent witnesses, or by one witness and independexit corroborating evidence which is inconsistent with the innocence of the accused. United States v. Wood, 14 Pet. 430, 39 U.S. 430, 10 L.Ed. 527; Hammer v. United States, 271 U.S. 620, 46 S.Ct. 603, 70 L.Ed. 1118; Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495; Cook v. United States, 26 App.D.C. 427; Allen v. United States, 4 Cir., 194 F. 664, 39 L.R.A.,N.S., 385; United States v. Buckner, 2 Cir., 118 F.2d 468. It is also generally held by the courts, in cases where the defendant has by opposite oaths affirmed and denied the same fact, that mere proof of the defendant’s contradictory sworn statements without more is not sufficient to sustain a conviction for perjury. United States v. Wood, supra, 14 Pet. at pages 438, 441-442, 10 L.Ed. 527; Weiler v. United States, supra; United States v. Mayer, Fed.Cas.No. 15753; Phair v. United States, 3 Cir., 60 F.2d 953; Schwartz v. Commonwealth, 1876, 27 Grat., Va., 1025; State v. Burns, 120 S.C. 523, 113 S.E. 351, 25 A.L.R. 414; Williams v. State, 34 Ala.App. 462, 41 So.2d 605; Shoemaker v. State, 29 Okl.Cr. 184, 233 P. 489; Billingsley v. State, 49 Tex.Cr.R. 620, 95 S.W. 520; Smith v. Commonwealth, 180 Ky. 240, 202 S.W. 635, L.R.A.1918E, 927. A third situation which has given the courts some concern is- where, as here, the subsequent inconsistent or contradictory testimony is accompanied by an admission that the testimony previously given was false. In People v. Burden, 1850, 9 Barb., N.Y., 467, the defendant had made two contradictory statements under oath and in the second he had expressly acknowledged the intentional falsity of the first, and it was held that this acknowledgment was sufficient to establish the perjury of the first without further evidence. However, practically all of the authorities which have had occasion to consider the question have refused to follow People v. Burden, and have held that an admission in the second statement of the falsity of the first will not take the case out of the general rule that a conviction for perjury cannot rest upon the defendant’s contradictory statements alone. Schwartz v. Commonwealth, 27 Grat., Va., 1025; State v. Burns, 120 S.C. 523, 113 S.E. 351, 25 A.L.R. 414; Williams v. State, 34 Ala.App. 462, 41 So.2d 605; Blakemore v. State, 39 Okl.Cr. 355, 265 P. 152. What we have just said is not to be confused with the situation which arises where the defendant takes the stand in the perjury trial and formally recants and asserts under oath the falsity of his prior testimony. In this factual situation the defendant’s acts and testimony are to all intents and purposes the same as a plea of guilty to the indictment. United States v. Buckner, 2 Cir., 118 F.2d 468, 469. In the Buckner case the defendant gave testimony before the grand jury that she observed two officers enter certain premises and did not see them leave. As a result of this testimony the police officers were indicted and at their trial the defendant testified that she did not see the officers enter the house and that her testimony before the grand jury was false. Thereafter she was indicted for perjury and at the trial she took the stand in her own behalf and admitted that her testimony before the grand jury had been absolutely false. In its consideration of the case, the court said, “It may be that the proof at the close of the government’s case would have been insufficient to justify the verdict of guilty, for the reason that defendant’s admission of guilt was given in another action but when she took the stand at the trial for perjury formally recanted and asserted under oath the falsity of her prior testimony, any further proof was surely unnecessary. Her acts and testimony had become the practical equivalent of a plea of guilty.” We are squarely presented with the fact situation which the court in the Buckner case indicated might not be sufficient to sustain a conviction for, here the defendant’s admission of the falsity of her prior statement before the Commissioner was made before the Grand Jury and she did not testify at the perjury trail. After mature consideration we have reached the conclusion that the weight of authority and good reasoning support the view that an admission in the second statement of the falsity of the first does not serve to take the case out of the general rule that a conviction for perjury cannot rest merely upon the defendant’s contradictory statements under oath. The reason being that it is impossible to tell which statement is true and which statement is false. Certain it is that the confirmatory evidence may not be supplied by the defendant’s admission of the falsity of the first oath for the obvious reason that the admission itself may be false. Whenever a witness deliberately asserts a ' fact to be true to his knowledge and thereafter deliberately asserts the opposite of the fact as true to his knowledge, assuming that there is no question of innocent mistake, the witness thereby indirectly but unequivocally affirms the falsity of the prior statement. The admission, therefore, adds little if anything to the sum total of evidence that is present in any case where a witness makes two contradictory statements under oath. And as we have pointed out it is the general rule in both the State and federal courts that a conviction for perjury cannot be sustained merely on the contradictory sworn statements of the defendant. Nor does it matter how many witnesses testified at the perjury trial that, they heard the defendant make the contradictory statements for such testimony could not be the equivalent of corroborative proof of the corpus delicti of the offense charged. When the courts speak of corroborative evidence they mean evidence aliunde — evidence which tends to show the perjury independently. Here, there is nothing to establish which statement is true and which is the false, and it is a clear rule of criminal law that if the evidence on the part of the prosecution leaves it wholly uncertain whether the crime charged has been committed or not, the defendant must be acquitted. Accordingly, we are of opinion that the trial court should have granted the motion for judgment of acquittal as requested. The judgment of conviction may not stand and is reversed. . In the early English cases it was held that where the defendant had by opposite oaths affirmed and denied the same fact, mere proof of the defendant’s eontradictory statements was sufficient. Rex v. Knill, 5 B. & Ald. 928. But later English cases established the rule that there must ’ be such confirmatory evidence as proved the falsity of the statement alleged to have been perjured. Regina v. Wheatland, 8 Car. & P. 239, 173 English Reports (Full Reprint) 476; Regina v. Mary Hughes, 1 Car. & K. 519, 174 English Reports (Full Reprint) 919; see 2 Russell on Crimes, p. 651 et seq. Question: What is the nature of the counsel for the appellant? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_genstand	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 civil law issues involving government actors. The issue is: "Did the agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. 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". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Loren A. DECKER, d/b/a Decker Truck Lines, Respondent. No. 16738. United States Court of Appeals Eighth Circuit. Nov. 14, 1961. Russell Specter, Atty., N. L. R. B., Washington, D. C., made argument for petitioner. Stuart Rothman, Gen. Counsel, N. L. R. B., Washington, D. C., Dominick L. Manoli, Associate Gen. Counsel, Marcel-Mallet-Prevost, Asst. Gen. Counsel, Melvin Pollack, Atty., N. L. R. B., Washington, D. C., were with him on the brief. John H. Mitchell, Fort Dodge, Iowa, made argument for respondent and was on the brief. Before SANBORN, MATTHES and RIDGE, Circuit Judges. RIDGE, Circuit Judge. This case is before the Court on petition of the National Labor Relations Board for enforcement of its order of August 26, 1960, issued against Loren A. Decker, d/b/a Decker Truck Lines (hereinafter called Decker) whose terminal is at Fort Dodge, Iowa, within the jurisdiction of this Court. The Board’s Decision and Order are reported in 91 N.L.R.B., at 128. The order in question was made pursuant to Section 10(c) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 160(c). It is based on findings made by the Board: (1) that Decker violated Section 8(a) (5) and (1) of the Act, 29 U.S.C.A. § 158 (a) (5), (1), by refusing to negotiate in good faith, on and after January 21, 1959, with Local Union No. 650, Teamsters, Chauffeurs, Warehousemen & Helpers of America, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, and by unilaterally increasing wages of his employees in July, 1959, after he had negotiated with that Local Union concerning wages; (2) that Decker violated Section 8(a) (3) and (1) of the act by discriminatorily denying trucker Earl Hall work from January 18 to April 11, 1959 and by discriminatorily discharging trucker Carl Reisner on March 18, 1959; (3) that Decker independently violated Section 8(a) (1) of the Act by questioning employees concerning Union activities, threatening them with economic reprisals for such activity, and by soliciting them to withdraw from the Union and to repudiate it, by promising a wage increase and by circulating an anti-Union petition. The Board’s order requires Decker to cease and desist from such unfair labor practices; to take affirmative action to reinstate trucker Reisner and to make trucker Hall whole; upon request to bargain collectively with the Local Union; to preserve and make available to the Board for examination, upon request, his pertinent records; to post at his terminal appropriate notices to be furnished him by the Regional Director ; and to notify the Regional Director what steps he has taken to comply with such directives and order. All that Decker urges in opposition to enforcement of such order is: (1) that he has never been permitted to have an election to determine the question of Union representation, although petitions therefor were filed with the Board by him and also by three of his employees on March 28, 1959; (2) that those petitions were dismissed by the Board without a hearing after the Union filed charges accusing Decker of “unfair labor practices”; (3) that a later petition for an election filed by Decker was also dismissed because the Regional Office of the N.L.R.B. ruled the question of representation was involved in the Union’s charges as made against him and then pending before the N.L.R.B.; (4) that reinstatement of trucker Reisner has been offered and refused and he has made full settlement with Hall. Hence, Decker says, no part of the order should be enforced, and particularly that part of the Board’s order concerning Hall and Reisner, until evidence is taken concerning his right to an election and the present situation of Hall and Reisner. None of the points urged by Decker against enforcement of the Board’s order are leveled against the sufficiency of the evidence to sustain the findings of the Board as made, from which it determined Decker’s unfair labor practices to be in violation of the Act, as above stated. The sum and substance of Decker’s main thrust is stated by him thus: “The issue before the Court is basically one of representation and Decker’s right to an election in (sic) the question of representation and the examiner’s report and the Board’s order deprive (him) of this basic right.” In his brief and by oral argument Decker “states that Union membership is not an issue in this case because Respondent’s employees were already Union members when the Union first approached the Respondent in January, 1959 * - * . Respondent’s employees were required to belong to the Union in order to load and unload trucks at different points.” In the light of the position assumed by Decker toward the order of the Board, enforcement of which is here sought, it is' readily perceived that only one basic question is presented for determination and that may be stated thus: whether under the facts adduced before the N.L.R.B. Decker had a right to petition for an “election” for determination of the exclusive representative for purposes of collective bargaining on behalf of his employees after he was first approached by the Local Union, informed that a majority of his drivers had signed Union cards, and was requested to negotiate with the Local Union. That he had no such right under the Act and rules of the Board will hereinafter be demonstrated. As a consequence, this opinion may be capsulated by categorically stating that a reading of the record as a whole reveals substantial evidence in support of each of the findings made by the Board in this case and it is most convincing therefrom that the Board correctly determined that Decker refused to bargain in good faith with Local Union 650, in violation of Section 8(a) (5) and (1) of the Act. These salient facts appear from the record. On January 10, 1959, six of the eight over-the-road drivers regularly employed by Decker met with a representative of Local Union 650 and signed cards authorizing that Union to act as their collective bargaining agent with Decker. January 21, 1959, Melvin Jensen, Business Representative of Local 650, called on Decker, informed him that he had with him Union cards from six of Decker’s drivers and requested him to recognize that Union as the bargaining representative of his drivers and for an opportunity to negotiate a contract. Jensen offered to show Decker the Union cards. Decker did not ask to see the cards, instead Decker put Jensen off with a flimsy reason. February 4, 1959, Jensen returned to Decker’s terminal to renew his request for negotiations.. This time he was ordered off the premises by Decker. February 11, 1959, Jensen advised Decker that the drivers would strike unless the Union was recognized and a contract agreed upon by February 21, 1959. At that time, all eight regular drivers of Decker had signed Union cards. February 16, 1959, Decker consulted his attorney, who merely informed Jensen that his client “is going to require that your Union be certified” by the N.L.R.B. “When the certification is made the Company is ready: — (and) will promptly arrange for bargaining sessions.” Subsequent thereto, but before March 27,1959, Decker, his Attorney and Jensen had several conferences at which contract provisions were negotiated. It is admitted that an agreement on a wage scale was reached before March 27, 1959. On the last-mentioned date a letter was sent by Decker’s Attorney to Jensen, in which it was stated in part: “the addendum has not been signed by Loren Decker and (sic) he believes there should be an election to determine the bargaining agent for his employees.” That letter also contained this significant paragraph: “This is brought about because of real serious trouble he is having with his employees, and it is my understanding that they too will ask for an election.” There is substantial evidence in the record that the “trouble” referred to in that letter was the result of threats of discharge, coercion, intimidation, promise of wage increase, encouraging employees to negotiate directly with Decker, and circulation of anti-Union petition sponsored by Decker. The following was also established; after Decker learned of Union activities on the part of his employees, he interrogated the drivers concerning that matter and threatened them with reprisals and Decker singled out Hall, Reisner and another employee as the ones whom he believed to be responsible for Union activities coming into his business. Although eight of his employees had signed Union cards before February 7, 1959, by mid-March the Union’s majority had been dissipated because of Decker’s above-mentioned conduct. In a move to get a contract executed to which the Union would not be a party, Decker held a meeting in his office, with all employees present. Here Decker said he would give them a raise but he could not afford to sign a Union contract. Thereafter, Hall, who refused to go along, was discriminatively denied runs, and Carl Reisner was terminated, as the Board found, “because of Decker’s desire to get rid of one of the last Union adherents on his payroll.” Notwithstanding-the foregoing and other matters shown in the record, it was not until April 10, 1959, that Decker filed a petition for an election with the N.L.R.B. No action was taken on that petition by the Board because of the Union’s unfair labor charges filed against Decker on April 19, 1959. Effective July 12, 1959, , ... ,, Decker, without prior consultation or no- ,. . .. TT . ... ~ , tice to the Union, put into effect wage , .. ... ’ ,. ... ,, rates identical with those set out m the TT , , Union s addendum prepared for Decker s , , , T signature after negotiations between Jen- ° . .. f . sen, Decker and his lawyer. It is too late, in light of the declared wisdom found in the National Labor Relations Act, for an employer to drift into an eddy, as Decker does, and now make the contention that he has no duty to bargain with a particular Union until it has been certified by the Board, after an election. Under the N.L.R.B., “An employer is under a duty to bargain as soon as the union representative presents convincing evidence of majority support.” N. L. R. B. v. Dahlstrom Metallic Door Co., 2 Cir., 1940, 112 F.2d 756, 757. “The Act is clear in intent, and it has been too well established to require extended discussion, that election a.nd certification proceedings are not the only method of determining majority representation * Matter of L. B. Hartz Stores, 1946, 71 N.L.R.B. 848, 871. See also I. O. B. et al. v. Los Angeles Brewing Co., Inc., et al., 9 Cir., 1950, 183 F.2d 398, 405, and cases there cited. Decker’s contention, that he had no duty to bargain until Local 650 had established its majority status by a Board election, is frivolous. Medo Photo Corp. v. N. L. R. B., 1944, 321 U.S. 678, 64 S.Ct. 830, 321 U.S. 678; N. L. R. B. v National Seal Corp., 2 Cir., 1942, 127 F.2d 776. “He made no inquiry of the Union’s agents or, so far as it appears, of any one else as to who constituted the majority for the Union” when he was first asked to negotiate, “but merely engaged in acts violative of the Act,” similar to those considered by this Court in N. L. R. B. v. Wheeling Pipe Line, Inc., 8 Cir., 1956, 229 F.2d 391, at page 393. Under Section 9(c) (1) of the National Labor Relations Act, 29 U.S.C.A. § 159(c) (1), it has been held: (¡„, . , , There is no absolute right vested . . , . . , ,. m an employer to demand an election, T T . , „ . „ I. O. B. v. Los Angeles Brewing Co. , . T„ , . , (supra). If an employer m good . ... , , , ,, . , . ., . faith doubts the union s majority, he ... , . , ,. . ’ may, without violating the Act, re- . , ,, ... ., fuse to recognize the union until its daim is established by a Board election. A doubt professed by an employer as to the union’s majority claim must be genuine. Otherwise employer has a duty to bargain an<^ may no^ insist upon a.n eleetion. See N. L. R. B. v. Trimfit of California, 9 Cir., 1954, 211 F.2d 206, 209. Accord Joy Silk Mills v. N. L. R. B., 1950, 87 U.S.App.Div. D.C. 360, 185 F.2d 732. jn case a-¿ there is no evidence, or even a suggestion on the part of Decker that he ever had a bona fide doubt as to the Local Union 650’s majority status ¡n january; 1959. On the contrary, it is clearly established that as soon as Decker learned that a majority of his employees had signed cards with that Union he immediately began to pursue a course of conduct in an attempt to dissipate that majority. As said in N. L. R. B. v. Trimfit of California, supra, 211 F.2d l. c. 210: “(He) consistently refused to bargain with the union, which at all relevant times represented a majority of (his) employees. Not once (from January 21, 1959 to February 7, 1959) did (Decker) challenge the union’s right to represent (his) employees. On both of these occasions the union informed (Decker) that a majority of (his) employees had signed union cards. There was no necessity for the union to offer proof of the genuineness of its majority claim absent a challenge by (Decker). (His) refusal to bargain was not based upon any doubt that the - union spoke for a majority of the . employees. (Decker) would have refused to bargain had every employee in the plant signed authorization cards” (which is an established fact in the record of the case at bar). (Par. added) The “findings of the Board (are) conclusive with respect to questions of fact — * * * when supported by substantial evidence on the record as a whole * * N. L. R. B. v. Denver Building & Construction Trades Council, et al., 1951, 341 U.S. 675, 691, 71 S.Ct. 943, 953, 77 L.Ed. 1284. In keeping with the Act, we find that on the record as a whole there is substantial evidence to support the totality of the Board findings as made in this case. The only other matter that should be noticed in this case is the point made by -Decker in argument but which he does not undertake to support by fortifying authority, namely, “it is necessary that additional evidence be taken to protect Respondent’s rights in this case. So the Respondent files this Application ; “The Respondent respectfully requests that enforcement of the Board’s order be denied- and that it particularly be denied until such time . as the Respondent is- given an opportunity to protect his statutory and constitutional rights by the introduction of evidence on the question of representation and on the question of full compliance with the Board’s order as far as the employees Hall and Reisner are concerned.” The record made before the Trial Examiner and considered by the Board in this case patently reveals that Decker, with counsel, was given every opportunity to participate, and did so fully, in all hearings leading up to the cease and desist order as entered by the Board. The “question of representation” was thoroughly sounded at the hearings, and this specific finding was made by the Examiner in his report: “It is apparent from Decker’s own testimony, * * * that he never accepted the principle of negor tiating with the Union as the exclusive bargaining agent for his employees.” The evidence which Decker says he now wants to introduce in the record is directed to the proposition that the Union had lost a majority of his employees at the time he filed a petition for an election, and to develop his compliance with the Board’s order as to Reisner and Hall. It is well established that where the Union’s loss of majority is attributable to the employer’s unfair labor practices, as found by the Board in this case, the Union does not lose its representative status. Medo Corp. v. N. L. R. B. supra; Franks Bros. Co. v. N. L. R. B., 1944, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020. Compliance may not be raised as a bar to the enforcement of a Board order. N. L. R. B. v. Mexia Textile Mills, Inc., 1950, 339 U.S. 563, 569, 70 S.Ct. 833, 94 L.Ed. 1067; N. L. R. B. v. Swift & Co., 8 Cir., 1942, 129 F.2d 222, 224. Enforcement of the order is awarded as prayed. . The Board has a policy not to conduct representative elections during the pend-ency of unfair labor practice charges. N. L. R. B. v. Trimfit of California, 9 Cir., 1954, 211 F.2d 206, 209, note 2. Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_procedur	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. BARLOW v. BUDGE. In re LIBERTY POSTER CO. No. 12008. Circuit Court of Appeals, Eighth Circuit. April 20, 1942. Rehearing Denied May 11, 1942. Louis H. Joss, of Minneapolis, Minn. (M. E. Culhane, of Minneapolis, Minn., on the brief) for appellant. Edward J. Loring, of Minneapolis, Minn. (Albert M. Anderson, of Minneapolis, Minn., on the brief), for appellee. Before SANBORN and JOHNSEN, Circuit Judges, and NORDBYE, District Judge. SANBORN, Circuit Judge. The question for decision is whether the claim of the appellee, who was a director, an officer and a stockholder of The Liberty Poster Company, which has been adjudged a bankrupt, must be subordinated to the claims of other creditors. The bankrupt is a Minnesota corporation, which was organized in 1919 by C. A. Rose, F. H. Paulsen, W. P. Budge and R. E. Morrissey to do a printing business. Its’ capital stock was $20,000, of which each of its stockholders owned one-fourth. In 1925 Paulsen, who had been Vice-President, withdrew and sold his stock to the other stockholders, each of whom thereafter owned one-third of the stock of the corporation. After 1925 its stockholders were Rose, Budge and Morrissey, and its acting and active directors and officers were Rose and Budge. Rose acted as President and General Manager; Budge, as Secretary and Treasurer. In 1938 Morrissey became a director. From 1919 to 1930 the bankrupt’s business was reasonably successful, but, like many other corporations, it then fell upon evil days. In 1931 its net profit was $109.-22, and that was the last year in which it made a profit, except for the year 1935 when a net profit of $332.30 was realized. In the years 1930 and 1931 Budge’s salary of $1,040 per annum was not paid. By 1934 the capital of the bankrupt was impaired to the extent of $2,169.97. In 1935 there were occasions when the bankrupt was without sufficient funds to meet the weekly payroll, and at such times Budge made necessary advances. In 1935 the total advances made by Budge were $3,450. In 1936 a new press was purchased for $13,200. An old press, for which $3,-500 was allowed, was exchanged in part payment. Budge advanced $2,000 in cash, and the $8,000 balance of the purchase price was covered by a mortgage. During 1936 the corporation had gross sales of $55,302, hut by the end of the year the impairment of capital was $2,926.63. In February, 1937, Budge advanced $500 to the bankrupt, and in August, 1937, $250. He received from the bankrupt, in part payment of its indebtedness to him, $2,060 by 1932, $1,000 in 1936, and $250 on September 8, 1937. Budge advanced to. the bankrupt a total of $6,200; it owed him for salary for the years 1931 and 1932, $2,080; and it had paid him $3,310, leaving an unpaid balance due him of $4,970. He made no advances after August, 1937, and received no repayments after September 8, 1937. From July 1, 1937, the claims of other creditors of the bankrupt began to accumulate. At the end of 1937 the bankrupt owed creditors other than Budge $4,913.15, and the impairment of capital was $8,932.29. By the end of 1938 additional indebtedness to creditors amounted to $4,374.18 and capital impairment was $14,634.48. The corporation was adjudged bankrupt April 22, 1939. The schedules showed liabilities (including the indebtedness to Budge) of $14,646.22, and assets of $11,748.81. Budge filed a claim for $4,970. The Trustee objected to the allowance of the claim. A hearing was had before the Referee. Budge testified, in substance, that he had made the loans to the corporation in good faith and to supply necessary funds; that no arrangements were made with other stockholders before the advances were made, but that at times he told Rose lie would put in money; that all of the transactions were shown upon the hooks of the corporation; and that there was no agreement as to the withdrawal of the funds advanced. Budge further testified that he kept the books of the bankrupt and drew its checks. He charged no interest for the advances. He made no charge for his services after 1931. The Trustee conceded that Budge advanced the money he claimed to have advanced and that it was used for corporate purposes. No question was raised as to the reasonableness of Budge’s claim for salary for the years 1930 and 1931, and the Referee evidently treated the salary claim as having been discharged by the repayments made prior to 1935. The charter of the bankrupt limited the indebtedness to $10,000. The by-laws provided for a board of three directors, who should control and manage the corporation. The by-laws also provided that no contract by the “General Manager” for the purchase of equipment involving more than $200 should be entered into without the approval of the board of directors, and that no dividends should be declared which would impair the capital of the corporation. The by-laws provided that the officers’ salaries should be fixed by the hoard of directors. The last action of the board of directors with reference to salaries, as shown by the minutes, was taken at a meeting of stockholders held July 19, 1921. Meetings of stockholders and of directors were held on July 18, 1922, at which Rose, Paulsen and Budge were elected directors and President, Vice-President, Secretary and Treasurer, respectively. There were no records of any other meetings of stockholders or directors from 1922 until 1938. Rose was the manager of the business and was paid $45 a week from the beginning. Rose and Budge ran the business and on many occasions would get together and discuss its affairs. Income, social security, and unemployment tax returns were made by the bankrupt as a corporation. The creditors dealt with it as a corporation. There can be no doubt that Rose and Budge dominated and controlled the affairs of the. bankrupt and that they did .not observe the formalities of corporate management with respect to holding meetings of stockholders and directors. Neither did they observe the charter requirement that the indebtedness of the corporation should not exceed $10,000, for, in the year 1935 and thereafter, the indebtedness was in excess of that amount. They did not procure the formal approval of the board of directors for the purchase of machinery, and ignored the provision of the bylaws in that regard. It is to be noted, however, that the advisability of purchasing the new printing press in 1936 was discussed and presumably its purchase was informally approved by all of the stockholders of the bankrupt. The Referee found that Budge had acted in good faith and that his acts and conduct could not be considered even constructively fraudulent as to other creditors and that he was entitled to share in the assets of the estate on a parity with them. The Trustee petitioned for a review of the Referee’s order. The District Court ordered the claim of Budge allowed, saying: “I find nothing here suggesting ‘the history of a deliberate and carefully planned attempt’ on the part of Budge to accomplish a fraud on creditors such as was the situation in Pepper v. Litton, 308 U.S. 295 [60 S.Ct. 238, 84 L.Ed. 281], upon which the Trustee so heavily relies. The controlling features in this case it seems to me are the presence of the conceded good faith of the claimant and that in this good faith the loans were made for the benefit of the corporation. Under such circumstances equity and good conscience suggest the allowance of the claim.” The appellant contends that the facts compel the subordination of Budge’s claim to the claims of other creditors. He asserts that the domination and control shown to have been exercised by Budge and Rose made them fiduciaries, and that when Budge’s claim was challenged the burden was upon him to show the fairness of his dealings with the assets of the bankrupt on behalf of creditors, and that his evidence shows that the affairs of the corporation were conducted for the benefit of himself and Rose and to the detriment of creditors. The Trustee also asserts that the substance and form of corporate management was disregarded by Budge and Rose, and that they conducted the business as though it were a partnership or joint venture. The Trustee further argues that Budge’s contributions were made to preserve his own investment and should be treated as contributions to capital at least in so far as other creditors are concerned. It can not be said that appellant’s contentions are without merit. While there can be no doubt of the validity of the claim of Budge against the bankrupt, one can believe that, because of the way in wnich he and Rose managed the business and because of their failure to conduct the affairs of the corporation in accordance with the charter and by-laws, Budge’s rights as a creditor should not be placed upon an equitable parity with the rights of other creditors in a distribution of assets. It is probable, we think, that the Referee and the court below could have subordinated the claim of Budge to the claims of other creditors on a finding that his informal and irregular conduct of the affairs of the bankrupt had prejudiced their rights and was a violation of Budge’s duty toward them. We hesitate to say, however, that, under the evidence, the court of bankruptcy was compelled to subordinate Budge’s claim to the claims of other creditors, believing, as it did, that Budge was guilty of no fraud and of no unfairness in his dealings with the bankrupt. As a practical matter, it is difficult to see in what way the informal manner in which the corporate affairs were handled prejudiced the rights of creditors. There is no claim that any creditor was deceived as to the nature of the bankrupt’s business, as to who was in charge of its affairs, or as to its financial condition. The books of account were properly kept and reflected the assets and liabilities of the bankrupt. It is, of course, evident now that from a creditor’s standpoint it was a mistake to attempt to continue the business of the bankrupt after 1930 or 1931. It is not our understanding, however, that a mere mistake of judgment in continuing a business which is in financial difficulties is in any respect akin to fraud or unfairness. The unfavorable business conditions which prevailed during the 1930’s are a matter of common knowledge. Businessmen were urged to continue operations in the face of adverse conditions, to prevent further unemployment and in the hope that their businesses might survive. Legislation, both state and national, was enacted to prevent individuals and corporations from going to the wall. That Budge and Rose met with failure in their attempts to make the bankrupt’s business successful does not seem to us a sufficient basis to justify penalizing Budge for participating in the attempt. All that Budge and Rose did directly and informally, they could have done indirectly and formally. Whatever was done by the bankrupt in borrowing money from Budge was apparently known to and approved or fully acquiesced in by all of the three stockholders. The evidence does not justify an inference that Budge manipulated the affairs of the corporation for his own personal advantage. The inference which is justified by the evidence is that the advances which Budge made were made in good faith to enable the bankrupt to meet pressing obligations and to remain in business. The advances were made before the creditors, to whose claims it is now contended Budge’s claim should be subordinated, had become creditors. The rule appears to he that where a claimant is a person or corporation having complete ownership and control of a bankrupt corporation, which the claimant has organized, controlled and operated as a mere agent, adjunct or instrumentality for his own purposes and benefit, the courts will disregard the corporate entity at least so far as other creditors are concerned and deny to the alleged creditor participation on a parity with them. But, while the dealings of an officer, director or stockholder who files a claim against a bankrupt corporation for money loaned to it will be subjected to rigorous scrutiny and the claimant required to prove the good faith of the transaction upon which the claim is based and also its fairness from the point of view of the corporation and those interested in it (Geddes v. Anaconda Copper Mining Co., 254 U.S. 590, 599, 41 S.Ct. 209, 65 L.Ed. 425; Pepper v. Litton, 308 U.S. 295, 306, 60 S.Ct. 238, 84 L.Ed. 281), his relation to the bankrupt will not prevent the allowance of his claim on a parity with other creditors if he can show that the money was needed by the corporation and was used for proper corporate purposes and that the transaction between him and. the corporation was open, honest and free from unfairness or fault. We think that the duty and responsibility of determining - whether, under the applicable law, the claim of Budge was upon an equitable parity with the claims of other creditors was primarily that of the bankruptcy court, which was charged with the administration of this insolvent estate, and that this Court would not be justified in setting aside the order appealed from unless convinced that it was clearly erroneous. We are not convinced that it was clearly erroneous. The order appealed from is affirm.ed. In re H. Hicks & Son, Inc., 2 Cir., 82 F.2d 277; Forbush Co. v. Bartley, 10 Cir., 78 F.2d 805; In re Kentucky Wagon Mfg. Co., 6 Cir., 71 F.2d 802; In re Burntside Lodge, Inc., D.C., 7 F.Supp. 785; In re Mill Run Lumber Co., D.C., 4 F.Supp. 807; Clere Clothing Co. v. Union Trust & Savings Bank, 9 Cir., 224 F. 363; Pepper v. Litton, 308 U.S. 295, 307-311, 60 S.Ct 238, 84 L.Ed. 281; 8 C.J.S., Bankruptcy, § 385, pp. 1217, 1218. Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, 589, 590, 23 L.Ed. 328; Pepper v. Litton, 308 U.S. 295, 306, 307, 60 S.Ct. 238, 84 L.Ed. 281; Finn v. George T. Mickle Lumber Co., 9 Cir., 41 F.2d 676; First National Bank v. Young’s Estate, 6 Cir., 41 F.2d 8; Wheeler v. Smith, 9 Cir., 30 F.2d 59; In re Sassy Jane Mfg. Co., 9 Cir., 4 F.2d 55; In re American Range & Foundry Co., D.C., 22 F.2d 558. See, also, Sanford Fork & Tool Co. v. Howe, Brown & Co., Ltd., 157 U.S. 312, 15 S.Ct. 621, 39 L.Ed. 713. In re Lake Chelan Land Co., 9 Cir., 257 F. 497, 5 A.L.R. 557. 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:
sc_issuearea	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. FISCHER v. UNITED STATES No. 99-116. Argued February 22, 2000 Decided May 15, 2000 Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scaua, J., joined, post, p. 682. Mark L. Horwitz argued the cause for petitioner. -With him on the briefs were Glen J. Ioffredo, Jeffrey T Green, and Kristin G. Koehler. Lisa Schiavo Blatt argued the cause for the United States. With her on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, and Deputy Solicitor General Dreeben. Lisa Kemler filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal. Justice Kennedy delivered the opinion of the Court. The federal bribery statute prohibits defrauding organizations which “receiv[e], in any one year period, benefits in excess of $10,000 under a Federal program.” 18 U. S. C. § 666(b). We granted certiorari to determine whether the statute covers fraud perpetrated on organizations participating in the Medicare program. Upon consideration of the role and regulated status of hospitals as health care providers under the Medicare program, we hold they receive “benefits” within the meaning of the statute. We affirm petitioner’s convictions. I Petitioner Jeffrey Allan Fischer was president and partial owner of Quality Medical Consultants, Inc. (QMC), a eorpora- . tion which performed billing audits for health care organizations. In 1993 petitioner, on QMC’s behalf, negotiated a $1.2 million loan from West Volusia Hospital Authority (WVHA), a municipal agency responsible for operating two hospitals located in West Volusia County, Florida. Both hospitals participate in the Medicare program, and in 1993 WVHA received between $10 and $15 million in Medicare funds. A February 1994 audit of WVHA’s financial affairs raised questions about the QMC loan. An investigation revealed QMC used the loan proceeds to repay creditors and to raise the salaries of its five owner-employees, including petitioner. It was determined that petitioner had arranged for QMC to advance at least $100,000 to a private company owned by an individual who had assisted QMC in securing a letter of credit in connection with the WVHA loan. QMC, at petitioner’s directive, also committed portions of the loan proceeds to speculative securities. These investments yielded losses of almost $400,000. The investigation further uncovered use of the loan proceeds to pay, through an intermediate transfer, a $10,000 kickback to WVHA’s chief financial officer, the individual with whom petitioner had negotiated the loan in the first instance. QMC defaulted on its obligation to WVHA and filed for bankruptcy. In 1996 petitioner was indicted by a federal grand jury on 13 counts, including charges of defrauding an organization which receives benefits under a federal assistance program, 18 U. S. C. § 666(a)(1)(A), and of paying a kickback to one of its agents, § 666(a)(2). A jury convicted petitioner on all counts charged, and the District Court sentenced him to 65 months’ imprisonment and a 3-year term of supervised release. Petitioner, in addition, was ordered to pay $1.2 million in restitution. On appeal petitioner argued that the Government failed to prove WVHA, as the organization affected by his wrongdoing, received “benefits in excess of $10,000 under a Federal program,” as required by 18 U. S. C. § 666(b). Rejecting the argument, the United States Court of Appeals for the Eleventh Circuit affirmed the convictions. 168 F. 3d 1273 (1999). It held that funds received by an organization constitute "benefits” within the meaning of § 666(b) if the source of the funds is a federal program, like Medicare, which provides aid or assistance to participating organizations. Id., at 1276-1277. Entities receiving federal funding under ordinary commercial contracts, the court stated, fall outside the statute’s coverage. Ibid., (citing and discussing United States v. Copeland, 143 F. 3d 1439 (CA11 1998) (holding that federal funds received under a contract to construct military aircraft did not constitute “benefits” within the meaning of § 666(b))). The court added that its construction furthered “the statute’s purpose of protecting from fraud, theft, and undue influence by bribery the money distributed to health care providers, and WVHA in particular, through the federal Medicare program and other similar federal assistance programs.” 168 F. 3d, at 1277. It rejected the view that the Medicare program provides benefits only to its “targeted recipients,” the qualifying patients. Id., at 1278 (disagreeing with United States v. LaHue, 998 F. Supp. 1182 (Kan. 1998), aff’d, 170 F. 3d 1026 (CA10 1999)). We granted certiorari, 528 U. S. 962 (1999), and we affirm. II A The nature and purposes of the Medicare program give us essential instruction in resolving the present controversy. Established in 1965 as part of the Social Security Act, 42 U. S. C. § 1395 et seq. (1994 ed. and Supp. Ill), Medicare is a federally funded medical insurance program for the elderly and disabled. In fiscal 1997 some 38.8 million individuals were enrolled in the program, and over 6,100 hospitals were authorized to provide services to them. U. S. Dept, of Health and Human Services, Health Care Financing Administration, 1998 Data Compendium 45, 75 (Aug. 1998). , Medicare expenditures for hospital services exceeded $123 billion in 1998, making the Federal Government the single largest source of funds for participating hospitals. See Cowen et ah, National Health Expenditures, 1998, 21 Health Care Financing Review 165, 208 (Winter 1999) (Table 11). This amount constituted 32% of the hospitals’ total receipts. Ibid. Providers of health care services, such as the two hospitals operated by WVHA, qualify to participate in the program upon satisfying a comprehensive series of statutory and regulatory requirements, including particular accreditation standards. Hospitals, for instance, must satisfy licensing standards, 42 CFR § 482.11 (1999); possess a governing body to "ensure that there is an effective, hospital-wide quality assurance program to evaluate the provision of patient care,” § 482.21; and employ a “well organized” medical staff accountable on matters relating to “the quality of the medical care provided to patients,” § 482.22(b). Medicare’s implementing regulations also require hospitals, among many other standards, to maintain and provide 24-hour nursing services, § 482.23; complete medical record services, § 482.24; “pharmaceutical services that meet the needs of the patients,” § 482.25; and organized dietary services staffed with qualified personnel, §482.28. The regulations go further, requiring hospital facilities to “be constructed, arranged, and maintained to ensure the safety of the patient, and to provide facilities for diagnosis and treatment and for special hospital services appropriate to the needs of the community.” §482.41. Compliance with these standards provides the Government with assurance that participating providers possess the capacity to fulfill their statutory obligation of providing “medically necessary” services “of a quality which meets professionally recognized standards of health care.” 42 U. S. C. § 1320c-5(a). Peer review organizations monitor providers’ compliance with these and other obligations. §1320c-3(a); 42 CFR §466.71 (1999). Sanctions for noncompliance include dismissal from the program. 42 U. S. C. § 1320c-5(b)(l). Medicare attains its objectives through an elaborate funding structure. Participating health care organizations, in exchange for rendering services, receive federal funds on a periodic basis. §§1395g, 13951. The amounts received reflect the “reasonable cost” of services rendered, defined as “the costs necessary in the efficient delivery of needed health services to individuals covered [by the program].” § 1395x(v)(l)(A). Necessary costs are not limited to the immediate costs of an individual treatment procedure. Instead they are defined in broader terms: “Necessary and proper costs are costs that are appropriate and helpful in developing and maintaining the operation of patient care facilities and activities.” 42 CFR § 413.9(b)(2) (1999). Allowable costs include amounts which enhance the organization's capacity to provide ongoing, quality services not only to eligible patients but also to the community at large. By way of example, amounts incurred for “certain educational programs for interns and residents, known as [graduate medical education] programs, are ‘allowable cost[s]’ for which a hospital (a provider) may receive reimbursement.” Regions Hospital v. Shalala, 522 U. S. 448, 452 (1998) (citing 42 CFR § 413.85(a) (1996)); see also § 413.85(b) (1999); Thomas Jefferson Univ. v. Shalala, 512 U. S. 504, 507-508 (1994) (describing regulation of education programs). “These programs,” the Medicare regulations explain, “contribute to the quality of patient care within an institution and are necessary to meet the community’s needs for medical and paramedical personnel. . . . [M]any communities have not assumed responsibility for financing these programs and it is necessary that support be provided by those purchasing healthcare. Until communities undertake to bear these costs, the program will participate appropriately in the support of these activities.” 42 CFR § 413.85(e) (1999). Medicare also permits, indeed encourages, these providers to deposit the amounts of reimbursements received for depreciation costs and other cash into sinking funds called “funded depreciation accounts.” §413.134(e). Investment income earned on these funds does not operate to reduce a provider’s interest expense, §413.153(b)(2)(iii), creating incentives to maintain modern medical equipment and facilities. The Medicare regulations, furthermore, afford certain provider organizations “special treatment,” intended to ensure the ongoing availability of medical services for qualifying patients. See 42 CFR pt. 412G (1999). Providers qualifying as “Medicare-dependent, small rural hospitals],” for instance, are entitled to additional, “lump sum” payments to compensate for significant declines in demand for patient care. § 412.108. The additional funds enable a provider to “maintain] [its] necessary core staff and services” and to satisfy its “fixed (and semi-fixed) costs.” §§ 412.108(d)(3)(A), (B). So too does the Medicare program authorize “special treatment” for, among other providers, “sole community hospitals,” “renal transplantation centers,” and “hospitals that serve a disproportionate share of low-income patients.” See §§ 412.92,412.100,412.106. The subsidies assist providers in satisfying those financial obligations necessary to continue as going concerns in accordance with the program’s requirements. See, e.g., § 412.92(d)(2). In the normal course Medicare disbursements occur on a periodic basis, often in advance of a provider’s rendering services, 42 U.S.C. §1395g(a); 42 CFR §§413.60, 413.64 (1999). The payment system serves to “protect providers’ liquidity,” Good Samaritan Hospital v. Shalala, 508 U. S. 402, 406 (1993), thereby assisting in the ongoing provision of services. 42 CFR § 413.5(b)(1) (1999) (requiring reimbursement method to “result in current payment so that institutions will not be disadvantaged, as they sometimes are under other arrangements, by having to put up money for the purchase of goods and services well before they receive reimbursement”); § 413.5(b)(6) (reimbursement system must operate under “recognition of the need of hospitals and other providers to keep pace with growing needs and to make improvements”). The program, then, establishes correlating and reinforcing incentives: The Government has an interest in making available a high level of quality of care for the elderly and disabled; and providers, because of their financial dependence upon the program, have incentives to achieve program goals. . The nature of the program bears on the question of statutory coverage. B Section 666 of Title 18 of the United States Code prohibits acts of theft and fraud against organizations receiving funds under federal assistance programs. The statute in relevant part provides as follows: “(a) Whoever, if the circumstance described in subsection (b) of this section exists— “(1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof — ' “(A) embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies, property that— “(i) is valued at $5,000 or more, and “(ii) is owned by, or is under the care, custody, or control of such organization, government, or agency; or “(B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more; or “(2) corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more; “shall be fined under this title, imprisoned not more than 10 years, or both. “(b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance. “(c) This section does not apply to bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business.” Liability for the acts prohibited by subsection (a) is predicated upon a showing that the defrauded organization “receive[d], in any one period, benefits in excess of $10,000 under a Federal program.” § 666(b). Those benefits can be in the form of “a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.” Ibid. All agree Medicare is a federal assistance program, see 42 CFR §400.200 (1999), and that WVHA, as the organization defrauded by petitioner’s actions, received in excess of $10,000 in payments under the program. The sole point in contention is whether those payments constituted “benefits” within the meaning of subsection (b). Petitioner argues that the Medicare program provides benefits to the elderly and disabled but not to the health care organizations. Provider organizations, in petitioner’s view, do no more than render services in exchange for compensation. Under petitioner’s submission the Medicare program envisions a single beneficiary, the qualifying patient. The Government, in opposition, urges that a determination whether an organization receives “benefits” within the meaning of § 666(b) turns on whether the Federal Government was the source of the payment. Funds received under a federal assistance program, the Government asserts, can be traced from federal coffers, often through an intermediary or carrier, to the health care provider. Under its view, the “federal-program source of the funds” satisfies the benefits definition. Brief for United States 11. We reject petitioner’s reading of the statute but without endorsing the Government’s broader position. We conclude Medicare payments are “benefits,” as the term is used in its ordinary sense and as it is intended in the statute. The noun “benefit” means “something that guards, aids, or promotes well-being: advantage, good”; “useful aid”; “payment, gift [such as] financial help in time of sickness, old age, or unemployment”; or “a cash payment or service provided for under an annuity, pension plan, or insurance policy.” Webster’s Third New International Dictionary 204 (1971). These definitions support petitioner’s assertion that qualifying patients receive benefits under the Medicare program. It is commonplace for individuals to refer to their retirement or health plans as “benefits.” So it ought not to be disputed that the elderly and disabled rank as the primary beneficiaries of the Medicare program. See 42 U. S. C. §§ 1395c, 1395j; 42 CFR § 400.202 (1999) (defining “beneficiary” as the “person who is entitled to Medicare benefits”); Shalala v. Guernsey Memorial Hospital, 514 U. S. 87, 91 (1995) (“Under the Medicare reimbursement scheme . . . participating hospitals furnish services to program beneficiaries and are reimbursed by the Secretary through fiscal intermediaries”); Good Samaritan Hospital, 508 U. S., at 404 (same). That one beneficiary of an assistance program can be identified does not foreclose the existence of others, however. In this respect petitioner’s construction would give incomplete meaning to the term “benefits.” Medicare operates with a purpose and design above and beyond point-of-sale patient care, and it follows that the benefits of the program extend in a broader manner as well. The argument limiting the term “benefits” to the program’s targeted or primary beneficiaries would exclude, for example, a Medicare intermediary (such as Blue Cross and Blue Shield), a result both parties disavow. For present purposes it cannot be disputed the providers themselves derive significant advantage by satisfying the participation standards imposed by the Government. These advantages constitute benefits within the meaning of the federal bribery statute, a statute we have described as “expansive,” “both as to the [conduct] forbidden and the entities covered.” Salinas v. United States, 522 U. S. 52, 56 (1997). Subsection (b) identifies several sources as providing benefits under a federal program — “a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.” 18 U. S. C. § 666(b). This language indicates that Congress viewed many federal assistance programs as providing benefits to participating organizations. Coupled with the broad substantive prohibitions of subsection (a), the language of subsection (b) reveals Congress’ expansive, unambiguous intent to ensure the integrity of organizations participating in federal assistance programs. Subsection (c) of the statute bears on the analysis. The provision removes from the statute’s coverage any “bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business.” § 666(e). Petitioner argues that the subsection operates to exclude the payments in question because they are either “compensation” or “expenses paid or reimbursed,” or some combination of the two, and that the payments are made in the “usual course of business.” We disagree. The subsection provides that the specified sorts of payments are not ones to which the section applies. One inference from this formulation is that the described payments would have been benefits but for the subsection (c) exemption. We need not go so far. Even assuming the examples of subsection (c) bear upon the definition of benefits, statutory examples of nonapplieability do not necessarily give rise to the inference that absent the enumeration the statute would otherwise apply. To define all subsection (c) payments as exempted benefits would go well beyond the ordinary meaning of thé word. On the other hand, the statute is not written to say: “The term ‘benefits’ does not include bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business.” We must construe the term “benefits,” then, in a manner consistent with Congress’ intent not to reach the enumerated class of transactions. See S. Rep. No. 98-225, p. 370 (1984) (“[N]ot every Federal contract or disbursement of funds would be covered [under § 666]. For example, if a government agency lawfully purchases more than $10,000 in equipment from a supplier, it is not the intent of this section to make a theft of $5,000 or more from thé supplier a Federal crime”). We do not accept the view that the Medicare, payments here in question are for the limited purposes of compensating providers or reimbursing them for ordinary course expenditures. The payments are made for significant and substantial reasons in addition to compensation or reimbursement, so that neither these terms nor the usual course of business conditions set forth in subsection (c) are met here. The payments in question have attributes and purposes well beyond those described in subsection (c). These attributes and purposes are consistent with the definition of “benefit.” While the payments might have similarities to payments an insurer would remit to a hospital quite without regard to the Medicare program, the Government does not make the payment unless the hospital complies with its intricate regulatory scheme. The payments are made not simply to reimburse for treatment of qualifying patients but to assist the hospital in making available and maintaining a certain level and quality of medical care, all in the interest of both the hospital and the greater community. Here, as we have explained, the provider itself is the object of substantial Government regulation. Medicare is designed to the end that the Government receives not only reciprocal value from isolated transactions but also long-term advantages from the existence of a sound and effective health care system for the elderly and disabled. The Government enacted specific statutes and regulations to secure its own interests in promoting the well being and advantage of the health care provider, in addition to the patient who receives care. The health care provider is receiving a benefit in the conventional sense of the term, unlike the case of a contractor whom the Government does not regulate or assist for long-term objectives or for significant purposes beyond performance of an immediate transaction. Adequate payment and assistance to the health care provider is itself one of the objectives of the program. These purposes and effects suffice to make the payment a benefit within the meaning of the statute. The structure and operation of the Medicare program reveal a comprehensive federal assistance' enterprise aimed at ensuring the availability of quality health care for the broader community. Participating health care organizations, as our above discussion shows, must satisfy a series of qualification and accreditation requirements, standards aimed in part at ensuring the provision of a certain quality of care. See 42 CFR pt. 482 (1999). By reimbursing participating providers for a wide range of costs and expenses, including medical treatment costs, overhead costs, and education costs, Medicare’s reimbursement system furthers this objective. This scheme is structured to ensure that providers possess the capacity to render, on an ongoing basis, medical care to the program’s qualifying patients. The structure, moreover, proves untenable petitioner’s assertion that Congress has no interest in the financial stability of providers once services are rendered to patients. Payments are made in a manner calculated to maintain provider stability. § 413.5(b); Good Samaritan Hospital, 508 U. S., at 406. Incentives are given for long-term improvements, such as capital costs and education. §§413.85, 413.134(e), 413.153(b)(2)(iii). Subsidies, defined as “special treatment,” are awarded to certain providers. Id., pt. 412G. In short, provider organizations play a vital role and maintain a high level of responsibility in carrying out the program’s purposes. Medicare funds, in turn, provide benefits extending beyond isolated, point-of-sale treatment transactions. The funds health care organizations receive for participating in the Medicare program constitute “benefits” within the meaning of 18 U. S. C. § 666(b). Our discussion should not be taken to suggest that'federal funds disbursed under an assistance program will result in coverage of all recipient fraud under § 666(b). Any receipt of federal funds can, at some level of generality, be characterized as a benefit. The statute does not employ this broad, almost limitless use of the term. Doing so would turn almost every act of fraud or bribery into a federal offense, upsetting the proper federal balance. To determine whether an organization participating in a federal assistance program receives “benefits,” an examination must be undertaken of the program’s structure, operation, and purpose. The inquiry should examine the conditions under which the organization receives the federal payments. The answer could depend, as it does here, on whether the recipient’s own operations are one of the reasons for maintaining the program. Health care organizations participating in the Medicare program satisfy this standard. The Government has a legitimate and significant interest in prohibiting financial fraud or acts of bribery being perpetrated upon Medicare providers. Fraudulent acts threaten the program’s integrity. They raise the risk participating organizations will lack the resources requisite to provide the level and quality of care envisioned by the program. Cf. Salinas, 522 U. S., at 61 (stating that acceptance of bribes by an official of a jail housing federal prisoners pursuant to an agreement with the Government “was a threat to the integrity and proper operation of the federal program”). Other cases may present questions requiring further examination and elaboration of the term “benefits.” Here it suffices to hold that health care providers such as the one defrauded by petitioner receive benefits within the meaning of the statute. The judgment of the Court of Appeals is affirmed. It is so ordered. 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_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. Jewell W. VANDERVEER, Appellant, v. ERIE MALLEABLE IRON COMPANY. No. 11951. United States Court of Appeals Third Circuit. Argued Oct. 16, 1956. Decided Nov. 16, 1956. Rehearing Denied Dec. 19, 1956. Ralph Hammar, Erie, Pa., for appellant. Julian Miller, Pittsburgh, Pa. (Brown, Critchlow, Flick & Peckham, Pittsburgh, Pa., Enoch C. Filer, Erie, Pa., for defendant-appellee on the brief). Before MARIS, GOODRICH and Mc-LAUGHLIN, Circuit Judges. MARIS, Circuit Judge. The question presented on this appeal is whether a state court decision in a suit for royalties under a patent license agreement that the licensee’s device was not within the scope of the patent bars the litigation of the issue whether the same device infringes the same patent in a subsequent infringement suit between the same parties in the federal court. The plaintiff, Jewell W. Vanderveer, and the defendant, Erie Malleable Iron Company, are both citizens of Pennsylvania. The plaintiff brought the present action in the District Court for the Western District of Pennsylvania seeking damages for the alleged infringement of his Patent No. 2,178,316 covering an invention for demountable rim wheels used in heavy trucks and trailers. The defendant moved for summary judgment, asserting that the Court of Common Pleas of Erie County, Pennsylvania, in a suit brought by plaintiff for an accounting under a royalty contract involving the same parties, the same patent, the same products of the defendant and the same issue — whether those products were covered by Patent No. 2,178,316— had been decided adversely to the plaintiff and affirmed in all respects by the Supreme Court of Pennsylvania. The defendant alleged that the plaintiff was precluded from relitigating the issue of infringement since the state court had decided that the wheels made or sold by the defendant after May 10, 1949 were not covered by and did not infringe plaintiff’s patent. The district court noted that since the plaintiff did not assert that the defendant had changed or altered the design of its wheels at any time after May 10, 1949 no issue was presented as to any material fact. It accordingly concluded that the plaintiff was estopped by the state court judgment from asserting infringement and entered summary judgment for the defendant. The court also granted defendant’s motion to strike the’plaintiff’s reply and counterclaim. 139 F.Supp. 340. This appeal followed. The plaintiff contends that the state court decision in no way precludes the determination by the federal court of the infringement issue. In considering this contention we note that there are several points which the plaintiff does not dispute. One is that the state court was one of competent jurisdiction with power to determine in a case within its jurisdiction questions arising under the patent laws. Another is that the state court in reaching its conclusion necessarily made inquiry into the fact whether the defendant would have been an infringer under the rules: of patent law if it had not had a license. A third is that the wheels made or sold by the defendant after May 10, 1949 were all of the same type as those which were held in the state court proceedings to be noninfringing. While not controverting these propositions the plaintiff contends that the state court determination is not binding upon him in this suit in the federal court (a) because the two causes of action were different, the former being a suit on a license contract cognizable only in the state court and the latter a suit for patent infringement cognizable only in the federal court, (b) because the actions involved different periods of time, and (c) because the construction of patent claims is a matter of law as to which a state judgment is not res judicata in the federal courts. We find no merit in these contentions for reasons which will be stated. As a general rule, while due process requires that a person shall have an opportunity to be heard by a court of competent jurisdiction upon a matter which affects his interest, parties are precluded by the doctrine of res judicata from relitigating controversies which have been settled by a valid final judgment of such a court. The principles underlying this doctrine have been so often stated and are so universally recognized that the citation of authorities is unnecessary. Under the doctrine of collateral estoppel, an aspect of res judicata, though the causes of action be different, a decision by a court of competent jurisdiction in respect to any essential fact or question in one action is likewise conclusive between the same parties in all subsequent actions, and this applies to a state court judgment upon a contested issue which is sought to be applied in a suit between the same parties in a federal court. The doctrine has been applied to state court judgments involving patent rights and such judgments have been held to bar relitigation of the identical issues in the federal court. There is no logical reason why this rule should not apply to a state court judgment adjudicating an infringement question. Although the bringing of actions arising under the patent laws is admittedly restricted to the federal courts it has long been established that actions brought to enforce contracts of which a patent is the subject must in the absence of diversity of citizenship be brought in the state courts. The Supreme Court has held that a state court is empowered to determine questions, as distinguished from cases, arising under the patent laws, to try questions of title to patents, to construe and enforce contracts relating to patents, and to determine the validity of patents, and the court has given no indication that the conclusive effect between the parties of the determination of these questions is to be limited to the state courts. Indeed the Supreme Court indicated just the contrary in Becher v. Contoure Laboratories, 1929, 279 U.S. 388, 49 S.Ct. 356, 73 L.Ed. 752. That was a case in which the defendant in a patent infringement suit set up the defense that the plaintiff was estopped by reason of a prior state court determination that he held the patent as a trustee ex maleficio for the defendant, the latter being the true inventor and the former having surreptitiously obtained the patent. The Supreme Court in discussing the question said, 279 U.S. at pages 391-392, 49 S.Ct. at page 357: “It is said that to establish Oppenheimer’s claim is to invalidate Becher’s patent. But, even if mistakenly, the attempt was not to invalidate that patent but to get an assignment of it, and an assignment was decreed. * * * Again, even if the logical conclusion from the establishing of Oppenheimer’s claim is that Becher’s patent is void, that is not the effect of the judgment. Establishing a fact and giving a specific effect to it by judgment are quite distinct. A judgment in rem binds all the world, but the facts on which it necessarily proceeds are not established against all the world, Manson v. Williams, 213 U.S. 453, 455, 29 S.Ct. 519, 53 L.Ed. 869, and conversely establishing the facts is not equivalent to a judgment in rem. “That decrees validating or invalidating patents belong to the Courts of the United States does not give sacrosanctity to facts that may be conclusive upon the question in issue. A fact is not prevented from being proved in any case in which it is material, by the suggestion that if it is true an important patent is void — and although there is language here and there that seems to suggest it we can see no ground for giving less effect to proof of such a fact than to any other. A party may go into a suit estopped as to a vital fact by a covenant. We see no sufficient reason for denying that he may be equally estopped by a judgment. See Pratt v. Paris Gas Light & Coke Co., 168 U.S. 255,18 S.Ct. 62, 42 L.Ed. 458”. It is also well established that res judicata is fully applicable to cases of patent infringement. It necessarily follows, we think, that a finding by a state court in a suit for royalties under a license agreement that the licensee’s product was not within the claims of the patent must be given the effect of collateral estoppel in a subsequent infringement suit between the same parties in the federal court to the extent of precluding assertion by the patent owner that the same product infringes the claims of the same patent. The fact of noninfringement must be taken as conclusively established. Beyond this, however, the federal court is not bound by the judgment of the state court but may frame its own judgment consistently with all the facts of the case, the established fact of noninfringement as well as any others. The plaintiff’s contention that the doctrine of res judicata is not applicable because the two actions involved different periods of time is without merit. The pertinent fact is that the defendant’s wheel alleged to infringe was exactly the same type of wheel which was the basis of the plaintiff’s claim in the state suit for royalties under the license agreement and the patent involved in each suit was the same. Under these circumstances both reason and authority call for the application of the doctrine of res judicata even though different periods of time are involved. Likewise the contention cannot be accepted that res judicata is not applicable because the question as to which the estoppel is raised is one of law. It may be conceded that the question of construing the claims of a patent is one of "law in the sense that, as in the case of other integrated documents, it is a question for the court and not the jury. But the question of infringement involves also questions of fact, such as the nature of the devices alleged to infringe and whether in fact they are within the patent claims as the court has construed them. Thus the finding of infringement is a finding of fact, of the type sometimes called a conclusion of ultimate fact, as to which the doctrine of res judicata is applicable. Indeed it will be remembered in this connection that even the determination of a pure question of law is ordinarily treated as res judicata in a later suit between the same parties arising out of the same subject matter if no unjust result will follow. The district court in the present case carefully reviewed the findings of non-infringement of the trial judge in the state court case, and the opinion of the Supreme Court of Pennsylvania confirming these findings, and concluded that the plaintiff was estopped from asserting that the same wheel which was held not to be within the patent in the state case had infringed his patent. We think the court was right in doing so. This, as we have seen, he was barred from doing and the court was right in so holding. The plaintiff contends that section 71 of the Restatement of the Law of Judgments supports his position. Section 71 states: “Where a court has incidentally determined a matter which it would have had no jurisdiction to determine in an action brought directly to determine it, the judgment is not conclusive in a subsequent action brought to determine the matter directly.” The section, as the comments appended to it indicate, is primarily directed to cases involving title to land in another state, which has always been regarded as presenting a special case, and to cases in courts of limited jurisdiction. It is true that reference is also made in the comments to the applicability of the rule stated in the section to cases in state and federal courts. But unless narrowly confined to the determination of patent invalidity as such, that comment would seem to be in conflict with Justice Holmes’ statement in the Becher case which we have quoted. Certainly under the doctrine of that case the determination by a state court of a fact which would lead to the conclusion that a patent is invalid must be given conclusive effect in a subsequent suit under the patent laws between the same parties in the federal court. And since the distinction is a narrow and rather technical one it may well be doubted whether the rule enunciated by section 71 is applicable in a state-federal setting even to the extent suggested by comment c. The plaintiff also asserts as error the granting by the district court of the defendant’s motion to strike the plaintiff’s reply and counterclaim. This came about under the following circumstances: The defendant answered the complaint by denying infringement. In a counterclaim for a declaratory judgment of noninfringement the defendant asserted that the claims of the patent would be invalid if construed broadly enough to cover any wheels made or sold by the defendant after 1945. The plaintiff filed a reply to the defendant’s counterclaim and by way of counterclaim on his part sought restitution for an alleged* breach of trust and unfair dealing which he predicated on the allegations of invalidity in the defendant’s counterclaim. The plaintiff’s proposition requires little discussion. It can readily be seen that the defendant’s claim of invalidity was based solely on the theory that the patent was broad enough to support a finding of infringement. It was advanced solely as a possible defense which would be available if the court should adopt that theory in spite of the defendant’s opposition to it. Since the state court judgment that the defendant’s wheel is not within the claims of the patent has conclusively determined the infringement issue against the plaintiff the basis for the defendant’s counterclaim fails. It has thus been determined that the plain-* tiff’s claim of breach of trust on the part of the defendant does not grow out of the original cause of action, and that no cause over which the court had jurisdiction remained in the district court to be litigated. The judgment of the district court will be affirmed. . Yanderveer v. Erie Malleable Iron Company, 1950, 384 Pa. 12, 119 A.2d 204. . Pratt v. Paris Gas Light & Coke Company, 1897, 168 U.S. 255, 259, 18 S.Ct. 62, 42 L.Ed. 458. . Cold Metal Process Co. v. United Engineering & Foundry Co., 3 Cir., 1956, 235 F.2d 224, 229. . Cromwell v. County of Sac, 1876, 94 U.S. 351, 353, 24 L.Ed. 195; Southern Pacific R. Co. v. United States, 1897, 168 U.S. 1, 48-49, 18 S.Ct. 18, 42 L.Ed. 355; Hart Steel Co. v. Railroad Supply Co., 1917, 244 U.S. 294, 299, 37 S.Ct. 506, 61 L.Ed. 1148; Restatement, Judgments, §§ 68-72; Scott, Collateral Estoppel by Judgment, 1942, 56 Harv.L.Rev. 1; note, Developments in the Law of Res Judicata, 1952, 65 Harv.L.Rev. 818, 840; Symposium — Collateral Estoppel, 1954, 39 Iowa L.Rev. 213. . Forsyth v. City of Hammond, 1897, 166 U.S. 506, 17 S.Ct. 665, 41 L.Ed. 1095; Grubb v. Public Utilities Comm., 1930, 281 U.S. 470, 50 S.Ct. 374, 74 L.Ed. 972; Stoll v. Gottlieb, 1938, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104; United States v. Silliman, 3 Cir., .1948, 167 F.2d 607. Cf. Brusie v. Peck Brothers & Co., 2 Cir., 1893, 54 F. 820, 822. . Becher v. Contoure Laboratories, 1929, 279 U.S. 388, 49 S.Ct. 356, 73 L.Ed. 752; Talbot v. Quaker State Oil Refining Co., 3 Cir., 1939, 104 F.2d 967; Zachs v. Aronson, D.C.Conn.1943, 49 F.Supp. 096. . 28 U.S.C. § 1838. . Merserole v. Union Paper Collar Co., D.C.S.D.N.Y.1869, 17 Fed.Cas. page 153, No. 9,488; Albright v. Teas, 1882, 106 U.S. 613, 1 S.Ct. 550, 27 L.Ed. 295; Dale Tile Manufacturing Co. v. Hyatt, 1888, 125 U.S. 46, 8 S.Ct. 756, 31 L.Ed. 683; Wade v. Lawder, 1897, 165 U.S. 624, 17 S.Ct. 425, 41 L.Ed. 851; Pratt v. Paris Gas Light & Coke Company, 1897, 168 U.S. 255, 18 S.Ct. 62, 42 L.Ed. 458; New Marshall Engine Co. v. Marshall Engine Co., 1912, 223 U.S. 473, 32 S.Ct. 238, 56 L.Ed. 513; Henry v. A. B. Dick Co., 1912, 224 U.S. 1, 14-15, 32 S.Ct. 364, 56 L.Ed. 645; Luckett v. Del-park, Inc., 1926, 270 U.S. 496, 46 S.Ct. 496, 70 L.Ed. 703; MacGregor v. Westinghouse Electric & Mfg. Co., D.C.W.D. Pa.1942, 45 F.Supp. 236, affirmed 3 Cir., 1942, 130 F.2d 870. . Pratt v. Paris Gas Light & Coke Company, 1897, 168 U.S. 255, 259, 18 S.Ct. 62, 42 L.Ed. 458. . New Marshall Engine Co. v. Marshall Engine Co., 1912, 223 U.S. 473, 478, 32 S.Ct. 238, 56 L.Ed. 513. . Pratt v. Paris Gas Light & Coke Company, 1897, 168 U.S. 255, 259, 18 S.Ct. 62, 42 L.Ed. 458; Becher v. Contoure Laboratories, 1929, 279 U.S. 388, 391-392, 49 S.Ct. 356, 73 L.Ed. 752; MacGregor v. Westinghouse Electric & Mfg. Co., 1947, 329 U.S. 402, 407, 67 S.Ct. 421, 424, 91 L.Ed. 380. . Hart Steel Co. v. Railroad Supply Co., 1917, 244 U.S. 294, 297-298, 37 S.Ct. 506, 61 L.Ed. 1148; Caterpillar Tractor Co. v. International Harvester Co., 3 Cir., 1941, 120 F.2d 82, 139 A.L.R. 1. . See Tait v. Western Maryland Ry. Co., 1933, 289 U.S. 620, 53 S.Ct. 706, 77 L.Ed. 1405. . Singer Mfg. Company v. Cramer, 1904, 192 U.S. 265, 275, 24 S.Ct. 291, 48 L.Ed. 437; Sanitary Refrigerator Co. v. Winters, 1929, 280 U.S. 30, 36, 50 S.Ct. 9, 74 L.Ed. 147; Minnesota Mining & Mfg. Co. v. Carborundum Co., 3 Cir., 1946, 155 F.2d 746, 749. . Leeds & Catlin Co. v. Victor Talking Mach. Co., 1909, 213 U.S. 301, 312, 29 S.Ct. 495, 53 L.Ed. 805; Stilz v. United States, 1925, 269 U.S. 144, 147, 46 S.Ct. 37, 70 L.Ed. 202; Faulkner v. Gibbs, 9 Cir., 1948, 170 F.2d 34, 37, affirmed 338 U.S. 267, 70 S.Ct. 25, 94 L.Ed. 62. . The Evergreens v. Nunan, 2 Cir., 1944, 141 F.2d 927, 152 A.L.R. 1187; Restatement, Judgments, § 68. . Commissioner of Internal Revenue v. Sunnen, 1948, 333 U.S. 591, 598-601, 68 S.Ct. 715, 92 L.Ed. 898; Restatement, Judgments, § 70. . See the comments of Judge Goodrich in United States v. Silliman, 3 Cir., 1948, 167 F.2d 607, 615. . Zalkind v. Scheinman, 2 Cir., 1943, 139 F.2d 895. 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_district	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". UNARCO INDUSTRIES, INC., an Illinois corporation and Overhead Door Corporation, an Indiana corporation, Plaintiffs-Appellees, v. KELLEY COMPANY, Inc., a Wisconsin corporation, Defendant-Appellant. No. 71-1522. United States Court of Appeals, Seventh Circuit. Argued June 7, 1972. Decided Sept. 7, 1972. Norman C. Skogstad, Grafton, Wis., David L. Petersen, Elwin J. Zarwell, and John S. Sammond, Milwaukee, Wis., for defendant-appellant. Stanley J. Adelman and Frederic S. Lane, Chicago, Ill., for plaintiffs-appellees. Before DUFFY, Senior Circuit Judge, DURFEE , Senior Associate Judge and ESCHBACH , District Judge. Senior Associate Judge James R. Durfee of the United States Court of Claims is sitting by designation. District Judge Jesse E. Esebbaeh of the Northern District of Indiana is sitting by designation. DUFFY, Senior Circuit Judge. This is a suit for declaratory relief seeking the proper construction of a written agreement. The critical question is whether or not the patent license herein considered was assignable without the consent of the licensor. The District Court held the agreement to be assignable. A motion to restrain production and sale of the patented product pending a decision by the District Court was held in abeyance and finally denied. The principal product manufactured by Kelley Company, Inc., the defendant herein, is based upon a patent granted to Garrett P. Kelley. The Company produced material-handling equipment known as “dockboard.” This product permits the movement of merchandise from the bed of a truck to a loading dock. In 1964, Kelley became aware that Unarco, a large corporation, was marketing and selling a dockboard which Kelley believed infringed its patented invention. Kelley Company sued Unarco in the Federal District Court in Tennessee for patent infringement. This litigation became protracted and thus very expensive. Settlement discussions were held, and it became apparent to all that it would be for the best interest of both parties to enter into a nonexclusive license agreement terminating the litigation. It became apparent that Unarco was not a serious competitor in the dock-board industry. Unarco’s principal interest was to use dockboard as a selling tool for its principal product which was shelving. The settlement permitted Un-arco to manufacture annually a few hundred dockboards without paying a royalty. While operating under this agreement, Unarco never exceeded the minimum number of royalty-free dockboards anticipated by the parties to the agreement. Thereafter, the President of a Texas conglomerate named Overhead Door attempted to buy or merge with Kelley Company because of its desire to operate in the dockboard field. No agreement was reached. Overhead Door then contacted Unarco with respect to the possible purchase of Unarco’s dockboard division [Sturdi-bilt]. On August 4, 1969, Overhead Door and Unarco entered into a contract whereby Overhead Door agreed to purchase and Unarco agreed to sell Unarco’s dockboard business and all the assets used in connection therewith. In this contract, Unarco agreed not to compete for at least five years in the dockboard business with Overhead Door, and furthermore warranted that “Every contract, license agreement or other intangible included among Dock Board Assets is assignable by UNARCO without prior consent of any other person. . . . ” Subsequently, in a letter dated August 13, 1969, the attorney for Kelley was notified by a newspaper article of the contemplated acquisition of the Sturdi-bilt (dockboard) division of Unarco by Overhead Door. Overhead Door was advised by Kelley’s attorney that their license agreement for the patents “was and is limited to Unarco.” On October 20, 1969, Unarco and Overhead Door commenced this action in District Court for a declaratory judgment with respect to the assignability of the nonexclusive patent license. The District Court held that the compromise agreement was a simple contract to be construed under the common law of the State of Illinois. Further, that as Illinois common law views a liberal construction of the assignability of all contracts, the license of the patent was assignable. Defendant Kelley points out that the nonexclusive license agreement or contract between Kelley and Unarco was not only the result of a compromise settlement but it was, in fact, a forbearance. Kelley points out that if the judgment of the District Court is sustained, Kelley’s refusal to sell out to Overhead Door will be circumvented, and Overhead Door would, indirectly, obtain Kelley’s patent rights which Kelley had consistently refused to sell to Overhead Door. The threshold question before our Court is whether the law of the State of Illinois, where the contested agreement was consummated, applies, or whether determination of this issue in federal court falls within one of the exceptions to the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) requiring the application of federal common law. The Supreme Court considered this exception to Erie in Sola Electric Co. v. Jefferson Co., 317 U.S. 173, 176, 63 S.Ct. 172, 87 L.Ed. 165 (1942). In that opinion regarding patent license litigation, the Supreme Court also considered the application of estoppel and whether estoppel in litigation concerning patent licenses and the Sherman Act was a state or federal question. The Court held that estoppel as applied was a federal question where, if invoked, it would thwart the purposes of statutes of the United States. The Erie doctrine was circumvented by the Court in Sola Electric Co., supra, by the following passage: “It is familiar [doctrine] that the prohibition of a federal statute may not be set at naught, or its benefits denied, by state statutes or state common law rules. In such a case our decision is not controlled by Erie R. Co. v. Tompkins, 304 U.S. 64 [58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487.] There we followed state law because it was the law to be applied in the federal courts. But the doctrine of that case is inapplicable to those areas of judicial decision within which the policy of the law is so dominated by the sweep of federal statutes that legal relations which they affect must be deemed governed by federal law having its source in those statutes, rather than by local law. Royal Indemnity Co. v. United States, 313 U.S. 289, 296 [61 S.Ct. 995, 997, 85 L.Ed. 1361;] Prudence [Realization] Corp. v. Geist, 316 U.S. 89, 95 [62 S.Ct. 978, 982, 86 L.Ed. 1293;] Board of Comm’rs. [of Jackson County] v. United States, 308 U.S. 343, 349 [350, 60 S.Ct. 285, 287, 288, 84 L.Ed. 313;] cf. O’Brien v. Western Union Telegraph Co. [1 Cir.,] 113 F.2d 539, 541. * * * To the federal statute and policy, conflicting state law and policy must yield.” Article I, Section 8, Clause 8 of the United States Constitution provides that Congress has been granted the power “ . . . [T]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This exclusive and personal concept of patents was considered by Congress upon implementation of the Patent Act of 1952 and other legislation aimed at federal control of patent regulation. When an inventor or person holding patent rights desires to license or relinquish any part of the patent monopoly, such person is utilizing the monopoly of rights intended by the framers of the Constitution and the legislation of Congress to reward invention and originality. This monopoly conferred by federal statute as well as the policy perpetuating this monopoly, so affects the licensing of patents, and the policy behind such licensing is so intertwined with the sweep of federal statutes, that any question with respect thereto must be governed by federal law. We are of the opinion that the question of assignability of a patent license is a specific policy of federal patent law dealing with federal patent law. Therefore, we hold federal law applies to the question of the assignability of the patent license in question. We agree with Kelley that we are here considering a specific policy of the patent law dealing with federal patent rights, and in that respect our problem does not involve the general state of Illinois contract law. The long standing federal rule of law with respect to the assignability of patent license agreements provides that these agreements are personal to the licensee and not assignable unless expressly made so in the agreement. Troy Iron & Nail Factory v. Corning, 55 (14 How.) U.S. 193, 14 L.Ed. 383 (1852); Hapgood v. Hewitt, 119 U.S. 226, 7 S.Ct. 193, 30 L.Ed. 380 (1886); Lane & Bodley Co. v. Locke, 150 U.S. 193, 14 S.Ct. 78, 37 L.Ed. 1049 (1893); Wood Harvester Co. v. Minneapolis Harvester Co., 61 F. 256 (8 Cir., 1894); Bowers v. Lake Superior Contracting, 149 F. 983 (8 Cir., 1906). See also Deller’s Walker on Patents, Sec. 409 (2d Ed. 1965). In Wood Harvester Co. v. Minneapolis Harvester Co., supra, the license agreement said nothing pertaining to assignability. That Court said 61 F. on page 258: “ . . . I think the absence of any words of assignability in this license shows an intent to make it run to [licensees] alone, as clearly as if words of nonassignability had been incorporated therein.” In post-Erie federal decisions, this rule of non-assignability has been unquestioned. Rock-Ola Mfg. Corp. v. Filben Mfg. Co., 168 F.2d 919 (8 Cir., 1948), cert. den. 335 U.S. 892, 69 S.Ct. 249, 93 L.Ed. 430. This rule of non-assignability absent consent has been adhered to by state and federal courts. We therefore hold the District Court was in error in departing from this well established rule. We hold the nonexclusive license agreement which was, in fact, a forbearance of suit, here in question was personal, and that it was not assignable without Kelley’s consent. Further, the attempted assignment by Unarco Industries, Inc. to Overhead Door was and is void. The judgment of the District Court is Reversed. . The license agreement pursuant to the settlement between Kelley and Unarco was executed on January 1, 1968. The license provided that Kelley grant Unarco for the entire term of specified patents “a nonexclusive license to make, have made, use and sell dockboards coming within the scope of any claims of any of the said patents.” The license further provided for royalties on dockboards produced by Unarco over a stipulated minimum. Also, as part of the agreement, Unarco issued a nonexclusive license agreement to Kelley for two Unarco patents under which agreement Kelley was to pay a royalty. . Appellant Kelley stated in its brief to this Court “This overture and approach by the Texas conglomerate was politely rebuffed.” . On October 23, 1969, three days after commencing this action, Unarco entered into an assignment of licensing agreement with Overhead Door, assigning to Overhead all their rights to royalties from Kelley under that agreement for the use of Unareo’s patents. . The exception to application of state law to outcome determinative questions appears on page 78 of 304 U.S., on page 822 of 58 S.Ct. of Erie, supra “Except in matters [governed] by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the state.” . 35 U.S.C. § 1 et seq. . Although we need not consider state law, Illinois law is also well settled. The case of Havana Press Drill Company v. Ashurst, 148 Ill. 115, 35 N.E. 873 (1893) was not called to the attention of the District Court. In that case, a license was granted which was thereafter assigned. There was no statement in the license as to its assignability. The Illinois Supreme Court there stated: “In the present case the Drill Company had no authority to assign the license for two reasons, (1) Because the license to it did not run to its assigns, and was, therefore, merely personal. . . . ” See also Smith v. Preston, 170 Ill. 179, 48 N.E. 688 (1897); Rhodes v. Ashurst, 176 Ill. 351, 52 N.E. 118 (1898). 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_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. ROGERS RADIO COMMUNICATION SERVICES, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, American Telephone and Telegraph Co. & Illinois Bell Telephone Co., National Association of Radiotelephone Systems, Intervenors. TELOCATOR NETWORK OF AMERICA, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, AT&T Company and Illinois Bell Telephone Company, Intervenors. Nos. 77-1352, 77-1357. United States Court of Appeals, District of Columbia Circuit. Argued June 14, 1978. Decided Dec. 19, 1978. Kenneth E. Hardman, Washington, D. C., with whom Abe Fortas, Jeremiah Courtney, and Arthur Blooston, Washington, D. C., were on the brief, for appellants. C. Gray Pash, Jr., Counsel, F. C. C., Washington, D. C., with whom Daniel M. Armstrong, Associate Gen. Counsel, F. C. C., Washington, D. C., was on the brief, for appellee. Charles Lister, Washington, D. C., with whom Alfred C. Partoll, William D. Goddard, and .John W. Berresford, New York City, were on the brief, for intervenors American Tel. & Tel. and Illinois Bell Tel. Co. Werner K. Hartenberger, Counsel, F. C. C., Washington, D. C., also entered an appearance for appellee. Thomas R. Phillips, Chicago, 111., also entered an appearance for intervenors, AT&T, et al. Abe Fortas and Kenneth E. Hardman, Washington, D. C., also entered appearances for intervenor National Association of Radiotelephone Systems in No. 77-1352. Before TAMM and MacKINNON, Circuit Judges, and HOWARD T. MARKEY, Chief Judge, United States Court of Customs & Patent Appeals. Opinion for the court filed by TAMM, Circuit Judge. Sitting by designation pursuant to 28 U.S.C. § 293(a). TAMM, Circuit Judge: In this case Rogers Radio Communication Services, Inc. (Rogers) and Telocator Network of America (TNA) appeal from a decision of the Federal Communications Commission (Commission) granting the application of Illinois Bell Telephone Company (IBT) for authority to construct and operate, with assistance from American Telephone and Telegraph Company (AT&T), a developmental cellular land mobile radio communications system in the Chicago metropolitan area. The present controversy is an outgrowth of this court’s previous decision upholding the Commission’s allocation of frequency spectrum for the development of a nationwide, broad-band cellular system. See National Association of Regulatory Utility Commissioners (NARUC) v. FCC, 173 U.S.App.D.C. 413, 525 F.2d 630, cert. denied, 425 U.S. 992, 96 S.Ct. 2203, 48 L.Ed.2d 816 (1976). We affirm the Commission’s grant of IBT’s application. I In Land Mobile Radio Service, Docket No. 18262, the Commission determined that development of a nationwide cellular mobile radio communication system should be encouraged to serve future public need for mobile radio-telephone service. Wireline carriers, such as AT&T, and radio common carriers, such as appellants, are eligible to develop cellular systems if they can demonstrate the existence of necessary resources and technology. The Commission decided to authorize only developmental cellular systems “until [it was] reasonably sure that all factors necessary for regular implementation are accomplished.” The Commission further decided that only one developmental system would be authorized in any market or service area. As explained by the Commission: the precise number [of operational cellular systems the Commission] will authorize will depend on the overall progress of the developmental program. Following that program, [the Commission] will adopt standards to which all systems, existing and new, will be required to conform. It must be especially emphasized that the granting of a developmental authorization cannot form the basis of any reliance concerning whether a regular authorization will be granted. Any grant for regular authorization will require the licensee to comply with such standards as [the Commission] may adopt. When rules permitting regular operation are adopted, applications for conforming operational cellular systems will be considered on a case-by-basis. In NARUC v. FCC, 173 U.S.App.D.C. 413, 525 F.2d 630, this court upheld the Commission’s allocation of 40 MHz on the 900 MHz band to the development of a cellular system, over the objections of various groups, including appellant TNA (formerly National Association of Radiotelephone Systems). Although the court recognized that appellants in that ease raised “substantial arguments . . . pertaining to possible anticompetitive effects of the 40 MHz allocation” in the form of AT&T monopolization of cellular systems, id. 173 U.S.App.D.C. at 419, 525 F.2d at 636, the court concluded that there would be ample opportunity to challenge such effects as the time approached when they would be felt and any impact on competition was more assessable. Id. 173 U.S.App.D.C. at 421-22, 525 F.2d at 638-39. In refusing to overturn the Commission’s action, the court specifically noted that “[t]hus far, the Commission has stated its clear intention to authorize only a developmental system in the Chicago area, which will utilize only 12.5 MHz of the 40 MHz allocation.” Id., 173 U.S.App.D.C. at 421, 525 F.2d at 638. IBT applied for authority to construct and operate a developmental cellular system in the Chicago metropolitan area, and AT&T intervened in its behalf. The Commission returned the application to IBT, without prejudice to amendment, after finding it was deficient. IBT and AT&T thereafter filed a petition for reconsideration, which the Commission granted. Subject to conditions, the Commission granted IBT’s application on March 10,1977. Rogers, who operates in the Chicago metropolitan area, and TNA attack the Commission’s decision to grant the application. II Appellants raise a number of objections to the Commission’s grant of IBT’s application. Initially, they allege that the Commission’s decision must be reversed because the Commission failed to find — in form or in substance — that granting the application would serve the public interest, convenience and necessity. Under 47 U.S.C. § 309(a) (1970), “the Commission shall determine . whether the public interest, convenience, and necessity will be served by the granting of such application, and, if the Commission . . . shall find that the public interest, convenience, and necessity would be served by the granting thereof, it shall grant such application.” To the extent that appellants chai-' lenge the Commission’s failure to articulate its finding of public interest, convenience, and necessity, see generally Joseph v. FCC, 131 U.S.App.D.C. 207, 211-12, 404 F.2d 207, 211-12 (1968) (per curiam), their argument is foreclosed by their failure to bring this alleged error to the Commission’s attention in a petition for rehearing. Under 47 U.S.C. § 405 (1970): [t]he filing of a petition for rehearing shall not be a condition precedent to judicial review of any such order, decision, report, or action, except where the party seeking such review . . . relies on questions of fact or law upon which the Commission, or designated authority within the Commission, has been afforded no opportunity to pass. One of the purposes of 47 U.S.C. § 405 is to afford the Commission the initial opportunity to correct errors in its decision or the proceeding leading to decision. See Action for Children’s Television v. FCC, 183 U.S. App.D.C. 437, 447-48, 564 F.2d 458, 468-69 (1977); W. H. Hansen v. FCC, 134 U.S.App.D.C. 100, 102, 413 F.2d 374, 376 (1969). The Commission might have easily remedied the error alleged by appellants, had the error been brought to its attention following decision. Cf. AT&T v. FCC, 449 F.2d 439, 450-51 (2d Cir. 1971) (FCC’s continued refusal to make ultímate statutory finding in face of objections demonstrates inability to make such finding). Absent a showing of particular cause and sufficient justification, we see no reason to review this alleged error when the Commission was given no opportunity for its correction. Action for Children’s Television v. FCC, 183 U.S.App.D.C. at 448, 564 F.2d at 469. To the extent that appellants allege that the Commission “could not possibly make the necessary public interest findings” to grant IBT’s application, Joint Brief for Appellants at 32 (emphasis supplied)- — an argument that appellants did advance before the Commission — the deficiencies identified by appellants either have been remedied by the Commission or are raised and addressed elsewhere in this appeal. Ill Appellants allege that it is an “inversion of rational administrative inquiry” for the Commission to authorize the experiment with AT&T’s cellular system before it decides whether the system is “inherently capable” of fulfilling the public interest, convenience and necessity. We disagree. The Commission has emphatically stated that there is no guarantee that any developmental system will be authorized to operate on a regular commercial basis. The purpose of developmental operation is to obtain information concerning the capabilities and problems of cellular technology. Equipped with such information, the Commission can set standards for cellular systems to insure that their operation will serve the public interest, convenience and necessity. See In re Application of Illinois Bell Telephone Co., 63 F.C.C.2d 655, 662-63 (1977); Joint Appendix (J.A.) at 21a; text supra at 1228. The Commission has the authority and the obligation to provide for experimental uses of frequencies, see 47 U.S.C. § 303(g) (1970), and to keep abreast of technical developments in the communications field to the end that the public interest will be served, see 47 U.S.C. § 218 (1970). See also NARUC v. FCC, 174 U.S.App.D.C. 374, 392, 533 F.2d 601, 619 (1976); NARUC v. FCC, 173 U.S.App.D.C. at 422, 525 F.2d at 639. Requiring the Commission to determine that an experimental system is “inherently capable” of serving the public interest would be inconsistent with the concept of experimentation itself. See generally United Telegraph Workers v. FCC, 141 U.S.App.D.C. 190, 195-196, 436 F.2d 920, 925-26 (1970). We conclude that it was eminently rational for the Commission to proceed in the manner in which it did. IV Appellants assert that the Commission’s decision is arbitrary and capricious because it failed to eliminate alleged anti-competitive features of AT&T’s developmental cellular system. The features criticized are the switching machinery to be used in the cellular system, which is the type used in AT&T’s conventional landline telephone service, and the number of mobile units that may be used for market tests. Effect on competition was clearly a proper factor for the Commission to consider under the public interest, convenience and necessity standard of 47 U.S.C. § 309(a) (1970), as the court recognized in NARUC v. FCC, 173 U.S.App.D.C. at 419, 525 F.2d at 636 & n.25. See generally United States v. RCA, 358 U.S. 334, 351-52, 79 S.Ct. 457, 3 L.Ed.2d 354 (1959); FCC v. RCA Communications, Inc., 346 U.S. 86, 91-97, 73 S.Ct. 998, 97 L.Ed. 1470 (1953). With respect to the switching machinery, the Commission took steps to insure that during the operation of the developmental system, the switching machinery will not simultaneously serve conventional and mobile telephones and that the separate cost of the switching machinery will be identified and reported. 63 F.C.C.2d at 663. This cost information should enable the Commission to prevent cross-subsidization. The Commission’s response to possible anti-competitive consequences was adequate for purposes of the developmental system. Any anticompetitive behavior resulting from the use of this switching machinery, including cross-subsidization, can be assessed after the results of the developmental system are in. See generally NARUC v. FCC, 173 U.S.App.D.C. at 421-422, 525 F.2d at 638-39. The Commission authorized AT&T to operate a maximum of 2,500 mobile units for market service tests. The number of mobile units was reduced from 5,000 to 2,500 because the Commission considered the latter number “adequate . . . for purposes of market evaluation, without effectively foreclosing the market to existing RCC’s [radio common carriers] in the Chicago area.” 63 F.C.C.2d at 660. Although the Commission allowed no more than 135 units to be operated during the equipment testing phase of the developmental system, operation of up to 2,500 units was thought necessary in order to evaluate public demand for cellular service. See id. This was a reasoned judgment within the expertise of the Commission. We cannot conclude that the decision was arbitrary or capricious. V The Commission originally rejected IBT’s application because, inter alia, the frequency reuse capability of the proposed developmental system represented a departure from the “small cell” concept accepted by the Commission. See In re Application of Illinois Bell Telephone Co., 62 F.C.C.2d 436, 437 (1976). The Commission changed its position after reconsideration, and appellants attack this action as arbitrary and capricious. On reconsideration of the application, the Commission decided that it could rely on the technical findings of studies being conducted by AT&T in Newark, New Jersey, to demonstrate the technical feasibility of a small cell system. The Commission decided that the Chicago developmental system should be operated under “stringent limitations” to test technical and market characteristics of a cellular approach, and to serve, in conjunction with the Newark system, as a basis for further rulemaking. 63 F.C.C.2d at 659. Although the Commission recognized AT&T’s arguments concerning the need to proceed as economically as possible and to expand as needed, id. at 659, it ruled that “[pjrior to conversion to regular operation, the Chicago operation together with the Newark test bed findings must satisfactorily demonstrate the frequency reuse capability originally contemplated by the Commission.” Id. at 660. We agree with the Commission that it “can change its mind when it explains why,” Brief for Appellee at 31 (citing Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 394, 444 F.2d 841, 852 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971)), and we conclude that its decision to defer small cell operation in the Chicago developmental system was not arbitrary or capricious. VI Appellants contend that the Commission violated 47 U.S.C. § 309(e) (1970) by failing to conduct an evidentiary hearing prior to granting IBT’s application. They assert that the Commission was obligated to conduct a hearing to determine whether alleged anticompetitive features of the proposed cellular system rendered it contrary to the public interest, convenience and necessity. See Joint Brief for Appellants at 33-39. We conclude that, at the stage of the Commission’s proceedings under review, appellants’ allegations of anticompetitive consequences did not present a “substantial” question of fact necessitating “a full hearing” under 47 U.S.C. § 309(e). Although we agree that resolution of questions concerning anticompetitive implications of proposed agency action may often “benefit[] from ventilation at a formal hearing,” an evidentiary hearing is not always necessary. Marine Space Enclosures, Inc. v. FMC, 137 U.S.App.D.C. 9, 21-22, 420 F.2d 577, 589-90 (1969); see United States v. CAB, 167 U.S.App.D.C. 313, 315, 323, 511 F.2d 1315, 1317, 1325 (1975); National Air Carrier Association v. CAB, 141 U.S.App.D.C. 31, 40, 436 F.2d 185, 194 (1970). “The decision whether to hold hearings ‘is a matter in which the Commission’s discretion ... is paramount.’ ” National Association for Better Broadcasting v. FCC, 192 U.S.App.D.C. 203 at 207, 591 F.2d 812 at 816 (1978) (quoting Columbus Broadcasting Coalition v. FCC, 164 U.S. App.D.C. 213, 217, 505 F.2d 320, 324 (1974)). An allegation of antitrust problems will not always present a “substantial and material question of fact” under 47 U.S.C. § 309(e). Whether a substantial question of fact under the statute is presented will depend, inter alia, on the immediacy of the alleged anticompetitive consequences and any justification for deferral of their consideration. See generally Gulf States Utilities Co. v. FPC, 411 U.S. 747, 762-63, 93 S Ct. 1870, 36 L.Ed.2d 635 (1973); Denver & Rio Grande Western Railroad Co. v. United States, 387 U.S. 485, 498, 87 S.Ct. 1754, 18 L.Ed.2d 905 (1967). In this case, serious anticompetitive effects will occur, if at all, only upon commercial implementation of AT&T’s cellular system. See NARUC v. FCC, 173 U.S.App.D.C. at 421, 525 F.2d at 638. Before commercial operation may begin, IBT must seek authority from the Commission. See 63 F.C.C.2d at 660. At that time, the Commission will have developmental reports from the Chicago equipment and market tests and from the Newark technical tests, as well as comprehensive financial reports, id., which can be considered in its decision. Because there will be “ample opportunity to challenge anticompetitive effects as the time approaches when they will be felt, and the extent of the impact on competition becomes more readily assessable,” NARUC v. FCC, 173 U.S.App.D.C. at 422, 525 F.2d at 639, we conclude that appellants’ allegations of anticompetitive effects did not present a “substantial and material question of fact” necessitating a “full hearing” under 47 U.S.C. § 309(e) at the stage of Commission proceedings under review. VII After the Commission initially denied IBT’s application, see 62 F.C.C.2d at 437, and IBT and AT&T filed a petition for reconsideration, see J.A. at 142a — 154a, an AT&T vice-president sent a letter to the Commission, with copies to all parties of record, elaborating the reasons why the Commission should reconsider its denial of the application, id. at 168a — 171a. In response, appellants moved the Commission to strike the letter as unauthorized and to deny summarily the petition for reconsideration. Id. at 172a-179a. The Commission struck the letter but concluded that other relief was not warranted. See 63 F.C.C.2d at 664. Appellants assert that the letter contained a “misleading representation” concerning the additional cost of the developmental approach suggested by the Commission in its denial order. They contend that whether the representation influenced the Commission is unknown. Joint Brief for Appellants at 43. Appellants liken this case to WKAT, Inc. v. FCC, 111 U.S.App.D.C. 253, 296 F.2d 375 (per curiam), cert. denied, 368 U.S. 841, 82 S.Ct. 63, 7 L.Ed.2d 40 (1961), and Sangamon Valley Television Corp. v. United States, 106 U.S.App.D.C. 30, 269 F.2d 221 (1959). Those cases involved secret ex parte contacts by persons outside the Commission during agency proceedings. See also, United States Lines, Inc. v. FMC, 189 U.S.App.D.C. 361 at 375, 584 F.2d 519 at 533 (1978); Home Box Office, Inc. v. FCC, 185 U.S.App.D.C. 142, 184-192, 567 F.2d 9, 51-59 (per curiam), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977). This case is immediately distinguishable from those relied upon by appellants. The letter from the AT&T vice-president was not secret or surreptitious. Copies of the letter were sent to all parties to the agency proceeding, including appellants. Appellants had the opportunity to take action in response to the letter, and responded by filing a motion to strike it from the record. The Commission agreed with appellants that the letter was an unauthorized pleading and struck it from the record. We have no reason to think that the Commission relied on the letter in reaching its ultimate decision. See generally Action for Children’s Television, Inc. v. FCC, 183 U.S.App.D.C. 437, 455, 564 F.2d 458, 476. Appellants argue that the only meaningful remedy for AT&T’s unauthorized pleading would have been a rejection of the petition for reconsideration. We do not believe that such a remedy was necessary, and we conclude that the Commission was well within its discretion when it struck the letter from the record. CONCLUSION For the foregoing reasons, we affirm the decision of the Commission. Affirmed. . American Telephone and Telegraph Company (AT&T) is the parent company of Illinois Bell Telephone Company (IBT). AT&T and IBT are intervenors in this appeal. General references in this opinion to AT&T include IBT. . This decision is reported at 63 F.C.C.2d 655 (1977). . 46 F.C.C.2d 752 (1974), modified, 51 F.C.C.2d 945, modified, 55 F.C.C.2d 771 (1975), aff'd, National Assoc. of Regulatory Util. Comm’rs. (NARUC) v. FCC, 173 U.S.App.D.C. 413, 525 F.2d 630, cert. denied, 425 U.S. 992, 96 S.Ct. 2203, 48 L.Ed.2d 816 (1976). . The cellular system is a sophisticated, high capacity land mobile system requiring a large capital investment and a substantial spectrum allocation. The spectrum assigned to such a system would be divided into discrete channels which are assigned in groups to small geographical cells covering a defined service area. The key to the cellular system’s high capacity is its ability to shrink the size of those cells while holding the total amount of spectrum used by the system constant. What results is a multiple re-use of channels throughout a given geographical area and more traffic intensity per unit of spectrum in advanced stages of development than other land mobile communication systems proposed to date. 46 F.C.C.2d at 753. . See 51 F.C.C.2d at 945. Radio telephone service is a high quality common carrier mobile radio communication service (not to be confused with the more popularly recognized “Citizens Band” radio service) whereby two-way voice communications can be carried on, via a mobile radio transmitter/receiver, between a person located . . in a moving car or truck, and a person located at an ordinary landline telephone station. Joint Brief for Appellants at 3 n.3. . Telocator Network of America (TNA) is an association of radio common carriers. . 46 F.C.C.2d at 761. . 51 F.C.C.2d at 954; 46 F.C.C.2d at 761. . 51 F.C.C.2d at 954. . See Joint Appendix (J.A.) at 6a-7a. . Id. at 24a-27a. . Id. at 142a-154a, 16a. . Id. at 10a-lla, 16a. . Appellant TNA argued to the Federal Communications Commission (Commission) that it could not possibly make a finding of public interest, convenience and necessity. Objections to Grant of Application, J.A. at 59a-100a. See Joint Reply Brief for Appellants at 5. TNA’s first objection, that IBT’s application proposed a wasteful use of spectrum, J.A. at 78a-81a, was recognized and remedied by the Commission in its decision on reconsideration. See 63 F.C.C.2d at 657, 659. . TNA’s other objections before the Commission dealt with system design features and anti-competitive problems. These issues are raised on this appeal in TNA’s argument that the grant of IBT’s application was arbitrary, capricious, and an abuse of discretion. See J.A. at 82a-98a; Joint Brief for Appellants at 40 — 41. . The recent decision of this court in United States v. FCC, No. 77-1249, slip op. at 26-29 (D.C.Cir. Aug. 29, 1978) (per curiam), discussed the Commission’s role upon finding the existence of an antitrust violation within the scope of section 11 of the Clayton Act, 15 U.S.C. § 21 (1976). This case does not present an antitrust contention within the purview of section 11. Appellants’ arguments relate only to section 2 of the Sherman Act, 15 U.S.C. § 2 (1976). . In NARUC v. FCC, 173 U.S.App.D.C. at 420-421, 525 F.2d at 637-38 & n.34, this court discussed the antitrust dangers of cross-subsidization. . The “small cell” concept is explained by appellants: A “cellular” radio telephone system is a complex and untested technology for providing radio telephone service to the public through common carrier facilities. In a “cellular” system, a geographically dispersed and systematically ordered array of low powered base stations or “cells” collectively provide radio signal coverage for mobile units throughout a metropolitan or other prescribed service area. By contrast, more conventional systems provide the same geographic signal coverage from one or two base station transmitter locations, by using higher power transmitters. The putative advantage of cellular systems is that the multiple low powered base stations or “cells” enable the same frequency channel to be used simultaneously at more than one location in a metropolitan area. This feature significantly enhances both the system’s spectral efficiency and its customer capacity per unit of spectrum, as compared to more conventional radio telephone systems. Apart from the untested nature of the technology involved, its chief disadvantage is that the relatively small “cells” required to achieve frequency reuse in a market also make it necessary to have elaborate and extremely sophisticated facilities to automatically “hand off’ a mobile unit from one “cell” to another. This is so because the conversation length of a single cell, normally about three to five minutes, is such that a moving car or truck is likely to pass out of the coverage area of the “cell” with which the communication circuit is initially established. Accordingly, the need for the sophisticated “hand off’ capability, and for a large number of “cell” sites and transmitters, combine to make the investment in fixed network plant associated with “cellular” systems vastly more costly than comparably sized, but more conventionally-configured, radio telephone systems. Joint Brief for Appellants at 4-5 (footnote omitted). The Commission originally rejected the application because there would be frequency reuse in the Chicago system at a distance of forty-eight miles, which is comparable to that employed in non-cellular systems. 62 F.C.C.2d 436, 437 (1976). . 47 U.S.C. § 309(e) (1970) provides in part: If, in the case of any application . a substantial and material question of fact is presented or the Commission for any reason is unable to make the finding specified in [the subsection relating to public interest, convenience and necessity], it shall formally designate the application for hearing on the ground or reasons then obtaining and shall forthwith notify the applicant and all other known parties in interest of such action and the grounds and reasons therefor, specifying with particularity the matters and things in issue but not including issues or requirements phrased generally. . In United States v. CAB, 167 U.S.App.D.C. 313, 315, 511 F.2d 1315, 1317 (1975), the court noted that “an experiment in certain markets” might be a way to test competitive consequences before agency resolution of issues related to competition. . Although United States v. FCC, No. 77-1249, slip op. at 35 n.100 (D.C.Cir. Aug. 29, 1978) speaks in terms of the “explicit standards” found in section 309(e) of the Communications Act of 1934, we do not think that the remark was intended to suggest that every allegation of anticompetitive problems would necessitate an evidentiary hearing under section 309(e). . IBT’s application to develop a cellular system in Chicago contained a schedule that contemplated completion of construction, equipment tests, and service tests by January 1, 1979, the date established by the Commission for completion of developmental operation. See 51 F.C.C.2d 945, 955. IBT and AT&T petitioned the Commission on September 18, 1978, to extend the deadline to January 1, 1980, for the purpose of conducting the service test. See letter from Kenneth E. Hardman, Fortas & Koven, to George A. Fisher, Clerk, U.S. Court of Appeals for the District of Columbia Circuit (Oct. 10, 1978) (attaching Petition filed with Commission by IBT and AT&T). Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
sc_decisiontype	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. OESTEREICH v. SELECTIVE SERVICE SYSTEM LOCAL BOARD NO. 11, CHEYENNE, WYOMING, et al. No. 46. Argued October 24, 1968. Decided December 16, 1968. Melvin L. Wulf argued the cause for petitioner. With him on the brief were Alan H. Levine, John Griffiths, Marvin M. Karpatkin, Eleanor Holmes Norton, and William F. Reynard. Solicitor General Griswold argued the cause for respondents. With him on the brief were Assistant Attorney General Weisl, Francis X. Beytagh, Jr., Morton Hollander, and Robert V. Zener. Mr. Justice Douglas delivered the opinion of the Court. Petitioner is enrolled as a student at a theological school preparing for the ministry and was accordingly classified as IV-D by the Selective Service Board. Section 6 (g) of the Selective Service Act, 62 Stat. 611, as amended, now § 6 (g) of the Military Selective Service Act of 1967 (see 81 Stat. 100, § 1 (a)), 50 U. S. C. App. § 456 (g), gives such students exemption from training and service under the Act. He returned his registration certificate to the Government, according to the complaint in the present action, “for the sole purpose of expressing dissent from the participation by the United States in the war in Vietnam.” Shortly thereafter his Board declared him delinquent (1) for failure to have the registration certificate in his possession, and (2) for failure to provide the Board with notice of his local status. The Board thereupon changed his IV-D classification to I-A. He took an administrative appeal and lost and was ordered to report for induction. At that point he brought suit to restrain his induction. The District Court dismissed the complaint, 280 F. Supp. 78, and the Court of Appeals affirmed. 390 F. 2d 100. The case is here on a petition for a writ of certiorari which we granted. 391 U. S. 912. As noted, § 6 (g) of the Act states that “students preparing for the ministry” in qualified schools “shall be exempt from training and service” under the Act. Equally unambiguous is § 10 (b) (3) of the Military Selective Service Act of 1967, 81 Stat. 104, which provides that there shall be no pre-induction judicial review “of the classification or processing of any registrant,” judicial review being limited to a defense in a criminal prosecution or, as the Government concedes, to habeas corpus after induction. See Estep v. United States, 327 U. S. 114, 123-125; Eagles v. Samuels, 329 U. S. 304; Witmer v. United States, 348 U. S. 375, 377. If we assume, as we must for present purposes, that petitioner is entitled to a statutory exemption as a divinity student, by what authority can the Board withhold it or withdraw it and make him a delinquent? In 1967 Congress added a provision concerning the immediate service of members of a “prime age group” after expiration of their deferment, stating that they were the first to be inducted “after delinquents and volunteers.” 50 U. S. C. App. §456 (h)(1) (1964 ed., Supp. III). Congress has also made criminal the knowing failure or neglect to perform any duty prescribed by the rules or regulations of the Selective Service System. 50 U. S. C. App. § 462 (a) (1964 ed., Supp. III). But Congress did not define delinquency; nor did it provide any standards for its definition by the Selective Service System. Yet Selective Service, as we have noted, has promulgated regulations governing delinquency and uses them to deprive registrants of their statutory exemption, because of various activities and conduct and without any regard to the exemptions provided by law. We can find no authorization for that use of delinquency. Even if Congress had authorized the Boards to revoke statutory exemptions by means of delinquency classifications, serious questions would arise if Congress were silent and did not prescribe standards to govern the Boards' actions. There is no suggestion in the legislative history that, when Congress has granted an exemption and a registrant meets its terms and conditions, a Board can nonetheless withhold it from him for activities or conduct not material to the grant or withdrawal of the exemption. So to hold would make the Boards freewheeling agencies meting out their brand of justice in a vindictive manner. Once a person registers and qualifies for a statutory exemption, we find no legislative authority to deprive him of that exemption because of conduct or activities unrelated to the merits of granting or continuing that exemption. The Solicitor General confesses error on the use by Selective Service of delinquency proceedings for that purpose. We deal with conduct of a local Board that is basically lawless. It is no different in constitutional implications from a case where induction of-an ordained minister or other clearly exempt person is ordered (a) to retaliate against the person because of his political views or (b) to bear down on him for his religious views or his racial attitudes or (c) to get him out of town so that the amorous interests of a Board member might be better served. See Townsend v. Zimmerman, 237 F. 2d 376. In such instances, as in the present one, there is no exercise of discretion by a Board in evaluating evidence and in determining whether a claimed exemption is deserved. The case we decide today involves a clear departure by the Board from its statutory mandate. To hold that a person deprived of his statutory exemption in such a blatantly lawless manner must either be inducted and raise his protest through habeas corpus or defy induction and defend his refusal in a criminal prosecution is to construe the Act with unnecessary harshness. As the Solicitor General suggests, such literalness does violence to the clear mandate of § 6 (g) governing the exemption. Our construction leaves § 10 (b)(3) unimpaired in the normal operations of the Act. No one, we believe, suggests that § 10 (b)(3) can sustain a literal reading. For while it purports on its face to suspend the writ of habeas corpus as a vehicle for reviewing a criminal conviction under the Act, everyone agrees that such was not its intent. Examples are legion where literalness in statutory language is out of harmony either with constitutional requirements, United States v. Rumely, 345 U. S. 41, or with an Act taken as an organic whole. Clark v. Uebersee Finanz-Korp., 332 U. S. 480, 488-489. We think § 10 (b) (3) and § 6 (g) are another illustration; and the Solicitor General agrees. Since the exemption granted divinity students is plain and unequivocal and in no way contested here, and since the scope of the statutory delinquency concept is not broad enough to sustain a revocation of what Congress has granted as a statutory right, or sufficiently buttressed by legislative standards, we conclude that pre-induction judicial review is not precluded in cases of this type. We accordingly reverse the judgment and remand the case to the District Court where petitioner must have the opportunity to prove the facts alleged and also to demonstrate that he meets the jurisdictional requirements of 28 U. S. C. § 1331. Reversed. Section 6 (g) reads as follows: “Regular or duly ordained ministers of religion, as defined in this title, and students preparing for the ministry under the direction of recognized churches or religious organizations, who are satisfactorily pursuing full-time courses of instruction in recognized theological or divinity schools, or who are satisfactorily pursuing full-time courses of instruction leading to their entrance into recognized theological or divinity schools in which they have been pre-enrolled, shall be exempt from training and service (but not from registration) under this title.” Section 1617.1 of the Selective Service System Regulations requires a registrant to have the certificate in his personal possession at all times (32 CFR § 1617.1), and § 1642.4, 32 CFR § 1642.4 (a), provides that whenever a registrant fails to perform “any duty” required of him (apart from the duty to obey an order to report for induction) the Board may declare him to be “a delinquent.” The United States admits for purposes of the present proceeding by its motion to dismiss that petitioner satisfies the requirements of the exemption provided by § 6 (g). Section 10 (b) (3) reads in pertinent part as follows: “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, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant.” See S. Rep. No. 209, 90th Cong., 1st Sess., 10, where it is stated: “A registrant who presents himself for induction may challenge his classification by seeking a writ of habeas corpus after his induction. If the registrant does not submit to induction, he may raise as a defense to a criminal prosecution the issue of the legality of the classification.” In Falbo v. United States, 320 U. S. 549, a Jehovah’s Witness had been given conscientious objector status and ordered to report to a domestic camp for civilian work in lieu of military service. In defense to a criminal prosecution for disobeying that order, he argued that his local board had wrongly classified him by denying him an exemption as a minister. Without deciding whether Congress envisaged judicial review of such classifications, we held that a registrant could not challenge his classification without first exhausting his administrative remedies by reporting, and being accepted, for induction. Because he might still have been rejected at the civilian camp for mental or physical disabilities, Falbo had omitted a “necessary intermediate step in a united and continuous process designed to raise an army speedily and efficiently.” Id., at 553. In Estep v. United States, 327 U. S. 114, petitioners were Jehovah’s Witnesses like Falbo who had been denied ministerial exemptions and who challenged that classification in defense to a criminal prosecution for refusing induction. In their case, however, they had exhausted their administrative remedies by reporting, and being accepted, for service, before then refusing to submit to induction. We found nothing in the 1940 Act to preclude judicial review of selective service classifications in defense to a criminal prosecution for refusing induction. Supra, at n. 2. We would have a somewhat different problem were the contest over, say, the quantum of evidence necessary to sustain a Board's classification. Then we would not be able to say that it was plain on the record and on the face of the Act that an exemption had been granted and there would therefore be no clash between § 10 (b) (3) and another explicit provision of the Act. Question: What type of decision did the court make? A. opinion of the court (orally argued) B. per curiam (no oral argument) C. decrees D. equally divided vote E. per curiam (orally argued) F. judgment of the Court (orally argued) G. seriatim Answer:
sc_lcdisposition	D	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. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION et al. v. NELSON et al. No. 09-530. Argued October 5, 2010 Decided January 19, 2011 Acting Solicitor General Katyal argued the cause for petitioners. With him on the briefs were Assistant Attorney General West, Deputy Solicitor General Kneedler, Nicole A. Saharsky, Mark B. Stern, and Benjamin M. Shultz. Dan Stormer argued the cause for respondents. With him on the brief were Virginia Keeny, Paul R. Q. Wolf son, and Shirley Cassin Woodward. Christopher A. Mohr and Michael R. Klipper filed a brief for the Consumer Data Industry Association et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the American Astronomical Society by Jeffrey F. Pryce and Alice E. Loughran; for the American Civil Liberties Union et al. by Aden J. Fine, Steven R. Shapiro, Jameel Jaffer, David Blair-Loy, Peter J. Eliasberg, and Alan L. Schlosser; for the California Employment Lawyers Association by Marc A Coleman; for the Drug Policy Alliance by David T. Goldberg, Sean H. Donahue, and Daniel N. Abrahamson; for the Electronic Frontier Foundation by Jennifer Stisa Granick; and for the Electronic Privacy Information Center et al. by Marc Rotenberg. Diane J. Curran filed a brief for the Union of Concerned Scientists as amicus curiae. Justice Alito delivered the opinion of the Court. In two cases decided more than 30 years ago, this Court referred broadly to a constitutional privacy “interest in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U. S. 589, 599-600 (1977); Nixon v. Administrator of General Services, 433 U. S. 425, 457 (1977). Respondents in this case, federal contract employees at a Government laboratory, claim that two parts of a standard employment background investigation violate their rights under Whalen and Nixon. Respondents challenge a section of a form questionnaire that asks employees about treatment or counseling for recent illegal-drug use. They also object to certain open-ended questions on a form sent to employees’ designated references. We assume, without deciding, that the Constitution protects a privacy right of the sort mentioned in Whalen and Nixon. We hold, however, that the challenged portions of the Government’s background check do not violate this right in the present case. The Government’s interests as employer and proprietor in managing its internal operations, combined with the protections against public dissemination provided by the Privacy Act of 1974, 5 U. S. C. § 552a (2006 ed. and Supp. IV), satisfy any “interest in avoiding disclosure” that may “arguably ha[ve] its roots in the Constitution.” Whalen, supra, at 599, 605. I A The National Aeronautics and Space Administration (NASA) is an independent federal agency charged with planning and conducting the Government’s “space activities." Pub. L. 111-314, §3, 124 Stat. 3333, 51 U. S. C. § 20112(a)(1). NASA’s work force numbers in the tens of thousands of employees. While many of these workers are federal civil servants, a substantial majority are employed directly by Government contractors. Contract employees play an important role in NASA’s mission, and their duties are functionally equivalent to those performed by civil servants. One NASA facility, the Jet Propulsion Laboratory (JPL) in Pasadena, California, is staffed exclusively by contract employees. NASA owns JPL, but the California Institute of Technology (Cal Tech) operates the facility under a Government contract. JPL is the lead NASA center for deep-space robotics and communications. Most of this country’s unmanned space missions — from the Explorer 1 satellite in 1958 to the Mars Rovers of today — have been developed and run by JPL. JPL scientists contribute to NASA earth-observation and technology-development projects. Many JPL employees also engage in pure scientific research on topics like “the star formation history of the universe” and “the fundamental properties of quantum fluids.” App. 64-65, 68. Twenty-eight JPL employees are respondents here. Many of them have worked at the lab for decades, and none has ever been the subject of a Government background investigation. At the time when respondents were hired, background cheeks were standard only for federal civil servants. See Exec. Order No. 10450, 3 CFR 936 (1949-1953 Comp.). In some instances, individual contracts required background checks for the employees of federal contractors, but no blanket policy was in place. The Government has recently taken steps to eliminate this two-track approach to background investigations. In 2004, a recommendation by the 9/11 Commission prompted the President to order new, uniform identification standards for “[fjederal employees,” including “contractor employees.” Homeland Security Presidential Directive/HSPD-12 — Policy for a Common Identification Standard for Federal Employees and Contractors, Public Papers of the President, George W. Bush, Vol. 2, Aug. 27, p. 1765 (2007) (hereinafter HSPD-12), App. 127. The Department of Commerce implemented this directive by mandating that contract employees with long-term access to federal facilities complete a standard background check, typically the National Agency Check with Inquiries (NACI). National Inst, of Standards and Technology, Personal Identity Verification of Federal Employees & Contractors, pp. iii-vi, 1-8, 6 (FIPS PUB 201-1, Mar. 2006) (hereinafter FIPS PUB 201-1), App. 131-150, 144-145. An October 2007 deadline was set for completion of these investigations. Memorandum from Joshua B. Bolten, Director, OMB, to the Heads of all Departments and Agencies (Aug. 5, 2005), App. 112. In January 2007, NASA modified its contract with Cal Tech to reflect the new background-check requirement. JPL management informed employees that anyone failing to complete the NACI process by October 2007 would be denied access to JPL and would face termination by Cal Tech. B The NACI process has long been the standard background investigation for prospective civil servants. The process begins when the applicant or employee fills out a form questionnaire. Employees who work in “non-sensitive” positions (as all respondents here do) complete Standard Form 85 (SF-85). Office of Personnel Management (OPM), Standard Form 85, Questionnaire for Non-Sensitive Positions, App. 88-95. Most of the questions on SF-85 seek basic biographical information: name, address, prior residences, education, employment history, and personal and professional references. The form also asks about citizenship, selective-service registration, and military service. The last question asks whether the employee has “used, possessed, supplied, or manufactured illegal drugs” in the last year. Id., at 94. If the answer is yes, the employee must provide details, including information about “any treatment or counseling received.” Ibid. A “truthful response,” the form notes, cannot be used as evidence against the employee in a criminal proceeding. Ibid. The employee must certify that all responses on the form are true and must sign a release authorizing the Government to obtain personal information from schools, employers, and others during its investigation. Once a completed SF-85 is on file, the “agency check” and “inquiries” begin. 75 Fed. Reg. 5359 (2010). The Government runs the information provided by the employee through FBI and other federal-agency databases. It also sends out form questionnaires to the former employers, schools, landlords, and references listed on SF-85. The particular form at issue in this case — the Investigative Request for Personal Information, Form 42 — goes to the employee’s former landlords and references. Ibid. Form 42 is a two-page document that takes about five minutes to complete. See ibid. It explains to the reference that “[y]our name has been provided by” a particular employee or applicant to help the Government determine that person’s “suitability for employment or a security clearance.” App. 96-97. After several preliminary questions about the extent of the reference’s associations with the employee, the form asks if the reference has “any reason to question” the employee’s “honesty or trustworthiness.” Id., at 97. It also asks if the reference knows of any “adverse information” concerning the employee’s “violations of the law,” “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional stability,” “general behavior or conduct,” or “other matters.” Ibid. If “yes” is cheeked for any of these categories, the form calls for an explanation in the space below. That space is also available for providing “additional information” (“derogatory” or “positive”) that may bear on “suitability for government employment or a security clearance.” Ibid. All responses to SF-85 and Form 42 are subject to the protections of the Privacy Act. The Act authorizes the Government to keep records pertaining to an individual only when they are “relevant and necessary” to an end “required to be accomplished” by law. 5 U. S. C. § 552a(e)(1). Individuals are permitted to access their records and request amendments to them. §§ 552a(d)(1), (2). Subject to certain exceptions, the Government may not disclose records pertaining to an individual without that individual’s written consent. § 552a(b). C About two months before the October 2007 deadline for completing the NACI, respondents brought this suit, claiming, as relevant here, that the background-check process violates a constitutional right to informational privacy. App. 82 (Complaint for Injunctive and Declaratory Relief). The District Court denied respondents’ motion for a preliminary injunction, but the Ninth Circuit granted an injunction pending appeal, 506 F. 3d 713 (2007), and later reversed the District Court’s order. The court held that portions of both SF-85 and Form 42 are likely unconstitutional and should be preliminarily enjoined. 512 F. 3d 1134, vacated and superseded, 530 F. 3d 865 (2008). Turning first to SF-85, the Court of Appeals noted respondents’ concession “that most of the questions” on the form are “unproblematic” and do not “implicate the constitutional right to informational privacy.” 530 F. 3d, at 878. But the court determined that the “group of questions concerning illegal drugs” required closer scrutiny. Ibid. Applying Circuit precedent, the court upheld SF-85’s inquiries into recent involvement with drugs as “necessary to further the government’s legitimate interest” in combating illegal-drug use. Id., at 879. The court went on to hold, however, that the portion of the form requiring disclosure of drug “treatment or counseling” furthered no legitimate interest and was thus likely to be held unconstitutional. Ibid. Form 42, in the Court of Appeals’ estimation, was even “more problematic.” Ibid. The form’s “open-ended and highly private” questions, the court concluded, were not “narrowly tailored” to meet the Government’s interests in verifying contractors’ identities and “ensuring the security of the JPL.” Id., at 881, 880. As a result, the court held, these “open-ended” questions, like the drug-treatment question on SF-85, likely violate respondents’ informational-privacy rights. Over the dissents of five judges, the Ninth Circuit denied rehearing en banc. 568 F. 3d 1028 (2009). We granted certiorari. 559 U. S. 990 (2010). II As noted, respondents contend that portions of SF-85 and Form 42 violate their “right to informational privacy.” Brief for Respondents 15. This Court considered a similar claim in Whalen, 429 U. S. 589, which concerned New York’s practice of collecting “the names and addresses of all persons” prescribed dangerous drugs with both “legitimate and illegitimate uses.” Id., at 591. In discussing that claim, the Court said that “[t]he cases sometimes characterized as protecting ‘privacy’” actually involved “at least two different kinds of interests”: one, an “interest in avoiding disclosure of personal matters”; the other, an interest in “making certain kinds of important decisions” free from government interference. Id., at 598-600. The patients who brought suit in Whalen argued that New York’s statute “threatened] to impair” both their “nondisclosure” interests and their interests in making healthcare decisions independently. Id., at 600. The Court, however, upheld the statute as a “reasonable exercise of New York’s broad police powers.” Id., at 598. Whalen acknowledged that the disclosure of “private information” to the State was an “unpleasant invasio[n] of privacy,” id., at 602, but the Court pointed out that the New York statute contained “security provisions” that protected against “[p]ublie disclosure” of patients’ information, id., at 600-601. This sort of “statutory or regulatory duty to avoid unwarranted disclosures” of “accumulated private data” was sufficient, in the Court’s view, to protect a privacy interest that “arguably ha[d] its roots in the Constitution.” Id., at 605-606. The Court thus concluded that the statute did not violate “any right or liberty protected by the Fourteenth Amendment.” Id., at 606. Four months later, the Court referred again to a constitutional “interest in avoiding disclosure.” Nixon, 433 U. S., at 457 (internal quotation marks omitted). Former President Nixon brought a challenge to the Presidential Recordings and Materials Preservation Act, 88 Stat. 1695, note following 44 U. S. C. §2111, a statute that required him to turn over his Presidential papers and tape recordings for archival review and screening. 433 U. S., at 455-465. In a section of the opinion entitled “Privacy,” the Court addressed a combination of claims that the review required by this Act violated the former President’s “Fourth and Fifth Amendmenft]” rights. Id., at 455, and n. 18, 458-459. The Court rejected those challenges after concluding that the Act at issue, like the statute in Whalen, contained protections against “undue dissemination of private materials.” 433 U. S., at 458. Indeed, the Court observed that the former President’s claim was “weaker” than the one “found wanting ... [in] Whalen,” as the Government was required to return immediately all “purely private papers and recordings” identified by the archivists. Id., at 458-459. Citing Fourth Amendment precedent, the Court also stated that the public interest in preserving Presidential papers outweighed any “legitimate expectation of privacy” that the former President may have enjoyed. Id., at 458 (citing Katz v. United States, 389 U. S. 347 (1967); Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523 (1967); and Terry v. Ohio, 392 U. S. 1 (1968)). The Court announced the decision in Nixon in the waning days of October Term 1976. Since then, the Court has said little else on the subject of an “individual interest in avoiding disclosure of personal matters.” Whalen, supra, at 599; Nixon, supra, at 457. A few opinions have mentioned the concept in passing and in other contexts. See Department of Justice v. Reporters Comm. for Freedom of Press, 489 U. S. 749, 762-763 (1989); New York v. Ferber, 458 U. S. 747, 759, n. 10 (1982). But no other decision has squarely addressed a constitutional right to informational privacy. III As was our approach in Whalen, we will assume for present purposes that the Government's challenged inquiries implicate a privacy interest of constitutional significance. 429 U. S., at 599, 605. We hold, however, that, whatever the scope of this interest, it does not prevent the Government from asking reasonable questions of the sort included on SF-85 and Form 42 in an employment background investigation that is subject to the Privacy Act’s safeguards against public disclosure. A 1 As an initial matter, judicial review of the Government’s challenged inquiries must take into account the context in which they arise. When the Government asks respondents and their references to fill out SF-85 and Form 42, it does not exercise its sovereign power “to regulate or license.” Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 896 (1961). Rather, the Government conducts the challenged background checks in its capacity “as proprietor” and manager of its “internal operation.” Ibid. Time and again our cases have recognized that the Government has a much freer hand in dealing “with citizen employees than it does when it brings its sovereign power to bear on citizens at large.” Engquist v. Oregon Dept. of Agriculture, 553 U. S. 591, 598 (2008); Waters v. Churchill, 511 U. S. 661, 674 (1994) (plurality opinion). This distinction is grounded on the “common-sense realization” that if every “employment decision became a constitutional matter,” the Government could not function. See Connick v. Myers, 461 U. S. 138, 143 (1983); see also Bishop v. Wood, 426 U. S. 341, 350 (1976) (“The Due Process Clause ... is not a guarantee against incorrect or ill-advised personnel decisions”). An assessment of the constitutionality of the challenged portions of SF-85 and Form 42 must account for this distinction. The questions challenged by respondents are part of a standard employment background check of the sort used by millions of private employers. See Brief for Consumer Data Industry Association et al. as Amici Curiae 2 (hereinafter CDIA Brief) (“[M]ore than 88% of U. S. companies ... perform background checks on their employees”). The Government itself has been conducting employment investigations since the earliest days of the Republic. L. White, The Federalists: A Study in Administrative History 262-263 (1948); see OPM, Biography of An Ideal: History of the Federal Civil Service 8 (2002) (noting that President Washington “set a high standard” for federal office and finalized appointments only after “investigating [candidates’] capabilities and reputations”). Since 1871, the President has enjoyed statutory authority to “ascertain the fitness of applicants” for the civil service “as to age, health, character, knowledge and ability for the employment sought,” Act of Mar. 3,1871, Rev. Stat. § 1753, as amended, 5 U. S. C. § 3301(2), and that Aet appears to have been regarded as a codification of established practice. Standard background investigations similar to those at issue here became mandatory for all candidates for the federal civil service in 1953. Exec. Order No. 10450, 3 CFR 936. And the particular investigations challenged in this case arose from a decision to extend that requirement to federal contract employees requiring long-term access to federal facilities. See HSPD-12, at 1765, App. 127; FIPS PUB 201-1, at iii-vi, 1-8, App. 131-150. As this long history suggests, the Government has an interest in conducting basic employment background checks. Reasonable investigations of applicants and employees aid the Government in ensuring the security of its facilities and in employing a competent, reliable work force. See Engquist, supra, at 598-599. Courts must keep those interests in mind when asked to go line by line through the Government’s employment forms and to scrutinize the choice and wording of the questions they contain. Respondents argue that, because they are contract employees and not civil servants, the Government’s broad authority in managing its affairs should apply with diminished force. But the Government’s interest as “proprietor” in managing its operations, Cafeteria & Restaurant Workers, supra, at 896, does not turn on such formalities. See Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668, 678, 679 (1996) (formal distinctions such as whether a “service provider” has a “contract of employment or a contract for services” with the government is a “very poor proxy” for constitutional interests at stake). The fact that respondents’ direct employment relationship is with Cal Tech— which operates JPL under a Government contract — says very little about the interests at stake in this case. The record shows that, as a “practical matter,” there are no “Relevant distinctions” between the duties performed by NASA’s civil-service work force and its contractor work force. App. 221. The two classes of employees perform “functionally equivalent duties,” and the extent of employees’ “access to NASA . . . facilities” turns not on formal status but on the nature of “the jobs they perform.” Ibid. At JPL, in particular, the work that contract employees perform is critical to NASA’s mission. Respondents in this case include the “lead trouble-shooter for ... th[e] $568 [million]” Kepler space observatory, 7 Record 396; the leader of the program that “tests ... all new technology that NASA will use in space,” App. 60; and one of the lead “trajectory designers for . . . the Galileo Project and the Apollo Moon landings,” id., at 62. This is important work, and all of it is funded with a multibillion-dollar investment from the American taxpayer. See NASA, JPL Annual Report 09, p. 35 (2010), online at http://www.jpl.nasa.gov/annualreport/2009-report.pdf. The Government has a strong interest in conducting basic background checks into the contract employees minding the store at JPL. 2 With these interests in view, we conclude that the challenged portions of both SF-85 and Form 42 consist of reasonable, employment-related inquiries that further the Government’s interests in managing its internal operations. See Engquist, 553 U. S., at 598-599; Whalen, 429 U. S., at 597-598. As to SF-85, the only part of the form challenged here is its request for information about “any treatment or counseling received” for illegal-drug use within the previous year. The “treatment or counseling” question, however, must be considered in context. App. 94. It is a followup to SF-85’s inquiry into whether the employee has “used, possessed, supplied, or manufactured illegal drugs” during the past year. Ibid. The Government has good reason to ask employees about their recent illegal-drug use. Like any employer, the Government is entitled to have its projects staffed by reliable, law-abiding persons who will “ ‘efficiently and effectively’” discharge their duties. See Engquist, supra, at 598-599. Questions about illegal-drug use are a useful way of figuring out which persons have these characteristics. See, e. g., Breen & Matusitz, An Updated Examination of the Effects of Illegal Drug Use in the Workplace, 19 J. Human Behavior in the Social Environment 434 (2009) (illicit drug use negatively correlated with workplace productivity). In context, the followup question on “treatment or counseling” for recent illegal-drug use is also a reasonable, employment-related inquiry. The Government, recognizing that illegal-drug use is both a criminal and a medical issue, seeks to separate out those illegal-drug users who are taking steps to address and overcome their problems. The Government thus uses responses to the “treatment or counseling” question as a mitigating factor in determining whether to grant contract employees long-term access to federal facilities. This is a reasonable, and indeed a humane, approach, and respondents do not dispute the legitimacy of the Government’s decision to use drug treatment as a mitigating factor in its contractor credentialihg decisions. Respondents’ argument is that, if drug treatment is only used to mitigate, then the Government should change the mandatory phrasing of SF-85 — “Include [in your answer] any treatment or counseling received” — so as to make a response optional. App. 94. As it stands, the mandatory “treatment or counseling” question is unconstitutional, in respondents’ view, because it is “more intrusive than necessary to satisfy the government’s objective.” Brief for Respondents 26; 530 F. 3d, at 879 (holding that “treatment or counseling” question should be enjoined because the form “appears to compel disclosure”). We reject the argument that the Government, when it requests job-related personal information in an employment background check, has a constitutional burden to demonstrate that its questions are “necessary” or the least restrictive means of furthering its interests. So exacting a standard runs directly contrary to Whalen. The patients in Whalen, much like respondents here, argued that New York’s statute was unconstitutional because the State could not “demonstrate the necessity” of its program. 429 U. S., at 596. The Court quickly rejected that argument, concluding that New York’s collection of patients’ prescription information could “not be held unconstitutional simply because” a court viewed it as “unnecessary, in whole or in part.” Id., at 596-597. That analysis applies with even greater force where the Government acts, not as a regulator, but as the manager of its internal affairs. See Engquist, supra, at 598-599. SF-85’s “treatment or counseling” question reasonably seeks to identify a subset of acknowledged drug users who are attempting to overcome their problems. The Government’s considered position is that phrasing the question in more permissive terms would result in a lower response rate, and the question’s effectiveness in identifying illegal-drug users who are suitable for employment would be “materially reduced.” Reply Brief for Petitioners 19. That is a reasonable position, falling within the “ 'wide latitude’ ” granted the Government in its dealings with employees. See Engquist, 553 U. S., at 600. 3 The Court of Appeals also held that the broad, “open-ended questions” on Form 42 likely violate respondents’ informational-privacy rights. Form 42 asks applicants’ designated references and landlords for “information” bearing on “suitability for government employment or a security clearance.” App. 97. In a series of questions, the Government asks if the reference has any “adverse information” about the applicant’s “honesty or trustworthiness,” “violations of the law,” “financial integrity,” “abuse of alcohol and/ or drugs,” “mental or emotional stability,” “general behavior or conduct,” or “other matters.” Ibid. These open-ended inquiries, like the drug-treatment question on SF-85, are reasonably aimed at identifying capable employees who will faithfully conduct the Government’s business. See Engquist, supra, at 598-599. Asking an applicant’s designated references' broad, open-ended questions about job suitability is an appropriate tool for separating strong candidates from weak ones. It would be a truly daunting task to catalog all the reasons why a person might not be suitable for a particular job, and references do not have all day to answer a laundry list of specific questions. See CDIA Brief 6-7 (references “typically have limited time to answer questions from potential employers,” and “open-ended questions” yield more relevant information than narrow inquiries). Form 42, by contrast, takes just five minutes to complete. 75 Fed. Reg. 5359. The reasonableness of such open-ended questions is illustrated by their pervasiveness in the public and private sectors. Form 42 alone is sent out by the Government over 1.8 minion times annually. Ibid. In addition, the use of open-ended questions in employment background checks appears to be equally commonplace in the private sector. See, e. g., S. Bock et al., Mandated Benefits 2008 Compliance Guide, Exh. 20.1, A Sample Policy on Reference Checks on Job Applicants (“Following are the guidelines for conducting a telephone reference check: . . . Ask open-ended questions, then wait for the respondent to answer”); M. Zweig, Human Resources Management 87 (1991) (“Also ask, Ts there anything else I need to know about [candidate’s name]?’ This kind of open-ended question may turn up all kinds of information you wouldn’t have gotten any other way”). The use of similar open-ended questions by the Government is reasonable and furthers its interests in managing its operations. B 1 Not only are SF-85 and Form 42 reasonable in light of the Government interests at stake, they are also subject to substantial protections against disclosure to the public. Both Whalen and Nixon recognized that government “accumulation” of “personal information” for “public purposes” may pose a threat to privacy. Whalen, supra, at 605; see Nixon, 433 U. S., at 457-458, 462. But both decisions also stated that a “statutory or regulatory duty to avoid unwarranted disclosures” generally allays these privacy concerns. Whalen, supra, at 605; Nixon, supra, at 458-459. The Court in Whalen, relying on New York’s “security provisions” prohibiting public disclosure, turned aside a challenge to the collection of patients’ prescription information. 429 U. S., at 594, and n. 12, 600-601, 605. In Nixon, the Court rejected what it regarded as an even “weaker” claim by the former President because the Presidential Recordings and Materials Preservation Act “[n]ot only . . . mandate[d] regulations” against “undue dissemination,” but also required immediate return of any “purely private” materials flagged by the Government’s archivists. 433 U. S., at 458-459. Respondents in this case, like the patients in Whalen and former President Nixon, attack only the Government’s collection of information on SF-85 and Form 42. And here, no less than in Whalen and Nixon, the information collected is shielded by statute from “unwarranted disclosure]. ” See Whalen, supra, at 605. The Privacy Act, which covers all information collected during the background-check process, allows .the Government to maintain records “about an individual” only to the extent the records are “relevant and necessary to accomplish” a purpose authorized by law. 5 U. S. C. § 552a(e)(l). The Act requires written consent before the Government may disclose records pertaining to any individual. § 552a(b). And the Act imposes criminal liability for willful violations of its nondisclosure obligations. §552a(i)(1). These requirements, as we have noted, give “forceful recognition” to a Government employee’s interest in maintaining the' “confidentiality of sensitive information . . . in his personnel files.” Detroit Edison Co. v. NLRB, 440 U. S. 301, 318, n. 16 (1979). Like the protections against disclosure in Whalen and Nixon, they “evidence a proper concern” for individual privacy. Whalen, supra, at 605; Nixon, supra, at 458-459. 2 Notwithstanding these safeguards, respondents argue that statutory exceptions to the Privacy Act’s disclosure bar, see §§552a(b)(1)-(12), leave its protections too porous to supply a meaningful check against “unwarranted disclosures,” Whalen, supra, at 605. Respondents point in particular to what they describe as a “broad” exception for “routine use[s],” defined as uses that are “compatible with the purpose for which the record was collected.” §§ 552a(b)(3), (a)(7). Respondents’ reliance on these exceptions rests on an incorrect reading of both our precedents and the terms of the Privacy Act. As to our cases, the Court in Whalen and Nixon referred approvingly to statutory or regulatory protections against “unwarranted disclosures” and “undue dissemination” of personal information collected by the Government. Whalen, supra, at 605; Nixon, supra, at 458. Neither case suggested that an ironclad disclosure bar is needed to satisfy privacy interests that may be “rootled] in the Constitution.” Whalen, supra, at 605. In Whalen, the New York statute prohibiting “[p]ublie disclosure of the identity of patients” was itself subject to several exceptions. 429 U. S., at 594-595, and n. 12. In Nixon, the protections against “undue dissemination” mentioned in the opinion were not even before the Court, but were to be included in forthcoming regulations “mandate[d]” by the challenged Act. 433 U. S., at 458; see id., at 437-439 (explaining that the Court was limiting its review to the Act’s “facial validity” and was not considering the Administrator’s forthcoming regulations). Thus, the mere fact that the Privacy Act’s nondisclosure requirement is subject to exceptions does not show that the statute provides insufficient protection against public disclosure. Nor does the substance of the “routine use” exception relied on by respondents create any undue risk of public dissemination. None of the authorized “routine use[s]” of respondents’ background-check information allows for release to the public. 71 Fed. Reg. 45859-45860, 45862 (2006); 60 Fed. Reg. 63084 (1995), as amended, 75 Fed. Reg. 28307 (2010). Rather, the established “routine use[s]” consist of limited, reasonable steps designed to complete the background-cheek process in 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_r_fiduc	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "fiduciaries". 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. 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 total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number. Answer:
sc_issuearea	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. LORANCE et al. v. AT&T TECHNOLOGIES, INC., et al. No. 87-1428. Argued March 20, 1989 Decided June 12, 1989 Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Stevens, and Kennedy, JJ., joined. Stevens, J., filed a concurring opinion, post, p. 913. Marshall, J., filed a dissenting opinion, in which Brennan and Blackmun, JJ., joined, post, p. 913. O’Connor, J., took no part in the consideration or decision of the case. Barry Goldstein argued the cause for petitioners. With him on the briefs were Julius LeVonne Chambers, Bridget Arimond, and Patrick O. Patterson. Charles A. Shanor argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Fried, Deputy Solicitor General Ayer, Richard J. Lazarus, Gwendolyn Young Reams, and Donna J. Brusoski. David W. Carpenter argued the cause for respondents. With him on the brief were Rex E. Lee, Patrick S. Casey, Gerald D. Skoning, Charles C. Jackson, Michael Hi Gottesman, Robert M. Weinberg, Joel A. DAlba, and Stephen J. Feinberg. Robert E. Williams, Douglas S. McDowell, and Katrina Grider filed a brief for the Equal Employment Advisory Council as amicus curiae urging affirmance. Justice Scalia delivered the opinion of the Court. Respondent AT&T Technologies, Inc. (AT&T), manufactures electronics products at its Montgomery Works plant. The three petitioners, all of whom are women, have worked as hourly wage employees in that facility since the early 1970’s, and have been represented by respondent Local 1942, International Brotherhood of Electrical Workers, AFL-CIO. Until 1979 all hourly wage earners accrued competitive seniority exclusively on the basis of years spent in the plant, and a worker promoted to the more highly skilled and better paid “tester” positions retained this plantwide seniority. A collective-bargaining agreement executed by respondents on July 23, 1979, altered the manner of calculating tester seniority. Thenceforth a tester’s seniority was to be determined not by length of plantwide service, but by time actually spent as a tester (though it was possible to regain full plantwide seniority after spending five years as a tester and completing a prescribed training program). The present action arises from that contractual modification. Petitioners became testers between 1978 and 1980. During a 1982 economic downturn their low seniority under the 1979 collective-bargaining agreement caused them to be selected for demotion; they would not have been demoted had the former plantwide seniority system remained in place. Claiming that the present seniority system was the product of an intent to discriminate on the basis of sex, petitioners filed complaints with the Equal Employment Opportunity Commission (EEOC) in April 1983. After the EEOC issued right-to-sue letters, petitioners in September 1983 filed the present lawsuit in the District Court for the Northern District of Illinois, and sought certification as class representatives for women employees of AT&T’s Montgomery Works plant who had lost plantwide seniority or whom the new system had deterred from seeking promotions to tester positions. Their complaint alleged that among hourly wage earners the tester positions had traditionally been held almost exclusively by men, and nontester positions principally by women, but that in the 1970’s an increasing number of women took the steps necessary to qualify for tester positions and exercised their seniority rights to become testers. They claimed that the 1979 alteration of the rules governing tester seniority was the product of a “conspir[acy] to change the seniority rules, in order to protect incumbent male testers and to discourage women from promoting into the traditionally-male tester jobs,” and that “[t]he purpose and the effect of this manipulation of seniority rules has been to protect male testers from the effects of the female testers’ greater plant seniority, and to discourage women from entering the traditionally-male tester jobs.” App. 20, 21-22. On August 27, 1986, before deciding whether to certify the proposed class, the District Court granted respondents’ motion for summary judgment on the ground that petitioners had not filed their complaints with the EEOC within the applicable limitations period. 44 FEP Cases 1817, 1821. A divided panel of the Court of Appeals for the Seventh Circuit affirmed, concluding that petitioners’ claims were time barred because “the relevant discriminatory act that triggers the period of limitations occurs at the time an employee becomes subject to a facially neutral but discriminatory seniority system that the employee knows, or reasonably should know, is discriminatory.” 827 F. 2d 163, 167 (1987). We granted certiorari, 488 U. S. 887 (1988), to resolve a Circuit conflict on when the limitations period begins to run in a lawsuit arising out of a seniority system not alleged to be discriminatory on its face or as presently applied. Compare, e. g., case below with Cook v. Pan American World Airways, 771 F. 2d 635, 646 (CA2 1985), cert. denied, 474 U. S. 1109 (1986). Section 706(e) of Title VII of the Civil Rights Act of 1964, 78 Stat. 260, as amended, provides that “[a] charge . . . shall be filed [with the EEOC] within [the applicable period] after the alleged unlawful employment practice occurred.” 42 U. S. C. §2000e-5(e). Assessing timeliness therefore “requires us to identify precisely the ‘unlawful employment practice’ of which [petitioners] complai[n].” Delaware State College v. Ricks, 449 U. S. 250, 257 (1980). Under § 703(a) of Title VII, it is an “unlawful employment practice” for an employer “(1) ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or “(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e-2(a). Petitioners’ allegation of a disparate impact on men and women would ordinarily suffice to state a claim under § 703 (a)(2), since that provision reaches “practices that are fair in form, but discriminatory in operation,” Griggs v. Duke Power Co., 401 U. S. 424, 431 (1971); see Connecticut v. Teal, 457 U. S. 440, 446 (1982). “[Seniority systems,” however, “are afforded special treatment under Title VII,” Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, 81 (1977), by reason of § 703(h), which states: “Notwithstanding any other provision of this sub-chapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority . . . system, . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin . . . .” 42 U. S. C. § 2000e-2(h). We have construed this provision to mean that “absent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences.” Hardison, supra, at 82; see American Tobacco Co. v. Patterson, 456 U. S. 63, 65, 69 (1982). Thus, for liability to be incurred “there must be a finding of actual intent to discriminate on [statutorily proscribed] grounds on the part of those who negotiated or maintained the [seniority] system.” Pullman-Standard v. Swint, 456 U. S. 273, 289 (1982). Petitioners do not allege that the seniority system treats similarly situated employees differently or that it has been operated in an intentionally discriminatory manner. Rather, they claim that its differential impact on the sexes is unlawful because the system “ha[d] its genesis in [sex] discrimination.” Teamsters v. United States, 431 U. S. 324, 356 (1977). Specifically, the complaint alleges that respondents “conspired to change the seniority rules, in order to protect incumbent male testers,” and that the resulting agreement effected a “manipulation of seniority rules” for that “purpose.” See App. 20-22 (emphasis added). This is in essence a claim of intentionally discriminatory alteration of their contractual rights. Seniority is a contractual right, Aaron, Reflections on the Legal Nature and Enforceability of Seniority Rights, 75 Harv. L. Rev. 1532, 1533 (1962), and a competitive seniority system establishes a “hierarchy [of such rights] ... according to which . . . various employment benefits are distributed,” Franks v. Bowman Transportation Co., 424 U. S. 747, 768 (1976). Under the collective-bargaining agreements in effect prior to 1979, each petitioner had earned the right to receive a favorable position in the hierarchy of seniority among testers (if and when she became a tester), and respondents eliminated those rights for reasons alleged to be discriminatory. Because this diminution in employment status occurred in 1979 — well outside the period of limitations for a complaint filed with the EEOC in 1983 — the Seventh Circuit was correct to find petitioners’ claims time barred under § 706(e). We recognize, of course, that it is possible to establish a different theoretical construct: to regard the employer as having been guilty of a continuing violation which “occurred,” for purposes of § 706(e), not only when the contractual right was eliminated but also when each of the concrete effects of that elimination was felt. Or it would be possible to interpret § 703 in such fashion that when the proviso of § 703(h) is not met (“provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin”) and that subsection’s protection becomes unavailable, nothing prevents suits against the later effects of the system on disparate-impact grounds under § 703(a)(2). The answer to these alternative approaches is that our cases have rejected them. The continuing violation theory is contradicted most clearly by two decisions, Delaware State College v. Ricks, 449 U. S. 250 (1980), and United Air Lines, Inc. v. Evans, 431 U. S. 553 (1977). In Ricks, we treated an allegedly discriminatory denial of tenure — rather than the resulting nondiscriminatory termination of employment one year later — as the act triggering the limitations period under § 706(e). Because Ricks did not claim that “the manner in which his employment was terminated differed discriminatorily from the manner in which the College terminated other professors who also had been denied tenure,” we held that “the only alleged discrimination occurred — and the filing limitations periods therefore commenced — at the time the tenure decision was made and communicated to Ricks.” 449 U. S., at 258. “That is so,” we found, “even though one of the effects of the denial of tenure — the eventual loss of a teaching position — did not occur until later.” Ibid, (emphasis in original). We concluded that “ ‘[t]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.’” Ibid, (emphasis in original); accord, Chardon v. Fernandez, 454 U. S. 6, 8 (1981) (per curiam). In Evans, United Air Lines had discriminatorily dismissed the plaintiff after she had worked several years as a flight attendant, and when it rehired her some years later, gave her no seniority credit for her earlier service. Evans conceded that the discriminatory dismissal was time barred, but claimed that the seniority system impermissibly gave “present effect to a past act of discrimination.” 431 U. S., at 558. While agreeing with that assessment, we concluded under § 703(h) that “a challenge to a neutral system may not be predicated on the mere fact that a past event which has no present legal significance has affected the calculation of seniority credit, even if the past event might at one time have justified a valid claim against the employer.” Id,., at 560. Like Evans, petitioners in the present case have asserted a claim that is wholly dependent on discriminatory conduct occurring well outside the period of limitations, and cannot complain of a continuing violation. The second alternative theory mentioned above would view § 703(h) as merely providing an affirmative defense to a cause of action brought under § 703(a)(2), rather than as making intentional discrimination an element of any Title VII action challenging a seniority system. The availability of this affirmative defense would not alter the fact that the claim asserted is one of discriminatory impact under § 703(a)(2), causing the statute of limitations to run from the time that impact is felt. As an original matter this is a plausible, and perhaps even the most natural, reading of § 703(h). (We have construed § 703(e), 42 U. S. C. §2000e-2(e) — which deals with bona fide occupational qualifications — in this fashion. See Dothard v. Rawlinson, 433 U. S. 321, 333 (1977).) But such an interpretation of § 703(h) is foreclosed by our cases, which treat the proof of discriminatory intent as a necessary element of Title VII actions challenging seniority systems. At least as concerns seniority plans, we have regarded subsection (h) not as a defense to the illegality described in subsection (a)(2), but as a provision that itself “delineates which employment practices are illegal and thereby prohibited and which are not.” Franks, 424 U. S., at 758. Thus, in American Tobacco Co. we determined § 703(h) to mean that “the fact that a seniority system has a discriminatory impact is not alone sufficient to invalidate the system; actual intent to discriminate must be proved.” 456 U. S., at 65 (emphasis added). “To be cognizable,” we held, “a claim that a seniority system has discriminatory impact must be accompanied by proof of a discriminatory purpose.” Id., at 69 (emphasis added); accord, Pullman-Standard, 456 U. S., at 277, 289; Hardison, 432 U. S., at 82. Indeed, in California Brewers Assn. v. Bryant, 444 U. S. 598 (1980), after deciding that a challenged policy was part of a seniority system, we noted that on remand to the District Court the plaintiff would “remain free to show that . . . the seniority system ... is not ‘bona fide’ or that the differences in employment conditions that it has produced are ‘the result of an intention to discriminate because of race,’” id., at 610-611. Thus, petitioners’ claim depends on proof of intentionally discriminatory adoption of the system, which occurred outside the limitations period. That being the case, Machinists v. NLRB, 362 U. S. 411 (1960), establishes that the limitations period will run from the date the system was adopted (at least where the adoption occurred after the effective date of Title VII, and a cause of action against it was available). Machinists was a decision under the National Labor Relations Act (NLRA), but we have often observed that the NLRA was the model for Title VII’s remedial provisions, and have found cases interpreting the former persuasive in construing the latter. See Ford Motor Co. v. EEOC, 458 U. S. 219, 226, n. 8 (1982); Teamsters, 431 U. S., at 366; Franks, supra, at 768-770; Albemarle Paper Co. v. Moody, 422 U. S. 405, 419 (1975). Such reliance is particularly appropriate in the context presented here, since the highly unusual feature of requiring an administrative complaint before a civil action can be filed against a private party is common to the two statutes. The NLRA’s statute of limitations — which provides 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,” 29 U. S. C. § 160(b) — is even substantively similar to § 706(e) — which states that “[a] charge . . . shall be filed [with the EEOC] within one hundred and eighty days after the alleged unlawful employment practice occurred,” 42 U. S. C. §2000e-5(e). In Zipes v. Trans World Airlines, Inc., 455 U. S. 385 (1982), we specifically relied on cases construing the NLRA’s timely filing requirement in determining whether § 706(e) — the very provision we construe here — constituted a waivable statute of limitations or rather a jurisdictional prerequisite to a Title VII action. “Because the time requirement for filing an unfair labor practice charge under the National Labor Relations Act operates as a statute of limitations subject to recognized equitable doctrines and not as a restriction of the jurisdiction of the National Labor Relations Board,” we said, “the time limitations under Title VII should be treated likewise.” 455 U. S., at 395, n. 11 (citations omitted). Machinists considered and rejected an approach to the limitations period identical to that advanced here. The suit involved the timeliness of an unfair labor practice complaint directed at a so-called “union security clause,” which required all employees to join the union within 45 days of the contract’s execution. Under the NLRB’s precedents, agreeing to such a clause when the union lacked majority status constituted an unfair labor practice, as did continued enforcement of the clause. 362 U. S., at 413-414. The agreement at issue in Machinists had been adopted more than six months before the complaint issued (outside the limitations period), but had been enforced well within the period of limitations. “Conceding that a complaint predicated on the execution of the agreement here challenged was barred by limitations,” the NLRB contended that “its complaint was nonetheless timely since it was ‘based upon’ the parties’ continued enforcement, within the period of limitations, of the union security clause.” Id., at 415 (emphasis in original). We found, however, that “the entire foundation of the unfair labor practice charged was the Union’s time-barred lack of majority status when the original collective-bargaining agreement was signed,” and that “[i]n the absence of that fact enforcement of this otherwise valid union security clause was wholly benign.” Id., at 417. “[W]here a complaint based upon that earlier event is time-barred,” we reasoned, “to permit the event itself” “to cloak with illegality that which was otherwise lawful” “in effect results in reviving a legally defunct unfair labor practice.” Ibid. This analysis is squarely in point here. Because the claimed invalidity of the facially nondiscriminatory and neutrally applied tester seniority system is wholly dependent on the alleged illegality of signing the underlying agreement, it is the date of that signing which governs the limitations period. In holding that, when a seniority system is nondiscriminatory in form and application, it is the allegedly discriminatory adoption which triggers the limitations period, we respect not only §706(e)’s general “Value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale [claims],’” Ricks, 449 U. S., at 260 (citation omitted), but also the considerations underlying the “special treatment” accorded to seniority systems under § 703(h), see Hardison, 432 U. S., at 81. This “special treatment” strikes a balance between the interests of those protected against discrimination by Title VII and those who work — perhaps for many years — in reliance upon the validity of a facially lawful seniority system. There is no doubt, of course, that a facially discriminatory seniority system (one that treats similarly situated employees differently) can be challenged at any time, and that even a facially neutral system, if it is adopted with unlawful discriminatory motive, can be challenged within the prescribed period after adoption. But allowing a facially neutral system to be challenged, and entitlements under it to be altered, many years after its adoption would disrupt those valid reliance interests that § 703(h) was meant to protect. In the context of the present case, a female tester could defeat the settled (and worked-for) expectations of her co-workers whenever she is demoted or not promoted under the new system, be that in 1983, 1993, 2003, or beyond. Indeed, a given plaintiff could in theory sue successively for not being promoted, for being demoted, for being laid off, and for not being awarded a sufficiently favorable pension, so long as these acts — even if nondiscriminatory in themselves — could be attributed to the 1979 change in seniority. Our past cases, to which we adhere today, have declined to follow an approach that has such disruptive implications. * * * For the foregoing reasons, the judgment of the Court of Appeals is Affirmed. Justice O’Connor took no part in the consideration or decision of this case. The type of seniority at issue here is not “benefit seniority,” which is used to “compute noncompetitive benefits earned under the contract of employment,” Franks v. Bowman Transportation Co., 424 U. S. 747, 766 (1976) (emphasis added), but “competitive seniority,” which is “used to allocate entitlements to scarce benefits” such as promotion or nondemotion, id., at 766-767. Under 42 U. S. C. § 2000e-5(e), a charge must be filed with the EEOC within 180 days of the alleged unfair employment practice unless the complainant has first instituted proceedings with a state or local agency, in which case the period is extended to a maximum of 300 days. Neither the District Court nor the Court of Appeals ruled on the applicable limitations period in the present case, since both courts concluded that petitioners’ claims were time barred even if the applicable period was 300 days. See 827 F. 2d 163, 165, and n. 2 (CA7 1987). We may for the same reason avoid ruling on that point here. The dissent attempts to distinguish Delaware State College v. Ricks on the ground that there “[t]he allegedly discriminatory denial of tenure . . . served notice to the plaintiff that his termination a year later would come as a ‘delayed, but inevitable, consequence.’” Post, at 917 (emphasis in original; citation omitted). This builds on its earlier criticism that “[o]n the day AT&T’s seniority system was adopted, there was no reason to believe that a woman who exercised her plantwide seniority to become a tester would ever be demoted as a result of the new system,” so that at that point the prospect of petitioners’ suffering “concrete] harm” was “speculative.” Post, at 914 (emphasis in original). Of course the benefits of a seniority system, like those of an insurance policy payable upon the occurrence of a noninevitable event, are by their nature speculative — if only because they depend upon the employee’s continuing desire to work for the particular employer. But it makes no more sense to say that no “concrete harm” occurs when an employer provides a patently less desirable seniority guarantee than what the law requires, than it does to say that no concrete harm occurs when an insurance company delivers an accident insurance policy with a face value of $10,000, when what has been paid for is a face value of $25,000. It is true that the injury to the employee becomes substantially more concrete when the less desirable seniority system causes his demotion, just as the injury to the policyholder becomes substantially more concrete when the accident occurs and the payment is $15,000 less than it should be. But that is irrelevant to whether there was any concrete injury at the outset. What the dissent means by “concrete harm” is what Ricks, 449 U. S., at 258, referred to as the point at which the injury becomes “most painful” — and that case rejected it as the point of reference for liability. Accord, Chardon v. Fernandez, 454 U. S. 6, 8 (1981) (per curiam). Like Ricks and United Air Lines, Inc. v. Evans, 431 U. S. 553 (1977), our decision in Machinists v. NLRB also rejected an attempt to cure untimeliness by asserting a continuing violation: “The applicability of these principles cannot be avoided here by invoking the doctrine of continuing violation. It may be conceded that the continued enforcement, as well as the execution, of this collective bargaining agreement constitutes an unfair labor practice, and that these are two logically separate violations, independent in the sense that they can be described in discrete terms. Nevertheless, the vice in the enforcement of this agreement is manifestly not independent of the legality of its execution, as would be the case, for example, with an agreement invalid on its face or with one validly executed, but unlawfully administered.” 362 U. S., at 422-423. The dissent is mistaken to equate the application of a facially neutral but discriminatorily adopted system with the application of a system that is facially discriminatory. See post, at 916-917. With a facially neutral system the discriminatory act occurs only at the time of adoption, for each application is nondiscriminatory (seniority accrues for men and women on an identical basis). But a facially discriminatory system (e. g., one that assigns men twice the seniority that women receive for the same amount of time served) by definition discriminates each time it is applied. This is a material difference for purposes of the analysis we employed in Evans and Ricks — which focuses on the timing of the discriminatory acts for purposes of the statute of limitations. It is also why the dissent’s citation, post, at 915, of Bazemore v. Friday, 478 U. S. 385 (1986) — in which “[ejach week’s paycheck . . . deliverfed] less to a black than to a similarly situated white,” id., at 395 — is misplaced. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:
songer_r_bus	3	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "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. Louis CROCI and H. Phillip Nesbitt t/a Uniceiver, a Joint Venture, Appellee, v. The CITY BANK AND TRUST COMPANY, Appellant. No. 14422. United States Court of Appeals, Fourth Circuit. Oct. 1, 1970. James C. Cacheris and James M. Thomson, Alexandria, Va., on brief for appellant. Lois H. Miller, Vienna, Va., and Harvey Rosenberg, Silver Spring, Md., on brief for appellee. Before SOBELOFF, BOREMAN and BRYAN, Circuit Judges. PER CURIAM: Upon careful consideration of the record, briefs and appendix filed in this case, it appears to the court that the appellant is in breach of an oral contract to extend a line of credit to the appellee. After jury trial in the United States District Court for the Eastern District of Virginia, appellee was awarded damages of $46,917. There is no basis in law for appellant’s assignment of errors. Substantial performance of the terms of the agreement by the parties, and appellee’s reliance thereon, preclude the defense based on the Statute of Frauds. Damages were properly calculated to recompense appellee for reasonable foreseeable losses. Finally, the issue of representation of authority to extend the line of credit by the bank president was properly left to the jury. The jury verdict in favor of the appellee is amply supported by the evidence. 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_sentence	A	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". Max A. NIEMANN, Appellant, v. Robert PARRATT, Warden of the Nebraska Penal and Correctional Complex, Appellee. No. 78-1783. United States Court of Appeals, Eighth Circuit. Submitted March 14, 1979. Decided April 6, 1979. Richard T. Vanderheiden of Phares, Tor-pin & Vanderheiden, Central City, Neb., for appellant. Paul L. Douglas, Atty. Gen. and Paul W. Snyder, Asst. Atty. Gen., Lincoln, Neb., for appellee. Before BRIGHT and STEPHENSON, Circuit Judges, and BOGUE, District Judge. The Honorable Andrew W. Bogue, United States District Judge for the District of South Dakota, sitting by designation. STEPHENSON, Circuit Judge. On this appeal from the district court’s denial of his petition for habeas corpus, petitioner Max A. Niemann claims that his indeterminate sentence of 20 years to life imprisonment is illegal and void as it is not authorized by Nebraska law. We disagree, and consequently affirm the district court. On October 20, 1970, Niemann entered a plea of guilty in Boone County, Nebraska, to the charge of second degree murder. On that same day he received an indeterminate sentence of 20 years to life imprisonment. On November 22, 1971, Niemann filed for post-conviction relief under the Nebraska Post-Conviction Act. Neb.Rev.Stat. § 29-3001. After an evidentiary hearing relief was denied. No appeal was taken from that decision. On May 19, 1975, Neimann filed a second motion for post-conviction relief, alleging for the first time that the sentence imposed was illegal. The state district court denied the petition and the Nebraska Supreme Court affirmed without addressing the merits of his claim. State v. Niemann, 195 Neb. 675, 240 N.W.2d 38 (1976). Niemann then filed a habeas corpus petition in federal district court asserting the illegality of the state sentence. Initially, the district court ruled that Niemann had exhausted his state remedies, and the state has not challenged that finding. The district court further held that the sentence imposed was not illegal under Nebraska law, and accordingly denied the petition for habeas corpus. This appeal followed. Although rules of sentencing adopted by state courts do not ordinarily raise constitutional issues cognizable in a habeas corpus proceeding, it has been recognized that in an exceptional case habeas relief may be granted. See Johnson v. Arizona, 462 F.2d 1352 (9th Cir. 1972); Stiltner v. Rhay, 258 F.Supp. 487, 491 (E.D.Wash. 1965), aff’d, 367 F.2d 148 (9th Cir.), cert. denied, 385 U.S. 941, 87 S.Ct. 310, 17 L.Ed.2d 220 (1986). Therefore, we must examine the merits of Niemann’s contentions. Neb.Rev.Stat. § 28-402 provides in part that one convicted of second degree murder “shall be imprisoned in the Nebraska Penal and Correctional Complex not less than ten years, or during life.” The indeterminate sentence statute, Neb.Rev.Stat. § 83-1,105, in effect at the time of Niemann’s sentencing, read in part: Except where a term of life is required by law, every person convicted of a criminal offense may, in the court’s discretion, be given an indeterminate sentence. In imposing an indeterminate sentence upon the offender, the court may: (1) Fix the minimum and maximum limits of the sentence, but the minimum limit fixed by the court shall not be less than the minimum provided by law and the maximum limit shall not be greater than the maximum provided by law[.] It is clear from a literal reading of the above statutes that section 83-1,105 could be applied in a sentencing for second degree murder because it is not a crime “where a term of life is required by law.” See State v. Rivera, 197 Neb. 629, 249 N.W.2d 914, 915 (1977). Niemann relies on the Nebraska Supreme Court cases of State v. Laravie, 192 Neb. 625, 223 N.W.2d 435 (1974), and State v. Suggett, 189 Neb. 714, 204 N.W.2d 793 (1973), for the proposition that an indeterminate sentence may not be imposed for the crime of second degree murder. These cases, however, involved interpretations of section 83-1,105 as it was amended in 1972. Niemann was sentenced on October 26, 1970. Section 83-1,105 as amended in 1972 provides: Except where a term of life is required by law, in imposing an indeterminate sentence upon the offender, the court may: (1) Fix the minimum and maximum limits of the sentence, but the minimum limit fixed by the court shall not be less than the minimum provided by law nor more than one-third of the maximum term, and the maximum limit shall not be greater than the maximum provided by law[.] [Emphasis added.] It was the addition of the provision which requires the minimum portion of the indeterminate sentence to be no more than one-third of the maximum term allowable which led the Nebraska Supreme Court to hold in Suggett and Laravie that an indeterminate sentence could not be imposed upon a defendant convicted of a crime for which a life sentence is authorized. That the 1972 amendment was crucial to the court’s holdings in Suggett and Laravie is apparent from the Nebraska Supreme Court’s Disposition of a subsequent ease very similar to the present case. In State v. Rivera, supra, 249 N.W.2d 914, the defendant was sentenced in 1970 to an indeterminate term of 15 to 25 years. In addressing Rivera’s claim that his sentence was invalid, the court applied the version of section 83-1,105 which was in effect at the time he was sentenced. This was the same version in effect at the time of Niemann’s sentencing. The court stated: Prior to the enactment of section 83-1,-105 in 1969, the indeterminate sentence statute excepted crimes of violence from its provisions. After defendant was sentenced, section 83 — 1,105 was again amended. The 1972 amendment provided that the minimum limit fixed by the court shall not be less than the minimum provided by law nor more than one-third of the maximum term, and the maximum limit shall not be greater than the maximum provided by law. We have held the 1972 amendment of section 83-1,105 made it inapplicable in cases of second-degree murder. See State v. Suggett, 189 Neb. 714, 204 N.W.2d 793 (1973). It was not until the 1972 amendment that the problem arose of how to determine one-third of a life sentence. In 1973, in Suggett, we held second-degree murder convictions were not subject to indeterminate sentencing. Here, however, the indeterminate sentence was imposed under the applicable statute in force at that time, December 10, 1970. The statute then required a minimum of 10 years, with a maximum of life. As we interpret that statute, it was possible to give an indeterminate sentence. The sentence imposed herein was 15 to 25 years. We hold the defendant was properly sentenced under the statute in force at the time of the sentence. Id. at 915-16. A state court is accorded a large measure of discretion in interpreting its own laws and in deciding the time from which a new legal principle is deemed to be controlling. See Brady v. Superintendent, 443 F.2d 1307, 1313 (4th Cir. 1971). We are satisfied that the Nebraska Supreme Court did not commit constitutional error in ruling that the pre — 1972 version of section 83-1,105 permitted indeterminate sentences for defendants convicted of second degree murder. Nor is it impermissible to apply the pre-1972 version of section 83-1,105 to all defendants sentenced prior to enactment of the 1972 amendment. See Meeks v. Jago, 548 F.2d 134, 138 (6th Cir. 1976), cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977). Niemann’s only claim that is not directly disposed of by State v. Rivera, supra, is that his sentence is in conflict with Neb.Rev. Stat. § 82-1,107, which specifies the method for reduction of sentences for good behavior. This section provides in pertinent part: (1) The chief executive officer of a facility shall reduce, for parole purposes, for good behavior and faithful performance of duties while confined in a facility the term of a committed offender as follows: Two months on the first year, two months on the second year, three months on the third year, four months for each succeeding year of his term and pro rata for any part thereof which is less than a year. In addition, for especially meritorious behavior or exceptional performance of his duties, an offender may receive a further reduction, for parole purposes, not to exceed five days, for any month of imprisonment. The total of all such reductions shall be deducted: (a) From his minimum term, to determine the date of his eligibility for release on parole; and (b) From his maximum term, to determine the date when his release on parole becomes mandatory under the provisions of section 83-1,111. Niemann argues that an indeterminate sentence with life as the maximum conflicts with section 83-1,107 because it is impossible to deduct good behavior credits from a life sentence for purposes of determining when release on parole becomes mandatory. However, this same problem would be encountered on all life sentences, not just those in which life imprisonment is the maximum part of an indeterminate sentence. Niemann apparently does not contend that a straight life sentence would have been illegal, nor would such a contention be successful. Since a straight life sentence was authorized by the Nebraska statute, it follows that the district court possessed the power to specify a minimum sentence with the exact time of parole, if any, left to the discretion of the parole board. Cf. State v. Thompson, 189 Neb. 115, 201 N.W.2d 204, 205 (1972) (implied that an indeterminate sentence of 10 years to life is permissible). We conclude that Niemann’s Eighth and Fourteenth Amendment rights were not violated by imposing an indeterminate sentence with life imprisonment as the maximum term. Affirmed. . The Honorable Robert V. Denney, United States District Judge for the District of Nebraska. . Niemann also argues that making the minimum part of his indeterminate sentence 20 years rather than the statutory minimum of 10 years violated his rights under the Eighth and Fourteenth Amendments by increasing the length of his sentence after commission of the crime. This argument overlooks the fact that under Neb.Rev.Stat. § 28-402 a straight sentence of 20 years is authorized. Therefore, the imposition of a 20 year minimum sentence was within the sentencing discretion of the district court. See State v. Rivera, supra (15 year minimum sentence); Neb.Rev.Stat. § 83-170(5). Question: Did the court conclude that some penalty, excluding the death penalty, was improperly imposed? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_appel1_8_3	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant. SCHOOLER et al. v. SCHOOLER et al. No. 9641. United States Court of Appeals District of Columbia Circuit. Argued June 7,1948. Decided Nov. 22, 1948. On Petition for Rehearing, Feb. 14, 1949. STEPHENS, Chief Judge, dissenting on rehearing. Mr. Leo A. Rover, of Washington, D. C., with whom Mr. Harry Friedman, of Washington, D. C., was on the brief, for appellants. Messrs. David Wiener and Samuel R.. Blanken, both of Washington, D. C., for appellees. Before STEPHENS, Chief Judge, and EDGERTON and PROCTOR, Circuit-Judges. PROCTOR, Circuit Judge. At the trial of this action in the District Court, the defendants (appellees) moved for judgment at the close of the plaintiffs’ case in chief. The motion was granted and judgment entered. Plaintiffs appeal. The evidence tended to prove the following facts: Louis Schooler had six children by three marriages. Wilfred Schooler, Yetta B. Lesser, Mary S. Reiskin and Ida Sherman, plaintiffs (appellants), are children of his first and second marriages. Jack and Robert Schooler are children of his third marriage to Sophie Schooler. These three persons were defendants. For brevity all parties will be referred to by their first names. Louis and Sophie owned several parcels of income-producing real estate in the District of Columbia as tenants by ■the entirety. On October 9, 1941, while at a hospital awaiting an . operation, Louis made a will leaving all his estate to Sophie. He further stated -it .to be his “will and wish” that during the lifetime of Sophie ■one-fourth of the net income from the rented property should be paid to Wilfred; that he should control the bookkeeping and accounting and be consulted as to repairs; that Jack should receive $25 a week and act as manager in the “collections and maintenance” of the property, and that upon the death of Sophie all the property should be divided equally among the six children. Wilfred was named executor. Pursuant to an understanding when the will was made an instrument denoted “agreement” was ex--ecuted by Louis and Sophie. It bore' thé' same date as the will, although drawn and signed some days later. This writing stated that in consideration of the execution of the will Sophie agreed that “-the will and wish clause” thereof should become a part of the agreement, and that she would carry out the same as though it-were a bequest of property belonging solely to Louis in which she should have only a life estate. On June 25, 1942, an “agreement” was executed by Sophie, Wilfred--and Jack. After reciting ownership of the real estate by Louis and Sophie as tenants by the entirety and the above-mentioned agreement it was stated that in consideration of the execution of the will of Louis and other valuable consideration passing between the parties Sophie agreed that so long as she lived Wilfred would receive one-fourth of the net income from the rented property and that Jack should collect the rents and manage the same and receive $25 weekly therefor. This instrument and -the earlier one dated October 9th, 1941, were signed and sealed by the parties thereto and acknowledged before a notary. Louis died July 30, 1942. His will, although filed with the registrar, has not been offered for probate. For sometime after Louis’ death Sophie made payments to Wilfred totaling more than $2,900, allegedly from the rental income. Finally, about four and one-half years after Louis’ death Wilfred filed his complaint against Sophie and Jack for accounting of moneys ■ received since the death of Louis and for judgment for moneys claimed to be due him out of income from the -property. Yetta, Mary and Ida, other children of the first and second marriages, were ‘added as plaintiffs. They prayed for judgment declaring all six children vested with a remainder in the real property subject to a life estate in Sophie. Robert was joined as a defendant. Answering, the defendants claimed sole ownership in Sophie, as survivqr of the tenancies by the entire-ties, of all real estate covered by the will, and that the property was not subject to disposal by Louis; that there was no valid consideration for the agreement of October 9, 1941; that Sophie executed the same to please the whim of her ill husband; "that the agreement of June 25, 1942, was without consideration and that payments made to Wilfred were to avert arguments which caused her much physical harm. She included a counterclaim to recover back the moneys paid. Proffers of testimony were made by plaintiffs, to prove certain other acts and declarations by Sophie indicating acknowledgment and acceptance of the terms of the will and agreement of October 9, 1941, and as tending to show her understanding and intentions respecting the same. These were rejected by the court. The trial court found that all the properties in question were owned at the time of Louis’ death jointly by him and Sophie as tenants by the entirety; that upon Louis’ death all were in the sole ownership of Sophie; that there was no evidence to establish in any plaintiff a right, title or interest in said properties; that Sophie had paid no moneys to Wilfred pursuant to any legal obligation, and that plaintiffs had not sustained the burden of proof in attempting to establish their claims. Accordingly, judgment'was entered for defendants and the cause dismissed. The counterclaim was dismissed without prejudice. Appellants contend that the “agreement” of October 9, 1941, is in legal effect a deed, vesting a life estate in Sophie, subject to a charge against the net income of 25% to Wilfred and $25 weekly to Jack, with remainders in. fee to the six children upon the death of Sophie. References are also • made to the writing as -a gift or trust. But in either case a deed was necessary. No ■ explanation is advanced for the instrument. of June 25, 1942, except that it “clarifies” and “corroborates” the one of October 9th. The primary question then is whether this last mentioned instrument meets the requirements of a deed. The following provisions of Title 45, District of Columbia Code 1940 bear directly upon the question: Section 106. “No estate of inheritance, or for life, or for a longer term than one year, in any real property, corporeal or incorporeal, in the District of Columbia, or any declaration or limitation of uses in the same, for any of the estates mentioned, shall be created or take effect, except by deed signed and sealed by the grantor, lessor, or de-clarant, or by will.” Section 301. “The following forms or forms to the like effect shall be sufficient, and any covenant, limitation, restriction, or proviso allowed by law may be added, annexed to, or introduced in the said forms. Any other form conforming to the rules herein laid down shall be sufficient.” Measuring the instrument by the foregoing requirements, enlightened by the forms set forth, which cannot be disregarded, we think it is not sufficient to grant or create any estate or úse in the property. A deed is a written expression of the act of granting or creating an estate or use in land. It bespeaks a present act, rather than a promise for future action. Agricultural Bank v. Rice, 45 U.S. 225, 4 How. 225, 11 L.Ed. 949; Williams v. Paine, 169 U.S. 55, 76, 18 S.Ct. 279, 42 L.Ed. 658; Chavez v. De Bergere, 231 U.S. 482, 34 S.Ct. 144, 58 L.Ed. 325. The distinction readily appears as between a deed to land and a contract to sell the same. One is a grant, the other only a promise to grant. The writing of October -9th at best is but a promise by Sophie to create certain estates in favor of the children. That falls far short of-a grant or declaration actually conveying or creating an estate. Appellees raise the question of consideration. They contend that there was no actual consideration for Sophie’s agreement. According to the instrument itself Louis’ will was the moving consideration for Sophie’s promise to “carry out the will and wish clause” of his will. We cannot see that the will did lend any legal support for Sophie’s undertaking. Admittedly all Louis’ property covered by the will was jointly owned with his wife. Hence if she survived him ownership in its entirety would remain in her. Nothing done by him alone could alter that result. Such is the peculiar nature of a tenancy by the entirety. Therefore, the devise to Sophie was a’futile act, without substance to form any legal consideration for her promise. Obviously, ' however; one may convéy his property to another without material inducement, if in so doing the rights of others, such as a creditors, are not prejudiced. Hence Louis and Sophie might have conveyed their property to. their children without any material consideration. But, as we have pointed out, such a gift could only be effected by their joint deed conforming to the requirements of law. The fact that they did not so convey the property, but kept full ownership and control raises a strong inference that they had no intention at that time of relinquishing their absolute rights by granting any interest or estate in the property to their children. It is also consistent with the action they attempted by expressing in writing their intention as to future disposition, of the property in favor of their children. If the writing is tested as a contract, rather than a deed as contended, Sophie’s undertaking therein is purely of an executory nature and would need the support of a valid consideration. A deed conveying real property or any interest therein, or declaring or limiting any use or trust thereof cannot take effect without delivery to a person in whose favor it is executed. D.C.Code 1940, § 45 — 501. Here there was no delivery of the instrument of October 9, 1941. That conclusion is implicit' in the findings of the trial judge. We think it is justified. Although manual delivery may not be necessary, there must be some “words or acts showing an intention that the deed shall be complete and operative” and “the intent of the parties is to be determined by what occurred at the time of the transaction.” Walker v. Warner, 31 App.D.C. 76, 85, 89; Atlas Portland Cement Co. v. Fox, 49 App.D.C. 292, 266 F. 1021. It may be reasonably inferred from the evidence that the paper remained with the attorney who drafted it for Louis and Sophie from the time of its execution until the trial, when he produced it under a subpoena. In these circumstances he was their attorney. Hence legal possession rested in them until Louis’ death. Thereafter it continued in Sophie alone. No action appears to have been taken at any time by either suggestive of a manual delivery of the paper to any person other than their own attorney. So clearly there was no actual delivery of the instrument to any of the children. Nor do we think the testimony including that proffered and rejected, bearing upon the intentions of Louis or Sophie was sufficient to prove a constructive delivery. This is especially true in view of the presumption of nondelivery arising by reason of the paper remaining in possession of the makers. Safford v. Burke, 130 Misc. 12, 223 N.Y.S. 626; Witham v. Witham, 156 Or. 59, 66 P.2d 281, 110 A.L.R. 253; Vreeland v. Vreeland, 48 N.J.Eq. 56, 21 A. 627. Reverting to the agreement of June 25, 1942, between Sophie, Wilfred and Jack, it should be noted that this instrument expressly relates to the properties owned by Louis and Sophie as tenants by the entirety. It was made while Louis was still alive. Therefore, without his joining, it could have no force or effect as a grant of any estate or interest in the property. It should also be noted that Wilfred is making no claim under this or the earlier instrument as a contract of employment. He and the other plaintiffs stake their claims upon the single proposition that the “agreement” of October 9th operated to grant or create certain interests or estates in their favor. The point made by appellants that error was committed in rejection of proffered testimony to show the intention and understanding of Louis and Sophie need not be considered' further. Whatever their intentions they cannot cure the fatal deficiencies of either instrument to operate as a deed. The judgment is Affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant? A. trustee in bankruptcy - institution B. trustee in bankruptcy - individual C. executor or administrator of estate - institution D. executor or administrator of estate - individual E. trustees of private and charitable trusts - institution F. trustee of private and charitable trust - individual G. conservators, guardians and court appointed trustees for minors, mentally incompetent H. other fiduciary or trustee I. specific subcategory not ascertained Answer:
songer_indigent	B	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant's rights as an indigent were violated?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". Frank A. TATE, Appellant, v. UNITED STATES of America, Appellee. Robert M. EDELIN, Appellant, v. UNITED STATES of America, Appellee. Nos. 19177, 19556. United States Court of Appeals District of Columbia Circuit. Argued Nov. 19, 1965. Decided March 28, 1966. Mr. Richard A. Baenen, Washington, D. C. (appointed by this court), for appellant in No. 19177. Mr. John D. Hawke, Jr., Washington, D. C. (appointed by this court), for appellant in No. 19556. Mr. Frank Q. Nebeker, Asst. U. S. Atty., for appellee. Mr. John C. Conliff, Jr., U. S. Atty., at the time the brief was filed, was on the brief for appellee in No. 19177. Mr. David G. Bress, U. S. Atty., was on the brief for appellee in No. 19556. Mr. Allen M. Palmer, Asst. U. S. Atty., also entered an appearance for appellee in No. 19177. Mr. John A. Terry, Asst. U. S. Atty., also entered an appearance for appellee in No. 19556. Before Wright, Tamm and Leven-thal, Circuit Judges. LEVENTHAL, Circuit Judge: In these two cases we granted appellants’ petitions for leave to appeal from decisions by the District of Columbia Court of Appeals (D. C. Court of Appeals). That court withdrew leave to appeal in forma pauperis from judgments of the Court of General Sessions (General Sessions) in prosecutions brought by the United States, and withdrew appointments of counsel in connection therewith. These cases present important questions with respect to the handling of in forma pauperis appeals in the D. C. Court of Appeals. We shall first outline the facts of each case, then discuss the general principles pertinent to the questions raised by the cases, and finally dispose of these appeals in the light of the principles adduced. We make clear at the outset that we confine our discussion to prosecutions brought by and in the name of the United States. I Edelin v. United States, No. 19556: While he was under arrest on a false pretenses charge, appellant’s home was searched by the police pursuant to a search warrant authorizing seizure of a check writing machine and blank payroll checks, the proceeds of the crime with which appellant was charged. What the police found and seized, however, were a hypodermic needle and a silver spoon wrapped in a brown silk stocking. The false pretenses charges were dropped, and appellant was instead charged by information in the Court of General Sessions with possessing narcotics in violation of D.C.Code § 33-402(a). The trial judge denied his motion to suppress the evidence. After a trial without a jury, recorded by a court reporter, at which appellant was represented by retained counsel, he was found guilty and sentenced to 360 days, with 180 days suspended. On April 21, 1965, the D. C. Court of Appeals granted appellant leave to appeal in forma pauperis, and appointed new counsel to represent him. This attorney submitted a “report” to the court on April 28,1965. This set forth the chronology of the case in the trial court. Counsel related that on April 26 he had both telephoned appellant’s trial counsel, who advised that without funds he would not represent appellant further, and discussed the case with the prosecutor (whom he described as courteous, fair-minded and cooperative), and that on April 27 he had consulted with appellant in the rear of the U. S. Branch of General Sessions. He set forth: The appellant stated to the undersigned that he had the following complaints : (a) Ineffective Counsel, in that the Attorney did not make the proper motions. (b) Unfair conviction, since he is a drug addict. (c) Judge denied appellant’s motions. (d) No proof that appellant was in possession of narcotics. Counsel’s report sets forth a two-paragraph conclusion. This report barely takes cognizance of the issues in this case, cites no cases, and lacks any real analysis of the issues (e. g. whether the objects seized were contraband or instrumentalities of crime, seizable without a warrant, or merely evidence of crime). The final conclusion was that “investigation FAILS to establish the denial of a fair and impartial trial to the appellant.” On the same day, April 28, the D. C. Court of Appeals granted appointed counsel leave to withdraw from the case and revoked its permission to appellant to proceed on appeal in forma pauperis. In a subsequent “Show Cause Order,” filed pro se on May 3, appellant inquired why appointed counsel, who allegedly tol$ appellant during their conversation that the points of law appellant raised were unfamiliar to him and would require research, devoted less than one day to his case (before submitting his report to the court), and why appointed counsel did not “seek to review the transcript of the trial for errors, instead of [asking] appellant for his layman’s opinion of what points and etc. were raised at the trial.” On June 15, the Clerk belatedly sent appellant a copy of counsel’s report, reproached him for his “temerity” in inquiring why he was denied leave to proceed in forma pauperis, stated that the order was based on the attorney’s report, and that “there will be no action on the irregular Show Cause proceeding.” Tate v. United States, No. 19177: On July 2, 1964, appellant, represented by court-appointed counsel, pleaded guilty in the Court of General Sessions to charges in three informations filed against him that day — for possession of narcotics, D.C.Code § 33-402(a), narcotics vagrancy, D.C.Code § 33-416a, and petit larceny, D.C.Code § 22-2202. The court imposed consecutive sentences for the three offenses, totalling 720 days. On July 16, 1964, appellant filed a pro se motion to vacate his sentence on the ground that his guilty pleas were involuntary because he was suffering at the time from the effects of narcotics withdrawal. New counsel was appointed to represent appellant on this motion, and a hearing was held on July 28. The motion was denied by the court without opinion, findings of fact, or conclusions of law. No appeal was taken. On September 18, 1964, appellant, again acting pro se, filed a motion for rehearing of the motion to set aside his pleas of guilty. He alleged that counsel appointed to represent him on that motion had not subpoenaed witnesses and documents which would have supported his allegation that the plea was involuntary. This motion was denied summarily. On September 25, appellant filed his notice of appeal. The D. C. Court of Appeals granted leave to appeal in forma pauperis from the judgments of conviction and appointed counsel to represent appellant. Appointed counsel filed his report to the court on December 1, 1964, two months after he had been appointed. He stated that there was nothing for the eourt to review, at least for the time being, on the issue of voluntariness vel non of the guilty pleas, since that was an issue of fact which had been determined against appellant by the trial court after hearing and testimony. He recommended, however, that the court retain jurisdiction over the appeal while remanding the case to General Sessions for a hearing on the issue of ineffective assistance of counsel at the July 28 hearing on the motion to vacate for involuntariness of the guilty plea, and if necessary further hearing on the motion to vacate itself. The D. C. Court of Appeals declined to remand as suggested. It revoked appellant’s leave to appeal in forma pauperis, and withdrew appointment of counsel “for the reason that it appears that the motions to vacate were denied after full hearing, that the motions for reconsideration presented no new matter, and that the record discloses no basis for an appeal.” The “record” before the D. C. Court of Appeals and this court contains no transcripts of any of the proceedings. Apparently none of the proceedings was recorded by a court reporter. Nor does that “record” contain any statement of proceedings and evidence with respect to either the July 2 proceedings on appellant’s guilty pleas, or the July 28 hearing on the motion to vacate sentence. II We consider for the first time the standards applicable to the conduct and decision of in forma pauperis appeals in the D. C. Court of Appeals. There is concurrent criminal jurisdiction in the District of Columbia in cases other than felonies. The United States District Court for the District of Columbia has original jurisdiction of all “offenses committed within the District” with certain exceptions not here material. D.C.Code § 11-521 (a) (Supp. V. 1966). The Court of General Sessions has original jurisdiction, concurrently with the District Court, of offenses punishable by fine only or by imprisonment for one year or less. D.C.Code § 11-963(a) (Supp. V. 1966). We are not here concerned with offenses against municipal ordinances, which are prosecuted in General Sessions by the District of Columbia. We are concerned with prosecutions by and in the name of the United States, and these are prosecutions for serious crimes, whether technically for violations of the United States Code or the District of Columbia Code. The United States Attorney, it was admitted on oral argument, has prosecutorial discretion in many cases whether to prosecute the defendant in the District Court or the Court of General Sessions. With respect to appeals by indigent defendants who are prosecuted by the United States in the Court of General Sessions, two sets of problems fraught with constitutional overtones arise: first, to what extent must opportunities and facilities on appeal be equal to those provided nonindigent defendants; and second, to what extent must those opportunities and facilities approximate those of indigent defendants appealing from District Court convictions. The Supreme Court has made clear that the guiding principle governing indigent appeals in the federal courts and in states which make available appellate review is equality of treatment with paid appeals. Coppedge v. United States, 369 U.S. 438, 446-447, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); Griffin v. People of State of Illinois, 351 U.S. 12, 16-17, 76 S.Ct. 585, 100 L.Ed. 891 (1956). “Both equal protection and due process emphasize the central aim of our entire judicial system —all people charged with crime must, so far as the law is concerned, ‘stand on an equality before the bar of justice in every American court/ Chambers v. Florida, 309 U.S. 227, 241, 60 S.Ct. 472, 479, 84 L.Ed. 716.” Griffin v. People of State of Illinois, supra, at 17, 76 S.Ct. at 590. With respect to the states, the Supreme Court has enforced the standard of equality of treatment through decisions based on the equal protection and due process clauses of the Fourteenth Amendment. In addition to Griffin, supra, see Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Draper v. State of Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963); Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961); and Burns v. State of Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959). In regard to indigent appeals in the federal courts, the Supreme Court has not had occasion to invoke constitutional protections. Requirements of equality of treatment with non-indigents have been predicated on 28 U.S.C. § 1915, the statute providing for in forma pauperis proceedings, including appeals, in “courts of the United States.” In a series of decisions over the last decade, the Supreme Court has expounded the meaningful content inhering in the framework of 28 U.S.C. § 1915. In Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 (1957), the Court held that a transcript, or some appropriate substitute, and appointed counsel must be furnished an indigent defendant for the purpose of enabling him to demonstrate that he is entitled to appeal in forma pauperis. The “good faith” provision of 28 U.S.C. § 1915 requires only that a non-frivolous ground of appeal be shown to exist, as appears from Johnson, supra, and Farley v. United States, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529 (1957). Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958), emphasized the further requirement that leave to appeal in forma pauperis may not be denied until the indigent appellant has had effective assistance of counsel in his search for a non-frivolous issue, and that adequate representation entails active advocacy in an adversary proceeding, and not mere impartial evaluation and advice to the court as amicus curiae. The Court said (356 U.S. at 675, 78 S.Ct. at 975): If counsel is convinced, after conscientious investigation, that the appeal is frivolous, of course, he may ask to withdraw on that account. If the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel’s evaluation of the case, then leave to withdraw may be allowed and leave to appeal may be denied. In Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962), the Court discussed the subject of in forma pauperis appeals at length, and held that the burden is on the Government to demonstrate that any issue presented by appellant is frivolous. Finally, in Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964), the Court held that a complete transcript must be made available by the Government to an indigent defendant seeking leave to appeal in forma pawperis who is represented by an attorney other than trial counsel. Four justices would have ruled that a complete transcript is required for all indigent appeals. There has been much discussion before us as to whether the Court of General Sessions is a “court of the United States” within the meaning of 28 U.S.C. § 1915. The section with those words predates the 1948 revision assigning section number 1915. The 1948 revision inserted for the first time 28 U.S.C. § 451, providing that, as used in title 28, the term “court of the United States” includes certain enumerated courts “and any court created by Act of Congress the judges of which are entitled to hold office during good behavior.” If section 451 is deemed to govern the scope of section 1915, the latter section is not applicable to the Court of General Sessions, since the judges of that court are appointed for a term of ten years. And there are decisions of the D.C.Court of Appeals, or its predecessor, ruling or indicating that one or another provision of Title 28 is inapplicable to the legislative courts in the District of Columbia. On the other hand, the Supreme Court has held that courts properly depart from the literal meaning of words when at variance with the intention of the legislature as otherwise revealed. United States v. American Trucking Associations, 310 U.S. 534, 542-543, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940). It is pointed out that the addition of § 451 to Title 28 in 1948 was not intended to be a change of substance, but rather only “to make possible a greater simplification in consolidation of the provisions incorporated in [that] title. * * * ” H.R.Rep. No. 308, 80th Cong., 1st Sess. A52 (1947). It is suggested to us that the D. C. Court of Appeals and Court of General Sessions, or their predecessors were considered “courts of the United States” prior to 1948. See Huyler’s v. Houston, 41 App.D.C. 452 (1914); Tipp v. District of Columbia, 69 App.D.C. 400, 102 F.2d 264 (1939); Green v. Peak, 62 App.D.C. 176, 65 F.2d 809 (1933). But see United States v. Mills, 11 App.D.C. 500 (1897). It is argued that prior to 1948, the predecessor of 28 U.S.C. § 1915 would have been applicable to the predecessors of General Sessions and the D.C.Court of Appeals, and that a tidying-up provision like § 451 may not fairly be read as accomplishing a substantive turn-about that would affect basic rights. We do not feel it necessary to determine the reach of 28 U.S.C. § 1915, for the result in these cases is the same whether or not that provision is applicable. This court has the function and responsibility of exercising supervisory powers to the end of obtaining fair administration of criminal justice within the District of Columbia. The Supreme Court outlined our duties in the exercise of that supervisory power in Griffin v. United States, 336 U.S. 704, 69 S.Ct. 814, 93 L.Ed. 993 (1949), and Fisher v. United States, 328 U.S. 463,476, 66 S.Ct. 1318, 90 L.Ed. 1382 (1946). That responsibility has called forth significant rulings of this court relating to right to counsel. Of particular interest in the current context is Wildeblood v. United States, 106 U.S.App.D.C. 338, 273 F.2d 73 (1959), where we held that the then Municipal Court of Appeals was required to appoint counsel to assist indigent defendants seeking to appeal convictions involving serious moral turpitude even where there was no appeal as of right because the penalty imposed was less than $50. We stated (106 U.S.App.D.C. at 340, 273 F.2d at 75): In exercise of our powers and responsibility in relation to the administration of justice in the courts of the District, we should give effect to the spirit of Johnson v. United States, 1957, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 and Farley v. United States, 1957, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529. Our opinion in Washington v. Clemmer, 119 U.S.App.D.C. 216, 339 F.2d 715 (1964), related to stenographic recording and transcription of preliminary hearings before the United States Commissioner. We think that the interest of justice requires the application of the principles and spirit not only of the Johnson and Farley decisions of the Supreme Court to which we referred in Wildeblood, but also the subsequent Supreme Court decisions —in Ellis, Coppedge and Hardy, discussed above, and the incorporation of the substance of their requirements into the system of in forma pauperis appeals administered in the D.C.Court of Appeals, pursuant to Rule 43 of that court, from convictions in the United States branch of General Sessions. The same fundamental considerations of fairness and equality of treatment that led Congress to set up a system of in forma pauperis appeals in 28 U.S.C. § 1915, that led the Supreme Court to build up a body of law giving greater meaning and vitality to the principles of equal treatment for rich and poor, that led the D.C.Court of Appeals to set up its own in forma pauperis system, and that led the Attorney General’s Committee on Poverty and the Administration of Criminal Justice to make its cogent suggestions for improvement in access to appellate review in the federal courts, lead us to take steps to ensure that indigent defendants who have been tried in the U. S. branch of the D. C. Court of General Sessions have the same rights and opportunities on appeal, as nearly as is practicable, as do non-indigent defendants in the same situation, and as do indigent defendants appealing from judgments of the United States District Court. Absolute equality is perhaps impossible in the context of the limited facilities of the local courts. Nevertheless, equal justice remains a meaningful goal, with our practical task being the minimizing, if not eliminating, of financial resources as a weight in the scales of criminal justice. Ill Indigent appellants in the D. C. Court of Appeals are entitled to representation hy counsel acting, pursuant to the standards of Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958), not as a passive friend of the court, but as a diligent, conscientious advocate in an adversary process. The D. C. Court of Appeals is required to enforce these standards by taking greater care than is evidenced in the two cases before us to assure that no appointed counsel is permitted to withdraw from an appeal unless he has satisfied the court that after thorough investigation of the facts of the case and research of all legal issues involved he has discovered no non-frivolous issue on which an appeal might be argued. The fact that the chances of prevailing are slim is not a reason for withdrawal, but is rather a summons to conscientious counsel to devote his professional skill and pertinacity to the most effective presentation of which he is capable. Furthermore, as a symbolic but not insignificant procedural implementation of this approach, we are of the view that counsel should be required to file a formal motion to withdraw. The current practice of permitting attorneys to file “reports” has overtones of the office of amicus curiae that tend to gloss over rather than highlight the affirmative aspects of the duty of court-appointed counsel to his client. The D. C. Court of Appeals should consider taking steps to inform counsel, at the time they are appointed, of their responsibilities. We have found that a printed sheet of instructions, distributed to appointed counsel, is both helpful to counsel and easy for the court to administer. IV We further hold that the standards announced by the Supreme Court with respect to provision of transcripts to indigent appellants must be applied by the D. C. Court of Appeals and Court of General Sessions in all cases in which the trial court proceedings in the United States branch have been recorded by a court reporter. The principle underlying this requirement is the need for avoiding arbitrary discrimination in treatment of defendants, whether based on their resources or the court where they are tried. Translating this requirement into specific guidelines we note that where counsel on appeal is not the same as trial counsel, a complete transcript is necessary. Where counsel on appeal represented the appellant at trial, a transcript relevant to the points of error assigned is a minimal requirement. In our view D.C.Code § 11-935 (Supp. V, 1966) is soundly interpreted to authorize charging the United States for transcripts in cases prosecuted by it in the Court of General Sessions. This construction avoids serious constitutional questions, and thus discharges a time-honored responsibility of the courts. Section 11-935, which grants reporters in the Court of General Sessions authority to collect fees for transcripts, provides in part: “The court shall prescribe such rules, practice, and procedure pertaining to fees for transcripts as it deems necessary, conforming as nearly as practicable to the rules, practice, and procedure established for the United States District Court for the District of Columbia.” Part of the “rules, practice and procedure” relating to fees for transcripts in force in the District Court is the following, emanating from subsection (f) of the Court Reporters’ Act, 28 U.S.C. § 753 (f): “Fees for transcripts furnished in criminal or habeas corpus proceedings to persons allowed to sue, defend, or appeal in forma pauperis shall be paid by the United States out of money apropriated for that purpose.” Although the Court Reporters’ Act does not apply in and of itself, and in all its terms, to the Court of General Sessions, this fee provision in subsection (f) is made applicable to the Court of General Sessions reporters by virtue of the mandate of D.C.Code § 11-935. It may be that the immediate purpose of § 11-935 when passed in 1947 was to equalize compensation of reporters in the then Municipal Court with that of reporters in the District Court. However, it is plainly no bar to interpretation of a statute as applicable that “the question raised was not considered by the legislature,” at least where the construction flows naturally from the statutory language. These considerations are all the more compelling in a case like that under discussion, where a contrary construction would force us to face constitutional questions of a serious nature and threaten the continued existence of divided criminal jurisdiction in the District of Columbia between the District Court and the Court of General Sessions. This construction of D.C.Code § 11-935 comports with the general objective of Congress that the procedures and rights of parties in the Court of General Sessions parallel those in the District Court as closely as practicable. D.C.Code § 13-101 (Supp. V, 1966). Although we were not persuaded by its reasoning, we did study the 1964 ruling of the Comptroller General, which recognized the constitutional implications but concluded that there was no authority to pay for the transcripts. Comp.Gen.Rep. B 153485, March 17, 1964. Our construction of D.C.Code § 11-935 may not properly be gainsaid on the ground that it will result in increased costs to the Government. Moreover, if no funds for transcripts were available, constitutional considerations might compel reversal of convictions and a resultant transfer of prosecutions of many indigent defendants to the U. S. District Court, at greater cost to the Government, in addition to delay, confusion, and inconvenience to court personnel, and frustration of the Congressional scheme for entrusting General Sessions with major responsibility for dispatch of this task. Of course, a guarantee of availability of transcripts on appeal does not solve the problem of cases where no reporter is present at the trial court proceedings. The vehicle of appellate review in the D. C. Court of Appeals in cases where no transcript is available is the “statement of proceedings and evidence” prepared by trial counsel and approved by the trial judge. D.C.Ct.App.Rules 21, 23-25; Young v. Tune, 172 A.2d 558 (Mun.Ct. App.1961). Such a system of review has inherent disadvantages in terms of providing an accurate record of proceedings below, as was recognized by the Municipal Court of Appeals itself in Premier Poultry Co. v. Wm. Bornstein & Sons, Inc., 61 A.2d 632, 633 (1948). There may therefore be problems as to whether and to what extent this procedure satisfies the constitutional requirement that in the absence of a transcript the appellate court must be provided with a “picture” of trial proceedings reasonably equal to that provided by a transcript. Compare Draper v. State of Washington, 372 U.S. 487, 495, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Griffin v. People of State of Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 100 L.Ed. 891 (1956); cf. Miller v. United States, 317 U.S. 192, 198-199, 63 S.Ct. 187, 87 L.Ed. 179 (1942). We need not consider, however, whether or how General Sessions could make do with a substitute for transcripts if the legislature had failed to provide it with reporters. The fact is that Congress has provided that court ten official court reporters. That does not provide a reporter for every judge and hence choices must be made. Rule 82(b) of the court provides that the use of an official court reporter in a case is a matter for decision of the trial judge, taking into consideration “the nature of the case, the necessity or advisability of having an official transcript, and the availability of an official court reporter.” Traditionally preference has been given to civil litigation in making use of the court’s limited reportorial resources. In our view preference must be given to criminal proceedings, at least where prosecuted by the United States. These are not petty offenses, but serious crimes, though classified as misdemeanors. The manifest concern of Congress for improvement in the administration of criminal justice repels any supposition that Congress was ready to relegate such proceedings to second place in the allocation of the reporters for whose salaries it made appropriations. The problem is not as acute on the civil side where litigants often have the means to hire private reporters. The Court of General Sessions may have some adjustments to work out in implementing our ruling, but they should not be insuperable. We were advised at oral argument that reporters would be provided by the United Planning Organization (UPO), and understand that this program has been put into effect and has resulted in assignment of reporters to ail proceedings in the United States and criminal jury branches. If at some future date the UPO-provided reporters are unavailable, and there is no increase in staff of court reporters, the Court of General Sessions will be called upon to administer the staff provided by Congress, perhaps with rotation, in such fashion as to assure availability of the reporters necessary daily to cover all criminal proceedings prosecuted by the United States. V We now turn to disposition of the cases before us and to application therein of the principles developed above. In Edelin v. United States, No. 19556, the D. C. Court of Appeals erred in granting appellant’s attorney leave to withdraw and in revoking permission to appellant to proceed in forma pauperis. Since the trial was recorded by a court reporter, and appellant was represented on appeal by a court-appointed attorney who had not represented him at trial, it was error not to have ordered a transcript of the trial prepared to enable appellant’s attorney to prepare his appeal. Even apart from this, we think it improper for the court to have allowed counsel to withdraw and to have revoked leave to appeal in forma pauperis on the basis of the conclusory statements in counsel’s “report” to the effect that no non-frivolous issue existed. Appellant did not receive adequate representation by counsel acting as his advocate under the standards of Ellis v. United States. See also Williams v. United States, 109 U.S.App.D.C. 18, 283 F.2d 382 (1960). We reverse the judgment of the D. C. Court of Appeals and remand with instructions that new counsel be appointed to represent appellant and that the court order preparation of a transcript of the trial at the expense of the United States. In Tate v. United States, No. 19177, the order of the D. C. Court of Appeals withdrawing appointment of counsel on appeal and withdrawing leave to appeal in forma pauperis also cannot stand. On this record we cannot say whether the D. C. Court of Appeals should have done what it did, or should have allowed the appeal, or should have followed the recommendation of appellant’s court-appointed attorney that it remand the case for a hearing on his allegations that witnesses had been available to substantiate his claim, of narcotics withdrawal, underlying his contention that his guilty pleas had not been voluntarily given. No transcript was made of the hearing held'on appellant’s motion to vacate sentence, and apparently no court reporter was present at that hearing. No statement of proceedings and evidence was made for purposes of the appeal. In the absence of such a statement, we cannot see how appellant could be effectively represented, or how the D. C. Court of Appeals could meaningfully consider his appeal, especially in view of the fact that the trial judge made no findings of fact or conclusions of law and wrote no opinion in support of his decision, after hearing, to deny the motion to vacate sentence. In view of the long lapse of time since the hearing we think it appropriate that the case be remanded to the Court of General Sessions for á new hearing on the motion to vacate sentence, with new counsel appointed to represent appellant. These cases are reversed and remanded to the D. C. Court of Appeals with the following instructions: In No. 19556, counsel is to be appointed to represent appellant on his appeal and a transcript of the trial is to be prepared at the expense of the United States. In No. 19177, the case is to be remanded to the Court of General Sessions with instructions to appoint counsel to represent appellant on his motion to vacate sentence. It is so ordered. . The conclusion to the report of Edelin’s appointed counsel reads as follows: There appears to be no basis to support appellant’s contention that he was ineffectively represented. On the contrary, it appears that the trial attorney was called upon to make decisions and did make such decisions vigorously and effectively as competent counsel may be expected to make. The Appellant himself stated that counsel did make Question: Did the court rule that the defendant's rights as an indigent were violated? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
sc_partywinning	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. UNITED STATES v. RIVERSIDE BAYVIEW HOMES, INC., et al. No. 84-701. Argued October 16, 1985 Decided December 4, 1985 White, J., delivered the opinion for a unanimous Court. Kathryn A. Oberly argued the cause for the United States. With her on the briefs were former Solicitor General Lee, Acting Solicitor General Fried, Assistant Attorney General Habicht, Deputy Solicitor General Claiborne, and Anne S. Almy. Edgar B. Washburn argued the cause for respondents. With him on the brief was Richard K. Gienapp. Briefs of amici curiae urging reversal were filed for the National Wildlife Federation et al. by Jerry Jackson, Frank J. Kelley, Attorney General of Michigan, and Louis Caruso, Solicitor General; and for the State of California et al. by John K. Van de Kamp, Attorney General of California, N. Gregory Taylor and Theodora Berger, Assistant Attorneys General, and Steven H. Kaufmann and David W. Hamilton, Deputy Attorneys General, Joseph I. Lieberman, Attorney General of Connecticut, Michael A. Lilly, Attorney General of Hawaii, Neil F. Hartigan, Attorney General of Illinois, and Jill Wine-Banks, Solicitor General, William J. Guste, Jr., Attorney General of Louisiana, Stephen H. Sachs, Attorney General of Maryland, Hubert H. Humphrey III, Attorney General of Minnesota, William L. Webster, Attorney General of Missouri, Mike Greely, Attorney General of Montana, Robert M. Spire, Attorney General of Nebraska, .Paul Bardacke, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, Arlene Violet, Attorney General of Rhode Island, W. J. Michael Cody, Attorney General of Tennessee, Jeffrey L. Amestoy, Attorney General of Vermont, Charlie Brown, Attorney General of West Virginia, and Bronson C. La Follette, Attorney General of Wisconsin. Briefs of amici curiae urging affirmance were filed for the American Petroleum Institute by Stark Ritchie and James K. Jackson; for the Citizens of Chineoteague for a Reasonable Wetlands Policy by Richard R. Nageotte; for the Mid-Atlantic Developers Association by Kenneth D. McPherson; and for the Pacific Legal Foundation et al. by Ronald A. Zumbrun and Sam Kazman. R. Sarah Compton and Robin S. Conrad filed a brief for the Chamber of Commerce of the United States as amicus curiae. Justice White delivered the opinion of the Court. This case presents the question whether the Clean Water Act (CWA), 33 U. S. C. §1251 et seq., together with certain regulations promulgated under its authority by the Army Corps of Engineers, authorizes the Corps to require landowners to obtain permits from the Corps before discharging fill material into wetlands adjacent to navigable bodies of water and their tributaries. HH The relevant provisions of the Clean Water Act originated in the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, and have remained essentially unchanged since that time. Under §§301 and 502 of the Act, 33 U. S. C. §§ 1311 and 1362, any discharge of dredged or fill materials into “navigable waters” — defined as the “waters of the United States” — is forbidden unless authorized by a permit issued by the Corps of Engineers pursuant to § 404, 33 U. S. C. § 1344. After initially construing the Act to cover only waters navigable in fact, in 1975 the Corps issued interim final regulations redefining “the waters of the United States” to include not only actually navigable waters but also tributaries of such waters, interstate waters and their tributaries, and nonnavigable intrastate waters whose use or misuse could affect interstate commerce. 40 Fed. Reg. 31320 (1975). More importantly for present purposes, the Corps construed the Act to cover all “freshwater wetlands” that were adjacent to other covered waters. A “freshwater wetland” was defined as an area that is “periodically inundated” and is “normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction.” 33 CFR § 209.120(d)(2)W (1976). In 1977, the Corps refined its definition of wetlands by eliminating the reference to periodic inundation and making other minor changes. The 1977 definition reads as follows: “The term ‘wetlands’ means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for fife in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.” 33 CFR §323.2(c) (1978). In 1982, the 1977 regulations were replaced by substantively identical regulations that remain in force today. See 33 CFR §323.2 (1985). Respondent Riverside Bayview Homes, Inc. (hereafter respondent), owns 80 acres of low-lying, marshy land near the shores of Lake St. Clair in Macomb County, Michigan. In 1976, respondent began to place fill materials on its property as part of its preparations for construction of a housing development. The Corps of Engineers, believing that the property was an “adjacent wetland” under the 1975 regulation defining “waters of the United States,” filed suit in the United States District Court for the Eastern District of Michigan, seeking to enjoin respondent from filling the property without the permission of the Corps. The District Court held that the portion of respondent’s property lying below 575.5 feet above sea level was a covered wetland and enjoined respondent from filling it without a permit. Civ. No. 77-70041 (Feb. 24, 1977) (App. to Pet. for Cert. 22a); Civ. No. 77-70041 (June 21, 1979) (App. to Pet. for Cert. 32a). Respondent appealed, and the Court of Appeals remanded for consideration of the effect of the intervening 1977 amendments to the regulation. 615 F. 2d 1363 (1980). On remand, the District Court again held the property to be a wetland subject to the Corps’ permit authority. Civ. No. 77-70041 (May 10, 1981) (App. to Pet. for Cert. 42a). Respondent again appealed, and the Sixth Circuit reversed. 729 F. 2d 391 (1984). The court construed the Corps’ regulation to exclude from the category of adjacent wetlands — and hence from that of “waters of the United States” — wetlands that were not subject to flooding by adjacent navigable waters at a frequency sufficient to support the growth of aquatic vegetation. The court adopted this construction of the regulation because, in its view, a broader definition of wetlands might result in the taking of private property without just compensation. The court also expressed its doubt that Congress, in granting the Corps jurisdiction to regulate the filling of “navigable waters,” intended to allow regulation of wetlands that were not the result of flooding by navigable waters. Under the court’s reading of the regulation, respondent’s property was not within the Corps’ jurisdiction, because its semiaquatic characteristics were not the result of frequent flooding by the nearby navigable waters. Respondent was therefore free to fill the property without obtaining a permit. We granted certiorari to consider the proper interpretation of the Corps’ regulation defining “waters of the United States” and the scope of the Corps’ jurisdiction under the Clean Water Act, both of which were called into question by the Sixth Circuit’s ruling. 469 U. S. 1206 (1985). We now reverse. M h — I The question whether the Corps of Engineers may demand that respondent obtain a permit before placing fill material on its property is primarily one of regulatory and statutory interpretation: we must determine whether respondent’s property is an “adjacent wetland” within the meaning of the applicable regulation, and, if so, whether the Corps’ jurisdiction over “navigable waters” gives it statutory authority to regulate discharges of fill material into such a wetland. In this connection, we first consider the Court of Appeals’ position that the Corps’ regulatory authority under the statute and its implementing regulations must be narrowly construed to avoid a taking without just compensation in violation of the Fifth Amendment. We have frequently suggested that governmental land-use regulation may under extreme circumstances amount to a “taking” of the affected property. See, e. g., Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U. S. 172 (1985); Penn Central Transportation Co. v. New York City, 438 U. S. 104 (1978). We have never precisely defined those circumstances, see id., at 123-128; but our general approach was summed up in Agins v. Tiburon, 447 U. S. 255, 260 (1980), where we stated that the application of land-use regulations to a particular piece of property is a taking only “if the ordinance does not substantially advance legitimate state interests ... or denies an owner economically viable use of his land.” Moreover, we have made it quite clear that the mere assertion of regulatory jurisdiction by a governmental body does not constitute a regulatory taking. See Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U. S. 264, 293-297 (1981). The reasons are obvious. A requirement that a person obtain a permit before engaging in a certain use of his or her property does not itself “take” the property in any sense: after all, the very existence of a permit system implies that permission may be granted, leaving the landowner free to use the property as desired. Moreover, even if the permit is denied, there may be other viable uses available to the owner. Only when a permit is denied and the effect of the denial is to prevent “economically viable” use of the land in question can it be said that a taking has occurred. If neither the imposition of the permit requirement itself nor the denial of a permit necessarily constitutes a taking, it follows that the Court of Appeals erred in concluding that a narrow reading of the Corps’ regulatory jurisdiction over wetlands was “necessary” to avoid “a serious taking problem.” 729 F. 2d, at 398. We have held that, in general, “[e]quitable relief is not available to enjoin an alleged taking of private property for a public use, duly authorized by law, when a suit for compensation can be brought against the sovereign subsequent to a taking.” Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1016 (1984) (footnote omitted). This maxim rests on the principle that so long as compensation is available for those whose property is in fact taken, the governmental action is not unconstitutional. Williamson County, swpra, at 194-195. For precisely the same reason, the possibility that the application of a regulatory program may in some instances result in the taking of individual pieces of property is no justification for the use of narrowing constructions to curtail the program if compensation will in any event be available in those cases where a taking has occurred. Under such circumstances, adoption of a narrowing construction does not constitute avoidance of a constitutional difficulty, cf. Ashwander v. TVA, 297 U. S. 288, 341-356 (1936) (Brandéis, J., concurring); it merely frustrates permissible applications of a statute or regulation. Because the Tucker Act, 28 U. S. C. §1491, which presumptively supplies a means of obtaining compensation for any taking that may occur through the operation of a federal statute, see Ruckelshaus v. Monsanto Co., supra, at 1017, is available to provide compensation for takings that may result from the Corps’ exercise of jurisdiction over wetlands, the Court of Appeals’ fears that application of the Corps’ permit program might result in a taking did not justify the court in adopting a more limited view of the Corps’ authority than the terms of the relevant regulation might otherwise support. Ill Purged of its spurious constitutional overtones, the question whether the regulation at issue requires respondent to obtain a permit before filling its property is an easy one. The regulation extends the Corps’ authority under § 404 to all wetlands adjacent to navigable or interstate waters and their tributaries. Wetlands, in turn, are defined as lands that are “inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” 33 CFR § 323.2(c) (1985) (emphasis added). The plain language of the regulation refutes the Court of Appeals’ conclusion that inundation or “frequent flooding” by the adjacent body of water is a sine qua non of a wetland under the regulation. Indeed, the regulation could hardly state more clearly that saturation by either surface or ground water is sufficient to bring an area within the category of wetlands, provided that the saturation is sufficient to and does support wetland vegetation. The history of the regulation underscores the absence of any requirement of inundation. The interim final regulation that the current regulation replaced explicitly included a requirement of “periodi[c] inundation.” 33 CFR §209.120-(d)(2)(7t) (1976). In deleting the reference to “periodic inundation” from the regulation as finally promulgated, the Corps explained that it was repudiating the interpretation of that language “as requiring inundation over a record period of years.” 42 Fed. Reg. 37128 (1977). In fashioning its own requirement of “frequent flooding” the Court of Appeals improperly reintroduced into the regulation precisely what the Corps had excised. Without the nonexistent requirement of frequent flooding, the regulatory definition of adjacent wetlands covers the property here. The District Court found that respondent’s property was “characterized by the presence of vegetation that requires saturated soil conditions for growth and reproduction,” App. to Pet. for Cert. 24a, and that the source of the saturated soil conditions on the property was ground water. There is no plausible suggestion that these findings are clearly erroneous, and they plainly bring the property within the category of wetlands as defined by the current regulation. In addition, the court found that the wetland located on respondent’s property was adjacent to a body of navigable water, since the area characterized by saturated soil conditions and wetland vegetation extended beyond the boundary of respondent’s property to Black Creek, a navigable waterway. Again, the court’s finding is not clearly erroneous. Together, these findings establish that respondent’s property is a wetland adjacent to a navigable waterway. Hence, it is part of the “waters of the United States” as defined by 33 CFR § 323.2 (1985), and if the regulation itself is valid as a construction of the term “waters of the United States” as used in the Clean Water Act, a question which we now address, the property falls within the scope of the Corps’ jurisdiction over “navigable waters” under § 404 of the Act. > J — I A An agency’s construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress. Chemical Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 125 (1985); Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984). Accordingly, our review is limited to the question whether it is reasonable, in light of the language, policies, and legislative history of the Act for the Corps to exercise jurisdiction over wetlands adjacent to but not regularly flooded by rivers, streams, and other hydrographic features more conventionally identifiable as “waters.” On a purely linguistic level, it may appear unreasonable to classify “lands,” wet or otherwise, as “waters.” Such a simplistic response, however, does justice neither to the problem faced by the Corps in defining the scope of its authority under § 404(a) nor to the realities of the problem of water pollution that the Clean Water Act was intended to combat. In determining the limits of its power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may-lie shallows, marshes, mudflats, swamps, bogs — in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of “waters” is far from obvious. Faced with such a problem of defining the bounds of its regulatory authority, an agency may appropriately look to the legislative history and underlying policies of its statutory grants of authority. Neither of these sources provides unambiguous guidance for the Corps in this case, but together they do support the reasonableness of the Corps’ approach of defining adjacent wetlands as “waters” within the meaning of § 404(a). Section 404 originated as part of the Federal Water Pollution Control Act Amendments of 1972, which constituted a comprehensive legislative attempt “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” CWA § 101, 33 U. S. C. § 1251. This objective incorporated a broad, systemic view of the goal of maintaining and improving water quality: as the House Report on the legislation put it, “the word ‘integrity’. . . refers to a condition in which the natural structure and function of ecosystems [are] maintained.” H. R. Rep. No. 92-911, p. 76 (1972). Protection of aquatic ecosystems, Congress recognized, demanded broad federal authority to control pollution, for “[w]ater moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source.” S. Rep. No. 92-414, p. 77 (1972). In keeping with these views, Congress chose to define the waters covered by the Act broadly. Although the Act prohibits discharges into “navigable waters,” see CWA §§ 301(a), 404(a), 502(12), 33 U. S. C. §§ 1311(a), 1344(a), 1362(12), the Act’s definition of “navigable waters” as “the waters of the United States” makes it clear that the term “navigable” as used in the Act is of limited import. In adopting this definition of “navigable waters,” Congress evidently intended to repudiate limits that had been placed on federal regulation by earlier water pollution control statutes and to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed “navigable” under the classical understanding of that term. See S. Conf. Rep. No. 92-1236, p. 144 (1972); 118 Cong. Rec. 33756-33757 (1972) (statement of Rep. Dingell). Of course, it is one thing to recognize that Congress intended to allow regulation of waters that might not satisfy traditional tests of navigability; it is another to assert that Congress intended to abandon traditional notions of “waters” and include in that term “wetlands” as well. Nonetheless, the evident breadth of congressional concern for protection of water quality and aquatic ecosystems suggests that it is reasonable for the Corps to interpret the term “waters” to encompass wetlands adjacent to waters as more conventionally defined. Following the lead of the Environmental Protection Agency, see 38 Fed. Reg. 10834 (1973), the Corps has determined that wetlands adjacent to navigable waters do as a general matter play a key role in protecting and enhancing water quality: “The regulation of activities that cause water pollution cannot rely on . . . artificial lines . . . but must focus on all waters that together form the entire aquatic system. Water moves in hydrologic cycles, and the pollution of this part of the aquatic system, regardless of whether it is above or below an ordinary high water mark, or mean high tide line, will affect the water quality of the other waters within that aquatic system. “For this reason, the landward limit of Federal jurisdiction under Section 404 must include any adjacent wetlands that form the border of or are in reasonable proximity to other waters of the United States, as these wetlands are part of this aquatic system.” 42 Fed. Reg. 37128 (1977). We cannot say that the Corps’ conclusion that adjacent wetlands are inseparably bound up with the “waters” of the United States — based as it is on the Corps’ and EPA’s technical expertise — is unreasonable. In view of the breadth of federal regulatory authority contemplated by the Act itself and the inherent difficulties of defining precise bounds to regulable waters, the Corps’ ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act. This holds true even for wetlands that are not the result of flooding or permeation by water having its source in adjacent bodies of open water. The Corps has concluded that wetlands may affect the water quality of adjacent lakes, rivers, and streams even when the waters of those bodies do not actually inundate the wetlands. For example, wetlands that are not flooded by adjacent waters may still tend to drain into those waters. In such circumstances, the Corps has concluded that wetlands may serve to filter and purify water draining into adjacent bodies of water, see 33 CFR § 320.4(b)(2)(vii) (1985), and to slow the flow of surface runoff into lakes, rivers, and streams and thus prevent flooding and erosion, see §§320.4(b)(2)(iv) and (v). In addition, adjacent wetlands may “serve significant natural biological functions, including food chain production, general habitat, and nesting, spawning, rearing and resting sites for aquatic . . . species.” § 320-4(b)(2)(i). In short, the Corps has concluded that wetlands adjacent to lakes, rivers, streams, and other bodies of water may function as integral parts of the aquatic environment even when the moisture creating the wetlands does not find its source in the adjacent bodies of water. Again, we cannot say that the Corps’ judgment on these matters is unreasonable, and we therefore conclude that a definition of “waters of the United States” encompassing all wetlands adjacent to other bodies of water over which the Corps has jurisdiction is a permissible interpretation of the Act. Because respondent’s property is part of a wetland that actually abuts on a navigable waterway, respondent was required to have a permit in this case. B Following promulgation of the Corps’ interim final regulations in 1975, the Corps’ assertion of authority under §404 over waters not actually navigable engendered some congressional opposition. The controversy came to a head during Congress’ consideration of the Clean Water Act of 1977, a major piece of legislation aimed at achieving “interim improvements within the existing framework” of the Clean Water Act. H. R. Rep. No. 95-139, pp. 1-2 (1977). In the end, however, as we shall explain, Congress acquiesced in the administrative construction. Critics of the Corps’ permit program attempted to insert limitations on the Corps’ § 404 jurisdiction into the 1977 legislation: the House bill as reported out of committee proposed a redefinition of “navigable waters” that would have limited the Corps’ authority under § 404 to waters navigable in fact and their adjacent wetlands (defined as wetlands periodically inundated by contiguous navigable waters). H. R. 3199, 95th Cong., 1st Sess., § 16 (1977). The bill reported by the Senate Committee on Environment and Public Works, by contrast, contained no redefinition of the scope of the “navigable waters” covered by § 404, and dealt with the perceived problem of overregulation by the Corps by exempting certain activities (primarily agricultural) from the permit requirement and by providing for assumption of some of the Corps’ regulatory duties by federally approved state programs. S. 1952, 95th Cong., 1st Sess., §49(b) (1977). On the floor of the Senate, however, an amendment was proposed limiting the scope of “navigable waters” along the lines set forth in the House bill. 123 Cong. Rec. 26710-26711 (1977). In both Chambers, debate on the proposals to narrow the definition of navigable waters centered largely on the issue of wetlands preservation. See id., at 10426-10432 (House debate); id., at 26710-26729 (Senate debate). Proponents of a more limited § 404 jurisdiction contended that the Corps’ assertion of jurisdiction over wetlands and other nonnavigable “waters” had far exceeded what Congress had intended in enacting § 404. Opponents of the proposed changes argued that a narrower definition of “navigable waters” for purposes of § 404 would exclude vast stretches of crucial wetlands from the Corps’ jurisdiction, with detrimental effects on wetlands ecosystems, water quality, and the aquatic environment generally. The debate, particularly in the Senate, was lengthy. In the House, the debate ended with the adoption of a narrowed definition of “waters”; but in the Senate the limiting amendment was defeated and the old definition retained. The Conference Committee adopted the Senate’s approach: efforts to narrow the definition of “waters” were abandoned; the legislation as ultimately passed, in the words of Senator Baker, “retain[ed] the comprehensive jurisdiction over the Nation’s waters exercised in the 1972 Federal Water Pollution Control Act.” The significance of Congress’ treatment of the Corps’ § 404 jurisdiction in its consideration of the Clean Water Act of 1977 is twofold. First, the scope of the Corps’ asserted jurisdiction over wetlands was specifically brought to Congress’ attention, and Congress rejected measures designed to curb the Corps’ jurisdiction in large part because of its concern that protection of wetlands would be unduly hampered by a narrowed definition of “navigable waters.” Although we are chary of attributing significance to Congress’ failure to act, a refusal by Congress to overrule an agency’s construction of legislation is at least some evidence of the reasonableness of that construction, particularly where the administrative construction has been brought to Congress’ attention through legislation specifically designed to supplant it. See Bob Jones University v. United States, 461 U. S. 574, 599-601 (1983); United States v. Rutherford, 442 U. S. 544, 554, and n. 10 (1979). Second, it is notable that even those who would have restricted the reach of the Corps’ jurisdiction would have done so not by removing wetlands altogether from the definition of “waters of the United States,” but only by restricting the scope of “navigable waters” under § 404 to waters navigable in fact and their adjacent wetlands. In amending the definition of “navigable waters” for purposes of §404 only, the backers of the House bill would have left intact the existing definition of “navigable waters” for purposes of § 301 of the Act, which generally prohibits discharges of pollutants into navigable waters. As the House Report explained: “‘Navigable waters’ as used in section 301 includes all of the waters of the United States including their adjacent wetlands.” H. R. Rep. No. 95-139, p. 24 (1977). Thus, even those who thought that the Corps’ existing authority under §404 was too broad recognized (1) that the definition of “navigable waters” then in force for both § 301 and § 404 was reasonably interpreted to include adjacent wetlands, (2) that the water quality concerns of the Clean Water Act demanded regulation of at least some discharges into wetlands, and (3) that whatever jurisdiction the Corps would retain over discharges of fill material after passage of the 1977 legislation should extend to discharges into wetlands adjacent to any waters over which the Corps retained jurisdiction. These views provide additional support for a conclusion that Congress in 1977 acquiesced in the Corps’ definition of waters as including adjacent wetlands. Two features actually included in the legislation that Congress enacted in 1977 also support the view that the Act authorizes the Corps to regulate discharges into wetlands. First, in amending §404 to allow federally approved state permit programs to supplant regulation by the Corps of certain discharges of fill material, Congress provided that the States would not be permitted to supersede the Corps’ jurisdiction to regulate discharges into actually navigable waters and waters subject to the ebb and flow of the tide, “including wetlands adjacent thereto.” CWA § 404(g)(1), 33 U. S. C. § 1344(g)(1). Here, then, Congress expressly stated that the term “waters” included adjacent wetlands. Second, the 1977 Act authorized an appropriation of $6 million for completion by the Department of Interior of a “National Wetlands Inventory” to assist the States “in the development and operation of programs under this Act.” CWA §208(i)(2), 33 U. S. C. §1288(i)(2). The enactment of this provision reflects congressional recognition that wetlands are a concern of the Clean Water Act and supports the conclusion that in defining the waters covered by the Act to include wetlands, the Corps is “implementing congressional policy rather than embarking on a frolic of its own.” Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 375 (1969). C We are thus persuaded that the language, policies, and history of the Clean Water Act compel a finding that the Corps has acted reasonably in interpreting the Act to require permits for the discharge of fill material into wetlands adjacent to the “waters of the United States.” The regulation in which the Corps has embodied this interpretation by its terms includes the wetlands on respondent’s property within the class of waters that may not be filled without a permit; and, as we have seen, there is no reason to interpret the regulation more narrowly than its terms would indicate. Accordingly, the judgment of the Court of Appeals is Reversed. With respect to certain waters, the Corps’ authority may be transferred to States that have devised federally approved permit programs. CWA § 404(g), as added, 91 Stat. 1600, 33 U. S. C. § 1344(g). Absent such an approved program, the Corps retains jurisdiction under § 404 over all “waters of the United States.” The regulations also cover certain wetlands not necessarily adjacent to other waters. See 33 CFR §§ 323.2(a)(2) and (3) (1985). These provisions are not now before us. In denying the Government’s petition for rehearing, the panel reiterated somewhat more strongly its belief that the Corps’ construction of its regulation was “overbroad and inconsistent with the language of the Act.” 729 F. 2d, at 401. Even were the Court of Appeals correct in concluding that a narrowing construction of the regulation is necessary to avoid takings of property through the application of the permit requirement, the construction adopted — which requires a showing of frequent flooding before property may be classified as a wetland — is hardly tailored to the supposed difficulty. Whether the denial of a permit would constitute a taking in any given case would depend upon the effect of the denial on the owner’s ability to put the property to productive use. Whether the property was frequently flooded would have no particular bearing on this question, for overbroad regulation of even completely submerged property may constitute a taking. See, e. g., Kaiser Aetna v. United States, 444 U. S. 164 (1979). Indeed, it may be more likely that denying a permit to fill frequently flooded property will prevent economically viable use of the property than denying a permit to fill property that is wet but not flooded. Of course, by excluding a large chunk of the Nation’s wetlands from the regulatory definition, the Court of Appeals’ construction might tend to limit the gross number of takings that the permit program would otherwise entail; but the construction adopted still bears an insufficiently precise relationship with the problem it seeks to avoid. United States v. Security Industrial Bank, 459 U. S. 70 (1982), in which we adopted a narrowing construction of a statute to avoid a taking difficulty, is not to the contrary. In that case, the problem was that there was a substantial argument that retroactive application of a particular provision of the Bankruptcy Code would in every ease constitute a taking; the solution was to avoid the difficulty by construing the statute to apply only prospectively. Such an approach is sensible where it appears that there is an identifiable class of cases in which application of a statute will necessarily constitute a taking. As we have observed, this is not such a case: there is no identifiable set of instances in which mere application of the permit requirement will necessarily or even probably constitute a taking. The approach of adopting a limiting construction is thus unwarranted. Because the Corps has now denied respondent a permit to fill its property, respondent may well have a ripe claim that a taking has occurred. On the record before us, however, we have no basis for evaluating this claim, because no evidence has been introduced that bears on the question of the extent to which denial of a permit to fill this property will prevent economically viable uses of the property or frustrate reasonable investment-backed expectations. In any event, this lawsuit is not the proper forum for resolving such a dispute: if the Corps has indeed effectively taken respondent’s property, respondent’s proper course is not to resist the Corps’ suit for enforcement by denying that the regulation covers the property, but to initiate a suit for compensation in the Claims Court. In so stating, of course, we do not rule that respondent will be entitled to compensation for any temporary denial of use of its property should the Corps ultimately relent and allow it to be filled. We have not yet resolved the question whether compensation is a constitutionally mandated remedy for “temporary regulatory takings,” see Williamson County Planning Comm’n v. Hamilton Bank, 473 U. S. 172 (1985), and this case provides no occasion for deciding the issue. The Court of Appeals seems also to have rested its frequent-flooding requirement on the language in the regulation stating that wetlands encompass those areas that “under normal circumstances do support” aquatic or semiaquatic vegetation. In the preamble to the final regulation, the Corps explained that this language was intended in part to exclude areas characterized by the “abnormal presence of aquatic vegetation in a non-aquatic area.” 42 Fed. Reg. 37128 (1977). Apparently, the Court of Appeals concluded that the growth of wetlands vegetation in soils saturated by ground water rather than flooded by waters emanating from an adjacent navigable water or its tributaries was “abnormal” within the meaning of the preamble. This interpretation is untenable in light of the explicit statements in both the regulation and its preamble that areas saturated by ground water can fall within the category of wetlands. It would be nonsensical for the Corps to define wetlands to include such areas and then in the same sentence exclude them on the ground that the presence of wetland vegetation in such areas was abnormal. Evidently, the Corps had something else in mind when it referred to “abnormal” growth of wetlands vegetation — namely, the aberrational presence of such vegetation in dry, upland areas. We are not called upon to address the question of the authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water, see 33 Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case? A. Yes B. No Answer:
songer_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. Carol Anne KLEEMANN, Individually and as the Executrix and Personal Representative of the Estate of Henry M. Kleemann, as the Guardian of the minors Katherine M. Kleemann and Michael Andrew Kleemann; Susan E. Seiden; S.S. Seiden, Jr., Plaintiffs-Appellants, v. McDonnell DOUGLAS CORPORATION, Defendant-Appellee. Carol Anne KLEEMANN, Individually and as the Executrix and Personal Representative of the Estate of Henry M. Kleemann, as the Guardian of the minors Katherine M. Kleemann and Michael Andrew Kleemann; Susan E. Seiden; S.S. Seiden, Jr., Plaintiffs-Appellees, v. McDonnell DOUGLAS CORPORATION, Defendant-Appellant. Nos. 89-2032, 89-2047. United States Court of Appeals, Fourth Circuit. Argued Oct. 4, 1989. Decided Dec. 6, 1989. Rehearing and Rehearing In Banc Denied Dec. 29,1989. Robert Sibley Cooper, Jr., for plaintiffs-appellants. Thomas C. Walsh (Douglas E. Winter, Robert W. Shely, Bryan, Cave, McPheeters & McRoberts; George L. Russell, Jr., Robert J. Mathias, Piper & Marbury, on brief), for defendant-appellee. Before WILKINSON, Circuit Judge, HAYNSWORTH, Senior Circuit Judge, and WILLIAMS, United States District Judge for the Eastern District of Virginia, sitting by designation. Judge Haynsworth participated in the consideration of this case but died prior to the time the decision was filed. The decision is filed by a quorum of the panel. 28 U.S.C. § 46(d). WILKINSON, Circuit Judge: To avoid liability for accidents involving military equipment, military contractors are required to show, inter alia, that their products conformed to reasonably precise specifications approved by the United States. Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). Here we must decide what conformity means. Plaintiffs allege that the landing gear of an F/A-18 aircraft, in which plaintiffs’ decedent was killed, did not conform to general performance requirements contained in defendant’s original contract with the Navy. We cannot, however, equate as a matter of law a failure of performance with an absence of conformity. Nor do the precatory goals developed for a product at the start of the procurement process establish the “reasonably precise specifications” to which the product must conform. Because the landing gear plainly did not deviate from the ultimate design required by the Navy in the whole of its negotiations with the contractor, we uphold the grant of summary judgment for defendant and affirm the applicability of the government contractor defense to this case. I. On December 3, 1985, Captain Henry M. Kleemann, a U.S. Navy pilot, was killed when his F/A-18 aircraft went out of control during landing, left the runway, and overturned. Defendant McDonnell Douglas Corporation (MDC) had designed the F/A-18 for the Navy. The Navy concluded that Captain Kleemann’s accident was caused, in part, by failure of the planing link assembly on the main landing gear. The planing link assembly was designed to assist folding and unfolding the wheel assemblies into and from the wheel well and to lock the wheels appropriately for takeoff and landing. It allows the wheels to “deplane,” or move out of line with the direction of the aircraft, during retraction and extension of the landing gear. Kleemann’s surviving spouse and children brought a diversity action in the district court of Maryland claiming that the plane was negligently and defectively designed by McDonnell Douglas. Plaintiffs contended that the landing gear did not conform to reasonably precise specifications contained in the Navy’s original contract with MDC. Specifically, they alleged that the landing gear failed to meet the requirement that it withstand normal landing loads without bending, unlocking or causing uncontrolled motion of the aircraft (citing SD-24K-Volume I, and Military Specification MIL-A-8863A). Defendant, on the other hand, argued that the specifications proffered by plaintiff were not the “reasonably precise specifications” required by Boyle, because such general requirements do not tell the contractor what to build and how to design the product. MDC contended that the accident aircraft incorporated all Navy-approved landing gear designs and modifications through the date of delivery. As such, the landing gear conformed to all precise, quantitative specifications which evolved out of the continuous exchange between MDC and the Navy. The district court held that the operative question was whether the product conformed to the “ultimate design specifications,” not to qualitative, precatory specifications used in the procurement process. The court concluded that plaintiffs had not presented evidence that the landing gear on the accident aircraft deviated from the ultimate design specifications approved by the Navy. It granted defendant’s motion for summary judgment, and this appeal followed. II. We review at the outset the elements of the government contractor defense. Under Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 2518, 101 L.Ed.2d 442 (1988), a contractor is not liable for design defects in military equipment when: (1) the United States approved “reasonably precise specifications;” (2) the equipment conformed to those specifications; and (3) the contractor warned the government about any dangers in the use of the equipment that were known to the contractor but not to the government. Plaintiffs’ claim is precisely the sort for which the defense was intended. This is true both because of the nature of defendant’s product and the characteristics of the process by which it was designed. At issue here is a discretionary decision involving military hardware in which the government was a substantial participant. See Boyle, 108 S.Ct. at 2517. The F/A-18 aircraft was part of a broad defense initiative involving the Navy’s deployment of a new “CV” class of aircraft carrier. The “CY” carrier had multi-mission capabilities as compared to older, more specialized counterparts. The F/A-18 was designed to provide support for the new carrier, and to replace with a single aircraft the Navy’s clear weather fighters and all-weather fighters. It is hard to imagine a matter more uniquely in the province of the military — and one less appropriate to second-guessing by civilian courts — than the development of a high technology, multi-mission aircraft. See id. at 2517-18. Similarly, the design details of the F/A-18 illustrate the balancing of military and technological factors, including “the trade-off between greater safety and greater combat effectiveness.” Id. at 2517. For example, the main landing gear at issue here had to absorb extremely high amounts of energy generated upon landing on a carrier. On the other hand, stowage of the gears could not interfere with external weapon storage. These competing concerns required a unique “levered gear” design to provide adequate distance between the extended right and left main landing gears and thereby ensure stability of the aircraft upon landing. The design, developed by MDC and approved by the Navy, employed a planing link assembly to deplane the wheels during retraction and extension of the landing gear. The design and production of the F/A-18 also illustrate the exchange of views in the procurement process between military officials and the private contractor. See Harduvel v. General Dynamics Corp., 878 F.2d 1311, 1320 (11th Cir.1989); Tozer v. LTV Corp., 792 F.2d 403, 407 (4th Cir.1986). Beginning with bids for what would become the F/A-18, teams of Navy engineers met with each contractor for extended discussions of their submissions. When the Navy selected MDC to develop and build the F/A-18, the final design contracts for the aircraft incorporated MDC’s original proposal as modified during extensive negotiations between the parties. During design development, MDC was required to submit detailed engineering drawings to the Navy for approval. All changes to the design or specifications of the aircraft required Navy approval, including proposals to address problems with the allegedly defective landing gear. The government also maintained an extensive staff of aircraft engineers on site at MDC’s facilities in St. Louis. It is this salient fact of governmental participation in the various stages of the aircraft’s development that establishes the military contractor defense. Indeed, active governmental oversight is relevant to all three elements of defendant’s burden. Where, as here, the Navy was intimately involved at various stages of the design and development process, the required government approval of the alleged design defect is more likely to be made out. See Ramey v. Martin-Baker Aircraft Co., 874 F.2d 946, 950-51 (4th Cir.1989); Dowd v. Textron Inc., 792 F.2d 409, 412 (4th Cir.1986). Similarly, the Navy’s extensive participation, including reservation of the power to approve or disapprove design modifications, enhances the likelihood of final product conformity. Government involvement in the process also makes it more likely, though not certain, that a sharing of information will occur with respect to potential dangers in the use of the equipment. As a final matter, extensive governmental participation provides tangible evidence of the strong federal interest which justifies the creation of a federal common law defense for government contractors in the first place. III. Plaintiffs argue nonetheless that the government contractor defense does not apply because the main landing gear of decedent’s F/A-18 failed to conform to the government’s “reasonably precise specifications” as required by Boyle. There is no evidence, however, that the landing gear failed to conform to the precise quantitative specifications embodied in the totality of documents exchanged between the parties. A. Plaintiffs contest the district court’s conclusion that ultimate design specifications are most relevant to the government contractor defense. They contend that the reasonably precise specifications for the main landing gear of the F/A-18 are contained in “Detail Specification for Model F/A-18 Aircraft” (SD-565-1-4), certain incorporated provisions from the Navy aircraft manual (SD24-K Volume I-General Specification For Design and Construction of Aircraft Weapon Systems), three relevant incorporated Military Specifications (MIL-A-8860, 8863A and 8866), and Procurement Specification 74-410051. Plaintiffs allege that these documents require that the landing gear be strong enough to withstand normal landing loads without bending, that it remain locked after extension until unlocked from the cockpit, and that any failure of the landing gear not result in uncontrollable movement of the airplane. We do not dispute that the documents referenced by plaintiffs embody part of the universe of specifications to which the landing gear must conform. However, plaintiffs fail to appreciate that military hardware does not suddenly spring into being from initial design and procurement specifications, but evolves through drawings, blueprints and mockups agreed upon by the parties. See Harduvel, 878 F.2d at 1320-21; Ramey, 874 F.2d at 948 n. 4-5. The ultimate design of the product is determined not only by the original procurement and contract specifications, but also by specific, quantitative engineering analysis developed during the actual production process. Indeed, many of the documents cited by plaintiffs reflect no more than the initial, theoretical phase of the development of the F/A-18 landing gear. The general qualitative specifications contained therein were incorporated by reference into the full scale development contracts issued to MDC for the development of the F/A-18. As part of its duties under the contract, MDC used the Navy specifications to develop required structural load parameters which served as a basis for the detailed design of the aircraft. These design loads comprised five volumes of material which were submitted to the Navy. The contract also required MDC to submit detailed design drawings to the Navy for approval as the general specifications became embodied in the actual landing gear. The Navy reserved the right to reject drawings and to require revisions and modifications. These working drawings, and not simply the general qualitative specifications from the procurement stage, comprise “the reasonably precise specifications” contemplated by Boyle. Where the military procurement process involves this kind of continuous exchange between the contractor and the government, the process itself becomes persuasive evidence of product conformity to precise specifications. Here the government maintained discretion over the design of the product throughout; it did not simply turn over such discretion, and the military decisions inherent therein, to the private contractor. In contrast to the Fifth Circuit’s conclusion in Trevino v. General Dynamics Corp., 865 F.2d 1474, 1487 n. 13-14 (5th Cir.1989), that there had been inadequate review of the design drawings to make out the defense, the Navy here performed extensive review of detailed design drawings submitted by MDC. The Contract Data Requirements List, which laid out required document submissions under the contract, specifically required that Landing Gear Design Reports and Landing Gear Specifications be submitted for Navy review and approval. Moreover, Navy engineers and other personnel participated in the F/A-18 design process through periodic design review meetings including Detail Design Review meetings, Technical Coordination meetings, F/A-18 Specialty Design Reviews, Program Management Reviews, Flight Test Readiness Reviews, and Production Readiness Reviews. Such meetings, of course, bolster the underpinning of the defense, namely that the contractor should not be held liable at law for performing the government’s bidding. See Boyle, 108 S.Ct. at 2518. It is also undisputed that the Navy exercised complete discretion over suggested design changes in connection with the landing gear design. Between 1979, when F/A-18 test flights began, and 1985, the Navy expressly approved or required a substantial number of landing gear design modifications and rejected others, as evidenced by the Safety Action Record maintained by MDC. For example, in 1983 the Navy declined to implement an MDC proposal for an improved planing link that incorporated a coiled spring design. MDC believed this design would offer greater resistance to the buckling of the planing link. On the other hand, the Navy accepted a proposed modification in 1984 which incorporated a hydraulic restrictor designed to protect the planing link from bending due to excessive torque forces. (Several years later, the Navy did incorporate a coiled spring design similar to the type MDC had proposed in 1983.) Plaintiffs’ reference to the general failure of F/A-18 landing gear to withstand normal landing loads without bending or unlocking fails to take into account this significant history. Requirements such as an ability to withstand normal loads and prohibitions against operational failures represent little more than the hopes of participants that the project on which they are about to embark will turn out well. General qualitative specifications must be distinguished from the “detailed, precise and typically quantitative specifications for manufacture of a particular military product." Shaw v. Grumman Aerospace Corp., 778 F.2d 736, 745 (11th Cir.1985). These two broad types of specifications often overlap and may even be at cross purposes-for example, design specifications for a complex back-up system may conflict with the qualitative requirements of ease of maintenance, combat effectiveness or cost containment. Id. at 745. Only the detailed, quantitative specifications-and not those calling for such vagaries as a failsafe, simple or inexpensive product-are relevant to the government contractor defense. In essence, plaintiffs' argument is that the ultimate design of the landing gear failed to produce an aircraft that performed perfectly. Plaintiffs' view would render the government contractor defense illusory. Nonconformance to precise specifications must mean more than that the design does not work in compliance with some "general admonition against an unwanted condition." Harduve4 878 F.2d at 1319 n. 3. A product involved in a design-induced accident would, as a definitional matter, always be deemed not to comply with such generalities since no performance specifications approved by the government would purposely allow a design that would result in an accident. In fact, plaintiffs describe exactly the situation in which the government contractor defense does apply: when the required ultimate military design fails to produce a "reasonably safe" product under state law. Contrary to plaintiffs' assertions, a product conforms to reasonably precise specifications if it satisfies "an intended configuration" even if it "may produce unintended and unwanted results." Id. at 1317. The evidence demonstrates that the alleged defect inhered in the unique design of the landing gear itself-as required by the Navy-and did not result from any deviation from the required military specifications. B. Plaintiffs further allege that the Navy had itself concluded that the landing gear did not conform to specifications. They rely upon a Notice of Defect issued by the Navy to MDC in November 1983, in connection with the recurring problem of bending of the planing link assembly on the main landing gear of the F/A-18. Plaintiffs’ argument fails for several reasons. First, the very purpose of the government contractor defense is to encourage active communication between suppliers of military equipment and military authorities in the development and testing of equipment. McKay v. Rockwell Int’l Corp., 704 F.2d 444, 450 (9th Cir.1983). This cooperative effort must include identification by the parties of actual and potential problems during design and production. If a mere notification of defect precluded application of the government contractor defense, the climate of candid exchange between the government and the contractor would be compromised. Second, it is undisputed that MDC addressed the problem of the bent planing links in response to the Notice of Defect. In early 1984, MDC and the Navy mutually concluded that the hydraulic system of the aircraft allowed the landing gear to rotate into stowage before the wheel stopped spinning, exposing the planing link to torque forces in excess of design specifications. In response, MDC designed a “hydraulic restrictor” to slow the rotation of the gear after takeoff and before stowage. The Navy approved the design of the hydraulic restrictor and directed that it be incorporated into all new production models, including the aircraft that Kleemann was flying at the time of the accident. On May 24, 1985, the Navy advised MDC that the Notice of Defect was formally closed. IV. In sum, we find no evidence that the landing gear deviated from the configuration which was proposed by the Navy and reduced to precise specification by the continuous back and forth exchange between the Navy and MDC. The judgment of the district court is therefore AFFIRMED. . The district court also denied a motion to dismiss filed by defendant on the grounds that the action was barred by California’s one-year statute of limitations for wrongful death claims. The court found that Maryland's three-year statute of limitations applied, and we decline to disturb its decision. . Plaintiffs in their opposition to summary judgment below appear to dispute only whether the landing gear conformed to reasonably precise specifications. However, we are persuaded by our review of the evidence that the Navy also approved those specifications. Further, there is no evidence that MDC failed to warn the Navy of dangers in the design of the landing gear that were unknown to the government. 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_respond1_1_2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". Catherine Marshall PRICE and George P. Marshall, Jr., Children of the Adult Ward, George P. Marshall, Appellants, v. Edward Bennett WILLIAMS, Milton W. King and John J. Carmody, Appellees. No. 20655. United States Court of Appeals District of Columbia Circuit. Argued May 16, 1967. Decided Jan. 3, 1968. Petition for Rehearing En Banc Denied Feb. 21, 1968. Mr. Philip A. Ryan, Washington, D. C., for appellants. Mr. Francis X. McLaughlin, Washington, D. C., was on the brief for appellants. Mr. John F. Creed, Washington, D. C., also entered an appearance for appellants. Messrs. Bernard I. Nordlinger, and Paul R. Connolly, Washington, D. C., with whom Messrs. Robert B. Frank and David N. Webster, Washington, D. C., were on the brief, for appellees Williams and King. Mr. John J. Carmody, Washington, D. C., appellee pro se. Before Edgerton, Senior Circuit Judge, and Danaher and McGowan, Circuit Judges. EDGERTON, Senior Circuit Judge: This appeal is from a District Court order of October 13, 1966 in a conser-vatorship proceeding. George Preston Marshall is the majority shareholder of Pro-Football, Inc. (the Washington Redskins). Milton W. King and Edward Bennett Williams, two of the four minority shareholders, are old friends and business „ associates of Marshall, as was another minority shareholder, the late C. Leo DeOrsey. These three were appointed temporary conservators of Marshall’s estate under D.C.Code § 21-1505 (1967 ed.). He consented to the con-servatorship because physical disabilities prevented him from handling his complex affairs. He asked that the three be appointed. They were uniquely qualified to run the Redskins. The court also appointed John J. Carmody guardian ad litem to represent Marshall’s interests. Appellants are Marshall’s adult children. On August 13, 1964, with appellants’ consent, the temporary conservators were appointed permanent conservators of the ward’s property and person under D.C.Code § 12-1501 (1967 ed.). The two surviving conservators are ap-pellees here. When the court made this appointment, it considered a lengthy report of the guardian ad litem, who is also an appellee. Appellants claim the court erred (1) in permitting the services of the guardian ad litem to continue after permanent conservators were appointed; (2) in denying appellants’ motion to remove ap-pellee conservators for cause; and (3) in granting appellees’ motion that appellants be ordered to transfer to appel-lees an alleged testamentary document entrusted to appellants by the ward after the conservators had been appointed. I Appellants contend that a guardian ad litem may act only when no one else can sue or be sued on behalf of the ward. But D.C.Code § 21-1502, which in paragraph (a) provides for appointment of a conservator, provides in paragraph (b) that “the court may appoint a disinterested person to act as guardian ad litem in a proceeding under this section” and that the conservator “shall have the charge and management of the property * * * subject to the direction of the court.” A “proceeding under this section” does not end when a conservator is appointed, and we see no reason why a guardian ad litem may not continue to function. See Mazza v. Pechacek, 98 U.S.App.D.C. 175, 233 F.2d 666 (1956). II Appellants contend that the court violated their constitutional rights and abused its discretion because it did not allow them a full hearing, including opportunity for discovery, on their charges of conflict of interest and wrongdoing. Since a conservatorship is “subject to the direction of the court” which created it, that court has broad discretion and we should not reverse its decision unless a clear abuse of discretion is shown. The appointing court should be willing to receive complaints and reports from any source concerning alleged misconduct or conflict of interest of its fiduciaries. Cf. Coleman v. Schwartz, 50 App.D.C. 111, 268 F. 701 (1920). It should consider such complaints sufficiently to determine whether a formal inquiry appears to be necessary, but it need not permit a stranger to the conservator-ship to act for the ward. It may instead permit a guardian ad litem to act. If the ward’s relatives or creditors could always institute proceedings to remove a conservator and use discovery to prepare for a formal hearing on the merits, the efficiency of the conservator’s administration of the ward’s estate might be greatly reduced and its expense greatly increased. If the District Court’s decision that appellants’ contentions did not merit a formal hearing was not arbitrary or capricious, we should affirm. The appellants have not presented, either in the District Court or in this court, any examples of wrongdoing by the conservators. In the District Court they alleged that the conservators failed to report to the court offers to buy the Redskins, failed to disclose these offers and other material facts to appellant Marshall, and voted themselves excessive salaries. But since the appellants admitted that they lacked evidence to support these charges, the court properly rejected them. It properly found, also, that charges of curtailed dividend payments and excessive legal fees should have been taken up with the auditor of the conservatorship accounts. Appellants say there is an inherent conflict between the interests of the ward and of the conservators because of (1) a provision in the by-laws of Pro-Football, Inc., (2) a voting trust agreement, and (3) a contingent liability of De-Orsey’s estate on a note held by the ward. Since appellants could have presented (2) and (3) to the District Court and failed to do so, we cannot consider them in deciding whether the court abused its discretion. Article VI § 6 of the by-laws provides that if a shareholder wishes to sell his stock and receives a bona fide offer, the other shareholders have the first right to purchase the stock at the same price. Appellants say the conservators would reject an offer to buy the ward’s stock, however advantageous it might be to the ward, because if the offer was not rejected a fourth shareholder who now holds 25% of the shares might buy the stock and get control of the corporation. Fiduciaries must conform to a high standard of conduct, and a fiduciary whose interests conflict with those of his beneficiary should be removed. But in the absence of evidence that the ward wishes to sell his stock or that there is a bona fide offer to buy it, the District Court’s finding that there is no conflict justifying removal of the conservators is not a clear abuse of discretion. Ill Appellants contend that, for several reasons, the District Court erred in ordering the testamentary document turned over to the conservators. (1) On the basis of Jones v. Dunlap, 73 App.D.C. 59, 115 F.2d 689 (1940), they contend that the District Court lacks jurisdiction to order turnover of a will in a conservatorship proceeding when there are conflicting claims as to the right to possess the document. In a conservatorship proceeding the District Court “has the same powers with respect to the property of a person for whom a conservator has been appointed as it has with respect to the property of infants under guardianships.” D.C.Code § 21-1504 (1967 ed.). In exercising these powers, the court is known as the Probate Court. D.C.Code § 11-522 (1967 ed.). When Jones v. Dunlap was decided, however, the District Court, sitting as Probate Court in statutory “special terms”, did not have jurisdiction to decide conflicting claims of right to possession of personalty. The Code then provided that the Probate Court “shall not, under pretext of incidental power, or constructive authority, exercise any jurisdiction whatever not expressly given by this Code * * ” D.C.Code § 18-132 (1929 ed.). This language was deleted from the 1967 edition of the Code “as obsolete, or, in any event, unnecessary. * * There are no longer statutory special terms of the District Court designated as probate court, equity court, etc., and there is no more reason to enact such a provision as this, with respect to the District Court in the exercise of its probate jurisdiction and powers * * * than there would be to enact similar provisions with respect to its other jurisdiction.” Revision Notes, D.C.Code. § 16-3107. Furthermore, the 1966 amendment to Rule 81 of the Federal Rules of Civil Procedure, by deleting the reference to probate proceedings, makes them subject to the Federal Rules. Rule 81 formerly said, “The Federal Rules do not apply to probate * * * proceedings.” F.R.Civ.P. 81(a) (1965 ed.). Rule 1, F.R.CIV.P., provides that the rules “are to be construed to secure the just, speedy and inexpensive determination of every action.” Thus there is today no restriction upon the District Court, sitting in probate, which limits its power to adjudicate the right to possession of personalty. Furthermore, the Federal Rules encourage a court with jurisdiction over the parties to settle all related legal grievances in one proceeding. (2) Appellants say the turnover order is a mandatory injunction and invalid for failure to comply with the requirement of Rule 65(d), F.R.Civ.P., that “Every order granting an injunction * * * shall set forth the reasons for its issuance. * * * ” Though this requirement is mandatory, the reasons need not be stated in detail. Conservators have a statutory right to possession of the personal property of the ward, and if the testamentary document is his property, the simple recitation of that fact in the turnover order is sufficient. (3) Appellants claim that a will has no legal significance before the testator’s death, is therefore not part of the ward’s estate in his lifetime, and is not covered by the provision of the D.C. Code § 21-141 (1967 ed.) that “ * * * a guardian is entitled to an order of the court directing the real and personal estate of the ward to be delivered into his possession. * * * ” Delivery of a ward’s will to a guardian has sometimes been refused on the ground that it was not part of the ward’s estate, but in these cases the will had been executed and turned over to another while the ward was competent. We think the testamentary document in this case, which the ward turned over to the appellants during the conservator-ship, should be considered his property and subject to § 21-141. We agree with the District Court that the appellants will not be prejudiced by the change in its possession. Affirmed. . Based on D.C.Code § 21-501 (1961 ed.). . Cf. Ex parte Rasin, 116 A. 847 (Md. 1922); In re Jones’ Will, 59 Wis. 110, 17 N.W. 687 (1883). . International Longshoremen’s Ass’n, Local 1291 v. Philadelphia Marine Trade Ass’n, 389 U.S. 64, 88 S.Ct. 201, 19 L.Ed.2d 236 (1967); Mayflower Indus. v. Thor Corp., 182 F.2d 800 (3d Cir. 1950). . Cf. Pennsylvania R.R. Co. v. Transport Workers Union of America, 278 F.2d 693 (3d Cir. 1960) (“the danger of irreparable injury is immediate” was a sufficient statement of reason). . Mastick v. Superior Court, 94 Cal. 347, 29 P. 869 (1892); Pond v. Faust, 90 Wash. 117, 155 P. 776 (1916). Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
sc_caseoriginstate	17	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state. BOWMAN DAIRY CO. et al. v. UNITED STATES et al. No. 435. Argued March 9, 1951. Decided April 30, 1951. L. Edward Hart, Jr. and Walter J. Cummings, Jr. argued the cause for petitioners. On the brief were Mr. Hart and Mr. Tierney for the Bowman Dairy Co. et al., Herman A. Fischer for the American Processing & Sales Co., Kenneth F. Burgess, Edwin Clark Davis and Mr. Cummings for the Borden Company et al., Isidore Fried for the Capitol Dairy Co. et al., and Thomas B. Gilmore for the Hunding Dairy Co. et al. Louis E. Hart was also of counsel for petitioners. Deputy Attorney General Ford argued the cause for respondents. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison and /. Roger Wallenberg. Mr. Justice Minton delivered the opinion of the Court. Petitioners were indicted for a violation of § 1 of the Sherman Act-. Before the case was set for trial, each petitioner filed a motion under Rule 16 of the Federal Rules of Criminal Procedure for an order requiring the United States to produce for inspection all books, papers, documents, or objects obtained from petitioners and obtained by seizure or process from others. An agreed order was entered by the court and the Government fully complied therewith. The validity of this order is not in question. Petitioners also moved under Rule 17 (c) for an order directing the Government at a time and place to be specified therein to produce for inspection certain other books, papers, documents and objects obtained by the Government by means other than seizure or process. Petitioners filed and served on the Government attorneys a subpoena duces tecum, the pertinent part of which reads as follows: “all documents, books, papers and objects (except memoranda prepared by Government counsel, and documents or papers solicited by or volunteered to Government counsel which consist of narrative statements of persons or memoranda of interviews), obtained by Government counsel, in any manner other than by seizure or process, (a) in the course of the investigation by Grand Jury No. 8949 which resulted in the return of the indictment herein, and (b) in the course of the Government’s preparation for the trial of this cause, if such books, papers, documents and objects, (a) have been presented to the Grand Jury; or (b) are to be offered as evidence on the trial of the defendants, or any of them, under said indictment; or (c) are relevant to the allegations or charges contained in said indictment, whether or not they might constitute evidence with respect to the guilt or innocence of any of the defendants . . . .” A hearing was held and the court entered an order directing the Government to produce for petitioners’ inspection the materials designated in the subpoena. Thereafter the Government moved to quash the subpoena and to set aside the order, contending that the access of a defendant in a criminal proceeding to materials in custody of Government attorneys is limited to rights granted by Rule 16 and that the District Court had erred in ordering production of the subpoenaed materials. This motion was denied. Respondent Hotchkiss, one of the Government attorneys to whom the subpoena was addressed, had possession of the materials called for, but refused to produce any of them. After a hearing, the District Court held him in contempt. The Court of Appeals reversed, 185 F. 2d 159. We granted certiorari because of the importance of the scope of Rule 17 (c) in federal practice. 340 U. S. 919. During the hearing on petitioners’ motions for an order under Rule 17 (c), respondent Hotchkiss, acting for the Government, had offered to produce, and to enter into a stipulation therefor, all documents of evidentiary character, in the custody of the Government obtained other than by seizure or process, i. e., documents other than the work product of the Government, solicited and volunteered narrative statements, and memoranda of interviews. However, this offer did not include documents furnished the Government by voluntary and confidential informants. The subpoena was broad enough to include any documents and other materials that had been furnished the Government by voluntary informants and which did not “consist of narrative statements of persons or memoranda of interviews.” The Government’s chief objection to the subpoena, as stated to the court by respondent Hotchkiss, was as follows: “Mr. Hotchkiss: There is only one objection — basic objection which I would make to the form which is proposed: This language in this subpoena or proposed subpoena, as I construe it does not protect those confidential informants who have provided the Government with confidential material which the Government feels on the basis of very well established principles followed by the courts are normally protected from the view of litigants.” It appears from respondent’s colloquy with the court that the confidential material which he would except from the subpoena consisted of “documents furnished the Government without process or seizure by voluntary informants.” It was intended by the rules to give some measure of discovery. Rule 16 was adopted for that purpose. It gave discovery as to documents and other materials otherwise beyond the reach of the defendant which, as in the instant case, might be numerous and difficult to identify. The rule was to apply not only to documents and other materials belonging to the defendant, but also to those belonging to others which had been obtained by seizure or process. This was a departure from what had theretofore been allowed in criminal cases. Rule 16 deals with documents and other materials that are in the possession of the Government and provides how they may be made available to the defendant for his information. In the interest of orderly procedure in the handling of books, papers, documents and objects in the custody of the Government accumulated in the course of an investigation and subpoenaed for use before the grand jury and on the trial, it was provided by Rule 16 that the court could order such materials made available to the defendant for inspection and copying or photographing. In that way, the control and possession of the Government is not disturbed. Rule 16 provides the only way the defendant can reach such materials so as to inform himself. But if such materials or any part of them are not put in evidence by the Government, the defendant may subpoena them under Rule 17 (c) and use them himself. It would be strange indeed if the defendant discovered some evidence by the use of Rule 16 which the Government was not going to introduce and yet could not require its production by Rule 17 (c). There may be documents and other materials in the possession of the Government not subject to Rule 16. No good reason appears to us why they may not be reached by subpoena under Rule 17 (c) as long as they are evidentiary. That is not to say that the materials thus subpoenaed must actually be used in evidence. It is only required that a good-faith effort be made to obtain evidence. The court may control the use of Rule 17 (c) to that end by its power to rule on motions to quash or modify. It was not intended by Rule 16 to give a limited right of discovery, and then by Rule 17 to give a right of discovery in the broadest terms. Rule 17 provided for the usual subpoena ad testificandum and duces tecum, which may be issued by the clerk, with the provision that the court may direct the materials designated in the subpoena duces tecum to be produced at a specified time and place for inspection by the defendant. Rule 17 (c) was not intended to provide an additional means of discovery. Its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of the subpoenaed materials. United States v. Maryland & Virginia Milk Producers Assn., 9 F. R. D. 509. However, the plain words of the Rule are not to be ignored. They must be given their ordinary meaning to carry out the purpose of establishing a more liberal policy for the production, inspection and use of materials at the trial. There was no intention to exclude from the reach of process of the defendant any material that had been used before the grand jury or could be used at the trial. In short, any document or other materials, admissible as evidence, obtained by the Government by solicitation or voluntarily from third persons is subject to subpoena. It was material of this character which the Government was unwilling to stipulate to produce or to produce in obedience to the subpoena. Such materials were subject to the subpoena. Where the court concludes that such materials ought to be produced, it should, of course, be solicitous to protect against disclosures of the identity of informants, and the method, manner and circumstances of the Government’s acquisition of the materials. Clause (c), which is the last clause in the subpoena, reads as follows: “are relevant to the allegations or charges contained in said indictment, whether or not they might constitute evidence with respect to the guilt or innocence of any of the defendants . . . .” This is a catch-all provision, not intended to produce evidentiary materials but is merely a fishing expedition to see what may turn up. The clause is therefore invalid. The subpoena calls for materials which the Government is bound to produce and for materials it is not bound to produce. The District Court said: “Give us all.” The Government replied: “We will give you nothing.” Both were wrong. The Government should produce the evi-dentiary materials called for by the subpoena. It need not produce anything under clause (c). One should not be held in contempt under a subpoena that is part good and part bad. The burden is on the court to see that the subpoena is good in its entirety and it is not upon the person who faces punishment to cull the good from the bad. Accordingly, the judgment of the Court of Appeals is vacated and the cause remanded to the District Court for further proceedings in conformity with this opinion. It is so ordered. Mk. Justice Black would affirm the District Court. Mr. Justice Clark took no part in the consideration or decision of this case. 26 Stat. 209, 15 U. S. C. § 1. “Rule 16. Discovery and Inspection. “Upon motion of a defendant at any time after the filing of the indictment or information, the court may order the attorney for the government to permit the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the defendant or obtained from others by seizure or by process, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable. The order shall specify the time, place and manner of making the inspection and of taking the copies or photographs and may prescribe such terms and conditions as are just.” “Rule 17. SubpoeNA. “(a) For Attendance op Witnesses; Form; Issuance. A subpoena shall be issued by the clerk . . . and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. The clerk shall issue a subpoena, signed and sealed but otherwise in blank to a party requesting it, who shall fill in the blanks before it is served. “(c) For Production op Documentary Evidence and op Objects. A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.” See Advisory Committee’s Note to Rule 16, 18 U. S. C., p. 1969. “We also find in the same rule, under (c), a provision for the production of documentary evidence or objects — the familiar subpoena duces tecum — and if the person upon whom the subpoena is served thinks it is broad or unreasonable or oppressive he may apply to the court to quash the subpoena. Furthermore, while normally under a subpoena the books and other things called for would merely be brought into court at the time of the trial, let us say immediately before they are to be offered in evidence, there is a provision in this rule that the court may, in the proper case, direct that they be brought into court in advance of the time that they are offered in evidence, so that they may then be inspected in advance, for the purpose of course of enabling the party to see whether he can use it or whether he wants to use it.” Statement of Mr. G. Aaron Youngquist, Member of Advisory Committee, Federal Rules of Criminal Procedure, Proceedings of the Institute on Federal Rules of Criminal Procedure (New York University School of Law, Institute Proceedings, Vol. VI, 1946), pp. 167-168. Question: What is the state of the court in which the case originated? 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_usc2sect	1181	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 8. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". Giuseppe ERRICO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 19282. United States Court of Appeals Ninth Circuit. July 9, 1965. Rehearing Denied Aug. 14, 1965. Frank M. Ierulli, Gerald H. Robinson, Portland, Or., for petitioner. Cecil F. Poole, U. S. Atty., Charles Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for respondent. Before MERRILL, DUNIWAY, and ELY, Circuit Judges. ELY, Circuit Judge: Petitioner, now thirty-one years of age, emigrated from his native Italy and, with his wife, gained admission to the United States on October 17, 1959. His parents and all of his brothers and sisters reside in this country, and his son, an American citizen, was born here on August 3, 1960. He was admitted as a selected immigrant under the first preference of the Italian immigration quota. The status was approved under the authority of Section 203(a) (1) (A) of the Immigration and Nationality Act (8 U. S.C. § 1153(a) (1) (A)). The visa petition had been submitted by a motor company of Portland, Oregon, and was supported by representations, in the form of affidavits originating in Italy, that the petitioner was a specialized mechanic and motor tune-up man on motors of Italian manufacture. Eight days after his arrival in New York City, the petitioner commenced his employment with the Portland motor company. The record reveals that he was given the assignment of performing work on German motors with tools which were strange to him. He remained in this employment for only three months, having failed, according to a finding of the Special Inquiry Officer, “to measure up to the requirements of a specialized mechanic.” On August 29, 1960, he entered the employ of Victory Plating Works, Inc., of Portland, and he has remained continuously in such employment. On September 11, 1963, the Immigration and Naturalization Service issued an Order to Show Cause and Notice of Hearing In Deportation Proceedings in which it was alleged that petitioner was “not a specialized mechanic and tune-up man as alleged. And on the basis of the foregoing * * , it is charged that you are subject to deportation pursuant to the following provision^) of law: Section 241(a) (1) of the Immigration and Nationality Act, in that, at time of entry you were within one or more of the classes of aliens ex-cludable by the law existing at the time of such entry, to wit, aliens who are not of the proper status under the quota specified in the immigrant visa, under Section 211(a) (4) of the Act.” A hearing followed, and while it was shown that before he left Italy, and in anticipation of his prospective employment in the United States, the petitioner worked for a few months as an unpaid apprentice in an Italian garage, there was ample evidence to support a finding by the Special Inquiry Officer that the petitioner, at the time of his entry into the United States, was not a qualified automobile mechanic or a specialist in motors of Italian manufacture. The petitioner sought relief from deportation under the provisions of Section 211(c) and (d) of the Immigration and Nationality Act of 1952 (8 U.S.C. § 1181(c) (d)), which provide, in effect, that the Attorney General may, in his discretion, grant relief to an inadmissible alien “if satisfied that such inadmissibility was not known and could not have been ascertained by the exercise of reasonable diligence by such immigrant” prior to his entry to the United States. The petitioner’s application for this relief was denied upon the ground that the petitioner knew of his lack of qualifications prior to his departure from Italy and consequently could not qualify for favorable discretionary action under the provisions of Section 211(c). It is our opinion that the Special Inquiry Officer properly applied Section 211(c) and that the denial of relief under this Section, affirmed by the Board of Immigration Appeals, was correct. In all stages of the proceedings, the petitioner has insisted that he is saved from deportation by Section 241(f), Immigration and Nationality Act (8 U.S.C. § 1251(f)), which provides: “The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence.” (Emphasis added) It is important to note that the italicized language has been adopted from Section 212(a) (19) (8 U.S.C. § 1182(a) (19)), one of many sections designating classes of aliens who “shall be ineligible to receive visas and shall be excluded from admission into the United States:”. We have seen that the petitioner is a parent of a United States citizen and the child of aliens lawfully admitted for permanent residence. It is also established that the petitioner procured “visas or other documentation, or entry into the United States by fraud or misrepresentation.” Against the petitioner, it has been contended that in the Order to Show Cause, he was not charged with being inadmissible because of the provisions of Section 212(a) (19) relating to aliens who have gained entry by fraud or misrepresentation, but with inadmissibility under the provisions of Section 211(a) (4) of the Immigration and Nationality Act (8 U.S.C. § 1181(a) (4)) which reads: “(a) No immigrant shall be admitted into the United States unless at the time of application for admission he * * (4) is of the proper status under the quota specified in the immigrant visa, * * * ”. This contention, carefully considered by the Special Inquiry Officer, was correctly treated in his decision as follows: “The respondent has established the necessary relationship to come within the provisions of Section 241(f). Several questions, however, remain. The first, whether the provisions of Section 241(f) would apply to his case because he is charged with inadmissibility under the provisions of Section 211(a) (4) of the Immigration and Nationality Act relating to aliens who at entry were not of the proper status specified in the immigrant visa, rather than under Section 212(a) (19), aliens who procured a visa by fraud or willfully misrepresenting a material fact. The Board of Immigration Appeals, in the Matter of K-, I & N Dee. 585, 589, March 9, 1962, reaffirmed the previous order in Matter of S-, 7 I & N Dec. 715, holding that the section of law under which the deportation charge is laid is immaterial. The Board, in Matter of K-, stated: ‘There are, however, other provisions of Section 241(a) which render an alien deportable after entry on charges which flow directly from the entry by fraud or misrepresentation. The two charges set forth in Section 241(a) (2) come within this category. Since Section 241(f) described in general terms aliens whose documentation or entry was procured by fraud or misrepresentation, we are of the opinion that it was the intent of Congress to save from deportation those aliens who were admissible except for the fact that they had made fraudulent statements regardless of the provision of the statute under which their deportation is sought.’ It is concluded that the fact that the charge, excludable at entry for fraud or misrepresentation, is not urged, would not disqualify the respondent from the benefits of Section 241(f).” It would therefore appear that petitioner, as an alien who “procured [a visa] or other documentation, or entry into the United States by fraud or misrepresentation” and “who is the * * * parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence”, is saved from deportation by the provisions of Section 241(f) (8 U.S.C. § 1251(f)) if he was “otherwise admissible” at the time of his entry. The Special Inquiry Officer concluded that since this issue of statutory construction “presents a novel question not decided by the Board”, it would be “certified to the Board of Immigration Appeals for review and final decision”. The Board held that since the petitioner’s application for discretionary relief by waiver under Section 211(c) was not granted, he could not be “otherwise admissible at the time of entry” and that “Section 241(f) of the Immigration and Nationality Act has no applicability to this case and need not have been discussed”. We disagree with the Board. Fair interpretation of the legislative history of the Section, its terms, and its relation to other statutes in pari materia lead to the conclusion that it is operative to spare the petitioner from deportation. Under its plain terms, the Section purports to grant absolute relief to aliens who have close familial ties in the United States and who have gained entry into the United States through “fraud or misrepresentation”. Its benefits are not made dependent upon the exercise of discretion by the Attorney General in the granting of a waiver or in any other manner. It was enacted on September 26, 1961 and modified the terms of a portion of a statute, simultaneously repealed, which contained similar provisions. This previously existing statute, Pub.L. 85-316, 71 Stat. 640, 8 U.S.C. 1251a (not 1251(a)) was enacted in 1957. Upon its repeal, a portion of it was incorporated into Section 1182 of Title 8 as Section (h). This portion conferred upon the Attorney General the discretionary power to consent to the admission to the United States of certain aliens upon certain conditions, in general, as follows: (1) Aliens with certain close relatives already in the United States (2) whose exclusion would result in extreme hardship to the relatives residing in the United States (3) whose admission to the United States would not be contrary to the national welfare, safety, or security and (4) who were excludable from the United States under paragraphs (9), (10), or (12) of Section 212(a) of the Immigration and Nationality Act (8 U. S.C. § 1182). Paragraphs (9), (10), and (12) define three classes of excludable aliens, those who have been convicted of a crime involving moral turpitude, those who have been convicted of two or more offenses for which the aggregate sentences to confinement actually imposed were five years or more, and those who are concerned with traffic in prostitution. Subsection (i) of Section 212, Immigration and Nationality Act (8 U.S.C. § 1182(i)), by its present terms, also grants to the Attorney General certain discretionary powers with reference to the admission of an alien who has close relatives in the United States and who has sought to procure or has procured entry documentation by fraud or misrepresentation. Section 7 of the 1957 Act, repealed in 1961, was the near predecessor of the presently existing Section 241(f) (8 U.S. C. § 1251(f) ). It saved from deportation aliens with close relatives in the United States and who had gained entry because of limited misrepresentations with respect to nationality, place of birth, identity, or residence. The Section, however, expressly conditioned the granting of relief upon the consent of the Attorney General and the fact that the alien’s misrepresentations were induced by his fear of persecution because of race, religion, or politics. Its legislative history reveals the congressional intent to apply “fair humanitarian standards.” See 1952 U.S.C. Cong, and Adm.News, p. 1753, Besterman, Commentary on the Immigration and Nationality Act, 8 U.S. C.A. page 1. A comparison with the provisions of Section 7 of the 1957 Act with those of the successor Act, Section 241 (f), reveals the following: (1) The prescribed United States relatives of the alien are the same, nameiy, “spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence”. (2) The former Act described misrepresentations as to only four facts to which it was obviously aimed, namely, nationality, place of birth, identity, or residence, whereas, the present Section 241(f) contains no limitation as to the type or nature of the fraud or misrepresentation which the alien may have perpetrated or made. (3) The former Section conditioned relief upon the discretion of the Attorney General, favorably exercised in favor of the alien, whereas, in the present Section 241(f), there is no provision which conditions its operation upon the exercise of discretionary powers. The present Section 241(f) is now the last paragraph of the Section which defines classes of deportable aliens and describes as the first class, “aliens excludable by the law existing at the time of such entry”. Section 241(a) (1), Immigration and Nationality Act (8 U. S.C. § 1251). The determination of who are “excludable by the law” requires reference to Section 212, Immigration and Nationality Act (8 U.S.C. § 1182). There, many classes are defined as ex-cludable, including those defined in Sections (9), (10), and (12), to which we have already made reference and for whom discretionary relief is expressly made available. In the light of the long course of legislative history indicating a congressional intent to apply “fair humanitarian standards”, it is not reasonable to believe that Congress, by its enactments and reenactments in 1961, intended thereby to deny relief under the repealed Section 7 to an alien who had gained entry by misrepresenting his nationality, place of birth, identity, or residence and at the same time expressly provide for relief to three specific classes of aliens, those convicted of a crime involving moral turpitude, those engaged in the traffic of prostitution, and those who were ex-convicts upon whom at least five years of confinement had been actually imposed. To us, it seems more reasonable that Congress recognized the unyielding nature of the temptation which might impel an alien to make false misrepresentations above and beyond those pertaining to nationality, place of birth, identity, or residence in the hope of residing in proximity to dear ones already resident in the United States. Furthermore, it is entirely reasonable, in view of the broadening liberalization of the terms of the former Section 7 and the elimination of the provision relating to discretion, to assume that the absolute relief conferred by the statute would save from deportation such aliens who procure their documents of entry by fraud, either because their near relatives already resided in the United States or because, after entry, they were not sought to be deported until after the passage of time and the establishment of intimate familial relationships with citizens of the United States. Perhaps it was sought to encourage responsible officials to scrutinize, with greater care and in advance of entry, representations made by the alien and others in support of immigrant visa applications. In its brief in our court, and in oral argument, the Immigration Service has taken the position that the petitioner cannot be “otherwise admissible” under the provisions of Section 241(f) and thereby entitled to relief unless at the same time of his admission under the visa obtained by fraud he was also independently admissible under a different status or a different quota. This would lead to the conclusion that Section 241(f) could never be operative unless the alien, while entitled to a visa of unquestionable validity, had nevertheless fraudulently procured another upon which to base his admission. We cannot believe that Congress concerned itself with study and enactment of a statute which would grant relief only to one, if one can be imagined, who would seek to obtain and would obtain an immigrant visa by recourse to fraud when he already had or would obtain a separate and valid visa and, if the Immigration Service had issued the two documents, would select for presentation and entry the spurious of the two. Such an interpretation of Section 241(f) would, in our judgment, strip it of all substantial meaning and purpose. The foregoing considerations lead to the conclusion that the petitioner was not, at the time of his entry, inadmissible by reason of falling within one of the excludable classes defined in Section 212 (8 U.S.C. § 1182); hence, he was, except for the fraud for which he is forgiven under the terms of Section 241(f), “otherwise admissible”. He does not fall within the excludable class defined in paragraph (20) of Section 212 because of the paragraph’s prefatory exception clause. It may be said that our conclusion may encourage aliens to seek entry to our country by fraudulent means and then, with all haste, to establish or create relationships with American citizens. This may well be true, but our only obligation is to reach and apply the most reasonable construction of the statute. In this construction, it is not our duty to weigh all considerations of national policy, humanitarian or otherwise. The Order of Deportation is vacated. . The Board of Immigration Appeals in Matter of Slade, I&N., [ A-XXXXXXXX ] (Nov. 30, 1962), has disagreed. It points to two hypothetical situations in which it sees that Section 241(f) may operate to the alien’s benefit. These are seen in the Board’s comments as follows: “Does our conclusion make section 241 (f) of the Act meaningless as counsel contends? We think not. A person deportable as having obtained a visa by fraud is barred from the United States. In the absence of legislation such as that contained in section 241(f) of the Act there could be no waiver of this perpetual bar to the acquisition of lawful permanent residence in the United States even though ties with United States citizens or legally resident aliens existed. Section 241(f) of the Act is also effective to require termination of deportation proceedings where an alien willfully misrepresented a matter which did not make her inadmissible but which was nevertheless material; i.e., a misrepresentation concerning name, existence of a conviction of a crime which did not involve moral turpitude, etc. (see, Matter of S-and fí--0-, Int. Dec. 1168).” In our view, the Board’s opinion is fallacious. In the first assumed situation, it overlooked Subsection (i) of Section 212 (8 U.S.O. § 1182(1)), added by amendment on September 26, 1961, which, apart from Section 241(f), grants discretionary power to the Attorney General to waive “this perpetual bar to the acquisition of lawful permanent residence in the United States * * * ”. As to the second situation, “termination of deportation proceedings” would be required even though the provisions of Section 241 (f) did not exist. See Duran-Garcia v. Neelly, 246 F.2d 287, 291, (5th Cir. 1957) ; Herrera-Roca v. Barber, 150 F. Supp. 492 (N.D.Cal.1957); In re Field’s Petition, 159 F.Supp. 144 (S.D.N.Y. 1958) . Moreover, it appears quite obvious that the language of Section 241(f) was not drafted for the purpose of requiring the “termination of deportation proceedings” against an alien guilty of a misrepresentation as to “a matter which did not make her inadmissible * * * ”. . “Except as otherwise specifically provided in this chapter, any immigrant who at the time of application for admission is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality, if such document is required under the regulations issued by the Attorney General pursuant to section 1181(e) of this title;” . Even if there is reasonable doubt as to the proper interpretation of Section 241 (f), the doubt must be resolved in favor of the alien. Fong Haw Tan v. Phelan, 333 U.S. 6, 68 S.Ct. 374, 92 L.Ed. 433 (1948); Barber v. Gonzales, 347 U.S. 637, 74 S.Ct. 822, 98 L.Ed. 1009 (1954); Garcia-Gonzales v. Immigration and Naturalization Service, 344 F.2d 804 (9th Cir. 1965). 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 8? Answer with a number. Answer:
songer_geniss	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". YELLOW CAB COMPANY OF NEVADA, a Nevada corporation, Appellant, v. CAB EMPLOYERS, AUTOMOTIVE & WAREHOUSEMEN, LOCAL #881, et al., Appellees. No. 25567. United States Court of Appeals, Ninth Circuit. March 1, 1972. Rex A. Jemison (argued), of Singleton, Beckley, Delanoy, Jemison & Reid, Las Vegas, Nev., for appellant. Madison B. Graves (argued), of Graves, Crawford & Phillips, Ltd., George Rudiak (argued), Las Vegas, Nev., for appellees. Before CHAMBERS and WRIGHT, Circuit Judges, and BYRNE, District Judge. Honorable William M. Byrne, United States Senior District Judge, Central District of California, sitting by designation. WILLIAM M. BYRNE, Senior District Judge: Pursuant to the Sherman Anti-Trust Act, 15 U.S.C. § 1 et seq., appellant Yellow Cab Company of Nevada (Yellow Cab) brought suit in United States District Court to recover nearly $4,000,000 in damages, actual and treble, for alleged conspiracies to restrain trade and to monopolize, violations of Sections 1 and 2, respectively, of the Sherman Act. The District Court first denied, but upon reconsideration, granted, appel-lees’ joint Motions for Summary Judgment. In granting these motions, the District Court expressly found that there was no genuine issue as to any of the jurisdictional facts upon which its subject-matter jurisdiction depended and that appellees were entitled to judgment as a matter of law. Now before this court, Yellow Cab maintains that the lower court’s assessment of federal jurisdiction was incorrect. In its complaint, Yellow Cab sought recovery by way of two theories, namely, an “in commerce” violation of the Sherman Act and a violation of the Sherman Act which “affected commerce.” A. In Interstate Commerce. In part, Yellow Cab claimed that it was engaged in interstate commerce because pursuant to an exclusive contract with Union Pacific Railroad, it transported passengers from the interstate terminal at the railroad depot to the interstate air terminal at McCarran Field, located in Clark County, Nevada. Additionally, Yellow Cab held a permit from the California Board of Equalization which authorized it to transport passengers to Nevada from California and vice versa. These activities, which accounted for an annual revenue of approximately $8,500.00, constituted only .5% of Yellow Cab’s over-all business ($2,313,096.-15). The trial judge held that Yellow Cab’s interstate taxicab operations were so insignificant in scope as to be de min-imis to its over-all business enterprise. Appellees concede that certain aspects of Yellow Cab’s business may be regarded as “interstate [in] character.” Nevertheless, they maintain that the Sherman Act is without applicability to this case because Yellow Cab’s interstate activities are “infinitesimal” in scope. Indeed, they particularly note that Yellow Cab’s contractual arrangement to transport passengers from interstate terminal to interstate terminal contributes, in effect, only a “percentage of a percentage” to its over-all revenue. Accordingly, ap-pellees argue that the district court did not err when it deemed Yellow Cab’s interstate business to be de minimis to its intrastate activity. In United States v. Yellow Cab Co., 332 U.S. 218, 67 S.Ct. 1560, 91 L.Ed. 2010 (1947), the court held that transporting passengers between so-called “interstate terminals” was “clearly a part of the stream of interstate commerce.” Here, a slight portion of Yellow Cab’s business activity consisted of such passenger transportation. Although such activity amounts to only a tiny fraction of its business, Yellow Cab maintains this is sufficient participation to invoke the protection of the Sherman Act. The basis of Yellow Cab’s position is the well-settled rule that where the activities are interstate in nature, a per se violation of the Sherman Act presumes, as a matter of law, an effect upon interstate commerce, thus negating a showing of the amount of commerce involved. Under such circumstances, it is no defense that this amount may be small. United States v. McKesson & Robbins, Inc., 351 U.S. 305, 76. S.Ct. 937, 100 L.Ed. 1209 (1956); Las Vegas Merchant Plumbers Association v. United States, 210 F.2d 732 (9th Cir. 1954), cert. denied 348 U.S. 817, 75 S.Ct. 29, 99 L.Ed. 645 (1954). Yellow Cab argues that it comes within the purview of this “well-settled rule” because it alleged the appellees conspired “to divide the market,” an action which this court has deemed a per se violation of the Sherman Act. Las Vegas Merchant Plumbers Association v. United States, supra. In the main, appellees base their opposition to Yellow Cab’s “in commerce” theory on the jurisdictional formula worked out by this court in Page v. Work, 290 F.2d 323, 330, (9th Cir. 1961), cert. denied, 368 U.S. 875, 82 S.Ct. 121, 7 L.Ed.2d 76 (1961): “The test of jurisdiction is not that the acts complained of affect a business engaged in interstate commerce, but that the conduct complained of affects the interstate commerce of such business.” There, the defendants were charged with conspiring to eliminate the “Los Angeles Daily Journal” as a competitor in the field of legal advertising in Los Angeles. Although both the defendants and the Journal were engaged in some form of interstate commerce, the court held that it was not an “in commerce” case because the conspiracy was directed at the local legal advertising market. Yellow Cab acknowledges the viability of the Page formula, but argues that it is without applicability to this controversy. Specifically, it is pointed out that in Page the plaintiff continued to purchase newsprint and carry national news and advertising and mailed copies of its newspapers to its 13 out-of-state subscribers. By contrast, here, all of Yellow Cab’s activities, interstate and intrastate, were interrupted by the alleged conspiracy. In our view, Yellow Cab seeks to avoid the “well-settled” rule regarding per se violations of the Sherman Act by tailoring the thrust of the alleged conspiracy to come within general principles of antitrust law. Although it is true that the courts have held that a small amount of interstate commerce is sufficient to obtain federal jurisdiction, they have done so when the nature of the conspiracy has been directed against interstate commerce. Illustrative of this point is the recent case of United States v. Bensinger Co., 430 F.2d 584 (8th Cir. 1970). There, the defendants were convicted of violating Section 1 of the Sherman Act by conspiring to fix the price of a single dishwasher. The background of this alleged conspiracy is this: A St. Louis, Missouri, restaurant decided as part of the remodeling of its dishwashing facilities to install a Hobart dishwasher. Bid forms were sent to three St. Louis area Hobart dealers, only two of which expressed interest in the project. After its receipt of this form, one of these companies, Almar, was purportedly contacted by Hobart’s St. Louis representative and told that it was not to underbid Bensinger. Almar was warned that its Hobart franchise would be in jeopardy if it submitted the low bid. Indeed, the representative warned that if Almar were awarded the contract, the dishwasher would not be sent from the home office. Thereafter, Almar submitted a perfunctory bid and the contract went to Bensinger. The defendants maintained that the conspiracy to fix the price of one dishwasher was so insignificant that it did not meet the jurisdictional test of interstate commerce. The court disagreed, noting that the dishwasher had to be shipped from out of state (Troy, Ohio, to St. Louis, Missouri) and that the order to obtain the machine had to be placed and accepted in Hobart’s main office in Troy. Of even greater significance was Hobart’s threat not to deliver the dishwasher if Almar were awarded the contract. Thus, in the words of the court, “. . . the conspirator Hobart was engaged in interstate commerce, its product which was the subject of the conspiracy moved in interstate commerce, and that movement in interstate commerce was directly threatened by the conspiracy. This is sufficient to establish that the conspiracy occurred in the course of interstate commerce.” (Emphasis supplied). 430 F.2d at 589. The court, nevertheless, noted the following clarification of its decision: “In the interests of clarity, it may be repeated that this conclusion follows only because we have found that the conspiracy occurred in interstate commerce. In the case at bar, Yellow Cab maintains that the purpose of the conspiracy was to produce “a long strike m the entire taxicab industry leaving co-conspirator Whittlesea as the only taxicab operator in Clark County.” Given the miniscule amount of business generated by Yellow Cab’s interstate activity, it is readily apparent that intrastate business “was the subject of the conspiracy.” The subject matter of the conspiracy is important because it adds dimension to the “well-settled” rule. As indicated, in Yellow Cab Co., and Las Vegas Merchant Plumbers Association, as well as in Bensinger, the alleged conspiracies were directed at interstate commerce. Here, the conspiracy alleged by Yellow Cab was not directly aimed at that portion of its activity which involves interstate commerce: the appellees were not seeking to gain control of the terminal-to-terminal market, but to dominate the intrastate business activity. Under these circumstances, we find no merit in the “in commerce” theory propounded by Yellow Cab. B. Effect on Commerce. As already noted, Yellow Cab contends in the alternative that the Sherman Act was appropriate because the alleged conspiracy substantially affected interstate commerce. At the time in issue, the Nevada Public Service Commission did not regulate the number of taxicab units which operated in Clark County. Instead, it maintained a laissez faire policy by letting the units be determined by the economic laws of supply and demand and free competition among the holders of operating permits. Under this system, Yellow Cab was able to secure approximately 35 percent of the Clark County taxicab market, while Whittlesea maintained approximately 20 percent thereof. The contract which bound the operators and the union included a proviso which penalized any operator who operated more taxicabs than allowed under the agreement. The nature of this penalty was to impose upon the offending taxicab operator payment of a minimum wage of $20.00 per day rather than the “normal” wage of $16.00 per day. Ap-pellee Whittlesea was found to be in violation of the agreement, and as a consequence was required by an arbitration board to pay its drivers $20.00 per day for a period of 90 days. Whittlesea estimated that the punishment meted out by the board would result in a business loss of approximately $108,000.00. Seeking to stave off such disastrous consequences, Whittlesea, allegedly, concocted a conspiracy with the union which manifested itself in the form of a contract providing that the minimum wage to be paid drivers was $20.00 per day. The contract, which purportedly increased Whittlesea’s share of the taxicab market to 29%% by “dividing” the market, was to become effective only when it had been executed by any combination of companies which as an aggregate, employed 80 percent of all Clark County drivers. None of the major cab companies would agree to the terms of this contract, thus resulting in a strike which lasted for 9 months. Yellow Cab argues that this local conspiracy had a substantial impact upon interstate commerce. According to Yellow Cab, taxi service to and from Mc-Carran Field, which is the airport serving Las Vegas, was impaired by the conspiracy and the prolonged strike which resulted therefrom. As stated by Yellow Cab, “Interstate travellers were required to walk, carrying their baggage from the interstate air terminal, .... out to the highway in order to obtain bus service . . . [Additionally], . . . there were an insufficient number of taxicabs to service the interstate travellers, and they were required to ride in courtesy cabs . . . During the final stages of the strike, there was a period of violence in which Appellant’s drivers and interstate passengers were assaulted and intimidated.” The district court held that the conduct said to be in violation of the Sherman Act only affected intrastate business activity, thus denying it jurisdiction to grant any relief. Yellow Cab asserts that the sense of disruption which permeates its allegations is comparable to the situation in Eastman v. Yellow Cab Co., 173 F.2d 874 (7th Cir. 1949). With this assertion, we disagree. There, the court held that allegations that a taxicab shortage existed because of the conspiratorial efforts of the City of Chicago and the established cab operator to have enacted a new licensing ordinance were held sufficient to state a claim under the Sherman Act, because the shortage burdened “the journeys of interstate passengers, and that such burdens result(ed) from the alleged conspiracy.” In the instant case, it is uncontrovert-ed that no plane flight in or out of Las Vegas was delayed or cancelled as a result of the alleged conspiracy and the “prolonged strike.” Similarly, it is readily acknowledged by Yellow Cab that no interstate passenger was prevented from reaching his destination. The “only contention” it makes is that these passengers were “seriously inconvenienced.” Nevertheless, in its allegations it admits that during the strike “courtesy cabs” were provided and that Whittlesea had increased the number of taxicabs it had in service. Also, two other companies, Ace and Union signed the contract in issue and went back into operation. The taxicab service was supplemented by limousine service, bus service each half-hour and rent-a-car agencies. In sum, the amount of transportation available to the interstate traveler during the course of the strike, coupled with the fact that interstate air service operated without interruption during the period of the dispute, satisfy us that there is no factual basis to support Yellow Cab’s “affect commerce” theory. Affirmed. . The appellees are Cab Employees, Automotive & Warehousemen, Local No. 881 (the Union), C. A. Christmas and Richard Thomas, individually, and as President and Secretary-Treasurer, respectively, of the Union, and Victor Whittlesea, individually, and doing business as Whittlesea Blue Cab Company (Whittlesea). . The Sherman Act is not violated when the activities are intrastate in character unless it can be shown that interstate commerce has been substantially affected thereby. Lieberthal v. North Country Lanes, Inc., 332 F.2d 269 (2d Cir. 1964) ; Elizabeth Hospital, Inc. v. Richardson, 269 F.2d 167 (8th Cir. 1959). . The “system” maintained its stability by adhering to the terms of a contractual agreement between the taxicab operators and the Union. Under this agreement, any cab company which produced in excess of a guaranteed minimum could place additional taxicabs in operation. In the reverse, any company producing less than the minmuni guaranty was required to reduce its taxicab units. . The strike-related violence occurred some two and one-half months after Yellow Cab filed its antitrust complaint. Accordingly, it appears to be beyond the scope of the specific allegations raised in the pleadings. In any event, there is no indication that the violence so disrupted transportation to and from the airport as to have constituted a substantial burden on interstate commerce. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_r_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. Laura GASPAR and Ken Nykiel, Plaintiffs-Appellees, v. DOWELL DIVISION, DOW CHEMICAL COMPANY and ABC Insurance Company, Defendants-Appellants. No. 83-3667. United States Court of Appeals, Fifth Circuit. Jan. 17, 1985. Lemle, Kelleher, Kohlmeyer & Matthews, Richard B. Foster, New Orleans, La., for defendants-appellants. Conner & Martinez, Joseph P. Williams, Jr., Metairie, La., for plaintiffs-appellees. Before GEE, POLITZ and HIGGIN-BOTHAM, Circuit Judges. GEE, Circuit Judge: Laura Gaspar and Ken Nykiel (the “plaintiffs”) brought this action against Dowell Division, Dow Chemical Company (Dow) and its insurer ABC Insurance Company alleging that one of Dow’s boats damaged a boat that the plaintiffs claim to own. After a bench trial the district court found for the plaintiffs and awarded them $18,000 in damages. We reverse. I. This case arises out of a collision that allegedly occurred between a tug owned by Dow and a boat docked alongside the plaintiffs’ shrimp boat, known as the MISS CONDUCT or the MARINA MAE. In the fall of 1981 the MISS CONDUCT was continuously moored to a cement slab on the Doullute Canal at Empire, Louisiana. The M/V SAND BAY was moored alongside the MISS CONDUCT and the M/V CHERYL LEE was moored outboard of the M/V SAND BAY. Laura Gaspar’s brother Michael was living aboard the MISS CONDUCT during this time. The M/V CANDICE L was a 59-foot, 900-horsepower model bow tug operated by Dow. On December 9, 1981, she was in command of a licensed operator, Captain V.J. Copous, pushing a 135-foot work barge and returning to her Venice, Louisiana, base after completing a job on a drilling rig in Grand Bastion Bay. As the CANDICE L was transiting the Doullute Canal into the Mississippi River and approaching the Empire Locks, Captain Copous had to wait for a supply boat locking through in the other direction. Captain Copous stopped the barge on the right bank of the Doullute Canal, holding the bow of the barge against the bank. The CANDICE L was at least 200 feet away from the MISS CONDUCT and the other boats moored alongside the concrete dock. After the supply boat had passed, Captain Copous “twin screwed” the barge out into the canal. This involved putting the starboard engine ahead and the port engine in reverse to pivot the barge sideways into the canal. The CANDICE L was not required to back up during this maneuver. Once the CANDICE L had entered the Empire Locks, Michael Gaspar appeared on the lock wall and shouted at Captain Copous. Captain Copous invited Gaspar aboard. Gaspar said that he had been sleeping aboard the MISS CONDUCT when he was awakened by a bump, looked out of the cabin, and saw the CANDICE L in the locks. Gaspar accused Copous of backing into the CHERYL LEE. Although Copous did not believe he could have hit the CHERYL LEE, Copous sent his wheelman, Ted Terrebonne, back with Gaspar to investigate. Gaspar took Terrebonne to the three boats tied up at the cement slab and told Terrebonne that the CANDICE L had struck the CHERYL LEE, the outside vessel. Terrebonne went aboard the CHERYL LEE but saw no evidence of a collision, and Gaspar pointed out no specific damage to the boat. Gaspar did not ask Terrebonne to inspect either the SAND BAY or the MISS CONDUCT. After Terrebonne left and the CANDICE L resumed her journey, the MISS CONDUCT began to take on water. This activated the boat’s automatic bilge pumps, but these pumps were unable to remove the water fast enough to prevent the boat from sinking. The MISS CONDUCT continued to take on water, sinking six days after the incident with the CANDICE L. Aside from borrowing a gasoline pump several days after the alleged collision to attempt to pump out the MISS CONDUCT, Gaspar did nothing to prevent the boat from sinking, nor did he or the plaintiffs attempt to raise the MISS CONDUCT for repairs. Aside from filing a Coast Guard report the day after the incident, neither Gaspar nor any plaintiff did anything about the sunken MISS CONDUCT until the plaintiffs filed this action in the district court thirteen months after the alleged collision occurred. In their complaint the plaintiffs alleged that the CANDICE L had collided with the CHERYL LEE, causing the CHERYL LEE to strike the SAND BAY and the SAND BAY to strike the MISS CONDUCT. Dow maintained that no collision occurred. After a bench trial the district court found that the CANDICE L had collided with the CHERYL LEE and had caused the MISS CONDUCT to sink. The court awarded the plaintiffs $18,000 in damages despite uncontroverted expert testimony that the MISS CONDUCT was worth only $2,500. This appeal followed. II. Dow contends that the district court erred in finding that the CANDICE L struck the CHERYL LEE and damaged the MISS CONDUCT. Under rule 52(a) of the Federal Rules of Civil Procedure, we may not set aside a district court’s findings of fact unless the findings are “clearly erroneous.” This rule applies to actions in admiralty in the same manner as it applies to other civil actions. Guzman v. Pichirilo, 369 U.S. 698, 702, 82 S.Ct. 1095, 1098, 8 L.Ed.2d 205, 209 (1962); Union Oil Co. of California v. Tug MARY MALLOY, 414 F.2d 669, 670 (5th Cir.1969). Applying the clearly erroneous standard and following rule 52(a)’s requirement of giving “due regard ... to the opportunity of the trial court to judge the credibility of the witnesses,” we conclude that the district court erred in finding that the CANDICE L collided with the CHERYL LEE. All of the evidence presented at trial suggests that no collision occurred. The plaintiffs’ only witness who was at the scene of the alleged collision, Michael Gas-par, testified that he did not see the CANDICE L strike the CHERYL LEE. Both Captain Copous and Ted Terrebonne of the CANDICE L testified that they did not believe their boat had struck or could have struck the CHERYL LEE. Because the CANDICE L was engaged in the “twin screw” maneuver at the time the collision allegedly took place, the crew of the CANDICE L likely would have seen any collision occur. Also, under the section of the Coast Guard report titled “Recommendations for Corrective Safety Measures Pertinent to this Casualty,” Gaspar wrote “inforce [sic] strict wake law.” This suggests that Gaspar did not believe that a collision involving the CANDICE L was responsible for the damage to the MISS CONDUCT. Gaspar’s speculative testimony regarding the collision is the only evidence presented at trial to support the court’s conclusion that a collision occurred. We hold that this evidence is not sufficient to support a finding for the plaintiffs on this issue. III. Dow also contends that the district court clearly erred in finding that the value of the MISS CONDUCT was $18,000. The plaintiffs testified at trial that Ken Nykiel purchased the MISS CONDUCT for a Harley-Davidson motorcycle worth $5,000 and $15,000 cash. The plaintiffs, however, produced no bill of sale reflecting this transaction. See supra note 1. Dow called Robert L. Stickney, an experienced marine surveyor, as an expert witness. Mr. Stickney testified that he had examined the MISS CONDUCT, that the boat was unsuitable for shrimping in Louisiana waters, and that the value of the MISS CONDUCT before she sank was approximately $2,500. Aside from their testimony regarding the MISS CONDUCT’S purchase price, the plaintiffs produced no evidence suggesting that the MISS CONDUCT was worth more than $2,500. Nevertheless, the district court discredited the testimony of Dow’s expert and found that the MISS CONDUCT’S value was $18,000, stating that the motorcycle given in exchange for the boat was worth only $3,000. We agree with Dow that the district court erred in finding the MISS CONDUCT worth $18,000. The correct measure of damages in suits involving injuries to personal property is not the purchase price of the chattel, but the amount necessary to restore the damaged property to the same condition as existed immediately before the injury occurred. City of New Orleans v. American Commercial Lines, Inc., 662 F.2d 1121, 1124 (5th Cir.1981). The plaintiffs presented no evidence regarding the value of the MISS CONDUCT immediately before the alleged collision. Although the district court as a finder of fact was free to discredit the testimony of Dow’s expert, the plaintiffs’ scant evidence did not provide the court with a sufficient basis to conclude that the MISS CONDUCT was worth $18,000 immediately before sinking. IV. Even if the plaintiffs had'presented sufficient evidence to support a verdict in their favor on the collision and valuation issues, the plaintiffs would not be entitled to their judgment because of their entire failure to mitigate damages. The law is well settled that a vessel owner has a duty to minimize damages to the vessel. See, e.g., Southport Transit Co. v. Avondale Marine Ways, 234 F.2d 947, 954 (5th Cir. 1956); Todd Shipyards Corp. v. Turbine Service, Inc., 467 F.Supp. 1257, 1300 n. 26 (E.D.La.1978), aff'd in part & rev’d in part, 674 F.2d 401 (5th Cir.), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982); In re Sincere Navigation Corp., 327 F.Supp. 1024, 1026 (E.D.La.1971). See generally Restatement (Second) of Torts § 918 (1977) (“One injured by the tort of another is not entitled to recover damages for any harm that he could have avoided by the use of reasonable effort or expenditure after the commission of the tort.”). Here, aside from a single attempt to pump water out of the MISS CONDUCT, the plaintiffs made no attempt to keep the boat from sinking, even though the MISS CONDUCT remained afloat for six days after the alleged collision. After the boat sank, the plaintiffs simply allowed the MISS CONDUCT to remain on the bottom of the canal, refusing to pay the approximately $300 a shipyard across the canal would have charged to raise and repair the boat. Although the plaintiffs contend that they had insufficient funds to finance the repair of the MISS CONDUCT, Laura Gaspar’s 1981 federal income tax return indicates that her tattoo business generated a cash flow that would have enabled her to make the repairs. We cannot permit the plaintiffs to recover for damage to the MISS CONDUCT that the plaintiffs could have avoided with a minimal expenditure of time and money. For the foregoing reasons, the judgment of the district court is reversed and judgment is here rendered for the appellant. REVERSED. . Although the issue was not addressed at length at trial, there is apparently some dispute as to whether the plaintiffs actually own the MISS CONDUCT. The plaintiffs testified that Ken Nykiel purchased the MISS CONDUCT from Daniel Tharp in October 1981 for a Harley-Davidson motorcycle worth $5,000 and $15,000 cash, with Laura Gaspar furnishing the motorcycle (which belonged to her "old man” Bama) and $5,000 cash. The plaintiffs, however, produced no bill of sale for this transaction. The plaintiffs later prepared a handwritten document that indicated Laura Gaspar's half interest in the boat. This document bears a notarial seal dated November 10, 1981. Furthermore, although Laura Gaspar claimed to have borrowed some of the cash she used to purchase the MISS CONDUCT and to have taken the rest from her tattoo business, her 1981 federal income tax return shows net losses from her tattoo shops and insufficient income to account for the investment. Nykiel produced no financial records. . In the following exchange at trial, Copous, under examination by the court, "admitted" that he was not absolutely certain at the time that the CANDICE L did not strike the CHERYL LEE: Q. Okay. Captain Copous, I believe you testified in response to Mr. Foster’s question that you did not hit any other boat, is that correct? A. That’s correct, sir. Q. If that is the case why did you send your deckhand back with Mr. Gaspar to inspect— A. That is normal procedure with my company and with myself. I always want to check things out. I could not leave, sir, without finding out something. Q. So, in your own mind then you admitted the possibility anyway that the boat could have been struck, is that correct? A. No, sir, not by me, sir. Q. Not by you? A. No, sir. Q. And the only reason you had for sending the deckhand back to inspect the boats at that time is because it’s company policy? A. Not necessarily company policy. It’s just a good seamanship to make sure that, you know, on my part and — that is the way I am, I just make sure that everything is in order and I don’t— Q. Well, if you were sure it was in order, sir, why did you send the deckhand back? A. Because I wanted to make sure, I don’t know, I do it all the time if I see somebody in trouble I go help them, that is just the way I am, sir. Q. But you sent the deckhand back you said to make sure that none of the vessels were struck, is that correct? A. Yes, sir. Q. So in your own mind you weren’t sure that any of those vessels had been struck? A. In my own mind, sir. I am sure I didn’t hit it. Q. I am talking about at the time of this incident. A. Would you repeat that, sir. Q. At the time of this incident when you sent the deckhand back to inspect these vessels you were not completely sure that these vessels had not been struck, is that correct? A. Not by me, sir. THE COURT: That is not the answer to the question. THE WITNESS: I am sorry, sir. I didn’t quite understand him. THE COURT: I have to think that you understand the question. You sent the deckhand back to check it when the guy came up and complained? THE WITNESS: Yes, sir. THE COURT: So his question to you at that time since you sent the man back to check it you must have not been sure that it didn’t strike it? THE WITNESS: Okay, yes, sir, all right. THE COURT: Were you sure at that time that your vessel did not strike? THE WITNESS: No, sir, I am not sure. First Supplemental Record on Appeal at 22-25. This exchange indicates that Copous satisfactorily answered the plaintiffs’ attorney’s question regarding Copous’ state of mind at the time of the alleged collision. When the court told Copous that he had answered incorrectly, Copous apparently became confused and gave the court the answer he believed the court wanted. This "admission” certainly is not persuasive evidence that a collision occurred and does not support a finding for the plaintiffs on this issue. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
sc_casedisposition	C	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. UNITED STATES v. ACME PROCESS EQUIPMENT CO. No. 86. Argued November 9, 1966. Decided December 5, 1966. Solicitor General Marshall argued the cause for the United States. With him on the brief were Assistant Attorney General Douglas, Richard A. Posner, David L. Rose and Robert V. Zener. Jack Rephan argued the cause for respondent. With him on the brief were Raymond R. Dickey and Bernard Gordon. Mr. Justice Black delivered the opinion of the Court. The respondent, Acme Process Equipment Company, brought this action against the United States in the Court of Claims to recover damages for breach of a contract under which Acme undertook through itself and subcontractors to manufacture 2,751 75-mm. recoilless rifles for about $337 per rifle. Among other defenses, the United States alleged that it had rightfully canceled its contract with Acme because three of Acme's principal employees had accepted compensation for awarding subcontracts in violation of the Anti-Kickback Act set out in part below. The Court of Claims found, as facts, that the kickbacks had been paid as alleged and that this was the ground on which the United States had canceled the prime contract with Acme, but construed the Act as not authorizing the cancellation. 171 Ct. Cl. 324, 347 F. 2d 509. We hold that it does. I. In October 1952, Acme hired Harry Tucker, Jr., and his associate, James Norris, for the purpose of establishing and managing a new division of the company to handle government contracts. Norris was made general manager of production with authority to submit bids, sign government contracts, and award subcontracts. Tucker was placed in charge of sales, government contracts, and expediting subcontract operations. Prior to this time Tucker had entered into a contract with All Metals Industries, Inc., under which he was to receive a commission for all sales to customers, including Acme, procured by him. Tucker’s employment contract with Acme specifically stated that he represented and would continue to represent firms in other lines of business, but Acme did not consult with any of his other clients at the time Tucker was hired. Late in October, Tucker advised his superiors at Acme of the proposed Army contract for rifles, and at Tucker’s suggestion, Acme submitted a bid of $337 per rifle. Since Acme’s bid was the lowest, the Army began negotiations with Acme culminating in the award of the contract in January 1953. The negotiations were handled by Tucker and Norris for Acme. Since it was contemplated that the project would be largely subcontracted, leaving to Acme only the final finishing and assembly of components, the Army expressed a keen interest in Acme’s proposed subcontractors. Not only did it review Acme’s subcontracting plans and require Acme to notify it of changes in those plans during the final stages of negotiation, but the contract eventually awarded required government approval of all subcontracts in excess of $25,000. All Metals, because its proposed subcontract amounted to one-third of the amount of the prime contract, actually participated in the negotiations between Acme and the Army. During this period of negotiation two other developments took place. Tucker obtained agreements from two other potential subcontractors to pay him commissions on any orders he could procure from Acme. Army contracting officers warned Acme’s president, Joshua Epstein, that Tucker was suspected of having engaged in contingent-fee arrangements with other government contractors. Finally, Acme was awarded the prime contract. Although the price was fixed at $337 per rifle, the contract contained a price redetermination clause under which, after 30% of the rifles were delivered, the parties could negotiate the price on past and future shipments upward or downward, with an upper limit of $385 per rifle. Within a few weeks after the prime contract was awarded, All Metals and the other two companies with which Tucker had prior kickback arrangements obtained subcontracts from Acme. Tucker was paid his kickbacks, but, apparently unsatisfied with the amount of his payoff, he got Jack Epstein, the superintendent of the chief Acme plant and the son of Acme’s president and principal stockholder, to join the kickback conspiracy. Together Epstein and Tucker threatened to cancel All Metals’ subcontract unless it paid $25,000 to a dummy corporation owned by Tucker, Norris, and Epstein for fictitious consulting services. All Metals reluctantly acceded to the shakedown. The amount paid to Tucker, Norris, and Epstein was charged to Acme through an increase in the subcontract price. Although they knew that Tucker was representing other companies and had been notified of the Army’s suspicions of Tucker’s involvement in contingent-fee arrangements, other officials of Acme were not aware of the kickback activities of Tucker, Norris, and Epstein until late in 1953. At that time, Acme’s president caused the resignation of the three suspected officials. In 1956 Tucker, Norris, and Epstein were indicted for violation of the then Anti-Kickback Act, 60 Stat. 37. After presentation of the Government’s case, the District Court granted the defendants’ motion for acquittal on the ground that the Act — which at that time embraced only “cost-plus-a-fixed-fee or other cost reimbursable” government contracts — did not apply to Acme’s contract, a fixed-price contract with a provision for limited price redetermination. The court found the defendants’ actions “despicable and morally reprehensible, but unfortunately within the narrow letter of the law.” The court recommended that Congress amend the Anti-Kickback Act “to include as a crime the vicious and immoral type of conduct that has been exhibited in this case.” United States v. Norris, Crim. No. 18535 (D. C. E. D. Pa.), April 14, 1956. The District Court’s opinion did indeed spur the Comptroller General to recommend amendatory legislation and in 1960 the Anti-Kickback Act was amended to apply to all “negotiated contracts.” The civil provision of the amended Act was made retroactive to allow government recovery of kickbacks “whether heretofore or hereafter paid or incurred by the subcontractor.” II. The Anti-Kickback Act, as originally passed in 1946 and as amended in 1960, provides two express sanctions for its violation: (1) fine or imprisonment for one who makes or receives a kickback, and (2) recovery of the kickback by the United States. The Court of Claims held, and it is argued here, that had Congress wanted “to provide the additional remedy of contract annulment, it could have done so” by express language, 171 Ct. Cl., at 343, 347 F. 2d, at 521, and of course it could have. But the fact that it did not see fit to provide for such a remedy by express language does not end the matter. The Anti-Kickback Act not only “prohibited” such payments, but clearly expressed a policy decidedly hostile to them. They were recognized as devices hurtful to the Government’s procurement practices. Extra expenditures to get subcontracts necessarily add to government costs in cost-plus-a-fixed-fee and other cost reimbursable contracts. And this is also true where the prime contract is a negotiated fixed-price contract with a price redetermination clause, such as this prime contract is here. The kickbacks here are passed on to the Government in two stages. The prime contractor rarely submits his bid until after he has tentatively lined up his subcontractors. Indeed, as here, the subcontractors frequently participate in negotiation of the prime contract. The subcontractor’s tentative bid will, of course, reflect the amount he contemplates paying as a kickback, and then his inflated bid will be reflected in the prime contractor’s bid to the Government. At the renegotiation stage, where the prime contractor’s actual cost experience is the basis for price redetermination, any kickbacks, paid by subcontractors and passed on to the prime contractor after the prime contract is awarded, will be passed on to the Government in the form of price redetermination upward. Acme argues, however, that the express provision for recovery of kickbacks is enough to protect the Government from increased costs attributable to them. But this argument rests on two false assumptions. The first is that kickbacks can easily be detected and recovered. This is hardly the case. Kickbacks being made criminal means that they must be made — if at all — in secrecy. Though they necessarily inflate the price to the Government, this inflation is rarely detectable. This is particularly true as regards defense contracts where the products involved are not usually found on the commercial market and where there may not be effective competition. Such contracts are generally negotiated and awarded without formal advertising and competitive bidding, and there is often no opportunity to compare going prices with the price negotiated by the Government. Kickbacks will usually not be discovered, if at all, until after the prime contract is let. The second false assumption underlying Acme’s argument is that the increased cost to the Government is necessarily equal to the amount of the kickback which is recoverable. Of course, a subcontractor who must pay a kickback is likely to include the amount of the kickback in his contract price. But this is not all. A subcontractor who anticipates obtaining a subcontract by virtue of a kickback has little incentive to stint on his cost estimates. Since he plans to obtain the subcontract without regard to the economic merits of his proposal, he will be tempted to inflate that proposal by more than the amount of the kickback. And even if the Government could isolate and recover the inflation attributable to the kickback, it would still be saddled with a subcontractor who, having obtained the job other than on merit, is perhaps entirely unreliable in other ways. This unreliability in turn undermines the security of the prime contractor's performance — a result which the public cannot tolerate, especially where, as here, important defense contracts are involved. III. In United States v. Mississippi Valley Co., 364 U. S. 520, 563, the Court recognized that “a statute frequently implies that a contract is not to be enforced when it arises out of circumstances that would lead enforcement to offend the essential purpose of the enactment.” The Court there approved the cancellation of a government contract for violation of the conflict-of-interest statute on the ground that “the sanction of nonenforcement is consistent with and essential to effectuating the public policy embodied in” the statute. Ibid. We think the same thing can be said about cancellation here. The Court of Claims, in holding that the Anti-Kickback Act does not authorize government cancellation because of its violation, distinguished Mississippi Valley Co. on the ground that the Anti-Kickback Act, unlike the conflict-of-interest statute, provides a civil as well as a criminal remedy. But we do not deem the provision of a civil remedy in the Anti-Kickback Act decisive. Where there is a mere conflict of interest, no concrete monetary rewards may have been received or paid which the Government can recover in a civil action. But where there is commercial bribery in the form of a kickback, there is something specific which the Government can recover, and hence it was quite natural for Congress to provide this express remedy. There is absolutely no indication in the legislative history of the Anti-Kickback Act that Congress, in providing a civil remedy for a more tangible evil, intended to preclude other civil sanctions necessary to effectuate the purpose of the Act. There is likewise no merit to the Court of Claims’ distinction of the Mississippi Valley Co. case on the ground that there the criminal provision of the conflict-of-interest statute was violated whereas here the kickback conspirators were acquitted of violating the Anti-Kickback Act as it existed when the kickbacks occurred, prior to 1960. As we have seen, Acme’s employees were acquitted on the technical ground that Acme’s prime contract was not a “cost reimbursable” contract to which the Act then expressly applied. It is unnecessary for us to decide whether this holding was correct. For whether the kickbacks here contravened the narrow letter of the criminal law, strictly construed, they clearly were violative of the public policy against kickbacks first expressed by Congress in 1946. If Congress then limited the reach of the Act to cost reimbursable contracts, it was only because other types of negotiated contracts were rarely in use then. Though the recent extensive use of other forms of negotiated contracts led Congress in 1960 to amend the Act to cover clearly these types of contracts and to close the technical loophole opened by the acquittal of Acme’s employees, the congressional policy against all kickbacks was not changed. Congress merely reiterated its recognition of the evil and sought to correct the letter of the law to effectuate its longstanding policy. In making the civil remedy of the 1960 Act retroactive, Congress clearly indicated that there had been no basic change in the public policy against kickbacks. This public policy requires that the United States be able to rid itself of a prime contract tainted by kickbacks. Though the kickbacks did not take place until after the prime contract was awarded to Acme, the kickback arrangements existed either at the time the prime contract was awarded or shortly thereafter, and at least one of the kickbacking subcontractors actually participated in the negotiation of the prime contract. These circumstances, as well as the price redetermination feature of the prime contract, produced a great likelihood that the cost of the prime contract to the Government and the reliability of Acme’s performance under it would be directly affected by the fact that the prime contract was to be performed largely through subcontracts obtained by kickbacks. The Court of Claims, in holding that the Act does not authorize government cancellation because of kickbacks, relied heavily on its finding that none of the officers of Acme were aware of the kickbacks. But as previously stated those of Acme’s employees and agents who did know were in the upper echelon of its managers. One of the guilty employees was the general manager of one of the company’s chief plants and the son of Acme’s president, and the two other kickback receivers were in charge of operations, sales, and government contracts. They were the kind of company personnel for whose conduct a corporation is generally held responsible. Cf. Gleason v. Seaboard Air Line R. Co., 278 U. S. 349. Since Acme selected those agents to carry on its business in obtaining and performing government contracts, there is no obvious reason why their conduct in that field should- not be considered as Acme’s conduct, particularly where it touches the all-important subject of kickbacks. And here, as this Court said about the conflict-of-interest statute in United States v. Mississippi Valley Co., supra, at 565, it is appropriate to say that it is the “inherent difficulty in detecting corruption which requires that contracts made in violation of . . . [the Anti-Kickback Act] be held unenforceable, even though the party seeking enforcement ostensibly appears entirely innocent.” The judgment of the Court of Claims is reversed with directions to sustain the United States’ right to cancel the prime contract. It is so ordered. Section 1 of the Anti-Kickback Act, 60 Stat. 37, as amended, 74 Stat. 740, 41 Ü. S. C. § 51, provides in pertinent part: “That the payment of any fee, commission, or compensation of any kind or the granting of any gift or gratuity of any kind, either directly or indirectly, by or on behalf of a subcontractor, . . . (1) to any officer, partner, employee, or agent of a prime contractor holding a negotiated contract entered into by any department, agency, or establishment of the United States for the furnishing of supplies, materials, equipment or services of any kind whatsoever ... as an inducement for the award of a subcontract or order from the prime contractor ... is hereby prohibited. The amount of any such fee, commission, or compensation or the cost or expense of any such gratuity or gift, whether heretofore or hereafter paid or incurred by the subcontractor, shall not be charged, either directly or indirectly, as a part of the contract price charged by the subcontractor to the prime contractor .... The amount of any such fee, cost, or expense shall be recoverable on behalf of the United States from the subcontractor or the recipient thereof by setoff . . . or by an action in an appropriate court of the United States. . . .” Section 4 of the Act, 41 U. S. C. §54, provides: “Any person who shall knowingly, directly or indirectly, make or receive any such prohibited payment shall be fined not more than $10,000 or be imprisoned for not more than two years, or both.” Shortly after the prime contract was awarded, two other companies paid Tucker’s father and Norris’ assistant kickbacks for obtaining subcontracts from Acme. This made a total of five subcontracts obtained through kickbacks. This was the original Anti-Kickback Act passed by Congress in 1946. It expressly prohibited kickbacks only to employees of “a prime contractor holding a contract ... on a cost-plus-a-fixed-fee or other cost reimbursable basis . . . ." See generally H. R. Rep. No. 1880, S. Rep. No. 1585, 86th Cong., 2d Sess. The Act, as amended, is set out in part in note 1, supra. This is precisely what happened here before the Government canceled Acme’s contract. Acme in 1953 submitted cost data for price redetermination purposes that included the charges of the five subcontractors which had paid kickbacks to Acme’s employees. These subcontracting charges in turn included the amounts paid as kickbacks. Had the kickbacks not been discovered and the contract not been canceled, Acme would have been able to use these costs to renegotiate the price per rifle from $337 to $385. Such price redetermination could have cost the Government about $132,000 more on the entire contract. See S. Rep. No. 1585, supra, n. 4, at 3. See United States v. Barnard, 255 F. 2d 583, cert. denied, 358 U. S. 919, holding that a fixed-price contract with provision for unlimited price redetermination is a “cost reimbursable” contract. 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_appnatpr	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of 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. 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 total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_appel1_7_5	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). Jackie RIMMER, Appellant, v. The FAYETTEVILLE POLICE DEPT., Appellee. No. 75-1913. United States Court of Appeals, Fourth Circuit. Argued Jan. 13, 1977. Decided Dec. 20, 1977. John Boddie, Third Year Law Student (Barry Nakell, University of North Carolina School of Law, Chapel Hill, N. C., on brief), for appellant. Jacob L. Safron, Sp. Deputy Atty. Gen., Raleigh, N. C. (Rufus L. Edmisten, Atty. Gen. of N. C., Raleigh, N. C., on brief), for appellee. Before HAYNSWORTH, Chief Judge, FIELD, Senior Circuit Judge, and WYZANSKI , Senior District Judge. For the District of Massachusetts, Sitting by Designation. HAYNSWORTH, Chief Judge: Rimmer filed an action under 42 U.S.C.A. § 1983 seeking damages and injunctive relief for an alleged denial of constitutional rights during the course of a trial on criminal charges in a state court. At the time of filing he had not completed exhaustion of his state court remedies, but he did complete exhaustion of those remedies after the district court dismissed this complaint. The state court judgment of conviction, however, still stands unreversed and unvacated. We conclude that the doctrine of collateral estoppel forecloses assertion of Rimmer’s claims and that the district court properly dismissed the complaint. Rimmer was involved in collisions with two other automobiles in which personal injuries and property damage were suffered. Rimmer fled the scene. A security guard, employed in a nearby establishment, gave chase, but Rimmer evaded him after striking the guard and cutting him with a knife. Several days later, Rimmer went to the police station to reclaim his automobile. The security guard was present and identified Rimmer as the fleeing driver he had chased. At the criminal trial on the charges of fleeing the scene of the collision without having given aid to the injured, the security guard identified Rimmer as the fleeing motorist. Rimmer had objected to the testimony of the guard as the product of an impermissibly suggestive confrontation, the meeting in the police station. His objection was overruled, and that action of the trial judge was affirmed by the North Carolina Court of Appeals. The Supreme Court of North Carolina denied certiorari. On the same day Rimmer filed his petition for a writ of certiorari in the Supreme Court of North Carolina, he filed this action under § 1983 seeking damages and a mandatory injunction to require the defendants to seek habeas corpus relief in Rimmer’s behalf. The sole basis of the claim was that he suffered a federal constitutional deprivation when the state court received the identification testimony of the security guard. Though it is clear that he claimed that the conviction was invalid, he did not seek release on a writ of habeas corpus. I. Since it was clear that Rimmer was claiming that his conviction was invalid, the district court might have treated the complaint as one for habeas relief as well as a complaint for damages under § 1983, but it did not. In any event, however, the district court is not to be faulted for what it did. At the time of filing and of the prompt dismissal, Rimmer had not exhausted his state remedies, and, on that account, appears to have studiously avoided requesting habeas relief. Moreover, even if the district court had treated the complaint as implicitly requesting such relief, it would have been subject to dismissal because the state court remedies had not then been exhausted. II. When an action under the Civil Rights Act calls into question the validity of the state court conviction, it so closely resembles an action for a federal writ of habeas corpus that a requirement of exhaustion of available state remedies may seem reasonable. Some courts have imposed such a requirement where, as here, the judgment in the civil rights case will necessarily determine the validity or invalidity of the state court conviction. If there is a requirement of exhaustion of available state remedies in such cases, it runs counter to the general intention of the Congress in 1871 in enacting the Civil Rights Act. That Congress was distrustful of state courts in lending protection to civil rights and wished to provide alternative federal remedies. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), and Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), involving challenges to the conduct of prison officials, suggest there is no requirement of exhaustion of state remedies, even when actions bring into question regulations and practices of substantial interest to the state. One might infer from those decisions a likelihood that the Supreme Court would not burden a civil rights action with a state court remedies exhaustion requirement, even in a case such as this where the validity of the state court conviction is called into question. On the other hand, a much later congress, when enacting what is now 28 U.S.C.A. § 2254, explicitly imposed an exhaustion of state remedies requirement before federal habeas corpus relief may be sought. If a state prisoner is to languish in prison while exhausting his state judicial remedies before he has access to a federal court for habeas relief, there would seem to be little reason not to put him through the same process when he challenges the validity of his state court conviction though he seeks only a money award rather than a writ of habeas corpus. We need not answer the question of exhaustion of state remedies, however, for here, even if state remedies had been exhausted at the time of filing, the court would be required to hold, as it did, that the issue was precluded by the standing state court conviction. III. As noted above, Rimmer fully litigated the question he now tenders in the course of his criminal trial and subsequent appellate review. He consistently lost under circumstances in which his very freedom turned upon the question of a violation of his constitutional rights. Over eleven years ago in Moore v. United States, 360 F.2d 353 (4th Cir. 1966), we held that a taxpayer convicted of tax fraud could not relitigate the question of his fraud in a subsequent civil suit for the collection of fraud penalties for the same years which were involved in the criminal prosecution. There is nothing new in the concept that full litigation of an issue in a criminal proceeding forecloses subsequent relitigation of the issue in a civil proceeding when resolution of the issue was essential to the conviction. With one caveat to be mentioned, the fact that Rimmer’s subsequent civil action was brought under the Civil Rights Act warrants no departure from the general rule. We readily adopt the reasoning of the First Circuit in Mastracchio v. Ricci, 498 F.2d 1257 (1974), and of Judge Tjoflat in Part IV of his opinion dissenting in part in Meadows v. Evans, 550 F.2d 345 (5th Cir. 1977). There is no need here to repeat what has been persuasively said there. Judge Tjoflat wrote for himself and three others in dissent, while Judge Ainsworth, in a separate opinion, expressed agreement with him. The majority of the judges in the Fifth Circuit, however, did not address the question. It simply summarily affirmed a panel decision holding that exhaustion of state remedies was requisite. There is substantial unanimity among the cases holding the rules of issue preclusion to be applicable in civil rights cases. Indeed, the Supreme Court has implied that the “normal principles of res judicata would apply.” Nor do we see any practical problem in the application of the rule in this context as long as the state prisoner-plaintiff has, or has had, access to a federal forum for the determination of his federal constitutional claims. Most state court prisoners do have such a right of access through 28 U.S.C.A. § 2254, but there are exceptions. Under Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), state court prisoners complaining of searches and seizures would usually have no such access to a federal forum. Others may be unable to meet the “in custody” requirement of § 2254, and never could have met it. Application of the rule of preclusion by reason of a state court conviction in those cases, therefore, may deny a state court prisoner access to a federal forum entirely. Since it was the general intention of the Civil Rights Act to provide access to a federal forum for the adjudication of federal constitutional rights, the Civil Rights Act itself may present a bar to foreclosure of the issue in those cases. This problem has been noted by others, including Judge Goldberg in his separate opinion in Meadows v. Evans, 550 F.2d 345 (5th Cir. 1977); by Judge Coffin in Mastracchio v. Ricci, 498 F.2d 1257, 1260 n. 2 (1st Cir. 1974); by Judge Merhige in Moran v. Mitchell, 354 F.Supp. 86 (E.D.Va. 1973). When, after exhaustion of state court remedies, a prisoner succeeds in an action under § 2254, he is the ultimate victor. While the state court judgment is neither reversed nor vacated, the prisoner is released and the state court judgment authoritatively declared void. Thereafter, the state court judgment should have no preclu-sive effect. The problem we foresee exists only in those cases in which there is not and never has been a right of access to a federal forum for adjudication of the federal constitutional question determined in the course of the state court proceedings. We are not met with the problem in this case, however. As the others who have mentioned it, we are content to notice its presence in some future case and to confine our present holding to those cases in which the state prisoner-plaintiff has or, for a reasonable time, had a right of access to a federal forum for the adjudication of his federal claim. AFFIRMED. . We use the term “collateral estoppel” to denote the doctrine described as “issue preclusion” in the Restatement (Second) of Judgments § 68, Comment b (Tent. Draft No. 1, 1973), and thus to also include the less common term of “direct estoppel.” . State v. Rimmer, 25 N.C.App. 637, 214 S.E.2d 225 (1975). . State v. Rimmer, 288 N.C. 250, 217 S.E.2d 674 (1975). . Guerro v. Mulhearn, 498 F.2d 1249 (1st Cir. 1974); Mastracchio v. Ricci, 498 F.2d 1257 (1st Cir. 1974); cert, denied, 420 U.S. 909, 95 S.Ct. 828, 42 L.Ed.2d 838 (1975); Fulford v. Klein, 529 F.2d 377 (5th Cir. 1976), aff’d en banc, 550 F.2d 342 (5th Cir. 1977); Meadows v. Evans, 529 F.2d 385 (5th Cir. 1976), aff'd en banc, 550 F.2d 345 (5th Cir. 1977); Watson v. Briscoe, 554 F.2d 650 (5th Cir. 1977). . See Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). . Wolff v. McDonnell, 418 U.S. 539, 554 n. 12, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974). Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
songer_casetyp1_7-3-2	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - torts". Kenneth LUNDY, Plaintiff-Appellant, v. UNION CARBIDE CORPORATION, a New York corporation, and Harrisons & Crosfield (Pacific), Inc., a California corporation, Defendant-Appellee. No. 81-3221. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 8, 1982. Decided Dec. 28, 1982. Kathryn Logan, Green & Logan, Salem, Or., for plaintiff-appellant. Steven K. Blaekhurst, Lindsay, Hart, Neil & Weigler, Paul R. Duden, Tooze, Kerr, Marshall & Shenker, Portland, Or., for defendant-appellee. Before CHOY, TANG and BOOCHEVER, Circuit Judges. CHOY, Circuit Judge: Plaintiff Kenneth Lundy appeals a summary judgment dismissing his diversity action against Union Carbide Corporation and Harrisons & Crosfield, Inc., for injuries allegedly sustained while working with asbestos products that were manufactured and distributed by the defendants. The sole issue before us is whether the district court acted properly in finding that Lundy’s action was barred by Oregon’s two-year statute of limitation. Because Lundy presented evidence showing a genuine issue of material fact concerning the time the action accrued, we reverse the judgment and remand the cause for trial. Lundy worked for the Borden Chemical Company in Springfield, Oregon, between 1964 and 1977. The complaint alleged that Lundy contracted asbestosis during this time due to his constant on-the-job exposure to asbestos manufactured by Union Carbide Corporation and distributed by Harrisons & Crosfield, Inc. Lundy began having some chest pain and breathing difficulty in January 1975. An X ray taken at the time revealed some “pleural density” in the chest. . Several months later, Lundy was hospitalized for respiratory problems, and some fluid had to be drawn off his chest cavity. Dr. Vitums, a chest specialist, remarked at the time that Lundy had some pleural scarring not present before. Lundy was then treated for tuberculosis, as he had reacted positively to a skin test. Dr. Vitums saw Lundy again on October 27, 1975. According to the doctor’s report, Lundy asked then whether there could be a relationship between the pleural scarring and his exposure to asbestos 5 to 10 years previously. However, the doctor apparently felt that Lundy’s problems could have been due to smoking and exposure to formaldehyde fumes. In December 1975, Lundy retained an attorney to investigate the feasibility of filing a claim for occupational disease. The attorney wrote to Dr. Vitums requesting a diagnosis of Lundy’s disease. Dr. Vitums responded that exposure to asbestos could cause pleural scarring but that such a connection could not be determined without a pleural or lung biopsy. The doctor recommended against a biopsy, however, because of Lundy’s near-normal pulmonary functioning and the “lack of definite documentation of asbestosis.” Dr. Vitums concluded by noting that Lundy’s symptoms could reflect “numerous causes.” The attorney then wrote to Lundy, stating that the doctor’s report did not establish the cause-effect relationship necessary to support a claim. The letter indicated that a copy of Dr. Vitums’ report was enclosed, but Lundy denies having received it. Lundy further denies having heard from either the attorney or Dr. Vitums that the pleural scarring could have been caused by his exposure to asbestos. Lundy claims that the first time he became seriously aware of asbestos-related medieal problems was after a diagnosis by Dr. Dalgren in September 1977 that Lundy might have been suffering from ammonia and/or asbestos disease. In January 1978 the diagnosis was refined to asbestosis only. Lundy filed his complaint in July 1979. The sole issue in this appeal is whether the district court properly applied the governing meaning of the word “accrued” in Oregon’s two-year statute of limitation to the facts of this case in granting a summary judgment dismissing the plaintiff’s case on the limitation ground. Although this is a diversity action and Oregon’s statute of limitation applies, the federal rules govern the use of summary judgment. Bieghler v. Kleppe, 633 F.2d 531, 533 (9th Cir.1980). Fed.R.Civ.P. 56(c) provides that summary judgment is proper if no genuine issue concerning any material fact exists and the moving party is entitled to judgment as a matter of law. Once the moving party has presented evidence that would entitle it to a directed verdict at trial, the burden shifts to the opposing party to present facts controverting the moving party’s evidence. Fed.R.Civ.P. 56(e); British Airways Board v. Boeing Co., 585 F.2d 946, 951 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979). In deciding whether a genuine issue of fact exists, the court must view the evidence in the light most favorable to the party opposing the motion. Poller v. CBS, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); Bieghler v. Kleppe, 633 F.2d 531, 533 (9th Cir.1980). In granting summary judgment for the defendants, the district court found language from the Oregon Supreme Court’s decision in Schiele v. Hobart Corp., 284 Or. 483, 587 P.2d 1010 (1978), to be dispositive. In that case, the Oregon Supreme Court held that a claim for infliction of occupational disease begins to accrue within the meaning of Oregon’s statute of limitation “when a reasonably prudent person associates his symptoms with a serious or permanent condition and at the same time perceives the role which the defendant has played in inducing that condition.” Id. at 489, 587 P.2d at 1014. Applying the Schiele language to the facts of this case, the district court then concluded that Lundy’s claim must be barred as a matter of law, since the limitation period on Lundy’s claim began to run in December 1975 when Lundy “knew that he had a severe permanent lung condition” and “knew or should have known that asbestos was one of the probable causes of that condition.” We find that the district court misapplied the relevant accrual rule of Schiele to the facts of this case. Lundy sued for permanent injury due to asbestosis. It seems to us that Lundy presented sufficient evidence to permit a trial on when he knew he had a permanent injury due to asbestosis caused by the defendant. We disagree with the district court’s finding that Lundy knew in December 1975 he had a “severe permanent lung condition.” The district court based its finding principally on the following excerpts from Lundy’s deposition testimony pertaining to the time he first experienced symptoms in January 1975: Q. They did an X-ray, didn’t they? A. They did several of them. Q. Right. And they found you had some type of an abnormality in the lower two-thirds on the right side of your chest, what the radiologist calls apparent pleural thickening. Is that what you’re talking about? A. I’m not sure what the language was at that time. I wouldn’t — I have to assume that this is what — what was written. I don’t recall it from memory. Q. I’m not asking you about the technical thing. A. Pleural density in the lower two-thirds of the right side of the chest. Areas of apparent pleural thickening are demonstrated. I think this is — I have no reason to doubt that’s what it is. Q. And that’s when you became aware that you had some permanent changes in your chest X-ray that were showing up, right? A. That’s the first I knew that — in fact I think I asked him if it was a permanent thing and I think they informed me that it was some sort of a — wasn’t something that was going away next week. We feel that the district court interpreted Lundy’s testimony out of context in asserting it as the basis for charging Lundy with knowledge of the permanency of his condition in December 1975. Nothing in the record remotely suggests that Lundy was apprised during the relevant period that his condition was permanent. To the contrary, Dr. Vitums’ medical report in October 1975 indicated that the plaintiff’s condition “should improve without medication.” Under these circumstances, it cannot be said as a matter of law that Lundy knew he had a permanent condition at the time fixed by the district court. Even if the plaintiff could be charged with knowledge of the permanency of his condition in December 1975, the summary judgment must be reversed for another reason. The record amply reflects the possibility that Lundy did not know what was causing his illness. Lundy had promptly sought medical attention from the beginning. By December 1975, after seeing several doctors, all that Lundy knew with any degree of certainty was that his chest X rays revealed some pleural scarring that the doctors attributed to tuberculosis or pneumonia, among other causes. Lundy himself raised the possibility that the scarring could have resulted from his exposure to asbestos, but Dr. Vitums apparently did not think this probable. Viewed in the light most favorable to Lundy, therefore, the evidence supports an inference that in December 1975 Lundy had no real knowledge of the cause of his medical problems. We therefore hold that the district court’s grant of summary judgment based on the limitation ground was improper in view of the factual dispute as to whether Lundy knew or should have known in December 1975 that his permanent condition was caused by asbestos. See Williams v. Bor den, Inc., 637 F.2d 731, 738 (10th Cir.1980) (“where the issue of limitations involves determinations [of when a claim begins to accrue], summary judgment cannot be granted unless the evidence is so clear that there is no genuine factual issue and the determinations can be made as a matter of law”). Reversed and Remanded. . The defendants also argue that Lundy’s notice of appeal was not timely filed. This court first construed the late filing as a motion for extension of time. The defendants argued that this was improper in light of Pettibone v. Cupp, 666 F.2d 333, 335 (9th Cir.1981). On February 25, 1982, the motions panel reconsidered its original order. It then withdrew the first order and entered a second order holding that the arrival of Lundy’s notice of appeal at the former address for the district court clerk within the specified time period constituted timely receipt by the district court and vests this court with jurisdiction over the appeal under Aldabe v. Aldabe, 616 F.2d 1089, 1091 (9th Cir.1980). Because the record supports the motions panel’s determination that the receipt at the former address should be considered constructive receipt, we decline to reconsider the motions panel order. . Borden Chemical Company is not a defendant in this action. . Dr. Vitums’ medical log for that date states in relevant part: He relates some new history and the possibility of these chest x-ray changes, i.e., that of some asbestos exposure five to ten years ago in his work. It was used as a catalyst. He refuses chest x-ray follow-up today. The second problem is that of emphysema and exposure to formaldehyde fumes at his work. He apparently has stopped smoking now, at least this is what he tells me. In the last week the formaldehyde fume exposure has caused him more shortness of breath and wheezing. Indeed today there is the prolongation of the expiratory flow with end expiratory wheezing heard. If indeed this patient has stopped smoking he should improve without any medication just due to discontinuance of exposure to the formaldehyde fumes. . The applicable Oregon statute of limitation states, in part, “[A]ctions shall only be commenced within the periods prescribed in this chapter, after the cause of action shall have accrued,” and “[a]n action ... for any injury to the person . .. shall be commenced within two years.” Or.Rev.Stat. §§ 12.010, 12.110(1) (1981). . Similar interpretations of the word “accrued” in Oregon’s statute of limitation have been applied to cases involving other tort claims. See, e.g., Dowers Farms, Inc. v. Lake County, 288 Or. 669, 681, 607 P.2d 1361, 1367 (1980) (action under Tort Claims Act); United States Nat'l Bank of Oregon v. Davies, 274 Or. 663, 669-70, 548 P.2d 966, 968-70 (1976) (legal malpractice); Berry v. Branner, 245 Or. 307, 315-16, 421 P.2d 996, 999-1000 (1966) (medical malpractice). . Although our conclusion here rests on the federal rules governing the use of summary judgment, it is also very much in spirit with Schiele. The plaintiff in that case suffered for two years before she was diagnosed as suffering from exposure to polyvinyl chloride fumes on the job. 284 Or. at 485-86, 587 P.2d at 1011-12. Nearly two years after that diagnosis, she filed suit. Id. at 486, 587 P.2d at 1012. Nevertheless, the Oregon Supreme Court ruled that summary judgment was improper in that case because it could not be said “as a matter of law that a reasonably prudent person would have apprehended more than two years prior to the commencement of plaintiffs action that she was being seriously or permanently injured.” Id. at 491, 587 P.2d at 1014. Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"? A. motor vehicle B. airplane C. product liability D. federal employer liability; injuries to dockworkers and longshoremen E. other government tort liability F. workers compensation G. medical malpractice H. other personal injury I. fraud J. other property damage K. other torts Answer:
sc_casedisposition	D	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. LINGLE, GOVERNOR OF HAWAII, et al. v. CHEVRON U. S. A. INC. No. 04-163. Argued February 22, 2005 Decided May 23, 2005 O’Connor, J., delivered the opinion for a unanimous Court. Kennedy, J., filed a concurring opinion, post, p. 548. Mark J. Bennett, Attorney General of Hawaii, argued the cause for petitioners. With him on the briefs were Michael L. Meaney, Deputy Attorney General, Seth P. Waxman, Paul R. Q. Wolf son, Robert G. Dreher, and John D. Echeverría. Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae in support of petitioners. With him on the brief were Acting Solicitor General Clement, Assistant Attorney General Keisler, Malcolm L. Stewart, Mark B. Stern, and Sharon Swingle. Craig E. Stewart argued the cause for respondent. With him on the brief were Donald B. Ayer, Michael S. Fried, and Louis K. Fisher. Briefs of amici curiae urging reversal were filed for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Caitlin J. Halligan, Solicitor General, Daniel Smirlock, Deputy Solicitor General, and John J. Sipos, Assistant Attorney General, by Bill Lockyer, Attorney General of California, Manuel Medeiros, State Solicitor General, Thomas Greene, Chief Assistant Attorney General, J. Matthew Rodriquez, Senior Assistant Attorney General, and Daniel L. Siegel, Supervising Deputy Attorney General, by William Vázquez Irizarry, Secretary of Justice of Puerto Rico, and by the Attorneys General for their respective jurisdictions as follows: Gregg D. Renkes of Alaska, Fiti Sunia of American Samoa, Terry Goddard of Arizona, Ken Salazar of Colorado, Richard Blu-menthal of Connecticut, M. Jane Brady of Delaware, Douglas B. Moylan of Guam, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Thomas J. Miller of Iowa, Gregory D. Stumbo of Kentucky, G. Steven Rowe of Maine, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota, Jim Hood of Mississippi, Mike McGrath of Montana, Peter C. Harvey of New Jersey, Pamela Brown of the Northern Mariana Islands, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Gerald J. Pappert of Pennsylvania, Patrick Lynch of Rhode Island, Paul G. Summers of Tennessee, Mark L. Shurtlejf of Utah, William H. Sorrell of Vermont, Iver A. Stridiron of the Virgin Islands, Christine 0. Gregoire of Washington, and Darrell V. McGraw, Jr., of West Virginia; for the American Planning Association by Edward J. Sullivan; for the League of California Cities by Andrew W. Schwartz; for the National Conference of State Legislatures et al. by Richard Ruda, Timothy J. Dow-ling, and Jason C. Rylander; and for the Service Station Dealers of America by Peter H. Gunst. Briefs of amici curiae urging affirmance were filed for the Action Apartment Association, Inc., by Rosario Perry; for the Cato Institute by Richard A. Epstein; for Equity Lifestyle Properties, Inc., et al. by David J. Bradford, David W. DeBruin, and Terri L. Mascherin; for Manufactured Housing Communities of Arizona, Inc., by Michael A Parham; for the National Association of Home Builders by Michael M. Berger and Duane J. Desiderio; for the Pacific Legal Foundation et al. by R. S. Rad-ford and Nancie G. Marzulla; for the Small Property Owners of San Francisco Institute et al. by Paul F. Utrecht; and for Charles W. Coupe et al. by Kenneth R. Kupchak and Robert H. Thomas. Justice O’Connor delivered the opinion of the Court. On occasion, a would-be doctrinal rule or test finds its way into our case law through simple repetition of a phrase— however fortuitously coined. A quarter century ago, in Agins v. City of Tiburon, 447 U. S. 255 (1980), the Court declared that government regulation of private property “effects a taking if [such regulation] does not substantially advance legitimate state interests____” Id., at 260. Through reiteration in a half dozen or so decisions since Agins, this language has been ensconced in our Fifth Amendment takings jurisprudence. See Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U. S. 687, 704 (1999) (citing cases). In the case before us, the lower courts applied Agins’ “substantially advances” formula to strike down a Hawaii statute that limits the rent that oil companies may charge to dealers who lease service stations owned by the companies. The lower courts held that the rent cap effects an uncompensated taking of private property in violation of the Fifth and Fourteenth Amendments because it does not substantially advance Hawaii’s asserted interest in controlling retail gasoline prices. This case requires us to decide whether the “substantially advances” formula announced in Agins is an appropriate test for determining whether a regulation effects a Fifth Amendment taking. We conclude that it is not. I The State of Hawaii, whose territory comprises an archipelago of 132 islands clustered in the midst of the Pacific Ocean, is located over 1,600 miles from the U. S. mainland and ranks among the least populous of the 50 States. Because of Hawaii’s small size and geographic isolation, its wholesale market for oil products is highly concentrated. When this lawsuit began in 1997, only two refineries and six gasoline wholesalers were doing business in the State. As of that time, respondent Chevron U. S. A. Inc. was the largest refiner and marketer of gasoline in Hawaii: It controlled 60 percent of the market for gasoline produced or refined in-state and 30 percent of the wholesale market on the State’s most populous island, Oahu. Gasoline is sold at retail in Hawaii from about 300 different service stations. About half of these stations are leased from oil companies by independent lessee-dealers, another 75 or so are owned and operated by “open” dealers, and the remainder are owned and operated by the oil companies. Chevron sells most of its product through 64 independent lessee-dealer stations. In a typical lessee-dealer arrangement, Chevron buys or leases land from a third party, builds a service station, and then leases the station to a dealer on a turnkey basis. Chevron charges the lessee-dealer a monthly rent, defined as a percentage of the dealer’s margin on retail sales of gasoline and other goods. In addition, Chevron requires the lessee-dealer to enter into a supply contract, under which the dealer agrees to purchase from Chevron whatever is necessary to satisfy demand at the station for Chevron’s product. Chevron unilaterally sets the wholesale price of its product. The Hawaii Legislature enacted Act 257 in June 1997, apparently in response to concerns about the effects of market concentration on retail gasoline prices. See 1997 Haw. Sess. Laws no. 257, § 1. The statute seeks to protect independent dealers by imposing certain restrictions on the ownership and leasing of service stations by oil companies. It prohibits oil companies from converting existing lessee-dealer stations to company-operated stations and from locating new company-operated stations in close proximity to existing dealer-operated stations. Haw. Rev. Stat. §§486H-10.4(a), (b) (1998 Cum. Supp.). More importantly for present purposes, Act 257 limits the amount of rent that an oil company may charge a lessee-dealer to 15 percent of the dealer’s gross profits from gasoline sales plus 15 percent of gross sales of products other than gasoline. § 486H-10.4(c). Thirty days after Act 257’s enactment, Chevron sued the Governor and Attorney General of Hawaii in their official capacities (collectively Hawaii) in the United States District Court for the District of Hawaii, raising several federal constitutional challenges to the statute. As pertinent here, Chevron claimed that the statute’s rent cap provision, on its face, effected a taking of Chevron’s property in violation of the Fifth and Fourteenth Amendments. Chevron sought a declaration to this effect as well as an injunction against the application of the rent cap to its stations. Chevron swiftly moved for summary judgment on its takings claim, arguing that the rent cap does not substantially advance any legitimate government interest. Hawaii filed a cross-motion for summary judgment on all of Chevron’s claims. To facilitate resolution of the summary judgment motions, the parties jointly stipulated to certain relevant facts. They agreed that Act 257 reduces by about $207,000 per year the aggregate rent that Chevron would otherwise charge on 11 of its 64 lessee-dealer stations. On the other hand, the statute allows Chevron to collect more rent than it would otherwise charge at its remaining 53 lessee-dealer stations, such that Chevron could increase its overall rental income from all 64 stations by nearly $1.1 million per year. The parties further stipulated that, over the past 20 years, Chevron has not fully recovered the costs of maintaining lessee-dealer stations in any State through rent alone. Rather, the company recoups its expenses through a combination of rent and product sales. Finally, the joint • stipulation states that Chevron has earned in the past, and anticipates that it will continue to earn under Act 257, a return on its investment in lessee-dealer stations in Hawaii that satisfies any constitutional standard. The District Court granted summary judgment to Chevron, holding that “Act 257 fails to substantially advance a legitimate state interest, and as such, effects an unconstitutional taking in violation of the Fifth and Fourteenth Amendments.” Chevron U. S. A. Inc. v. Cayetano, 57 F. Supp. 2d 1003, 1014 (1998). The District Court accepted Hawaii’s argument that the rent cap was intended to prevent concentration of the retail gasoline market — and, more importantly, resultant high prices for consumers — by maintaining the viability of independent lessee-dealers. Id,., at 1009-1010. The court concluded that the statute would not substantially advance this interest, however, because it would not actually reduce lessee-dealers’ costs or retail prices. It found that the rent cap would allow incumbent lessee-dealers, upon transferring occupancy rights to a new lessee, to charge the incoming lessee a premium reflecting the value of the rent reduction. Accordingly, the District Court reasoned, the incoming lessee’s overall expenses would be the same as in the absence of the rent cap, so there would be no savings to pass along to consumers. Id., at 1010-1012. Nor would incumbent lessees benefit from the rent cap, the court found, because the oil company lessors would unilaterally raise wholesale fuel prices in order to offset the reduction in their rental income. Id., at 1012-1014. On appeal, a divided panel of the Court of Appeals for the Ninth Circuit held that the District Court had applied the correct legal standard to Chevron’s takings claim. Chevron U. S. A. Inc. v. Cayetano, 224 F. 3d 1030, 1033-1037 (2000). The Court of Appeals vacated the grant of summary judgment, however, on the ground that a genuine issue of material fact remained as to whether the Act would benefit consumers. Id., at 1037-1042. Judge William Fletcher concurred in the judgment, maintaining that the “reasonableness” standard applicable to “ordinary rent and price control laws” should instead govern Chevron’s claim. Id., at 1048. On remand, the District Court entered judgment for Chevron after a 1-day bench trial in which Chevron and Hawaii called competing expert witnesses (both economists) to testify. 198 F. Supp. 2d 1182 (2002). Finding Chevron’s expert witness to be “more persuasive” than the State’s expert, the District Court once again concluded that oil companies would raise wholesale gasoline prices to offset any rent reduction required by Act 257, and that the result would be an increase in retail gasoline prices. Id., at 1187-1189. Even if the rent cap did reduce lessee-dealers’ costs, the court found, they would not pass on any savings to consumers. Id., at 1189. The court went on to reiterate its determination that Act 257 would enable incumbent lessee-dealers to sell their leaseholds at a premium, such that incoming lessees would not obtain any of the benefits of the rent cap. Id., at 1189-1190. And while it acknowledged that the rent cap could preclude oil companies from constructively evicting dealers through excessive rents, the court found no evidence that Chevron or any other oil company would attempt to charge such rents in the absence of the cap. Id., at 1191. Finally, the court concluded that Act 257 would in fact decrease the number of lessee-dealer stations because the rent cap would discourage oil companies from building such stations. Id., at 1191-1192. Based on these findings, the District Court held that “Act 257 effected] an unconstitutional regulatory taking given its failure to substantially advance any legitimate state interest.” Id., at 1193. The Ninth Circuit affirmed, holding that its decision in the prior appeal barred Hawaii from challenging the application of the “substantially advances” test to Chevron’s takings claim or from arguing for a more deferential standard of review. 363 F. 3d 846, 849-855 (2004). The panel majority went on to reject Hawaii’s challenge to the application of the standard to the facts of the case. Id., at 855-858. Judge Fletcher dissented, renewing his contention that Act 257 should not be reviewed under the “substantially advances” standard. Id., at 859-861. We granted certiorari, 543 U. S. 924 (2004), and now reverse. II A The Takings Clause of the Fifth Amendment, made applicable to the States through the Fourteenth, see Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897), provides that private property shall not “be taken for public use, without just compensation.” As its text makes plain, the Takings Clause “does not prohibit the taking of private property, but instead places a condition on the exercise of that power.” First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 314 (1987). In other words, it “is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.” Id., at 315 (emphasis in original). While scholars have offered various justifications for this regime, we have emphasized its role in “bar[ring] Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U. S. 40, 49 (1960); see also Monongahela Nav. Co. v. United States, 148 U. S. 312, 325 (1893). The paradigmatic taking requiring just compensation is a direct government appropriation or physical invasion of private property. See, e. g., United States v. Pewee Coal Co., 341 U. S. 114 (1951) (Government’s seizure and operation of a coal mine to prevent a national strike of coal miners effected a taking); United States v. General Motors Corp., 323 U. S. 373 (1945) (Government’s occupation of private warehouse effected a taking). Indeed, until the Court’s watershed decision in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), “it was generally thought that the Takings Clause reached only a ‘direct appropriation’ of property, or the functional equivalent of a ‘practical ouster of [the owner’s] possession.’” Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1014 (1992) (citations omitted and emphasis added; brackets in original); see also id., at 1028, n. 15 (“[E]arly constitutional theorists did not believe the Takings Clause embraced regulations of property at all”). Beginning with Mahon, however, the Court recognized that government regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster — and that such “regulatory takings” may be compensable under the Fifth Amendment. In Justice Holmes’ storied but cryptic formulation, “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” 260 U. S., at 415. The rub, of course, has been — and remains — how to discern how far is “too far.” In answering that question, we must remain cognizant that “government regulation — by definition — involves the adjustment of rights for the' public good,” Andrus v. Allard, 444 U. S. 51, 65 (1979), and that “Government hardly could go on if to some extent values incident to property could not.be diminished without paying for every such change in the general law,” Mahon, supra, at 413. Our precedents stake out two categories of regulatory action that generally will be deemed per se takings for Fifth Amendment purposes. First, where government requires an owner to suffer a permanent physical invasion of her property — however minor — it must provide just compensation. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982) (state law requiring landlords to permit cable companies to install cable facilities in apartment buildings effected a taking). A second categorical rule applies to regulations that completely deprive an owner of “all economically beneficial us[e]” of her property. Lucas, 505 U. S., at 1019 (emphasis in original). We held in Lucas that the government must pay just compensation for such “total regulatory takings,” except to the extent that “background principles of nuisance and property law” independently restrict the owner’s intended use of the property. Id., at 1026-1032. Outside these two relatively narrow categories (and the special context of land-use exactions discussed below, see infra, at 546-548), regulatory takings challenges are governed by the standards set forth in Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978). The Court in Penn Central acknowledged that it had hitherto been “unable to develop any ‘set formula’ ” for evaluating regulatory takings claims, but identified “several factors that have particular significance.” Id., at 124. Primary among those factors are “[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations.” Ibid. In addition, the “character of the governmental action” — for instance whether it amounts to a physical invasion or instead merely affects property interests through “some public program adjusting the benefits and burdens of economic life to promote the common good” — may be relevant in discerning whether a taking has occurred. Ibid. The Penn Central factors — though each has given rise to vexing subsidiary questions — have served as the principal guidelines for resolving regulatory takings claims that do not fall within the physical takings or Lucas rules. See, e. g., Palazzolo v. Rhode Island, 533 U. S. 606, 617-618 (2001); id., at 632-634 (O’Connor, J., concurring). Although our regulatory takings jurisprudence cannot be characterized as unified, these three inquiries (reflected in Loretto, Lucas, and Penn Central) share a common touchstone. Each aims to identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain. Accordingly, each of these tests focuses directly upon the severity of the burden that government imposes upon private property rights. The Court has held that physical takings require compensation because of the unique burden they impose: A permanent physical invasion, however minimal the economic cost it entails, eviscerates the owner’s right to exclude others from entering and using her property — perhaps the most fundamental of all property interests. See Dolan v. City of Tigard, 512 U. S. 374, 384 (1994); Nollan v. California Coastal Comm’n, 483 U. S. 825, 831-832 (1987); Loretto, supra, at 433; Kaiser Aetna v. United States, 444 U. S. 164, 176 (1979). In the Lucas context, of course, the complete elimination of a property’s value is the determinative factor. See Lucas, supra, at 1017 (positing that “total, deprivation of beneficial use is, from the landowner’s point of view, the equivalent of a physical appropriation”). And the Penn Central inquiry turns in large part, albeit not exclusively, upon the magnitude of a regulation’s economic impact and the degree to which it interferes with legitimate property interests. B In Agins v. City of Tiburon, a case involving a facial takings challenge to certain municipal zoning ordinances, the Court declared that “[t]he application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests, see Nectow v. Cambridge, 277 U. S. 183, 188 (1928), or denies an owner economically viable use of his land, see Penn Central Transp. Co. v. New York City, 438 U. S. 104, 138, n. 36 (1978).” 447 U. S., at 260. Because this statement is phrased in the disjunctive, Agins’ “substantially advances” language has been read to announce a stand-alone regulatory takings test that is wholly independent of Penn Central or any other test. Indeed, the lower courts in this case struck down Hawaii’s rent control statute based solely upon their findings that it does not substantially advance a legitimate state interest. See supra, at 534, 536. Although a number of our takings precedents have recited the “substantially advances” formula minted in Agins, this is our first opportunity to consider its validity as a freestanding takings test. We conclude that this formula prescribes an inquiry in the nature of a due process, not a takings, test, and that it has no proper place in our takings jurisprudence. There is no question that the “substantially advances” formula was derived from due process, not takings, precedents. In support of this new language, Agins cited Nectow v. Cambridge, 277 U. S. 183, a 1928 case in which the plaintiff claimed that a city zoning ordinance “deprived him of his property without due process of law in contravention of the Fourteenth Amendment,” id., at 185. Agins then went on to discuss Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926), a historic decision holding that a municipal zoning ordinance would survive a substantive due process challenge so long as it was not “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” Id., at 395 (emphasis added); see also Nectow, supra, at 187-188 (quoting the same “substantial relation” language from Euclid). When viewed in historical context, the Court’s reliance on Nectow and Euclid'is understandable. Agins was the Court’s first case involving a challenge to zoning regulations in many decades, so it was natural to turn to these seminal zoning precedents for guidance. See Brief for United States as Amicus Curiae in Agins v. City of Tiburon, O. T. 1979, No. 79-602, pp. 12-13 (arguing that Euclid “set out the principles applicable to a determination of the facial validity of a zoning ordinance attacked as a violation of the Takings Clause of the Fifth Amendment”). Moreover, Agins’ apparent commingling of due process and takings inquiries had some precedent in the Court’s then-recent decision in Penn Central. See 438 U. S., at 127 (stating in dicta that “[i]t is . . . implicit in Goldblatt [v. Hempstead, 369 U. S. 590 (1962),] that a use restriction on real property may constitute a ‘taking’ if not reasonably necessary to the effectuation of a substantial public purpose, see Nectow v. Cambridge, supra”). But see Goldblatt v. Hempstead, 369 U. S. 590, 594-595 (1962) (quoting “‘reasonably necessary’” language from Lawton v. Steele, 152 U. S. 133,137 (1894), a due process case, and applying a deferential “ ‘reasonableness’ ” standard to determine whether a challenged regulation was a “valid exercise of the . . . police power” under the Due Process Clause). Finally, when Agins was decided, there had been some history of referring to deprivations of property without due process of law as “takings,” see, e. g., Rowan v. Post Office Dept., 397 U. S. 728, 740 (1970), and the Court had yet to clarify whether “regulatory takings” claims were properly cognizable under the Takings Clause or the Due Process Clause, see Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172, 197-199 (1985). Although Agins’ reliance on due process precedents is understandable, the language the Court selected was regrettably imprecise. The “substantially advances” formula suggests a means-ends test: It asks, in essence, whether a regulation of private property is effective in achieving some legitimate public purpose. An inquiry of this nature has some logic in the context of a due process challenge, for a regulation that fails to serve any legitimate governmental objective may be so arbitrary or irrational that it runs afoul of the Due Process Clause. See, e. g., County of Sacramento v. Lewis, 523 U. S. 833, 846 (1998) (stating that the Due Process Clause is intended, in part, to protect the individual against “the exercise of power without any reasonable justification in the service of a legitimate governmental objective”). But such a test is not a valid method of discerning whether private property has been “taken” for purposes of the Fifth Amendment. In stark contrast to the three regulatory takings tests discussed above, the “substantially advances” inquiry reveals nothing about the magnitude or character of the burden a particular regulation imposes upon private property rights. Nor does it provide any information about how any regulatory burden is distributed among property owners. In consequence, this test does not help to identify those regulations whose effects are functionally comparable to government appropriation or invasion of private property; it is tethered neither to the text of the Takings Clause nor to the- basic justification for allowing regulatory actions to be challenged under the Clause. Chevron appeals to the general principle that the Takings Clause is meant “ To bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” Brief for Respondent 17-21 (quoting Armstrong, 364 U. S., at 49). But that appeal is clearly misplaced, for the reasons just indicated. A test that tells us nothing about the actual burden imposed on property rights, or how that burden is allocated, cannot tell us when justice might require that the burden be spread among taxpayers through the payment of compensation. The owner of a property subject to a regulation that effectively serves a legitimate state interest may be just as singled out and just as burdened as the owner of a property subject to an ineffective regulation. It would make little sense to say that the second owner has suffered a taking while the first has not. Likewise, an ineffective regulation may not significantly burden property rights at all, and it may distribute any burden broadly and evenly among property owners. The notion that such a regulation nevertheless “takes” private property for public use merely by virtue of its ineffectiveness or foolishness is untenable. Instead of addressing a challenged regulation’s effect on private property, the “substantially advances” inquiry probes the regulation’s underlying validity. But such an inquiry is logically prior to and distinct from the question whether a regulation effects a taking, for the Takings Clause presupposes that the government has acted in pursuit of a valid public purpose. The Clause expressly requires compensation where government takes private property “for public use.” It does not bar government from interfering with property rights, but rather requires compensation “in the event of otherwise proper interference amounting to a taking.” First English Evangelical Lutheran Church, 482 U. S., at 315 (emphasis added). Conversely, if a government action is found to be impermissible — for instance because it fails to meet the “public use” requirement or is so arbitrary as to violate due process — that is the end of the inquiry. No amount of compensation can authorize such action. Chevron’s challenge to the Hawaii statute in this case illustrates the flaws in the “substantially advances” theory. To begin with, it is unclear how significantly Hawaii’s rent cap actually burdens Chevron’s property rights. The parties stipulated below that the cap would reduce Chevron’s aggregate rental income on 11 of its 64 lessee-dealer stations by about $207,000 per year, but that Chevron nevertheless expects to receive a return on its investment in these stations that satisfies any constitutional standard. See supra, at 534. Moreover, Chevron asserted below, and the District Court found, that Chevron would recoup any reductions in its rental income by raising wholesale gasoline prices. See supra, at 535. In short, Chevron has not clearly argued— let alone established — that it has been singled out to bear any particularly severe regulatory burden. Rather, the gravamen of Chevron’s claim is simply that Hawaii’s rent cap will not actually serve the State’s legitimate interest in protecting consumers against high gasoline prices. Whatever the merits of that claim, it does not sound under the Takings Clause. Chevron plainly does not seek compensation for a taking of its property for a legitimate public use, but rather an injunction against the enforcement of a regulation that it alleges to be fundamentally arbitrary and irrational. Finally, the “substantially advances” formula is not only doctrinally untenable as a takings test — its application as such would also present serious practical difficulties. The Agins formula can be read to demand heightened means-ends review of virtually any regulation of private property. If so interpreted, it would require courts to scrutinize the efficacy of a vast array of state and federal regulations — a task for which courts are not well suited. Moreover, it would empower — and might often require — courts to substitute their predictive judgments for those of elected legislatures and expert agencies. Although the instant case is only the tip of the proverbial iceberg, it foreshadows the hazards of placing courts in this role. To resolve Chevron’s takings claim, the District Court was required to choose between the views of two opposing economists as to whether Hawaii’s rent control statute would help to prevent concentration and supracompetitive prices in the State’s retail gasoline market. Finding one expert to be “more persuasive” than the other, the court concluded that the Hawaii Legislature’s chosen regulatory strategy would not actually achieve its objectives. See 198 F. Supp. 2d, at 1187-1193. The court determined that there was no evidence that oil companies had charged, or would charge, excessive rents. See id., at 1191. Based on this and other findings, the District Court enjoined further enforcement of Act 257’s rent cap provision against Chevron. We find the proceedings below remarkable, to say the least, given that we have long eschewed such heightened scrutiny when addressing substantive due process challenges to government regulation. See, e. g., Exxon Corp. v. Governor of Maryland, 437 U. S. 117, 124-125 (1978); Ferguson v. Skrupa, 372 U. S. 726, 730-732 (1963). The reasons for deference to legislative judgments about the need for, and likely effectiveness of, regulatory actions are by now well established, and we think they are no less applicable here. For the foregoing reasons, we conclude that the “substantially advances” formula announced in Agins is not a valid method of identifying regulatory takings for which the Fifth Amendment requires just compensation. Since Chevron argued only a “substantially advances” theory in support of its takings claim, it was not entitled to summary judgment on that claim. III We emphasize that our holding today — that the substantially advances” formula is not a valid takings test — does not require us to disturb any of our prior holdings. To be sure, we applied a “substantially advances” inquiry in Agins itself, see 447 U. S., at 261-262 (finding that the challenged zoning ordinances “substantially advance[d] legitimate governmental goals”), and arguably also in Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470, 485-492 (1987) (quoting “‘substantially advance[s]”’ language and then finding that the challenged statute was intended to further a substantial public interest). But in no case have we found a compensa-ble taking based on such an inquiry. Indeed, in most of the cases reciting the “substantially advances” formula, the Court has merely assumed its validity when referring to it in dicta. See Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U. S. 302, 334 (2002); Del Monte Dunes, 526 U. S., at 704; Lucas, 505 U. S., at 1016; Yee v. Escondido, 503 U. S. 519, 534 (1992); United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, 126 (1985). It might be argued that this formula played a role in our decisions in Nollan v. California Coastal Comm’n, 483 U. S. 825 (1987), and Dolan v. City of Tigard, 512 U. S. 374 (1994). See Brief for Respondent 21-23. But while the Court drew upon the language of Agins in these cases, it did not apply the “substantially advances” test that is the subject of today’s decision. Both Nollan and Dolan involved Fifth Amendment takings challenges to adjudicative land-use ex-actions — specifically, government demands that a landowner dedicate an easement allowing public access to her property as a condition of obtaining a development permit. See Dolan, supra, 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_numresp	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. Your specific task is to determine the total number of respondents in the case. 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. KROPP FORGE COMPANY, Petitioner, v. SECRETARY OF LABOR and Occupational Safety and Health Review Commission, Respondents. No. 80-2160. United States Court of Appeals, Seventh Circuit. Argued April 13, 1981. Decided Aug. 14, 1981. Robert D. Moran, Washington, D. C., for petitioner. John A. Bryson, Acting Sol. of Labor, U. S. Dept, of Labor, Washington, D. C., for respondents. Before CUMMINGS, Chief Judge, SWYGERT, Senior Circuit Judge, and JAMESON, Senior District Judge. The Honorable William J. Jameson, Senior District Judge of the District of Montana, is sitting by designation. CUMMINGS, Chief Judge. Kropp Forge Company has filed a petition to review an order of the Occupational Safety and Health Review Commission holding that Kropp violated 29 U.S.C. § 654(a)(2) because of noncompliance with an occupational safety and health standard, codified at 29 C.F.R. § 1910.95(b)(3), that provides in full: “In all cases where the sound levels exceed the values shown herein, a continuing effective hearing conservation program shall be administered.” The citation against Kropp charged, and after a hearing the Administrative Law Judge (AU) found that noise levels generated by forging hammers at Kropp’s Chicago steel forging plant continuously exceeded 90 decibels and that Kropp’s hearing conservation program lacked six elements necessary to constitute an effective program as required by the above-quoted standard. The AU further found that the violation was “willful-serious” as charged and assessed a penalty of $5000. The Commission declined Kropp’s petition for discretionary review so that the ALJ’s July 2, 1980, opinion became the final order of the Commission on August 7, 1980, pursuant to 29 U.S.C. § 661(i). We conclude that the standard under which Kropp was cited is unenforceably vague and therefore reverse. As a preliminary matter, we reject Kropp’s contention that all evidence gathered during two December 1978 Occupational Safety and Health Administration (OSHA) inspections should have been suppressed on the ground that it was obtained pursuant to a warrantless search in violation of the Fourth Amendment. Kropp concedes that it granted OSHA permission to enter its premises on these occasions to verify an employee complaint, unrelated to the present charges, concerning excessive exposure to carbon monoxide fumes from fork-lift trucks. At the time of her first visit to the plant, on December 5, 1978, the OSHA compliance officer stated that her inspection would not go beyond the area of the complaint, i. e., the plant’s “KFA Building” where the fork-lift trucks were located. However, after making an initial walk around the building, the compliance officer determined that sampling of noise levels generated by forging hammers located in the KFA Building was also required. Accordingly, the inspection was continued on December 13 and 19, at which times sampling for both carbon monoxide and noise levels was conducted. Kropp argues that its consent was limited specifically to the carbon monoxide investigation so that the noise level samples were taken unlawfully. The record shows, however, that at all times on December 13, the compliance officer was accompanied by Kropp’s Safety Director and that on December 19, she and a second compliance officer were accompanied by the Safety Director and Kropp’s General Manager. Both men had been informed that noise sampling would be conducted, and they raised no objections to the approximately five hours of sampling conducted on each day. Moreover, the Safety Director requested and received the results from the noise sampling taken on both days. While it is true that Kropp refused entry to a compliance officer seeking to continue the noise inspection in January 1979, the only surveys attacked by Kropp are those that took place on December 13 and 19. Since Kropp’s representatives were present at all times during those inspections and did not raise any objections when informed of the intended sampling, any Fourth Amendment objection to those surveys was waived. Marshall v. Western Waterproofing Co., Inc., 560 F.2d 947, 950-951 (8th Cir. 1977); Dorey Electric Co. v. OSHRC, 553 F.2d 357, 358 (4th Cir. 1977). Kropp next argues that the standard which it is said to have violated does not provide “fair warning” of what is required or prohibited and is therefore unenforceably vague under United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516, and its progeny. We agree. The rationale of Cohen Grocery has been applied in a number of decisions under the Occupational Safety and Health Act. In Dravo Corporation v. OSAHRC, 613 F.2d 1227, 1234 (3d Cir. 1980), for example, an employer was held not to be subject to sanctions for non-compliance with safety standards “without adequate notice in the regulations of the exact contours of his responsibility.” The court applied the traditional rule that the applicability of penal sanctions in regulations is to be narrowly construed by the judiciary and stated that OSHA regulations must “be written in clear and concise language so that employers will be better able to understand and apply them,” quoting from Diamond Roofing Co. v. OSAHRC, 528 F.2d 645, 650 (5th Cir. 1976). See also Bethlehem Steel Corporation v. OSAHRC, 573 F.2d 157, 161-162 (3d Cir. 1978); 4 Davis, Administrative Law Treatise § 301.2. The regulation in issue here, providing only that “a continuing effective hearing conservation program shall be administered,” misses the mark considerably. Kropp, as noted, was cited for non-compliance because its program lacked the following six elements: 1. Annual audiometric tests. 2. Referral of employees to a physician. 3. Re-tests of employees with significant threshold shifts. 4. Selection and use of hearing protection. 5. Training in use of hearing protectors. 6. Enforcement of proper wearing of hearing protectors. However, the standard does not give any warning to employers that their conservation programs must contain these six elements. Indeed, in proposing a change in the standard in 1974, the Secretary of Labor stated: “The current standard * * * does not explicitly require monitoring of the sound level of the employee’s surroundings nor measurement of the individual employee’s resulting exposure” (39 Fed.Reg. 37,-774 (1974)). Also a 1972 document that the Labor Department published as “A Guide to OSHA Standards,” notes that “[s]ince audiometric tests are not specifically mentioned in the regulations, they are not specifically required” (App. 136). That publication defined “hearing conservation program” in the regulatory standard as referring to “audiometry — periodic checks on the hearing ability of individual employees — and to noise surveys — periodic checks of the noise level in the area in which employees are working” (Idem.). This official definition, which was satisfied by Kropp, does not contain the six elements Kropp was cited as failing to provide. Similarly, an OSHA Field Information Memorandum in 1974 provided that OSHA’s official policy was “not requiring] audiometrie testing” (App. 161; emphasis in original), again contradicting the present citation. Even the compliance officer who conducted the December 1978 inspections of Kropp’s plant testified that the six elements listed in the citation were not required by the then controlling regulation (App. 165-166) nor thought by her to be included in the standard (Tr. 490), and had not been included in a Field Operations Manual until April 20, 1979 (App. 40, 64), whereas the alleged violations here occurred in December 1978. Furthermore, on January 16, 1981, too late for this case, OSHA removed the one-sentence standard at issue in this case and replaced it with a new regulation which, like the 1974 proposal, contains all six elements listed on the citation at issue in this case (46 Fed.Reg. 4162-4164), thus acknowledging that these elements were not previously included in the standard before us. Finally, it is noteworthy that in Secretary of Labor v. B. W. Harrison Lumber Company, 4 BNA OSHC 1091 (1976), an Administrative Law Judge held that 29 C.F.R. § 1910.95(b)(3), the regulation involved here, was unenforceably vague. His vacation of the OSHA noise citation was affirmed by the Commission by a 2 — 1 vote. One of the two majority members affirmed the ALJ on the vagueness ground, whereas the other majority member affirmed the disposition because the citation did not conform to the statutory criteria. Although the Fifth Circuit affirmed the Commission because of the invalidity of the citation, the 1978 opinion of the court held that the citation reference to 29 C.F.R. § 1910.-95(b)(3) was deficient because it merely parroted the words in the regulation that the employer failed to provide “a continuing effective hearing conservation program” and did not inform the employer of what was charged. 569 F.2d 1303, 1309. After this 1978 opinion of Judge Godbold, the Secretary had ample opportunity to amend the regulation, so that it would give proper notice to an employer and finally did so in January 1981. More recently, in Secretary of Labor v. Kraft Food, Inc., 9 BNA OSHC 2040 (March 17, 1981), an ALJ again found 29 C.F.R. § 1910.95(b)(3) unenforceably vague. This decision, in direct conflict with the result in this case, became a final order of the Commission on May 18, 1981. The ALJ rejected Kropp’s vagueness argument because “The standard does not involve criminal or First Amendment activity and if the regulation affords reasonable warning of the proscribed conduct in light of common understanding, it is not constitutionally vague” (App. 5). His decision is erroneous because the pertinent parts of the OSH Act and regulations do impose “penal sanctions,” and the regulation in issue does not give reasonable notice of the conduct said to be prohibited “in light of the common understanding.” Indeed, the ALJ himself acknowledged that the six elements of the hearing conservation program upon which this citation is based were not shown to be the custom and practice in the forging industry, and there was in fact no evidence of the “common understanding.” As in In the Matter of: Establishment Inspection of: Metro-East Manufacturing Company, 655 F.2d 805, 810-812 (7th Cir. 1981), involving a similar OSHA regulation, we find the regulation under which Kropp was charged to be unconstitutionally vague. Therefore, it is unnecessary to consider Kropp’s other arguments as to why the Commission’s order was defective. The order appealed from is reversed. . 29 U.S.C. § 654(a)(2) provides as follows: “(a) Each employer— * * * * * * “(2) shall comply with safety and health standards promulgated under this Act.” Kropp had also been charged with violations of 29 U.S.C. §§ 666(a) and (b) through violations of 29 C.F.R. § 1910.95(b)(1) and 29 C.F.R. § 1910.1001(f)(1). The first of these citations was withdrawn by the Secretary, and the second was vacated by the Administrative Law Judge (App. 16). The petition for review challenged only the Commission’s decision that Kropp had violated 29 U.S.C. § 654(a)(2) by not complying with 29 C.F.R. § 1910.95(b)(3). . The reference is to Table G-16 of 29 C.F.R. § 1910.95 which permits a level of 90 decibels of noise when averaged over an 8-hour work day with higher levels permitted for lesser periods of time. . The six elements listed in the citation were: (a) Regular, annual audiometric tests of employees exposed to sound levels in excess of Table G-16; (b) Employees with a 20 db or greater hearing loss, at any frequency, must be referred to an otolaryngologist or qualified physician; (c) Re-tests must be conducted of employees whose audiograms are considered unreliable or who show significant threshold shifts of 20 db or more at any frequency; (d) Appropriate and adequate hearing protection, as required by 29 C.F.R. § 1910.95(a), must be selected or used based on the noise spectrum present in a working environment in which the sound levels exceed Table G-16; (e) Employees exposed to sound levels exceeding Table G-16 must be trained in the proper use and care of hearing protection; (f) The employer must enforce the use of proper wearing of hearing protection for those employees who are exposed to sound levels exceeding Table G-16. . The noise level samples were obtained by placing audio dosimeters on the hammermen, helpers and other KFA Building employees, who wore the devices while they performed their duties. Sound level meter readings were also taken at the employees’ ear levels to confirm the accuracy of the dosimeter readings. The samples showed that noise levels were at all times above 90 decibels. . Although Kropp moved to suppress all evidence gathered during the December 5, 1978, through May 21, 1979, OSHA investigation of its premises, the Fourth Amendment objection now pressed concerns only evidence gathered during the December 13 and 19 inspections. Kropp did not move to suppress the results of the January 8-9, 1979, inspections showing that noise levels remained in excess of 90 decibels. . See also American Textile Manufacturers Institute, Inc. v. Donovan, — U.S. —, —, 101 S.Ct. 2478, 2505-06, 69 L.Ed.2d 185, where the Supreme Court struck down the wage guarantee provision in OSHA’s cotton dust standard partly because, as here, post-hoc rationalizations of the agency “cannot serve as a sufficient predicate for agency action.” . The Secretary, of course, knew how to promulgate a proper regulation before then, as shown by his detailed 1976 standard for employee exposure to coke oven emissions. American Iron & Steel Institute v. OSHA, 577 F.2d 825, 827 (3d Cir. 1978). If such a technique had been employed in promulgating this sound level regulation, no fatal vagueness problem would have occurred. . The ALJ also relied on the fact that the regulation in dispute had been upheld by an ALJ in a prior OSHA case. See Secretary of Labor v. Boise Cascade Corp., 5 OSHC 1242, 1977-78 OSHD para. 21,714 (1977), appeal filed, No. 77-2201 (9th Cir. May 31, 1977), appeal vacated (9th Cir. September 27, 1979). But see Secretary of Labor v. B. W. Harrison Lumber Company, supra, and Secretary of Labor v. Kraft Food, Inc., supra, with which we agree. . Dravo Corporation, supra, 613 F.2d at 1232; see also Hoffman Construction Co. v. OSAHRC, 546 F.2d 281, 283 (9th Cir. 1976); Diamond Roofing Co. v. OSAHRC, supra, 528 F.2d at 649; Marshall v. Anaconda Company, 596 F.2d 370 (9th Cir. 1979); Continental Can Co., U.S.A. v. Marshall, 455 F.Supp. 1015, 1020 n.4 (S.D.Ill.1978), affirmed, 603 F.2d 590 (7th Cir. 1979). . Since the record below contains no evidence as to the common understanding and practice of those working in the forging industry and even the ALJ concedes that the six-part hearing conservation program for which Kropp was cited was not the common practice in the forging industry, the Secretary’s reliance on our decision in Allis-Chalmers v. OSHRC, 542 F.2d 27 (7th Cir. 1976), is misguided. See Cotter & Company v. OSAHRC, 598 F.2d 911 (5th Cir. 1979). As noted both in Dravo Corporation, supra, and Diamond Roofing, supra, when a regulation fails in its purpose because of vagueness the Secretary should remedy the situation by promulgating a clearer regulation, as he finally did this year, rather than forcing the judiciary to press to the limits by judicial construction. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_othadmis	A	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". DUNCAN v. UNITED STATES. No. 7162. Circuit Court of Appeals, Ninth Circuit. Dec. 13, 1933. William T. Kendrick, Jr, and Russell Graham, both of Los Angeles, Cal, for apellant. Peirson M. Hall, U. S. Atty., of Los Angeles, Cal., and Fred Horowitz, Sp. Asst. to Atty. Gen., for the United States. Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges. RelieariDg denied February 23, 1S34. WILBUR Circuit Judge The appellant was convicted on each of ,, I e . . . n i -, three counts of an indictment, all based on ... . n x it j. i . representations by the appellant that he is .,. jul TT 'uofi -u • n a citizen ox the united otates, bom in Cam--i -vT t i »i . n i .i j. i den, Jn. J.; whereas, it is alleged that he was , • iL Tr- i o t» • born m the .Kingdom oi Rumania. The first eount charges that the defendant made false statements in an application for a passport, with the intent to secure the issu-anee of a passport for his use, contrary to the law regulating the issuance of passports (22 USCA § 220) and the regulations of the State Department in reference thereto-, by falsely stating that he was a native citizen of the United States and that he was bom in Camden, N. J, on April 23, 1904, when in truth and in fact he was not a citizen of the United States, but a subject of the Kingdom of Rumania, and was not born in Camden, N. J., but was bom in Rumania on the 20th day of April, 19-04. The second eount of the indictment eharges a violation of 18 USCA § 141, in that the , „ , „ „ , j , defendant unlawfully, willingly, and knowfcr frau(¿’lent ¿ pose of secnro£ ^ ^ falsely & f i . ... » represented himself to be a citizen, of the United States without having been duly admitted to citizenship; that he represented himself to be a citizen of the United States born in Camden, N. J, when as a matter of fact he was not born in Camden, N. J., but was bom in the Kingdom of Rumania and was never duly admitted to citizenship, The third eount of the indictment charges the defendant with perjury in violation of 18 USCA § 231 in connection with his apPlicati™ a PassP«^. “ thf° “ tbat be Y T f Sta, es ^ Camden, K. J. when as a matter at fact he was not a citizen oi the United States and was not born in Camden, jf. an¿ was not bom in the United States, jn testifying before the immigration officers January 15, 1931, the appellant gave his name as Basil Duncan Couyanos Ronaldo and stated he had used the names Renault Duncan, Basil Couyanos, and Dimean Renaldo ((bis^f na“e) 5 be/as born APril f 1904’ f^°Quld be ***** °£ a£e on 23,1931; that he entered the United States in September, 1921, on the ship p^get Sound; that he shipped as a seaman thereon out of Dunkerque, Prance, as a Greek citizen under the name of Basil D. Couyanos. He stated that he was admitted to the United States at that time as an alien seaman at Baltimore, Md.; that during the World War ke had lived in Rumania, at Galatz, in the province of Covurlui; that he obtained a ^ . -r> . ... , , , passport as a Rumanian citizen when he went £ ^ , ,. . from Rumania to Prance; that he was living . ^ ... , , 5 m Rumania with some people by the name ox ~ tt t j. ../» -, , 0 ,, Couyanos. lie also testified before the Bu- « t a* a- * . , * xeau of Investigation of the Department of T on Labor, as follows: „„ _ . . Q- 1 tese people whom you say you were bving with m Rumania you say they were yoIlr faLber 811(1 mother? A- Ycs’ <(Q- What were their names? A. Father, Demetri Couyanos, and mother Tedora Couyan°s, but sometimes instead of calling them mother and father I would call them by name, I have lived with them as far as I can reeollect. “Q. Do you recollect living with anj rth-ers? A. I have a tremendous amount of reí-atives there but I have always lived with my father and mother in one place. “Q. Who are your relatives there? A. I have no direct relatives there. “Q. Do you have any brothers or sisters? A. No, I haven’t any direct brothers or sisters. There were four or five in the Couyanos family and I used to call them brothers and sisters although I am not related to them, » » * , ,, „ „ “Q. What are the names of some of the children of this Couyanos family m Ru-mama? A. One is Aggripina, another is Ionel and another is Efeochia; that is all. They have another girl named Sofia. “Q- What is your mother’s maiden name in Rumania? A. His wife is Teodora Cou-yanos. I do not know her maiden name, That is all I know. • “Q. * * * Have you ever lived in Camden, New Jersey? A. No, I have not.” It appears that as long as appellant remembered he had lived in Rumania in the home of Demetri and Teodora Couyanos, whom he had called father and mother. He had no recollection of any other father and mother, but states that his earliest reeolleetion was crossing a large body of water and that the people he called father and mother with whom he lived had told him he was bom in Camden, N. J.; that they stated to him the name of his parents but that he had never seen either of them. Appellant took the witness stand in his own behalf and repeated most of the statements he had made before the immigration authorities above stated. The records of the ship Puget Sound on which he shipped as a coal passer in 1917 were introduced in evidence and showed that Basil Couyanos was a member of the crew and his signature to the records was intro-dueed in evidence. When the Puget Sound arrived at Baltimore, Md., appellant first entered this country. He applied for admission to the United States as a citizen but withdrew his application and entered as an alien. He was allowed to enter to reship foreign, but he did not reship. He went to New York and remained there. On October 17,1924, he applied for a marriage license, giving the name Renault Demetri Duncan; place of birth, Rumania; place of father’s birth, Rumania; place of mother’s birth, Rumania; father’s name, Demetri J.; mother’s name, Theodore Marienne. On March 29,1926, he applied for life insurance giving his name as Renault ■ Duncan Couyanos; date of birth, April 23, 1904; and place of birth, Rumania. On De-eember 14,1927, he wrote a letter to the Commissioner of Immigration stating that he desired to become naturalized and giving the name of Basil D. Couyanos. On January 14, 1929> lust thr6e months before he made his aPP^tion for passport as an American citihe made a written applicatron for life in™cf ^ 23’190d' De¿®mber 18 1930, aM>eüant procured a false affidavit to be made for the purpose oi effecting an entry-in the record of vital statistics at C'am-d N> j purportÍ31g to show that he was bam there on April 33 1904. In that record thug obtained &e £athei,s lace o£ birth wag ^V0n M United stat t]le mother,s ^ Rnmania, name of father, Francis B. Dunearlj and name of mother, Marie Marienseo. Tbe witness who- made the affidavit on which the registration of birth was entered in the records of Camden, N. J., as of April 23, 1904, testified that the affidavit was made by him without knowledge of the facts at the request of the appellant, who knew the statements in the affidavit as to affiant’s aequaintanee with appellant, and of affiant’s knowledge of the facts sworn to, were untrue. In the register of births in the city of Camden, N. J., the entries were arranged alphabetieally and not chronologically. Under the head-big “DU” was the entry “Renault Duncan, April 23,1904,” giving place of birth as 217 Federal street, and showing entry by affidavit 12/18/30. There is no other record of birth °f Renault Duncan. There was no entry of birth under the name of Couyanos in the Camden, N. J., records that could apply to the appellant. The most serious question presented by the record is the question of the admissibility 0f a photographic copy of the records of births for the year 1904 in the custody Qf the mayor of Oancea, district of Covurlui, Kingdom of Rumania, purporting to show that appellant was born there April 20,1904. This certificate is as follows: “Mayor Com. Oancea District of Covurlui. Rumania. “Extract from the register of Vital Statistics for births in the year 1904. “No. 32 Vasile Dumitru V. C'ugheanos. “In the year one thousand nine hundred and four, month of April, the twentieth day at five o’clock in the afternoon. Certificate of birth of the child Vasile, male sex, of orthodox religion born today at about one o’clock in the afternoon, in the house of his parents of the Commune of Oancea, legitimate son of Mr. Dumitru V. Cugheanos twenty eight years of age, by profession proprietor of a steam mill and of Mrs. Teodora D. V. Cugheanos twenty years of age by profession housewife, both of orthodox religion and domiciled in the Commune of Oancea. In ae■cordanee with the declaration of the father who presented the child to me; the witnesses wore; Mr. George Dimitriu thirty seven years of age and Constantin Dulghereseu thirty six years of ago both of orthodox religion, clerks by profession domiciled in the Commune of Oancea, who have signed this document together with the declarant and with their own signatures after I have first read it to them. Verified according to law by us Iordache T. Onu Mayor of the Commune of Oancea and officer of vital statetles- , , . „ , “Declarant (ss) D. Cugheanos “Witnesses 4 „ U nU 1 (ss) C. Dulghereseu t„r y°r “NotÍv (sUs) P I Tepelus ” Notary (ss) P. 1. lepelus. Attached to this birth certificate is a eer-tifieate of the mayor of Oancea attested by his offieial seal and by the signature and seal of a notary. This certificate reads as follows: „ , .. „ „ „ “Rumania. Townhall of tlie Commune of Oancea, District of Covurlui. The present photograph is taken from the records of vital statistics for births in the year 1904 under Number 32, and is certified by us. “Mayor: (ss) T. Canea “(Seal) Notary: (ss) I. Víase “No. 1463 “November 19, 1932.” The signatures of the mayor and notary are in turn authenticated by the certificate of the prefecture of the district of Covurlui, whose signature, seal, and official position, in turn, were attested by the signature and seal of the Minister of the Interior of Rumania. The signature of the Minister of the Interior of Rumania was certified by the Consul of the United States at Bucharest, who, after certifying to Ms own official position as Consul of the United States in and for the Kingdom of Rumania, certifies that the person who signed the above-mentioned certificate “was a delegate of the Minister of the Interior of Rumania at the time of so doing and as such competent to certify such authentication,” that the signature is the signature of the official in question, and that the official seal attached is that of the Rumanian Minister of the Interior. To this certificate of the Consul is attached a certificate of Henry L. Stimson, Secretary of State of the United States, by his chief clerk, accompanied by the seal of his office, certifying that the Cónsul who subscribed the above-mentioned certificate was Consul of the United States at Bucharest, Rumania, duly commissioned at the time of the signing of such certificate, and that full faith and confidence are due to his acts as such. Attached to these documents was a translation thereof by a member of the bar of Ilfov, Bucharest, Rumania, sworn to he-fore the American Consul at Bucharest. In addition thereto, and authenticated in substantially the same manner, is a further cer-iificate of the prefecture of the district of Covurlui, as follows: ^ ^ ^ pursuant to the petition addressed to this and registered under No. 13434/932’ ^ ^ Rudolph Peltzer Vice Consul of United stateg of Am6rica; by which he requests a certificate to the effect that Mr. Traian Ganea functions in the eapacity of the Mayor of Oancea of this District as well as that Mr. 1. Víase is Notary of the Commune of Oancea, ,.,TTT, ^1T-T,rnTT_ , m . ^9 9®^ ^ traían 18 ^ PfT* °£ the ^ ^ alsf ^notions as Officer of 7lM ftatirtics and 4Cllst?dian of ^ tos of vital Statistics m accordance with Art. 359, Paragraph 8 and Article 536, of the law for the organization of local administration. «Eumanifu picture of the District of Covurlui. Certificate No. 13434. November 21,1932. Mr. I. Víase, Notary of the Commune o£ Oancea, is and functions at present in the capacity of Notary of the Commune of Oaneea “ this District. “In view of which the present certificate is issued. «PreCeet. (ss) Ilkgible. For the Director: ^ Grigoras (Seal)” . ^ APPellant to the introduction of bese doc”te °n the general ground that thero fas no ProPer >™datum laid, that it w“ . bearsa7’ not Pr<^ 4den“> n<? mihm tbe 788,768 aIlefd 171 the “&etment “competent, “relevant, and immaterial, and that 7t was th? best ^ He ob' feted specially on the ground that the proper foundation was not laid because- “There is no evidence here that the defendant was bom on the date [April 20, 1904] of this alleged birth certificate, [he claimed to have been born April 23, 1904] or that he is the party named therein; there is absolutely no evidence — in fact the evidence is to the contrary, offered here by the government; they have offered the [Camden, New Jersey] birth certificate and statement of the defendant [before the immigration authorities] that these people were not relatives of his; they have offered proof that he was bom on April 20th [23d] 1904; * * * there is not the slightest showing that this defendant is the party named in this alleged birth cer-tifieate; * * * counsel say this is the defendant’s birth certificate; it is not at all; there is absolutely no evidence showing it, and there is evidence to the contrarythere is no such, name a-s. this charged m the indictment as this party in this certificate. * * * I believe your Honor will note that on that certificate some man there is mayor of that town, and something else to show that he has charge of those records; if so, I fail to find it. * * * «I call the court’s attention, and I know Mr. Horowitz [Special Assistant to the Attorney General] will be glad to correct me; there is no ‘Cugheanos’ in here; the Cughea-nos is not mentioned in these insurance policies nor anywhere else; this is Cug[h]eneos; it is pronounced Créanos; it isn’t even spelled that way.” We think the trial court was justified in the conclusion that Basil Couyanos and Yasile Cugheanos were idem sonas in the Rumanian language. In view of this, coupled with the similarity of the names of the father and mother shown in the birth certificate to the names of the persons with whom the appellant resided in Rumania and whom he called father and mother, respectively, we think the special objection that the birth cer-tifieate did not purport to be that of the appellant was properly overruled. The only other special objection to the method of authentication of documents relates to the mayor of the town and is not sufficiently clear to raise any point. It is a fundamental rule that objections to the admissibility of evidence must be made in the trial court and must be speeifie, and that general objections such as those advanced here that the evidence is “incompetent, irrelevant and immaterial and not the best evidence, and no proper foundation laid,” are insufficient. See Curtis v. No. American Indian (C. C. A. 9) 277 F. 909. To this latter rule there is an exception sometimes applied on appeal where the evidence offered is not competent for any purpose and the defect is such that it cannot be cured by the proponent. In such a case the admission of the testimony over the general objection of ineompeteney has sometimes been held to be error. This is merely another way of holding that even if it were admitted in the face of a general objection it could have no probative value because it is so incompetent as to be no evidence at all. In the assignment of errors appellant is more specific as to his objections to the Rumanian birth certificate. Seven objections to the certification are stated, of which we need mention but three: ■' First; L is no f aat the laws o£ Runiania require the keepi of reeords of * , _ Be™a’ 2‘ There is no proof that the Purported record was kept in accordance with t]le laws o£ Rumama- Tllird> 7. There 1S 110 certificate under the great seal of the Kingdom of Rumania au^eating the signature or the official caPffles ^of tlle Persons who sl^ed of the eertlfieates- ’ We will diseuss now these specific assignments in part because the probative value 0f foreign or domestic records depends upon the question whether or not such records are required by law to be kept, and this question is involved in the question of their admissibility over the general objection of ineompeteney made by the appellant. Where such records are required by law to be kept, a presumption arises that they are an accurate reeord of the facts, and thus they become prima facie proof of the facts required by law to be so recorded. In Stanglein v. State of Ohio, 17 Ohio St. 453, 463, it was held, however, that the record was incompetent in the absenee'of proof of some law requiring reeords, of marriages to be made and kept. The court said: “No such proof was given, and we ?re unable to see how we can presume the ex-stenee o£ uehJaws\ And the books are uni- ™ to tke effeet that jt 1S essential to the official character of any record, and to its competency as evidence, that it has been made and kept by a person whose duty it was to make and keep it. 1 Greenleaf’s Ev, § 485. And before an instrument, made in a foreign country, which derives a legal effeet and operation from the laws of that country, can be admitted in evidence, the existence of the law itself must be proved. 2 Starkie on Ev. 460; 1 Bishop on Marriage and Divorce, § 478. We are forced to the conclusion, therefore, that there was error in the admission of the Seibeldingen record in evidence, and in the charge of the court to the jury as to its legal effeet.” The Supreme Court of Massachusetts, in Re Derinza, 229 Mass. 435, 118 N. E. 942, 946, dealt with papers purporting to he copies of the certificates of marriage of the deceased and the birth of his several children, which were received in evidence. They were apparently certified by the custodian of the records in an Italian town. It was held that these copies of certificates were not competent evidenee. The court there stated: “There was nó proof of the law of Italy requiring or permitting the keeping of such records by the town, the deposition of the custodian of the records covering material points was not proffered, nor was there any evidence respecting their character, the eireumstanees under which the records were kept, or the source from which the certificates came, No one testified that they were copies of an official original. There was no authentication of them^ as genuine by a consular offieer of the United Stales. There was ahsolutely nothing beyond the bare production of the copies of the certificates. In the absence of a statute making such certificates admissible by themselves, or something to show that they were entitled to a degree of credence, they were not competent. [Citing cases.] It is not necessary to decide just what formalities would have been required to render them competent evidence, as the present record is entirely bald of anything m that direction. An examination of all the cases eollected in 26^ Cyc. 885, note, and re led on by the arbitration committee and the industrial accident board, as to foreign marriages, shows that m none of them was the marriage certifieate admitted without either an express statute admitting the certificate or evidence 01 some statute of the foreign state or nation requiring the record to be made, or some evidence showing a legal obligation or established practice to keep the record, or some fact respecting the authenticity of the record of the effect of which the' court can take judieial notice. No one of these elements is present in the ease at bar. We can have no judicial knowledge respecting records of town officials in Italy.” In Guerra v. San Antonio Sewer Pipe Co. (Tex. Civ. App.) 163 S. W. 669, 671, the eertiheate or a Mexican officer m charge ol certain records, as to the birth of a child with- , J » „ ,, . , out further prooE of the existence ol the rec- , ¿i. .i j, ,, , . ord or or the authority ox the officer having custody thereof, was rejected; the court stating: “This instrument was not accompanied by proof of the existence of any law of the republic of Mexico requiring the keeping of such records. There was no proof of the genuineness of the original record by facts and circumstances, or by any person able to testify thereto. The evidence does not disclose who is the proper custodian of such record, and who is authorized to certify to copies thereof. If the law be proved, and the genuineness of the record, an examined copy can bo used, or a certified copy, but in the latter case the genuineness of the signature of the officer certifying thereto must be properly au-thentieated.” it was held that the order of court exeludjng the record was correct. The portion of this excerpt which is germane to the point under discussion is the statement of the court that the instrument was not accompanied by proof of the existence of a Mexican law requiring the keeping of the records. In 33 a j 854> § 1033 a is said: ie8 of £oroign registerS of baptism, mar-rtage and ¿eath, duly authenticated, have freqUently been held to he admissible either un- ¿or or apart from the statute, although it has a]so ^een considered that such transfers, however authenticated, are not prima facie evidence o£ the faets recited unless it is made appear tbat the laws of the £oreign COuntry reqUjre suoh registry to be made and kept, aiso under statutes that it must appear not onl by tbe eertifleate o£ the custodian, ^ alsQ b evidenee distinet therefrom, that ^ faot was registered in due form. In the absenee of some statutoiy provisions * * * a evidenoe not generally sufficient that tends to prove that the document offered ^ in faet ^iñeü by the offieial cus_ todian o£ ori bial o£ whieh it purports be a and that bo bas due authority to make sueb oertifloation.,, State v. Dooris, 40 Conn. 145, a doeumen^ was_ ottered purporting to^ be a copy of 811 elltry m ‘the ‘Marriage Register Book in °®ce superintendent registrar of births, marriages and deaths for the district ^ ^ Ir®kuid. It was held that the docuraeilt was inadmissible because it did not appear that the keeping of such book was required by law. The court m that regard stated: “But it does not appear in the ease that ,, , „ T . , . , law of Ireland required the registration a ■ „ m ,, 1 of marriages.” To the same effect is the decision in Tucker v. People, 117 Ill. 88, 7 N. E. 51; Nagle v. Dong Ming (C. C. A. 9) 26 F.(2d) 438. We have round no case to ,, v, ' e con rary. It is essential therefore in order that the record introduced in evidence shall have any probative value that it shall be kept in compliance with and conformity to the law of the nation, state, or district in which it is kept. Conscquently, in order that such a record should be admitted in evidence it should be jroved that the record was kept in compliance with the local law. The order of proof is not important. Preferably the proof of the foreign law should accompany the an-theñticated copy of the record and be made by certificate. The law could undoubtedly be proved in other ways. In the case at bar the facts stated in the various certificates come close to, but still fall short of, evidence that the record of vital statistics kept at Oancea, Rumania, was kept in compliance with the local law. There are two statements and documents presented which tcnd strongly to that conclusion, but still fall short of the requisite proof. The first is the record itself to the effect that "it is verified in accordance with law." Taken literally this applies only to the method of authentication of the record slid not to the fact that the law requires a rec-oid to be kept. In addition thereto, we have the certificate of the prefecture to the effect that the mayor who signed the certified copies is custodian of the registers of vital statistics from which the photographic record is taken, and to the effect that he is the custodian thereof "in accordance with Art. 159, Paragraph 8, and Article 536, of the law for the organization of local administration." This clearly indicates that he is the proper officer to make the certificate, but it still falls short of the requirement that it should dppcar that the record was made at the time it purported to he made, in conformity with the law then in force. There are a multitude of books and documents in the custody of public officials, as such, which were not made in conformity with the law and which have no! probative value of the facts stated therein. Inasmuch as no special objection was made to ~he certificates on the ground that there was no certificate or other proof to the effect that the record in question was required by the law of Rumania to be kept at the time it purported to have been made, and that such an objection if made could have been overcome by proof of such a law, the general objections made were properly overruled, and the more specific assignment of this ruling as error cannot be sustained. There is, however, another aspect of this question which we must now consider. The appellant, at the conclusion of the evidence, moved for a directed verdict and assigns as error the refusal to grant the motion. Appellant argues that: "Aside from the purported birth certificate * * * the record is wholly void of any evidence whatever to prove the most essential part of the corpus delicti, viz., the falsity of his alleged statements, except his extra-judicial statements and admissions." Before directing our attention to this contention, we should state that the appel-~ lant's principal argument upon the alleged error in denying his motion for instructed verdict is based on the proposition that there is no competent evidence that the appellant made the affidavit or the representations alleged in the indictment. This is predicated on the testimony of the appellant that at the time he signed the affidavit which was filed with the Secretary of State for the purpose of securing a passport, the blanks in the printed affidavit were not filled in and the alleged false statements as to his age and birth place were subsequently inserted therein without his knowledge or consent. It is true that he contended then, as he does now, that he was born in Camden, N. J., and he contended then, as he does now, that he was a citizen of the United States and that he intended to apply as such for such passport, yet it is claimed by him that he did not make the aforementioned representations or affidavit. It is sufficient to say that the jurat of the clerk of the Distriet Court of the United States for the Southern District of California to the oath is sufficient prima fade proof that the affidavit was made in. the form in which it is now pm-seated in court. We turn now to the contention that without the certificate the evidence was insufficient to justify a verdict of guilty, and that a motion ef the defendant for instructed verdict of not guilty should have been given. Appellant argues that all these proofs as to appellant's Rumanian birth and alien citizenship arc based on statements and admissions of the defendant, and, therefore, have no higher probative value thpn the statements and admissions by the appellant, and that such statements and admissions are insufficient to prove the corpus delicti. There can be no doubt of this fundamental rule relied on by appellant. In that view of the case, the fact that the appellant procured false affidavits for the purpose of substantiating his claim that lie -aras born in Camden, N. J., would amount to nothing more than proof of his belief that he was born in Rumania, and would have no higher probative value than a confession or an admission that he was born in Rumania; such admissions are abundant in the record. Appellee claims that the fact that the defendant entered the United States as an alien from a vessel on which he had shipped in a foreign port as an alien is independent evidence of alienage and eonse-quently sufficient to support the verdict of the jury. In this connection it should be oh-served that shipping as ah alien on board an alien ship was necessarily predicated on belief of the defendant that he was such an alien and is in effect nothing more nor less than an admission on his part of alienage. The same is true of his application for naturalization, It is shown, however, that there was no record of the birth of Basel Couyanos or Vasilc Cou-yanos in the official records of births in Camden, N. J., and no record of birth of Renault Duncan other than the one entered in 1930 on the false affidavit procured by the appellant for that purpose. Appellant represented m Ins sworn application for passport that he was born m Camden, N. J. This was a material fact, for if he was born m Camden, N. J., he was a citizen of the United States It was not neeessary to prove that he was born m a foreign country to prove that perjury had been com-matted. We flunk there was sufficient evidence of the corpus delicti on the charge of perjury to justify the introduction of the admissions and statements of flie appellant and that the evidence of P^jury is amply traiücient to support the verdict without reference to the Rumanian birth certificate. With reference to the first count eharg-ing the defendant with making false statements in his application for passport, the allegation and proof that he stated that he was born in Camden, N. J., on April 23, 1904, coupled with tbe proof that the records of Camden, N. J., showed no birth of the appellant other than by the false record caused to he inserted therein by the appellant, was sufficient proof of the falsity of a material statement. With reference to the second count, the charge is that the appellant falsely represented himself to be a citizen of the United States without having been duly admitted to citizenship, etc., in violation of 18 USCA § 141. In order to establish this charge it is not only necessary for the prosecution to show that the appellant was not bom in Camden, N. J., but also to show that he was not a eitizen of tho United States. There is no evidence to establish that fact other than, the admissions of the appellant as hereinbefore stated. These were insufficient to prove the corpus delicti. What we have said disposes o£ all the points raised by the appellant other than £}je one y^t the verdict in the ease was in iCgai effect an acquittal of the appellant, There is nothing in this point. We merely mention it to show it has not been overlooked. It follows that the judgment on the first and third counts must be affirmed, and that on the seeond count must be reversed. It should be here stated that the sentences on the first and third counts run concurrently, The ®rst count is for a violation of 22 USCA § 220, the third count is for a violation of 18 USCA g 231 and tlle second colmt is £or a o£ 18 ugcA § 14L In view of tho rovergal of ^ jlld t and sentrace on the geeond c it is to notíco the fact ^ ^ llant elaims that thig eount does ^ gtate an offense. The int ig made that ^ h fte indietment s that ap_ Uant ÍÍ(M £algely represent himself to he a eitizen of ^ Un-ted gtates without having bem dul admitted to citizenship/> it did ^ g iflcall aU t}iat he was not a citi. zen of the United stateg- It is speeifleaIly all d however that he £alsely represented himself be „a eitizen o£ the United States> horn in Camden, New Jersey, on April 23, 1904, Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_stpolicy	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TAMIMENT, INC., Respondent. No. 19271. United States Court of Appeals, Third Circuit. Argued June 24, 1971. Decided Nov. 9, 1971. Biggs, Circuit Judge, dissented and filed opinion. John D. Burgoyne, Asst. Counsel, N. L. R. B., Washington, D. C. (Arnold Ord-man, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, David E. Rosenbaum, Atty., N. L. R. B., on the brief), for petitioner. Irving D. Lipkowitz, Lipkowitz, Plaut, Salberg & Harris, New York City (Melvin Salberg, David Kramer, New York City, on the brief), for respondent. Before BIGGS and ROSENN, Circuit Judges, and KRAFT, District Judge. OPINION OF THE COURT ROSENN, Circuit Judge. The National Labor Relations Board has applied to this court pursuant to Section 10(e) of the National Labor Relations Act (29 U.S.C. § 160(e)) for enforcement of its order issued against respondent Tamiment, Inc., for violating Section 8(a) (1) of the National Labor Relations Act (29 U.S.C. § 158(a) (1)) by refusing to allow access to its premises for union representatives attempting to organize its workers. The opinion of the Board is reported at 180 N.L.R.B. No. 171. The sole issue raised is whether the union has made an adequate showing that there are no reasonable alternative means for generating face to face contact with workers without having access to the employer’s property. In view of the nature of the issue, the operations of Tamiment’s resort should be described. Tamiment, Inc., is an adult summer camp operated from approximately the beginning of May to the end of September each year in the Pocono Mountains of Eastern Pennsylvania. It is about four and a half miles from Bushkill, Pennsylvania, and thirteen miles from the larger town of East Stroudsburg, Pennsylvania. The resort is a largely self-contained entity. Its 2200 acres, 475 of which are developed, are totally enclosed by a barbed wire fence. The main entrance to the hotel is a private road, approximately “four city blocks long,” leading from the highway to the entry gate. A guardhouse stands at the gate and controls all entry to the property. There is an employee parking lot just outside the entrance gate with a capacity for 200 cars. Although no general solicitation is permitted on the property, members of the public are permitted to enter to look around on one hour passes. Once inside the gate a guest can move freely around the property. The resort has almost all the living and recreational facilities that its guests and the 85% of the staff who live on the premises need. Besides a dining room, there are lakes, swimming pools, golf, nightclubs and other activities. There is also a United States Post Office on the premises that will send and receive mail for guests and staff. The staff live in cottages spread throughout the grounds. They are given all their meals free which they take in their commissary, or in the main dining room before the guests eat. They have available a laundromat, and they can use all the recreational facilities of the hotel except in peak vacation periods and on weekends. There are no private telephones in the staff cottages, although there are public telephones at various locations. Those members of the staff who wish can bring food in to cook on hotplates in their rooms. Staff who live off the premises are given the meals served during their work hours without charge. On their free time, employees frequent the Log Cabin, a bar and grill about one mile down the road from Tamiment, and other bars and restaurants in the area. They also go to the racetrack nearby and to other resorts in the Poconos. The nearest cinema is in East Stroudsburg, twelve to fourteen miles away. When the employees are on duty, most of them, with the exception of administrative and golf personnel, wear uniforms, but the management encourages them to wear regular clothes during their off-duty hours. The staff is transitory. During the season the number of employees varies from about 300 in the slow spring and fall periods to a peak of about 435 during the summer. They are recruited from Florida, New York, New Jersey, and Pennsylvania. Job advertisements are sent to state and federal employment agencies and to many colleges. A large number of the work force are students employed during their summer vacations. Many workers stay only a few weeks, and most do not last the entire five month season. Although the management writes each winter to the past season’s employees to ascertain if they wish to return to Tamiment for the upcoming season, only about 25% to 30% of the staff do so. The employees work a variety of shifts. Some departments of the resort, such as reservations and maintenance, are on a twenty-four hour basis; others operate for eight to sixteen hours a day. Most people are on a six day week, although some waiters and waitresses are expected to work seven days weekly. An eight hour day is standard, but the dining room and beverage people have periods on and off duty throughout the day coinciding with meal hours and the operation of the nightclub. The housekeeping staff is also employed on a staggered work day basis. During the spring of 1969, Local 558 of the Hotel and Restaurant Employees Union began an organizing campaign throughout resorts in the Pocono Mountains. Harvey Morse, the international trustee in charge of the local (Local 558 is in trusteeship) and its local organizer, Serge Schuster, had responsibility for winning representation of the employees at Tamiment. On or about April 1, 1969, Morse and Schuster went, to Tamiment and talked with Victor H. Gerard, the Managing Director of the resort, and an associate, Alex Blaker. Morse suggested that because of a fire which had damaged Unity House, a nearby hotel owned by the International Ladies Garment Workers Union, it would be helpful for Tamiment’s business if it were unionized. Gerard rejected the offer. On May 12, the day before the season began in 1969, Schuster appeared at the gate to Tamiment, but was denied admission by the guard unless he had a permit from the management. He departed without meeting anyone and returned the next day, stationing himself near the employees’ parking lot. He talked with four members of the staff. They signed authorization cards and at their request were given additional cards for other employees to sign. Schuster arranged to meet with them in a week. During the same visit Schuster also put union literature on various cars in the parking lot without interference by the guards. Schuster again returned a day or two later and talked with Allen Menell, Administrative Manager of the hotel, who told him that if he wanted access to the employees he would have to have the permission of the management of Tamiment in New York. On May 15, the union sent such a letter, but it was never answered. On the following day, Schus-ter attempted to hand out leaflets just outside the gate, but Menell asked him to leave because traffic was heavy that Friday afternoon and he was causing congestion. A few days later Schuster again returned. He did not find the four employees to whom he had previously talked, but he attempted to sign up three other workers just outside the guardhouse area. The guards interfered and refused to allow solicitation there. On May 22, Schuster returned to Tamiment but was told by the guards that he could not come up to the guardhouse nor could he use the private road from the highway. Schuster noted that now there were “no trespassing” signs posted along the road. On May 28, Morse and Schuster met with Gerard, the Managing Director, to ask for permission to enter the grounds. Their request was rejected. Thereafter, Schuster began going to the Log Cabin, a nearby bar and grill, and to another tavern in Bushkill, for the purpose of meeting employees. He continued to visit these places approximately twice a week until Tamiment closed at the end of September. Mr. Schuster’s final attempt to enter the property was a visit in mid-June as a guest during a meeting of two Philadelphia Cap and Millinery Union locals. Shortly after Schuster’s arrival, Gerard and Menell received reports that he was talking to employees who were on duty and passing out literature. They sought him out and asked him to act like a guest or leave the premises. Schuster claims that he was then followed closely by security personnel and began to feel extremely uncomfortable even though he was not talking to employees. About two hours after the conversation, he decided to leave and checked out. In sum, Schuster could claim that after a summer’s effort he had spoken to about 25 employees and handed out about 150 authorization cards. He had secured only 12 signed cards. On this record, the trial examiner found that management had violated Section 8(a) (1) of the National Labor Relations Act by excluding non-employee organizers from the premises when there were no effective off-premises channels of communication available to the union. He noted that the resort is a completely self-contained community, whose employees rarely need to leave. The staggered shifts and the lack of telephones make communication difficult. In his opinion, the union had made reasonable efforts to reach employees through the normal channels of communication, but such efforts were “doomed to failure.” The only effective means was direct access to the premises. The Labor Board affirmed the trial examiner’s findings. If Tamiment’s employees had undertaken this drive, there would be no question as to their right to campaign on its grounds. We are concerned with a different situation: the right of non-employee representatives of a union to have access to an employer’s private property for the purpose of organizing his workers. The Supreme Court laid down the fundamental test for determining when non-employee organizers should be allowed to enter company property in NLRB v. Babcock & Wilcox Co., 351 U. S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed. 975 (1956). It held that “when the inaccessibility of employees makes ineffective the reasonable attempts by non-employees to communicate with them through the usual channels, the right to exclude from property has been required to yield to the extent needed to permit communication of information on the right to organize.” (Emphasis ours.) Has the union in the case sub judice made sufficient reasonable attempts to satisfy that test? In cases involving self-contained resorts where the employees live on the premises, union organizers face a more difficult task in communication with the workers than they do in the ordinary plant situation, where employees leave daily and return to their homes. This problem is particularly acute in organizing where many believe that there is no substitute for some face to face contact between the union organizer and workers during the campaign. National Steel Corp., etc. v. NLRB, 415 F.2d 1231 (6th Cir.1969). However, these needs and problems do not require that the employer forego his right to limit access to his property in a non-discriminatory fashion, absent a showing that the union could not take alternative measures to generate face to face contact. Respondent has pointed out that the Labor Board has recently suggested that union organizers should endeavor to use newspapers, television and radio before being allowed to enter company property (Falk Corp., 192 N.L.R.B. No. 100, p. 11, 77 L.R.R.M. 1916, 1920-1 (1971); NLRB v. Kutscher’s Hotel, 427 F.2d 200, 201 (2nd Cir.1970)). We doubt that television and radio would have been an effective and reasonable alternative means of communication in this situation. In a hotel resort with employees working staggered shifts over a seven day work week, it is unlikely that a significant proportion of the work force would be able to listen to broadcast appeals at any one time. NLRB v. S & H Grossinger’s, Inc., 372 F.2d 26, 29 (2nd Cir.1967). On the other hand, as we discuss later, newspapers might have served a limited useful purpose. The union must make reasonable efforts to communicate with workers through alternative means and arrangements when seeking face to face contact. The first and most obvious procedure for the union to follow would be to attempt diligently to reach workers when they are off company property. In this case Schuster tried to talk to workers outside the gate leading to Tamiment, and when told that such activities were not permitted because the guardhouse and employees’ parking lot were on private property, he repaired to nearby taverns, hoping to meet employees there. We cannot agree with the Labor Board that the failure of Schuster’s efforts to bear fruit is sufficient to amount to an adequate basis for a finding that the union lacked reasonable channels of communication off-premises with Tamiment’s employees. While it may be difficult to describe generally what would amount to an effective effort to communicate with employees and generate face to face contact, there are certain obvious and relatively inexpensive additional steps that Schuster and Morse should have attempted to undertake. They made no effort to obtain a list of all the employees of Tamiment so that the union could send mail directly to them. Although mail is no substitute for face to face contact (NLRB v. United Aircraft Corp., 324 F.2d 128, 130 (2nd Cir. 1963), cert. denied 376 U.S. 951, 84 S.Ct. 969, 11 L.Ed.2d 971 (1964)) the Board has found letter writing a useful first step in communicating with employees. (Falk Corp., supra). While management need not provide such a list in advance of a Labor Board sponsored election (Excelsior Underwear, Inc., 156 N.L.R.B. 1236 (1966)), it is free to do so if it wishes, and it may be particularly willing to yield to this request to retain the atmosphere of quiet and serenity at its resort hotel. Counsel for management at oral argument noted that Tamiment would have given the union such a list, that a United States post office facility was located on the property, and that the employer would not have interfered with any mail addressed to its employees by the union. This concession distinguished in part this case from S. & H. Grossinger’s, Inc., supra, where the Second Circuit enforced the Board’s order to admit union organizers after a request for a list had been turned down. The union did not request the right to post notices of any sort at various staff facilities on company property or on the employees’ parking lot. While such notices may be of only marginal utility in stimulating interest in the union, the failure to make such a request does reflect on the union’s lack of initiative in devising techniques to meet with Tamiment’s employees. Finally, the union failed to arrange for any meetings for employees. It neither extended an invitation for such a meeting through using a mailing list or through the employees it had already signed up, nor made announcements in the local newspaper. It is reasonable to expect that any employees interested in organizing would be willing to make some effort to attend a meeting sponsored by the union during their leisure time. (E. g., Falk Corp., supra, at 1920). Although the staggered shifts and seven day work weeks of some of the people at Tamiment might have limited the number of those in attendance, the union should have attempted to set up such meetings. It is only after the union has made a showing that it used reasonable efforts to utilize “other available channels of communication” that the Board should proceed to consider the total effectiveness of these efforts and the countervailing inconvenience and injury to the employer having union organizers on his premises. Were the union to have made the necessary showing in this case, it seems clear that such additional questions would have been proper for the Board’s consideration. Neither of the previous cases decided by the Second Circuit dealing with entry by non-employee organizers to rural resorts is dispositive in this case. In S. & H. Grossinger’s, supra, the Second Circuit upheld the Board’s order for entry because the union engaged in considerably greater efforts at organizing than at Tamiment and was met by outright management hostility. (S. & H. Grossinger’s, supra, 372 F.2d at 29). In essence that decision was based on considerations of effectiveness we do not reach because of the union’s failure to show a lack of any reasonable effort to utilize alternative channels of communication. Conversely, in Kutscher’s Hotel, supra, where the union had direct face to face contact with the employees each day because ninety-five percent of them had to cross a public road to get from their living quarters to the hotel, the court found that the alternative means were adequate. The record in this case shows nothing more than minimal efforts to communicate with respondent’s employees. We are not satisfied that there is “substantial evidence on the record as a whole” to warrant an invasion of private property by non-employees for union organizational purposes. The petition to enforce the order of the Board dated February 4, 1970 will be denied. BIGGS, Circuit Judge . 29 U.S.C. § 158(a) (1) provides: “(a) It shall be an unfair labor practice for an employer— 1. to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; ” . This case is one of a growing number of cases involving unionization of self-contained resorts (NLRB v. Kutscher’s Hotel, 427 F.2d 200 (2nd Cir. 1970) ; NLRB v. S. & H. Grossinger’s, Inc., 372 F.2d 26 (2nd Cir. 1967) ; New Pines, Inc., 191 N.L.R.B. No. 144 (1971) ; H & G Operating Corp., 191 N.L.R.B. No. 110 (1971), in which the Labor Board has attempted to accommodate the employee’s rights to organize under Section 7 of the National Labor Relations Act (29 U.S. O. § 157) with the employer’s right to control his property. . We have examined the entire record pursuant to the mandate in Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951) where the Court taught that: “Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board’s findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board’s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.” . We do not hold that an employer must provide a list of its employees to union organizers. Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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. GLOUCESTER MARINE RAILWAYS CORP., Plaintiff, Appellee, v. CHARLES PARISI, INC., et al., Defendants, Appellants. John Joseph Taylor and Trans-Atlantic Marine, Inc., Defendants, Appellees. No. 87-1708. United States Court of Appeals, First Circuit. Heard Jan. 5, 1988. Decided June 2, 1988. Robert L. Burke with whom Robert P. Sullivan and Callan, Sullivan & Burke, P.C., Lowell, Mass., were on brief, for defendant, appellant Charles Parisi, Inc. Mary P. Harrington with whom Ronan, Segal & Harrington, Salem, Mass., was on brief, for plaintiff, appellee Gloucester Marine Railways Corp. Louis M. Rohrberg with whom Mendes & Mount, New York City, was on brief, for plaintiff, appellee John Joseph Taylor. Leonard Rose, Falmouth, Mass., on brief, for plaintiff, appellee Trans-Atlantic Marine, Inc. Before CAMPBELL, Chief Judge, ALDRICH and COFFIN, Circuit Judges. COFFIN, Circuit Judge. A Massachusetts ship repairer brought this action against its insurers and a Massachusetts shipowner, seeking a declaration that a state court tort judgment obtained against it by the shipowner was unenforceable and a declaration that its insurers were responsible for any portion of the judgment found to be outstanding. The ship repairer also sought an injunction preventing the shipowner from enforcing the state court judgment. The district court declared the judgment satisfied and enjoined its further enforcement; the court found no need to reach the claims against the insurers. The shipowner now appeals. We hold that the Anti-Injunction Act barred the injunction and declaration that the district court granted against the shipowner. We therefore vacate the district court's order and remand with instructions to dismiss the ship repairer’s complaint against the shipowner and to consider the claims against the insurers. I. Initially, this case concerned the allocation of responsibility for a judgment obtained by the owner of a fishing vessel against a ship repairer in whose drydock the vessel was damaged by fire. As the case comes before us, however, and notwithstanding the absence of any briefing or discussion below, we discover that it unavoidably involves the application of the Anti-Injunction Act. We therefore review the rather complicated factual and procedural history of the case in summary fashion, adding details only where relevant to the Anti-Injunction Act issue. The facts, insofar as they are relevant to this appeal, are undisputed. In February of 1975 the fishing vessel St. Anthony, which was owned by Charles Parisi, Inc. (Parisi), was being repaired in drydock on the premises of Gloucester Marine Railways Corp. (Gloucester) when it was damaged extensively by fire. At the time of the fire Parisi carried a $135,000 hull insurance policy on the St. Anthony, obtained through Trans-Atlantic Marine Co. (Trans-Atlantic), a marine insurance broker, and written by Glacier General Assurance Co. (Glacier). Gloucester carried a $100,000 ship repair insurance policy, which it too had obtained through Trans-Atlantic. The policy Trans-Atlantic issued to Gloucester described the actual insurers as “London and American Companies”; unbeknownst to Gloucester at the time, two-thirds of the policy was written by Glacier and one-third by various underwriters at Lloyd’s of London. Thus Glacier, acting through Trans-Atlantic, had written both Parisi’s entire hull policy and two-thirds of Gloucester’s ship repair policy. In May of 1975 Parisi brought a negligence action against Gloucester in Massachusetts Superior Court, seeking damages for the fire on the St. Anthony. In September of 1975 Glacier, acting in its capacity as Parisi’s insurer, moved to intervene, alleging among other things that the hull policy gave it the right to control the litigation and that Parisi was failing to cooperate. In March of 1976 Parisi and Trans-Atlantic (acting on behalf of Glacier) reached an agreement whereby Glacier paid out $100,-000 under the hull policy and Parisi assigned to Glacier by way of subrogation $100,000 of its claim against Gloucester. Parisi, however, retained control of the pending action against Gloucester. In January of 1982 Parisi won a $145,000 jury verdict against Gloucester, and a judgment was entered for that amount, plus prejudgment interest as authorized by Mass.Gen.Laws Ann. ch. 231 § 6B (1985). For rather complicated reasons having to do with Glacier’s position as an insurer of both Parisi and Gloucester, Gloucester filed and the Superior Court granted a motion to reduce the judgment to $45,000 plus interest. Parisi appealed this reduction to the Massachusetts Appeals Court, which reversed the Superior Court and ordered the judgment reinstated. Charles Parisi, Inc. v. Gloucester Marine Railways Corp., 16 Mass.App.Ct. 538, 453 N.E.2d 459 (1983). In November of 1985, Gloucester, hoping to improve its chances of getting the judgment reduced once more to $45,000, obtained from Trans-Atlantic (acting as Glacier’s agent) an assignment of the $100,000 subrogation claim that Glacier had obtained through its March 1976 agreement with Parisi. Gloucester then filed this action in federal district court. The complaint named four defendants: Parisi, Trans-Atlantic, Glacier, and John Joseph Taylor, the American representative of the Lloyd’s underwriters. In the complaint, Gloucester tendered to Parisi $45,000 plus interest (subject to a setoff not relevant here) and sought to enjoin Parisi from further efforts to enforce its state court judgment for $145,000 plus interest. As the basis for this injunction, Gloucester sought one of three alternative declarations: (1) that Glacier’s assignment to Gloucester of its $100,000 subrogation claim was valid and that Gloucester had then waived that claim; or (2) that Gloucester’s insurers had already paid Glacier $100,000 on account of Glacier’s subrogation claim, leaving nothing due Glacier (or whoever might have acquired that claim from Glacier); or (3)that any amount due on account of the first $100,000 of Parisi’s judgment against Gloucester was the responsibility not of Gloucester but of its insurers. In Gloucester’s view, the issuance of declarations (1) or (2) would render the subrogation claim valueless and thus remove any rationale for paying Parisi the first $100,-000 of the judgment; the issuance of declaration (3) would establish that if such a $100,000 payment were due, it would not be due from Gloucester. Parisi counterclaimed against Gloucester and Trans-Atlantic, alleging that the assignment constituted a tortious interference with Parisi’s contract rights under the subrogation agreement. The district court dismissed Gloucester’s claims against Glacier, as Glacier was by now in receivership and had never properly been served. The court rejected Parisi’s argument that the action was barred by the res judicata and collateral estoppel effect of the state court judgment. After a bench trial, the court issued a declaration that the state court judgment had been satisfied and enjoined Parisi from taking further steps to enforce it. The court found no need to reach Gloucester’s claims against its insurers , and the court dismissed Pari-si’s counterclaims with prejudice. Parisi now appeals the district court’s refusal to give preclusive effect to the state court judgment. Parisi does not appeal the dismissal of its counterclaims. II. The Anti-Injunction Act declares: A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments. 28 U.S.C. § 2283 (1982). The Act is not strictly jurisdictional; it merely deprives the federal courts of the power to grant a particular form of equitable relief. Smith v. Apple, 264 U.S. 274, 278-79, 44 S.Ct. 311, 312-13, 68 L.Ed. 678 (1924) (construing predecessor to current section 2283); see 17 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4222 at 322 & n. 30 (1978) (citing cases). We nevertheless think ourselves obligated to raise this issue, which went unnoticed by the parties or the district court, in order “to forestall the inevitable friction between the state and federal courts that ensues from the injunction of state judicial proceedings by a federal court.” Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 630, 97 S.Ct. 2881, 2887, 53 L.Ed.2d 1009 (1977) (plurality opinion). We note at the outset that the Act’s use of the term “proceedings” is comprehensive: It includes all steps taken or which may be taken in the state court or by its officers from the institution to the close of the final process.... It applies alike to action by the court and by its ministerial officers; applies not only to an execution issued on a judgment, but to any proceeding supplemental or ancillary taken with a view to making the suit or judgment effective. Hill v. Martin, 296 U.S. 393, 403, 56 S.Ct. 278, 282-83, 80 L.Ed. 293 (1935) (citations omitted). The Anti-Injunction Act “cannot be evaded by addressing the order to the parties or prohibiting utilization of the results of a completed state proceeding.” Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 287, 90 S.Ct. 1739, 1743, 26 L.Ed.2d 234 (1970). We turn first to the injunction that the district court granted against Parisi’s attempts to enforce its state court judgment against Gloucester. That injunction would not appear to fall within any of the three exceptions to the Anti-Injunction Act. No Act of Congress expressly authorized the district court’s injunction, nor was the injunction necessary in aid of the court’s jurisdiction or to protect or effectuate its judgments. We therefore hold that the Act deprived the district court of the power to issue the injunction against Pari-si. A second question is whether the Act also deprived the court of the power to issue declarations in support of this injunction. We have previously noted that the Act by its terms does not prohibit declaratory judgments. See Puerto Rico Int’l Airlines, Inc. v. Silva Recio, 520 F.2d 1342, 1344 n. 3 (1st Cir.1975). Nevertheless, we agree that “if a declaratory judgment would have essentially the same effect as an injunction, it should be refused if the injunction would be barred by § 2283.” 17 Wright & Miller § 4222 at 316 (citing cases). Both of the declarations requested by Gloucester — that nothing was due whoever held the subrogated claim for $100,000, or that Gloucester had acquired and waived the right to $100,000 of the judgment against it, thereby extinguishing the judgment to that extent — would have had essentially the same effect as an injunction against enforcing the judgment beyond $45,000. And the declaration actually issued by the district court — that the state court judgment had been satisfied — paralleled even more clearly the effect of the injunction against enforcement of the judgment. These declarations would be useful to Gloucester primarily, if not exclusively, as the basis for seeking an injunction in state court against further enforcement of the judgment. Such an effort would produce the very friction between state and federal courts that the Act is designed to avoid. We therefore conclude that the Act barred the issuance of the declarations. Finally, there is the question of how the Anti-Injunction Act might affect Gloucester’s claims against its insurers. As the district court never reached these claims, and as the parties have not focused on them either in the district court or on appeal, we have some doubt as to their true nature. We have only Gloucester’s rather meager, ambiguous complaint to assist us. The complaint alleged that Gloucester’s insurers were refusing to make any further payments on the ship repairer policy, and it sought a declaration that the obligation to pay any sum [determined to be due to the holder of the subrogation claim on Parisi’s judgment] is the sole obligation of the insurer under to ship repairer policy ... and is to be promptly paid by said insurer in accordance with the terms of the said policy. (R. 16.) Two readings of the complaint are possible. The complaint could be read as alleging a simple breach of the insurance contract and requesting a declaration that the insurers were obligated to indemnify Gloucester for any payment that Gloucester made or might make in satisfaction of Pari-si’s judgment. Such a claim would raise no Anti-Injunction Act problems. Alternatively, the complaint could be read as requesting a declaration that Gloucester was under no obligation at all to pay the state court judgment entered against it and that this obligation rested, instead, solely with Gloucester’s insurers. Such a claim would involve a direct interference with the enforcement of a state court judgment — interference that the Anti-Injunction Act is meant to prohibit. As the district court never reached these claims, and their nature is unclear, a remand is appropriate so that Gloucester may clarify the claims and the district court may decide whether they fall within the prohibition of the Anti-Injunction Act. III. In sum, as the Act rendered the district court powerless to issue any of the relief that Gloucester requested against Parisi, the complaint against Parisi should have been dismissed for failure to state a claim upon which relief could be granted. Fed.R. Civ.P. 12(b)(6). We therefore vacate the district court’s judgment and remand with instructions to dismiss Gloucester’s claims against Parisi — without prejudice to Gloucester’s ability to reassert those claims in state court — and to consider Gloucester’s claims against its insurers. Of course, in view of our holding that Gloucester may not proceed upon its claims against Parisi in federal court, Gloucester may wish to take a voluntary dismissal of its claims against its insurers, so that the entire case may be brought in state court. Vacated and remanded. No costs. . Glacier paid $89,003.60 directly to the United States of America, which held a mortgage on the St. Anthony, and the remaining $10,996.40 to Parisi. For the sake of simplicity we will hereinafter treat the full $100,000 as having been paid to Parisi. . The specific reasons for the court’s action need not detain us here. It suffices to note that the court's concern was to avoid double payment to Parisi of the first $100,000 of the judgment. . The Massachusetts Appeals Court had indicated that if such an assignment had been made, it would have been inclined to affirm the reduction of the judgment to $45,000. Parisi, 16 Mass.App.Ct. at 540-41, 453 N.E.2d 459. . By “insurers" we mean Trans-Atlantic and John Joseph Taylor. As noted above, Glacier was never properly served in this action, and we do not disturb the district court’s dismissal of Gloucester’s claims against Glacier. .We pause to explain Parisi’s reason for taking this appeal. The original judgment entered for Parisi was for $145,000 plus interest. Parisi has now received $145,000 but has received interest on only $45,000 of that amount. Parisi pursues this appeal in hopes of recovering the remainder of the judgment, which represents interest on $100,000. . We offer no opinion as to whether any of these claims is barred either by issue or claim preclusion. 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:
sc_declarationuncon	B	What follows is an opinion from the Supreme Court of the United States. Your task is to indentify whether the Court declared unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance. Note that the Court need not necessarily specify in many words that a law has been declared unconstitutional. Where federal law pre-empts a state statute or a local ordinance, unconstitutionality does not result unless the Court's opinion so states. Nor are administrative regulations the subject of declarations of unconstitutionality unless the declaration also applies to the law on which it is based. Also excluded are federal or state court-made rules. DAVIS v. FEDERAL ELECTION COMMISSION APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA No. 07-320. Argued April 22, 2008 Decided June 26, 2008 Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined, and in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined as to Part II. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Souter, Ginsburg, and Breyer, JJ., joined as to Part II, post, p. 749. Ginsburg, J., filed an opinion concurring in part and dissenting in part, in which Breyer, J., joined, post, p. 758. Andrew D. Herman argued the cause for appellant. With him on the briefs was Stanley M. Brand. Former Solicitor General Clement argued the cause for appellee. With him on the brief were Acting Solicitor General Garre, Malcolm L. Stewart, Thomasenia P. Duncan, David Kolker, Kevin Deeley, and Holly J. Baker. Briefs of amici curiae urging reversal were filed for the Center for Competitive Politics by Erik S. Jaffe; and for Gene DeRossett et al. by Kathleen M. Sullivan. Briefs of amici curiae urging affirmance were filed for Common Cause by Bradley S. Phillips; and for Democracy 21 et al. by Seth P. Waxman, Randolph D. Moss, Roger M. Witten, Donald J. Simon, J. Gerald Hebert, Paul S. Ryan, Tara Malloy, Scott L. Nelson, Fred Wertheimer, and Deborah Goldberg. Briefs of amici curiae were filed for the Cato Institute by Benjamin D. Wood, William J. McGinley, Glenn M. Willard, and Ilya Shapiro; and for the James Madison Center for Free Speech et al. by James Bopp, Jr., and Richard E. Coleson. Justice Alito delivered the opinion of the Court. In this appeal, we consider the constitutionality of federal election law provisions that, under certain circumstances, impose different campaign contribution limits on candidates competing for the same congressional seat. I A Federal law limits the amount of money that a candidate for the House of Representatives and the candidate’s authorized committee may receive from an individual, as well as the amount that the candidate’s party may devote to coordinated campaign expenditures. 2 U. S. C. § 441a (2006 ed.). Under the usual circumstances, the same restrictions apply to all the competitors for a seat and their authorized committees. Contributions from individual donors during a 2-year election cycle are subject to a cap, which is currently set at $2,300. See §§ 441a(a)(1)(A), (c); 72 Fed. Reg. 5295 (2007). In addition, no funds may be accepted from an individual whose aggregate contributions to candidates and their committees during the election cycle have reached the legal limit, currently $42,700. See 2 U. S. C. §§ 441a(a)(3)(A), (c); 72 Fed. Reg. 5295. A candidate also may not accept general election coordinated expenditures by national or state political party committees that exceed an imposed limit. See 2 U. S. C. §§ 441a(c), (d). Currently, the limit for candidates in States with more than one House seat is $40,900. 72 Fed. Reg. 5294. Section 319(a) of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 109, 2 U. S. C. § 441a-1(a), part of the so-called “Millionaire’s Amendment,” fundamentally alters this scheme when, as a result of a candidate’s expenditure of personal funds, the “opposition personal funds amount” (OPFA) exceeds $350,000. The OPFA, in simple terms, is a statistic that compares the expenditure of personal funds by competing candidates and also takes into account to some degree certain other fundraising. See § 441a-1(a). When a candidate’s expenditure of personal funds causes the OPFA to pass the $350,000 mark (for convenience, such candidates will be referred to as “self-financing”), a new, asymmetrical regulatory scheme comes into play. The self-financing candidate remains subject to the limitations noted above, but the candidate’s opponent (the “non-self-financing” candidate) may receive individual contributions at treble the normal limit (e.g., $6,900 rather than the current $2,300), even from individuals who have reached the normal aggregate contributions cap, and may accept coordinated party expenditures without limit. See §§ 441a-1(a)(1)(AMC). Once the non-self-financing candidate’s receipts exceed the OPFA, the prior limits are revived. § 441a-1(a)(3). A candidate who does not spend the contributions received under the asymmetrical limits must return them. § 441a-1(a)(4). In order to calculate the OPFA, certain information is needed about the self-financing candidate’s campaign assets and personal expenditures. Section 319(b) thus requires self-financing candidates to make three types of disclosures. First, within 15 days after entering a race, a candidate must file a “[declaration of intent” revealing the amount of personal funds the candidate intends to spend in excess of $350,000. 2 U. S. C. §441a-1(b)(1)(B). A candidate who does not intend to cross this threshold may simply declare an intent to spend no personal funds. 11 CFR § 400.20(a)(2) (2008). Second, within 24 hours of crossing or becoming obligated to cross the $350,000 mark, the candidate must file an “[i]nitial notification.” 2 U. S. C. § 441a-1(b)(1)(C). Third, the candidate must file an “[additional notification” within 24 hours of making or becoming obligated to make each additional expenditure of $10,000 or more using personal funds. § 441a-1(b)(1)(D). The initial and additional notifications must provide the date and amount of each expenditure from personal funds, and all notifications must be filed with the Federal Election Commission (FEC), all other candidates for the seat, and the national parties of all those candidates. § 441a-1(b)(1)(E). Failure to comply with the reporting requirements may result in civil and criminal penalties. §§ 437g(a)(5)-(6), (d)(1). A non-self-financing candidate and the candidate’s committee face less extensive disclosure requirements. Within 24 hours after receiving an “initial” or “additional” notification filed by a self-financing opponent, a non-self-financing candidate must provide notice to the FEC and the national and state committees of the candidate’s party if the non-self-financing candidate concludes based on the newly acquired information that the OPFA has passed the $350,000 mark. 11 CFR § 400.30(b)(2). In addition, when the additional contributions that a non-self-financing candidate is authorized to receive pursuant to the asymmetrical limitations scheme equals the OPFA, the non-self-financing candidate must notify the FEC and the appropriate national and state committees within 24 hours. § 400.31(e)(1)(ii). The non-self-financing candidate must also provide notice regarding any refunds of “excess funds” (funds received under the increased limits but not used in the campaign). §§ 400.50, 400.54. For their part, political parties must notify the FEC and the candidate they support within 24 hours of making any expenditures that exceed the normal limit for coordinated party expenditures. § 400.30(c)(2). B Appellant Jack Davis was the Democratic candidate for the House of Representatives from New York’s 26th Congressional District in 2004 and 2006. In both elections, he lost to the incumbent. In his brief, Davis discloses having spent $1.2 million, principally his own funds, on his 2004 campaign. Brief for Appellant 4. He reports spending $2.3 million in 2006, all but $126,000 of which came from personal funds. Id., at 13. His opponent in 2006 spent no personal funds. Indeed, although the OPFA calculation provided the opportunity for Davis’ opponent to raise nearly $1.5 million under § 319(a)’s asymmetrical limits, Davis’ opponent adhered to the normal contribution limits. Davis’ 2006 candidacy began in March 2006, when he filed with the FEC a “Statement of Candidacy” and, in compliance with § 319(b), declared that he intended to spend $1 million in personal funds during the general election. Two months later, in anticipation of this expenditure and its § 319 consequences, Davis filed suit against the FEC, requesting that § 319 be declared unconstitutional and that the FEC be enjoined from enforcing it during the 2006 election. After Davis declared his candidacy but before he filed suit, the FEC’s general counsel notified him that it had reason to believe that he had violated §319 by failing to report personal expenditures during the 2004 campaign. The FEC proposed a conciliation agreement under which Davis would pay a substantial civil penalty. Davis responded by agreeing to toll the limitations period for an FEC enforcement action until resolution of this suit. Davis filed this action in the United States District Court for the District of Columbia, and a three-judge panel was convened. BCRA § 403, 116 Stat. 113, note following 2 U. S. C. § 437h. While Davis requested that the case be decided before the general election campaign began on September 12, 2006, the FEC opposed the request, asserting the need for extensive discovery, and the request was denied. Ultimately, the parties filed cross-motions for summary judgment. Ruling on those motions, the District Court began by addressing Davis’ standing sua sponte. The court concluded that Davis had standing, but rejected his claims on the merits and granted summary judgment for the FEC. 501 F. Supp. 2d 22 (2007). Davis then invoked BCRA’s exclusive avenue for appellate review—direct appeal to this Court. Note following § 437h. We deferred full consideration of our jurisdiction, 552 U. S. 1135 (2008), and we now reverse. II Like the District Court, we must first ensure that we have jurisdiction to hear Davis’ appeal. Article III restricts federal courts to the resolution of cases and controversies. Arizonans for Official English v. Arizona, 520 U. S. 43, 64 (1997). That restriction requires that the party invoking federal jurisdiction have standing — the “personal interest that must exist at the commencement of the litigation.” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000) (internal quotation marks omitted). But it is not enough that the requisite interest exist at the outset. “To qualify as a case fit for federal-court adjudication, ‘an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’ ” Arizonans for Official English, supra, at 67. The FEC argues that Davis’ appeal fails to present a constitutional case or controversy because Davis lacks standing and because his claims are moot. We address each of these issues in turn. A As noted, the requirement that a claimant have “standing is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992); see also Arizonans for Official English, supra, at 64. To qualify for standing, a claimant must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged behavior; and likely to be redressed by a favorable ruling. Lujan, supra, at 560-561. The District Court held, and the parties do not dispute, that Davis possesses standing to challenge the disclosure requirements of § 319(b). When Davis filed suit, he had already declared his 2006 candidacy and had been forced by § 319(b) to disclose to his opponent that he intended to spend more than $350,000 in personal funds. At that time, Davis faced the imminent threat that he would have to follow up on that disclosure with further notifications after he in fact passed the $350,000 mark. Securing a declaration that § 319(b)’s requirements are unconstitutional and an injunction against their enforcement would have spared him from making those disclosures. That relief also would have removed the real threat that the FEC would pursue an enforcement action based on alleged violations of § 319(b) during his 2004 campaign. As a result, Davis possesses standing to challenge § 319(b)’s disclosure requirement. The fact that Davis has standing to challenge § 319(b) does not necessarily mean that he also has standing to challenge the scheme of contribution limitations that applies when § 319(a) comes into play. “[Standing is not dispensed in gross.” Lewis v. Casey, 518 U. S. 343, 358, n. 6 (1996). Rather, “a plaintiff must demonstrate standing for each claim he seeks to press” and “'for each form of relief’” that is sought. Daimler Chrysler Corp. v. Cuno, 547 U. S. 332, 352 (2006) (quoting Friends of Earth, supra, at 185). In light of these principles, the FEC argues that Davis lacks standing to attack § 319(a)’s asymmetrical limits. When Davis commenced this action, his opponent had not yet qualified for the asymmetrical limits, and later, when his opponent did qualify to take advantage of those limits, he chose not to do so. Accordingly, the FEC argues that § 319(a) did not cause Davis any injury. While the proof required to establish standing increases as the suit proceeds, see Lujan, supra, at 561, the standing inquiry remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed. Friends of Earth, supra, at 180; Arizonans for Official English, supra, at 68, n. 22. As noted above, the injury required for standing need not be actualized. A party facing prospective injury has standing to sue where the threatened injury is real, immediate, and direct. Los Angeles v. Lyons, 461 U. S. 95, 102 (1983); see also Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979) (A plaintiff may challenge the prospective operation of a statute that presents a realistic and impending threat of direct injury). Davis faced such an injury from the operation of § 319(a) when he filed suit. Davis had declared his candidacy and his intent to spend more than $350,000 of personal funds in the general election campaign whose onset was rapidly approaching. Section 319(a) would shortly burden his expenditure of personal funds by allowing his opponent to receive contributions on more favorable terms, and there was no indication that his opponent would forgo that opportunity. Indeed, the record at summary judgment indicated that most candidates who had the opportunity to receive expanded contributions had done so. App. 89. In these circumstances, we conclude that Davis faced the requisite injury from § 319(a) when he filed suit and has standing to challenge that provision’s asymmetrical contribution scheme. B The FEC’s mootness argument also fails. This case closely resembles Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449 (2007). There, Wisconsin Right to Life (WRTL), a nonprofit, ideological advocacy corporation, wished to run radio and TV ads within 30 days of the 2004 Wisconsin primary, contrary to a restriction imposed by BCRA. WRTL sued the FEC, seeking declaratory and injunctive relief. Although the suit was not resolved before the 2004 election, we rejected the FEC’s claim of mootness, finding that the case “fit comfortably within the established exception to mootness for disputes capable of repetition, yet evading review.” Id., at 462. That “exception applies where ‘(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.’” Ibid, (quoting Spencer v. Kemna, 523 U. S. 1, 17 (1998)). In WRTL, “despite BCRA’s command that the cas[e] be expedited ‘to the greatest possible extent,’ ” WRTL’s claims could not reasonably be resolved before the election concluded. 551 U. S., at 462 (quoting § 403(a)(4), 116 Stat. 114, note following 2 U. S. C. § 437h). Similarly, in this case despite BCRA’s mandate to expedite and Davis’ request that his case be resolved before the 2004 general election season commenced, Davis’ case could not be resolved before the 2006 election concluded, demonstrating that his claims are capable of evading review. As to the second prong of the exception, even though WRTL raised an as-applied challenge, we found its suit capable of repetition where “WRTL credibly claimed that it planned on running ‘materially similar’ future” ads subject to BCRA’s prohibition and had, in fact, sought an injunction that would permit such an ad during the 2006 election. 551 U. S., at 463 (some internal quotation marks omitted). Here, the FEC conceded in its brief that Davis’ § 319(a) claim would be capable of repetition if Davis planned to self-finance another bid for a House seat. Brief for Appellee 14, 20-21, and n. 5. Davis subsequently made a public statement expressing his intent to do so. See Reply Brief 16 (citing Terreri, Democrat Davis Confirms He’ll Run Again for Congress, Rochester Democrat and Chronicle, Mar. 27, 2008, p. 5B). As a result, we are satisfied that Davis’ facial challenge is not moot. Ill We turn to the merits of Davis’ claim that the First Amendment is violated by the contribution limits that apply when § 319(a) comes into play. Under this scheme, as previously noted, when a candidate spends more than $350,000 in personal funds and creates what the statute apparently regards as a financial imbalance, that candidate’s opponent may qualify to receive both larger individual contributions than would otherwise be allowed and unlimited coordinated party expenditures. Davis contends that § 319(a) unconstitutionally burdens his exercise of his First Amendment right to make unlimited expenditures of his personal funds because making expenditures that create the imbalance has the effect of enabling his opponent to raise more money and to use that money to finance speech that counteracts and thus diminishes the effectiveness of Davis’ own speech. A If § 319(a) simply raised the contribution limits for all candidates, Davis’ argument would plainly fail. This Court has previously sustained the facial constitutionality of limits on discrete and aggregate individual contributions and on coordinated party expenditures. Buckley v. Valeo, 424 U. S. 1, 23-35, 38, 46-47, and n. 53 (1976) (per curiam); Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431, 437, 465 (2001) (Colorado II). At the same time, the Court has recognized that such limits implicate First Amendment interests and that they cannot stand unless they are “closely drawn” to serve a “sufficiently important interest,” such as preventing corruption and the appearance of corruption. See, e. g., McConnell v. Federal Election Comm’n, 540 U. S. 93, 136, 138, n. 40 (2003); Colorado II, supra, at 456; Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 387-388 (2000); Buckley, supra, at 25-30, 38. When contribution limits are challenged as too restrictive, we have extended a measure of deference to the judgment of the legislative body that enacted the law. See, e. g., Randall v. Sorrell, 548 U. S. 230, 248 (2006) (plurality opinion); Nixon, supra, at 396-397; Buckley, supra, at 30, 111, 103-104. But we have held that limits that are too low cannot stand. Randall, 548 U. S., at 246-262; id., at 263 (Alito, J., concurring in part and concurring in judgment). There is, however, no constitutional basis for attacking contribution limits on the ground that they are too high. Congress has no constitutional obligation to limit contributions at all; and if Congress concludes that allowing contributions of a certain amount does not create an undue risk of corruption or the appearance of corruption, a candidate who wishes to restrict an opponent’s fundraising cannot argue that the Constitution demands that contributions be regulated more strictly. Consequently, if § 319(a)’s elevated contribution limits applied across the board, Davis would not have any basis for challenging those limits. B Section 319(a), however, does not raise the contribution limits across the board. Rather, it raises the limits only for the non-self-financing candidate and does so only when the self-financing candidate’s expenditure of personal funds causes the OPFA threshold to be exceeded. We have never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other, and we agree with Davis that this scheme impermissibly burdens his First Amendment right to spend his own money for campaign speech. In Buckley, we soundly rejected a cap on a candidate’s expenditure of personal funds to finance campaign speech. We held that a “candidate . . . has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election” and that a cap on personal expenditures imposes “a substantial,” “cleajr],” and “direcft]” restraint on that right. 424 U. S., at 52-53. We found that the cap at issue was not justified by “[t]he primary governmental interest” proffered in its defense, i. e., “the prevention of actual and apparent corruption of the political process.” Id., at 53. Far from preventing these evils, “the use of personal funds,” we observed, “reduces the candidate’s dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse to which . . . contribution limitations are directed.” Ibid. We also rejected the argument that the expenditure cap could be justified on the ground that it served “[t]he ancillary interest in equalizing the relative financial resources of candidates competing for elective office.” Id., at 54. This putative interest, we noted, was “clearly not sufficient to justify the . . . infringement of fundamental First Amendment rights.” Ibid. Buckley’s emphasis on the fundamental nature of the right to spend personal funds for campaign speech is instructive. While BCRA does not impose a cap on a candidate’s expendíture of personal funds, it imposes an unprecedented penalty-on any candidate who robustly exercises that First Amendment right. Section 319(a) requires a candidate to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations. Many candidates who can afford to make large personal expenditures to support their campaigns may choose to do so despite § 319(a), but they must shoulder a special and potentially significant burden if they make that choice. See Day v. Holahan, 34 F. 3d 1356, 1359-1360 (CA8 1994) (concluding that a Minnesota law that increased a candidate’s expenditure limits and eligibility for public funds based on independent expenditures against her candidacy burdened the speech of those making the independent expenditures); Brief for Appellee 29 (conceding that “[§]319 does impose some consequences on a candidate’s choice to self-finance beyond certain amounts”). Under § 319(a), the vigorous exercise of the right to use personal funds to finance campaign speech produces fundraising advantages for opponents in the competitive context of electoral politics. Cf. Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1,14 (1986) (plurality opinion) (finding infringement on speech rights where if the plaintiff spoke it could “be forced ... to help disseminate hostile views”). The resulting drag on First Amendment rights is not constitutional simply because it attaches as a consequence of a statutorily imposed choice. In Buckley, we held that Congress “may engage in public financing of election campaigns and may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure limitations” even though we found an independent limit on overall campaign expenditures to be unconstitutional. 424 U. S., at 57, n. 65; see id., at 54-58. But the choice involved in Buckley was quite different from the choice imposed by § 319(a). In Buckley, a candidate, by forgoing public financing, could retain the unfettered right to make unlimited personal expenditures. Here, § 319(a) does not provide any way in which a candidate can exercise that right without abridgment. Instead, a candidate who wishes to exercise that right has two choices: abide by a limit on personal expenditures or endure the burden that is placed on that right by the activation of a scheme of discriminatory contribution limits. The choice imposed by § 319(a) is not remotely parallel to that in Buckley. Because § 319(a) imposes a substantial burden on the exercise of the First Amendment right to use personal funds for campaign speech, that provision cannot stand unless it is “justified by a compelling state interest,” Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 256 (1986); see also, e. g., McConnell, 540 U. S., at 205; Austin v. Michigan Chamber of Commerce, 494 U. S. 652, 657-658 (1990); id., at 680 (Scalia, J., dissenting); id., at 701, 702-703 (Kennedy, J., dissenting); Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 500-501 (1985); First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 786 (1978); Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 609 (1996) (Colorado I) (principal opinion); id., at 640-641 (Thomas, J., concurring in judgment and dissenting in part). No such justification is present here. The burden imposed by § 319(a) on the expenditure of personal funds is not justified by any governmental interest in eliminating corruption or the perception of corruption. The Buckley Court reasoned that reliance on personal funds re duces the threat of corruption, and therefore § 319(a), by discouraging use of personal funds, disserves the anticorruption interest. Similarly, given Congress’ judgment that liberalized limits for non-self-financing candidates do not unduly imperil anticorruption interests, it is hard to imagine how the denial of liberalized limits to self-financing candidates can be regarded as serving anticorruption goals sufficiently to justify the resulting constitutional burden. The Government maintains that §319(a)’s asymmetrical limits are justified because they “level electoral opportunities for candidates of different personal wealth.” Brief for Appellee 34. “Congress enacted Section 319,” the Government writes, “to reduce the natural advantage that wealthy individuals possess in campaigns for federal office.” Id., at 33 (emphasis added). Our prior decisions, however, provide no support for the proposition that this is a legitimate government objective. See Nixon, 528 U. S., at 428 (Thomas, J., dissenting) (“ ‘[Preventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances’” (quoting National Conservative Political Action Comm., supra, at 496-497)); Randall, 548 U. S., at 268 (Thomas, J., concurring in judgment) (noting “the interests the Court has recognized as compelling, i. e., the prevention of corruption or the appearance thereof”). On the contrary, in Buckley, we held that “[t]he interest in equalizing the financial resources of candidates” did not provide a “justification for restricting” candidates’ overall campaign expenditures, particularly where equalization “might serve ... to handicap a candidate who lacked substantial name recognition or exposure of his views before the start of the campaign.” 424 U. S., at 56-57. We have similarly held that the interest “in equalizing the relative ability of individuals and groups to influence the outcome of elections” cannot support a cap on expenditures for “express advocacy of the election or defeat of candidates,” as “the concept that govern-merit may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” Id., at 48-49; see also McConnell, supra, at 227 (noting, in assessing standing, that there is no legal right to have the same resources to influence the electoral process). Cf. Austin, supra, at 705 (Kennedy, J., dissenting) (rejecting as “antithetical to the First Amendment” “the notion that the government has a legitimate interest in restricting the quantity of speech to equalize the relative influence of speakers on elections”). The argument that a candidate’s speech may be restricted in order to “level electoral opportunities” has ominous implications because it would permit Congress to arrogate the voters’ authority to evaluate the strengths of candidates competing for office. See Bellotti, supra, at 791-792 (“[T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments” and “may consider, in making their judgment, the source and credibility of the advocate”). Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, Art. I, § 2, and it is a dangerous business for Congress to use the election laws to influence the voters’ choices. See Bellotti, supra, at 791, n. 31 (The “[g]overnment is forbidden to assume the task of ultimate judgment, lest the people lose their ability to govern themselves”). Finally, the Government contends that § 319(a) is justified because it ameliorates the deleterious effects that result from the tight limits that federal election law places on individual campaign contributions and coordinated party expenditures. These limits, it is argued, make it harder for candidates who are not wealthy to raise funds and therefore provide a substantial advantage for wealthy candidates. Accordingly, § 319(a) can be seen, not as a legislative effort to interfere with the natural operation of the electoral process, but as a legislative effort to mitigate the untoward consequences of Congress’ own handiwork and restore “the ‘normal relationship’ between a candidate’s financial resources and the level of popular support for his candidacy.” Brief for Appellee 33. Whatever the merits of this argument as an original matter, it is fundamentally at war with the analysis of expenditure and contributions limits that this Court adopted in Buckley and has applied in subsequent cases. The advantage that wealthy candidates now enjoy and that § 319(a) seeks to reduce is an advantage that flows directly from Buckley’s disparate treatment of expenditures and contributions. If that approach is sound—and the Government does not urge us to hold otherwise—it is hard to see how undoing the consequences of that decision can be viewed as a compelling interest. If the normally applicable limits on individual contributions and coordinated party contributions are seriously distorting the electoral process, if they are feeding a “public perception that wealthy people can buy seats in Congress,” Brief for Appellee 34, and if those limits are not needed in order to combat corruption, then the obvious remedy is to raise or eliminate those limits. But the unprecedented step of imposing different contribution and coordinated party expenditure limits on candidates vying for the same seat is antithetical to the First Amendment. IV The remaining issue that we must consider is the constitutionality of §319(b)’s disclosure requirements. “[W]e have repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment.” Buckley, 424 U. S., at 64. As a result, we have closely scrutinized disclosure requirements, including requirements governing independent expenditures made to further individuals’ political speech. Id., at 75. To survive this scrutiny, significant encroachments “cannot be justified by a mere showing of some legitimate governmental interest.” Id., at 64. Instead, there must be “a ‘relevant correlation’ or 'substantial relation’ between the governmental interest and the information required to be disclosed,” and the governmental interest “must survive exacting scrutiny.” Ibid, (footnotes omitted). That is, the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights. Id., at 68, 71. The § 319(b) disclosure requirements were designed to implement the asymmetrical contribution limits provided for in § 319(a), and as discussed above, § 319(a) violates the First Amendment. In light of that holding, the burden imposed by the § 319(b) requirements cannot be justified, and it follows that they too are unconstitutional. * * * In sum, we hold that §§ 319(a) and (b) violate the First Amendment. The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. APPENDIX BCRA §§ Question: Did the Court declare unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance? A. No declaration of unconstitutionality B. Act of Congress declared unconstitutional C. State or territorial law, regulation, or constitutional provision unconstitutional D. Municipal or other local ordinance unconstitutional Answer:
songer_trialpro	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America, Appellee, v. UPPER POTOMAC PROPERTIES CORPORATION et al., Appellants. No. 15106. United States Court of Appeals, Fourth Circuit. Argued April 6, 1971. Decided Sept. 29, 1971. Philip O. Foard, Baltimore, Md. (George W. White, Jr., and Buckmaster, White, Mindel & Clarke, Baltimore, Md., on brief), for appellants. Peter R. Steenland, Atty., Dept. of Justice (Shiro Kashiwa, Asst. Atty. Gen., Edmund B. Clark, Anthony C. Liotta, Philip M. Zeidner, Attys., Dept. of Justice, and George Beall, U. S. Atty., on brief), for appellee. Before BOREMAN, BRYAN and CRAVEN, Circuit Judges. CRAVEN, Circuit Judge: This is an appeal from a judgment entered on a jury verdict in the United States District Court for the District of Maryland, awarding the defendants $315,000.00 as compensation for the taking by the United States of over 2,060 acres of coal mining property. It was agreed before trial that the highest and best use of the land was for coal mining purposes, and at the trial the testimony of all witnesses was directed to the value of the property for such purposes. The questions presented us are these: (1) whether the property should be valued as of the date of the trial, as defendants contend, or as of the date of the filing of the Order for Delivery of Possession, as held by the district court; (2) whether the district judge erred in admitting into evidence testimony concerning the sale of a piece of coal mining property to the lessee of all the mineral rights to the property; and (3) whether it was error to charge the jury that if they found certain sales relied upon by the government’s expert witness to be comparable, they were the best evidence of value, but not the only evidence to be considered. For reasons set out below we conclude that the assignments of error are without merit and affirm the judgment below. This action was commenced on April 17, 1968, when the government filed a Complaint and a Notice of Condemnation according to 33 U.S.C. §§ 591, 594. On April 18, 1968, the district court entered ex parte an Order for Delivery of Possession. On May 14, 1968, a stipulation between the parties was filed. The defendants argue that since the government did not file a declaration of taking under 40 U.S.C. §§ 258a-258e, nor take physical possession at any time before the trial, the value of the land is to be ascertained as of the date of the trial. However, under 33 U.S.C. § 594 the United States is entitled to the right of immediate possession provided only that subsequent compensation is assured. When it proceeds under this title, as was done here, the United States is not required to file a Declaration of Taking under 40 U.S.C. §§ 258a-258e unless it elects to do so. United States v. Catlin, 142 F.2d 781 (7th Cir. 1944). We agree with the district court that the time of taking was on April 18, 1968, the date of the Order for Delivery of Possession. While it is true that the United States did not have actual physical possession of the land in question on that date, the stipulation of May 14, 1968, between the parties indicates that the rights of the defendants to the use of the land was limited in such a way as to be inconsistent with anything except a possessory right in the government with certain rights reserved to the defendants. Our conclusion on this issue is reinforced by paragraph 5 of the Stipulation, the proper interpretation of which we think is provided by the district court. “Only if the land had previously been taken by the United States [i. e., at the date of the Stipulation], but defendants were nevertheless permitted to use some of it, and remove coal, would it be necessary to provide specifically for reflecting, ‘the diminution in value * * by reason [of removal] of the coal or other materials.’ ” R. 88-93, App. at 19. We think the district judge did not abuse his discretion when he allowed the jury to consider the price paid for the coal mining operation immediately adjacent to the property in question on the theory that comparable sales- are the best evidence of value. The government appraisers testified that they took this price into consideration as a comparable sale in arriving at their figure of what the fair market value of the property in question would be. This sale, entered into in 1967 (hereinafter referred to as the Johnstown sale), was of about 5,000 acres by the Johnstown Coal Company to Douglas Coal Company for $250,000. Douglas Coal Company already had a lease on the property under which they could mine the coal on the property for 20 years, with an option to renew for ten years or until the coal was exhausted. As royalty under their lease, Douglas was to pay a per ton price which varied depending on the mining method used, but which was to be at least $625 per month. The defendants contend that since this lease existed, evidence of the subsequent sale should have been excluded because no one other than Douglas could have bought the land and used it for coal mining. Implicit in this argument is the supposition that since Douglas had the lease, it could not have rationally paid the same price for the freehold as it would have if the lease had not existed, and therefore the purchase price in the Johnstown sale could not have reflected the fair market value of the freehold. It is clear that the term fair market value, with reference to the land in question, is the complete freehold interest. However, it does not follow that the fair market value of the property involved in the Johnstown sale must be greater than the price paid for the land subject to the lease. This depends entirely on the terms of the lease. While it is true that only Douglas could have bought the land and used it for coal mining, whether or not it would pay more or less than the fair market value of the land would depend upon the terms of the lease. There was conflicting testimony when evidence of this sale was first introduced whether the government appraisers knew the terms of the lease when they arrived at their conclusions as to fair market value of the property in question. However, there was also evidence that the government appraisers considered the lease to be a “fair market” lease (App. 287) and that they had concluded from conversations with the principals to the Johnstown sale that the sale was for the fair market value of the land. If this testimony is taken as true, as it must be here, there is no reason to believe that Douglas would not have paid the value of the land as it would have been without the lease. If the royalty payments were more than the fair rental value of the land, Johnstown would have no reason to sell and the lease would actually enhance the value of the freehold. If the royalty payments had been less than the fair rental value, it is true that the freehold interest would be less valuable with the lease than without it. But if the royalty payments reflect the fair rental value in 1967, then it would seem that the lease neither added nor detracted from the value of the land. There is testimony which would support a conclusion that the lease in question provided for royalty payments below the fair rental value in 1967, in which ease the sale price could well have been less than the fair market value of the land, since the leasehold would have value. However, there is also adequate testimony to support the conclusion that the lease in question in the Johnstown sale properly reflected the fair rental value of the land in 1967, in which case the lease could properly be disregarded when arriving at a conclusion as to fair market value of the freehold, as one of the government appraisers testified he did. App. at 261. Allowing the jury to consider whether the sale price of the Johnstown property was a comparable sale was clearly within the sound discretion of the district judge; indeed, it would have been error to exclude it for federal courts favor “a broad rule of admissibility * * * of all evidence which is relevant and material to the issues in controversy, unless there is a sound and practical reason for excluding it. * * * ” United States v. Sowards, 370 F.2d 87, 90 (10th Cir. 1966). The defendant property owners next contend that it was error to instruct the jury, preliminarily and at the close of the case, that comparable sales are the best evidence of value. In addition, the property owners seem to argue that it was also error to allow the jury to consider the prior sales as evidence bearing on the value of the property in question because another method of valuation is generally used by members of the coal mining industry when they consider whether to buy a piece of coal bearing property. This method, termed the discounted royalty rate method, uses the product of the amount of recoverable coal in place times the price per ton of such coal, discounted over time. Defendants urge that because this method of valuation is almost universally used by people in the coal mining business any other method of valuation is inadmissible under exclusionary rules of evidence. We disagree. That it may be an acceptable method does not serve to exclude otherwise competent evidence relating to valuation. For a discussion of whether this method is an acceptable method of valuation or a deviation from the proper standard of value, see United States v. Sowards, 370 F.2d 87 (10th Cir. 1966), and cases cited. The main thrust of defendants’ appeal is that the district judge committed error by instructing the jury that comparable sales are the best evidence of value. The property owners claim that the effect of the trial judge’s instructions was to preclude the jury from even considering the method of valuation used in the industry, and that the jury thought that the only issue to be determined was whether or not there were comparable sales. A reading of the instructions given the jury by the trial judge, however, does not support the defendants’ contention. On numerous occasions the trial judge repeated his basic instructions that “ * * * if there are comparable sales, they are the best evidence, but they are not to be taken solely and exclusively, they are to be taken in connection with all of these other things.” App. 1147. See also App. 1148-1150. Throughout his instructions, the trial judge emphasized that comparable sales, if the jury found them in fact to be comparable, are not the only evidence of value which the jury was to consider. In addition, the trial judge specifically instructed the jury that they could also consider the price per ton of coal and the royalty rate in arriving at the amount to be paid defendants. App. 1150. We think it is clear that the trial judge’s instructions did not limit the jury in the manner that the defendants contend. The defendants further contend that the trial judge labored under the erroneous impression that he was compelled by decisions of this court to charge the jury that comparable sales are the best evidence of value in all condemnation cases and that but for his misapprehension he would not have so charged in this case. We perceive no such error. It is clear that the trial judge did not think such an instruction was mandatory under all circumstances, but rather concluded that under the facts of this case such an instruction was appropriate and therefore mandatory. Having correctly determined that there was an issue of fact for the jury as to whether several sales relied upon by the government witness were comparable, the trial judge was then obligated to give an instruction that if found to be comparable, such sales are the best evidence of value, but not the only evidence. The law was correctly stated by Judge Boreman in United States v. Whitehurst, 337 F.2d 765, 775 (4th Cir. 1964), when he said, “[I]t is settled law that comparable sales are the best evidence of value.” See also United States v. Miller, 317 U.S. 369, 374-375, 63 S.Ct. 276, 87 L.Ed. 336 (1943), United States v. Lowrie, 246 F.2d 472, 474 (4th Cir. 1957). The judgment of the district court will be Affirmed. . The lands taken were to be used for the building of the Bloomington Dam and Reservoir on the North Branch of the Potomac River in Garrett County, Maryland. . Section 594 reads in relevant part as follows : Whenever the Secretary of the Army, in pursuance of authority conferred on him by law, causes proceedings to be instituted in the name of the United States for the acquirement by condemnation of any lands, easements, or rights of way needed for a work of river and harbor improvements duly authorized by Congress, the United States, upon the filing of the petition in any such proceedings, shall have the right to take immediate possession of said lands, easements, or rights of way, to the extent of the interest to be acquired, and proceed with such public works thereon as have been authorized by Congress: Provided, That certain and adequate provision shall have been made for the payment of just compensation to the party or parties entitled thereto, either by previous appropriation by the United States or by the deposit of moneys or other form of security in such amount and form as shall be approved by the court in which such proceedings shall be instituted. * * * . For example, the stipulation provides that: Defendants further agree that no strip mining, cast off of overburden or disturbance of the earth for any reason is permitted by them except as stated below. Defendants may conduct mining operations on the property subject to following conditions: After conditions relative to strip mining in certain areas were laid out, the stipulation continued: In the event that the District Engineer should determine that the continued use and occupancy of the areas designated herein constitutes an interference with protect purposes the Defendants hereby agree to cease its operations immediately upon notice by the United States Army District Engineer to said effect. . Defendants further agree that the diminution in the value of the land described in paragrapli 3 above by reason of removal of coal or other materials shall be reflected in the just compensation as determined by judicial process or by stipulated agreement between the plaintiff and defendants. Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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. Leonard GINTER, Appellant, v. INTERNAL REVENUE SERVICE and District Director, Paul D. Williams, Appellees. No. 80-2146. United States Court of Appeals, Eighth Circuit. Submitted April 29, 1981. Decided May 4, 1981. Leonard Ginter, pro se. John F. Murray, Acting Asst. Atty. Gen., Michael L. Paup, Richard W. Perkins, Helen M. Marinak, Tax Division, Dept, of Justice, Washington, D. C., for appellees; George W. Proctor, U. S. Atty., Fletcher Jackson, Asst. U. S. Atty., Little Rock, Ark., of counsel. Before STEPHENSON and McMILLIAN, Circuit Judges, and DAVIES, Senior District Judge. The Honorable Ronald N. Davies, United States Senior District Judge for the District of North Dakota, sitting by designation. PER CURIAM. Appellant Leonard Ginter filed this suit under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, demanding that the Internal Revenue Service (IRS) release certain requested information and documents. Some of the information was released by the IRS and the rest was claimed exempt under 26 U.S.C. § 6103. The district court agreed with the IRS as to the exempt status of the withheld material and granted the IRS’s motion for summary judgment. The district court by a separate order denied appellant’s motion for attorney’s fees. Appellant appeals only the denial of attorney’s fees and does not challenge the granting of the summary judgment. The issue presented to the court is whether the district court abused its discretion in denying the motion for attorney’s fees. An analysis of this issue requires an investigation of the following factors: (1) whether appellant “substantially prevailed”; (2) if appellant substantially prevailed, whether judicially recognized criteria warrant the award of attorney’s fees; and (3) if the first two are resolved in appellant’s favor, whether a pro se litigant is entitled to attorney’s fees. For the reasons discussed below, we affirm the district court and hold that the district court did not abuse its discretion in denying attorney’s fees. This resolution makes unnecessary a discussion of the two other factors. The provision of the FOIA governing the award of attorney’s fees is 5 U.S.C. § 552(a)(4)(E): The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed. “The purpose of this section was to remove the often insurmountable financial barriers the average citizen faced when attempting to force governmental compliance with [FOIA], not to provide an award to any plaintiff who successfully forced the government to disclose the requested information.” Lovell v. Alderete, 630 F.2d 428, 431 n.2 (5th Cir. 1980), citing Nationwide Building Maintenance, Inc. v. Sampson, 182 U.S.App.D.C. 83, 559 F.2d 704, 711 (1977). In interpreting this subsection the courts have uniformly held that the decision whether to award attorney’s fees is within the discretion of the district court and will not be overturned on appeal except for abuse of discretion. Crooker v. United States Department of Justice, 632 F.2d 916, 918 (1st Cir. 1980); Lovell v. Alderete, supra, 630 F.2d at 431; Bullard v. Webster, 623 F.2d 1042, 1047 (5th Cir. 1980); Exner v. FBI, 612 F.2d 1202, 1207 (9th Cir. 1980). In addition, the findings of the district court on whether the plaintiff has “substantially prevailed” are to be affirmed unless clearly erroneous. Exner v. FBI, supra, 612 F.2d at 1207. Further, the plaintiff carries the burden of sustaining the request for attorney’s fees, including the burden of showing that the plaintiff substantially prevailed. Lovell v. Alderete, supra, 630 F.2d at 432. In establishing the standards for determining whether the plaintiff has substantially prevailed, the courts have proceeded by describing what does not bar an award of attorney’s fees. It has been held that the production of the requested documents does not automatically moot an award of attorney’s fees. Cuneo v. Rumsfeld, 180 U.S.App.D.C. 184, 553 F.2d 1360, 1364 (1977). Nor does the failure to receive a favorable judgment preclude an award of attorney’s fees if the plaintiff’s action helped induce disclosure of the requested documents. Vermont Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 509 (2d Cir. 1976) (hereinafter Vermont Low Income). However, the plaintiff must show more than that the information was requested and that it was supplied. “Absent a court order in [the plaintiff’s] favor, [the] plaintiff must show that prosecution of the action could reasonably be regarded as necessary to obtain the information and that the action had a substantive causative effect on the delivery of the information.” Lovell v. Alderete, supra, 630 F.2d at 432, citing Cox v. United States Department of Justice, 195 U.S.App.D.C. 189, 601 F.2d 1, 6 (1979) (per curiam), and Vermont Low Income, supra, 546 F.2d at 514. Cf. Crooker v. United States Department of Justice, supra, 632 F.2d at 919 (not adopting Vermont Low Income test, instead stating that when there is a colorable claim of cause and effect, the government must demonstrate that “the complainant’s success in obtaining the requested documents was more due to its responsible compliance with the provisions of [FOIA] than to the complainant’s pending suit”). The first difficulty in applying these standards to the instant case is the wording of the district court’s order: “The defendant’s motion for summary judgment having been granted, the plaintiff’s motion for attorney’s fees is hereby denied.” This order could be interpreted as stating that because appellant failed to obtain a favorable judgment, he has failed to substantially prevail. Under such an interpretation, the district court’s order would be contrary to case law. See Vermont Low Income, supra, 546 F.2d 509. However, if we look beyond the order itself to the facts of the case, it appears that appellant has failed to show that he has substantially prevailed. Based on the correspondence between appellant and Cecil L. Kelly, the District Disclosure Officer at Little Rock, Arkansas, the facts are as follows: After making an improper FOIA request and being instructed by Kelly on how to make a proper request, appellant mailed a FOIA request to the IRS local office on October 19, 1979, which made the following requests: 1. Give me names and addresses of company or companies or person or persons with amount made for each year in question. 2. Give the amount made on income from these alleged wages for each year in question. 3. Give me a photo copy of the letter I sent to IRS office in Austin Tx. pointing out I am not required to file. 4. What is the amount I can make with 3 dependents per year and not be required to file? 5. Give me a photo copy of the oath of office of the following: A. Roy Southern B. Ira Ralston C. Charles Evans D. Tom Beasley E. Paul D. Williams 6. Fill in the AFFIDAVIT FOR CITIZENS PROTECTION for the years in question and return to me. 7. A reasonable fee for photo copies of the above will be paid for the years in question. Kelly responded to the October 19 letter on December 5, 1979, requesting more information because appellant’s letter failed to reasonably describe the records sought and denying the requested oaths of office. On November 30, 1979, appellant filed another FOIA request asking for (1) all the files indexed and maintained under his name and (2) an accounting pursuant to 5 U.S.C. § 552a(c). By letter dated December 11, 1979, Kelly sent appellant a copy of Document 6372 and informed him that a search for the information had been requested. On December 20, Kelly again wrote appellant that the search had revealed no disclosures and that copies of appellant’s 1976 and 1977 files had not been received from the centralized storage facilities. On January 12, 1980, appellant complained by letter that he had not received the requested information. On January 22, 1980, Kelly wrote appellant and told him that some information had been denied (i. e., copies of particular employees’ oaths of office) and that the search for other information had been renewed. Thereafter, on February 8, 1980, Kelly informed appellant that the regional storage center had returned the search request, stating that appellant’s records were not in place. Kelly informed appellant that a special search had now been requested. On March 7,1980, before the government responded as to the results of the special search, appellant filed suit. Thereafter, copies of all but portions of seventeen documents were released to appellant, including copies of five appointment affidavits. With regard to appellant’s request that he be permitted access to all files pertaining to him, the IRS claimed that certain documents were exempt under 26 U.S.C. § 6103(a), (e)(6), and 5 U.S.C. § 552(b)(2), (b)(5), and (b)(7)(C). Appellant was furnished with a “Vaughn index,” and the district court examined in camera the relevant documents. The district court agreed with the IRS that these documents were exempt and granted the IRS a summary judgment. In support of his motion for attorney’s fees and in his appeal brief, appellant makes the following arguments: (1) “I had asked for a copy of the files on me along with the oaths of office for several IRS agents by freedom of information letters, [t]he IRS refused to cooperate, and on March 7, 1980 I filed suit to receive those items, in the course of the suit I received the oaths of office for each agent requested along with all the records, slightly deleted .... ” and (2) “Plaintiff has won his suit by receiving over 5 [pounds] of documents and papers.” Appellant emphasizes the facts that the undisclosed oaths of office were supplied after the suit was brought; that other requested information, although not denied, was produced after the suit was brought; and that the amount of material received was “substantial” (“five pounds”). These arguments fail to show that the suit (1) was reasonably necessary to obtain the information and (2) had a substantive causative effect on the production of the requested information. Appellant has only shown that he received part of the requested material after the suit was brought. Further, the facts show that the delay in producing the information was due in part to appellant’s broad and vague requests, see Crook er v. United States Department of Justice, supra, 632 F.2d at 917, and the government’s inability to find the documents, see Vermont Low Income, supra, 546 F.2d at 513-14. The present case is analogous to the situation in Vermont Low Income where the government responded to a request for information by stating that they had been unable to locate the information and requesting that the plaintiff contact them to discuss the matter. Instead of responding to this request, the plaintiff filed suit. Thereafter the government found the documents and produced them.' The Second Circuit held that under these circumstances the plaintiff failed to show that the suit was reasonably necessary and had a substantive causative effect on the production of the requested information. Id. at 514-15. Here, the IRS was unable to locate the information and was conducting a special search when appellant filed suit. Up until this time the IRS had not informed appellant that the requested material would not be produced. Under these circumstances appellant’s suit was premature and thus not reasonably necessary. There was no indication that the government had not been acting in good faith. In fact only six months had passed since the initial request, which was broad and vague. Only five months had passed since appellant’s second request and the government had informed him of the difficulties in obtaining this information only one month prior to the filing of the suit. We agree with the district court that appellant failed to show that his suit was reasonably necessary and had a substantive causative effect on the production of the requested information. Appellant thus failed to show that he “substantially prevailed.” Under these circumstances the district court did not abuse its discretion in denying appellant’s motion for attorney’s fees. Accordingly, the judgment of the district court is affirmed. . The Honorable Henry Woods, United States District Judge for the Eastern District of Arkansas. . In Lovell v. Alderete, 630 F.2d 428, 431-32 (5th Cir. 1980), citing Blue v. Bureau of Prisons, 570 F.2d 529, 533 (5th Cir. 1978), the Fifth Circuit held: Once a plaintiff has substantially prevailed and thus become eligible for an award of attorney’s fees, a court should determine whether the plaintiff is entitled to the award in light of these criteria: (1) The benefit to the public deriving from the case; (2) the commercial benefit to the complainant; (3) the nature of the complainant’s interest in the record sought; and (4) whether the government’s withholding of the records sought had a reasonable basis in law. Additionally, the court may consider any relevant equitable factors that may affect its balancing of the criteria above. . In Crooker v. United States Dep’t of the Treasury, 634 F.2d 48, 49 (2d Cir. 1980), the Second Circuit held that pro se litigants “who have made no showing that prosecuting their lawsuits caused them to divert any of their time from income-producing activity” are not permitted an award of attorney’s fees. See also id. (listing cases which allow and disallow attorney’s fees for pro se litigants). . We note that the district court did not hold an evidentiary hearing and made no factual findings. Compare Crooker v. United States Dep’t of Justice, 632 F.2d 916, 919 n.5 (1st Cir. 1980) (better practice would probably be for district court in ruling upon a request for attorney’s fees in FOIA actions to hold evidentiary hearings to decide whether a suit was necessary or not), and Sargeant v. Sharp, 579 F.2d 645, 647 (1st Cir. 1978) (holding that the determination in that particular instance required such a hearing). Here, appellant does not urge as error the failure to hold an evidentiary hearing. We note that sufficient indication of the factors before the district court appears in the record to enable us to conclude that the district court did not abuse its discretion and therefore do not remand the cause to the district court for reconsideration. See Buxton v. Patel, 595 F.2d 1182, 1185 n.2 (9th Cir. 1979). . Minor spelling errors have been corrected. Apparently the October 19 letter (Ex. C) was returned to appellant so that on October 27 appellant was able to make this additional request: “I now want to look at your complete file on me and would like you to set a date that I can look at it.” . See Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820, 826-28 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). A Vaughn Index, technically a Notice of Submission of Index, “is not required for every document in a FOIA case. Such a pleading ‘is a device to enable the court to review effectively the agency’s decision not to disclose, and is not a per se requirement of every’ FOIA case.” Anheuser-Busch, Inc. v. IRS, 493 F.Supp. 549, 550 n.1 (D.D.C.1980), citing Exxon Corp. v. FTC, 384 F.Supp. 755 (D.D.C.), remanded mem. 174 U.S.App.D.C. 77, 527 F.2d 1386 (1976). . Even if the approach of Crooker v. United States Dep’t of Justice, supra, 632 F.2d at 919 (discussed in text supra), was followed, the result would not differ because here the IRS has shown that the production of the requested information was more due to responsible compliance rather than to appellant’s pending suit. 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_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). RAILWAY EXPRESS AGENCY, Inc., v. LITTLE. No. 4561. Circuit Court of Appeals, Third Circuit. May 4, 1931. Sur Motion for a New Trial. This is an action for damages for personal injuries. The plaintiff’s statement of claim alleges that, while crossing the street, she was negligently run down by the defendant’s electric motortruck. The negligence charged is, among other things, failure to control the course, speed, and direction of the truck, and failure to regard the rights of the plaintiff in the lawful use of the highways and to allow the plaintiff sufficient time to reach a place of safety. The defendant might have asked for a more specific statement, but did not. The defendant filed no affidavit of defense, thereby admitting responsibility for the manner in which the truck alleged to have struck the plaintiff was operated, but not admitting that it struck the plaintiff or that it was operated in the manner averred in the statement. Flanigan v. McLean, 267 Pa. 553, 558, 110 A. 370; Charlap v. Lepow, 87 Pa. Super. Ct. 466; Wilson v. Adams Express Company, 72 Pa. Super. Ct. 384. At the trial the defendant offered no evidence, and the verdict was for the plaintiff. Strictly speaking, there were no eyewitnesses. The plaintiff herself sustained a fractured skull and was unable to remember anything that had happened. Her ease depended largely upon the testimony of two witnesses, a lady who was crossing the street with her, and a park guard who was directing traffic. Neither of these saw the actual manner in which the plaintiff received her injury- . There was some conflict between the statements of these witnesses in describing things which they both saw. The testimony of the plaintiff’s companion contains apparent contradictions upon at least one point. However, it was the province of the jury to reconcile conflicting statements in the plaintiff’s evidence, whether of the same or of different witnesses, or to draw the line between them and say which shall prevail (Danko v. Pittsburgh Rys. Co., 230 Pa. 295, 297, 79 A. 511; Parker v. Matheson Motor Car Company, 241 Pa. 461, 467, 88 A. 653; Kohler v. Penna. R. Co., 135 Pa. 346, 19 A. 1049; Ely v. Pittsburgh, C., C. & St. L. Ry. Co., 158 Pa. 233, 27 A. 970; Strader v. Monroe County, 202 Pa. 626, 51 A. 1100; Zenzil v. D., L. & W. R. R. Co., 257 Pa. 473, 101 A. 809), unless, of course, the conflicting statements are so irreconcilable that a finding one way or the other would be a mere guess (Mulligan v. Lehigh Traction Company, 241 Pa. 139, 88 A. 318), which is clearly not the ease here. The verdict for the plaintiff implies that the jury accepted that part of the evidence favorable to the plaintiff (Mackin v. Patterson, 270 Pa. 107, 112 A. 738), and that, where different inferences were possible, it drew those favorable to the plaintiff’s case. In view of these rules, it is permissible to construct from the plaintiff’s evidence the version of the accident most favorable to her contention and to infer that the jury so found. So viewed, the facts of the plaintiff’s ease áre as follows: The accident occurred at'quarter to 9 in the evening of September 18, 1929. That it was dark may be inferred from the fact that the headlights of the automobiles on the streets were lighted. At the place of the accident, Eighteenth street running north and south intersects the Parkway running diagonally southeast and northwest. There was no testimony as to the width of the streets or sidewalks, except that it appeared that Eighteenth street is wide enough to accommodate three automobiles side by side. Along the south side of the Parkway there is a curb and a paved footwalk for pedestrians. The footwalk does not extend from the curb to the building line, but there is a plot of grass of undetermined width extending along on either side of it. There is no evidence to show the total distance from the curb to the building line, which distance would include the footwalk and the two plots of grass. There is nothing in Eighteenth street by way of painted lines or staples or otherwise to define the crossing for pedestrians, The traffic on Eighteenth street is north. At the time and place of the accident, traffic was controlled by a park guard who stood in the middle of the street intersection with white cape and gloves, starting and stopping traffic with arm signals only. The plaintiff and her companion, Mrs. Crowley, left the footwalk at the southeast comer of Eighteenth street and the Parkway and proceeded westwardly aeross Eighteenth street. The traffic direction was with them, and the north-bound vehicles on Eighteenth street were being held up by the arm signal of the guard. Two automobiles were standing in file on the east side of Eighteenth street, and the women passed in front of these. There were no automobiles near by in the ear track. On the west side of Eighteenth street the defendant’s automobile was halted some distance south of the curb line of the Parkway; there being no other ears in front of it. While the plaintiff and her companion were in the aet of crossing the street, and just as they were about to pass in front of the de^ fendant’s truck, the park guard turned, releasing the north-bound traffic on Eighteenth street. Before the plaintiff had time to reach the west side of Eighteenth street in safety, the defendant’s ear started and struck her, causing severe injury. At the time the plaintiff was struck she was upon the part of the street ordinarily used by pedestrians as a crossing. The first contention of the defendant is that there is no evidence to support the jury’s finding that the plaintiff was struck by its car, or, for that matter, by any motor vehicle. There was no mark or bruise on her body indicating that the wheels of a car had passed over her; her only injury being an exceptionally bad fracture of the skull. It is of course within the realm of possibility that she slipped or stumbled and sustained her injury by falling on the roadway. However, even under the narrowest view of the jury’s right to find facts from circumstantial evidence (Cain v. Booth & Flinn, 294 Pa. 334, 144 A. 286), the finding that she was struck by the truck standing on the west side'of the street was fully justified. Mrs. Crowley’s testimony was; “ * * * I seen this truck coming on me, and I looked at her like that, and she was about as far as to this from me (indicating), and when I got on the pavement, before I looked around I seen the truck coming down, she was on the north of me, she was on my right, and I made this jump and I reached on the curb, and with that I heard a scream. * * * ” Again: “ * * * The truck was stopped, parked there, I went to cross over when it moved, and as I said, there was only just a short ways off the curb on the west side of the street when the truck started, and I made the jump. * • * ” McCormick, the park guard, testified that, just after he turned to start traffic north on Eighteenth street, he saw the plaintiff lying “underneath the truck * ■ between the wheels and the batter, the big battery box”; also that, in order to get the plaintiff out from under the truck, he asked the driver to back up a little “so that we could pull her from beneath the front of the truck.” Bearing in mind that, under Mrs. Crowley’s version of the facts, there were no other cars in motion near by which could have struck her, it can hardly be said that it is “equally probable (Flanigan v. McLean, supra) that the accident resulted from any cause other than the defendant’s truck striking the plaintiff or that a finding that it did strike her was a mere guess, Erbe v. Phila. R. T. Co., 256 Pa. 567, 100 A. 966, probably goes as far as any of the cases cited by the defendant on this point, but that ease did not hold that the evidence was insufficient to support a finding that the plaintiff was struck by the defendant’s ear. What the court said was that, assuming that the plaintiff was struck, still the evidence was insufficient to show negligence. That is quite a different matter, and we may proceed to determine whether the evidence in the case now before the court shows negligence. The mutual rights and duties of the parties in a situation such as this ease presents are determined by two important matters of fact: First, the place at which the pedestrian was struck, whether on the crossing or in the roadway between crossings; and, second, the direction of the traffic control. As to the first of these, the jury were instructed that, unless they found that the plaintiff was on the crossing when she was struck, there was nothing from which they could find negligence, and the verdict would have to be for the defendant. The defendant now argues that it is impossible that the plaintiff could have been on the crossing, basing his argument upon the testimony of the park guard who said that there were at least eight or ten ears halted three deep all the way across Eighteenth street, thus covering the entire crossing. In view of the absence of any testimony as to the distance between the curb and the building line on the south side of the Parkway, or as to the width of the crossing ordinarily used by the pedestrians, I would not care to say that the conclusion drawn by the defendant follows - as a mathematical certainty from the guard’s testimony. But, be that as it may, the conditions as pictured by Mrs. Crowley are entirely different. According to her testimony, there were only three ears halted on Eighteenth street near the intersection, two on the east side and the defendant’s truck on the west side. As has been pointed out, the jury had the right to accept her testimony, and there is nothing in the facts as shown by her which militates against her positive testimony that they crossed at the crossing. Upon this point she said, “I was in the lower side of the crossing just right at the crossing “ she (Mrs. Little) was to the right of me.” The point marked by her on a rough sketch used at the trial shows that she reached the west side well within the lines of the footwalk on the crossing. The testimony of the park guard was to the effect that the front end of the truck as stopped with the plaintiff beneath it extended “maybe a couple of feet over” the footwalk. All this fully justifies the finding by the jury that the plaintiff was struck while on the crossing. As to the traffic direction, it is practically undisputed that, when the plaintiff started to cross, she had the signal in her favor. This being so, she had the right of way over automobiles until she had reached the opposite curb, notwithstanding the fact that the signal changed while she was in the act of crossing. If the defendant’s ear moved forward with the signal without waiting for pedestrians properly on the crossing to get safely across, it was just as much a violation of traffic! regulation as if it had moved against the signal. A leading decision in Pennsylvania defining negligence of drivers of motorcars at crossings under traffic control is Gilles v. Leas, 282 Pa. 318, 127 A. 774, a case in which the traffic signal changed while the pedestrian was on the crossing. In the opinion the court said: “Some automobile drivers imagine this signal gives them a clear right of way against intersecting traffic; they start their machines recklessly and rapidly regardless of persons already in the driveway, terrifying if not actually striking them. It is a common occurrence for people to narrowly escape injury because of such carelessness. This misuse of the highway is just as culpable as if the drivers were using their cars at night without lights.” If this is not a plain declaration of the law that it is negligence for a driver to start his ear while persons who have started across the street with traffic signals in their favor are still in the act of crossing, it is difficult to see what is. If, as is contended for by the defendant, it is necessary to a recovery to show additional evidence of negligence, such as excessive speed, failure to give warning, or the like, this vigorous statement is valueless except as good advice to motorists. In Zandras v. Moffett, 286 Pa. 477, 133 A. 817, 818, 47 A. L. R. 699, the court said: “All drivers in congested areas with controls installed must be on the lookout for warnings which they have every reason to see displayed, when necessary, and to have their vehicles, whether light or heavy, under such management as will enable them to promptly obey signals given, which they are bound to discover, and must have seen, if due observation was made.” Note the measure of control required. The driver must be able to obey the signal. Clearly he can be held guilty of negligence if he moves against it even though he proceeds slowly. Quoting again from Gilles v. Leas, supra: “If there is any superior right to use the highway under circumstances such as described in this ease, it is with the pedestrian who is in the cartway. It is quite deal'.the traffic should not run him down when he is in full view. And when it does, even at a moderate or slow rate of speed, the driver lacks the control of his ear necessary under the circumstances, and is chargeable with negligence.” McAvoy v. Kromer, 277 Pa. 196, 120 A. 762, and Wiser v. Parkway Baking Company, 289 Pa. 565, 137 A. 797, cited by the defendant, were eases in which the accident did not happen at a crossing, and of course no question of traffic control was involved. Of course it is the law, as argued by the defendant, that no inference of negligence is to be drawn from the mere happening of an accident, except in the limited class of cases in which the circumstances are such as to call for the application of the doctrine resi ipsa loquitur. The rule of Gilles v. Leas, supra, does not involve a resort to that doctrine. Putting a motor vehicle in motion against traffic direction or regulation is substantive evidence of negligence, and, if there are any facts which excuse it, it is for the defendant to show them. Thus the courts of Pennsylvania, whose decisions we are bound to follow [Western Union Telegraph Co. v. Kirby (C. C. A.) 37 F.(2d) 480; Perucca v. B. & O. R. Co. (C. C. A.) 35 F.(2d) 113; Delaware & Hudson Company v. Nahas (C. C. A.) 14 F.(2d) 56], have written into the law the salutary principle that disregard of traffic signals is of itself evidence of negligence. This principle is evolved from the necessities of modem traffic conditions, and is in accord with modem requirements. The position taken by the defendant would simply whittle away the rule. On the matter of contributory negligence the court’s instructions to the jury were all if not more than the defendant was entitled to.- In Newman v. Protective Motor Service Company, 298 Pa. 509, 148 A. 711, the court said that, “ * * * in eases where the municipality maintains signals for controlling traffic, the signal in the pedestrian's favor, inviting him to cross, warrants his so doing, and he is justified in relying up'on the assumption that motor vehicles, warned by the traffic signal set against them, will not disregard it and ran him down,” and expressly held that the plaintiffs crossing the street at a crossing with a light in their favor were not bound to continue to look fot traffic at their right as they crossed. On other points the presumption of due care stands in the plaintiff’s favor. Thus it is to be presumed that, if she saw the car, she did not deliberately walk in front of it, and that she did not walk so carelessly as to stumble and fall without cause other than her own negligence. The defendant also complains of the answer of the court to the jury’s request for additional instructions. Conceding that the statement of the law made by the court was correct, the defendant contends that, in order to avoid possible misunderstanding, the court should have repeated the instruction, already plainly given in the charge, that, unless the plaintiff was on the crossing when struck, there would be no evidence of negligence on the part of the driver and the verdict would have to be for the defendant. The ordinary rule is that, if the charge in general correctly states the law, a party cannot complain of mere omissions unless a specific request has been made that the court charge upon the desired point. In this ease, when the jury returned to the courtroom for instructions, counsel were absent, having stipulated that the verdict should be taken by the court and having expressly and of record waived the right to be present or be notified of the return of the jury. Under these circumstances, it was proper for the court to answer the jury’s requests. Stewart v. Wyoming Cattle Ranche Company, 128 U. S. 383, 9 S. Ct. 101, 32 L. Ed. 439. The exceptions allowed were sufficient to protect the parties in the event of an erroneous statement of the law by the court, but the defendant cannot now assign as error the court’s failure to include an instruction which might have been given if the defendant had been present and asked for it. Lemuel B. Schofield and W. Bradley Ward, both of Philadelphia, Pa., for appellant. Robert F. Bonner, of Philadelphia, Pa., for appellee. Before WOOLLEY, DAYIS, and THOMPSON, Circuit Judges. The motion for a new trial is denied. PER CURIAM. We find no errors in the proceedings and judgment below. Holding that the version of the accident which the trial court, for purposes of discussion, gave in its opinion denying the motion for a new trial was such as the jury could validly find from competent evidence in the ease, and believing that the-trial court in its opinion fully considered, and adequately expressed our views on, the main questions now here on appeal we affirm the judgment on Judge Kirkpatrick’s opinion. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_majvotes	2	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes. HAWKEYE CASUALTY CO. v. HALFERTY et al. No. 12288. Oireuit Court of Appeals, Eighth Circuit Oct. 29, 1942. Rehearing Denied Nov. 14, 1942. Writ of Certiorari Denied Feb. 1, 1943. See'63 S.Ct. 533, 87 L.Ed.-. WOODROUGH, Circuit Judge, dissenting. B. L. Kaufmann, of St. Joseph, Mo. (R. E. Culver, Ben Phillip, and Francis Smith, all of St. Joseph, Mo., on the brief), for appellant. R. H. Musser, of Holden, Mo., for ap-pellees Carl Halferty and J. B. Halferty, doing business as Halferty Brothers. Before GARDNER, WOODROUGH, and RIDDICK, Circuit Judges. RIDDICK, Circuit Judge. This is a declaratory judgment action, the decision of which turns upon the interpretation of a policy of casualty insurance issued by the appellant to the appellees Carl and J. B. Halferty, partners operating as common carriers of freight by motor truck in the State of Missouri and between points in Missouri and adjoining states. As common carriers in both interstate and intrastate commerce, the appellees held the required certificate of public convenience and necessity of the Public Service Commission of Missouri and the permit of the Interstate Commerce Commission, and the policy of insurance in question was conditioned as provided by the laws of Missouri (Mo.Rev.Stat. (1939) § 5729, p. 1422, Mo.R.S.A. § 5729), and by the laws of the United States (Motor Carrier Act of 1935, 49 U.S.C.A. § 315). Inasmuch as the accident which gives rise to this litigation occurred in an operation wholly intrastate, we are concerned here only with the provisions included within the policy by the command of the State of Missouri. The applicable statute of the State of Missouri requires that no certificate of public convenience and necessity shall be issued by the Public Service Commission to any common carrier by motor vehicle until the carrier shall have filed with the Commission a liability insurance policy approved by the Commission, “* * * in such sum and upon such conditions as the commission may deem necessary to adequately protect the interests of the public in the use of the public highways and with due regard to the number of persons and amount of property transported, which liability insurance shall bind the obligors thereunder to make compensation for injuries to persons and loss of or damage to property resulting from the negligent operation 'of such motor carrier * * Mo.Rev.Stat. (1939) § 5729, p. 1422, Mo. R.S.A. § 5729. On November 29, 1940, the Halfertys applied in writing to the appellant for the policy of insurance involved in this case. The application was accepted and the policy delivered, dated December 2, 1940, to become effective on December 16, 1940, and on the date last mentioned it was filed with and approved by the Missouri Public Service Commission. In the written application for the insurance the appellees stated that they were operating ten motor trucks under authority as common carriers, hauling livestock and general merchandise in the vicinity of Plattsburg, Missouri, and within a radius of fifty miles from that point. It was further stated in the application that the policy requested was required to be filed in the State of Missouri, and that the special endorsement required by that state must be attached as a part of the policy. Insurance was requested .to cover the liability of the assured, arising from the operation of their trucks, for bodily injuries, property damage, and damage to cargo carried. On the reverse side of the application appeared a list and description of the trucks on which insurance was desired and a notation that the policy should be endorsed to cover merchandise owned by the assured. Printed at the top of the policy issued were the words “Standard Automobile Policy All Coverage Form.” The policy form used provided spaces in the body of the policy for all coverages with the stipulation that “The insurance afforded is only with' respect to such and so many of the following coverages as are indicated by a specific premium charge or charges set opposite thereto.” The coverages for which premiums were stated and charged in the policy were only those specified in the application. On the face of the policy appeared the statement that the motor vehicles insured were to be used for commercial purposes. The term “commercial” was defined as “the transportation or delivery of goods or merchandise and other business uses in direct connection with the assured’s business occupation, * * * including occasional pleasure use for the named insured and family.” The policy concluded with the provision “This policy is issued and accepted subject to the conditions, limitations, agreements, and warranties set forth herein and endorsed hereon.” Attached to the policy form used were fifteen endorsements or riders. Many of these endorsements covered matters of no relevance here, such as the transfer of insurance from trucks originally owned by the assured to other trucks bought to replace them. The endorsements of importance in the decision of this case are two; one entitled “Missouri Public Service Endorsement (Intrastate)”, and another entitled “Exclusion on Commercial Trucks.” The first endorsement, so far as important here, provided: “In consideration of the premium stated in the policy to which this endorsement is attached, the Company hereby- waives a description of the motor vehicles insured hereunder and agrees to pay any final judgment rendered against the assured, for personal injuries, including death resulting therefrom, to all persons, except employees of the assured engaged in the course of their employment and/or damage to property, except property owned by, leased, hirec or in the custody and control of the assured caused by any and all motor vehicles operated by the assured pursuant to the Certificate of Convenience and Necessity issued by the Public Service Commission of Missouri within the limits set forth in the schedule hereon * * .” And the second: “ * * This policy does not cover any claim or suit brought by any person for injuries or death if said injuries or death were sustained while riding in or upon any vehicle covered under this policy. The above exclusion of coverage does not apply to the owner, or his agent, of goods or merchandise, who is riding in or upon the vehicle insured hereunder at the time his goods or merchandise are being transported.” Both of the above endorsements were executed by the appellant prior to the date of the policy and each contained a provision that it should take effect as of the date of the policy and expire with the expiration of the policy. Stamped on the face of the policy, and upon the endorsement entitled “Exclusion on Commercial Trucks”, were the following words: “The Missouri Public Service Commission endorsement, which is the top endorsement attached to this policy, takes precedence over any provision of or other endorsement attached to this policy.” Under Missouri law pertaining to common carriers by motor vehicle, carriers so operating are required to file with the Pub-lie Service Commission schedules of rates and charges made by them for the services which they are authorized to perform, and the certificate of public convenience and necessity specifies the route over which the holder of a certificate is permitted to operate. In this case the appellees were granted the right to operate over an irregular route between points in the State of Missouri. They complied with the law with reference to the filing of rates and charges. Among the vehicles insured was a Chevrolet truck of 1% tons capacity. The appellees, under contract with a neighboring farmer, furnished this truck and a driver to the farmer for hauling sargo from points on the farm to silos on the farm. This hauling required the occasional use of the truck on county roads adjacent to the farm in getting from one point on the farm to another. After the work in question had been completed and while the policy in question was in effect, the driver was returning from the farm to Platts-burg, Missouri, where the appellees’ ihotor vehicles were kept and from which point they operated as common carriers, when an accident occurred. Riding in the truck as guests of the driver were eighteen or nineteen of the farmer’s laborers. Several of them were injured, one fatally. A number of suits were brought in the Missouri courts against the appellees to recover damages for those injured in the accident. The defense of these suits was tendered to the appellant insurance company and declined on the ground that the liability, if any, upon the appellees as a result of the accident, was not one covered by the policy. In order to settle this controversy between the parties, the insurer brought this suit in the district court for a judgment declaring that the policy did not cover the liability of the appellees in the circumstances stated and that the appellant was not obligated nor liable in any way to defend the suits in the state courts nor to pay any judgment that might be rendered in favor of the plaintiffs in them. The appellant contends that at the time of the accident the truck involved was not being operated in the appellees’ business as a common carrier; that for this reason the Missouri Public Service Commission endorsement has no application; and that the endorsement covering exclusion on commercial trucks by its terms relieved the appellant from liability. The appellees contend that the policy covers all liability imposed by law upon the appellees as a result of accidents occurring in the operation, use, or ownership of its trucks; that the Missouri Public Service Commission endorsement so provided, and this, whether the trucks were engaged in the business of the appellees as common carriers or otherwise; and that this endorsement, having precedence over all others on the policy, was effective to save the appellees from the limitation of liability expressed in the “Exclusion on Commercial Trucks” endorsement, which, but for the Missouri Public Service Commission endorsement, clearly relieved appellants of liability in this case. These conflicting contentions present the issue here. The decision of the district court was in favor of the appellees. We are of the opinion that the appellant’s construction of the insurance contract is the only one permissible. It is not denied that the only jurisdiction or power in the Missouri Public Service Commission with reference to the insurance involved here concerns the operation of motor vehicles as common carriers. Parties not engaged in such an operation are not required by the laws of Missouri to carry any insurance. It follows that under Missouri law the parties to the insurance contract were at liberty, so long as not operating as common carriers, to make any contract of insurance they thought proper or to limit the coverage in any contract made as their interests might dictate. Only as to their business as common carriers were the appellees required to take and the appellants to deliver insurance conditioned as required by the Missouri law. Since the jurisdiction of the Public Service Commission over the character of insurance carried by persons operating automobiles in Missouri extended only to the operations of common carriers, it must be assumed that the Commission did not attempt to exercise any power or authority over motor vehicles not being operated as common carriers. No reason appears why a common carrier operating motor vehicles in Missouri might not, after complying with the laws of Missouri in reference to insurance, applicable to its business, carry such other and further insurance as it deemed wise, or necessary to its protection. The endorsement of the Missouri Public Service Commission applied only to motor vehicles operated in the business of common carriers and was without application in the case of a motor vehicle not so used or operated. The endorsement in question, by its terms, made the insurer liable to pay any final judgment rendered against the assured for personal injuries or damage to property, with exceptions not pertinent here, “* * * caused by any and all motor vehicles operated by the assured pursuant to the Certificate of Convenience and Necessity issued by the Public Service Commission of Missouri within the limits set forth in the schedule hereon * * In common acceptation “pursuant” means “in conformity with or according to.” Webster’s International Dictionary. And this court has held in construing, under Missouri law, the identical endorsement under consideration here, that the word is to be given the significance stated, saying: “* * * the proper interpretation is, ‘pursuant,’ in the sense of ‘acting or done in consequence’ of the permit of convenience and necessity, and in the prosecution of the business authorized therein.” Trinity Universal Insurance Company v. Cunningham, 8 Cir., 107 F.2d 857, 861. In this opinion it is said: “It is clear that under these statutes the Commission’s power to require the carrier to purchase liability insurance as a prerequisite to granting a permit is limited to those vehicles used in the transportation service over which the commission has supervision. The phrase then may be interpreted to exclude from the scope of the coverage those vehicles not under the Commission’s supervision.” The Supreme Court of Kansas in Smith v. Republic Underwriters, 152 Kan. 305, 103 P.2d 858, has reached the same result in construing an identical policy endorsement holding that a truck of a Kansas carrier was not covered when at the time of the accident the truck was not being operated pursuant to the state permit issued to its owner as a common carrier. 'Other cases sustaining this interpretation of the endorsement are: Flythe v. Eastern Carolina Coach Co., 195 N.C. 777, 143 :S.E. 865; Foster v. Commercial Standard Ins. Co., 121 F.2d 117; Caines v. Wheeler, 207 Ky. 237, 268 S.W. 1098; Motor Car Indemnity Exchange v. Lilienthal, Tex. Civ. App., 229 S.W. 703. No authorities to the ■contrary have been cited by the appellees and we have found none. The trial court found that the operation in which the appellees’ truck was engaged at the time of the accident which gives rise to this suit was not of the character covered by the certificate of public convenience and necessity under which the ap-pellees operated as common carriers of freight. But the court attached no significance to this fact. It held that the endorsement of the Missouri Public Service Commission was controlling and interpreted this endorsement to impose on appellant the obligation to defend any suits and pay any judgments against the appellees resulting from any operation or use of its motor vehicles by the appellees, whether or not authorized by the certificate of convenience and necessity. The court’s conclusion as to the character of the operation of the appellees’ truck at the time of the accident was correct. The truck was not engaged in any operation for which a permit from the state was required. The appellees had not filed svith the Public Service Commission any schedule of rates or charges for work of the character in which the truck was engaged at the time of the accident nor were they required to do so. The appellees, in addition to their business as common carriers, regularly engaged in operations not controlled by their certificate of public convenience and necessity as common carriers, and for which they made such charges as they desired or were able to secure. The provision in the Missouri Public Service Commission endorsement, waiving identification of cars insured, is not of the importance given it by the lower court in interpreting that endorsement as applied to the facts in this case. As was pointed out by the Supreme Court of Kansas in Smith v. Republic Underwriters, supra, this provision is a necessary one in policies of insurance covering the operation of the common carrier because of the frequent necessity upon the carrier of making changes in and additions to operating equipment in order to meet its obligations to the public. The effect of this provision was merely to cover any truck of the insured when operated in their business as a common carrier, whether or not specifically described in the policy. Nor are the words stamped on the policy, giving the Missouri Public Service Commission endorsement precedence over all. provisions in the policy, effective to change the interpretations of the policy above expressed. These words must be interpreted, as the endorsement itself, in the light of the power and authority of the Public Service Commission. So interpreted, they cannot control other provisions of the policy in their application to operations of the assured in no wise connected with their business as common carriers. Since the truck involved in the accident under consideration was not engaged at the time of the accident as a common carrier of freight under the appellees’ certificate of public convenience and necessity, the endorsement of the Missouri Public Service Commission, limited to such operations, has no application in this case. The situation in all respects is as if the ap-pellees were not engaged as common carriers, and as if no such endorsement was contained in the policy. In such circumstances the assured was relieved from liability for damages arising out of the injury to persons riding in one of its trucks by the “Exclusion on Commercial Trucks” endorsement. The parties attached the “Exclusion on Commercial Trucks” endorsement to the policy, for the purpose of relieving the appellant of liability to the appellees for injuries to persons carried on the appellees’ trucks, except owners of property or their agents transported by the appellees as common carriers pursuant to the certificate of authority. It is not necessary to decide here whether this exclusion of liability may not be effective even while the truck involved was engaged in a part of appellees’ operations as common carriers of freight. It is clear that it does apply where the truck involved in the accident, as here, was not so engaged. Since the appellees applied for insurance as common carriers of freight, having received a certificate to operate as such, neither the parties nor the Public Service Commission contemplated at the time of the issue of the policy the coverage of the liability as carriers of passengers. The risk upon the insurer in covering liability for injuries to passengers is entirely different from that assumed concerning liability for injuries to freight. For the reasons stated, the judgment of the district court is reversed, and the case is remanded for judgment. Question: What is the number of judges who voted in favor of the disposition favored by the majority? Answer:
sc_caseorigin	083	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. ALESSI et al. v. RAYBESTOS-MANHATTAN, INC., et al. No 79-1943. Argued March 4, 1981 Decided May 18, 1981 Marshall, J., delivered the opinion of the Court, in which all other Members joined, except BreNNan, J., who took no part in the decision of the cases. Theodore Sachs argued the cause for appellants in No. 79-1943. With him on the briefs were Michael S. Scarola and I. Mark Steckloff. Marc C. Gettis argued the cause and filed briefs for petitioners in No. 80-193. Warren John Casey argued the cause for appellees in No. 79-1943. With him on the brief was Sebastian J. Fortunato. Lawrence Reich argued the cause for respondent in No. 80-193. With him on the brief were Otis M. Smith, Eugene L. Hartwig, and David M. Davis. John J. Degan, Attorney-General, Stephen Skillman, Assistant Attorney General, and Michael S. Bokar, Deputy Attorney General, filed a brief for the State of New Jersey as appellee in No. 79-1943, under this Court’s Rule 10.4, and as respondent in No. 80-193, under this Court’s Rule 19.6. Together with No. 80-193, Buczynski et al. v. General Motors Corp. et al., on certiorari to the same court. Briefs of amici curiae urging reversal were filed by Alfred Miller for the American Association of Retired Persons et ah; by Gill Deford and Neal S. Dudovitz for the Gray Panthers; and by Leonard S. Zubrensky and Theodore Sachs for Merl D. Stong et al. Briefs of amici curiae urging affirmance were filed by Solicitor General McCree, Acting Assistant Attorney General Murray, Stuart A. Smith, William A. Friedlander, and Michael J. Roach, for the United States; by Richard T. Wentley and Patrick W. Ritchey for Allegheny-Ludlum Industries, Inc.; by Stanley T. Kaleczyc for the Chamber of Commerce of the United States; by George J. Pantos for the ERISA Industry Committee; and by Charles R. Volk and William W. Scott, Jr., for the National Steel Corp. Justice Marshall delivered the opinion of the Court. Some private pension plans reduce a retiree’s pension benefits by the amount of workers’ compensation awards received subsequent to retirement. In these cases we consider whether two such offset provisions are lawful under the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. § 1001 et seq. (1976 ed. and Supp. Ill), and whether they may be prohibited by state law. I Raybestos-Manhattan, Inc., and General Motors Corp. maintain employee pension plans that are subject to federal regulation under ERISA. Both plans provide that an employee’s retirement benefits shall be reduced, or offset, by an amount equal to workers’ compensation awards for which the individual is eligible. In 1977, the New Jersey Legislature amended its Workers’ Compensation Act to expressly prohibit such offsets. The amendment states that “[t]he right of compensation granted by this chapter may be set off against disability pension benefits or payments but shall not be set off against employees’ retirement pension benefits or payments.” N. J. Stat. Ann. § 34:15-29 (West Supp. 1980-1981) (as amended by 1977 N. J. Laws, ch. 156). Alleging violations of this provision of state law, two suits were initiated in New Jersey state court. The plaintiffs in both suits were retired employees who had obtained workers’ compensation awards subject to offsets against their retirement benefits under their pension plans. The defendant companies independently removed the suits to the United States District Court for the District of New Jersey. There, both District Court Judges ruled that the pension offset provisions were invalid under New Jersey law, and concluded that Congress had not intended ERISA to pre-empt state laws of this sort. The District Court Judges also held that the offsets were prohibited by § 203 (a) of ERISA, 29 U. S. C. § 1053 (a). This section prohibits forfeitures of vested pension rights except under four specific conditions inapplicable to these cases. The judges concluded that offsets based on workers’ compensation awards would be forbidden forfeitures, and struck down a contrary federal Treasury Regulation authorizing such offsets. The United States Court of Appeals for the Third Circuit consolidated the appeals from these two decisions and reversed. 616 F. 2d 1238 (1980). It rejected the District Court Judges’ view that the offset provisions caused a forfeiture of vested pension rights forbidden by § 1053. Instead, the Court of Appeals reasoned, such offsets merely reduce pension benefits in a fashion expressly approved by ERISA for employees receiving Social Security benefits. Accordingly, the Court of Appeals found no conflict between ERISA and the Treasury Regulation approving reductions based on workers’ compensation awards and ERISA. Finally, the court concluded that the New Jersey statute forbidding offsets of pension benefits by the amount of workers’ compensation awards could not withstand ERISA’s general pre-emption provision, 29 U. S. C. § 1144 (a). We noted probable jurisdiction of the appeal taken by the former employees of Raybestos-Manhattan, Inc., and granted certiorari on the petition of former employees of General Motors Corp. 449 U. S. 949 and 950 (1980). For convenience, we refer to the former employees in both cases as retirees. We affirm the judgment of the Court of Appeals. II Retirees claim that the workers’ compensation offset provisions of their pension plans contravene ERISA’s nonfor-feiture provisions and that the Treasury Regulation to the contrary is inconsistent with the Act. Both claims require examination of the relevant sections of ERISA. A As we recently observed, ERISA is a “comprehensive and reticulated statute,” which Congress adopted after careful study of private retirement pension plans. Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U. S. 359, 361 (1980). In Nachman, we observed that Congress through ERISA wanted to ensure that “if a worker has been promised a defined pension benefit upon retirement — and if he has fulfilled whatever conditions are required to obtain a vested benefit— ... he actually receives it.” Id,., at 375. For this reason, the concepts of vested rights and nonforfeitable rights are critical to the ERISA scheme. See id., at 370, 378. ERISA prescribes vesting and accrual schedules, assuring that employees obtain rights to at least portions of their normal pension benefits even if they leave their positions prior to retirement. Most critically, ERISA establishes that “[e]ach pension plan shall provide that an employee's right to his normal retirement benefit is nonforfeitable upon the attainment of normal retirement age.” 29 U. S. C. § 1053 (a). Retirees rely on this sweeping assurance that pension rights become nonforfeitable in claiming that offsetting those benefits with workers’ compensation awards violates ERISA. Retirees argue first that no vested benefits may be forfeited except as expressly provided in § 1053. Second, retirees assert that offsets based on workers’ compensation fall into none of those express exceptions. Both claims are correct; § 1053 (a) prohibits forfeitures of vested rights except as expressly provided in § 1053 (a)(3), and the challenged workers’ compensation offsets are not among those permitted in that section. Despite this facial accuracy, retirees’ argument overlooks a threshold issue: what defines the content of the benefit that, once vested, cannot be forfeited? ERISA leaves this question largely to the private parties creating the plan. That the private parties, not the Government, control the level of benefits is clear from the statutory language defining non-forfeitable rights as well as from other portions of ERISA. ERISA defines a “nonforfeitable” pension benefit or right as “a claim obtained by a participant or his beneficiary to that part of an immediate or deferred benefit under a pension plan which arises from the participant’s service, which is unconditional, and which is legally enforceable against the plan.” 29 U. S. C. § 1002 (19). In construing this definition last Term, we observed: “[T]he term 'forfeiture’ normally connotes a total loss in consequence of some event rather than a limit on the value of a person’s rights. Each of the examples of a plan provision that is expressly described as not causing a forfeiture listed in [§ 1053 (a) (3)] describes an event — such as death or temporary re-employment— that might otherwise be construed as causing a forfeiture of the entire benefit. It is therefore surely consistent with the statutory definition of “nonforfeitable” to view it as describing the quality of the participant’s right to a pension rather than a limit on the amount he may collect.” Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U. S., at 372-373. Similarly, the statutory definition of “nonforfeitable” assures that an employee’s claim to the protected benefit is legally enforceable, but it does not guarantee a particular amount or a method for calculating the benefit. As we explained last Term, “it is the claim to the benefit, rather than the benefit itself, that must be 'unconditional’ and 'legally enforceable against the plan.’ ” Id., at 371. Rather than imposing mandatory pension levels or methods for calculating benefits, Congress in ERISA set outer bounds on permissible accrual practices, 29 U. S. C. § 1054 (b)(1), and specified three alternative schedules for the vesting of pension rights, 29 U. S. C. § 1053 (a)(2). In so doing, Congress limited the variation permitted in accrual rates applicable across the entire period of an employee’s participation in the pension plan. And Congress disapproved pension practices unduly delaying an employee’s acquisition of a right to enforce payment of the portion of benefits already accrued, without further employment. These provisions together assure at minimum a legally enforceable claim to 100% of the pension benefits created by a covered plan for those employees who have completed 15 years of service and for those employees aged 45 or older who have completed 10 years of service. Other than these restrictions, ERISA permits the total benefit levels and formulas for determining their accrual before completion of 15 years of service to vary from plan to plan. See 29 U. S. C. §§ 1002 (22), (23) (benefits defined merely as those “under the plan”). It is particularly pertinent for our purposes that Congress did not prohibit “integration,” a calculation practice under which benefit levels are determined by combining pension funds with other income streams available to the retired employees. Through integration, each income stream contributes for calculation purposes to the total benefit pool to be distributed to all the retired employees, even if the nonpension funds are available only to a subgroup of the employees. The pension funds are thus integrated with the funds from other income maintenance programs, such as Social Security, and the pension benefit level is determined on the basis of the entire pool of funds. Under this practice, an individual employee’s eligibility for Social Security would advantage all participants in his private pension plan, for the addition of his anticipated Social Security payments to the total benefit pool would permit a higher average pension payout for each participant. The employees as a group profit from that higher pension level, although an individual employee may reach that level by a combination of payments from the pension fund and payments from the other income maintenance source. In addition, integration allows the employer to attain the selected pension level by drawing on the other resources, which, like Social Security, also depend on employer contributions. Following its extensive study of private pension plans before the adoption of ERISA, ■ Congress expressly preserved the option of pension fund integration with benefits available under both the Social Security Act, 42 U. S. C. § 401 et seq. (1976 ed. and Supp. Ill), and the Railroad Retirement Act of 1974, 45 U. S. C. § 231 et seq. (1976 ed. and Supp. Ill) ; 29 U. S. C. §§ 1054 (b)(1) (B)(iv), 1054 (b)(1)(C), 1054 (b)(1)(G). Congress was well aware that pooling of non-pension retirement benefits and pension funds would limit the total income maintenance payments received by individual employees and reduce the cost of pension plans to employers. Indeed, in considering this integration option, the House Ways and Means Committee expressly acknowledged the tension between the primary goal of benefiting employees and the subsidiary goal of containing pension costs. The Committee Report noted that the proposed bill would “not affect the ability of plans to use the integration procedures to reduce the benefits that they pay to individuals who are currently covered when social security benefits are liberalized. Your committee, however, believes that such practices raise important issues. On the one hand, the objective of the Congress in increasing social security benefits might be considered to be frustrated to the extent that individuals with low and moderate incomes have their private retirement benefits reduced as a result of the integration procedures. On the other hand, your committee is very much aware that many present plans are fully or partly integrated and that elimination of the integration procedures could substantially increase the cost of financing private plans. Employees, as a whole, might be injured rather than aided if such cost increases resulted in slowing down the growth or perhaps even eliminat[ing] private retirement plans.” H. R. Rep. No. 93-807, p. 69 (1974), reprinted in 2 Legislative History of the Employee Retirement Income Security Act of 1974 (Committee Print compiled for the Senate Committee on Labor and Public Welfare) 3189 (1976) (Leg. Hist.). The Committee called for further study of the problem and recommended that Congress impose a restriction on integration of pension benefits with Social Security and Railroad Retirement payments. Congress adopted this recommendation and forbade any reductions in pension payments based on increases in Social Security or Railroad Retirement benefits authorized after ERISA took effect. 29 U. S. C. § 1056 (b). See 29 U. S. C. §§ 1054 (b) (1) (B) (iv), 1054 (b) (1) (C) ; H. R. Rep. No. 93-807, at 69, 2 Leg. Hist. 3189. See also 26 U. S. C. §401 (a) (15). In setting this limitation on integration with Social Security and Railroad Retirement benefits, Congress acknowledged and accepted the practice, rather than prohibiting it. Moreover, in permitting integration at least with these federal benefits, Congress did not find it necessary to add an exemption for this purpose to its stringent nonforfeiture protections in 29 U. S. C. § 1053 (a). Under these circumstances, we are unpersuaded by retirees’ claim that the non-forfeiture provisions by their own force prohibit any offset of pension benefits by workers’ compensation awards. Such offsets work much like the integration of pension benefits with Social Security or Railroad Retirement payments. The individual employee remains entitled to the established pension level, but the payments received from the pension fund are reduced by the amount received through workers’ compensation. The nonforfeiture provision of § 1053 (a) has no more applicability to this kind of integration than it does to the analogous reduction permitted for Social Security or Railroad Retirement payments. Indeed, the same congressional purpose — promoting a system of private pensions by giving employers avenues for cutting the cost of their pension obligations — underlies all such offset possibilities. Nonetheless, ERISA does not mention integration with workers’ compensation, and the legislative history is equally silent on this point. An argument could be advanced that Congress approved integration of pension funds only with the federal benefits expressly mentioned in the Act. A current regulation issued by the Internal Revenue Service, however, goes further, and permits integration with other benefits provided by federal or state law. We now must consider whether this regulation is itself consistent with ERISA. B Codified at 26 CFR §§ 1.411 (a)-(4)(a) (1980), the Treasury Regulation provides that “nonforfeitable rights are not considered to be forfeitable by reason of the fact that they may be reduced to take into account benefits which are provided under the Social Security Act or under any other Federal or State law and which are taken into account in determining plan benefits.” The Regulation interprets 26 U. S. C. § 411, the section of the Internal Revenue Code which replicates for IRS purposes ERISA’s nonforfeiture provision, 29 U. S. C. § 1053 (a). The Regulation plainly encompasses awards under state workers’ compensation laws. In addition, in Revenue Rulings issued prior to ERISA, the IRS expressly had approved reductions in pension benefits corresponding to workers’ compensation awards. See, e. g., Rev. Rui. 69-421, Part 4 (j), 1969-2 Cum. Bull. 72; Rev. Rui.. 68-243, 1968-1 Cum. Bull. 157. Retirees contend that the Treasury Regulation and IRS rulings to this effect contravene ERISA. They object first that ERISA’s approval of integration was limited to Social Security and Railroad Retirement payments. This objection is precluded by our conclusion that reduction of pension benefits based on the integration procedure are not per se prohibited by § 1053 (a), for the level of pension benefits is not prescribed by ERISA. Retirees’ only remaining objection is that workers’ compensation awards are so different in kind from Social Security and Railroad Retirement payments that their integration could not be authorized under the same rubric. Developing this argument, retirees claim that workers’ compensation provides payments for work-related injuries, while Social Security and Railroad Retirement supply payments solely for wages lost due to retirement. Because of this distinction, retirees conclude that integration of pension funds with workers’ compensation awards lacks the rationale behind integration of pension funds with Social Security and Railroad Retirement. Retirees’ claim presumes that ERISA permits integration with Social Security or Railroad Retirement only where there is an identity between the purposes of pension payments and the purposes of the other integrated benefits. But not even the funds that the Congress clearly has approved for integration purposes share the identity of purpose ascribed to them by petitioners. Both the Social Security and Railroad Retirement Acts provide payments for disability as well as for wages lost due to retirement, and ERISA permits pension integration without distinguishing these different kinds of benefits. Furthermore, when it enacted ERISA, Congress knew of the IRS rulings permitting integration and left them in effect. These rulings do not draw the line between permissible and impermissible integration where retirees would prefer them to, and instead they include workers’ compensation offsets within the ambit of permissible integration. The IRS rulings base their allowance of pension payment integration on three factors: the employer must contribute to the other benefit funds, these other funds must be designed for general public use, and the benefits they supply must correspond to benefits available under the pension plan. The IRS employed these considerations in approving integration with workers’ compensation benefits. E. g., Rev. Rul. 69-421, Part 4 (j), 1969-2 Cum. Bull. 72; Rev. Rul. 68-243, 1968-1 Cum. Bull. 157. In contrast, the IRS has disallowed offsets of pension benefits with damages recovered by an employee through a common-law action against the employer. Rev. Rul. 69-421, Part 4 (j)(4), 1969-2 Cum. Bull. 72; Rev. Rul. 68-243, 1968-1 Cum. Bull. 157-158. The IRS also has not permitted integration with reimbursement for medical expenses or with fixed sums made for bodily impairment because such payments do not match up with any benefits available under a pension plan qualified under the Internal Revenue Code and ERISA. Rev. Rui. 78-178, 1978-1 Cum. Bull. 118. Similarly, the IRS has disapproved integration with unemployment compensation, for, as payment for temporary layoffs, it too is a kind of benefit not comparable to any permitted in a qualified pension plan. Id., at 117-118. Without speaking directly of its own rationale, Congress embraced such IRS rulings. See H. R. Conf. Rep. No. 93-1280, p. 277 (1974), 3 Leg. Hist. 4544 (approving existing antidiscrimination rules). Congress thereby permitted integration along the lines already approved by the IRS, which had specifically allowed pension benefit offsets based on workers’ compensation. Our judicial function is not to second-guess the policy decisions of the legislature, no matter how appealing we may find contrary rationales. As a final argument, retirees claim that we should defer to the policy decisions of the state legislature. To this claim we now turn. Ill The New Jersey Legislature attempted to outlaw the offset clauses by providing that “[t]he right of compensation granted by [the New Jersey Workers’ Compensation Act] may be set off against disability pension benefits or payments but shall not be set off against employees’ retirement pension benefits or payments.” N. J. Stat. Ann 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_capric	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the courts's use or interpretation of the arbitrary and capricious standard support the government? Note that APA allows courts to overturn agency actions deemed to be arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. Overton Park emphasized this is a narrow standard, and one must prove that agency's action is without a rational basis. This also includes the "substantial justification" doctrine. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". STATE OF OHIO, Commonwealth of Massachusetts, Cleveland Electric Illuminating Company, Northern Ohio Lung Association, North American Coal Corporation and Nacco Mining Company, Petitioners, Commonwealth of Pennsylvania, State of New York, State of New Hampshire, Ohio Mining and Reclamation Association, and Youghiogheny & Ohio Coal Company, Intervenors, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Anne M. Gorsuch, Administrator, Respondents. Nos. 80-3575, 80-3576, 80-3579, 80-3581, 80-3582 and 81-3525. United States Court of Appeals, Sixth Circuit. Argued Jan. 15, 1985. Decided Aug. 7, 1986. William J. Brown, Atty. Gen. of Ohio, Robert J. Styduhar, Asst. Atty. Gen., Environmental Law Section, Dale T. Vitale, Office of the Atty. Gen., Environmental Enforcement Section, Columbus, Ohio, A. Mark Segreti, Jr. (argued), Bieser, Greer & Landis, Dayton, Ohio, Michael L. Hardy (argued), Thompson, Hiñe & Flory, Cleveland, Ohio, for petitioners. Peter S. Everett, U.S. Dept, of Justice, Land and Natural Resources Div., Environmental Defense Section, Richard B. Ossias (argued), U.S.E.P.A., General Counsel, Air & Radiation Div. LE-132, Michael M. Wenig, Environmental Defense Section, Land and Natural Resources Div., Washington, D. C., Catherine L. Fox and Susan W. Schaffer, Office of Regional Counsel, U.S. E. P.A., Chicago, 111., Lydia Wegman, Office of General Counsel, U.S. E.P.A., Washington, D.C., for respondents. Michael McMahon, Benesch, Friedlander, Copian & Aranoff, Alan D. Wright, Donald H. Havser, Cleveland, Ohio, for Cleveland Elec. Illuminating Co. Ronald R. Janke, Jones, Day, Reavis & Pogue, Cleveland, Ohio, for North American Coal Co. and Nacco Min. Co. John W. Edwards, Smith & Schnacke, Columbus, Ohio, for Ohio Min. and Reclamation Ass’n. William W. Falsgraf, Baker & Hostetler, Cleveland, Ohio, for Youghiogheny & Ohio Coal Co. Janet McCabe, Asst. Atty. Gen., Environmental Protection Div., Dept, of the Atty. Gen., Boston, Mass., for State of Mass. Thomas Y. Au (argued), Asst. Atty. Gen., Dept, of Environmental Resources, Harrisburg, Pa., for Com. of Pa. George Dana Bisbee, Asst. Atty. Gen., Environmental Protection Div., Concord, N.H., for State of N.H. Francis X. Bellotti, Atty. Gen. of Mass., Stephen M. Leonard, Asst. Atty. Gen., Janet G. McCabe, Stephen M. Leonard, Lee Breckenridge, Environmental Protection Div., Public Protection Bureau, Dept, of the Atty. Gen., Boston, Mass., for Com. of Mass. Ronald R. Janke, Thomas R. Jackson, Jones, Day, Reavis & Pogue, Cleveland, Ohio, for North American Coal Co. and Nacco Min. Co. Robert Abrams, David R. Wooley, Atty. General’s Office, New York City Dept, of Law, Environmental Protection Bureau, Albany, N.Y., for State of N.Y. Before ENGEL, MERRITT and MILBURN, Circuit Judges. MERRITT, Circuit Judge. This opinion follows our earlier opinion in Ohio v. E.P.A., 784 F.2d 224 (6th Cir.1986). There we held that the EPA’s use of CRSTER, a computerized atmospheric model, was arbitrary and capricious in the absence of site-specific validation studies. We then ordered the parties to propose a program for validating the CRSTER model, and a set of interim emissions limits for use until the validation process has been completed. The parties have now responded, and the Court has before it and has read and considered (1) the Group III petition for rehearing and rehearing en banc, (2) EPA’s petition for rehearing, (3) each party’s response to those two petitions, and (4) each party’s response to the two questions presented for comment in the Court’s opinion and order of February 26,1986, 784 F.2d 224. As the full Court has not exercised its discretion to review this case en banc, the case is back before the panel. We hold as follows: First, the panel reaffirms its decision. On the present record the use of the CRSTER model without validation to forecast SO2 diffusion at the two plants adjacent to Lake Erie is arbitrary and capricious. Instead of simply deferring to EPA’s decisions regarding scientific and computer models, as EPA and the Group III petitioners urge, the legislative history of the 1977 Clean Air Act indicates that the Courts are to conduct a “searching review” of the basis of EPA modeling and test procedures like the one at issue here. See No. 294, 95th Cong. 1st Sess., 1977 U.S. Code Cong. & Ad.News 1077, 1397, 1402. See also H.Conf.Rep. No. 95-564,1977 U.S. Code Cong. & Ad.News 1502, 1559 (calling for “thorough, comprehensive review”). Our inquiry indicates that the specific meteorological and geographic problems present at these sites were not adequately resolved in using the CRSTER model without validation. Based on the CRSTER model, EPA has reversed its field and has allowed 400% more SO2 than its original order permitted — all without evaluation, validation, or empirical testing of the model at the site, a site where the parties agree that the lakeshore effects on the dispersion of SO2 are significant but as yet untested and unknown (at least on the basis of the present record). See Motor Vehicle Mfg. Assn. v. State Farm Mutual, 463 U.S. 29, 41-42, 103 S.Ct. 2856, 2865-66, 77 L.Ed.2d 443 (1983) (agency “changing of course by rescinding rule” requires closer judicial scrutiny). By no means does the Court insist that all models be validated at all sites. We find only that the accuracy of CRSTER at the site has not been sufficiently demonstrated to meet the arbitrary and capricious standard of review. Second, although the Court originally considered saving the time and expense of starting over at the agency level by ordering the parties to propose an appropriate evaluation procedure for the CRSTER model, both EPA and the Group I petitioners have requested that we remand the case to EPA for de novo resolution of the issue. Accordingly, the case will be remanded to EPA for further proceedings consistent with this opinion and our opinion of February 26, 1986. EPA will submit a proposed order of remand within 20 days from the date of filing of this opinion. The other parties will submit their comments and alternative proposals for an order of remand within 10 days following the date of filing of EPA’s proposed order of remand. It is so ordered. Question: Did the courts's use or interpretation of the arbitrary and capricious standard support the government? Note that APA allows courts to overturn agency actions deemed to be arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. Overton Park emphasized this is a narrow standard, and one must prove that agency's action is without a rational basis. This also includes the "substantial justification" doctrine. A. No B. Yes C. Mixed answer D. Issue not discussed 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. MIDWESTERN DEVELOPMENTS, INC., Appellant, v. The CITY OF TULSA, OKLAHOMA, a municipal corporation, Appellee. No. 7511. United States Court of Appeals Tenth Circuit. July 11, 1964. Rehearing Denied Aug. 19, 1964. See also 319 F.2d 53. Robert J. Woolsey, of Farmer, Wool-sey, Flippo & Bailey, Tulsa, Okl., for appellant. John Robert Seelye, Tulsa, Okl. (Charles E. Norman, City Atty., with him on brief), for appellee. Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit Judges. MURRAH, Chief Judge. This is an appeal from a judgment dismissing, for lack of federal jurisdiction, a claim brought under 28 U.S.C. § 1331 as one involving requisite amount in controversy and arising out of federal law. The suit sought to quiet title to and recover damages for the taking of a strip of land in Tulsa County, Oklahoma, formerly part of a railroad right-of-way over a Creek Indian allotment. The trial Court did not think that the “necessary allegations” of the complaint stated a claim arising under federal law. We cannot agree. The complaint alleged the allotment of the land to the Indian allottee, as provided by federal law, and execution by the allottee of a “Right-Of-Way Deed,” purporting to convey to the railroad a strip of land 150 feet wide, over a portion of the allotment. It further alleged that through mesne conveyances the appellant, Midwestern Developments, Inc., acquired title to a portion of the allotted land abutting the right-of-way. It then alleged that the railroad company had conveyed, or attempted to convey, a 60 foot strip of the right-of-way abutting appellant’s land, to the City of Tulsa for non-railroad purposes; that such conveyance constituted an abandonment of the strip of land for railroad purposes; and, that by force of federal law (Enid-Ana-darko Act, February 28, 1902, 32 Stat. 43), pursuant to which the right-of-way was originally granted, the strip of land involved here reverted to appellant as the present owner of the abutting property. It was alleged that the City of Tulsa claims title to the strip of land in fee simple adverse to appellant, and the prayer is for judgment quieting title and damages in reverse condemnation for the taking of the land. We know, of course, that a claim does not arise out of the laws of the United States so as to confer federal court jurisdiction merely because it may have its origin or source in federal law. The asserted right must depend upon the operative effect of federal law, i. e., the result of the suit must depend upon the construction and effect of such law. See: Prairie Band of Pottawatomie Tribe of Indians v. Puckkee (10 CA), 321 F.2d 767, and cases cited. And, in determining whether the complainant has stated a genuine and substantial federal question on which the result depends, we look beyond the naked allegations and to the statement of his own claim “unaided by anything alleged in anticipation or avoidance of defenses which it is thought the defendant may interpose.” Taylor v. Anderson, 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed. 1218. See: Viles v. Symes (10 CA), 129 F.2d 828; Martinez v. Southern Ute Tribe (10 CA), 273 F.2d 731; and Prairie Band of Pottawatomie Tribe of Indians v. Puckkee, supra. Cf. Norton v. Larney, 266 U.S. 511, 45 S.Ct. 145, 69 L.Ed. 413. But, jurisdiction to entertain the subject matter of the lawsuit does not depend upon whether the suitor is entitled to prevail. The court does not judge the merits of the lawsuit to determine jurisdiction. It will examine the plaintiff’s pleadings to determine only whether the asserted claim has a substantial basis in federal law and is not merely a colorable statement that the claim does so arise. The Right-Of-Way Deed in question is shown to have been executed in September, 1902, after the effective date of the Enid-Anadarko Act. That Act did grant to the Enid and Anadarko Railway Company the right to locate, operate and construct a railroad through the Indian Territory, and that railroad was authorized to “take and use for all purposes of a railway, and for no other purpose, a right-of-way * * provided that no part of such right-of-way “shall be leased or sold”; and, that when any portion shall cease to be used for railway purposes, such portion shall revert to the Tribe of Indians from which the same shall have been taken. This part of the statute has specific reference to the Enid and Anadarko Railway Company, which did not acquire and was never interested in this particular right-of-way. But, Section 13 of the Act does purport to grant “to any railway company” the right to locate, construct and maintain a railroad into and through the Indian Territory, together with the right to take and condemn lands for right-of-way purposes “in or through any lands in said Territory which have been or may hereafter be allotted in severalty to any individual Indian or other person •5f » Appellee contends that no part of this Act is applicable to the right-of-way grant in this case and does not, therefore, operate to condition the nature of the estate acquired by the right-of-way deed from the Indian allottee. Such may well be the ease. It may be that this case is clearly distinguishable from right-of-way cases over Indian lands in which federal jurisdiction has been sustained. See: St. Louis-San Francisco Railway Company v. Walter (10 CA), 305 F.2d 90, and cases cited. But, in this posture of the case, we do not decide the merits of the lawsuit and we express or imply no opinion. It is sufficient that the statute invoked as determinative of the nature of the estate granted is not clearly inapplicable, and the complaint based thereon is not, therefore, wholly without foundation. We hold that the complaint does state a claim for relief under federal law, and the case is accordingly reversed for trial on the merits. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_indict	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the indictment was defective?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". O. D. BRATTON et al., Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. O. D. BRATTON and Dorothy Bratton, Respondents. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. J. Ross HOLCOMB, Jr., Respondent. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Frank A. CONKLING and Eula W. Conkling, Respondents. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. James A. HOLCOMB and Lou H. Holcomb, Respondents. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Nolah D. HOLCOMB, Respondent. Nos. 14062-14067. United States Court of Appeals Sixth Circuit. Oct. 31, 1960. Lowell W. Taylor, Memphis, Tenn. (Hubert A. McBride and John J. Dog-gett, Jr., Memphis, Tenn., on the brief), for 0. D. Bratton. Arthur I. Gould, Dept, of Justice, Washington, D. C. (Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, — A. F. Prescott and Arthur I. Gould, Attys., Dept, of Justice, Washington, D. C., on the brief), for Commissioner of Internal Revenue. Before MILLER, CECIL and WEICK, Circuit Judges. PER CURIAM. The controversy here involves the tax consequences of distributions made to the shareholder-creditors of a closed corporation, upon its dissolution and liquidation. The shareholders were creditors in varying amounts for salaries and commissions owing to them by the corporation. In the liquidation, the corporation undertook to distribute assets to its shareholders for their capital interests prior to the satisfaction of their claims as creditors. The corporation then handled the shareholders’ claims as creditors by selling its mill and related equipment and certain inventories in exchange for long-term, instalment, negotiable, interest bearing promissory notes of the purchasers secured by a mortgage on the property sold by the corporation to them. The corporation transferred the notes and mortgage to a bank with authority to collect the payments on the notes and make distribution to the shareholder-creditors. The purchasers assumed the indebtedness owing to the shareholder-creditors, but agreed to pay it only out of the instalments due on the notes. The shareholder-creditors released the corporation from said indebtedness and agreed to look to the notes secured by the mortgage. The real dispute, between the parties, relates to the manner in which the notes should be treated for tax purposes. Taxpayers claim that the notes should not be considered as a distribution in cash and that they should be taxed only on the actual instalments paid on the notes as and when received by them from the bank. Taxpayers insist that the notes were never delivered to them and that they have neither title to or possession of the notes. The Commissioner on the other hand maintains that the notes should be taxed at their full face value in 1952 at the time when they were transferred to the bank. The Tax Court determined that the transfer of the notes to the bank was in reality for the benefit of the taxpayers and that the bank in collecting the in-stalment payments and distributing them to taxpayers was acting as their agent. The Tax Court further held that the notes should be taxed at their full face value at the time of the assignment to the bank since there was no proof that their fair value was any less, citing Loyer v. Commissioner, 6 Cir., 1952, 199 F.2d 452. The Tax Court further held that the value of the notes represented ordinary income to the taxpayers to the extent of the corporate indebtedness owing to them, and that any sums received in excess thereof were taxable as capital gains to the extent that they exceeded the basis for their shares of stock. We think there was substantial evidence to support the findings of fact and conclusions of the Tax Court. They are binding on this Court unless clearly erroneous. Commissioner of Internal Revenue v. Spermacet Whaling & Shipping Co., 6 Cir., 281 F.2d 646. The decisions of the Tax Court may be justified on another ground. Where the note of a third person is accepted by a creditor, it ordinarily operates as a payment and discharge of the indebtedness. Southworth v. Thompson, 1872, 57 Tenn. 10, 17; Union Bank of Tennessee v. Smiser, 1853, 33 Tenn. 501. Our case is stronger because the shareholder-creditors here actually released the corporation and agreed to look solely to the notes for the payment of their indebtedness. There was a substitution of a new debtor in the place of an old one and this constituted a novation. Russell v. Centers, 153 Ky. 469, 473, 155 S. W. 1149; Crabb et al. v. Cole, 19 Tenn. App. 201, 84 S.W.2d 597. The decisions of the Tax Court are affirmed. Question: Did the court rule that the indictment was defective? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed 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. SUBURBAN TRANSIT CORP. and H.A.M.L. Corporation, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Highway and Local Motor Freight Drivers Local No. 701, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Intervenor. UNITED TRANSPORTATION UNION, LODGE NO. 1589, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Nos. 73-1377, 73-1442. United States Court of Appeals, Third Circuit. Argued Feb. 12, 1974. Decided May 23, 1974. Alfred J. Hill, Wilentz, Goldman & Spitzer, Perth Amboy, N. J., for petitioners in No. 73-1377. Robert M. Saltzstein and Jeffrey S.’ Dubin, Mirkin, Barre, Saltzstein & Gordon, P.C., Great Neck, N. Y., for petitioner in No. 73-1442. David Friedland, Jersey City, N. J., for intervenor in No. 73-1377. Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, William H. DuRoss, III, John M. Flynn, Attys., N. L. R. B., for respondent. OPINION OF THE COURT Before VAN DUSEN and ADAMS, Circuit Judges, and HUYETT, District Judge. VAN DUSEN, Circuit Judge. This case is before this court upon the petitions of Suburban Transit Corporation (“Suburban”), H.A.M.L. Corporation (“H.A.M.L.”), and United Transportation Union, Lodge No. 1589 (“UTU”) to review and set aside a decision and order of the National Labor Relations Board (hereinafter “NLRB” or “Board”) issued against Suburban and H.A.M.L. on May 4, 1973, and reported at 203 N.L.R.B. No. 69. The Board has cross-applied for enforcement of that order. This court has jurisdiction pursuant to § 10(e) and (f) of the National Labor Relations Act, as amended (hereinafter “Act”). 29 U.S.C. § 160(e) and (f). The unfair labor practice charges, which resulted in the Board’s order in this case, were filed by the Highway and Local Motor Freight Drivers, Local No. 701, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (“Teamsters”) in October and November of 1971. As amended and consolidated, the complaint filed by the Board under Section 10(b) of the Act, 29 U.S.C. § 160(b), alleged that Suburban violated (A) §§ 8(a)(1) and (2) of the Act by executing a new collective bargaining agreement with UTU while a question concerning representation existed, (B) §§ 8(a)(1) and (3) by virtue of the fact that said contract contained a union-security provision, (C) § 8(a)(1) by making threats to certain striking employees, and (D) §§ 8(a)(1) and (3) by discharging those employees. The complaint also alleged that H.A.M.L. violated (A) §§ 8(a)(1) and (2) by executing a contract with UTU at a time when UTU did not represent an uncoerced majority of H.A.M.L.’s employees and by assisting UTU in its organizing drive, (B) §§ 8(a)(1) and (3) by the inclusion of a union-security provision in said contract, and (C) §' 8(a)(1) by acts of surveillance of and assistance to union activities. On the basis of this complaint, the Board filed a petition for an injunction under § 10(j) of the Act on January 24, 1972. Thereafter, extensive hearings were conducted by the Administrative Law Judge, the transcript of which was forwarded to the district court and made a part of the injunction proceeding by agreement of the parties. Following oral argument and submission of briefs, the district court on July 26, 1972, rendered an opinion and order denying the Board’s application for injunctive relief. See Balicer v. Suburban Transit Corp., unpublished opinion of 7/28/72 (Civil No. 158-72, D. N.J.). The Administrative Law Judge issued his decision on November 27, 1972, in which he found that Suburban and H.A.M.L. violated §§ 8(a)(1), (2) and (3) of the-Act as charged in the complaint, and he incorporated a proposed order. On May 4, 1973, a three-member panel of the Board affirmed the findings and conclusions of the Administrative Law Judge and adopted his recommended order. I. Charges Against Suburban UTU has represented Suburban’s employees for approximately 30 years. In July 1971, UTU requested that bargaining for the terms of a new contract commence as the then current agreement was due to expire on September 14, 1971. In late August, Suburban employee Daniel Rava was elected chairman of UTU’s bargaining committee, which also included employees Peterson and Bowman. Although not officially members of the committee, Gerald McPhillips, a UTU international representative, and Austin Zechman, a UTU vice president, assisted the committee in its deliberations. Suburban was represented by Morris Lipschitz, officer, director and sole owner of Suburban, Lee Jacobs and Sidney Kuchin, the two other Suburban officers, and Ronnie Kohn, Suburban’s office manager. After a series of bargaining sessions, the parties reached accord on September 13 on a three-year agreement. On September 14 a ratification meeting was held at which the employees decisively rejected the proposed contract by a vote of 49 to 3, apparently because of its three-year term. Following this meeting, the UTU committeemen agreed to bargain for a shorter, two-year contract term. However, at the next bargaining session on September 24, Suburban ■ insisted upon a three-year contract, but offered to increase its initial wage offer. The subsequent ratification meeting, attended by about 30 Suburban employees, broke up in chaos when the term of the contract was announced and no ratification vote was taken. After the meeting, McPhillips met with Rava and Peterson, and they all agreed that they had not had a fair opportunity to present the package to the men and that they should meet with Suburban again. As early as July 1971, Rava and, at some time during that summer, several other employees, had become interested in the possibility of changing union representation from UTU to the Teamsters. Between July and September, Rava called the Teamsters on several occasions to explore avenues of having the Teamsters represent the Suburban employees. In early September, he and employee Manga met with Martin McDermott, a Teamsters international representative, at the Teamsters’ premises. McDermott agreed to check to see if there was a “no raid pact” with the UTU but warned that the Teamsters could be of no help until the contract expired. Thereafter, Rava called the Teamsters several times and was told by McDermott that there was not a “no raid pact” between the Teamsters and UTU. On the morning of September 15, Rava requested that Peterson meet him at the Teamsters’ premises, where they discussed with McDermott ways in which a change in union representation could be effected. During this meeting, McDermott gave Rava a decertification petition and some Teamsters’ membership cards, which Rava placed in the trunk of his car. Later that day, Peterson informed McPhillips of the meeting with McDermott. McPhillips then advised UTU vice-president Kenneth Moore of Rava’s contacts with the Teamsters, and Moore requested that McPhillips obtain further information before having Rava removed from his union office. On September 26, Rava gave the decertification petition and Teamsters’ authorization cards to Manga, who proceeded to solicit signatures. After obtaining signatures of more than 30% of Suburban’s employees, Manga filed the petition for decertifying UTU on September 29, and the Teamsters filed a representation petition the same day. Suburban received the petitions on October 2. On September 28, Suburban officials and the UTU bargaining committee met again and agreed that it would be useless to hold another membership meeting. The mediator suggested that a petition be drawn up and that members of the committee speak to each employee, and if a majority signed the petition, then the committee could sign the contract. Rava opposed the petition and suggested instead a mail ballot, which was finally agreed upon. That night, however, while Peterson was in a meeting with Zechman at the latter’s home, Moore called Zechman and told him that Rava was collaborating with the Teamsters and that he was taking steps to have Rava removed as chairman of the wage committee. Zechman began to suspect that Rava’s suggestion of the mail ballot was designed to cause further delay and, therefore, he and Peterson decided to proceed with a petition. The contract ratification petition was drawn up and circulated on October 1 by Peterson and another UTU official, Tom Alexander, and was returned to Zechman on October 2 with 51 signatures (out of the 61 employees constituting the unit of drivers). McPhillips contacted Suburban president Lipschitz and told him that the committee believed they had a majority and were prepared to sign a renewal agreement. The signatures on the petition were checked against the payroll forms and were found to be valid. Lipschitz agreed to sign the contract when he returned from a trip to California, and on October 14 the contract was executed. On the evening of October 26, a meeting was held at the Teamsters’ hall and a group of Suburban employees voted to strike, apparently to protest both the discharge of two workers because of an unrelated accident and the execution of the contract with UTU. The next day, and for a few days thereafter, a number of Suburban employees went out on strike and began picketing the company’s premises, with signs reading “Employees of Suburban Transit on Strike Unfair Labor Practices Local Teamsters Union No. 701.” The number of employees who picketed is disputed, estimates ranging from 25 to 46. At most only 17 employees worked on the first day of the strike. On October 29, Suburban wrote 34 letters to striking employees, stating that they would be suspended if they did not report for work on November 2. On November 1, Suburban obtained a temporary restraining order from the Superior Court of New Jersey. While most of the employees returned to work on November 2, 19 did not. Following an investigation conducted by Suburban, all but two of the 19 strikers were discharged. The Board’s conclusion that Suburban violated §§ 8(a)(1), (2), and (3) of the Act was based primarily on its finding that the decertification petition filed by Manga and the representation petition filed by the Teamsters (supported by authorization cards) raised a real question concerning representation and that, therefore, Suburban’s execution of a new contract with UTU, containing a union security provision, when Suburban had knowledge of those petitions, was an unfair labor practice under the doctrine of Midwest Piping & Supply Co., 63 N.L.R.B. 1060 (1945). The Board recognized that this finding conflicts with our decision in NLRB v. Swift & Co., 294 F.2d 285 (3d Cir. 1961), where this court held that the mere filing of a representation petition by a competing union does not create a real question of representation so as to prevent an employer from entering into an agreement with the previously certified union, but the Board felt constrained to follow its own law on this point. We, in turn, are constrained to follow Swift and, therefore, hold that the Board’s determination that a real question of representation existed at the time of the renewal agreement between Suburban and UTU is not supported by substantial evidence. See also NLRB v. Peter Paul, Inc., 467 F.2d 700, 702 (9th Cir. 1972); NLRB v. Midtown Service Co., 425 F.2d 665, 669 (2d Cir. 1970); NLRB v. North Electric Co., 296 F.2d 137, 139-140 (6th Cir. 1961); St. Louis Independent Packing Co. v. NLRB, 291 F.2d 700, 704 (7th Cir. 1961). As to the discharge of the 19 striking employees, the Board’s finding of a violation of §§ 8(a)(1) and (3) of the Act was based upon the premise that the strike was protected activity, despite the possible applicability of a no-strike clause in the bargaining agreement, because the Board found it was called, at least in part, to protest an unfair labor practice — i. e., the execution of the new agreement between Suburban and UTU. Since we have held that the evidence does not support the Board’s finding that this agreement constituted an unfair labor practice, its conclusion that the discharge of the strikers violated §§ 8(a)(1) and (3) must also be set aside and the case must be remanded to the Board for a determination as to whether the strike was protected activity in light of Article 13 of the bargaining agreement. Cf. Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974). II. Charges Against H.A.M.L. H.A.M.L. began operations in 1968, and until November 1971, its employees were not represented by a union. On November 1, H.A.M.L. employee Lang-don contacted the Teamsters’ representative McDermott to discuss organizing H.A.M.L. employees. On the evening of November 2, H.A.M.L. employees Coudray, Rayhon and Langdon met with McDermott and Rava, obtained Teamsters’ authorization cards from Mc-Dermott, and began soliciting signatures the following morning, November 3. Suburban’s former dispatcher, Harold Bien, testified that at 7:30 a. m. on November 3, H.A.M.L.’s manager, Patrick Kilcoyne, called on the telephone and told him that the Teamsters were organizing H.A.M.L.’s employees. Bien then told Zechman, who was present with Bien during the telephone conversation, what Kilcoyne had said, and Zechman allegedly replied, “[W]e’ll have to go down there and organize them.” Zechman then dictated UTU authorization cards and proceeded to Suburban’s office, where he duplicated them on Suburban office equipment. Shortly thereafter, he recruited H.A.M.L. employees Lobmayer, Alexander and Thomas to assist in the UTU campaign and began soliciting signatures in H.A.M.L.’s garage. Bien also testified that at about 11:30 that morning, he called Jack Flanagan, H.A.M.L.’s dispatcher, to request that drivers be made available for the New York City runs. According to Bien, Flanagan replied: “I am going to have to cut you a couple short. We are down here getting people signing cards.” Furthermore, H.A.M.L. employee Schorr testified that when he returned to the H.A.M.L. garage following his afternoon run, Flanagan asked him to see someone in the drivers’ room, and that when he went there, Lobmayer solicited his signature for a UTU authorization card. Later that afternoon, Lobmayer and the other UTU organizers determined they had a majority of employees signed up for UTU, having 40 signed authorization cards out of approximately 50 to 55 employees. They then notified Zechman, who in turn called H.A.M.L. vice president Kuchin and requested -recognition for UTU. At about 6 p. m., Kuchin called Kilcoyne and told him to be available. At about 7:30 p. m., Kuchin called the home of Suburban’s manager, Kohn, where a party was in progress, and told Kilcoyne to come to Suburban’s offices. Kilcoyne and his wife, who were among the guests, left the party with Kohn and went to Suburban’s offices. Awaiting them there were Zechman, Kuchin and H.A.M.L. president Jacobs, as well as the newly appointed UTU bargaining committee of Alexander, Bascocky, Lobmayer, and Fayda. Before their arrival, Kuchin had checked the UTU authorization cards and had identified 35 of the signatures. Having determined that UTU represented a majority of the employees, Kuchin extended recognition to it. At the beginning of the meeting, Zechman stated that “it was important to get the contract signed, negotiated and signed so we could get it in before the Teamsters, certainly.” Thereafter, using the October 14 Suburban-UTU contract as a model or guide, the parties negotiated between 8:00 p. m. and 1:30 a. m. As each portion of the contract was agreed upon, Mrs. Kilcoyne typed that part. Finally, at the conclusion of the session, the contract was signed by the H.A.M.L. officers and then was taken to a motel where UTU vice-president Moore was staying. After a brief discussion, Moore executed the contract for UTU. At work later that morning, Bien asked Kilcoyne how everything had gone in regard to the contract and Kilcoyne replied, “All signed, sealed and delivered.” On the basis of the foregoing facts, the Board concluded that H.A.M. L. violated § 8(a)(1), (2), and (3) of the Act by unlawfully assisting UTU in organizing its employees and then executing and maintaining a contract with UTU containing a union security provision. Although we accept, as supported by the evidence, the Board’s decision to credit the testimony of Bien where contradicted by that of Zechman and Flanagan, and its finding that Flanagan is a supervisor, we agree with H. A.M.L.’s contention that the facts found by the Board fail to establish that H.A. M.L. gave unlawful support or assistance to the UTU organizing drive. We are mindful that “where, as here, we are in agreement that substantial evidence supports the Board’s findings, our scope of review is limited to determining whether the Board’s factual inferences are so irrational they cannot stand, and whether, if they stand, they justify the Board’s order.” Department Store Food Corp. of Pennsylvania v. NLRB, 415 F.2d 74, 77 (3d Cir. 1969). Nevertheless, this contention merits close examination because the Board conceded that “the evidence of direct assistance in obtaining signatures on the mimeographed UTU ‘authorizations’ is not particularly strong,” and therefore could conclude only that H.A. M.L. “gave at least tacit approval to and benevolent observation of, the UTU organizers at HAML’s garage”. The law is clear, however, that cooperation between an employer and a union does not violate but rather accords with the policy of the Act. An unfair labor practice occurs only when the employer’s acts of assistance for a union interfere with the right of the employees fairly to choose their representative. And as one court has observed, “the line between ‘close cooperation’ and ‘interference with the freedom of choice of the employees’ is a delicate one and often difficult to maintain, particularly where rival unions are involved.” NLRB v. Hunter Outdoor Products, Inc., 440 F.2d 876, 880 (1st Cir. 1971). In its decision, the Board placed heavy emphasis on the haste with which H.A.M.L. recognized UTU as the representative of its employees and concluded a contract with it. In light of H.A.M.L.’s knowledge of the Teamsters’ drive, the Board adopted the opinion and, therefore, the reasoning of the Administrative Law Judge that such haste constituted an attempt by H.A.M.L. to favor UTU, and there is language in that opinion suggesting that this fact alone established an unlawful interference with the right of the employees to choose their own representative. We do not believe that by itself it is an unfair labor practice for an employer to grant quick recognition to a union and to negotiate a hasty contract where that union represents an uncoerced majority of the employees, even if the employer is motivated by the desire to freeze out a rival union. The issue before us is not the employer’s state of mind but the effect of its actions on the rights of the employees. Cf. International Ladies’ Garment Workers’ Union v. NLRB, 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961). “So long as the acts of cooperation do not interfere with the freedom of choice of the employees, th,ere is no violation of the Act.” NLRB v. Keller Ladders Southern, Inc., 405 F.2d 663, 667 (5th Cir. 1968). Where a union has achieved the support of a majority of the employees without coercion or unlawful assistance on the part of the employer, its recognition by the employer and the negotiation and execution of a collective bargaining agreement are precisely the sort of cooperation that it is the policy of the Act to foster. Although we reject the Board’s suggestion that H.A.M.L.’s haste in recognizing UTU and negotiating a contract with it, without more, would violate the Act, the Board could reasonably infer from such haste that H.A.M.L. preferred to have its employees represented by UTU rather than the Teamsters, and could properly evaluate the other actions of the employer in the light of that preference in determining whether unlawful assistance had been given to the preferred union. See NLRB v. Keller Ladders Southern, Inc., supra at 667. Turning to the remaining evidence, we note that all but one of the actions attributed to H.A.M.L. provide only weak support for the Board’s finding of unlawful assistance. Kilcoyne’s telephone call to Bien on the morning of November 3 indicates that H.A.M.L. had knowledge of the Teamsters’ organizing campaign, but can hardly be interpreted as an attempt to encourage a counter-drive by UTU, especially since Zechman’s learning of what was said appears to have been fortuitous. Of greater weight is the fact that Zechman duplicated the UTU authorization cards at Suburban’s office and on .Suburban’s equipment; however, the inference that the management of Suburban “permitted” Zechman to do this is weakened by the absence of any evidence that it ever knew what Zechman was doing. Similarly, Flanagan’s telling Schorr that someone in the drivers’ room wanted to speak to him suggests a possibility of cooperation with the UTU drive, since that was where the UTU organizers were soliciting signatures. However, that fact can hardly support the Board’s conclusion that “[w]hen the drivers came in to the HAML facility, they were directed by chief dispatcher Flanagan to the UTU representatives . . . .” Schorr seems to have been the only employee to testify that he was “directed” to the drivers’ room, and even if it can be reasonably inferred that Flanagan knew who wanted to see Schorr and for what purpose, there is no evidence that Flanagan’s actions had any coercive effect. We are left, then, with Flanagan’s statement to Bien on the morning of November 3: “I am going to have to cut you a couple short. We are down here getting people signing cards.” By itself that statement does not establish a violation of the Act, since the record demonstrates that the Teamsters was also soliciting signatures that day and thus any decision to curtail dispatching drivers would have benefited both unions. Moreover, even viewing Flanagan’s statement together with the weaker evidence of assistance discussed above and in light of H.A.M.L.’s preference for UTU, as shown by the haste with which the company recognized and negotiated with that union, we do not believe that this evidence establishes such direct support and assistance to UTU as to interfere with the employees’ freedom of choice. Thus, we conclude that H.A.M. L. did not violate § 8(a)(1), (2), and (3) of the Act in according recognition to UTU and in concluding a contract with it that contained a union security provision. The Board also found that H. A.M.L. committed an independent violation of § 8(a)(1) of the Act by requesting an employee to engage in surveillance of the union activities of other employees, and we hold that this finding is supported by substantial evidence on the record. H.A.M.L. employee Coudray testified that during the afternoon of November 5, Flanagan asked him to spy at a Teamsters’ meeting that night. Coudray went to the meeting and reported back to Flanagan the following morning, and was allegedly told to call Kilcoyne and tell him what had occurred. Kilcoyne testified that Coudray did in fact call him and tell him about the meeting, although he replied to Coudray that the information was unsolicited, that he really was not interested, and that he had given instructions to Flanagan not to get involved with the union business but to stay out of it and just do his own job. It is well established that surveillance of the type described by Coudray is conduct prohibited by § 8(a)(1) of the Act. See NLRB v. Historic Smithville Inn, 414 F.2d 1358, 1359-1360 (3d Cir. 1969), cert. denied, 397 U.S. 908, 90 S. Ct. 904, 25 L.Ed.2d 88 (1970); NLRB v. Fishman & Sons, 278 F.2d 792, 796 (3d Cir. 1960). However, H.A.M.L. argues that the Board erred in crediting Coudray’s testimony. After a careful review of the record, including the Administrative Law Judge’s discussion of this point, and in view of our extremely limited role in reviewing the credibility of Board witnesses, NLRB v. Local 420, Plumbers, supra at 328, we find this argument to be without merit. H.A.M.L. also contends that the finding by the Board that Flanagan is a supervisor is not supported by the evidence and that his actions were, therefore, not attributable to H.A.M.L. We disagree. Although there is some evidence suggesting employee status, it does not compel such a finding for the record also indicates that Flanagan is salaried, is the sole dispatcher for H.A. M.L.’s 55 drivers, has authority to assign overtime and determine whether to send drivers to Suburban from H.A.M.L. when requested by Suburban’s dispatchers or officials, is the person whom employees call when they are unable to work, occasionally adjusts minor grievances, and performs some of Manager Kilcoyne’s functions when the latter is absent. For the foregoing reasons, the petition for enforcement will be granted as to that part of the Board’s order concerning H.A.M.L.’s violation of § 8(a) (1) of the Act for having requested an employee to engage in surveillance of the union activities of other employees. As to all other matters, the petition for enforcement will be denied and the petition for review granted. The case will be remanded to the Board for further proceedings not inconsistent with this opinion. . Before the Board Suburban and H.A.M.L. attacked the order consolidating these cases, contending that the two companies do not constitute a single employer within the meaning of § 2(2) of the Act. However, the Board found that they did constitute a single employer and Suburban and H.A.M.L. now challenge that finding. It is well settled that this question is for the Board to determine and where businesses are under common ownership, control and management, they may be considered as a single employer. See NLRB v. Stowe Spinning Co., 336 U.S. 226, 227 n. 2, 69 S.Ct. 541, 93 L.Ed. 638 (1949); NLRB v. City Yellow Cab Co., 344 F.2d 575, 577-578 (6th Cir. 1965); NLRB v. National Shoes, Inc., 208 F.2d 688, 691 (2d Cir. 1953). The record in this case reveals that Suburban’s sole owner is Morris Lipschitz; its officers are Morris Lipschitz and his two sons-in-law, Lee Jacobs and Sidney Kuchin; and its directors are Morris Lipschitz, his wife, Lillian Lipschitz, and his nephew Herman Lipschitz. The owners and sole officers and directors of H.A.M.L, are Jacobs, Kuchin, and Herman Lipschitz. We therefore hold that there is substantial evidence to support the Board’s finding of a single employer. . “8. (a) It shall be an unfair labor practice for an employer— (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; (2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: . . . (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization : . We note that in this opinion the district court found that there was not even “reasonable cause” to believe that Suburban and H.A.M.L. violated §§ 8(a)(1), (2), and (3). . UTU was formerly known as the Brotherhood of Railway Trainmen, Lodge No. 993. Suburban had a collective bargaining relationship with the Brotherhood starting in 1942. The last contract between the two parties ran from September 15, 1968, to September 14, 1971. At some time during the term of that contract, UTU became the successor to the Brotherhood and assumed and administered the aforesaid collective bargaining agreement, . In its findings of fact, the Board related Rava’s undisputed testimony that Morris Lipschitz told him that he should work with Peterson and Zechman to get the UTU petition signed, that if 80 or 90 per cent, of the employees signed it, “this would knock the Teamster petition right out of the box,” and that if Rava did help, he “would be in with the company one thousand per cent.” However, the Board did not rely on that testimony and at no point in its discussion of Suburban’s unfair labor practices did it allude to the possibility that the alleged statement by Lipschitz constituted unlawful employer interference in the employees’ selection of a bargaining agent. . Because of our holding on this issue, it is unnecessary for us to review the Board’s conclusion that Rava’s dual role as chief negotiator for UTU and collaborator in the Teamsters’ organizing effort was of no legal significance. Nevertheless, we wish to record our strong disapproval of the ethics of such activities by Rava while an official of the UTU, involving, as they appear to have done, the type of conflict of interest that makes it highly improbable that a union representative could fully carry out his responsibilities to his union and to his fellow employees. Of. § 501(a) of the Landrum-Griffin Act, 29 U.S.C. § 501(a) : “The officers, agents, shop stewards, and other representatives of a labor organization occupy positions of trust in relation to such organization and its members as a group. It is, therefore, the duty of each such person, taking into account the special problems and functions of a labor organization ... to refrain from dealing with such organization as an adverse party or in behalf of an adverse party in any matter connected with his duties and from holding or acquiring any pecuniary or personal interest which conflicts with the interests of such organization See also Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 97 L.Ed. 1048 (1953), where the Supreme Court stated: “The bargaining representative, whoever it may be, is responsible to, and owes complete loyalty to, the interests of all whom it represents.” . Article 13 covers the grievance procedure, and it is noted that subparagraph F contains this provision: “F. Recourse to outside tribunals will not be made by either party until the Grand Lodge of the Union has been advised and given a reasonable opportunity to intervene and dispose of or adjust the situation as the case may be. This, with the understanding that there shall be no authorized strike during such period the dispute is pending under the discussion with either the local lodge or the Grand Lodge.” In its preamble, the agreement also contains this language: “The purpose of this agreement is to create a definite understanding between Suburban and the Union regarding rates of pay and working conditions and to establish a plan for the prompt adjustment of grievances and all other disputes arising between Suburban and the Union.” . Zechman denied having any conversation with Bien on the morning of November 3 concerning the Teamsters’ organizational drive or Zechman’s intention to go down to H.A.M.L. to organize on behalf of UTU. Flanagan testified that although he did call Bien on November 3 (as he normally did several times a day), he merely told Bien of rumors that one of the unions was signing up men. H.A.M.L. argues that the Board should not have believed the contrary testimony of Bien, since he was biased against H.A.M.L., having been summarily dismissed from his job as dispatcher and was financially obligated to the Teamsters and Rava, having received an interest-free loan from them at about the same time he decided to testify for the Teamsters. While it thus appears that there may be reason to doubt Bien’s credibility, “it is not our task to resolve questions of credibility of those who testify at the Board hearings.” NLRB v. Local 420, Plumbers, 239 F.2d 327, 328 (3d Cir. 1956). After a careful review of the record, we conclude not to disregard the reasoned evaluation by the Administrative Law Judge of the credibility of the various witnesses. . See p. 89, infra. . There seems to be substantial evidence in the record to support the Board’s finding that H.A.M.L. was aware of the Teamsters’ organizing effort. H.A.M.L. appears correct that the Board erred in finding that Zechman told everyone present at the negotiating session that it was important to get the contract signed to beat out the Teamsters 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_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 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. SIMMONS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 5730. United States Court of Appeals First Circuit. March 10, 1961. Eduardo Negron Rodriguez, with whom Fiddler, Gonzalez, Guillemard & Rodriguez, San Juan, P. R., was on brief, for petitioner. Melvin J. Welles, Attorney, with whom Stuart Rothman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Russell Specter, Attorney, Washington, D. C., were on brief, for respondent. Before MAGRUDER, HARTIGAN and ALDRICH, Circuit Judges. ALDRICH, Circuit Judge. This is a petition for review of an order of the NLRB dismissing a complaint based upon a charge by an employer, Simmons, Inc., petitioner herein, engaged in manufacture and sale in interstate commerce in San Juan, Puerto Rico, that a committee composed of certain of its employees, collectively known as the Comite, had violated section 8(b) (4) (C) of the National Labor Relations Act. The first question is Whether the Comite was a “labor organization.” It is, of course, clear that it could be. See 29 U.S.C.A. § 152(5); N. L. R. B. v. Cabot Carbon Co., 1959, 360 U.S. 203, 79 S.Ct. 1015, 3 L.Ed.2d 1175. Whether it was in fact will depend on what, on the dates in issue, it attempted to.do. If within the meaning of the act it sought to have itself recognized or bargained with, then it acted as a labor organization. The employees comprising the Comite were Pacheco, Gambaro, Garcia, Burgos and Aviles-Padilla. The Trial Examiner found that all except Aviles-Padilla induced a strike of petitioner’s employees on March 23, 1959, for the purpose of forcing it to recognize the Comite as the representative of its employees when another organization had been certified, and recommended an order. Petitioner also charged that the Puerto Rico local of the Teamsters’ Union was in similar violation, but the Trial Examiner found this charge not supported. On review the Board reversed the findings against Pacheco, Gambaro, Garcia and Burgos, but otherwise affirmed, and ordered the complaint dismissed. With respect to the Teamsters we are satisfied that there was a clear issue of fact, and we will not consider the question further. N. L. R. B. v. Whitin Machine Works, 1 Cir., 1953, 204 F.2d 883, 887. The charge against the Comite is another matter. To the extent that the findings and conclusions of the Board with respect to the Comite members differ from those of the Trial Examiner, we find them unsupportable (with minor exceptions of no relevance here). In spite of the relatively few areas of disagreement, we must summarize the events at some length. In 1957 Simmons signed an agreement expiring January 31, 1959, with a union known as the Mattress Workers. In 1958 a number of Simmons employees sought to interest the Seafarers International Union (SIU) in representing them. In December of that year the SIU held a membership meeting at which a committee, composed of the five previously named (and two others who later resigned), was elected. Its duty, “with the assistance of the officers of the SIU was to prepare and negotiate the agreement with the Simmons Company” to succeed the Mattress Workers’ contract. Pacheco, Gambaro and Burgos were officers of the Mattress Workers, but that union was, in effect, moribund. When Simmons refused to recognize the SIU without an election, an election was held, and the SIU was certified on March 5, 1959. Apparently the certification induced the SIU officials to disregard the Comite. Without any notice to it, they held four meetings with the petitioner. The discussion at these meetings revolved around a contract presented by the SIU officials, and not one previously submitted by the Comite. On Friday, March 20, the four Comite members learned of a meeting scheduled for that day and attended. From the start the Comite quarreled with the SIU, and delayed until the end of the day in even provisionally agreeing (pending completion of the full agreement) to the recognition clause— naming SIU, only — , and to the check-off clause — under which the SIU and not “their treasury” - (the Mattress Workers’ treasury) would receive the dues. The Trial Examiner found that at the outset of this meeting the SIU officials told the Comite that an agreement was going to be signed that afternoon. Manifestly that did not eventuate. Indeed, the important issue of wages did not even reach the discussion stage because of the disagreements over formal matters. The Trial Examiner did not resolve a conflict between Gambaro and Terpe whether, according to Gambaro, petitioner said that if the contract was not signed “that night,” there would never be one. However, he did find that “the meeting broke up [at 10 P.M.] without a complete contract having been agreed upon, and another negotiation session was scheduled for Monday, March 23.” This was apparently the final event of that evening. On March 21 the Comite released a highly critical attack on the SIU for publication in the newspapers. On Monday, March 23, members of the Comite appeared early at the plant and talked with the other employees, who immediately went on strike and began picketing, carrying posters in various forms, but of the general tenor that the SIU had sold them out. Gambaro and Garcia then went to the office of one Bosch, a former president of the SIU, and an experienced labor lawyer, but not then connected with the SIU. Together they drafted the following telegram, which was sent over Gambaro’s signature to the petitioner. “We Are On Strike During This Day In Order To Reject Agreement Negotiated By S. I. U. Representative. We Demand Our Committee Be Recognized To Negotiate Contract.” The Trial Examiner found that the Co-mite adopted this telegram and that it induced the strike. Upon receipt of the telegram petitioner notified the SIU officers, who then went to the plant and told the striking employees that no contract had been signed, or even “negotiated,” and the employees thereupon abandoned the strike. As March 23 was a half-holiday they did not go back to work. That same afternoon petitioner filed the present charge. On the morning of March 24 petitioner summoned all five Comite members to its office and discharged them. Later that day all except Aviles-Padilla sent petitioner the following telegram. “Upon Action Taken By Us Workers Resumed Work Today. We Abrogate And Withdraw Previous Telegram Upon Clarification Of Negotiation Situation. Bargaining Committee Ready To Resume Negotiations On Behalf S. I. U. With Attendance And Assistance Of S. I. U. Leaders To Which We Are Affiliated.” Petitioner refused to reemploy the five Comite members and on March 25 a strike was called which terminated only after an injunction was issued by the district court. At the hearing before the Trial Examiner the Comite contended that the original telegram did not mean that they wished to be the sole bargaining representatives, but only that they wished to participate with the SIU officials. The Trial Examiner rejected this, finding that although the Comite had previously been simply “an arm of the SIU,” by its telegram of March 23 it sought to act as an “exclusive bargaining representative.” It was on this point that the Board reversed, holding that the March 23 telegram was merely “an in-artfully worded demand for inclusion * * * in the contract negotiations.” We need not decide the question of whether, standing alone, the March 23 telegram can be construed as demanding only joint recognition. While the word “exclusive” was not used, it may be wondered to what extent “negotiate” means to participate as a subordinate, particularly coming immediately after a rejection of action “negotiated” by the superior. Nor is this a case of a document drafted by an unskilled layman. However, the telegram did not stand alone. There were important other guides. If this telegram demanded only joint recognition, what was there to “abrogate and withdraw” by the second ? Or what reason to say, on March 24, that the Comite was “ready to resume negotiations * * with attendance and assistance” of SIU officers, if on March 23 that was already its position? The Board makes no answer to this. Furthermore, one cannot disregard the Comite’s unusual features and history. Three of the present four members, when elected, were officers of the union still having an unexpired collective bargaining agreement with the petitioner. According to Terpe’s testimony (unresolved, although it would seem that he should know more about the matter than Gám-baro) , they were not even SIU members. Whatever the Comite’s legal status, it fell considerably short of the constitutional body in General Shoe Corp., 1958, 120 N.L.R.B. 911, on which the Board relied. Its apparent initial purpose was to effect a peaceful changeover to the SIU. When this could not be accomplished without an election, the SIU’s interest in the Comite noticeably declined. As already pointed out, it was bypassed and ignored. On its side, the Comite was equally uncommitted. If it was an internal part of SIU, why should it object to the recognition clause, or to the check-off clause? Why the separate treasury? Gambaro himself supplied the answer. They had not yet “fully joined.” Nor was the newspaper release vigorously attacking the SIU, or the picketing placards announcing that the SIU had sold them out, any more compatible with integral affiliation. We will assume with the Board, without deciding, that a demand to be recognized as a joint bargaining arm of a certified labor organization does not violate section 8(b) (4) (C), and that this is so even when the certified organization and its “arm” apparently represent somewhat divergent views. But by March 23 we can only regard that divergence as having passed the breaking point. On March 23 the Comite had become fully exasperated, and was declaring its independence. We cannot construe the record otherwise. A decree will be entered vacating the order of dismissal and remanding the action to the Board for the entry of an order consistent with this opinion. . “(b) It shall be an unfair labor practice for a labor organization or its agents —* * * (4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike * * * where an object thereof is: * * * (0) forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organization has been certified as the representative of such employees under the provisions of section 159 of this title.” 29 U.S.C.A. § 158(b) (4) (C). . Aviles-Padilla, though a member of the Comite, was absent and did not participate in the activities of March 20-23, the significant days. Hereinafter when we refer to the Comité on those days it will not include him. . Terpe, local president of SIU, testified that none of the five were, or became, members of SIU, but Gambaro contradicted this. Neither the examiner nor the Board resolved this conflict. . This is a matter of some significance. Gambaro testified that these funds were waiting to be turned over to the SIU, but not “until we joined fully.” . The Board made an additional finding that the Comite “came away from the meeting on March 20 convinced that an agreement * * * had been, or was about to be, executed without their approval.” We will assume that this finding wds warranted, although we have some doubts about it. If it was not, there is even less basis for the Board’s decision, for in such event the Oomite was thereafter being obstreperous in bad faith. . This sentence was patently false. . Petitioner contended that this second strike was also in violation of section 8 (b) (4) (C), but this matter was found against it on adequate evidence. . It seems clear that after certification of the SIU the Comite could not assert a paramount role on the ground that it had been elected to represent the employees. See Brooks v. N. L. R. B., 1954. 348 U.S. 96. 75 S.Ct. 176, 99 L.Ed.125; cf. Douds v. Local 1250, Retail Wholesale Department Store Union, Etc., 2 Cir., 1949, 173 F.2d 764, 9 A.L.R. 2d 685. . It may be noted that even here the Comité designated the SIU for the subordinate role. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_procedur	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. UNITED STATES of America, Appellee, v. Leon NASH, Appellant. No. 701, Docket 33589. United States Court of Appeals Second Circuit. Argued June 13, 1969. Decided July 14, 1969. Certiorari Denied Nov. 24, 1969. See 90 S.Ct. 375. Jerome J. Londin, New York City (Carro, Spanbock & Londin, and Allen Green, New York City, of counsel), for appellant. Frank M. Tuerkheimer, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, New York City, and Charles P. Sifton, Asst. U. S. Atty., of counsel), for appellee. Before MOORE, SMITH and ANDERSON, Circuit Judges. MOORE, Circuit Judge: Leon Nash appeals from an order of the United States District Court denying his motion to set aside a verdict against him which resulted in his conviction on five counts of an indictment charging him with conspiracy to sell unregistered stock and with the sale of stock by fraud. He was sentenced to concurrent terms of one year and one day and fined $500. His conviction was affirmed by this Court. United States v. Hayurtin, 398 F.2d 944 (2d Cir. 1968). Thereafter, Nash moved to set aside the verdict on the ground that the alternate jurors had not been discharged in accordance with Rule 24(c) of the Federal Rules of Criminal Procedure. A hearing on his motion was held and his motion denied. Nash claims that he was denied a fair trial because, as he alleges, there were communications between members of the regular jury and retained alternates during the jury deliberations. The court below, after three days of hearings, found: “1. There is no credible evidence that during the three days of the jury deliberations any communications or conversations took place between the regular jury and the alternates, save for possibly an occasional distant wave or common salutation of greeting as the regular jurors and the alternate jurors went their respective ways in the restaurants at which they had their meals. “2. The directions of the court for segregation of the regular jurors and retained alternates during deliberations were maintained by the marshals throughout the deliberations in the court house and outside thereof at such places as restaurants and in the hotel where the jurors were sequested [sic] during the nights. “3. There is not a scintilla of evidence that the defendant Leon Nash was prejudiced by anything which occurred or failed to occur during the deliberations of the jury.” The record amply supports the District Court’s findings. However, Nash argues that, even accepting the court’s findings, he “ran the risk of having his guilt determined by the three alternates in addition to the regular jurors” because the trial judge at his criminal trial did not dismiss the alternates after the regular jurors retired to consider the verdict. In short, he contends that he was prejudiced per se by the failure to discharge the alternates. Yet, this court in affirming his conviction rejected this very contention. 398 F.2d at 950, 951. The risk this court was referring to, id. at 950, was the risk of impermissible contact. The record is barren of any prejudicial contact. Nash cannot be found to have run the risk of having his guilt determined by anyone other than the twelve regular jurors. United States v. Virginia Erection Corp., 335 F.2d 868 (4th Cir. 1964), cited by appellant, is inapposite. In that case an alternate juror spent the entire period during jury deliberations in the jury room with the twelve regular jurors and was, therefore, in a position to influence discussion and deliberation. Such contact, in fact any significant contact, is absent here. Finally, Nash challenges three discretionary rulings by the District Court (1) limiting the hearing to the possible contact between alternates and regulars during deliberations and prohibiting inquiry into such contacts prior to deliberations, (2) preventing Nash’s lawyer from inquiring into the substance of a telephone call between one of the alternates and a regular juror prior to the hearing, and (3) ending the hearing before the third alternate could be called. The record indicates that the scope of inquiry was properly restricted by the court below which sought to prevent unnecessary fishing expeditions by appellant’s lawyer and improper efforts to undermine the jury’s verdict. Since the claimed prejudice was the alleged impairment of the jury’s deliberations, rulings (1) and (2) were clearly correct. The challenged telephone conversation between a regular juror and an alternate occurred after the trial had ended but before the hearing below. The claim that the hearing was prematurely terminated is without substance. The fact is that no offer of proof was made as to what the testimony of the third alternate would have been and the judge was well within his discretion in concluding that her testimony would have been cumulative. Significantly, after the examination of the last witness was concluded, Nash’s lawyer, after conferring with his client, informed the court he had no further witnesses. It was only after the judge reminded him about the third alternate that he stated he wished to call her. The statement that Nash’s counsel had no other witnesses and the absence of any offer of proof as to the significance of that testimony completely rebut the contention that the court below exceeded its discretion in terminating the hearing when it did. Affirmed. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_casedisposition	C	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. MARSHALL v. UNITED STATES. No. 383. Argued March 25-26, 1959. Decided June 15, 1959. George J. Francis argued the cause for petitioner. With him on the brief'were Omer Griffin and Frances De Lost. James W. Knapp argued the cause for the United States. On- the brief were Solicitor General Rankin, Assistant Attorney General Anderson and Beatrice Rosenberg. Per Curiam. Petitioner was convicted of unlawfully dispensing a number of dextro amphetamine sulfate tablets, a drug within the scope of 21 U. S. C. § 353 (b)(1)(B), without a prescription from a licensed physician, which resulted in misbranding and violation of 21 U. S. C. §331 (k). The Court of. Appeals affirmed, one judge dissenting, 258 F. 2d 94. The case is here on a petition for-certiorari, 28 U. S. C. § 1254 (1), which we granted because of doubts whether exposure of some of the jurors to newspaper arti-. cles about petitioner was so prejudicial in the setting of the case as to warrant the exercise of our supervisory power to order a new trial. 358 U. S. 892. Petitioner never took the stand; nor did he offer any evidence. A government agent testified that he was introduced to petitioner as a salesman who had difficulty staying awake on long automobile trips and that on two occasions he obtained these tablets .'from petitioner. Petitioner asked the trial judge to rule there was entrapment as a matter of law.= The judge refused so to hold and submitted the issue of entrapment with appropriate instructions to the jury. Cf. Masciale v. United States, 356 U. S. 386. The Government asked to be allowed to prove that petitioner had previously practiced medicine without a license, as tending to refute the defense of entrapment.' The trial judge refused this offer saying, “It would be just like offering evidence that he picked pockets or was a petty thief or something of that sort which would have no bearing on the issue and would tend to raise a-collateral issue and I think would be prejudicial to the defendant.” - Yet during .the trial two newspapers containing such information got before a substantial -number of jurors. One news account said: “Marshall has a record of two previous felony convictions. “In 1953, while serving a forgery sentence in the State Penitentiary at McAlester, Okla., Marshall testified before a state legislative committee studying new drug laws for Oklahoma. “At that time, he told the committee that although he had only a high school education, he practiced medicine with a $25 diploma he received through the mails. He told in detail of the ease in which he wrote and passed prescriptions for dangerous drugs.” The other news account said: “The defendant was Howard R. (Tobey) Marshall, once identified before a committee of the Oklahoma Legislature as a man who acted as a physician and prescribed restricted drugs for Hank Williams before the country singer’s death in December, 1953. “Marshall was arrested with his wife, Editjb Every Marshall, 56, in June, 1956. She was convicted on the drug charges in Federal District Court here in November and was sentenced to 60 days in jail. . “Records show that Marshall once served a term in the Oklahoma penitentiary for forgery. There is no evidence he is a doctor, court attaches said.” The trial judge on learning that these news accounts had reached the. jurors summoned them into his chamber one by one and inquired if they had seen the articles. Three had read the first of the two we have listed above and one had read both. Three others had scanned the first article and one of those had also seen the second. Each' of the seven told the trial judge that he would not be influenced by the news articles, that he could decide the case only on the evidence of record, and that he felt no .prejudice against petitioner as a result of the articles. The trial judge, stating he felt there was no prejudice to petitioner, denied the motion for mistrial.- The trial judge has a large discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial. Holt v. United States, 218 U. S. 245, 251. Generalizations beyond that statement are not profitable, because each case must turn on its special facts. We have here the exposure of jurors to information of a character, which the trial judge ruled was so prejudicial it could not be directly offered as evidence. The prejudice to the defendant is almost certain to be as great when that evidence reaches the jury, through news accounts as when it is a part of the prosecution’s evidence. Cf. Michelson v. United States, 335 U. S. 460, 475. It may indeed be greater for it is then not tempered by protective procedures. In the exercise of our supervisory power to formulate and apply proper standards for enforcement of the crim-,inal law-in the federal courts. (Bruno v. United States, 308 U. S. 287; McNabb v. United States, 318 U. S. 332) we think a new trial should be granted.- Reversed. Mr. Justice Black dissents. 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:
sc_issue_2	25	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. BROWN. No. 38. Argued November 15, 1954. Decided December 6, 1954. Samuel D. Slade argued the cause for the United States. Solicitor General Sobeloff, Assistant :Attorney General Burger, Paul A. Sweeney, Morton Hollander and David A. Turner were on the brief. Lee S. Kreindler argued the cause and filed a brief for respondent. Mr. Justice Douglas delivered the opinion of the Court. This is a suit under the Federal Tort Claims Act, 28 U. S. C. § 1346 (b), brought by respondent, a discharged veteran, for damages for negligence in the treatment of his left knee in a Veterans Administration hospital. The injury to the knee occurred while respondent was on active duty in the Armed Services. The injury led to his honorable discharge in 1944. In 1950, the Veterans Administration performed an operation on the knee; but the knee continued to dislocate frequently. So another operation was performed by the Veterans Administration in 1951. It was during the latter operation that an allegedly defective tourniquet was used, as a result of which the nerves in respondent’s leg were seriously and permanently injured. The Independent Offices Appropriation Act, 1935, 48 Stat. 526, 38 U. S. C. § 501a, allows compensation both where the veteran suffers injury during hospitalization and where an existing injury is aggravated during the treatment. Each is considered as though it were “service connected.” Respondent received a compensation award for his knee injury when he was honorably discharged; and that award was increased after the 1951 operation. The District Court agreed with the contention of petitioner that respondent’s sole relief was under the Veterans Act and dismissed his complaint under the Tort Claims Act. The Court of Appeals reversed. 209 F. 2d 463. The case is here on a petition for certiorari which we granted, 347 U. S. 951, because of doubts as to whether Brooks v. United States, 337 U. S. 49, or Feres v. United States, 340 U. S. 135, controlled this case. The Brooks case held that servicemen were covered by the Tort Claims Act where the injury was not incident to or caused by their military service. 337 U. S. 49, 52. In that case, servicemen on leave were negligently injured on a public highway by a government employee driving a truck of the United States. The fact that compensation was sought and paid under the Veterans Act was held not to bar recovery under the Tort Claims Act. We refused to “pronounce a doctrine of election of remedies, when Congress has not done so.” Id., at 53. The Feres decision involved three cases, in each of which the injury, for which compensation was sought under the Tort Claims Act, occurred while the serviceman was on active duty and not on furlough; and the negligence alleged in each case was on the part of other members of the Armed Forces. The Feres decision did not disapprove of the Brooks case. It merely distinguished it, holding that the Tort Claims Act does not cover “injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” 340 U. S. 135, 146. The peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty, led the Court to read that Act as excluding claims of that character. Id., at 141-143. The present case is, in our view, governed by Brooks, not by Feres. The injury for which suit was brought was not incurred while respondent was on active duty or subject to military discipline. The injury occurred after his discharge, while he enjoyed a civilian status. The damages resulted from a defective tourniquet applied in a veterans’ hospital. Respondent was there, of course, because he had been in the service and because he had received an injury in the service. And the causal relation of the injury to the service was sufficient to bring the claim under the Veterans Act. But, unlike the claims in the Feres case, this one is not foreign to the broad pattern of liability which the United States undertook by the Tort Claims Act. That Act provides that, “The United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances . . . .” 28 U. S. C. § 2674. The Feres case emphasized how sharp would be the break in tradition if the claims there asserted were allowed against the United States, the Court noting that the effect of the Tort Claims Act is “to waive immunity from recognized causes of action,” “not to visit the Government with novel and unprecedented liabilities.” 340 U. S. 135, 142. But that cannot be said here. Certainly this claim is one which might be cognizable under local law, if the defendant were a private party. Responsibility of hospitals to patients for negligence may not be as notorious as the liability of the owners of automobiles. But the doctrine is not novel or without support. See, for example, Sheehan v. North Country Community Hosp., 273 N. Y. 163, 7 N. E. 2d 28, and the cases collected in 25 A. L. R. 2d 29. Congress could, of course, make the compensation system the exclusive remedy. The Court held in Johansen v. United States, 343 U. S. 427, that Congress had done so in the case of the Federal Employees Compensation Act, with the result that a civilian employee could not sue the United States under the Public Vessels Act. We noted in the Brooks case, 337 U. S. 49, 53, that the usual workmen’s compensation statute was in this respect different from those governing veterans, that Congress had given no indication that it made the right to compensation the veteran’s exclusive remedy, that the receipt of disability payments under the Veterans Act was not an election of remedies and did not preclude recovery under the Tort Claims Act but only reduced the amount of any judgment under the latter Act. We adhere to that result. We adhere also to the line drawn in the Feres case between injuries that did and injuries that did not arise out of or in the course of military duty. Since the negligent act giving rise to the injury in the present case was not incident to the military service, the Brooks case governs and the judgment must be Affirmed We indicated that recovery under the Tort Claims Act should be reduced by the amounts paid by the United States as disability payments under the Veterans Act. 337 U. S. 52, 53-54. See the case on remand, United States v. Brooks, 176 F. 2d 482, 484. Question: What is the issue of the decision? 01. voting 02. Voting Rights Act of 1965, plus amendments 03. ballot access (of candidates and political parties) 04. desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action) 05. desegregation, schools 06. employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions. 07. affirmative action 08. slavery or indenture 09. sit-in demonstrations (protests against racial discrimination in places of public accommodation) 10. reapportionment: other than plans governed by the Voting Rights Act 11. debtors' rights 12. deportation (cf. immigration and naturalization) 13. employability of aliens (cf. immigration and naturalization) 14. sex discrimination (excluding sex discrimination in employment) 15. sex discrimination in employment (cf. sex discrimination) 16. Indians (other than pertains to state jurisdiction over) 17. Indians, state jurisdiction over 18. juveniles (cf. rights of illegitimates) 19. poverty law, constitutional 20. poverty law, statutory: welfare benefits, typically under some Social Security Act provision. 21. illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits 22. handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes 23. residency requirements: durational, plus discrimination against nonresidents 24. military: draftee, or person subject to induction 25. military: active duty 26. military: veteran 27. immigration and naturalization: permanent residence 28. immigration and naturalization: citizenship 29. immigration and naturalization: loss of citizenship, denaturalization 30. immigration and naturalization: access to public education 31. immigration and naturalization: welfare benefits 32. immigration and naturalization: miscellaneous 33. indigents: appointment of counsel (cf. right to counsel) 34. indigents: inadequate representation by counsel (cf. right to counsel) 35. indigents: payment of fine 36. indigents: costs or filing fees 37. indigents: U.S. Supreme Court docketing fee 38. indigents: transcript 39. indigents: assistance of psychiatrist 40. indigents: miscellaneous 41. liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty) 42. miscellaneous civil rights (cf. comity: civil rights) Answer:
songer_respond1_7_5	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). Anastasia S. CHRISTOPHER, Plaintiff-Appellee, Cross-Appellant, v. STOUDER MEMORIAL HOSPITAL, Defendant-Appellant, Cross-Appellee. Nos. 90-3400, 90-3429. United States Court of Appeals, Sixth Circuit. Argued March 28, 1991. Decided June 24, 1991. Rehearing Denied July 24, 1991. Dennis A. Lieberman (argued), Richard Hemfling, Flanagan, Lieberman, Hoffman & Swaim, Dayton, Ohio, for plaintiff-appel-lee, cross-appellant. William M. Dixon, Jr. (argued), Shipman, Utrecht & Dixon, Troy, Ohio, for defendant-appellant, cross-appellee. Before JONES and SUHRHEINRICH, Circuit Judges, and FEIKENS, Senior District Judge. The Honorable John Feikens, Senior District Judge for the Eastern District of Michigan, sitting by designation. NATHANIEL R. JONES, Circuit Judge. Defendant-appellant Stouder Memorial Hospital (“Stouder”), appeals the trial court’s judgment for the plaintiff-appellee Anastasia Christopher in this Title VII civil rights action. Christopher cross-appeals the court’s refusal to award her back pay on her retaliation claim. I. Christopher, a female nurse, was awarded a B.S. degree in nursing from Ohio State University in 1974 and a M.S. degree in nursing from the same institution in 1977, with particular emphasis in maternal and child health. She is married to Charles Christopher, M.D., a practicing obstetrician and gynecologist. From 1978 until 1983, Ms. Christopher was a faculty member at the Wright State University School of Nursing. In June 1983, she filed a sex discrimination claim against Wright State. Her claim eventually resulted in a Title VII lawsuit which was resolved prior to trial. No details about Christopher’s charge or settlement are part of the record in this case. During the lawsuit, Christopher’s husband, Charles, was also experiencing difficulties with his hospital, where he was head of obstetrics, and the couple decided to move to Troy, Ohio. Charles formed a partnership with Dr. Gerald Dysert, who was performing deliveries and gynecological surgery at Stouder when Dr. Christopher joined him in practice. During the spring of 1985, Ms. Christopher was hospitalized for surgery at Stouder. During her recovery she discussed the possibility of nursing employment at Stouder with Sally Swisshelm, Director of Nursing. Christopher told Swisshelm that she had a real interest in getting back into nursing and that she had had discussions with her husband and his partner about working as a “scrub nurse” for them during surgery. Stouder hired Christopher on June 10, 1985. Her formal title was “pool nurse” although it appears she had been hired to work in some sort of capacity as a trainer for other nurses in the Ob/Gyn department. After a brief period, Christopher’s uncertain status resulted in tension with the other nurses. This was in part because she was attempting to train nurses many of whom had been at Stouder for many years. One of Christopher’s duties during her work at Stouder was to prepare the obstetrical nurses to assist as scrub nurses during cesarean section procedures. Apparently, everyone agreed that Christopher herself needed training in this area, since she had very little prior experience as a scrub nurse. As a result, Christopher began to train in the Stouder operating room in July and August of 1985. The apparent plan was that Christopher would pass on her training to other nurses in obstetrics, rather than sending the nurses to another hospital for training. In July, 1985, Christopher applied to Stouder to obtain limited privileges to act as a private duty scrub nurse at the hospital. The procedure for deciding on privileges was that the application would remain with the medical staff secretary until complete. The application would then be passed on to the Executive Committee of the Medical Staff, then to the full medical staff and finally to the Board of Trustees. During the period in which the application was being considered, the hospital’s president was empowered to grant temporary privileges for a period of ninety days. The Executive Committee approved this request on August 6, 1985, and John Grubb, President of Stouder, granted Christopher temporary privileges on October 23, 1985. After her temporary privileges were granted, Christopher began to act as a private scrub nurse for her husband and his partner. A scrub nurse’s duties are primarily to prepare instruments for surgery, to hand them to the surgeon during the operation and to clean up after the operation. As of 1985, there were only two nurses acting in the capacity of private scrub nurse. According to Ms. Nagle, operating room supervisor, there had been only one prior experience with a private duty scrub nurse in her thirty years experience with surgery at Stouder. Normally, the procedure at Stouder was for regular nurses employed by the hospital to act as scrub nurses. Private duty scrub nurses are normally paid by the doctors with whom they work. They are not employees of the hospital itself, and the hospital does not cover their insurance or benefits. However, during her training period, and during the tenure of her temporary privileges status, Christopher was paid and insured by the hospital. In January, 1986, Ms. Swisshelm concluded that the obstetrical nurses were not obtaining their new skills fast enough and hired a special obstetrics supervisor to perform the training tasks Christopher was hired to perform. Grubb approved this new plan, and on January 10, 1986, Christopher was informed that her services as a clinical nurse specialist would no longer be needed. It is not clear from the record whether Christopher was actually fired at this point, or whether she remained on the schedule as a “pool nurse.” Christopher objected to Stouder’s decision and hired counsel to represent her against the hospital. In the meantime, her temporary privileges had expired. Apparently, one of her references had not responded to the hospital’s request for a reference letter because he had moved his practice. He was later contacted and Christopher’s file was completed on January 26, 1986. Before Christopher’s application for limited privileges was reviewed by the Executive Committee, Ms. Swisshelm was asked to review Christopher’s competence. In a memo dated January 31, 1986, she questioned Christopher’s training ability and characterized her as “disruptive” and “untrustworthy.” She noted that Christopher had written on doctor’s progress notes in contravention of hospital policy even after being advised it was inappropriate. She also asserted that Christopher had caused “chaos” in both obstetrics and surgery. Dr. Mark Hess, a member of the Executive Committee, also prepared a memorandum on Christopher. At the request of the Chief of Medical Staff, Dr. Ellenbogen, he contacted L.R. Jordan, chief executive of Miami Valley Hospital, about Christopher’s work when she was stationed there by Wright State. According to Dr. Hess’s memo, Jordan said that Christopher’s tenure at Miami Valley had been “marked by severe turmoil,” that she had “assumed authority far beyond what was proper,” including writing prescriptions for her husband’s countersignature, and that she had an “endless series of conflicts with many people.” He also advised that Miami Valley insisted on her transfer and she thereupon sued for sex discrimination. On February 4, 1986, the Executive Committee voted unanimously to deny Christopher’s application for limited privileges. On March 20, 1986, Christopher “withdrew” her prior application for limited privileges and filed a second more limited application. It appears she filed the second application because she was informed that her first application had been too broad. It seems Christopher had asked for permission to do a number of procedures normally handled exclusively by doctors at Stouder. Christopher’s second application was supported by recommendation letters from her husband, Dr. Dysert and Dr. Kevin Hor-vath, a pediatrician practicing at Stouder. After consulting with Dr. Ellenbogen, Chief of Staff, Ms. Nagle prepared a set of standards for private scrub nurses for the hospital. These standards included a requirement that private scrub nurses have at least one year of experience as a scrub nurse. Evidently, these standards were prepared in February, 1986, but were not approved by the hospital until 1987. Nonetheless, the standards were used to prepare a questionnaire for the other surgery nurses to review Christopher’s qualifications. Virtually, all of the nurses surveyed found that Christopher was deficient with respect to the standards. These results were made available to the Executive Committee which on May 6, 1986, again voted to deny Christopher limited privileges. This action followed and the parties agreed to conduct the trial before a magistrate. A trial was held from July 11-13, 1988. Dr. Hess was the only member of the Executive Committee to testify at trial. During his testimony he denied that he had considered Christopher’s prior Title VII lawsuit for sex discrimination at Miami Valley in deciding how to vote on Christopher’s privileges application. However, the magistrate credited testimony by Christopher as to two conversations she had had with Grubb and with Dr. Hess. Christopher testified that she had talked to Grubb by telephone in January of 1986 and attempted to negotiate the issue of her privileges. He reportedly responded, “If you hadn’t had some legal action prior to this, this might not have occurred.” J.App. at 23. Christopher also recalled a conversation with Dr. Hess on March 9, 1986, in which he reportedly also told her that she was having difficulties because of her prior legal action at Miami Hospital. While the court dismissed all of Christopher’s other claims at the close of plaintiffs case, he found that she had established her claim of retaliation. In reaching this result the court found that Christopher’s prior sex discrimination action had been mentioned enough times in the process surrounding her applications for limited privileges to warrant a conclusion that Strouder would not have made the same decision absent the factor of the prior suit. The court also noted that much of the evidence used to deny Christopher’s second application “seems to have been manufactured to guarantee the result.” J.App. at 31. Specifically, the court found that the scrub nurse standards drafted by Ms. Na-gle required one year experience as a scrub nurse, which made Christopher ineligible. The court found these standards “plainly discriminatory against the private scrub nurse concept since Mrs. Nagle admitted on the stand that nurses were sometimes hired directly from nursing school into the operating room at Stouder.” Id. Finally, the court concluded that Ms. Nagle could have easily learned that Christopher would be excluded by the one-year requirement by looking at her file. Despite the court’s finding in favor of Christopher on her retaliation claim, it found that Christopher was not entitled to back pay. While there was some initial confusion about whether the court had the authority to award back pay damages against Stouder when the hospital was not Christopher’s employer, the court ultimately determined that back pay was not appropriate because Christopher had failed to prove damages. Recognizing that the hospital had a strong interest in ensuring that Christopher was qualified to be a private scrub nurse, and at the same time, acknowledging that the process used to evaluate Christopher had been flawed, the court ordered the parties to negotiate a neutral means for evaluating Christopher’s abilities as a scrub nurse. When the parties failed to reach a reasonable solution, the court ordered that Christopher work for six weeks for two neutral doctors, who would independently evaluate her performance. When this too became unworkable, due in part to Stouder’s refusal to cooperate, the court ordered that Christopher be granted limited privileges to work as a private scrub nurse at Stouder for any doctor who would employ her. The court was careful to make clear that it was not forcing Christopher into an employment relationship with the hospital. Rather, it was simply undoing the discriminatory application of heightened standards which had been applied to Christopher. II. Stouder first contends that the court lacked jurisdiction to hear this case because Christopher was neither an “employee” nor an “applicant for employment” at Stouder. The provision of the Civil Rights Act which enables plaintiffs to sue for retaliation provides, in pertinent part: (a) It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. 42 U.S.C. § 2000e-3 (emphasis added). While it is true that Christopher was not a direct employee of Stouder, we find that Stouder’s control over Christopher’s ability to practice as a private scrub nurse sufficiently impacted her employment opportunities to bring her claims within the intended scope of § 2000e-3. As the trial court noted, our caselaw requires that “[t]he term ‘employee’ in Title VII ‘must be read in light of the mischief to be corrected and the end to be attained.’ ” J.App. at 70 (Order denying motion for new trial, quoting Armbruster v. Quinn, 711 F.2d 1332, 1340 (6th Cir.1983)). Further, we have repeatedly said that “Title VII of the Civil Rights Act should not be construed narrowly.” Tipler v. E.I. du Pont de Nemours and Co., 443 F.2d 125, 131 (6th Cir.1971). In this spirit, several courts have held that Title VII does not require a formal employment relationship between the plaintiff and the defendant. Rather, a plaintiff is protected if the defendant is one “who significantly affects access of any individual to employment opportunities.” Doe v. St. Joseph’s Hosp., 788 F.2d 411, 422-25 (7th Cir.1986) (doctor stated a claim under Title VII when hospital denied staff privileges even though doctor was not an employee of the hospital); Gomez v. Alexian Bros. Hosp., 698 F.2d 1019, 1021 (9th Cir.1983) (finding a cause of action under Title VII when “ ‘a defendant subject to Title VII interferes with an individual’s employment opportunities with another employer.’ ”) (quoting Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 n. 3 (9th Cir.1980)). The trial court in this case relied on the D.C. Circuit’s decision in Sibley Mem. Hosp. v. Wilson, 488 F.2d 1338 (D.C.Cir.1973) to find that it had jurisdiction over Christopher’s suit. Sibley Mem. Hosp. concerned a sex discrimination claim under Title VII by a private duty nurse against a hospital. The basis of the plaintiff’s claim was that the hospital’s Nursing Office would not refer the nurse, who was a male, to female patients who requested a private duty nurse. This action by the hospital was in contravention of its own policy of referring patients to the next available private nurse in its register. The defendant hospital moved to dismiss on the ground that the plaintiff was not in an employer-employee relationship with the hospital and therefore the court did not have jurisdiction to hear the claim. However, the district court found that the plaintiff stated a claim under Title VII and the D.C. Circuit affirmed. In its Sibley Mem. Hosp. opinion, the court began by pointing out that “The Supreme Court has said that the Congressional objective in Title VII is ‘plain from the language of the statute,’ and that it is ‘to achieve equality of employment opportunities[.] ’ ” Id. at 1340-41 (emphasis original) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 429, 91 S.Ct. 849, 852, 28 L.Ed.2d 158 (1969)). The court then reasoned that in certain circumstances control over access to employment may reside in organizations outside the regular employer-employee relationship. Id. at 1341. The court found it significant that Title VII explicitly applies to organizations such as unions or employment agencies “which have not a remote but a highly visible nexus with the creation and continuance of direct employment relationships between third parties.” Id. at 1342; see 42 U.S.C. § 2000e-2(b) and (c). From these premises, the court reasoned: To permit a covered employer to exploit circumstances peculiarly affording it the capability of discriminatorily interfering with an individual’s employment opportunities with another employer, while it could not do so with respect to employment in its own service, would be to condone continued use of the very criteria for employment that Congress has prohibited. Id. at 1341. The court went on to determine that the hospital, while not the plaintiff’s employer, was in the same position to interfere with the plaintiff’s employment opportunities as unions or employment agencies, and therefore, “neither the spirit nor, more essentially, the language of the Act” prohibited the plaintiff from proceeding against the defendant hospital. Id. at 1342. The facts of the instant case are directly analogous to the situation in Sibley Mem. Hosp. Like the nurse in Sibley, Christopher cannot pursue her employment opportunity of working as a private scrub nurse if Stouder does not grant her limited privileges. If Stouder denies those privileges to Christopher on impermissible grounds, it is, in effect, denying her employment on impermissible grounds, despite the fact that it does not pay her salary. Stouder argues that Sibley, Gomez, and Doe are distinguishable because all of those cases were actions brought under § 2000e-2, which allows a broader range of persons to sue than § 2000e-3 upon which Christopher relies. § 2000e-2 provides in relevant part: (a) It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire ... any individual, or otherwise discriminate against any individual with respect to his compensation, terms, condition, or privileges of employment[.] 42 U.S.C. § 2000e-2 (emphasis added). By comparison, § 2000e-3 refers to the protected class as “employees or applicants for employment.” See 42 U.S.C. § 2000e-3 (quoted supra.). Stouder argues that the difference in the language of the two provisions indicates a Congressional intent to provide less coverage for retaliation than for other forms of discrimination under the Act. While Stouder’s position has some logical appeal at first glance, we find it is ultimately not persuasive. First, while the courts in Doe, Gomez, and Sibley Mem. Hosp. do rely, to some extent, on the “any individual” language of § 2000e-2, this language is not the sole basis of these holdings. For example, in Sibley Mem. Hosp., the court makes much of the fact that the general remedial section of Title VII does not refer only to any “employee” but provides recourse to “persons aggrieved.” See 42 U.S.C. § 2000e-5(b); 488 F.2d at 1341-42; see also Gomez, 698 F.2d at 1021. The court states: “The fact that the Act purports to provide remedies for a class broader than direct employees is a strong indication that the proscriptions contemplated by [§ 2000e-2] reach beyond the immediate employment relationship.” Sibley Mem. Hosp., 488 F.2d at 1341. It is important to note that the remedial section to which the court refers, § 2000e-5, applies equally to plaintiffs suing under § 2000e-2 and § 2000e-3. Thus, the courts in reaching their conclusions in Sibley and Gomez, were not relying on the “any individual” language of § 2000e-2, but rather, were discerning the meaning of “employee” in the Title VII context by looking to the intent and scope of Title VII as a whole. In addition, as discussed above, Sibley Mem. Hosp. extensively discusses the fact that § 2000e-2 applies to unions and employment agencies whose actions might interfere with a person’s access to employment opportunity with other employers though these organizations might not be serving as an employer. Significantly, § 2000e-3 also explicitly applies to unions and employment agencies. Thus, if the analogy between the hospital’s interference with Christopher’s employment as a private scrub nurse in the instant case, and the interference by a union or employment agency in the employment opportunities of its members or clients holds, then a plaintiff alleging interference by a defendant in the plaintiff’s employment with third parties ipso facto states a claim under either § 2000e-2 or § 2000e-3. See Doe, 788 F.2d at 423 (“Congress presumably did not intend to allow the hospital to exploit its power to grant or deny staff privileges in order to discriminatorily interfere with [plaintiff’s] employment opportunities.”); see also Pao v. Holy Redeemer Hosp., 547 F.Supp. 484, 494-95 (E.D.Penn.1982) (following Sibley Mem. Hosp. to find that hospital’s denial of staff privileges to a doctor was sufficient to state a claim under Title VII). In the instant case, there was ample evidence presented at trial to demonstrate that Stouder was an organization which was capable of and in fact did affect Christopher’s ability to engage in her employment as a scrub nurse. As the trial court put it, By discriminating against Plaintiff and refusing to grant her privileges to work in its facility, Defendant realistically prevents Plaintiff from performing the job for which she was hired by the physicians. This clearly interferes with Plaintiff’s employment relationship with the hiring physicians and with her opportunity to perform her work. J.App. at 73 (Order denying motion for new trial). As the goal of Title VII is to preserve employment opportunity, we can see no reason to conclude that Congress intended Title VII to prohibit discrimination by a non-employer defendant on the basis of race or sex, and to allow the same non-employer defendant to discriminate against a person who engages in protected activity under Title VII. In both instances the acts of the non-employer defendant have the effect of denying the plaintiff employment based upon impermissible grounds under the Act. Thus, we find that the trial court had jurisdiction to hear Christopher’s § 2000e-3 claim based upon the principles and reasoning articulated in Sibley Mem. Hosp. and its progeny. Stouder also asserts that the trial court did not have jurisdiction to hear this case because Title YII does not apply to “independent contractors.” In this argument, Stouder asserts that Christopher's relation to the hospital is analogous to that of an independent contractor. See Falls v. Sporting News Pub. Co., 834 F.2d 611, 613 (6th Cir.1987) (while the term “employee” is to be construed broadly in Title VII, it is not meant to reach independent contractors). In the instant case, the trial court specifically found that “Plaintiff would not be a hospital employee nor would she be an independent contractor with respect to the hospital.” J.App. at 73. The court’s finding is supported by the record. As a private scrub nurse, Christopher would not be paid by the hospital nor would she receive benefits or insurance from the hospital. Her direct employment relationship would be with the doctor who hired her to assist in surgery for each specific operation. While Stouder would provide Christopher with equipment and facilities to perform her work, Stouder would not have any control over her work, except to the extent that it could impose its uniform safety standards as it does on all persons who have staff privileges in the hospital. Finally, at no time would Christopher be required to perform services for the hospital itself. On these facts, no contractual relationship would exist between Stouder and Christopher either as an employee or as an independent contractor. For these reasons, we find that Christopher does not fall within the independent contractor exception to Title VII. In sum, we find that the trial court properly had jurisdiction over Christopher’s claims. III. Stouder next argues that the trial court did not apply the correct legal standards in concluding that Christopher had made out a case of retaliation under Title VII. Specifically, Stouder contends that the trial court failed to find that Christopher was “otherwise qualified” for the position she was allegedly denied based upon retaliation, and that Christopher failed to show that the Stouder hired a less qualified scrub nurse after her application was denied. As the trial court correctly noted, the elements of a prima facie case of retaliation are as follows: (1) that plaintiff engaged in an activity protected by Title VII; (2) that the exercise of his [or her] civil rights was known by the defendant; (3) that, thereafter, the defendant took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the' adverse employment action. Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir.1987). Based upon this framework, the trial court found that Christopher had met her prima facie burden. Stouder argues that the trial court erred in applying this framework alone, without making the other findings required for a prima facie case of discrimination under Title VII under McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1972). Wrenn made clear that “[p]roof of a retaliation claim under Title VII is governed by McDonnell Douglas[.]’ Wrenn, 808 F.2d at 500. Key to a finding of discrimination under the McDonnell Douglas framework is proof that the plaintiff “applied and was qualified for a job for which the employer was seeking applicants,” and “that, despite his qualifications, he was rejected”. 411 U.S. at 802, 93 S.Ct. at 1824. Stouder argues that Christopher’s retaliation claim is fatally flawed because she failed to meet her burden of demonstrating that she was qualified to receive limited privileges as a private scrub nurse. In addition, Stouder asserts that the trial court, in finding that Christopher had made out her claim of retaliation, never made an explicit finding that Christopher was qualified for the position. After weighing the testimony and evidence before it, the trial court concluded that “Mrs. Christopher has persuaded this Court that she would have received limited privileges but for retaliation against her on the basis of her prior claim against Wright State.” J.App. at 30-31. Christopher argues that the trial court’s finding that she would have received limited privileges but for Stouder’s retaliation is an implicit finding that she was qualified to perform the job of a scrub nurse. However, as Stouder points out, the court seemed to have serious doubts about Christopher’s qualifications. For example, at the end of its memorandum opinion the court stated Ms. Christopher seeks reinstatement of her limited privileges and to that she is entitled. Stouder is, however, entitled to ensure that she is technically competent as a scrub nurse, since there were some valid concerns expressed about that at the time she was at the hospital and it has now been two and one-half years since she has acted in that capacity. Accordingly, counsel for the parties are directed to consult with a view to devising a neutral objective measurement of Ms. Christopher’s present competence to act as a scrub nurse. J.App. at 33-34 (emphasis added). In addition, the court prescribed a six-week trial procedure to determine Christopher’s qualifications for the scrub nurse position. This procedure required medical evaluators to observe Christopher and file reports. As to the reports, the court stated that, “[ejach such report shall include the doctor’s opinion as to whether Mrs. Christopher is qualified for employment as a gynecological and obstetrical private duty scrub nurse.” Id. at 46. Christopher argues that the court was primarily concerned with her present qualifications as it had been several years since she acted as a nurse due to this litigation. However, the court specifically noted that there had been some valid concerns about her qualifications at the time she was at the hospital. Id. at 33-34. Further there is little or no evidence in the record that demonstrates Christopher’s qualifications to act as a private scrub nurse, and this evidence came from her husband and her husband’s partner. As Stouder correctly points out, “Congress did not intend by Title VII ... to guarantee a job to every person regardless of qualifications.” Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). Further, “qualification of the complainant is the pivotal component of the McDonnell Douglas prima facie case.” Williams v. Boorstin, 663 F.2d 109, 118 (D.C.Cir.1980) (emphasis omitted), cert. denied, 451 U.S. 985, 101 S.Ct. 2319, 68 L.Ed.2d 842 (1981). Thus, we hold that it was error for the trial court not to make an explicit finding that Christopher was qualified to act as a scrub nurse before concluding that she was the victim of discrimination. We therefore remand for the district court to determine whether Christopher was qualified to act as a private duty scrub nurse at the time the alleged discrimination took place. In addition to its assertions regarding the trial court’s failure to find that Christopher was qualified, Stouder asserts that the district court erred in failing to require Christopher to show that other less qualified applicants were granted privileges at Stouder after she was denied such privileges. As Stouder correctly points out, the Supreme Court in McDonnell Douglas suggested that plaintiffs seeking to create an inference of discriminatory failure to hire must show, in addition to membership in a protected class and qualifications, that the defendant continued to accept applicants for the position from equally qualified persons. 411 U.S. at 802, 93 S.Ct. at 1824. However, Stouder’s premise that failure to make such a finding is reversible error is based upon a misapprehension of the law. It is well settled that if a plaintiff presents direct evidence of discrimination, she need not proceed under the McDonnell Douglas formula. Blalock v. Metal Trades, Inc., 775 F.2d 703, 707 (6th Cir.1985). As the court explained, Direct evidence and the McDonnell Douglas formula are simply different ev-identiary paths by which to resolve the ultimate issue of defendant’s discriminatory intent. “Where the evidence for a prima facie case consists ... of direct testimony that defendants acted with a discriminatory motivation, if the trier of fact believes the prima facie evidence the ultimate issue of discrimination is proved; no inference of discrimination is required.” Id. (citations omitted). In the instant case, the trial court found that Stouder raised its prior qualification standards and denied Christopher limited privileges in retaliation for her prior sex discrimination suit. The court based its finding upon Christopher’s own testimony of discussions she had had with Dr. Hess and Grubb, and the fact that reference to Christopher’s prior suit appeared in Dr. Hess’s memo to the Executive Committee. Thus, there was direct evidence upon which the court could find that Stouder acted in a discriminatory manner with regard to Christopher. In other words, there was no need for Christopher to produce evidence of retaliatory motive under the McDonnell Douglas framework because the court did not have to infer from Stouder’s actions with other applicants that the hospital discriminated in this case. Stouder also argues that since Christopher’s privileges were denied, the hospital has not granted privileges to any private scrub nurse who did not have at least one year of experience. Thus, Stouder argues, it has not discriminated against Christopher. Rather, the hospital has simply applied its neutral qualification standards across the board to all applicants. However, even if we accept Stouder’s claims that it has consistently applied the one year experience standard to applicants after Christopher, this still does not refute the evidence that the hospital raised its prior standards in Christopher’s case in order to deny her privileges for impermissible reasons of retaliation. Therefore we find that the trial court’s determination that Stouder acted with a retaliatory motive is not clearly erroneous. IV. Stouder’s last contention is that the trial court mistakenly found that Stouder’s new standards for the hiring of private scrub nurses, written by Ms. Nagle, were retaliatory because Ms. Nagle testified that she did not know that Christopher had filed a prior discrimination action. As Christopher points out, this alleged error is based upon a misapprehension of what the trial court found. In fact, the court did not determine that the writing of the standards was retaliatory, although it hinted that they may have been written to include a one year experience requirement which would exclude Christopher. Rather, the discriminatory act was the application of these new higher standards to Christopher by the Executive Committee and other decisionmak-ers. It was this application of the standards which “differed substantially from the bases upon which Stouder had in the past hired scrub nurses into its own employment”, which evidenced Stouder’s discriminatory purpose. J.App. at 75. Therefore we find that the court’s finding that the standards used to deny Christopher’s application were employed for a retaliatory purpose was not clearly erroneous. V. On cross-appeal, Christopher challenges the trial court’s failure to grant her back pay damages on her retaliation claim. As Christopher points out, this court has held that: The finding of discrimination by the district court, in addition to the nature of the relief (compensatory as opposed to punitive), and the clear intent of Congress that the grant of authority under Title VII should be broadly read and applied mandate an award of back pay unless exceptional circumstances are present. Head v. Timken Roller Bearing Co., 486 F.2d 870, 876 (6th Cir.1973). Moreover, this court has held that mere difficulty in calculating the amount of the pay award does not constitute “exceptional circumstances” such as would justify the denial of back pay. Rasimas v. Mich. Dep’t of Mental Health, 714 F.2d 61 Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
sc_lcdispositiondirection	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations McCARTY v. McCARTY No. 80-5. Argued March 2, 1981 Decided June 26, 1981 BlackmuN, J., delivered the opinion of the Court, in which Burger, C. J., and White, Marshall, Powell, and SteveNS, JJ., joined. RehNquist, J., filed a dissenting opinion, in which BreNNan and Stewart, JJ., joined, post, p. 236. Mattaniah Eytan argued the cause and filed briefs for appellant. Walter T. Winter argued the cause for appellee. With him on the brief was Barbara R. Dornan Herbert N. Harmon filed a brief for the Non-Commissioned Officers Association of the United States of America et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed by William H. Allen for John L. Burton et al.; and by Gertrude D. Chern, Judith I. Avner, Gill Deford, and Neal Dudovitz for the National Organization for Women Legal Defense and Education Fund et al. Justice Blackmun delivered the opinion of the Court. A regular or reserve commissioned officer of the United States Army who retires after 20 years of service is entitled to retired pay. 10 U. S. C. §§ 3911 and 3929. The question presented by this case is whether, upon the dissolution of a marriage, federal law precludes a state court from dividing military nondisability retired pay pursuant to state community property laws. I Although disability pensions have been provided to military veterans from the Revolutionary War period to the present, it was not until the War Between the States that Congress enacted the first comprehensive nondisability military retirement legislation. See Preliminary Review of Military Retirement Systems: Hearings before the Military Compensation Subcommittee of the House Committee on Armed Services, 95th Cong., 1st and 2d Sess., 5 (1977-1978) (Military Retirement Hearings) (statement of Col. Leon S. Hirsh, Jr., USAF, Director of Compensation, Office of the Assistant Secretary of Defense for Manpower, Reserve Affairs, and Logistics); Subcommittee on Retirement Income and Employment, House Select Committee on Aging, Women and Retirement Income Programs: Current Issues of Equity and Adequacy, 96th Cong., 1st Sess., 15 (Comm. Print 1979) (Women and Retirement). Sections 15 and 21 of the Act of Aug. 3, 1861, 12 Stat. 289, 290, provided that any Army, Navy, or Marine Corps officer with 40 years of service could apply to the President to be retired with pay; in addition, §§16 and 22'of that Act authorized the involuntary retirement with pay of any officer “incapable of performing the duties of his office.” 12 Stat. 289, 290. The impetus for this legislation was the need to encourage or force the retirement of officers who were not fit for wartime duty. Women and Retirement, at 15. Thus, from its inception, the military nondisability retirement system has been “as much a personnel management tool as an income maintenance method,” id., at 16; the system was and is designed not only to provide for retired officers, but also to ensure a “young and vigorous” military force, to create an orderly pattern of promotion, and to serve as a recruiting and re-enlistment inducement. Military Retirement Hearings, at 4-6, 13 (statement of Col. Hirsh). Under current law, there are three basic forms of military retirement: nondisability retirement; disability retirement; and reserve retirement. See id., at 4. For our present purposes, only the first of these three forms is relevant. Since each of the military services has substantially the same non-disability retirement system, see id., at 5, the Army’s system may be taken as typical. An Army officer who has 20 years of service, at least 10 of which have been active service as a commissioned officer, may request that the Secretary of the Army retire him. 10 U. S. C. § 3911. An officer who requests such retirement is entitled to “retired pay.” This is calculated on the basis of the number of years served and rank achieved. §§ 3929 and 3991. An officer who serves for less than 20 years is not entitled to retired pay. The nondisability retirement system is noncontributory in that neither the service member nor the Federal Government makes periodic contributions to any fund during the period of active service; instead, retired pay is funded by annual appropriations. Military Retirement Hearings, at 5. In contrast, since 1957, military personnel have been required to contribute to the Social Security System. Pub. L. 84-881, 70 Stat. 870. See 42 U. S. C. §§ 410 (i) and (m). Upon satisfying the necessary age requirements, the Army retiree, the spouse, an ex-spouse who was married to the retiree for at least 10 years, and any dependent children are entitled to Social Security benefits. See 42 U. S. C. §§ 402 (a) to (f) (1976 ed. and Supp. IV). Military retired pay terminates with the retired service member’s death, and does not pass to the member’s heirs. The member, however, may designate a beneficiary to receive any arrearages that remain unpaid at death. 10 U. S. C. § 2771. In addition, there are statutory schemes that allow a service member to set aside a portion of the member’s retired pay for his or her survivors. The first such scheme, now known as the Retired Serviceman’s Family Protection Plan (RSFPP), was established in 1953. Act of Aug. 8, 1953, 67 Stat. 501, current version at 10 U. S. C. §§ 1431-1446 (1976 ed. and Supp. IV). Under the RSFPP, the military member could elect to reduce his or her retired pay in order to provide, at death, an annuity for a surviving spouse or child. Participation in the RSFPP was voluntary, and the participating member, prior to receiving retired pay, could revoke the election in order “to reflect a change in the marital or dependency status of the member or his family that is caused by death, divorce, annulment, remarriage, or acquisition of a child . . . .” § 1431 (c). Further, deductions from retired pay automatically cease upon the death or divorce of the service member’s spouse. § 1434 (c). Because the RSFPP was self-financing, it required the deduction of a substantial portion of the service member’s retired pay; consequently, only about 15% of eligible military retirees participated in the plan. See H. R. Rep. No. 92-481, pp. 4-5 (1971); S. Rep. No. 92-1089, p. 11 (1972). In order to remedy this situation, Congress enacted the Survivor Benefit Plan (SBP) in 1972. Pub. L. 92-425, 86 Stat. 706, codified, as amended, at 10 U. S. C. §§ 1447-1455 (1976 ed. and Supp. IV). Participation in this plan is automatic unless the service member chooses to opt out. § 1448 (a). The SBP is not entirely self-financing; instead, the Government contributes to the plan, thereby rendering participation in the SBP less expensive for the service member than participation in the RSFPP. Participants in the RSFPP were given the option of continuing under that plan or of enrolling in the SBP. Pub. L. 92-425, § 3, 86 Stat. 711, as amended by Pub. L. 93-155, § 804, 87 Stat. 615. II Appellant Richard John McCarty and appellee Patricia Ann McCarty were married in Portland, Ore., on March 23, 1957, while appellant was in his second year in medical school at the University of Oregon. During his fourth year in medical school, appellant commenced active duty in the United States Army. Upon graduation, he was assigned to successive tours of duty in Pennsylvania, Hawaii, Washington, D. C., California, and Texas. After completing his duty in Texas, appellant was assigned to Letterman Hospital on the Presidio Military Reservation in San Francisco, where he became Chief of Cardiology. At the time this suit was instituted in 1976, appellant held the rank of Colonel and had served approximately 18 of the 20 years required under 10 U. S. C. § 3911 for retirement with pay. Appellant and appellee separated on October 31, 1976. On December 1 of that year, appellant filed a petition in the Superior Court of California in and for the City and County of San Francisco requesting dissolution of the marriage. Under California law, a court granting dissolution of a marriage must divide “the community property and the quasi-community property of the parties.” Cal. Civ. Code Ann. § 4800 (a) (West Supp. 1981). Like seven other States, California treats all property earned by either spouse during the marriage as community property; each spouse is deemed to make an equal contribution to the marital enterprise, and therefore each is entitled to share equally in its assets. See Hisquierdo v. Hisquierdo, 439 U. S. 572, 577-578 (1979). “Quasi-community property” is defined as “all real or personal property, wherever situated heretofore or hereafter acquired . . . [b]y either spouse while domiciled elsewhere which would have been community property if the spouse who acquired the property had been domiciled in [California] at the time of its acquisition.” Cal. Civ. Code Ann. §4803 (West Supp. 1981). Upon dissolution of a marriage, each spouse has an equal and absolute right to a half interest in all community and quasi-community property; in contrast, each spouse retains his or her separate property, which includes assets the spouse owned before marriage or acquired separately during marriage through gift. See Hisquierdo, 439 U. S., at 578. In his dissolution petition, appellant requested that all listed assets, including “[a] 11 military retirement benefits,” be confirmed to him as his separate property. App. 2. In her response, appellee also requested dissolution of the marriage, but contended that appellant had no separate property and that therefore his military retirement benefits were “subject to disposition by the court in this proceeding.” Id., at 8-9. On November 23, 1977, the Superior Court entered findings of fact and conclusions of law holding that appellant was entitled to an interlocutory judgment dissolving the marriage. Id., at 39, 44. Appellant was awarded custody of the couple’s three minor children; appellee was awarded spousal support. The court found that the community property of the parties consisted of two automobiles, cash, the cash value of life insurance policies, and an uncollected debt. Id., at 42. It allocated this property between the parties. Id., at 45. In addition, the court held that appellant’s “military pension and retirement rights” were subject to division as quasi-community property. Ibid. Accordingly, the court ordered appellant to pay to appellee, so long as she lives, “that portion of his total monthly pension or retirement payment which equals one-half (½) of the ratio of the total time between marriage and separation during which [appellant] was in the United States Army to the total number of years he has served with the . . . Army at the time of retirement.” Id., at 43-44. The court retained jurisdiction “to make such determination at that time and to supervise distribution . . . .” Ibid. On September 30, 1978, appellant retired from the Army after 20 years of active duty and began receiving retired pay; under the decree of dissolution, appellee was entitled to approximately 45% of that retired pay. Appellant sought review of the portion of the Superior Court’s decree that awarded appellee an interest in the retired pay. The California Court of Appeal, First Appellate District, however, affirmed the award. App. to Juris. Statement 32. In so ruling, the court declined to accept appellant’s contention that because the federal scheme of military retirement benefits pre-empts state community property laws, the Supremacy Clause, U. S. Const., Art. VI, cl. 2, precluded the trial court from awarding appellee a portion of his retired pay. The court noted that this precise contention had been rejected in In re Fithian, 10 Cal. 3d 592, 517 P. 2d 449, cert, denied, 419 U. S. 825 (1974). Furthermore, the court concluded that the result in Fithian had not been called into question by this Court’s subsequent decision in Hisquierdo v. Hisquierdo, supra, where it was held that benefits payable under the federal Railroad Retirement Act of 1974 could not be divided under state community property law. See also Gorman v. Gorman, 90 Cal. App. 3d 454, 153 Cal. Rptr. 479 (1979). The California Supreme Court denied appellant’s petition for hearing. App. to Juris. Statement 83. We postponed jurisdiction. 449 U. S. 917 (1980). We have now concluded that this case properly falls within our appellate jurisdiction, and we therefore proceed to the merits. Ill This Court repeatedly has recognized that '"[t]he whole subject of the domestic relations of husband and wife . . . belongs to the laws of the States and not to the laws of the United States.’ ” Hisquierdo, 439 U. S., at 581, quoting In re Burrus, 136 U. S. 586, 593-594 (1890). Thus, “[s]tate family and family-property law must do 'major damage’ to 'clear and substantial’ federal interests before the Supremacy Clause will demand that state law be overridden.” Hisquierdo, 439 U. S., at 581, with references to United States v. Yazell, 382 U. S. 341, 352 (1966). See also Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504, 522 (1981). In Hisquierdo, we concluded that California’s application of community property principles to Railroad Retirement Act benefits worked such an injury to federal interests. The “critical terms” of the federal statute relied upon in reaching that conclusion included provisions establishing “a specified beneficiary protected by a flat prohibition against attachment and anticipation,” see 45 U. S. C. § 231m, and a limited community property concept that terminated upon divorce, see 45 U. S. C. § 231d. 439 U. S., at 582-585. Appellee argues that no such provisions are to be found in the statute presently under consideration, and that therefore Hisquierdo is inapposite. But Hisquierdo did not hold that only the particular statutory terms there considered would justify a finding of pre-emption; rather, it held that “[t]he pertinent questions are whether the right as asserted conflicts with the express terms of federal law and whether its consequences sufficiently injure the objectives of the federal program to require nonrecognition.” Id., at 583. It is to that twofold inquiry that we now turn. A Appellant argues that California’s application of community property concepts to military retired pay conflicts with federal law in two distinct ways. He contends, first, that the California court’s conclusion that retired pay is “awarded in return for services previously rendered,” see Fithian, 10 Cal. 3d, at 604, 517 P. 2d, at 457, ignores clear federal law to the contrary. The community property division of military retired pay rests on the premise that that pay, like a typical pension, represents deferred compensation for services performed during the marriage. Id., at 596, 517 P. 2d, at 451. But, appellant asserts, military retired pay in fact is current compensation for reduced, but currently rendered, services; accordingly, even under California law, that pay may not be treated as community property to the extent that it is earned after the dissolution of the marital community, since the earnings of a spouse while living “separate and apart” are separate property. Cal. Civ. Code Ann. §§ 5118, 5119 (West 1970 and Supp. 1981). Appellant correctly notes that military retired pay differs in some significant respects from a typical pension or retirement plan. The retired officer remains a member of the Army, see United States v. Tyler, 105 U. S. 244 (1882), and continues to be subject to the Uniform Code of Military-Justice, see 10 U. S. C. § 802 (4). See also Hooper v. United States, 164 Ct. Cl. 151, 326 F. 2d 982, cert, denied, 377 U. S. 977 (1964). In addition, he may forfeit all or part of his retired pay if he engages in certain activities. Finally, the retired officer remains subject to recall to active duty by the Secretary of the Army “at any time.” Pub. L. 96-513, § 106, 94 Stat. 2868. These factors have led several courts, including this one, to conclude that military retired pay is reduced compensation for reduced current services. In United States v. Tyler, 105 U. S., at 245, the Court stated that retired pay is “compensation . . . continued at a reduced rate, and the connection is continued, with a retirement from active service only.” Having said all this, we need not decide today whether federal law prohibits a State from characterizing retired pay as deferred compensation, since we agree with appellant’s alternative argument that the application of community property law conflicts with the federal military retirement scheme regardless of whether retired pay is defined as current or as deferred compensation. The statutory language is straightforward: “A member of the Army retired under this chapter is entitled to retired pay . . . 10 U. S. C. § 3929. In His-quierdo, 439 U. S., at 584, we emphasized that under the Railroad Retirement Act a spouse of a retired railroad worker was entitled to a separate annuity that terminated upon divorce, see 45 U. S. C. § 231d (c) (3); in contrast, the military retirement system confers no entitlement to retired pay upon the retired service member’s spouse. Thus, unlike the Railroad Retirement Act, the military retirement system does not embody even a limited “community property concept.” Indeed, Congress has explicitly stated: “Historically, military retired pay has been a personal entitlement payable to the retired member himself as long as he lives.” S. Rep. No. 1480, 90th Cong., 2d Sess., 6 (1968) (emphasis added). Appellee argues that Congress’ use of the term “personal entitlement” in this context signifies only that retired pay ceases upon the death of the service member. But several features of the statutory schemes governing military pay demonstrate that Congress did not use the term in so limited a fashion. First, the service member may designate a beneficiary to receive any unpaid arrearages in retired pay upon his death. 10 U. S. C. § 2771. The service member is free to designate someone other than his spouse or ex-spouse as the beneficiary; further, the statute expressly provides that “[a] payment uñder this section bars recovery by any other person of the amount paid.” § 2771 (d). In Wissner v. Wissner, 338 U. S. 655 (1950), this Court considered an analogous statutory scheme. Under the National Service Life Insurance Act, an insured service member had the right to designate the beneficiary of his policy. Id., at 658. Wissner held that California could not award a service member’s widow half the proceeds of a life insurance policy, even though the source of the premiums — the member’s Army pay — was characterized as community property under California law. The Court reserved the question whether California is “entitled to call army pay community property,” id., at 657, n. 2, since it found that Congress had “spoken with force and clarity in directing that the proceeds belong to the named beneficiary and no other.” Id., at 658. In the present context, Congress has stated with “force and clarity” that a beneficiary under § 2771 claims an interest in the retired pay itself, not simply in proceeds from a policy purchased with that pay. One commentator has noted: “If retired pay were community property, the retiree could not thus summarily deprive his wife of her interest in the arrear-age.” Goldberg, Is Armed Services Retired Pay Really Community Property?, 48 Cal. Bar J. 12, 17 (1973). Second, the language, structure, and legislative history of the RSFPP and the SBP also demonstrate that retired pay is a “personal entitlement.” While retired pay ceases upon the death of the service member, the RSFPP and the SBP allow the service member to reduce his or her retired pay in order to provide an annuity for the surviving spouse or children. Under both plans, however, the service member is free to elect to provide no annuity at all, or to provide an annuity payable only to the surviving children, and not to the spouse. See 10 U. S. C. § 1434 (1976 ed. and Supp. IV) (RSFPP); § 1450 (1976 ed. and Supp. IV) (SBP). Here again, it is clear that if retired pay were community property, the service member could not so deprive the spouse of his or her interest in the property. But we need not rely on this implicit conflict alone, for both the language of the statutes and their legislative history make it clear that the decision whether to leave an annuity is the service member’s decision alone because retired pay is his or her personal entitlement. It has been stated in Congress that “[t]he rights in retirement pay accrue to the retiree and, ultimately, the decision is his as to whether or not to leave part of that retirement pay as an annuity to his survivors.” H. R. Rep. No. 92-481, p. 9 (1971). California’s community property division of retired pay is simply inconsistent with this explicit expression of congressional intent that retired pay accrue to the retiree. Moreover, such a division would have the anomalous effect of placing an ex-spouse in a better position than that of a widower or a widow under the RSPPP and the SBP. Ap-pellee argues that “Congress’ concern for the welfare of soldiers’ widows sheds little light on Congress’ attitude toward the community treatment of retirement benefits,” quoting Fithian, 10 Cal. 3d, at 600, 517 P. 2d, at 454. But this argument fails to recognize that Congress deliberately has chosen to favor the widower or widow over the exspouse. An ex-spouse is not an eligible beneficiary of an annuity under either plan. 10 U. S. C. § 1434 (a) (RSFPP); §§ 1447 (3) and 1450 (a) (SBP). In addition, under the RSFPP, deductions from retired pay for a spouse’s annuity automatically cease upon divorce, § 1434 (c), so as “[t]o safeguard the participants’ future retired pay when . . . divorce occurs . . . .” S. Rep. No. 1480, 90th Cong., 2d Sess., 13 (1968). While the SBP does not expressly provide that annuity deductions cease upon divorce, the legislative history indicates that Congress’ policy remained unchanged. The SBP, which was referred to as the “widow’s equity bill,” 118 Cong. Rec. 29811 (1972) (statement of Sen. Beall), was enacted because of Congress’ concern over the number of widows left without support through low participation in the RSFPP, not out of concern for exspouses. See H. R. Rep. No. 92-481, pp. 4-5 (1971); S. Rep. No. 92-1089, p. 11 (1972). Third, and finally, it is clear that Congress intended that military retired pay “actually reach the beneficiary.” See Hisquierdo, 439 U. S., at 584. Retired pay cannot be attached to satisfy a property settlement incident to the dissolution of a marriage. In enacting the SBP, Congress rejected a provision in the House bill, H. R. 10670, that would have allowed attachment of up to 50% of military retired pay to comply with a court order in favor of a spouse, former spouse, or child. See H. R. Rep. No. 92-481, at 1; S. Rep. No. 92-1089, at 25. The House Report accompanying H. R. 10670 noted that under Buchanan v. Alexander, 4 How. 20 (1845), and Applegate v. Applegate, 39 F. Supp. 887 (ED Va. 1941), military pay could not be attached so long as it was in the Government’s hands; thus, this clause of H. R. 10670 represented a “drastic departure” from current law, but one that the House Committee on Armed Services believed to be necessitated by the difficulty of enforcing support orders. H. R. Rep. No. 92-481, at 17-18. Although this provision passed the House, it was not included in the Senate version of the bill. See S. Rep. No. 92-1089, at 25. Thereafter, the House acceded to the Senate’s view that the attachment provision would unfairly “single out military retirees for a form of enforcement of court orders imposed on no other employees or retired employees of the Federal Government.” 118 Cong. Rec. 30151 (1972) (remarks of Rep. Pike); S. Rep. No. 92-1089, at 25. Instead, Congress determined that the problem of the attachment of military retired pay should be considered in the context of “legislation that might require all Federal pays to be subject to attachment.” Ibid.; 118 Cong. Rec. 30151 (1972) (remarks of Rep. Pike). Subsequently, comprehensive legislation was enacted. In 1975, Congress amended the Social Security Act to provide that all federal benefits, including those payable to members of the Armed Services, may be subject to legal process to enforce child support or alimony obligations. Pub. L. 93-647, § 101 (a), 88 Stat. 2357, 42 IT. S. C. § 659. In 1977, however, Congress added a new definitional section (§ 462 (c)) providing that the term “alimony” in § 659 (a) “does not include any payment or transfer of property ... in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses.” Pub. L. 95-30, § 501 (d), 91 Stat. 159, 42 U. S. C. § 662 (c) (1976 ed., Supp. IV). As we noted in Hisquierdo, it is “logical to conclude that Congress, in adopting § 462 (c), thought that a family’s need for support could justify garnishment, even though it deflected other federal benefits from their intended goals, but that community property claims, which are not based on need, could not do so.” 439 U. S., at 587. Hisquierdo also pointed out that Congress might conclude that this distinction between support and community property claims is “undesirable.” Id., at 590. Indeed, Congress recently enacted legislation that requires that Civil Service retirement benefits be paid to an ex-spouse to the extent provided for in “the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation.” Pub. L. 95-366, § 1 (a), 92 Stat. 600, 5 U. S. C. § 8345 (j) (1) (1976 ed., Supp. IV). In an even more extreme recent step, Congress amended the Foreign Service retirement legislation to provide that, as a matter of federal law, an ex-spouse is entitled to a pro rata share of Foreign Service retirement benefits. Thus, the Civil Service amendments require the United States to recognize the community property division of Civil Service retirement benefits by a state court, while the Foreign Service amendments establish a limited federal community property concept. Significantly, however, while similar legislation affecting military retired pay was introduced in the 96th Congress, none of those bills was reported out of committee. Thus, in striking contrast to its amendment of the Foreign Service and Civil Service retirement systems, Congress has neither authorized nor required the community property division of military retired pay. On the contrary, that pay continues to be the personal entitlement of the retiree. B We conclude, therefore, that there is a conflict between the terms of the federal retirement statutes and the community property right asserted by appellee here. But “[a] mere conflict in words is not sufficient”; the question remains whether the “consequences [of that community property right] sufficiently injure the objectives of the federal program to require nonrecognition.” Hisquierdo, 439 U. S., at 581-583. This inquiry, however, need be only a brief one, for it is manifest that the application of community property principles to military retired pay threatens grave harm to “clear and substantial” federal interests. See United States v. Yazell, 382 U. S., at 352. Under the Constitution, Congress has the power “[t]o raise and support Armies,” “[t]o provide and maintain a Navy,” and “[t]o makes Buies for the Government and Regulation of the land and naval Forces.” U. S. Const., Art. I, § 8, cls. 12, 13, and 14. See generally Rostker v. Goldberg, ante, at 59. Pursuant to this grant of authority, Congress has enacted a military retirement system designed to accomplish two major goals: to provide for the retired service member, and to meet the personnel management needs of the active military forces. The community property division of retired pay has the potential to frustrate each of these objectives. In the first place, the community property interest appel-lee seeks “promises to diminish that portion of the benefit Congress has said should go to the retired [service member] alone.” See Hisquierdo, 439 U. S., at 590. State courts are not free to reduce the amounts that Congress has determined are necessary for the retired member. Furthermore, the community property division of retired pay may disrupt the carefully balanced scheme Congress has devised to encourage a service member to set aside a portion of his or her retired pay as an annuity for a surviving spouse or dependent children. By diminishing the amount available to the retiree, a community property division makes it less likely that the retired service member will choose to reduce his or her retired pay still further by purchasing an annuity for the surviving spouse, if any, or children. In McCune v. Essig, 199 U. S. 382 (1905), the Court held that federal law, which permitted a widow to patent federal land entered by her husband, prevailed over the interest in the patent asserted by the daughter under state inheritance law; the Court noted that the daughter’s contention “reverses the order of the statute and gives the children an interest paramount to that of the widow through the laws of the State.” Id., at 389. So here, the right appellee asserts “reverses the order of the statute” by giving the ex-spouse an interest paramount to that of the surviving spouse and children of the service member; indeed, at least one court (in a noncommunity property State) has gone so far as to hold that the heirs of the ex-spouse may even inherit her interest in military retired pay. See In re Miller,-Mont.-, 609 P. 2d 1185 (1980), cert. pending sub nom. Miller v. Miller, No. 80-291. Clearly, “[t]he law of the State is not competent to do this.” McCune v. Essig, 199 U. S., at 389. The potential for disruption of military personnel management is equally clear. As has been noted above, Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_respond1_1_4	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "utilities". Your task is to determine what subcategory of business best describes this litigant. UNITED STATES v. CONSOLIDATED GAS ELECTRIC LIGHT & POWER CO. OF BALTIMORE. No. 4546. Circuit Court of Appeals, Fourth Circuit. Jan. 8, 1940. Edward H. Hammond, Atty., Department of Justice, of Baltimore, Md. (Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key, Norman D. Keller, and Stephen J. Angling, Sp. Assts. to Atty. Gen., and Bernard J. Flynn, U. S. Atty., and G. Randolph Aiken, Asst. U. S. Atty., both of Baltimore, Md., on the brief), for appellant. Edwin M. Sturtevant, William C. Baxter, and Clyde T. Warren, all of Baltimore, Md., for appellee. Before PARKER and SOPER, Circuit Judges, and DOBIE, District Judge. SOPER, Circuit Judge. Certificates of indebtedness were issued to depositors of the Baltimore Trust Company, an insolvent banking institution of the City of Baltimore, on August 4, 1933, in accordance with a plan of reorganization which became- effective on that date. The certificates represented the unpaid balances due the depositors, plus accrued interest. Consolidated Gas, Electric Light & Power Company of Baltimore, a Maryland corporation, received a certificate in the face amount of $1,031,094.48, which was subsequently reduced to $825,523.58 by a partial distribution of the bank’s assets. On November 12, 1935, the Gas Company sold and assigned the certificate for $257,-976.12 to the Federal Water Service Corporation, but no revenue stamps were affixed to the certificate or to any of the transfer papers. In January, 1938, the Commissioner of Internal Revenue made an assessment against the Gas Company in the amount of $330.24, representing the stamp tax alleged to be due on the trans fer; and on March 17, 1938, the Gas Company paid the tax and filed its claim for refund on the ground that the tax had been wrongfully collected. The claim was rejected and the pending suit was filed, resulting in a judgment for the taxpayer. The statutes, under which the tax in suit was imposed, are § 800, Schedule A (1) of Title VIII of the Revenue Act of 1926, 44 Stat. 9, 99, 101, and the amendment thereof by § 724 of the Revenue Act of 1932, 47 Stat. 169, 274, 26 U.S.C.A. § 900 note. They are as follows: Revenue Act of 1926, c. 27, 44 Stat. 99. Title VIII, Stamp Taxes: “Sec. 800. On and after the expiration of thirty days after the enactment of this Act there shall be levied, collected, and paid, for and' in respect of the several bonds, debentures, or certificates of stock and of indebtedness, and other documents, instruments, matters, and things mentioned and described in Schedule A of this title, or for or in respect of the vellum, parchment, or paper upon which such instruments, matters, or things, or any of them, are written or printed, by any person who makes, signs, issues, sells, removes, consigns, or ships the same, or for whose use or benefit the same are made, signed, issued, sold, removed, consigned, or shipped, the several taxes specified in such schedule. The taxes imposed by this section shall, in the case of any article upon which a corresponding stamp tax is now-imposed by law, be in lieu of such tax. * * “Schedule A,- — Stamp Taxes “1. Bonds of indebtedness: On all bonds, debentures, or certificates of indebtedness issued by any corporation, and all instruments, however termed, issued by any corporation with interest coupons or in registered form, known generally as corporate securities, on each $100 of face value or fraction thereof, 5 cents * * .” Revenue Act of 1932, c. 209, 47 Stat. 169: “Sec. 724. Stamp Tax on Transfer of Bonds, etc. “(a) Schedule A of Title VIII of the Revenue Act of 1926 is amended by adding at the end thereof a new subdivision to read as follows: “9. Bonds, etc., sales or transfers. On all sales, or agreements to sell, or memoranda of sales or deliveries of, or transfers of legal title to any of the instruments mentioned or described in subdivision 1 and of a kind the issue of which is taxable thereunder, • whether made by any assignment in blank or by any delivery, or by any paper or agreement or memorandum or other evidence of transfer or sale * ” It is manifest from an examination of these sections that the instruments, whose transfer is taxable under the quoted section of the amendatory Act of 1932, are the kind of instruments whose issue is taxable under Schedule A(l) of the Act of 1926. We inquire, therefore, whether the certificates of indebtedness of the Baltimore Trust Company were taxable under the last mentioned section when they were issued as above described. It is stipulated that subsequent to the issuance of the certificates the Commissioner of Internal Revenue made an assessment upon the Trust Company on account of stamp taxes alleged to be due thereon under the statute; that the tax was paid on March 17, 1934 and a claim for refund was_ filed on November 9, 1936 on the ground that certificates of indebtedness issued by an insolvent bank are exempt from tax under § 22 of the Act of March 1, 1879, 20 Stat. 351, 12 U.S.C.A. § 570. This section provides in substance that no tax shall be assessed or collected or paid on account of any bank that has ceased to do business by reason of insolvency, which tax will diminish the assets necessary for th'e full payment of depositors. For a consideration of this statute, see United States v. Sterling, Receiver, 4 Cir., 106 F.2d 178. The Commissioner agreed to the refund after a review of the facts and the law contained in an opinion of January 4, 1937 of the Chief Counsel of the Bureau of Internal Revenue which is filed as part of the record in the pending case. The Chief Counsel reached the conclusion that the certificates of the Trust Company were not taxable because it had ceased to do business by reason of insolvency on March 17, 1934 when the certificates were issued. The refund was made on March 29, 1937. This action of the Commissioner, in our opinion, was a correct application of the statutory exemption provided by the Act of March 1, 1870 and thereby the freedom of the certificates from taxation at the time of issuance was established. It follows that the transfer of the certificates by the Gas Company on November 12, 1935 was not covered by § 724 of the Revenue Act of 1932 supra, which ■ imposes a stamp tax upon the transfer of only that kind of instrument which is subject to tax when issued. Having reached this conclusion, it is unnecessary to consider the additional contention of the taxpayer, also made in United States v. Sterling, Receiver, supra, that certificates of indebtedness issued by an insolvent bank are not corporate securities in the common understanding of that term, and that only such instruments as are generally known as corporate securities or investment securities were intended to be taxed by the Revenue Acts of 1926 and 1932. The judgment of the District Court is affirmed. No attempt was made to collect the issue tax from the transferee of the bank because of the ruling contained in Cum. Bull. (1932) Vol. XI-2, p. 542 (S.T. 547) which states: “The conclusion has been reached that the taxes in question, although imposed on the transferee as well as the transferor, and on the grantee as well as the grantor, are without application where the transferor or grantor is relieved from liability therefor by § 22 of the Act of March 1, 1879. This conelusion is based on the view that the statutory provision referred to is remedial in character and is to be liberally construed. Its manifest purpose is to relieve depositors from the burden of the tax. To tax the transferee or grantee in such case would be in effect, through the shifting of the burden of the tax to the transferor or grantor, to tax the insolvent bank and thus defeat the purpose of the statute”. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "utilities". What subcategory of business best describes this litigant? A. nuclear power plants B. other producers of power C. telephone D. other utilities E. unclear Answer:
sc_issuearea	G	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. NATIONAL LABOR RELATIONS BOARD v. CITY DISPOSAL SYSTEMS, INC. No. 82-960. Argued November 7, 1983 Decided March 21, 1984 Brennan, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, and Stevens, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Burger, C. J., and Powell and Rehnquist, JJ., joined, post, p. 841. Norton J. Come argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Deputy Solicitor General Wallace, Carter G. Phillips, Linda Sher, and Elinor Hadley Stillman. Robert P. Ufer argued the cause for respondent. With him on the brief were Thomas G. Kienbaum and Theodore R. Opperwall. Briefs of amici curiae urging reversal were filed for the American Federation of Labor and Congress of Industrial Organizations by J. Albert Woll, Laurence Gold, and George Kaufmann; and for Teamsters for a Democratic Union by Paul Alan Levy and Alan B. Morrison. Briefs of amici curiae urging affirmance were filed for the Chamber of Commerce of the United States by Edward B. Miller and Stephen A. Bokat; for the Legal Foundation of America by David Crump; and for Roadway Express, Inc., by Michael C. Towers and Mark E. Edwards. Justice Brennan delivered the opinion of the Court. James Brown, a truckdriver employed by respondent, was discharged when he refused to drive a truck that he honestly and reasonably believed to be unsafe because of faulty brakes. Article XXI of the collective-bargaining agreement between respondent and Local 247 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, which covered Brown, provides: “The Employer shall not require employees to take out on the streets or highways any vehicle that is not in safe operating condition or equipped with the safety appli-anees prescribed by law. It shall not be a violation of this Agreement where employees refuse to operate such equipment unless such refusal is unjustified.” The question to be decided is whether Brown’s honest and reasonable assertion of his right to be free of the obligation to drive unsafe trucks constituted “concerted activity]” within the meaning of §7 of the National Labor Relations Act (NLRA or Act), 61 Stat. 140, 29 U. S. C. § 157. The National Labor Relations Board (NLRB or Board) held that Brown’s refusal was concerted activity within § 7, and that his discharge was, therefore, an unfair labor practice under § 8(a)(1) of the Act, 61 Stat. 140, 29 U. S. C. § 158(a). 256 N. L. R. B. 451 (1981). The Court of Appeals disagreed and declined enforcement. 683 F. 2d 1005 (CA6 1982). At least three other Courts of Appeals, however, have accepted the Board’s interpretation of “concerted activities” as including the assertion by an individual employee of a right grounded in a collective-bargaining agreement. We granted certio-rari to resolve the conflict, 460 U. S. 1050 (1983), and now reverse. I The facts are not in dispute in the current posture of this case. Respondent, City Disposal Systems, Inc. (City Disposal), hauls garbage for the city of Detroit. Under the collective-bargaining agreement with Local Union No. 247, respondent’s truckdrivers haul garbage from Detroit to a landfill about 37 miles away. Each driver is assigned to operate a particular truck, which he or she operates each day of work, unless that truck is in disrepair. James Brown was assigned to truck No. 245. On Saturday, May 12, 1979, Brown observed that a fellow driver had difficulty with the brakes of another truck, truck No. 244. As a result of the brake problem, truck No. 244 nearly collided with Brown’s truck. After unloading their garbage at the landfill, Brown and the driver of truck No. 244 brought No. 244 to respondent’s truck-repair facility, where they were told that the brakes would be repaired either over the weekend or in the morning of Monday, May 14. Early in the morning of Monday, May 14, while transporting a load of garbage to the landfill, Brown experienced difficulty with one of the wheels of his own truck — No. 245 — and brought that truck in for repair. At the repair facility, Brown was told that, because of a backlog at the facility, No. 245 could not be repaired that day. Brown reported the situation to his supervisor, Otto Jasmund, who ordered Brown to punch out and go home. Before Brown could leave, however, Jasmund changed his mind and asked Brown to drive truck No. 244 instead. Brown refused, explaining that “there’s something wrong with that truck. . . . [Something was wrong with the brakes . . . there was a grease seal or something leaking causing it to be affecting the brakes.” Brown did not, however, explicitly refer to Article XXI of the collective-bargaining agreement or to the agreement in general. In response to Brown’s refusal to drive truck No. 244, Jasmund angrily told Brown to go home. At that point, an argument ensued and Robert Madary, another supervisor, intervened, repeating Jasmund’s request that Brown drive truck No. 244. Again, Brown refused, explaining that No. 244 “has got problems and I don’t want to drive it.” Madary replied that half the trucks had problems and that if respondent tried to fix all of them it would be unable to do business. He went on to tell Brown that “[w]e’ve got all this garbage out here to haul and you tell me about you don’t want to drive.” Brown responded, “Bob, what you going to do, put the garbage ahead of the safety of the men?” Finally, Madary went to his office and Brown went home. Later that day, Brown received word that he had been discharged. He immediately returned to work in an attempt to gain reinstatement but was unsuccessful. On May 15, the day after the discharge, Brown filed a written grievance, pursuant to the collective-bargaining agreement, asserting that truck No. 244 was defective, that it had been improper for him to have been ordered to drive the truck, and that his discharge was therefore also improper. The union, however, found no objective merit in the grievance and declined to process it. On September 7,1979, Brown filed an unfair labor practice charge with the NLRB, challenging his discharge. The Administrative Law Judge (ALJ) found that Brown had been discharged for refusing to operate truck No. 244, that Brown’s refusal was covered by § 7 of the NLRA, and that respondent had therefore committed an unfair labor practice under § 8(a)(1) of the Act. The ALJ held that an employee who acts alone in asserting a contractual right can nevertheless be engaged in concerted activity within the meaning of §7: “‘[Wjhen an employee makes complaints concerning safety matters which are embodied in a contract, he is acting not only in his own interest, but is attempting to enforce such contract provisions in the interest of all the employees covered under that contract. Such activity we have found to be concerted and protected under the Act, and the discharge of an individual for engaging in such activity to be in violation of Section 8(a)(1) [of the Act].”’ 256 N. L. R. B., at 454 (quoting Roadway Express, Inc., 217 N. L. R. B. 278, 279 (1975)). The NLRB adopted the findings and conclusions of the ALJ and ordered that Brown be reinstated with backpay. On a petition for enforcement of the Board’s order, the Court of Appeals disagreed with the ALJ and the Board. Finding that Brown’s refusal to drive truck No. 244 was an action taken solely on his own behalf, the Court of Appeals concluded that the refusal was not a concerted activity within the meaning of § 7. This holding followed the court’s prior decision in ARO, Inc. v. NLRB, 596 F. 2d 713 (CA6 1979), in which the Court of Appeals had held: “For an individual claim or complaint to amount to concerted action under the Act it must not have been made solely on behalf of an individual employee, but it must be made on behalf of other employees or at least be made with the object of inducing or preparing for group action and have some arguable basis in the collective bargaining agreement.” Id., at 718. I — I I — I Section 7 of the NLRA provides that “[ejmployees shall have the right to ... join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U. S. C. § 157. The NLRB’s decision in this case applied the Board’s longstanding “Interboro doctrine,” under which an individual’s assertion of a right grounded in a collective-bargaining agreement is recognized as “concerted activit[yj” and therefore accorded the protection of § 7. See Interboro Contractors, Inc., 157 N. L. R. B. 1295, 1298 (1966), enf’d, 388 F. 2d 495 (CA2 1967); Bunney Bros. Construction Co., 139 N. L. R. B. 1516, 1519 (1962). The Board has relied on two justifications for the doctrine: First, the assertion of a right contained in a collective-bargaining agreement is an extension of the concerted action that produced the agreement, Bunney Bros. Construction, supra, at 1519; and second, the assertion of such a right affects the rights of all employees covered by the collective-bargaining agreement. Interboro Contractors, supra, at 1298. We have often reaffirmed that the task of defining the scope of § 7 “is for the Board to perform in the first instance as it considers the wide variety of cases that come before it,” Eastex, Inc. v. NLRB, 437 U. S. 556, 568 (1978), and, on an issue that implicates its expertise in labor relations, a reasonable construction by the Board is entitled to considerable deference, NLRB v. Iron Workers, 434 U. S. 335, 350 (1978); NLRB v. Hearst Publications, Inc., 322 U. S. 111, 130-131 (1944). The question for decision today is thus narrowed to whether the Board’s application of § 7 to Brown’s refusal to drive truck No. 244 is reasonable. Several reasons persuade us that it is. A Neither the Court of Appeals nor respondent appears to question that an employee’s invocation of a right derived from a collective-bargaining agreement meets §7’s requirement that an employee’s action be taken “for purposes of collective bargaining or other mutual aid or protection.” As the Board first explained in the Interboro case, a single employee’s invocation of such rights affects all the employees that are covered by the collective-bargaining agreement. Interboro Contractors, Inc., supra, at 1298. This type of generalized effect, as our cases have demonstrated, is sufficient to bring the actions of an individual employee within the “mutual aid or protection” standard, regardless of whether the employee has his own interests most immediately in mind. See, e. g., NLRB v. J. Weingarten, Inc., 420 U. S. 251, 260-261 (1975). The term “concerted activity]” is not defined in the Act but it clearly enough embraces the activities of employees who have joined together in order to achieve common goals. See, e. g., Meyers Industries, Inc., 268 N. L. R. B. 493, 494-495 (1984). What is not self-evident from the language of the Act, however, and what we must elucidate, is the precise manner in which particular actions of an individual employee must be linked to the actions of fellow employees in order to permit it to be said that the individual is engaged in concerted activity. We now turn to consider the Board’s analysis of that question as expressed in the Interboro doctrine. Although one could interpret the phrase, “to engage in other concerted activities,” to refer to a situation in which two or more employees are working together at the same time and the same place toward a common goal, the language of § 7 does not confine itself to such a narrow meaning. In fact, § 7 itself defines both joining and assisting labor organizations — activities in which a single employee can engage— as concerted activities. Indeed, even the courts that have rejected the Interboro doctrine recognize the possibility that an individual employee may be engaged in concerted activity when he acts alone. They have limited their recognition of this type of concerted activity, however, to two situations: (1) that in which the lone employee intends to induce group activity, and (2) that in which the employee acts as a representative of at least one other employee. See, e. g., ARO, Inc. v. NLRB, 596 F. 2d, at 717; NLRB v. Northern Metal Co., 440 F. 2d 881, 884 (CA3 1971). The disagreement over the Interboro doctrine, therefore, merely reflects differing views regarding the nature of the relationship that must exist between the action of the individual employee and the actions of the group in order for § 7 to apply. We cannot say that the Board’s view of that relationship, as applied in the Interboro doctrine, is unreasonable. The invocation of a right rooted in a collective-bargaining agreement is unquestionably an integral part of the process that gave rise to the agreement. That process — beginning with the organization of a union, continuing into the negotiation of a collective-bargaining agreement, and extending through the enforcement of the agreement — is a single, collective activity. Obviously, an employee could not invoke a right grounded in a collective-bargaining agreement were it not for the prior negotiating activities of his fellow employees. Nor would it make sense for a union to negotiate a collective-bargaining agreement if individual employees could not invoke the rights thereby created against their employer. Moreover, when an employee invokes a right grounded in the collective-bargaining agreement, he does not stand alone. Instead, he brings to bear on his employer the power and resolve of all his fellow employees. When, for instance, James Brown refused to drive a truck he believed to be unsafe, he was in effect reminding his employer that he and his fellow employees, at the time their collective-bargaining agreement was signed, had extracted a promise from City Disposal that they would not be asked to drive unsafe trucks. He was also reminding his employer that if it persisted in ordering him to drive an unsafe truck, he could rehamess the power of that group to ensure the enforcement of that promise. It was just as though James Brown was reassembling his fellow union members to reenact their decision not to drive unsafe trucks. A lone employee’s invocation of a right grounded in his collective-bargaining agreement is, therefore, a concerted activity in a very real sense. Furthermore, the acts of joining and assisting a labor organization, which § 7 explicitly recognizes as concerted, are related to collective action in essentially the same way that the invocation of a collectively bargained right is related to collective action. When an employee joins or assists a labor organization, his actions may be divorced in time, and in location as well, from the actions of fellow employees. Because of the integral relationship among the employees’ actions, however, Congress viewed each employee as engaged in concerted activity. The lone employee could not join or assist a labor organization were it not for the related organizing activities of his fellow employees. Conversely, there would be limited utility in forming a labor organization if other employees could not join or assist the organization once it is formed. Thus, the formation of a labor organization is integrally related to the activity of joining or assisting such an organization in the same sense that the negotiation of a collective-bargaining agreement is integrally related to the invocation of a right provided for in the agreement. In each case, neither the individual activity nor the group activity would be complete without the other. The Interboro doctrine is also entirely consistent with the purposes of the Act, which explicitly include the encouragement of collective bargaining and other “practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions.” 29 U. S. C. § 151. Although, as we have said, there is nothing in the legislative history of § 7 that specifically expresses the understanding of Congress in enacting the “concerted activities” language, the general history of § 7 reveals no inconsistency between the Interboro doctrine and congressional intent. That history begins in the early days of the labor movement, when employers invoked the common-law doctrines of criminal conspiracy and restraint of trade to thwart workers’ attempts to unionize. See Automobile Workers v. Wisconsin Employment Relations Board (Briggs & Stratton), 336 U. S. 245, 257-258 (1949). As this Court recognized in NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 33 (1937), a single employee at that time “was helpless in dealing with an employer; ... he was dependent ordinarily on his daily wage for the maintenance of himself and family;... if the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and resist arbitrary and unfair treatment; . . . union was essential to give laborers opportunity to deal on an equality with their employer.” Congress’ first attempt to equalize the bargaining power of management and labor, and its first use of the term “concert” in this context, came in 1914 with the enactment of §§6 and 20 of the Clayton Act, which exempted from the antitrust laws certain types of peaceful union activities. 15 U. S. C. § 17; 29 U. S. C. §52. There followed, in 1932, the Norris-La Guardia Act, which declared that “the individual . . . worker . . . shall be free from the interference, restraint, or coercion, of employers ... in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U. S. C. § 102 (emphasis added). This was the source of the language enacted in § 7. It was adopted first in § 7(a) of the National Industrial Recovery Act and then, in 1935, in § 7 of the NLRA. See generally Gorman & Finkin, The Individual and the Requirement of “Concert” Under the National Labor Relations Act, 130 U. Pa. L. Rev. 286, 331-346 (1981). Against this background, it is evident that, in enacting § 7 of the NLRA, Congress sought generally to equalize the bargaining power of the employee with that of his employer by allowing employees to band together in confronting an employer regarding the terms and conditions of their employment. There is no indication that Congress intended to limit this protection to situations in which an employee’s activity and that of his fellow employees combine with one another in any particular way. Nor, more specifically, does it appear that Congress intended to have this general protection withdrawn in situations in which a single employee, acting alone, participates in an integral aspect of a collective process. Instead, what emerges from the general background of §7— and what is consistent with the Act’s statement of purpose— is a congressional intent to create an equality in bargaining power between the employee and the employer throughout the entire process of labor organizing, collective bargaining, and enforcement of collective-bargaining agreements. The Board’s Interboro doctrine, based on a recognition that the potential inequality in the relationship between the employee and the employer continues beyond the point at which a collective-bargaining agreement is signed, mitigates that inequality throughout the duration of the employment relationship, and is, therefore, fully consistent with congressional intent. Moreover, by applying § 7 to the actions of individual employees invoking their rights under a collective-bargaining agreement, the Interboro doctrine preserves the integrity of the entire collective-bargaining process; for by invoking a right grounded in a collective-bargaining agreement, the employee makes that right a reality, and breathes life, not only into the promises contained in the collective-bargaining agreement, but also into the entire process envisioned by Congress as the means by which to achieve industrial peace. To be sure, the principal tool by which an employee invokes the rights granted him in a collective-bargaining agreement is the processing of a grievance according to whatever procedures his collective-bargaining agreement establishes. No one doubts that the processing of a grievance in such a manner is concerted activity within the meaning of §7. See, e. g., NLRB v. Ford Motor Co., 683 F. 2d 156, 159 (CA6 1982); Crown Central Petroleum Corp. v. NLRB, 430 F. 2d 724, 729 (CA5 1970). Indeed, it would make little sense for § 7 to cover an employee’s conduct while negotiating a collective-bargaining agreement, including a grievance mechanism by which to protect the rights created by the agreement, but not to cover an employee’s attempt to utilize that mechanism to enforce the agreement. In practice, however, there is unlikely to be a bright-line distinction between an incipient grievance, a complaint to an employer, and perhaps even an employee’s initial refusal to perform a certain job that he believes he has no duty to perform. It is reasonable to expect that an employee’s first response to a situation that he believes violates his collective-bargaining agreement will be a protest to his employer. Whether he files a grievance will depend in part on his employer’s reaction and in part upon the nature of the right at issue. In addition, certain rights might not be susceptible of enforcement by the filing of a grievance. In such a case, the collective-bargaining agreement might provide for an alternative method of enforcement, as did the agreement involved in this case, see supra, at 825, or the agreement might be silent on the matter. Thus, for a variety of reasons, an employee’s initial statement to an employer to the effect that he believes a collectively bargained right is being violated, or the employee’s initial refusal to do that which he believes he is not obligated to do, might serve as both a natural prelude to, and an efficient substitute for, the filing of a formal grievance. As long as the employee’s statement or action is based on a reasonable and honest belief that he is being, or has been, asked to perform a task that he is not required to perform under his collective-bargaining agreement, and the statement or action is reasonably directed toward the enforcement of a collectively bargained right, there is no justification for overturning the Board’s judgment that the employee is engaged in concerted activity, just as he would have been had he filed a formal grievance. The fact that an activity is concerted, however, does not necessarily mean that an employee can engage in the activity with impunity. An employee may engage in concerted activity in such an abusive manner that he loses the protection of §7. See, e. g., Crown Central Petroleum Corp. v. NLRB, supra, at 729; Yellow Freight System, Inc., 247 N. L. R. B. 177, 181 (1980). Cf. Eastex, Inc. v. NLRB, 437 U. S. 556 (1978); NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1956). Furthermore, if an employer does not wish to tolerate certain methods by which employees invoke their collectively bargained rights, he is free to negotiate a provision in his collective-bargaining agreement that limits the availability of such methods. No-strike provisions, for instance, are a common mechanism by which employers and employees agree that the latter will not invoke their rights by refusing to work. In general, if an employee violates such a provision, his activity is unprotected even though it may be concerted. Mastro Plastics Corp. v. NLRB, 350 U. S. 270 (1956). Whether Brown’s action in this case was unprotected, however, is not before us. B Respondent argues that the Interboro doctrine undermines the arbitration process by providing employees with the possibility of provoking a discharge and then filing an unfair labor practice claim. Brief for Respondent 34-42. This argument, however, misses the mark for several reasons. First, an employee who purposefully follows this route would run the risk that the Board would find his actions concerted but nonetheless unprotected, as discussed above. Second, the Interboro doctrine does not shift dispute resolution from the grievance and arbitration process to NLRB adjudication in any way that is different from the alternative position adopted by the Court of Appeals, and pressed upon us by respondent. As stated above, see supra, at 828, the Court of Appeals would allow a finding of concerted activity if two employees together invoke a collectively bargained right, if a lone employee represents another employee in addition to himself when he invokes the right, or if the lone employee invokes the right in a manner that is intended to induce at least one other employee to join him. In each of these situations, however, the underlying substance of the dispute between the employees and the employer is the same as when a single employee invokes a collectively bargained right by himself. In each case the employees are claiming that their employer violated their collective-bargaining agreement, and if the complaining employee or employees in those situations are discharged, their unfair labor practice action would be identical to an action brought by an employee who has been discharged for invoking a collectively bargained right by himself. Because the employees in each of these situations are equally well positioned to go through the grievance and arbitration process, there is no basis for singling out the Interboro doctrine as undermining that process any more than would the approach of respondent and the Courts of Appeals that have rejected the doctrine. Finally, and most importantly, to the extent that the factual issues raised in an unfair labor practice action have been, or can be, addressed through the grievance process, the Board may defer to that process. See Collyer Insulated Wire, 192 N. L. R. B. 837 (1971); Spielberg Manufacturing Co., 112 N. L. R. B. 1080 (1955). There is no reason, therefore, for the Board’s interpretation of “concerted activity]” in §7 to be constrained by a concern for maintaining the integrity of the grievance and arbitration process. HH I — I * — ( In this case, the Board found that James Brown’s refusal to drive truck No. 244 was based on an honest and reasonable belief that the brakes on the truck were faulty. Brown explained to each of his supervisors his reason for refusing to drive the truck. Although he did not refer to his collective-bargaining agreement in either of these confrontations, the agreement provided not only that “[t]he Employer shall not require employees to take out on the streets or highways any vehicle that is not in safe operating condition,” but also that “[i]t shall not be a violation of this Agreement where employees refuse to operate such equipment, unless such refusal is unjustified.” See supra, at 825. There is no doubt, therefore, nor could there have been any doubt during Brown’s confrontations with his supervisors, that by refusing to drive truck No. 244, Brown was invoking the right granted him in his collective-bargaining agreement to be free of the obligation to drive unsafe trucks. Moreover, there can be no question but that Brown’s refusal to drive the truck was reasonably well directed toward the enforcement of that right. Indeed, it would appear that there were no other means available by which Brown could have enforced the right. If he had gone ahead and driven truck No. 244, the issue may have been moot. Respondent argues that Brown’s action was not concerted because he did not explicitly refer to the collective-bargaining agreement as a basis for his refusal to drive the truck. Brief for Respondent 21-22. The Board, however, has never held that an employee must make such an explicit reference for his actions to be covered by the Interboro doctrine, and we find that position reasonable. We have often recognized the importance of “the Board’s special function of applying the general provisions of the Act to the complexities of industrial life.” NLRB v. Erie Resistor Corp., 373 U. S. 221, 236 (1963). As long as the nature of the employee’s complaint is reasonably clear to the person to whom it is communicated, and the complaint does, in fact, refer to a reasonably perceived violation of the collective-bargaining agreement, the complaining employee is engaged in the process of enforcing that agreement. In the context of a workplace dispute, where the participants are likely to be unsophisticated in collective-bargaining matters, a requirement that the employee explicitly refer to the collective-bargaining agreement is likely to serve as nothing more than a trap for the unwary. Respondent .further argues that the Board erred in finding Brown’s action concerted based only on Brown’s reasonable and honest belief that truck No. 244 was unsafe. Brief for Respondent 38. Respondent bases its argument on the language of the collective-bargaining agreement, which provides that an employee may refuse to drive an unsafe truck “unless such refusal is unjustified.” In the view of respondent, this language allows a driver to refuse to drive a truck only if the truck is objectively unsafe. Regardless of whether respondent’s interpretation of the agreement is correct, a question as to which we express no view, this argument confuses the threshold question whether Brown’s conduct was concerted with the ultimate question whether that conduct was protected. The rationale of the Interboro doctrine compels the conclusion that an honest and reasonable invocation of a collectively bargained right constitutes concerted activity, regardless of whether the employee turns out to have been correct in his belief that his right was violated. See Part II, supra. No one would suggest, for instance, that the filing of a grievance is concerted only if the grievance turns out to be meritorious. As long as the grievance is based on an honest and reasonable belief that a right had been violated, its filing is a concerted activity because it is an integral part of the process by which the collective-bargaining agreement is enforced. The same is true of other methods by which an employee enforces the agreement. On the other hand, if the collective-bargaining agreement imposes a limitation on the means by which a right may be invoked, the concerted activity would be unprotected if it went beyond that limitation. See supra, at 837. In this case, because Brown reasonably and honestly invoked his right to avoid driving unsafe trucks, his action was concerted. It may be that the collective-bargaining agreement prohibits an employee from refusing to drive a truck that he reasonably believes to be unsafe, but that is, in fact, perfectly safe. If so, Brown’s action was concerted but unprotected. As stated above, however, the only issue before this Court and the only issue passed upon by the Board or the Court of Appeals is whether Brown’s action was concerted, not whether it was protected. > I — I The NLRB’s Interboro doctrine recognizes as concerted activity an individual employee’s reasonable and honest invocation of a right provided for in his collective-bargaining agreement. We conclude that the doctrine constitutes a reasonable interpretation of the Act. Accordingly, we accept the Board’s conclusion that James Brown was engaged in concerted activity when he refused to drive truck No. 244. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion, including an inquiry into whether respondent may continue to defend this action on the theory that Brown’s refusal to drive truck No. 244 was unprotected, even if concerted. It is so ordered. App. 64. Article XXI also provides that “[t]he Employer shall not ask or require any employee to take out equipment that has been reported by any other employee as being in an unsafe operating condition until same has been approved as being safe by the mechanical department.” Section 7 provides: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 61 Stat. 140. Section 8(a)(1) of the NLRA provides: “It shall be an unfair labor practice for an employer— “(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” 61 Stat. 140. See, e. g., NLRB v. Ben Pekin Corp., 452 F. 2d 205 (CA7 1971); NLRB v. Selwyn Shoe Manufacturing Corp., 428 F. 2d 217, 221 (CA8 1970); NLRB v. Interboro Contractors, Inc., 388 F. 2d 495 (CA2 1967). At least four Circuits share the position of the Sixth Circuit on this question. See, e. g., Royal Development Co., Ltd. v. NLRB, 703 F. 2d 363, 374 (CA9 1983); Roadway Express, Inc. v. NLRB, 700 F. 2d 687, 693-694 (CA11 1983); NLRB v. Buddies Supermarkets, Inc., 481 F. 2d 714 (CA5 1973) (dictum); NLRB v. Northern Metal Co., 440 F. 2d 881 (CA3 1971). See also Kohls v. NLRB, 203 U. S. App. D. C. 139, 142-143, 629 F. 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:
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. CRAWFORD v. WASHINGTON No. 02-9410. Argued November 10, 2003 Decided March 8, 2004 Jeffrey L. Fisher, by appointment of the Court, 540 U. S. 807, argued the cause for petitioner. With him on the briefs was Bruce E. H. Johnson. Steven C. Sherman argued the cause for respondent. With him on the brief was John Michael Jones. Deputy Solicitor General Dreeben argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Olson, Acting Assistant Attorney General Wray, Sri Srinivasan, and Joel M. Gerskowitz Briefs of amici curiae urging reversal were filed for the National Association of Criminal Defense Lawyers et al. by Jeffrey T. Green, David M. Porter, and Steven R. Shapiro; and for Sherman J. Clark et al. by Richard D. Friedman and David A Moran. Justice Scalia delivered the opinion of the Court. Petitioner Michael Crawford stabbed a man who allegedly tried to rape his wife, Sylvia. At his trial, the State played for the jury Sylvia’s tape-recorded statement to the police describing the stabbing, even though he had no opportunity for cross-examination. The Washington Supreme Court upheld petitioner’s conviction after determining that Sylvia’s statement was reliable. The question presented is whether this procedure complied with the Sixth Amendment’s guarantee that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” I On August 5,1999, Kenneth Lee was stabbed at his apartment. Police arrested petitioner later that night. After giving petitioner and his wife Miranda warnings, detectives interrogated each of them twice. Petitioner eventually confessed that he and Sylvia had gone in search of Lee because he was upset over an earlier incident in which Lee had tried to rape her. The two had found Lee at his apartment, and a fight ensued in which Lee was stabbed in the torso and petitioner’s hand was cut. Petitioner gave the following account of the fight: “Q. Okay. Did you ever see anything in [Lee’s] hands? “A. I think so, but I’m not positive. “Q. Okay, when you think so, what do you mean by that? “A. I could a swore I seen him goin’ for somethin’ before, right before everything happened. He was like reaching fiddlin’ around down here and stuff . . . and I just... I don’t know, I think, this is just a possibility, but I think, I think that he pulled somethin’ out and I grabbed for it and that’s how I got cut. . . but I’m not positive. I, I, my mind goes blank when things like this happen. I mean, I just, I remember things wrong, I remember things that just doesn’t, don’t make sense to me later.” App. 155 (punctuation added). Sylvia generally corroborated petitioner’s story about the events leading up to the fight, but her account of the fight itself was arguably different — particularly with respect to whether Lee had drawn a weapon before petitioner assaulted him: “Q. Did Kenny do anything to fight back from this assault? “A. (pausing) I know he reached into his pocket ... or somethin’... I don’t know what. “Q. After he was stabbed? “A. He saw Michael coming up. He lifted his hand . . . his chest open, he might [have] went to go strike his hand out or something and then (inaudible). “Q. Okay, you, you gotta speak up. “A. Okay, he lifted his hand over his head maybe to strike Michael’s hand down or something and then he put his hands in his . . . put his right hand in his right pocket . . . took a step back . . . Michael proceeded to stab him . . . then his hands were like . . . how do you explain this . . . open arms . . . with his hands open and he fell down . . . and we ran (describing subject holding hands open, palms toward assailant). “Q. Okay, when he’s standing there with his open hands, you’re talking about Kenny, correct? “A. Yeah, after, after the fact, yes. “Q. Did you see anything in his hands at that point? “A. (pausing) um um (no).” Id., at 137 (punctuation added). The State charged petitioner with assault and attempted murder. At trial, he claimed self-defense. Sylvia did not testify because of the state marital privilege, which generally bars a spouse from testifying without the other spouse’s consent. See Wash. Rev. Code §5.60.060(1) (1994). In Washington, this privilege does not extend to a spouse’s out-of-court statements admissible under a hearsay exception, see State v. Burden, 120 Wash. 2d 371, 377, 841 P. 2d 758, 761 (1992), so the State sought to introduce Sylvia’s tape-recorded statements to the police as evidence that the stabbing was not in self-defense. Noting that Sylvia had admitted she led petitioner to Lee’s apartment and thus had facilitated the assault, the State invoked the hearsay exception for statements against penal interest, Wash. Rule Evid. 804(b)(3) (2003). Petitioner countered that, state law notwithstanding, admitting the evidence would violate his federal constitutional right to be “confronted with the witnesses against him.” Arndt. 6. According to our description of that right in Ohio v. Roberts, 448 U. S. 56 (1980), it does not bar admission of an unavailable witness’s statement against a criminal defendant if the statement bears “adequate ‘indicia of reliability.’” Id., at 66. To meet that test, evidence must either fall within a “firmly rooted hearsay exception” or bear “particularized guarantees of trustworthiness.” Ibid. The trial court here admitted the statement on the latter ground, offering several reasons why it was trustworthy: Sylvia was not shifting blame but rather corroborating her husband’s story that he acted in self-defense or “justified reprisal”; she had direct knowledge as an eyewitness; she was describing recent events; and she was being questioned by a “neutral” law enforcement officer. App. 76-77. The prosecution played the tape for the jury and relied on it in closing, arguing that it was “damning evidence” that “completely refutes [petitioner’s] claim of self-defense.” Tr. 468 (Oct. 21, 1999). The jury convicted petitioner of assault. The Washington Court of Appeals reversed. It applied a nine-factor test to determine whether Sylvia’s statement bore particularized guarantees of trustworthiness, and noted several reasons why it did not: The statement contradicted one she had previously given; it was made in response to specific questions; and at one point she admitted she had shut her eyes during the stabbing. The court considered and rejected the State’s argument that Sylvia’s statement was reliable because it coincided with petitioner’s to such a degree that the two “interlocked.” The court determined that, although the two statements agreed about the events leading up to the stabbing, they differed on the issue crucial to petitioner’s self-defense claim: “[Petitioner’s] version asserts that Lee may have had something in his hand when he stabbed him; but Sylvia’s version has Lee grabbing for something only after he has been stabbed.” App. 32. The Washington Supreme Court reinstated the conviction, unanimously concluding that, although Sylvia’s statement did not fall under a firmly rooted hearsay exception, it bore guarantees of trustworthiness: “‘[Wjhen a codefendant’s confession is virtually identical [to, i. e., interlocks with,] that of a defendant, it may be deemed reliable.’ ” 147 Wash. 2d 424, 437, 54 P. 3d 656, 663 (2002) (quoting State v. Rice, 120 Wash. 2d 549, 570, 844 P. 2d 416, 427 (1993)). The court explained: “Although the Court of Appeals concluded that the statements were contradictory, upon closer inspection they appear to overlap. . .. “[B]oth of the Crawfords’ statements indicate that Lee was possibly grabbing for a weapon, but they are equally unsure when this event may have taken place. They are also equally unsure how Michael received the cut on his hand, leading the court to question when, if ever, Lee possessed a weapon. In this respect they overlap. . . . “[N.jeither Michael nor Sylvia clearly stated that Lee had a weapon in hand from which Michael was simply defending himself. And it is this omission by both that interlocks the statements and makes Sylvia’s statement reliable.” 147 Wash. 2d, at 438-439, 54 P. 3d, at 664 (internal quotation marks omitted). We granted certiorari to determine whether the State’s use of Sylvia’s statement violated the Confrontation Clause. 539 U. S. 914 (2003). II The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” We have held that this bedrock procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380 U. S. 400, 406 (1965). As noted above, Roberts says that an unavailable witness’s out-of-court statement may be admitted so long as it has adequate indicia of reliability — i. e., falls within a “firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness.” 448 U. S., at 66. Petitioner argues that this test strays from the original meaning of the Confrontation Clause and urges us to reconsider it. A The Constitution’s text does not alone resolve this case. One could plausibly read “witnesses against” a defendant to mean those who actually testify at trial, cf. Woodsides v. State, 3 Miss. 655, 664-665 (1837), those whose statements are offered at trial, see 3 J. Wigmore, Evidence § 1397, p. 104 (2d ed. 1923) (hereinafter Wigmore), or something in-between, see infra, at 52-53. We must therefore turn to the historical background of the Clause to understand its meaning. The right to confront one’s accusers is a concept that dates back to Roman times. See Coy v. Iowa, 487 U. S. 1012, 1015 (1988); Herrmann & Speer, Facing the Accuser: Ancient and Medieval Precursors of the Confrontation Clause, 34 Va. J. Int’l L. 481 (1994). The founding generation’s immediate source of the concept, however, was the common law. English common law has long differed from continental civil law in regard to the manner in which witnesses give testimony in criminal trials. The common-law tradition is one of live testimony in court subject to adversarial testing, while the civil law condones examination in private by judicial officers. See 3 W. Blackstone, Commentaries on the Laws of England 373-374 (1768). Nonetheless, England at times adopted elements of the civil-law practice. Justices of the peace or other officials examined suspects and witnesses before trial. These examinations were sometimes read in court in lieu of live testimony, a practice that “occasioned frequent demands by the prisoner to have his ‘accusers,’ i. e. the witnesses against him, brought before him face to face.” 1 J. Stephen, History of the Criminal Law of England 326 (1883). In some cases, these demands were refused. See 9 W. Holdsworth, History of English Law 216-217, 228 (3d ed. 1944); e. g., Raleigh’s Case, 2 How. St. Tr. 1, 15-16, 24 (1603); Throckmorton’s Case, 1 How. St. Tr. 869, 875-876 (1554); cf. Lilburn’s Case, 3 How. St. Tr. 1315, 1318-1322, 1329 (Star Chamber 1637). Pretrial examinations became routine under two statutes passed during the reign of Queen Mary in the 16th century, 1 & 2 Phil. & M., c. 13 (1554), and 2 & 3 id., c. 10 (1555). These Marian bail and committal statutes required justices of the peace to examine suspects and witnesses in felony cases and to certify the results to the court. It is doubtful that the original purpose of the examinations was to produce evidence admissible at trial. See J. Langbein, Prosecuting Crime in the Renaissance 21-34 (1974). Whatever the original purpose, however, they came to be used as evidence in some cases, see 2 M. Hale, Pleas of the Crown 284 (1736), resulting in an adoption of continental procedure. See 4 Holdsworth, supra, at 528-530. The most notorious instances of civil-law examination occurred in the great political trials of the 16th and 17th centuries. One such was the 1603 trial of Sir Walter Raleigh for treason. Lord Cobham, Raleigh’s alleged accomplice, had implicated him in an examination before the Privy Council and in a letter. At Raleigh’s trial, these were read to the jury. Raleigh argued that Cobham had lied to save himself: “Cobham is absolutely in the King’s mercy; to excuse me cannot avail him; by accusing me he may hope for favour.” 1 D. Jardine, Criminal Trials 435 (1832). Suspecting that Cobham would recant, Raleigh demanded that the judges call him to appear, arguing that “[t]he Proof of the Common Law is by witness and jury: let Cobham be here, let him speak it. Call my accuser before my face . . . .” 2 How. St. Tr., at 15-16. The judges refused, id., at 24, and, despite Raleigh’s protestations that he was being tried “by the Spanish Inquisition,” id., at 15, the jury convicted, and Raleigh was sentenced to death. One of Raleigh’s trial judges later lamented that “/the justice of England has never been so degraded and injured as by the condemnation of Sir Walter Raleigh.’” 1 Jardine, supra, at 520. Through a series of statutory and judicial reforms, English law developed a right of confrontation that limited these abuses. For example, treason statutes required witnesses to confront the accused “face to face” at his arraignment. E.g., 13 Car. 2, c. 1, §5 (1661); see 1 Hale, supra, at 306. Courts, meanwhile, developed relatively strict rules of unavailability, admitting examinations only if the witness was demonstrably unable to testify in person. See Lord Morley’s Case, 6 How. St. Tr. 769, 770-771 (H. L. 1666); 2 Hale, supra, at 284; 1 Stephen, supra, at 358. Several authorities also stated that a suspect’s confession could be admitted only against himself, and not against others he implicated. See 2 W. Hawkins, Pleas of the Crown, ch. 46, § 3, pp. 603-604 (T. Leach 6th ed. 1787); 1 Hale, supra, at 585, n. (k); 1 G. Gilbert, Evidence 216 (C. Lofft ed. 1791); cf. Tong’s Case, Kel. J. 17, 18, 84 Eng. Rep. 1061, 1062 (1662) (treason). But see King v. Westbeer, 1 Leach 12, 168 Eng. Rep. 108, 109 (1739). One recurring question was whether the admissibility of an unavailable witness’s pretrial examination depended on whether the defendant had had an opportunity to cross-examine him. In 1696, the Court of King’s Bench answered this question in the affirmative, in the widely reported misdemeanor libel case of King v. Paine, 5 Mod. 163, 87 Eng. Rep. 584. The court ruled that, even though a witness was dead, his examination was not admissible where “the defendant not being present when [it was] taken before the mayor . .. had lost the benefit of a cross-examination.” Id., at 165, 87 Eng. Rep., at 585. The question was also debated at length during the infamous proceedings against Sir John Fenwick on a bill of attainder. Fenwick’s counsel objected to admitting the examination of a witness who had been spirited away, on the ground that Fenwick had had no opportunity to cross-examine. See Fenwick’s Case, 13 How. St. Tr. 537, 591-592 (H. C. 1696) (Powys) (“[T]hat which they would offer is something that Mr. Goodman hath sworn when he was examined . . . ; sir J. F. not being present or privy, and no opportunity given to cross-examine the person; and I conceive that cannot be offered as evidence . . .”); id., at 592 (Shower) (“[N]o deposition of a person can be read, though beyond sea, unless in cases where the party it is to be read against was privy to the examination, and might have cross-examined him .... [Q]ur constitution is, that the person shall see his accuser”). The examination was nonetheless admitted on a closely divided vote after several of those present opined that the common-law rules of procedure did not apply to parliamentary attainder proceedings — one speaker even admitting that the evidence would normally be inadmissible. See id., at 603-604 (Williamson); id., at 604-605 (Chancellor of the Exchequer); id., at 607; 3 Wigmore §1364, at 22-23, n. 54. Fenwick was condemned, but the proceedings “must have burned into the general consciousness the vital importance of the rule securing the right of cross-examination.” Id., § 1364, at 22; cf. Carmell v. Texas, 529 U. S. 513, 526-530 (2000). Paine had settled the rule requiring a prior opportunity for cross-examination as a matter of common law, but some doubts remained over whether the Marian statutes 'prescribed an exception to it in felony cases. The statutes did not identify the circumstances under which examinations were admissible, see 1 & 2 Phil. & M., c. 13 (1554); 2 & 3 id., c. 10 (1555), and some inferred that no prior opportunity for cross-examination was required. See Westbeer, supra, at 12, 168 Eng. Rep., at 109; compare Fenwick’s Case, 13 How. St. Tr., at 596 (Sloane), with id., at 602 (Musgrave). Many who expressed this view acknowledged that it meant the statutes were in derogation of the common law. See King v. Eriswell, 3 T. R. 707, 710, 100 Eng. Rep. 815, 817 (K. B. 1790) (Grose, J.) (dicta); id., at 722-723, 100 Eng. Rep., at 823-824 (Kenyon, C. J.) (same); compare 1 Gilbert, Evidence, at 215 (admissible only “by Force ‘of the Statute’”), with id., at 65. Nevertheless, by 1791 (the year the Sixth Amendment was ratified), courts were applying the cross-examination rule even to examinations by justices of the peace in felony cases. See King v. Dingler, 2 Leach 561, 562-563, 168 Eng. Rep. 383, 383-384 (1791); King v. Woodcock, 1 Leach 500, 502-504, 168 Eng. Rep. 352, 353 (1789); cf. King v. Radbourne, 1 Leach 457, 459-461, 168 Eng. Rep. 330, 331-332 (1787); 3 Wigmore § 1364, at 23. Early 19th-century treatises confirm that requirement. See 1 T. Starkie, Evidence 95 (1826); 2 id., at 484-492; T. Peake, Evidence 63-64 (3d ed. 1808). When Parliament amended the statutes in 1848 to make the requirement explicit, see 11 & 12 Vict., c. 42, § 17, the change merely “introduced in terms” what was already afforded the defendant “by the equitable construction of the law.” Queen v. Beeston, 29 Eng. L. & Eq. R. 527, 529 (Ct. Crim. App. 1854) (Jervis, C. J.). B Controversial examination practices were also used in the Colonies. Early in the 18th century, for example, the Virginia Council protested against the Governor for having “privately issued several commissions to examine witnesses against particular men ex parte,” complaining that “the person accused is not admitted to be confronted with, or defend himself against his defamers.” A Memorial Concerning the Maladministrations of His Excellency Francis Nicholson, reprinted in 9 English Historical Documents 253, 257 (D. Douglas ed. 1955). A decade before the Revolution, England gave jurisdiction over Stamp Act offenses to the admiralty courts, which followed civil-law rather than common-law procedures and thus routinely took testimony by deposition or private judicial examination. See 5 Geo. 3, c. 12, §57 (1765); Pollitt, The Right of Confrontation: Its History and Modern Dress, 8 J. Pub. L. 381, 396-397 (1959). Colonial representatives protested that the Act subverted their rights “by extending the jurisdiction of the courts of admiralty beyond its ancient limits.” Resolutions of the Stamp Act Congress §8th (Oct. 19, 1765), reprinted in Sources of Our Liberties 270, 271 (R. Perry & J. Cooper eds. 1959). John Adams, defending a merchant in a high-profile admiralty case, argued: “Examinations of witnesses upon Interrogatories, are only by the Civil Law. Interrogatories are unknown at common Law, and Englishmen and common Lawyers have an aversion to them if not an Abhorrence of them.” Draft of Argument in Sewall v. Hancock (Oct. 1768-Mar. 1769), in 2 Legal Papers of John Adams 194, 207 (L. Wroth & H. Zobel eds. 1965). Many declarations of rights adopted around the time of the Revolution guaranteed a right of confrontation. See Virginia Declaration of Rights § 8 (1776); Pennsylvania Declaration of Rights § IX (1776); Delaware Declaration of Rights §14 (1776); Maryland Declaration of Rights §XIX (1776); North Carolina Declaration of Rights § VII (1776); Vermont Declaration of Rights Ch. I, § X (1777); Massachusetts Declaration of Rights § XII (1780); New Hampshire Bill of Rights §XV (1783), all reprinted in 1 B. Schwartz, The Bill of Rights: A Documentary History .235, 265, 278, 282, 287, 323, 342, 377 (1971). The proposed Federal Constitution, however, did not. At the Massachusetts ratifying convention, Abraham Holmes objected to this omission precisely on the ground that it would lead to civil-law practices: “The mode of trial is altogether indetermined;... whether [the defendant] is to be allowed to confront the witnesses, and have the advantage of cross-examination, we are not yet told----[W]e shall find Congress possessed of powers enabling them to institute judicatories little less inauspicious than a certain tribunal in Spain, . . . the Inquisition.” 2 Debates on the Federal Constitution 110-111 (J. Elliot 2d ed. 1863). Similarly, a prominent Antifederalist writing under the pseudonym Federal Farmer criticized the use of “written evidence” while objecting to the omission of a vicinage right: “Nothing can be more essential than the cross examining [of] witnesses, and generally before the triers of the facts in question. . . . [W]ritten evidence . . . [is] almost useless; it must be frequently taken ex parte, and but very seldom leads to the proper discovery of truth.” R. Lee, Letter IV by the Federal Farmer (Oct. 15, 1787), reprinted in 1 Schwartz, supra, at 469, 473. The First Congress responded by including the Confrontation Clause in the proposal that became the Sixth Amendment. Early state decisions shed light upon the original understanding of the common-law right. State v. Webb, 2 N. C. 103 (Super. L. & Eq. 1794) (per curiam), decided a mere three years after the adoption of the Sixth Amendment, held that depositions could be read against an accused only if they were taken in his presence. Rejecting a broader reading of the English authorities, the court held: “[I]t is a rule of the common law, founded on natural justice, that no man shall be prejudiced by evidence which he had not the liberty to cross examine.” Id., at 104. Similarly, in State v. Campbell, 30 S. C. L. 124 (App. L. 1844), South Carolina’s highest law court excluded a deposition taken by a coroner in the absence of the accused. It held: “[I]f we are to decide the question by the established rules of the common law, there could not be a dissenting voice. For, notwithstanding the death of the witness, and whatever the respectability of the court taking the depositions, the solemnity of the occasion and the weight of the testimony, such depositions are ex parte, and, therefore, utterly incompetent.” Id., at 125. The court said that one of the “indispensable conditions” implicitly guaranteed by the State Constitution was that “prosecutions be carried on to the conviction of the accused, by witnesses confronted by him, and subjected to his personal examination.” Ibid. Many other decisions are to the same effect. Some early cases went so far as to hold that prior testimony was inadmissible in criminal cases even if the accused had a previous opportunity to cross-examine. See Finn v. Commonwealth, 26 Va. 701, 708 (1827); State v. Atkins, 1 Tenn. 229 (Super. L. & Eq. 1807) (per curiam). Most , courts rejected that view, but only after reaffirming that admissibility depended on a prior opportunity for cross-examination. See United States v. Macomb, 26 F. Cas. 1132, 1133 (No. 15,702) (CC Ill. 1851); State v. Houser, 26 Mo. 431, 435-436 (1858); Kendrick v. State, 29 Tenn. 479, 485-488 (1850); Bostick v. State, 22 Tenn. 344, 345-346 (1842); Commonwealth v. Richards, 35 Mass. 434, 437 (1837); State v. Hill, 20 S. C. L. 607, 608-610 (App. 1835); Johnston v. State, 10 Tenn. 58, 59 (Err. & App. 1821). Nineteenth-century treatises confirm the rule. See 1 J. Bishop, Criminal Procedure § 1093, p. 689 (2d ed. 1872); T. Cooley, Constitutional Limitations 318. Ill This history supports two inferences about the meaning of the Sixth Amendment. A First, the principal evil at whichthe Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused. It was these practices that the Crown deployed in notorious treason cases like Raleigh’s; that the Marian statutes invited; that English law’s assertion of a right to confrontation was meant to prohibit; and that the founding-era rhetoric decried. The Sixth Amendment must be interpreted with this focus in mind. Accordingly, we once again reject the view that the Confrontation Clause applies of its own force only to in-court testimony, and that its application to out-of-court statements introduced at trial depends upon “the law of Evidence for the time being.” 3 Wigmore § 1397, at 101; accord, Dutton v. Evans, 400 U. S. 74, 94 (1970) (Harlan, J., concurring in result). Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices. Raleigh was, after all, perfectly free to confront those who read Cobham’s confession in court. This focus also suggests that not all hearsay implicates the Sixth Amendment’s core concerns. An off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses the Confrontation Clause targeted. On the other hand, ex parte examinations might sometimes be admissible under modern hearsay rules, but the Framers certainly would not have condoned them. The text of the Confrontation Clause reflects this focus. It applies to “witnesses” against the accused — in other words, those who “bear testimony.” 2 N. Webster, An American Dictionary of the English Language (1828). “Testimony,” in turn, is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Ibid. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement. Various formulations of this core class of “testimonial” statements exist: “ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used proseeuto-rially,” Brief for Petitioner 23; “extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,” White v. Illinois, 502 U. S. 346, 365 (1992) (Thomas, J., joined by Scalia, J., concurring in part and concurring in judgment); “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 3. These formulations all share a common nucleus and then define the Clause’s coverage at various levels of abstraction around it. Regardless of the precise articulation, some statements qualify under any definition — for example, ex parte testimony at a preliminary hearing. Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard. Police interrogations bear a striking resemblance to examinations by justices of the peace in England. The statements are not sworn testimony, but the absence of oath was not dispositive. Cobham’s examination was unsworn, see 1 Jardine, Criminal Trials, at 430, yet Raleigh’s trial has long been thought Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable 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. GERMANY v. HUDSPETH. No. 4717. United States Court of Appeals, Tenth Circuit. Jan. 2, 1954. Rehearing Denied Jan. 14, 1954. Elisha Scott, John J. Scott and Charles S. Scott, Topeka, Kan., for appellant. Paul E. Wilson, Asst. Atty. Gen., for the State of Kansas (Harold R. Fatzer, Atty. Gen., of the State of Kansas, and Donald E. Martin, County Atty., Kansas City, Kan., on the brief, for appellee. Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges. HUXMAN, Circuit Judge. This is an appeal from the judgment of the United States District Court for the District of Kansas in a habeas corpus proceeding, denying appellant, Nathaniel Germany, any relief from the death sentence imposed upon him by a District Judge of Wyandotte County, Kansas, upon the verdict of a jury in a criminal case in which he was found guilty of murder in the first degree. The facts concerning which there is no dispute may be stated as follows: Appellant was arrested by the city police at his home in Kansas City, Kansas, at about five p. m. on October 30, 1947, in connection with the investigation of the homicide of David- W. Gray. He was forthwith taken to police headquarters where he was booked and placed in confinement. Thereafter, commencing about eight thirty, he was interrogated by officers of the Kansas City, Kansas, Police Department. At this time he was not advised of his constitutional rights. This interrogation continued until about eleven or eleven thirty. During the latter part of the interrogation, petitioner’s uncle, Educate Germany, was present. Some time between eleven and twelve o’clock p. m. appellant orally admitted the homicide of Gray. In this admission, he stated where he had hidden the gun. Immediately upon such admission, Lt. Joseph Shick of the Kansas Police Department, who had been interrogating him, suggested that they go to the scene of the crime and recover the gun. Appellant voluntarily accompanied Shick and other officers to the place and searched for the gun approximately one and one-half hours but was unable to locate it and it was not found at that time. At- this time appellant and his Uncle, Educate Germany, were taken back to police headquarters where he was interrogated by the county attorney, commencing about three o’clock a., m. on October 31, 1947. He was advised by the county attorney of his constitutional rights; that he was not required to make a statement and that what he said could be used against him. The questions and answers were taken in shorthand by a stenographer in the county attorney’s office and subsequently reduced to writing. A written statement was appi’oved and signed by Germany at about nine a. m. on October 31, 1947, and was used and received in evidence in his criminal trial. The total period of appellant’s interrogation did not exceed six to six and one-half hours, which interrogation occurred at three separate and distinct intervals. During the time of such interrogation, appellant ■was given coffee and ice cream and at intervals was permitted to rest and smoke. No promises of leniency or other inducements were made to Germany prior to making his confession. On October 31, 1947, the county attorney of Wyandotte County, Kansas, filed a complaint, charging appellant with first degree murder, upon which a warrant was issued and he was arrested on November 21, 1947. Preliminary examination was had and he was bound over for trial in the District Court of Wyandotte County, Kansas. On November 26, 1947, the county attorney filed an information, charging appellant with murder in the first degree. Thereafter, on January 19, 1948, an application was made by petitioner Germany through his own selected counsel that a commission, as provided for by the laws of Kansas, consisting of three medical doctors and specialists irí'the field of psychiatry be appointed to examine the petitioner and report to the court its findings as to his mental condition, his capacity to comprehend his position and to make his defense in the case. On January 23, Í948, the commission reported in writing to the court its findings, finding that appellant was then insane and was not able to comprehend his position and to make his defense to the charge informed against him. Thereafter, on January 23, -1948, these written findings were approved and the report was confirmed by the District Court of Wyandotte County, Kansas, and in accordance with Section 62-1531 of the 1935 General Statutes of Kansas he was committed to the hospital for the dangerously insane at Larned, Kansas, for safekeeping and treatment. Petitioner was detained in the Larned State Hospital from about January 23, 1948, until about November 25, 1950, during which time he received appropriate treatment by the staff. Thereafter he was delivered to the custody of the Sheriff of Wyan-dotte County by the Hospital authorities, who again removed him to the county jail of Wyandotte County, Kansas. On January 3, 1951, petitioner filed a second application requesting the appointment of a second medical commission to re-examine him as to his mental condition, his capacity to comprehend his position and to make his defense to the charge lodged against him in court. This application was granted. Such a commission was appointed and filed its report in court, finding that appellant was sane, was able to comprehend his position and make his defense for the crime of murder. In due course of time and without undue delay, thereafter, he was tried, found guilty and sentenced to death. He appealed to the Supreme Court of Kansas, where his conviction was affirmed. His application for certiorari to the Supreme Court was denied. Thereafter he instituted this proceeding in the district court, aSsging that the judgment was void because of violations of his federally guaranteed constitutional rights. While as found by the trial court in this case the allegations of the petition were broad, in the main it presented two questions, first, that his written confession was obtained by threats and violence and its use was, therefore, in violation of rights guaranteed by the federal constitution and, second, that notwithstanding the first finding by the commission of experts, he was not insane at the time of his commitment to the State Hospital for Dangerous Insane; hence his detention there from January 23, 1948, to November 11, 1950, denied petitioner a speedy trial, in violation of the Sixth Amendment to the Federal Constitution and subjected him to cruel and unusual punishment. A third contention somewhat involved in the preceding is made that the District Court of Wyandotte County, Kansas, was without jurisdiction to try defendant because of Section 62-1431, General Statutes of 1949, which provides, “If any person under indictment or information for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense which shall be held after such indictment found or information filed, he shall be entitled to be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner, or shall be occasioned by the want of time to try the cause at such second term.” When this proceeding was set for trial before the district court, it was established that appellant had not exhausted his state remedies because he had failed to file a habeas corpus proceeding in the Supreme Court of the State of Kansas, raising these questions. The court below stayed the proceeding to give appellant the opportunity to exhaust such additional remedy by filing a state habeas corpus action. Such an action was filed directly in the Supreme Court of Kansas and on February 5, 1953, the application for the writ was denied. The opinion of the Supreme Court of Kansas in the habeas corpus case is quite brief and general in its statements and does not clearly reflect the issues presented or considered by the court. But no doubt the issues that were present here were likewise involved in that case because it was to permit appellant to exhaust his remedies in the state court that this case was stayed. The trial court found that at the inception of his questioning by police appellant was not informed of his constitutional rights but at no time did he request counsel and at no time was he precluded from having an attorney; that subsequent to the written confession his person was inspected by Negro citizens of Wyandotte County at their request and that such inspection revealed no evidence of violence and that appellant stated to the persons making such inspection that he had not been beaten or otherwise abused by the officers who had interrogated him; that at no time prior to making his oral confession or prior to the execution of his signed confession was appellant struck or threatened with bodily harm or otherwise abused by officers interrogating him; that no promises of leniency or other inducements were made to him prior to making his confession. The court specifically found that the confession was freely and voluntarily given and not induced by threats, force or promises. The trial court further found that appellant’s detention at the Larned State Hospital from January 23, 1948, to November 25, 1950, was for the benefit of petitioner; that during that time he was under the exclusive jurisdiction of the hospital authorities; that during said period of time the county attorney of Wyandotte County, Kansas, was advised of Germany’s condition and at the earliest feasible date Germany was returned to the District Court of Wyan-dotte County, Kansas, for trial; that the Kansas statutes in question were not unconstitutional and that their application to facts in the case in nowise violated the Constitution of the United States; that the Fourth, Fifth and Sixth Amendments to the Constitution of the United States were not limitations upon the prosecution of this petitioner in the District Court of Wyandotte County, Kansas, for violations of the laws of Kansas; that there was no violation of the due process clause of the Fourteenth Amendment of the Constitution; that the findings of the sanity commission of January 23, 1948, that appellant was not sane, that he was insane and incompetent of making a defense were conclusive and binding and could not be collaterally attacked in .this proceeding. The court also found that appellant was not denied his right to a speedy trial and that appellant was not subjected to cruel or unusual punishment. The determination of this appeal depends upon whether these findings are supported by the record. While six specifications of error are set out in the brief, in the argument they are grouped into three classifications, namely, (1) appellant was denied the right to a speedy trial, (2) he was subjected to cruel and inhuman punishment, and (3) his confession was involuntary. It is urged that these matters complained of violate the rights guaranteed by the Fifth, Sixth and Eighth Amendments to the United States Constitution. It is well established that the Fifth, Sixth and Eighth Amendments are limitations upon procedure in federal courts and do not govern trials in state courts. It does not follow, however, that because thereof criminal proceedings in state courts are not subject to scrutiny and review in proper proceedings in federal courts and may be of such a nature that they are in contravention of due process guaranteed by the Fourteenth Amendment. In Buchalter v. New York, 319 U.S. 427, 63 S.Ct. 1129, 1130, 87 L.Ed. 1492, the court said: “The due process clause of the Fourteenth Amendment requires that action by a state through any of its agencies must be consistent with the fundamental principles of liberty and justice which lie at the base of our civil and political institutions, which not infrequently are designated as the Taw of the land.’ Where this requirement has been disregarded in a criminal trial in a state court this court has not hesitated to exercise its jurisdiction to enforce the constitutional guarantee.” We, therefore, do have power and it is our duty to inquire whether the state proceedings violated these basic concepts of liberty and justice. It is contended that appellant was sane at all times and that his incarceration in the State Asylum for approximately two years and nine months not only constituted cruel and inhuman punishment but also violated the fundamental basic concept of a speedy trial inherent in American jurisprudence and, therefore, was a violation of due process. Appellant relies for support of his contention that he was sane at all times upon testimony of individual members of the medical staff at the Larned Hospital to the effect that in their opinion he never was insane. But we have an adjudication by the trial court based upon the findings and recommendations of a commission convened under statutory provisions for the purpose of determining his mental capacity and his ability to comprehend the effects of a criminal trial and to defend himself therein. After that finding and adjudication, the court was without power to proceed with the trial. It could only, as it did, commit appellant to the hospital for treatment and care and could proceed with the trial again only when it was established that he was restored to sanity and, therefore, able to defend himself. Individual statements or beliefs by different members of the medical staff that appellant was sane could not have the force and effect of setting aside a judicial determination of mental incapacity. Appellant’s mental capacity could thereafter be established only by an orderly proceeding according to law. Such a proceeding was had about June 6, 1950. A staff meeting was held on that day in which appellant’s mental capacity was the subject of inquiry. His case was reviewed and it was determined that he was not psychotic and that “he will, therefore, be returned to court to stand trial.” It was only after that, determination that the district court had power to proceed with the trial. Shortly thereafter he was returned and the trial was had without undue delay. While not decisive, we might say in passing that when he was returned for trial he demanded the appointment of a second commission to inquire into his sanity and went to trial only when this commission found him sane. Appellant’s detention in the Larned' Hospital was in no sense punishment for crime. He was there to receive care and treatment for physical ailments as well as for a disturbed mental condition. Therefore, in no event, can his confinement there be considered as punishment,, let alone cruel and inhuman punishment. Neither can we agree with appellant’s third contention that his confession was involuntary. The evidence is overwhelming in support of the trial court’s finding that he was not threatened, physically abused or worn down by long and uninterrupted questioning to-the point where his resistance was destroyed or overcome. The record is clear that the period of time prior to his. oral admission of the crime involved at most three and one-half hours. Nor is. there anything in the record that the-inquisition was conducted in a manner-frowned upon by the Supreme Court in its decisions. We cannot escape the-conclusion that his oral admission was made freely and voluntarily and, while-he was not advised of his constitutional rights during such questioning, when. the county attorney interviewed him for the purpose of preparing a written statement for his signature, he was fully advised as to his constitutional rights; that he need not answer and that anything that he said might be used against him. With this information, he consented to answer questions and, when his statement was reduced to writing and after being fully informed as to its contents, he signed it. Because of the gravity of the sentence imposed, we have given this case extra diligence and thorough consideration. We have reviewed the voluminous record and the many exhibits. The conclusion is inescapable that appellant was not denied due process in his state trial, as that term is defined in Buchalter v. New York, supra, and related cases. The decision appealed from is, therefore, affirmed. . See State v. Germany, 173 Kan. 214, 245 P.2d 981. . See 344 U.S. 845, 73 S.Ct. 62. . See, 174 Kan. 1, 252 P.2d 858. . Bolin v. Nebraska, 176 U.S. 83, 20 S. Ct. 287, 44 L.Ed. 382; Spies v. Illinois, 123 U.S. 131, 8 S.Ct. 22, 31 L.Ed. 80; Jack v. Kansas, 199 U.S. 372, 26 S.Ct. 73, 50 L.Ed. 234; McElvaine v. Brush, 142 U.S. 155, 12 S.Ct. 156, 35 L.Ed. 971. . See also Hebert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 71 L.Ed. 270; Dejonge v. Oregon, 299 U.S. 353, 57 S. Ct. 255, 81 L.Ed. 278; Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288. 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_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. WISCONSIN CENTRAL RAILWAY COMPANY, Debtor, et al., Appellants, v. Edgar F. ZELLE, as Trustee for Wisconsin Central Railway Company, Debtor, et al. No. 14744. United States Court of Appeals Eighth Circuit. Dec. 29, 1952. Abraham K. Weber, New York City, for appellants. William J. Quinn, St. Paul, Minn., E. E. Boyner, Minneapolis, Minn., Robert G. Gehrz, St. Paul, Minn., Bergmann Richards, Josiah E. Brill, Minneapolis, Minn., Irving J. Galpeer, New York City, Llenry Mitchell, Minneapolis, Minn., Leonard H. Murray, James E. Dorsey, Donald West, Minneapolis, Minn., W. G. Murphy, Paul D. Miller, New York City, Thomas P. Helmey, Minneapolis, Minn., Frank H. Detweiler, New York City, Frank Janes, Minneapolis, Minn., William A. W. Steward, Reese D. Alsop, New York City, George W. Morgan, Samuel H. Morgan, St. Paul, Minn., and A. Albert Minton and Cornelius W. Wickersham, New York City, for appellees. PER CURIAM. Appeal from District Court dismissed with cost, on motion of appellees. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_fedlaw	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. Isao YAMADA, Mitsu Yamada, Katsumi Yamada and Three Star Products, Ltd., Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 21049. United States Court of Appeals Ninth Circuit. Oct. 17, 1967. Robert W. B. Chang, Hoddick, Rothwell & Chang, Honolulu, Hawaii, for petitioners. Ramsey Clark, Atty. Gen., Washington, D. C., Herman Lum, U. S. Atty., Honolulu, Hawaii, Steve Suffin, Atty., Immigration & Naturalization Service, San Francisco, Cal., Cecil F. Poole, U. S. Atty., Charles Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for respondent. Before POPE, BROWNING, and DUNIWAY, Circuit Judges. BROWNING, Circuit Judge: Following a proceeding under section 242(b) of the Immigration and Nationality Act, 8 U.S.C. § 1252(b), a special inquiry officer entered an order finding Isao Yamada deportable under section 241(a) (2) of the Act, 8 U.S.C. § 1251(a) (2), but allowing voluntary departure. This order became administratively final upon dismissal of an appeal to the Board of Immigration Appeals on January 18, 1965. On March 26, 1965, Three Star Products, Ltd., filed a petition to classify Isao Yamada as a first-preference quota immigrant under section 203(a) (1) (A) of the Act, 8 U.S.C. § 1153(a) (1) (A). The petition was denied by the district director. This order became final upon dismissal of an appeal to the regional commissioner on March 21, 1966. On June 3, 1966, petitioners sought review of both orders under section 106(a) of the Act, 8 U.S.C. § 1105a(a), which provides for direct review in the Court of Appeals “of all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings under section 242(b) of this Act * * Since the deportation order became final more than six months before the filing of the petition for review, our power to review either order depends upon the reviewability under section 106(a) of the order denying Yamada’s first-preference quota status. A section 203(a) (1) (A) order is not, literally, a “final order of deportation.” Moreover, in this case the order was not “made * * * pursuant to administrative proceedings under section 242(b) of this Act”. We are nonetheless urged to exercise jurisdiction under section 106(a) on the ground that the order denying first-preference quota status to Yamada affected the execution or suspension of the deportation order, and was therefore “ancillary” to that order. It is argued that this construction of section 106(a) would further Congress’s strongly expressed purpose to meet the problem of dilatory court proceedings in deportation cases by “the elimination of the previous initial step in obtaining judicial review — a suit in the District Court — and the resulting restriction of review to Courts of Appeals, subject only to the certiorari jurisdiction of this Court.” Foti v. Immigration & Naturalization Service, 375 U.S. 217, 225, 84 S.Ct. 306, 312, 11 L.Ed.2d 281 (1963). The Court of Appeals for the Seventh Circuit has adopted this view, holding that section 106(a) confers ancillary jurisdiction to review orders denying section 203 petitions even where the petition is not filed and the order is not made in a section 242(b) proceeding, and the petition is filed and denied after the order of deportation has become final. Skiftos v. Immigration & Naturalization Service, 332 F.2d 203 (7th Cir. 1964); Roumeliotis v. Immigration & Naturalization Service, 304 F.2d 453 (7th Cir. 1962). Cf. Melone v. Immigration & Naturalization Service, 355 F.2d 533 (7th Cir. 1966); Talavera v. Pederson, 334 F.2d 52, 56 (6th Cir. 1964). The Courts of Appeals for the Second and Third Circuits have held to the contrary. Li Cheung v. Esperdy, 377 F.2d 819 (2d Cir. 1967); Tai Mui v. Esperdy, 371 F.2d 772, 776-78 (2d Cir. 1966); Cheng Fan Kwok v. Immigration & Naturalization Service, 381 F.2d 542 (3d Cir. 1967) (decided August 4, 1967). See also Kirsten-Sanders Dental Laboratory, Inc. v. Sahli, 348 F.2d 442 (6th Cir. 1965). If we were satisfied that Congress intended the result reached by the Court of Appeals for the Seventh Circuit, we would agree that the language of section 106(a) does not necessarily bar it. The grant of jurisdiction to review final deportation orders made in section 242(b) proceedings could reasonably be taken to imply power to review other orders directly affecting the execution or suspension of the orders specifically mentioned. However, there is reason to believe that the express limitation of section 106(a) review to orders made in the course of the section 242(b) deportation proceedings was deliberate. In Foti the Supreme Court repeatedly emphasized that the order which the Court there held reviewable under section 106(a) — an order denying suspension of deportation- — was made in the course of a section 242(b) proceeding (375 U.S. at 221, 222-223, 224, 226, 228, 229-30, 231, 232, 84 S.Ct. 306), and the Court assumed that if the order had not been made in a section 242(b) proceeding it would not have been subject to section 106(a) review. 375 U.S. at 229, 230 n. 16, 84 S.Ct. 306. The colloquy on the floor of the House of Representatives to which the Supreme Court referred in Foti (375 U.S. at 223-224, 84 S.Ct. 306) indicates that Congress understood that only decisions made in section 242(b) proceedings came within section 106(a). Representative Moore, co-sponsor of the bill under discussion, thought (mistakenly) that decisions regarding discretionary relief were not made in section 242(b) proceedings. He indicated that therefore such decisions would not be subject to section 106(a). He stated that the problems thus created could be met by “a change in the present administrative practice of considering the issues of deportability and suspension of deportation piecemeal. There is no reason why the Immigration Service could not change its regulations to permit contemporaneous court consideration of deportability and administrative application for relief.” 105 Cong.Rec. 12728. In commenting upon the matter shortly thereafter, Representative Walter did not dispute Representative Moore’s assumption that only orders made in deportation proceedings came within the proposed statute. Representative Walter recognized, however, that applications for discretionary relief were in fact considered in deportation proceedings under the existing regulations, and stated that section 106(a) “applies to the final administrative adjudication of the applications for suspension of deportation just as it would apply to any other issue brought up in deportation proceedings.” 105 Cong.Rec. 12728. (Emphasis ádded.) A reason for confining section 106(a) review to matters determined in the deportation proceeding itself is suggested in Foti. The Court pointed out that the administrative regulations which provided for the determination of petitions for suspension of deportation as an integral part of a section 242(b) proceeding also provided that such “discretionary relief, if sought, must be requested prior to or during the deportation hearing.” 375 U. S. at 223, 84 S.Ct. at 310. (Emphasis added.) This administrative requirement, known to Congress, served to prevent prolongation of the administrative process by undue delay in seeking discretionary relief from deportation on any of the various possible grounds. Petitions to reopen, denial of which the Court held reviewable under section 104 (a) in Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964), are also protected from abuse by the regulations governing section 242(b) proceedings. Under these regulations a motion to reopen cannot be granted unless the evidence sought to be offered was not available and could not have been discovered or presented at the hearing; and such a motion cannot be granted to allow an application for any form of relief obtainable in a section 242(b) proceeding “if respondent’s right to make such application was fully explained to him by the special inquiry officer and he was afforded an opportunity to do so at the hearing, unless circumstances have arisen thereafter on the basis of which the request is being made.” 8 C.F.R. § 242.22. Congress sought to eliminate the delay and wasteful duplication involved in judicial review of the same order by both a district court and a court of appeals. But Congress was also concerned with the delay which resulted from multiple court proceedings. The attention of the House was called to an instance in which an alien had “resorted to the courts, appealing from orders in the neighborhood of 35 times.” 105 Cong.Rec. 12725. See also H.R. No. 1086, 2 U.S.Code Cong. & Admin.News, 87th Cong., 1st Sess. 1961, 2967-68. The statement that the overall purpose of the new statute was “to create a single, separate, statutory form of judicial review of administrative orders for the deportation and exclusion of aliens * (H.R. No. 1086, supra, 2966 (emphasis added) is to be read in the light of this concern. It was to meet this problem, also, that subsection .(a) of section 106, providing for review of the final order in a deportation proceeding, was supplemented by provisions in subsection (c) requiring exhaustion of administrative remedies and forbidding repeated judicial review of an order on grounds which could have been effectively raised in the initial judicial review proceeding. It seems fair to assume from the statutory language, legislative history, and administrative context that Congress visualized a single administrative proceeding in which all questions relating to an alien’s deportation would be raised and resolved, followed by a single petition in a court of appeals for judicial review both of the ultimate question of deportation and of all of the subsidiary questions upon which it might depend. It is true that this scheme depends upon the existence of administrative regulations which include within section 242 (b) proceedings all issues which might affect deportation. Congress made no effort to catalogue such issues. The administrative rule-making process is better suited to that task. Representative Moore’s comments reflected an expectation that administrative rule-making would be employed for this purpose, and the Supreme Court approvingly noted that this had in fact occurred after the enactment of section 106(a). See 375 U.S. at 230 n. 16. The rule-making process provides a ready means to close the gap which this and similar cases have disclosed. Tai Mui v. Esperdy, 371 F.2d 772, 778 (2d Cir. 1966). The same result could not be accomplished simply by expanding the coverage of section 106(a), for that might well lead either to successive review proceedings in the Court of Appeals, with successive automatic stays of deportation (8 U. S.C. § 1105a(a) (3)), or, as this case demonstrates, to judicial review long delayed by consecutive consideration of possible grounds for relief from deportation following the conclusion of the deportation hearing itself. The petition for review is dismissed for want of jurisdiction. . Petitioner Mitsu Yamada is Isao Yamada’s wife, Katsumi is his daughter, and Three Star Products, Ltd., is his employer. The status of Mitsu and Katsumi depends upon that of Isao. . The statute was amended Oct. 3, 1965, P.L. 89-236, § 3, 79 Stat. 912. The comparable provisions are now found in 8 U.S.C. § 1153(a) (3) and (6). . If the § 203(a) (1) (A) order is reviewable in this court, our decision in Bregman v. Immigration & Naturalization Service, 351 F.2d 401, 402 (9th Cir. 1965), permits review of the deportation order as well because the § 203(a) (1) (A) application was filed with the district director less than six months after the deportation order became final and the petition for review was filed in this court less than six months after the order denying first-preference quota status became final. But see Chul Hi Kim v. United States, 357 F.2d 904, 906-907 (7th Cir. 1966). . Compare Hitai v. Immigration & Naturalization Service, 343 F.2d 466 (2d Cir. 1965), in -which an adjustment of Status from that of “bona fide nonimmigrant” to that of “alien lawfully admitted for permanent ¡residence” under § 245(a) of the Act was sought in a § 242(b) proceeding. The application was denied on the ground that petitioner was not “eligible to receive an immigrant visa” as required by § 245(a). The denial was reviewed by the Court of Appeals under § 106(a). . See also Wing Wa Lee v. Immigration & Naturalization Service, 375 F.2d 723, 724 (9th Cir. 1967); Tai Mui v. Esperdy, 371 F.2d 772, 778 (2d Cir. 1966); Bregman v. Immigration & Naturalization Service, 351 F.2d 401, 402 (9th Cir. 1965). A motion to reopen is considered by a special inquiry officer and is treated by the regulations as part of the deportation proceeding (8 C.F.R. § 242.22). See Tai Mui v. Esperdy, 371 F.2d 772, 776 (2d Cir. 1966). In its brief submitted to the Supreme Court in Qiova, the government stated (pp. 17-18): The denial of a motion to reopen is made by the same officer who entered the final order of deportation — or, if the order was appealed, as here, to the Board of Immigration Appeals, then by that body, which, by its decision dismissing the appeal, in effect endorsed the deportation order and assumed responsibility for it — and is directly linked with the original proceedings out of which the deportation order arose. For these reasons it would be artificially literal, in the' government’s view, to attempt to distinguish, for purposes of Section 106(a), between the final order proper and the denial of a motion to reopen the proceedings. In other words, an order declining to reopen the proceedings is so intimately and immediately associated with the principal order (the final order of deportation) that it would be pointless to require that the subsidiary directive be treated otherwise than as an adjunct of the principal order — comparable to the denial of a motion for rehearing or reconsideration. (Footnotes omitted.) . Current regulations provide that in a § 242(b) proceeding the respondent may apply to the special inquiry officer for suspension of deportation under ■§ 244 (a) of the Act, for adjustment of status under § 245 of the Act, or for creation of a record of lawful admission for permanent residence under § 249 of the Act (8 C.F.R. § 242.17 (a)); for voluntary departure in lieu of deportation pursuant to § 244(e) of the Act (8 C.F.R. § 242.17 (b) ); or for temporary withholding of deportation pursuant to § 243(a) of the Act (8 C.F.R. § 242.17(c)). . Orders made in advance of the deportation proceedings which determine the alien’s deportability as a matter of substance may stand on a different footing. Although it has been held that such orders are not independently reviewable under § 106(a), if no deportation order is in fact entered [Martin v. Gardner, 378 F.2d 352 (7th Cir. 1967); Mendez v. Major, 340 F.2d 128, 131 (8th Cir. 1965); cf. Samala v. Immigration & Naturalization Service, 336 F.2d 7, 12-13 (5th Cir. 1964)], familiar general principles would support review of all preliminary and subsidiary determinations in connection with review of a deportation order which rested upon them. 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_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. LAND, CHAIRMAN, UNITED STATES MARITIME COMMISSION, et al. v. DOLLAR et al. No. 207. Argued February 11, 12, 1947. Decided April 7, 1947. Paul A. Sweeney argued the cause for petitioners. With him on the brief were Acting Solicitor General Washington, Assistant Attorney General Sonnett, Melvin Richter, Ellis Lyons and Paul D. Page. Gregory A. Harrison argued the cause for respondents. With him on the brief were Moses Lasky, Clinton M. Hester and M. M. Kearney. Mb. Justice Douglas delivered the opinion of the Court. Petitioners are present and former members of the United States Maritime Commission. Respondents are stockholders of Dollar Steamship Lines, Inc., Ltd. (Dollar of Delaware), whose corporate name was changed to American President Lines, Ltd., subsequent to the execution in 1938 of a contract out of which the present litigation arises. By 1937 Dollar of Delaware was in difficult financial straits. The problems confronting it and the various steps taken to remedy the situation need not be recapitulated here. It is sufficient for purposes of the various questions presented by this case to say that the Commission and respondents entered into a contract in 1938 by which respondents delivered their common stock in Dollar of Delaware, endorsed in blank, to the Commission; and the Commission released some of respondents from certain obligations and agreed to grant Dollar of Delaware an operating subsidy and to make a loan to it and to obtain for it another loan from the Reconstruction Finance Corporation. The subsidy was granted and the loans were made. By 1943 American President Lines, Ltd., had fully paid all indebtedness due the United States. Respondents thereupon demanded return of their shares of stock from the then members of the Commission, claiming that the shares had only been pledged as collateral for a debt which had been paid. The members of the Commission refused to surrender the shares, claiming that they had not been pledged under the 1938 contract but transferred outright. Acting on that theory the Commission had indeed offered the shares for sale and had under consideration substantial offers to purchase them. Thereupon respondents instituted the present suit in the District Court for the District of Columbia, see 11 D. C. Code, §§ 301, 305, 306, claiming that petitioners were unlawfully in possession of respondents’ stock and illegally withholding it. The prayer was that petitioners be restrained from selling the shares and be directed to return them to respondents. Respondents moved for a preliminary injunction. Petitioners submitted affidavits opposing the motion. After a hearing, the District Court on its own motion dismissed the complaint with prejudice, holding that .the suit was against the United States. The Court of Appeals reversed. 81 U. S. App. D. C. 28, 154 F. 2d 307. The case is here on a petition for a writ of certiorari which we granted because of the importance of the question presented. First. The facts asserted in the affidavits support the view that the 1938 contract called for the outright transfer of the shares, not for their pledge. But we put the affidavits to one side for two reasons. In the first place, the function of the affidavits was to oppose the motion for a preliminary injunction. The case had not been submitted for decision on the merits. Issue, indeed, had not yet been joined. And the ruling of the District Court, as we read it, was based on the premise that since the Commission had the right to make the contract, the suit was against the United States. Hence we do not think the District Court in fact relied on the affidavits in dismissing the complaint. In the second place, although as a general rule the District Court would have authority to consider questions of jurisdiction on the basis of affidavits as well as the pleadings, this is the type of case where the question of jurisdiction is dependent on decision of the merits. The allegations of the complaint, if proved, would establish that petitioners are unlawfully withholding respondents’ property under the claim that it belongs to the United States. That conclusion would follow if either of respondents’ contentions were established: (1) that the Commission had no authority to purchase the shares or acquire them outright; or (2) that, even though such authority existed, the 1938 contract resulted not in an outright transfer but in a pledge of the shares. If respondents are right in these contentions, their claim rests on their right under general law to recover possession of specific property wrongfully withheld. At common law their suit as pledgors to recover the pledged property on payment of the debt would sound in tort. If viewed in that posture, the case is very close to United States v. Lee, 106 U. S. 196. That was an action in ejectment to recover possession of a tract of land. The defendants were military officers who, acting under orders of the President, took possession of the land and converted one part into a fort and another into a cemetery. For the lawfulness of their possession they relied on a tax sale of the property to the United States. On the trial it was held that the claim of the plaintiffs to the land was valid and that the defendants were wrongfully in possession. The Court affirmed the judgment over the objection that the suit was one against the United States. It held that the assertion by officers of the Government of their authority to act did not foreclose judicial inquiry into the lawfulness of their action; that a determination of whether their “authority is rightfully assumed is the exercise of jurisdiction, and must lead to the decision of the merits of the question.” P. 219. It further held that while such an adjudication is not res judicata against the United States because it cannot be made a party to the suit, the courts have jurisdiction to resolve the controversy between those who claim possession. And it concluded that an agent or officer of the United States who acts beyond his authority is answerable for his actions. And see Philadelphia Co. v. Stimson, 223 U. S. 605, 619-620; Sloan Shipyards Corp. v. United States Fleet Corp., 258 U. S. 549, 567. Where the right to possession or enjoyment of property under general law is in issue, and the defendants claim as officers or agents' of the sovereign, the rule of United States v. Lee, supra, has been repeatedly approved. Cunningham v. Macon & Brunswick R. Co., 109 U. S. 446, 452; Tindal v. Wesley, 167 U. S. 204; Smith v. Reeves, 178 U. S. 436, 439; Scranton v. Wheeler, 179 U. S. 141, 152-153; Philadelphia Co. v. Stimson, supra, pp. 619-620; Goltra v. Weeks, 271 U. S. 536, 545; Ickes v. Fox, 300 U. S. 82, 96; Great Northern Life Ins. Co. v. Read, 322 U. S. 47, 50-51. That rule is applicable here although we assume that record title to the shares is in the Commission. In United States v. Lee, supra, record title of the land was in the United States and its officers were in possession. The force of the decree in that case was to grant possession to the private claimant. Though the judgment was not res judicata against the United States, p. 222, it settled as between the parties the controversy over possession. Precisely the same will be true here, if we assume the allegations of the complaint are proved. For if we view the case in its posture before the District Court, petitioners, being members of the Commission, were in position to restore possession of the shares which they unlawfully held. We do not trace the principle of United States v. Lee, supra, in its various ramifications. Cases on which petitioners rely are distinguishable. This is not an indirect attempt to collect a debt from the United States by preventing action of government officials which would alter or terminate the contractual obligation of the United States to pay money. See Wells v. Roper, 246 U. S. 335; Mine Safety Co. v. Forrestal, 326 U. S. 371. It is not an attempt to get specific performance of a contract to deliver property of the United States. Goldberg v. Daniels, 231 U. S. 218. It is not a case where the sovereign admittedly has title to property and is sued by those who seek to compel a conveyance or to enjoin disposition of the property, the adverse claims being based on an allegedly superior equity or on rights arising under Acts of Congress. Cunningham v. Macon & Brunswick R. Co., supra; Minnesota v. Hitchcock, 185 U. S. 373; Oregon v. Hitchcock, 202 U. S. 60; Naganab v. Hitchcock, 202 U. S. 473; Louisiana v. Garfield, 211 U. S. 70; Morrison v. Work, 266 U. S. 481. And see Stanley v. Schwalby, 162 U. S. 255, 271-272. We say the foregoing cases are distinguishable from the present one, though as a matter of logic it is not easy to reconcile all of them. But the rule is based on practical considerations reflected in the policy which forbids suits against the sovereign without its consent. The “essential nature and effect of the proceeding” may be such as to make plain that the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration. Ex parte New York, 256 U. S. 490, 500, 502. If so, the suit is one against the sovereign. Mine Safety Co. v. Forrestal, supra, p. 374. But public officials may become tort-feasors by exceeding the limits of their authority. And where they unlawfully seize or hold a citizen’s realty or chattels, recoverable by appropriate action at law or in equity, he is not relegated to the Court of Claims to recover a money judgment. The dominant interest of the sovereign is then on the side of the victim who may bring his possessory action to reclaim that which is wrongfully withheld. It is in the latter category that the pleadings have cast this case. That is to say, if the allegations of the petition are true, the shares of stock never were property of the United States and are being wrongfully withheld by petitioners who acted in excess of their authority as public officers. If ownership of the shares is in the United States, suit to recover them would of course be a suit against the United States. But if it is decided on the merits either that the contract was illegal or that respondents are pledgors, they are entitled to possession of the shares as against petitioners, though, as we have said, the judgment would not be res judicata as against the United States. See United States v. Lee, supra, p. 222. We intimate no opinion on the merits of the controversy. We only hold that the District Court has jurisdiction to determine its jurisdiction by proceeding to a decision on the merits. Second. Motions were made by the Solicitor General to substitute as defendants the new members of the Commission for those who are no longer members. We added the new members as petitioners-defendants, and dismissed as to a deceased member, but reserved decision as to the other former members. A majority of those joining in this opinion are of the view that it is more appropriate that both motions be considered by the District Court. The questions have not been briefed or argued here. Moreover, the present record may not present all the facts necessary for disposition of the motions. Accordingly, we vacate the order of substitution which we entered, so that the District Court may, on remand of the cause, pass on the motions unembarrassed by any action here. The judgment of the Court of Appeals is Affirmed. Mr. Justice Black took no part in the consideration or decision of this case. The details of the difficulties, and the steps taken to remedy them are contained in two reports to Congress by the Commission: (1) Financial Readjustments in Dollar Steamship Lines, Inc., Ltd., dated February 17, 1938; (2) Reorganization of American President Lines, Ltd., dated April 10, 1939. Although the judgment below was not a final one, we considered it appropriate for review because it involved an issue “fundamental to the further conduct of the case.” United States v. General Motors Corp., 323 U. S. 373, 377. The District Court said: "... I think . . . that the Commission had the legal right; and therefore I think it is inescapable that this is a suit against the United States and therefore that the complaint must be dismissed . . . In passing on a motion to dismiss because the complaint fails to state a cause of action, the facts set forth in the complaint are assumed to be true and affidavits and other evidence produced on application for a preliminary injunction may not be considered. Polk Co. v. Glover, 305 U. S. 5, 9; Gibbs v. Buck, 307 U. S. 66, 76. But when a question of the District Court’s jurisdiction is raised, either by a party or by the court on its own motion, Judicial Code § 37, 28 U. S. C. § 80, Fed. R. Civ. P. 12 (b), the court may inquire, by affidavits or otherwise, into the facts as they exist. Wetmore v. Rymer, 169 U. S. 115, 120-121; McNutt v. General Motors Corp., 298 U. S. 178, 184 et seq.; KVOS, Inc. v. Associated Press, 299 U. S. 269, 278. As stated in Gibbs v. Buck, supra, pp. 71-72, “As there is no statutory direction for procedure upon an issue of jurisdiction, the mode of its determination is left to the trial court.” Restatement of the Law of Torts, §§ 223, 237; 3 Street, Foundations of Legal Liability (1906), p. 160. See Fed. R. Civ. P. 25 (d); Allen v. Regents, 304 U. S. 439, 444-445. 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_erron	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 civil law issues involving government actors. The issue is: "Did the court's use of the clearly erroneous standard support the government?" That is, a somewhat narrower standard than substantial evidence, or ignoring usual agency standards. 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". Johnnie LUCAS and Chester Sturgis, Plaintiffs-Appellees, v. PEOPLE OF the STATE OF MICHIGAN, Respondents-Appellants. No. 19198. United States Court of Appeals Sixth Circuit. Jan. 5, 1970. Stewart H. Freeman, Lansing, Mich., for appellants; Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James J. Wood, Asst. Atty. Gen., Lansing, Mich., on brief. Samuel J. Posner, Detroit, Mich., for appellees. Before PHILLIPS, Chief Judge, and CELEBREZZE and McCREE, Circuit Judges. PHILLIPS, Chief Judge. This is a habeas corpus case presenting the primary issue of whether there is a conflict between the Fourth Amendment to the Constitution of the United States, as construed in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and the last sentence of Article 1, § 11 of the Michigan Constitution of 1963, which is as follows: “Searches and seizures. Sec. 11. The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state.” The State of Michigan appeals from an order of the District Court granting a writ of habeas corpus. The Recorder’s Court of the City of Detroit found appellees guilty of carrying a pistol in a motor vehicle without a license and on November 1, 1967, sentenced them to state prison for a term of from two to five years. A claim of appeal was filed with the Michigan Court of Appeals, but no further action has been taken to perfect the appeal. The Recorder’s Court, sitting without a jury, found that the search and seizure of certain weapons in the automobile in which appellees were traveling was unreasonable and unlawful, but over the objection of appellees admitted the weapons in evidence by authority of the above quoted provision of the Michigan constitution. A motion to suppress the evidence was denied by the Recorder’s Court. In admitting the weapons into evidence, the Court said: “ * * * the Court specifically finds that the search and seizure in this case was unreasonable and unlawful. However, the Court will receive in evidence Exhibits 1, 2 and 3 under the provisions of Article 1, Section 11 of the Michigan Constitution.” A petition for writ of habeas corpus was filed with the United States District Court on June 25, 1968. In their petition appellees urged that the trial court improperly admitted evidence which had been discovered through an illegal search and seizure. The State moved to dismiss the petition on the ground that appellees had failed to exhaust their State court remedies. The District Court found that appellees had no effective remedy available in the State courts and denied the motion to dismiss. After an evidentiary hearing, District Judge Damon J. Keith found that the search was unreasonable and concluded that evidence discovered thereby was not admissible. Appellees were ordered released from custody unless a new trial is granted within 30 days. The State Attorney General filed a timely notice of appeal on behalf of the State. We affirm. The issues raised by this appeal are: (1) Whether appellees have exhausted their State court remedies, or, if not, are they excused from doing so; and (2) whether Article 1, § 11 of the 1963 Michigan Constitution (Article 2, § 10 of the 1908 Constitution) is in conflict with the Fourth Amendment as interpreted by Mapp v. Ohio. 1) Exhaustion of Remedies It is axiomatic that a petition for writ of habeas corpus by a person in State custody will not be granted unless State court remedies have been exhausted. 28 U.S.C. § 2254(b), (c). The mere anticipation of an adverse decision will not excuse a failure to exhaust, nor will the lack of probability of success. See Boyd v. State of Oklahoma, 375 F.2d 481 (10th Cir.); Oliver v. State of California, 364 F.2d 311 (9th Cir.); United States ex rel. Touhy v. Ragen, 224 F.2d 611 (7th Cir.). However, the exhaustion requirement is not absolute. See Coleman v. Maxwell, 351 F.2d 285 (6th Cir.); Saulsbury v. Green, 347 F.2d 828 (6th Cir.), cert. denied, 382 U.S. 882, 86 S.Ct. 173, 15 L.Ed.2d 122. Where there are circumstances rendering the State corrective process ineffective to protect a prisoner’s rights, habeas corpus relief may be granted without requiring a futile exhaustion of remedies. Duke v. Wingo, 386 F.2d 304 (6th Cir.). Such circumstances were found to exist where the state court had ruled contrary to the petitioner’s contentions, when there was no indication that the court was prepared to depart from its former course of decisions. Coleman v. Maxwell, supra, Rowe v. Peyton, 383 F.2d 709, 711 (4th Cir., sitting en banc), aff’d, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 420; Evans v. Cunningham, 335 F.2d 491 (4th Cir.). This court held in Coley v. Alvis, 381 F.2d 870 (6th Cir.), that where the State’s highest court has construed its statute governing post-conviction relief so as to deny a prisoner an opportunity to raise constitutional issues, he may petition for habeas corpus without exhaustion of state remedies. There we said: “Because of the narrow limits placed on the Ohio post-conviction statute, there is no longer any effective State remedy open to [the prisoner] to exhaust. [The State Court’s] decision has rendered such process ineffective to protect the rights of [the prisoner.]” 381 F.2d at 872-73. In the case at bar the procedure itself has not been restricted, i. e. the channels for relief in the State courts of Michigan are open. We are convinced, however, that the portal to constitutional adjudication and protection in the State courts is closed securely. In a recent decision of the United States District Court for the Eastern District of Michigan, Caver v. Kropp, Warden, 306 F.Supp. 1329 (Decided November 10, 1969), District Judge Theodore Levin granted a writ of habeas corpus under facts somewhat similar to those involved on the present appeal. Judge Levin summarized the holdings of the Supreme Court of Michigan and the Michigan Court of Appeals in this area as follows: “The Michigan Supreme Court has consistently refrained from deciding whether Mapp supersedes the exception in the Michigan Court for certain seizures outside the curtilage of a dwelling. See People v. Blessing, 378 Mich. 51, 142 N.W.2d 709 (1966), cert. denied 387 U.S. 914, 87 S.Ct. 1692, 18 L.Ed.2d 637; In re Winkle, 372 Mich. 292, 125 N.W.2d 875 (1964), cert. denied 379 U.S. 645, 85 S.Ct. 611, 13 L.Ed.2d 551, rehearing denied 380 U.S. 967, 85 S.Ct. 1102, 14 L.Ed.2d 157; People v. Harper, 365 Mich. 494, 113 N.W.2d 808 (1962). “The Michigan Court of Appeals has in several cases held or implied that the exception is valid. See People v. Monroe, 3 Mich.App. 165, 141 N.W. 2d 679 (1966); People v. Vanlanding-ham, 6 Mich.App. 128, 148 N.W.2d 523 (1967); People v. Dillon, 7 Mich. App. 256, 151 N.W.2d 365 (1967); People v. Goliday, 18 Mich.App. 336, 171 N.W.2d 25 (1969).” See also concurring opinion of Levin, J., in People v. Barker, 18 Mich.App. 544, 549, 171 N.W.2d 574; and Winkle v. Kropp, 279 F.S.upp. 532, 539, reversed on other grounds, 403 F.2d 661 (6th Cir.), cert. denied, 394 U.S. 1003, 89 S.Ct. 1600, 22 L.Ed.2d 781, rehearing denied 395 U.S. 941, 89 S.Ct. 2002, 23 L.Ed.2d 459. In People v. Blessing, 378 Mich. 51, 142 N.W.2d 709, cert. denied, 387 U.S. 914, 87 S.Ct. 1692, 18 L.Ed.2d 637, one of the points argued, stated in the opinion of Mr. Justice Kelly, was: “ * * * that article 1, section 11, of the 1963 Michigan Constitution (article 2, § 10, 1908 Constitution), violated the Fourteenth Amendment to the United States Constitution as interpreted by the case of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081, 84 A.L.R.2d 933.” 378 Mich. at 56, 142 N.W.2d at 710. The dissenting opinion of Mr. Justice Souris pointed out that under Mapp v. Ohio, supra, the State courts must exclude from evidence items seized in violation of the Fourth Amendment prohibition. After quoting the Supremacy Clause, the dissenting opinion proceeded with this comment: “The Fourth Amendment does not distinguish between items which are protected from unreasonable search and seizure and those which are not, and the State of Michigan has no unilateral power to modify that amendment. Hence, the provision of the 1908 Constitution and its counterpart provision in the 1963 Constitution, which in effect permit the admission into evidence over defendant’s objection of certain items which are the fruits of unreasonable search and seizure, are invalid.” 378 Mich, at 76, 142 N.W.2d at 718. In People v. Goliday, 18 Mich.App. 336, 171 N.W.2d 25, the Michigan Court of Appeals said: “This Court has already ruled that the provision of the Michigan Constitution of 1963 does not conflict with Amendment 4 of the United States Constitution. People v. Vanlanding-ham (1967), 6 Mich.App. 128, 148 N.W.2d 523.” 18 Mich.App. at 338, 171 N.W.2d at 26. We see no reason to believe that the Michigan Appellate Courts are prepared to depart from the import and effect of Blessing, Goliday, and other decisions cited above. It seems obvious that to require the appellees in the present case to exhaust their remedies in the State courts would be an exercise in futility. It appears more than probable that if this Court should relegate appellees to exhaustion of their State remedies, the appellate courts of Michigan would adhere to their previous interpretation of the State Constitution and appellees then would return to the federal courts for relief. Such a judicial runaround is not mandated by the statute (n. 1) providing for exhaustion of State remedies. We agree with the District Court that under the circumstances of the case no effective State remedy exists. We proceed to dispose of the appeal on its merits. 2) Search and Seizure Under Mapp v. Ohio the Fourth Amendment is applicable in proceedings in State courts. Evidence obtained through an unreasonable search and seizure is inadmissible in State criminal prosecutions. Both the Recorder’s Court of Detroit and the District Court in the present case, after separate evidentiary hearings, concluded that the search and seizure of weapons from appellees was unreasonable and unlawful. We find that this holding of the District Court is not clearly erroneous, Rule 52 (a), Fed.R.Civ.P., but to the contrary is supported by substantial evidence. We hold that the last sentence of Article 1, § 11 of the Michigan Constitution of 1963 is in conflict with the Fourth Amendment to the Constitution of the United States as applied to the states in Mapp v. Ohio. “When there is an unavoidable conflict between the Federal and a State Constitution, the Supremacy Clause of course controls.” Reynolds v. Sims, 377 U.S. 533, 584, 84 S.Ct. 1362, 1393, 12 L.Ed.2d 506; Sudekum v. Hayes, 414 F.2d 41, 42 (6th Cir.). Affirmed. . 28 U.S.C. § 2254(b), (c) provides: “(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. “(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.” Question: Did the court's use of the clearly erroneous standard support the government? That is, a somewhat narrower standard than substantial evidence, or ignoring usual agency standards. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_appel1_1_4	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". Your task is to determine what subcategory of business best describes this litigant. Robert L. JOHNSON, Jr., Leroy Sloan, Willie R. Jackson, Ernest H. McManus, and Booker T. Alexander, Jr., Appellees, and William G. Coffey, Jr., Intervenor, v. RYDER TRUCK LINES, INC., a corporation, Appellant, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, an unincorporated labor organization; and Local 71, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, an unincorporated labor organization, Defendants. No. 76-1293. United States Court of Appeals, Fourth Circuit. Argued Feb. 7, 1978. Decided May 2, 1978. Peter Reed Corbin, Jacksonville, Fla. (J. P. Jones, Jones & Corbin, Jacksonville, Fla., E. Osborne Ayscue, Jr., Helms, Mulliss & Johnston, Charlotte, N.C., on brief), for appellant. Roland P. Wilder, Jr., Washington, D. C. (Robert M. Baptiste, Washington, D. C., on brief), for International Union. Francis M. Fletcher, Jr., Charlotte, N.C., on brief for Teamsters Local Union No. 71. J. LeVonne Chambers, Charlotte, N.C. (Jonathan Wallas and Louis L. Lesesne, Jr., Chambers, Stein, Ferguson & Becton, Charlotte, N.C., Jack Greenberg, New York City, and Barry Goldstein, Brooklyn, N.Y., on brief), for appellees. Before WINTER, BUTZNER, and RUSSELL, Circuit Judges. BUTZNER, Circuit Judge: After affirming the district court’s grant of injunctive relief, retroactive seniority, and back pay in this class action brought under Title VII of the Civil Rights Act of 1964 [42 U.S.C. § 2000e et seg.] and § 16 of the Civil Rights Act of 1870 [42 U.S.C. § 1981], we granted rehearing to consider the effect of International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). The principal question to emerge on rehearing is whether some employees can obtain relief under § 1981 that is not available to them under Title VII. We hold that in this instance they cannot, and we modify our initial opinion and remand the case for further proceedings. I Incumbent black employees who were discriminated against when hired before the effective date of Title VII in 1965 were subsequently prevented by the company’s bargaining agreement from obtaining jobs as line drivers while maintaining their full company seniority. The district court’s order provided relief to employees who suffered in this way from the present effects of pre-Act discrimination. Rehearing disclosed that the relevant provisions of the bargaining contract involved in this case and the one considered in Teamsters are virtually identical. Both contracts provided that employees could not carry their full company seniority for all purposes with them when they transferred to line driver positions. In Teamsters the Court considered the effects of § 703(h) of the 1964 Act [42 U.S.C. § 2000e-2(h)] on the contract’s seniority system. It said: [W]e hold that an otherwise neutral, legitimate seniority system does not become unlawful under Title VII simply because it may perpetuate pre-Act discrimination. Congress did not intend to make it illegal for employees with vested seniority rights to continue to exercise those rights, even at the expense of pre-Act discriminatees. 431 U.S. at 353-54, 97 S.Ct. at 1864. Therefore, Teamsters invalidates our af-firmance of the district court’s conclusion that the company’s seniority system violated Title VII. The employees assert, however, that § 703(h) is expressly limited to Title VII and that it should not be construed as a restriction on § 1981. They therefore insist that the seniority system violates their rights secured by § 1981 and that they are entitled to relief under that statute. It is this issue that we now address. II Title 42 U.S.C. § 1981, provides: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. The Civil Rights Act of 1964 did not repeal by implication any part of § 1981. This is firmly established by both the legislative history of the 1964 Act and its 1972 amendments. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 457-61, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); cf. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 416 n.20, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). Section 1981 affords a federal remedy against racial discrimination in private employment that is “separate, distinct, and independent” from the remedies available under Title VII of the 1964 Act. Johnson v. Railway Express Agency, Inc., supra, 421 U.S. at 461, 95 S.Ct. 1716. Thus an employee “who establishes a cause of action under § 1981 is entitled to both equitable and legal relief, including compensatory and, under certain circumstances, punitive damages.” 421 U.S. at 460, 95 S.Ct. at 1770. This case therefore presents the question of whether the incumbent employees who were discriminatorily hired before 1965 when Title VII became effective have a cause of action under § 1981 because the bargaining contract’s restriction of carryover seniority perpetuates the pre-1965 hiring discrimination. Of course, each pre1965 incumbent black employee had a cause of action under § 1981 because of the company’s discriminatory hiring practices. But all parties recognize that this cause of action is barred by North Carolina’s three year statute of limitations, N.C. Gen.Stat. § 1-52(1), which is made applicable to the § 1981 claim. Johnson v. Railway Express Agency, Inc., supra, 421 U.S. at 462, 95 S.Ct. 1716. The seniority provision of the bargaining contract was facially neutral, applying to both white and black employees if they transferred to the higher paying position of a line driver. Both black and white employees were subject to loss of their former departmental seniority and had to start at the bottom of the seniority list for line drivers even though they may have had more employment seniority than line drivers higher on the ladder. Consequently, § 1981 does not afford the black employees relief, because this statute confers on black persons only the same rights possessed by white persons. Moreover, the application of 42 U.S.C. § 1988 does not lead to a different conclusion. Section 1988 directs federal courts to enforce § 1981 “in conformity with the laws of the United States, so far as such laws are suitable . . ” Section 1988 in itself does not create any cause of action, but it “instructs federal courts as to what law to apply in causes of action arising under federal civil rights acts.” Moor v. County of Alameda, 411 U.S. 693, 703-06, 93 S.Ct. 1785, 1792, 36 L.Ed.2d 596 (1973); Scott v. Vandiver, 476 F.2d 238, 242 (4th Cir. 1973). In Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971), the Court held: “Under the [1964] Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.” This concept is essential to the employees’ suit. However, in Teamsters v. United States, supra, 431 U.S. at 349, 97 S.Ct. 1843, the Court held that the Griggs rationale is not applicable to a seniority system that is lawful under § 703(h). Ordinarily, § 1988 enables a district court to utilize Griggs’ interpretation of Title VII in a § 1981 employment discrimination suit, but the court cannot transgress the limitation placed on the Griggs rationale in Teamsters with respect to § 703(h). A ruling that a seniority system which is lawful under Title VII is nevertheless unlawful under § 1981 would disregard the precepts of § 1988. An analogous situation concerning the application of § 1988 is presented by Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), dealing with the enforcement of a § 1983 claim by utilization of a state law which made municipalities vicariously liable for the acts of their employees. The Court held that such a state law could not be utilized to enforce the rights secured by § 1983 because it was inconsistent with federal law that excludes municipal corporations from liability under § 1983. 411 U.S. at 706, 93 S.Ct. 1785. Our conclusion accords with decisions that have held, although in different context, that § 1981 does not invalidate bona fide seniority provisions. See, e. g., Chance v. Board of Examiners, 534 F.2d 993, 998 (2d Cir. 1976); Watkins v. United Steel Workers Local 2369, 516 F.2d 41, 49-50 (5th Cir. 1975); Waters v. Wisconsin Steel Works, 502 F.2d 1309, 1320 n.4 (7th Cir. 1974); cf. Patterson v. American Tobacco Co., 535 F.2d 257, 270 (4th Cir. 1976). It is also consistent with the Supreme Court’s opinion in Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). Johnson emphasized that a party proceeding under § 1981 is not restricted by the administrative and procedural requirements of Title VII, but nothing in Johnson suggests that a practice lawful under Title VII can be held unlawful under § 1981. On the contrary, Johnson recognizes that Congress noted that Title VII and § 1981 are “co-extensive” and that they “augment each other and are not mutually exclusive.” 421 U.S. at 459, 95 S.Ct. at 1719. Johnson gives no indication, however, that Congress intended to create conflicting and contradictory standards for determining what constitutes illegal discrimination. We therefore withdraw our mandate and direct that a new judgment issue consistent with this opinion. We remand the case to the district court for reconsideration of the claims made by those employees who were afforded relief on the basis of the seniority system that Teamsters later held to be lawful. The parties suggest that additional evidence may be necessary, and the district court should reopen the proceedings for this purpose. Although the union did not appeal from the entry of the injunction against it, we direct the district court to permit it to move for relief from this order. Fed.R.Civ.P. 60(b)(6). The union’s conduct in agreeing to the seniority system violated neither Title VII nor § 1981. Therefore, the judgment against it should be vacated. See, Teamsters v. United States, supra, 431 U.S. at 356, 97 S.Ct. 1843. In all other respects we affirm the district court for the reasons stated in our initial opinion. . Our initial decision is reported as Johnson v. Ryder Truck Lines, Inc., 555 F.2d 1181 (4th Cir. 1977). . Section 703(h) of the 1964 Act [42 U.S.C. § 2000e-2(h)] provides in part: Notwithstanding any other provision of this subchapter, it shall not be unlawful em- ployment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, . . . provided that such differences are not the result of an intention to discriminate because of race . . . . . Applicants refused jobs after 1965 on account of their race are entitled to an award of seniority retroactive to the date of application. Franks v. Bowman Transportation Co., 424 U.S. 747, 762-70, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). Theoretically, the same measure of retroactive seniority would be available to pre-1965 incumbents who sought linehaul jobs, but it would be of less value to them because they could not carry over their full employment seniority to their new job assignment. . Title 42 U.S.C. § 1988 provides in part: The jurisdiction in civil . . . matters conferred on the district courts by the provisions of this chapter . . . shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect . Section 1988 also authorizes resort to state laws for enforcement of the civil rights acts if they are not “inconsistent with the Constitution and laws of the United States.” Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". What subcategory of business best describes this litigant? A. railroad B. boat, shipping C. shipping freight, UPS, flying tigers D. airline E. truck, armored cars F. other G. unclear 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 Bryan W. NICKERSON, Jr., Appellant, v. Josef KUTSCHERA, A. G. Birkenruth, the Tidewater Oil Company. No. 16651. United States Court of Appeals Third Circuit. Argued Dec. 21, 1967. Decided March 6, 1968. Bryan W. Nickerson, Jr., pro se. William J. Wier, Jr., Connolly, Bove & Lodge, Wilmington, Del. (John D. Fair-child, Richard R. Wier, Jr., on the brief), for appellee, A. G. Birkenruth. Before BIGGS, MeLAUGHLIN and VAN DUSEN, Circuit Judges. OPINION OF THE COURT VAN DUSEN, Circuit Judge. The appellant, Nickerson asks this court to reverse the dismissal with prejudice entered by the District Court of his patent infringement suit. Nickerson holds Reissue Patent No. 24,518, a patent relating to a white sidewall attachment for vehicle tires. Nickerson instituted a previous infringement action against the Bearfoot Sole Co. (Bearfoot case). The unreported decision of the District Court in that case, holding the above patent valid and infringed, was reversed by the Court of Appeals for the Sixth Circuit in a lengthy and exhaustive opinion holding the patent invalid for want of invention. Approximately two years after the Bearfoot decision, Nickerson sued again for infringement of this same patent, bringing his action in the District Court for Delaware against Pep Boys— Manny, Moe & Jack (Pep Boys case). The District Court entered summary judgment for the defendants, on the grounds that the Bearfoot case was res judicata or collaterally estopped Nicker-son from relitigating the validity of his patent, albeit against different defendants. Nickerson appealed to this court, No. 15757. Before argument, however, Pep Boys was settled and by agreement dismissed without prejudice. Our strong policy of encouraging such amicable settlement of controversies requires us to disregard entirely the Pep Boys case except to the extent, noted below, that the present parties have agreed that the record in the Pep Boys case is part of the record in this case. Nickerson then brought a third infringement suit in the District Court for Delaware against the present appel-lees. Appellee, Birkenruth, joined by the other appellees, moved to dismiss the complaint with prejudice. The District Court granted the motion for the reasons stated in the earlier opinion in Pep Boys pursuant to an agreement among all parties that, “for reasons of appeal, the parties accept the * * * {Pep Boys] opinion.” At the outset, the use we should make of the Pep Boys decision must be considered in some detail. An important controversy exists over whether Mr. Nickerson had more evidence to offer in the present case than was offered in the original Bearfoot litigation. The judge below in his Pep Boys opinion found that, “Plaintiff has not suggested that he has additional evidence to present to this Court if he should go to trial.” On this basis, a motion for summary judgment was granted. The order appealed from in the case now before the court, which incorporates the Pep Boys opinion by reference, grants a motion to “dismiss with prejudice” on the grounds of collateral estoppel under the doctrine of res judicata. The appellees argue that such a motion includes a factual determination on the basis of the record (see F.R.Civ.P. 12(b) & (c)) similar to that involved in summary judgment, and that, in agreeing to use of the Pep Boys opinion, Nickerson has agreed that, in this case too, he has no new evidence to present. Although the record is devoid of any specific suggestion that Nickerson in fact has more evidence, he maintained at oral argument that he does have new material on the “state of the prior art.” In addition he insists that his agreement to accept “the opinion” for purposes of appeal was prefaced with a statement that he accepted the “conclusions of law” in the Pep Boys opinion. As the judge suggested in the discussion in open court of one aspect of the order entered in this case, the agreed upon Rule 54(b) order “would simply give Mr. Nickerson an opportunity to get before the Court of Appeals a doctrine which I have sponsored, as to the soundness of which, from the standpoint of precedent at least, there is some question which I recognize and he recognizes.” In light of the above, and since we are faced with a dismissal without trial or hearing where the plaintiff should receive the benefit of any doubt, we assume for purposes of this appeal that Nickerson does have new evidence to offer in the present case, which evidence was not present in the Bearfoot litigation. With this exception, the decision in Pep Boys is regarded as the opinion below. The District Court held that the Bearfoot litigation barred Nickerson by collateral estoppel under the doctrine of res judicata from relitigating the validity of his patent in another circuit. In so ruling, the judge found encouragement in our decision in Bruszewski v. United States, 181 F.2d 419 (3d Cir.) cert. denied 340 U.S. 865, 71 S.Ct. 87, 95 L.Ed. 632 (1950), that the “doctrine of mutuality” was not properly a requirement of res judicata. Under this approach,, once a patent holder has his full day in court and suffers an adverse decision on the merits, he is estopped in a subsequent attempt to prove the validity of his patent even though the defendant selected is not in “privity” with the initial defendant. In the field of patent litigation, however, regardless of the rule on mutuality in other fields, the insistence on mutuality has been consistently strong. For a defendant successfully to raise the defense of res judicata in a patent case, “mutuality” requires that he or his privy have been parties in the prior litigation. The broad language in Triplett v. Lowell, 297 U.S. 638, 642-644, 56 S.Ct. 645, 80 L.Ed. 949 (1936) would seem to require us to hold that a prior judgment of invalidity in another circuit is no bar to a suit against different defendants in this circuit for infringement, except on the grounds of comity. While it does appear that the court below may well be correct in concluding that Triplett v. Lowell was either wrongly decided or should no longer be given its customary broad reading, we do not feel that this is the proper case or the proper time for this circuit to make such a holding. In so deciding we are not unmindful of, and do not wish to change, our previous position in Bruszewski v. United States, supra, characterized as “the leading federal decision” in eroding the doctrine of mutuality, Zdanok v. Glidden Company, Durkee Famous Foods Division, 327 F.2d 944, 954 (2d Cir. 1964). We also find commendable the scholarly approach of a District Court which analyzes carefully and fairly the relevant policy considerations in applying a new and useful legal rule. Nonetheless, even though we may agree that a strict requirement of mutuality should not be continued in the field of patent litigation, two considerations prompt us to reverse the lower court in this particular case. The general rules of res judicata prevent relitigation not only of matters actually raised and decided in a prior patent validity suit, but the bar also applies to matters or arguments which might have been raised in support of the claimed validity and infringement but were omitted. An exception to this rule is that the bar will not prevent the second litigation when the new suit proceeds on a new cause of action. Since we do not know the nature of Nickerson’s “additional evidence,” we are unable to judge whether it shows that an entirely different factual basis supports the patent’s validity or there exists a new “cause of action.” It thus can not clearly be said on this record that Nickerson has fairly had his “day in court” in the Bearfoot litigation. In any event such a determination must first be made by the district court. In addition, we note that, as the result of a recommendation of a Presidential Commission, “The Patent Reform Act of 1967” was introduced in both the House of Representatives and the Senate on February 21,1967. One new section, proposed 35 U.S.C. § 294, provides in subsection (a) that a final adjudication holding a patent invalid and from which no appeal has been taken, shall constitute an estoppel against the patentee in any subsequent action. Other bills have also been introduced opposing the bills of February 21, 1967, and the problem of judicial review remains to be argued. Since it is quite clear there is a substantial chance of Congressional action in the very near future, our affirmance of a new patent litigation estoppel rule in this case would be ill-timed. But in otherwise indicating our general approval of the opinion below we do more than endorse careful and enlightened decisions by the District Courts in our Circuit, we also affirm the general position of this court in Bruszewski v. United States, supra, that a strict rule of mutuality no longer has a proper place in the doctrine of res judicata. For the above reasons, the March 9, 1967 judgment of the District Court will be reversed, and the case remanded for disposition in accordance with this opinion. . Nickerson v. Bearfoot Sole Company, 311 F.2d 858 (6th Cir.), cert. den. 375 U.S. 815, 84 S.Ct. 48, 11 L.Ed.2d 50, rehearing den., 375 U.S. 949, 84 S.Ct. 343, 11 L.Ed. 2d 279 (1963). . Nickerson v. Pep Boys — Manny, Moe & Jack, 247 F.Supp. 221 (D.Del.1965). In Pep Boys and the present ease Nickerson has appeared pro se. . Document 19. . 247 F.Supp. at 224. . Document 31; transcript of 3/3/67 argument, pp. 6-7. . The scholarly decision also reflected careful attention to non-federal cases and responsible academic opinion on the mutuality requirement. 247 F.Supp. at 222 n. 1. . This rule is not absolute and the trial judge discussed at least one exception he could hypothesize. 247 F.Supp. at 224. . See e.g., Technograph Printed Circuits, Ltd. v. United States, 372 F.2d 969, 178 Ct.Cl. 543 (1967) and authorities there cited. . Because of our disposition we do not reach the problem of whether language in Standard Brands v. National Grain Yeast Corp., 101 F.2d 814, 816 (3d Cir. 1939); or Urquart v. Commissioner of Internal Revenue, 215 F.2d 17, 20 (3d Cir. 1954) must be overruled and this case argued before the court en banc. . Agrashell v. Bernard Sirotta Company, No. 63-C-206 (E.D.N.Y. June 3, 1966), indicates that the Second Circuit may share the point of view of the opinion below, although the previous determination was that Agrashell was not “sole owner” — perhaps making it a title case, not a validity-infringement case. . See e.g., 1B Moore, Federal Practice, IT 10.410 [1] (2d ed.1965). . Ibid., at p. 1154, nn. 18, 19. See e.g., Gedeon v. State Farm Mutual Automobile Insurance Co., 342 F.2d 15, 17 (3d Cir. 1965). . Cf., Smith v. Pittsburgh Gage and Supply Company, 388 F.2d 983 (3d Cir. Jan. 26, 1968). . E.g., Ripple Sole Corp. v. Thrifty Drug Store Co., Inc., 133 U.S.P.Q. 135 (S.D. Calif. 1962). . S. 1042 introduced Feb. 21, 1967 by Senator McClellan; H.R. 5924 introduced Feb. 21, 1967 by Rep. Kastenmeier. . Section 294, S. 1042. See General Tire & Rubber Co. v. Isocyanate Products, Inc., 270 F.Supp. 868, 869, n. 3 (D.Del. 1967). . S. 2597 introduced October 30, 1967 by Senator Dirksen; H.R. 13951 introduced Nov. 9, 1967 by Rep. Poff. See for example the objections in Blaustein, The Presidential Commission and the Return to the Patent Act of 1793, 53 A.B.A.J. 911 (1967). The concept of “in rem invalidity” in the two February 1967 bills has been disapproved by the American Patent Law Association, the Patent Section of the American Bar Association and the National Council of Patent Law Associations. . N.T. Times, Section 3, p. 14, col. 3, Jan. 28, 1968. 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_numresp	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. Your specific task is to determine the total number of respondents in the case. 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. In re ALBERT DICKINSON CO. COWAN et al. v. DICKINSON INDUSTRIAL SITE et al. No. 6816. Circuit Court of Appeals, Seventh Circuit. May 22, 1939. Rehearing Denied June 24, 1939. Samuel E. Hirsch, Abraham Greenspahn, and Julian H. Levi, all of Chicago, Ill., for appellants. Benjamin Wham and Walter A. Wade, both of Chicago, Ill., and Winston, Strawn & Shaw, of Chicago, Ill., for appellees. Before EVANS, SPARKS, and KER-NER, Circuit Judges. EVANS, Circuit Judge. This appeal is .one of several taken from an order entered in the reorganization of the debtor, Albert Dickinson Co. In the order complained of the court fixed the compensation of attorneys and a bondholders’ protective committee as follows: Blumberg, Samuels and Stone, attorneys for petitioning creditors ..........'............. $ 3,000 Glenn, Real & Browning, attorneys for $19,000 of bonds.....$10,000 Poppenhusen, Johnston, Thompson & Raymond, attorneys for committee ................. $13,000 Edelson, Edelson & Wise, attorneys representing $20,000 of- bonds................... $ 6,000 Rudolph G. Mueller, Secretary to Committee............... $ 2,000 Greenebaum Investment Co., depositary .................... $ 2,443.75 Mayer Karasik, for disbursements ...................... $ 1,816.90 Henry Fechheimer ........... $ 290 Benjamin H. Miller, attorney for creditors ............... $ 500 Percy Cowan, Greenebaum, Wade and Levi, Members of the first mortgage bondholders’ committee representing 70% of the bondholders...... $ 2,000 Carl R. Chindblom,' special master ........................ $ 275 William J. Snyder, court reporter ..................... $ 389.75 The appellee appealed from the allowances to all the aforesaid parties except the .last three. The allowance to the firm of Glenn, Real & Browning, has been heretofore affirmed (Appeal No. 6842). The respondents — Karasik; Fechheimer and Miller; Poppenhusen, Johnston, Thompson & Raymond; Edelson, Edelson & Wise; Blumberg, Stone & Samuels— settled their differences while the appeal as to them was pending. Payments in full were made to Mueller, Secretary to the Committee, and Greenebaum Company, depositary. Of the several allowances of fees challenged there remains but one un-disposed of, to-wit, the claim of the bondholders’ protective committee, composed of Percy Cowan, Edgar N. Greenebaum, Walter A. Wade, and Julian H. Levi. The District Court allowed this committee the sum of $2,000. It asked for and here contends that it should be allowed the sum of $20,000. The appellee argues that the appeal should be dismissed because not taken as' the statute provides. It does not seriously dispute the asserted insufficiency of the allowance, but argues that there was not such abuse of discretion as to warrant our disturbing this award. The Chandler Act was approved June 22, 1938, and became effective September 22, 1938. The petition for reorganization of debtor was approved September 10, 1934. The order from which this appeal was taken was entered October 26, 1938. The District Court never made any order declaring the Chandler Act applicable to these proceedings nor did this court. No application for such order was in fact made to either court. Appellants, on November 25, 1938, and within thirty days from the entry of the order complained of, applied to this court for leave to appeal. We allowed the appeal. Appellee proceeded in the same way in appeal No. 6822. It applied to this court for leave to appeal from said order, on December 5, 1938. Its application was denied by this court. As the law stood prior to the enactment of, the Chandler amendment, it was well settled that an appeal from an order allowing compensation to attorneys and other parties entitled thereto in these reorganization cases rested with the Circuit Court of Appeals, which was required to exercise a discretion. Shulman v. Wilson-Sheridan Hotel Company, 301 U.S.,172, 57 S.Ct. 680, 81 L.Ed. 986. The committee’s petition to appeal from the District Court’s order of October 26, 1938, was granted by this court on December 13, 1938. Appellee contends that the appeal should have been perfected pursuant to Section 24, subds. a, b, of the Chandler Act, 11 U.S.C.A. § 47(a, b) which reads: “The Circuit Courts of Appeals of the United States * * * are hereby 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, both in matters of law and in matters of fact: * * * Provided further, That when any order, decree, or judgment involves less than $500, an appeal therefrom may be taken only upon allowance of the appellate court. “b. Such appellate jurisdiction shall be exercised by appeal and in the form and manner of an appeal.” Section 250 of the Chandler Act, 11 U.S.C.A. § 650, reads: “Appeals may be taken in matters of law or fact from orders making or refusing to make allowances of compensation or reimbursement, and may, in the manner and within the time provided for appeals by this Act [title], be taken to and allowed by the circuit court of appeals independently of other appeals in the proceeding, and shall be summarily heard upon the original papers.” Two other provisions of the Chandler Act are worthy of consideration: Sec. 276.c. “The provisions of sections 77A and 77B of chapter VIII * * * approved July 1, 1898, shall continue in full force and effect with respect to proceedings pending under those sections upon the effective date of this amendatory Act, except that— * * * “(2) If the petition in such proceedings was approved more than chree months before the effective date of this amendatory Act, the provisions of this chapter shall apply to such proceedings to the extent that the judge shall deem their application practicable * * 11 U.S.C.A. § 676(c) (2). Section 6.b. provides: “Except as otherwise provided in this amendatory Act, the provisions of this amendatory Act shall govern proceedings so far as practicable in cases pending when it takes effect; but proceedings in cases then pending to which the provisions of this amendatory Act are not applicable shall be disposed of conformably to the provisions of said Act approved July 1, 1898 * * * ” 52 Stat. 940, 11 U.S.C.A. § 1 note. Counsel are unable to agree what law applies. While the appellee followed the same practice as the appellants, it now argues that appellants’ appeal should be dismissed. Construing all of the aforesaid sections together with the Bankruptcy Act in force before the Chandler Act, we conclude : - (1) The provisions of the Chandler Act govern this appeal. (2) Where the court has not had occasion to pass upon the practicability of applying subdivision (2) of section 276(c),, said subdivision (2) should be ignored. (3) Because “this amendatory Act” (The Chandler Act) elsewhere expressly covers the subject of appeal, section 6(b) does not govern. (4) Section 250 of the Chandler Act, being a specific provision, applies to appeals from orders fixing compensation or disbursements .to attorneys who render services. The maxim generalia specialibus non derogant controls. (5) Appeals, from an order making an allowance of compensation or reimbursement to those entitled thereto, or who make claim for such compensation and are refused it by the District Court, are allowed only in the discretion of the Circuit Court of Appeals. - (6) All other appeals from orders or decrees entered’ by the courts of bankruptcy, except from judgments involving less than $500, must be taken as other appeals in equity suits, namely, as provided for by section 73 of the Rules of Civil Procedure, ’ 28 U.S:C.A. following section 723c. Applying these conclusions to the facts in the instant case, we conclude that the appellants properly sought the allowánce of their appeal on this court. The motion to dismiss the appeal must therefore be denied. On the merits of the appeal we are confronted by a fact question, — the legitimate range of judicial discretion. The debtor is a company which for fifty years successfully conducted a large business in seeds. Its sales in a single year reached an aggregate of $15,000,000. Changes in method of distribution and the financial upset and business depression of the early ’30s proved too much for it to withstand, and section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207, when that amendment was enacted, became a harbor into which it sailed for rest and repairs. • At the time its outstanding bonded indebtedness was $1,900,000, which was in default; it owed $300,000 in taxes; its real estate was appraised at $2,500,000. A bondholders’ protective committee was immediately created by holders of substantial amounts of bonds, to-wit, $60,000, $50,000, $40,000, and $10,000.' Mr. Greene-baum, a member of the house of issue, was the fifth member of the committee. It and the debtor immediately gave attention to a plan of reorganization which was subsequently submitted to the security holders. It contemplated a loan of $750,-000 from the R. F. C. It failed because debtor was unable to negotiate the loan on terms which it could meet. The committee hired auditors and a management engineer and made every effort to submit a more feasible plan of reorganization, acceptable to debtor and security holders. ' Several attorneys, representing smaller bondholders, Cooperated. The problem was complex and perplexing. There were fewer petty and captious objections to proposals .than usual, although there were differences of opinion. Postponements and delays occurred. Much time was necessarily devoted by all to the problem of reorganization which presented as many business as.-legal questions. Finally, a proposal which met with favor was submitted, was somewhat modified, and later approved- by the security holders and the court. The new plan provided, among other things, for debtor’s raising $150,000 from an outside source, a reduction in the amount of floor space used by it, and. the leasing of the balance and the securing of said lease. These were the outstanding ■ advantages of the plan for which all parties claim credit, but of which we think it might be better said — all parties contributed in greater or less degree. When the plan was finally approved, appellants represented 70% of the security holders, or- moré than $1,250,000 (par value) of the bonds. They assert that in this particular case the bondholders’ committee was as active as the attorneys for the committee or as the attorneys for any other party; that their voice was more authoritative, because without their approval no plan could become effective; that they were the party most instrumental in bringing $150,000 of additional capital and the securing of a paying lease, which meant revenue in the future. On this committee were two able lawyers. We fully sympathize with the District Court in its effort to conserve the property for the creditors. To do this and at the same time do justice to those who render meritorious service in a reorganization of this kind is no easy task. Differences of opinion as to the nature and value of services among the participating attorneys are well nigh inevitable. We fully agree the amount of securities represented by a group or an attorney should not be the sole, or even the determining, factor in fixing the amount of compensation. Nor would we, on the other hand, by any means ignore it when passing on fees asked in most cases. It may and often does help.in appraising the good faith, as well as the value of the services. Another disturbing factor, present in many cases, and not entirely absent here, is the apparent duplication of services for which compensation is sought. Appellants concede that in making the allowances, the trial court exercised a discretion, and that discretion should not be disturbed unless improvidently exercised. In other words, to disapprove, we must find there has been an abuse of discretion. What is judicial discretion? How is its abuse determined? At best, it is a somewhat relative term. No standard or measuring stick has been or can be devised that may be successfully applied in all cases. It and the words used to define it are somewhat elastic. In Newton v. Consolidated Gas Co., 259 U.S. 101, 105, 42 S.Ct. 438, 439, 66 L.Ed. 844, the Court spoke of it as follows: “ * * * Discretion within intendment of the rule is a judicial one; it does not extend to arbitrary and unreasonable action; and our review is limited to the question of its improvident exercise.” In the last analysis it comes down to a question of the extent of the difference between the trial court’s or the fact trier’s judgment and the judgment of the reviewing tribunal. In bankruptcy cases it may at times be measured by the difference between the judgments of a master or a referee and that of the District Court. In the Matter of Edward S. Duvall et al., 7 Cir., 103 F.2d 653, decided April 28, 1939. It must be conceded by all that in matters where differences are not large, we must hold the District Court’s judgment is supreme. But we are not much nearer the goal of our inquiry — for our study merely shifts to what are the limits of said range. At times we can define a term best by illustrating what it is not. When the distance between-the amount allowed and the amount claimed is so great that we can not reconcile them, and the good faith rendition of meritorious service is admitted, we have a case which calls for modification. Somewhat similar questions arise in tort actions wherein excessive or inadequate damages are allowed by a jury. Refusal to disturb the verdict of a jury or the judgment of the trial court thereon, when the amount is either grossly excessive or grossly inadequate, because the amount of damages is for the jury to decide, is an avoidance of judicial responsibility. The rule is the same whether the case involves fees or awards in damage actions. The duty to act is as clear and as impelling in one case as in the other. The reorganization of this debtor was for the benefit of its creditors. Its past history, its large real estate holding, its value as a going concern, and other property of value to it in the operation of its business, should be saved if possible. In short, the conservation of the property was essential to the protection of the bondholders. In order that such a reorganization take place, it was necessary for the bondholders themselves, or for attorneys representing them, or both, to render certain services. That there is much false and foolish action of no benefit to tlfe debtor estates and devoid of intelligence and good faith in many cases brought under Section 77B, does not affect the rule that compensation is due and should be awarded to those who render services of merit. The heavy expense of a reorganization seems an unavoidable consequence of our doing business through large corporations where large sums of money are borrowed from investors who are not well informed as to the character of the security issued to them. But it was a condition that confronted these bondholders when the mortgagor defaulted in its interest payments, and they then learned that their mortgage bonds failed to fully measure up to their once-held beliefs, — a condition that demanded action. We can not too severely condemn the action of those who attempt to profit out of the investors’ distress and their lack of experience. The expenses of foreclosures, reorganizations, and receiverships, heavy, yet unavoidable in any case, have, in some instances, been multiplied by studied efforts to delay proceedings and prolong receiver-ships, by unnecessary duplications of services by many counsel, by frivolous objections made by bondholders’ counsel in an effort to create nuisance value and by other methods familiar to those who have had intimate contacts with reorganization proceedings brought under the Bankruptcy Act. Avoidance of this undesirable situation can only be successfully attained by the court announcing early in the proceedings that for duplications of services no compensation will be allowed. In fact, we see -no way of avoiding embarrassment and . trouble save by the court’s informing some of the attorneys, committees, and other agencies that their services will not be paid out'of funds, in the court’s possession. In the absence of such action, the questions of the total amount of fees and distribution of said fees among the many applicants will surely arise to perplex those who are responsible for the reorganization. In the instant case we have no such embarrassing situation. All of the allowances were modest. The allowance to bondholders’ committee is the only item of .which we have doubt.- It was disposed of by a well-nigh complete rejection because the court entertained the view that bondholders’ committees are, generally speaking, useless instrumentalities that accomplish little or nothing or which do nothing of benefit to the reorganization. This may be true in many cases, but it does not necessarily constitute a universal practice. According to members of the committee, it was not true in this case and the record supports this statement. It came into existence upon the urgent request of holders of sizable numbers of bonds. Others joined them until seventy per cent, of the holders of the entire bond issue spoke through this committee. Two of its members were lawyers with experience in 7733 proceedings. Had they merely sought to multiply fees, they could have appeared separately .and represented individuals as other counsel in this case appeared for smaller groups of creditors. Their refusal, to thus stultify themselves commends their present position to our favorable consideration. Unless the court is justified in refusing the committee any compensation, the services rendered necessitated an allowance in excess of $2,000. To compensate each of four members representing bonds of the face value of $1,300,000,. for three years’ work, at a total of $500 each, seems grossly inadequate. The range within which the trial judge’s discretion has free and uncontrolled play must have outside limitations, —below and above which it can not go. That this committee was entitled to some compensation is conceded. The fact that the court made it an allowance is proof the court so concluded. It, of- course, should not be denied compensation on the theory that most committees are supernumeraries and of no value in the reorganization of the debtor, if in truth and fact it showed itself to be a serviceable agency working in good faith for those who were vitally interested in recovering the largest possible amount for the creditors. We are not unmindful that a dominant rule governing the allowance of fees is the one which limits the total amount of all fees to what the enterprise can reasonably bear. Of course, this does not mean that the total allowance should be divided to the total exclusion of any deserving applicant who has rendered meritorious and valuable services, and another claimant rendering like services, benefited. Testing the allowances by this standard no fault can be found with the total allowances. The allowance of $2,000 to the bondholders’ committee, upon what is clearly shown to be the services by them rendered, is so much below the actual value of its services and the benefits which accrued to the debtor, that it amounts to an abuse of discretion. Comparing allowances to others who appeared in the action and upon the showing of services rendered, we are convinced that the allowance should not have been less than $10,000 In designating $10,000, we are not fixing the actual value of that service, but stating a sum below which an allowance can not be allowed to stand. In other words, the range within which the judicial discretion may operate has the sum of $10,000 for its minimum. . As in the case of excessive verdicts, the appellate court fixes the amount above which a verdict or judgment will not be allowed to stand. So here we fix the minimum. The decree is modified by an allowance of $10,000 to the bondholders’ committee. As modified, it is affirmed, appellants to recover their costs. On Petition for Rehearing. Appellee, on this rehearing, strenuously assails the correctness of that part of our opinion which holds that appeals from orders making provision for compensation of counsel are allowable only in the discretion of the Circuit Court of Appeals. Inasmuch as this pronouncement was for the purpose of settling the practice, we have given the matter further consideration. The deference we owe to, and the respect we have for the views of, the Second Circuit Court of Appeals, which reached a different conclusion in London v. O’Dough-erty, 102 F.2d 524, have added to our anxieties. In reaching our conclusion we were guided by what we believed to be the intention of Congress in enacting the bankruptcy legislation, namely, the desire to expeditiously administer the estates of insolvents. The more recent amendments to the general bankruptcy act, which for the purpose of convenience might be called the reorganization provisions as distinguished from the liquidation sections of the old act, should be similarly construed. Expedition in the reorganization of a debtor is as essential for the protection of creditors as is expedition in liquidations under the old bankruptcy act. One of the possible methods of delay is through appeals. While the right to apply for an appeal in bankruptcy cases may be as important as in other suits, experience has demonstrated that there is a possibility for the misuse of the said right of appeal where reorganization of a debtor with many creditors holding valuable assets is about to be effected. Such a situation affords unusual opportunities for one avariciously inclined to create a nuisance value for a claim otherwise lacking in merit. In other words, appeals may tie up the liquidation of the estate or the reorganization of the debtor, although the amount involved is relatively small. It seems, for this reason, Congress has, in the old act as well as in the amended act, guarded against abuse by providing that the right of appeal shall not be an absolute one but, in some cases, allowable only in the discretion of the court of appeals. Section 250 of the Chandler Act, 11 U.S.C.A. § 650, carries such an intention on the part of Congress. In construing this section, it is significant, first, that it deals specifically and exclusively with appeals taken from orders allowing compensation or reimbursements, and, second, that it provides expressly for limitation of time within which the appeal may be taken and it also provides that such appeals “be taken to and allowed by the circuit court of appeals independently of other appeals in the proceeding, and shall be summarily heard upon the original papers.” In other words, Congress, by this section, was dealing specifically with the subject of appeals from an order allowing compensation to those who had helped in the reorganization of the debtor. The last clause squarely indicates the necessity of prompt disposition of the appeal. The clause “allowed by the circuit court of appeals” can not be ignored. It suggests an intent to avoid frivolous appeals and appeals for purpose of delay. It necessitates the exercise of a discretion by the Circuit Court of Appeals to the end that delays may be avoided. At the same time, it protects the rights of those who are sincerely convinced that an allowance was either inade-quáte or extravagant. Dealing as it does, specifically with this subject-matter, it should be construed as exclusive. The petition for rehearing is denied. The par value of the bonds must not be confused with actual value. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_applfrom	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). AUERBACH v. CORN EXCHANGE NAT. BANK & TRUST CO., PHILADELPHIA. No. 8640. Circuit Court of Appeals, Third Circuit. Argued Dec. 5, 1944. Decided March 8, 1945. Edward N. Polisher, of Philadelphia, Pa., for appellant. S. Dee Hanson, of Washington, D. C. and Henry S. Drinker, of Philadelphia, Pa. (John E. Walsh, Albert M. Hoyt, Jr., and Philip Wallis, of Philadelphia, Pa., on the brief), for respondent. Before GOODRICH and McLAUGHLIN, Circuit Judges, and FAKE, District Judge. GOODRICH, Circuit Judge. This action, brought to recover the value of certain securities, involves the application of the Pennsylvania deficiency judgment statute. The litigation is in federal court solely because of diversity of citizenship of the litigants. All the legally operative facts occurred in Pennsylvania. Local decisions control so far as applicable. Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. Both parties moved for summary judgment in the District Court, and the defendant’s motion was granted. The plaintiff appeals. The factual picture is simple and clear; the legal question is more difficult. Plaintiff, Harry J. Auerbach, and defendant, Corn Exchange National Bank & Trust Company (hereinafter referred to as Corn Exchange), entered into an agreement on August 28, 1933, whereby Auerbach executed and delivered a bond and mortgage in the principal sum of $25,000 secured upon certain premises in the city of Philadelphia. The agreement further provided that various bonds and a life insurance policy be deposited as additional security and that should Auerbach default, Corn Exchange might sell the securities at public or private sale and apply the net proceeds therefrom on account of the principal of the bond, returning to him any overplus. When Auerbach subsequently defaulted, Corn Exchange entered judgment against him, assessed damages in the sum of $24,-223.72, and issued a writ of fieri facias under which the premises were sold on July 7, 1941 at public sale for the sum of $95; the Sheriff thereafter executed and delivered his deed poll for the premises to Corn Exchange, which on August 28, 1941 entered into an agreement for their sale to an independent purchaser for the sum of $19,0Q0. The net sum realized, $18,168.08, was credited against the judgment leaving a deficiency of $6,055.64. Meanwhile the Pennsylvania Deficiency Judgments Act, P.L. 400, 12 P.S. § 2621.1 et seq., was approved and made effective on July 16, 1941. It requires a plaintiff who sells real estate under a judgment for a price insufficient to satisfy the judgment, interest and costs, to file a petition to fix the fair market value of the real estate within six months from the date of the sale or the enactment of the law, whichever date is later. Without filing such a petition, after advertised notice and written notice to plaintiff, Corn Exchange on September 26, 1941 sold at public sale the collateral deposited with it by Auerbach as additional security and credited his balance with the $3,503.19 received. When Auerbach’s demand for the return of these securities on December 14, 1942, was not complied with, suit was instituted for their value. The constitutionality of the statute, as applied to judgments entered prior to its enactment, was upheld in Pennsylvania Co. for Insurances on Lives and Granting Annuities v. Scott, 1942, 346 Pa. 13, 29 A.2d 328. If the plaintiff’s contention as to its application is right, he is entitled to recover the value of the securities sold by the pledgee after the principal debt was discharged. Schwab v. Continental-Equitable Title & Trust Co., 1938, 330 Pa. 540, 199 A. 150; Restatement, Security, § 37. The defendant opposes the plaintiff’s claim with three arguments, two based upon the statute, one directed against the plaintiffs right to claim under it. First it contends that the language of the Act shows that its sole function is to provide a means to determine the value of real estate which has been sold. In this case, it continues, that value is not iti dispute; $19,000 was the admitted fair market value, this sum was credited upon the judgment before applying the proceeds from the sale of the collateral. Under such circumstances, it concludes, proceedings under the Act would have been futile and to require them is to give an absurd construction to the legislation. This is strong argument, but we think not strong enough. Section 1 of the statute requires the creditor who “seeks to collect the balance due on said judgment” to petition the court having jurisdiction to fix the fair market value of the property. We think that Corn Exchange here was seeking to collect the balance due on its judgment when it subjected the collateral in its hands to sale. Otherwise it had no business to deal with the securities in any way except to return them to the pledgor. It is true that the only issue before the court at the hearing upon the petition is the fair market value of the property sold, nevertheless the statute contemplates that such value shall be found as a result of the appropriate court proceedings. By Section 10 a debtor may not waive the benefits of the Act, and admissions in pleadings in this case as to the value of the premises at the time of sale are not to be taken as having that effect. The categorical answer to the defendant’s argument, we think, is found in the concluding unqualified words of Section 7. If no petition is filed within the prescribed period, “the debtor * * * shall be released and discharged of such liability to the plaintiff * * The judgment creditor here did not file the petition provided for. Whether that was because it believed this statute would he, like its predecessors, declared unconstitutional, or for some other reason, the record does not indicate. At any rate, it did not so petition, and the statute itself states the consequences of that omission in the language just quoted. The second point made by Corn Exchange is that at the time it sold the securities its claim against the judgment debtor was in force, so that the sale was proper. The statute became effective July 16, 1941. The sale was September 26, 1941. It was, therefore, prior to six months from the effective date of the Act, the •period in which Corn Exchange could have proceeded by petition. It is only at the expiration of that six months, argues Corn Exchange, that the provision of Section 7 providing for release and discharge of liability becomes effective. This argument does not convince us, although its ingenuity is granted. We think the whole purpose of the statute was to make the outlined procedure on petition the requisite before other steps to enforce further collection of the claim after the sale of the real estate could be followed. What the creditor loses at the end of the six months’ period is the fight to take the further steps for collection. If the debtor sought to recover a voluntary payment made during that period, (instanced by the defendant in argument) the question would not be the same and the troublesome problem of recovery of money paid under mistake of law would be involved. See Restatement, Restitution § 44 et seq. That, fortunately, is not before us here. No Pennsylvania decision upon the precise point before us has been cited, nor have we found any. Defendant brings to our attention the California decision in Hatch v. Security-First Nat. Bank of Los Angeles et al., 1942, 19 Cal.2d 254, 120 P.2d 869. This involved an interpretation of Section 580a of the California Code of Civil Procedure, the pertinent part of which provides “Whenever a money judgment is sought for the balance due upon an obligation for the payment of which a deed of trust or mortgage with power of sale upon real property * * * was given as security, following the exercise of the power of sale * * * the plaintiff shall set forth * * The court quoted from the statute to indicate its limited scope. It was concerned only with actions to recover deficiency judgments after the security is exhausted. The court then distinguished those cases decided under the New York statute Section 1083-a, Civil Practice Act, which provides in the event of failure on the part of the mortgagee to move for a deficiency judgment within ninety days thereunder “the proceeds of the sale regardless of amount shall be deemed to be in full satisfaction of the mortgage debt * * The Pennsylvania statute, unlike Oiat of California, states that where “the plaintiff seeks to collect the balance due on said judgment, interest and costs * * * [he] shall petition the court * * We do not think these words are equivalent to those in the California statute which talk of seeking “a money judgment * * * for the balance due.” The “balance due” in the Pennsylvania statute is not restricted to a money judgment. It may, but does not necessarily refer to a deficiency judgment. Realization of the “balance due” can come from the sale of collateral, and selling collateral is collecting the balance due, as we have already said. We conclude, therefore, that the California decision is not helpful in our question under the Pennsylvania statute. Finally, the argument is made that Auerbach is estopped from asserting his rights. This was the ground upon which the District Court granted the defendant’s motion for judgment. No contention is advanced that Auerbach made any express representation upon which Corn Exchange relied. The only facts out of which the estoppel argument can be spelled are these: Corn Exchange notified Auerbach by registered letter dated September 19, 1941, that it would sell the collateral on September 26. Auerbach made no response until the bringing of this action in December, 1942, long after the period in which Corn Exchange could have petitioned under the statute had expired. His failure to speak up in protection of his rights when they were threatened, it is contended, should preclude him from asserting them now. There is no doubt that in some situations an estoppel may arise when one fails to assert his rights. Ewart puts as the simplest case of estoppel, that of “standing by while some one sells your property to an innocent purchaser. You are estopped.” Ewart on Estoppel (1900) 33. This situation, in varying sets of fact has been recognized frequently in the Pennsylvania decisions. Little v. William F. Fearon & Co., 1916, 252 Pa. 430, 97 A. 578; Redmond v. Excelsior Saving Fund & Loan Ass’n, 1900, 194 Pa. 643, 45 A. 422, 75 Am.St.Rep. 714; Cumberland Valley Railroad Company v. McLanahan, 1868, 59 Pa. 23. It was appropriately applied in Re Gibson’s Estate, 1943, 153 Pa.Super. 413, 34 A.2d 159 relied upon by the court below. There the person against whom it was applied had had possession of a will for many years. But the fact was not disclosed until another, administrator of the estate and decedent’s sole heir at law, had made personal payments to creditors o f the decedent but had not taken the steps within the statutory period, to preserve his rights against the real estate. The court properly said that the silence and concealment misled the administrator and precluded the assertion of otherwise well founded legal rights. But the well established rule just mentioned does not fit the facts of this case. Here both parties necessarily knew of the fact of the pledged collateral. Each had equal knowledge of the passage of the deficiency judgment statute and its provisions. Neither could know until the Supreme Court of Pennsylvania decided the question, whether the statute would be upheld as constitutional or not. That the legal question was doubtful is shown by the divided vote of the court in the decision which upheld the Act. If the statute did not limit the rights of Corn Exchange, the sale by it was entirely within its rights. If the statute was effective, its provisions controlled. While the question was thus a legally doubtful one, Corn Exchange went ahead with the sale. Promptly after the statute was upheld, the plaintiff started this suit, tie had no facts in his possession at the time of the proposed sale which Corn Exchange did not also have. In this situation the Pennsylvania decisions have declared that no estoppel can arise. Bright v. Allan, 1902, 203 Pa. 394, 53 A. 251, 93 Am.St.Rep. 769; Tustin et al. v. Philadelphia & Reading Coal & Iron Co., 1915, 250 Pa. 425, 95 A. 595. Our conclusion is that the plaintiff in this case is not estopped to assert his rights under the statute. The judgment of the District Court must, for the reasous above stated, be reversed. In connection with further proceedings, it will be noted that the parties have entered into a stipulation that “ * * * in the event of the reversal by the Circuit Court of Appeals of the judgment of the lower court, judgment shall be entered in favor of the plaintiff against the defendant in such amount only as the plaintiff’s claim exceeds the amount of the defendant’s counterclaim, until the latter is finally adjudicated. Thereupon, the credit allowed for the counterclaim shall be adjusted in accordance with such final adjudication.” The judgment of the District Court is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Defendant's answer in the court below alleged that the premises had been appraised for defendant on May 20, 1941, by Ralph M. Taylor in the amount of $18,730, and had also been appraised on May 27, 1944, by Wm. H. Quick & Bros., Inc., in the amount of $20,000. It provides inter alia that “Whenever any real property * * * is * * * sold, * * * to the plaintiff in execution proceedings and the price * * * is not sufficient to satisfy * * * the judgment, interest and costs and the plaintiff seeks to collect the balance due * * * [he] * * * shall petition the court 4 ® * to fix the fair market value.” “At any time prior to the [date set for] hearing [thereon] any respondent [debtor] or other person in interest may appear and answer * * After a hearing the court shall determine the fair market value and direct the release of the debtor to that extent; if no controvertive evidence is submitted the value shall be fixed as -the amount alleged in the petition. “The plaintiff * * * shall file all petitions * * * not later than six months after the sale * * * : Provided * * * if the sale occurred prior to the effective date of [the] * * * act, the plaintiff shall file such petition within six months after the effective date of this act. In the event no petition is filed within such period, the debtor * * « shall ho released and discharged of * * * liability to the plaintiff * * .” Further, “It shall be incompetent for any debtor * ® at any time, either before or after or at the time of incurring any obligation, to waive the benefits of this act or to release any obligee from compliance with the provisions thereof. Any such waiver or release shall bo absolutely void, unenforceable and of no effect.” A registered letter dated September 19, 1941 advised plaintiff of the sale. Oorn Exchange purchased the securities at the sale and within five days resold them for $3,783.07. Section 6 states that at the hearing “the only issue before the court shall be the fair market value of the property sold at the time of said sale * * Plaintiff moved for judgment on the pleadings in which defendant’s answer alleged appraisals of $18,750 and $20,000 and sale and credit against the deficiency judgment for $19,000. Section 6 provides that after a hearing the court shall determine the fair market value and direct the release of the debtor to that extent; if no controverting evidence is submitted, the value shall be fixed as the amount alleged in the petition. Corn Exchange argues that the Act is applicable only where the creditor is seeking an additional legal remedy against the debtor personally. The wording of the statute is too broad to admit such a narrow construction in the absence of authoritative state decision expressly so limiting it. Sec. 7 provides that “if the sale occurred prior to the effective date of this act, the plaintiff shall file such petition within six months after the effective date of this act.” Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_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. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MOONEY AIRCRAFT, INC., Respondent. No. 19448. United States Court of Appeals Fifth Circuit. Sept. 30, 1966. Cox, District Judge, dissented in part. Melvin J. Welles, Paul Elkind, Robert B. Schwartz, Attys., Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, NLRB, Washington, D. C., for petitioner. Hal Rachal, Midland, Tex., for respondent. Before WISDOM and THORN-BERRY, Circuit Judges, and COX, District Judge. William Harold Cox, United States District Judge for the Southern District of Mississippi, sitting by designation. WISDOM, Circuit Judge: We hope that this opinion proves to be the epilogue and not just another episode in the series of controversies between Mooney Aircraft Company and the National Labor Relations Board. In April 1960 Lodge 725, International Association of Machinists, AFL-CIO, began a strike to force Mooney’s recognition of the Union as the exclusive bargaining representative of the production and maintenance employees. By July the Union and Mooney Aircraft had negotiated an agreement. July 9 the Union requested that all of the strikers be reinstated. July 18 the Company reinstated the striking employees, but permitted them to work only a 32-hour week rather than the 40-hour week which had been customary before the strike. The Board found this to be an unfair labor practice and ordered Mooney Aircraft not only to cease and desist, but also to: Make these strikers whole for any loss of pay they may have suffered by reason of the belated and incomplete reinstatement * * * 1961, 132 N.L.R.B. 1194, 1195. This Court enforced that order. NLRB v. Mooney Aircraft, Inc., 1962, 310 F.2d 565. In March 1963 the Board served back-pay specifications on the respondent. After a hearing before a Trial Examiner, the Board issued its supplemental decision and order, requiring the respondent to pay a total of $10,739.56 in backpay awards. 1964, 148 N.L.R.B. 1057. The case is here on the Board’s motion for a decree enforcing that supplemental order. Mooney Aircraft makes four objections to the supplemental order: (1) The Board failed to permit the Company to set off against the backpay awards certain amounts due it on personal obligations of various employees. (2) The Board awarded full backpay to employees who were offered reinstatement before the rest of the strikers but who refused to return to work until the rest had been reinstated, and the Board ordered back-pay to be paid for periods when certain other strikers were unavailable for work. (3) General Counsel failed to negative the possibility that absences of certain employees were for their own purposes and not a result of the Company’s unfair labor practices. (4) General Counsel has the burden of establishing the strikers’ interim earnings; and in the absence of proof of interim earnings, no award may be made. We find all of the respondent’s arguments unpersuasive, and enforce the Board’s order in full. I. Mooney Aircraft asserts that many of the employees to whom the Board has awarded backpay are indebted to the Company either for goods sold the employees or for money lent them. It seeks to set off these debts against the backpay awards. A backpay proceeding is not the place to assert such claims. As this Court and other courts have repeatedly pointed out, a backpay proceeding is designed to enforce a public, not a private right. Agwilines, Inc. v. NLRB, 5 Cir. 1936, 87 F.2d 146, 150. “[T]he purpose of these backpay awards is to deter unfair labor practices and not to enforce the private rights of the employees.” Nabors v. NLRB, 5 Cir. 1963, 323 F.2d 686, 691, cert. denied, 1964, 376 U.S. 911, 84 S.Ct. 666, 11 L.Ed.2d 609. Thus employees may not waive backpay claims, nor may they settle them with the employer. Nabors v. NLRB, supra; Waterman S.S. Corp. v. NLRB, 5 Cir. 1941, 119 F.2d 760. Creditors may not attach, NLRB v. Sunshine Mining Co., 9 Cir. 1942, 125 F.2d 757, nor garnish, NLRB v. Schertzer, 2 Cir. 1966, 360 F.2d 152, such awards. Any private debts the employees owe the Company are irrelevant to these backpay proceedings. To allow such setoffs in these proceedings would be to enmesh the Board in the crossfire of purely private controversies, creating an unwieldy if not unmanageable situation for the agency. The respondent relies upon Klotz v. Ippolito, S.D.Tex.1941, 40 F.Supp. 422, to support the assertion in its brief that “Insofar as an adjudication of backpay is concerned, the NLRB, through its Trial Examiner, is acting as a Court of Law, and therefore, the same defenses, offsets and counterclaims should be available to Respondent as would be the case in a Court of Law.” That case, however, was a suit by an employee under section 16(b) of the Fair Labor Standards Act of 1938, 29 U.S.C. § 216(b) to enforce the private rights created by section 7 of the Act, 29 U.S.C. § 207. The employer was permitted to set off a private debt. But even under the Fair Labor Standards Act, the employee loses his private rights in the suit when he requests the Secretary of Labor to bring the action under section 16(c), 29 U.S.C. § 216(c). See Wirtz v. C & P Shoe Corp., 5 Cir., 1964, 336 F.2d 21, 30; cf. Mitchell v. Stewart Bros. Constr. Co., D.Neb.1960, 184 F. Supp. 886, 898. The employer may not counterclaim against the Secretary. Mitchell v. Richey, W.D.S.C.1958, 164 F. Supp. 419; Mitchell v. Floyd Pappin & Son, Inc., D.Mont.1954, 122 F.Supp. 755, 757-758. Of course the Company in this case may seek any remedy available to it in the state courts of Texas. II. The respondent next contests the award of backpay to two groups of strikers who allegedly did not return to work when they were offered reinstatement. July 9, 1960, the Union applied on behalf of all the strikers for reinstatement. The Company, however, demanded that the strikers make individual applications for reinstatement. Most of the strikers did so July 11,1960. July 13 and 14, the Company offered immediate reinstatement as of July 14 to the three employee members of the negotiating committee which had unsuccessfully sought reinstatement for all of the striking employees. They refused this offer and returned to work along with all but five of the rest of the strikers July 18, 1960. Thereafter, at various dates, the five remaining strikers applied for reinstatement and were reinstated. The Company’s obligation to reinstate all strikers as of July 11, 1960, the next working day after the Union’s valid request for reinstatement, was established in the original proceedings, 1961, 132 N.L.R.B. 1194, enforced, 5 Cir. 1962, 310 F.2d 565. With regard to the five employees who did not apply for reinstatement with the rest of the strikers, the Backpay Specification shows that the Board computed their backpay awards from the dates on which they were first actually available for work. On this score therefore Mooney Aircraft has no cause for complaint. As for the three strikers who received offers of reinstatement before the other strikers were permitted to return to work, the Board has held, and we agree, that an offer to reinstate a few strikers does not constitute an unconditional of-er, but rather an invidious form of discrimination. E. g., Barr Marketing Co., 1951, 96 N.L.R.B. 875; see NLRB v. Poultrymen’s Service Corp., 3 Cir. 1943, 138 F.2d 204, 210. Since the three employees here involved were therefore not obliged to accept the offers, they are entitled to receive backpay for the contested period between July 14 and July 18. III. The validity of the Company’s third and fourth objections to the Board’s order turns on who has the burden of proof. When the strikers were reinstated, they were permitted to work only a 32-hour week, rather than the 40-hour week which had been the custom before the strike. The Board found this to be unlawful and ordered backpay computed on the basis of a 40-hour work week. The Board computed the various backpay awards in strict accordance with the formula spelled out in the original order enforced by this Court: A “sum of money which [each employee] * * * would have earned as wages based on a 5-day 40-hour work week during the period from July 11 * * * to the day of complete reinstatement, less the wages received from the Respondent during the period of incomplete reinstatement.” 132 N.L.R.B. 1194, 1195. The Company now contends that some of the work missed by certain employees resulted from absences for personal reasons rather than from the short work week. Mooney Aircraft offers nothing other than bald assertions in its answer in this Court to support this contention. This Court recently said, “Since proof of damages is the general counsel’s burden, the courts traditionally have left with the employer the burden of proving facts that mitigate the extent of the damages.” NLRB v. Miami Coca-Cola Bottling Co., 5 Cir. 1966, 360 F.2d 569, at 575. While that statement was made with regard to the issue of wilful loss of earnings, we think its general principle is applicable to the present case. The company raised this point only very generally, if at all, before the Board. In these circumstances, it would be entirely unreasonable to require the Board to negative every possible circumstance which might lead to diminution of damages. Here the company required all absences, and the reasons for them, to be reported to it. The reasons for an employee’s absence would therefore be on record in the Company’s files and within the knowledge of the Company. Accordingly, Mooney Aircraft should have the burden of proving that the various absences were for reasons other than the short week. In the absence of such proof, the Board’s computations must stand. Finally, the company insists that it is not obliged to pay any backpay awards whatsoever since the Board did not produce testimony concerning the striker’s interim earnings during the period between July 11 and their complete reinstatement. While the General Counsel has the burden of proving unlawful discrimination on the part of the employer, and hence that backpay is due, the employer usually has the burden of establishing affirmative defenses which would mitigate his liability. NLRB v. Miami Coca-Cola Bottling Co., supra; NLRB v. Brown & Root, Inc., 8 Cir. 1963, 311 F.2d 447. Among these affirmative defenses are the unavailability of jobs because of nondiscriminatory factors, the employees’ wilful loss of earnings, and employees’ interim earnings to be deducted from the backpay award. Two “burdens of proof” must be assigned in connection with these defenses —the burden of going forward with some evidence, and the burden of actually establishing or negativing the defense. The cases are unanimous that the employer must establish these defenses by a preponderance of the evidence. NLRB v. Miami Coca-Cola Bottling Co., supra; NLRB v. Mastro Plastics, Corp., 2 Cir. 1965, 354 F.2d 170; NLRB v. Brown & Root, Inc., supra. We are concerned here with the burden of going forward — • of producing the first evidence. The Second Circuit has recently decided that the Board carries the burden of going forward on the issue of wilful loss of earnings. NLRB v. Mastro Plastics Corp., supra. In that case the Court distinguished that defense from the defense of job unavailability. The facts relating to the availability of jobs, it reasoned, were peculiarly within the knowledge of the employer, and he should therefore have the burden of producing evidence on this issue. On the other hand, the court thought that “information relevant to whether the discriminatees wilfully incurred a loss of earnings is within the knowledge of the discriminatees, not the employer”, and accordingly assigned the burden of going forward to the Board. The Board, it said, “presumably has some prior contact with available discriminatees when it computes ‘net back pay due’ for its specification, * * * [and therefore] it is more likely to know their whereabouts at the time of the hearing.” Id. at 177. The Second Circuit’s reasoning would lead to the conclusion in this case that the Board should carry the burden of going forward on the issue of interim earnings. Information relevant to establishing the amount of an employee’s income during the period of an unlawful discharge is more readily available to the employee than to the employer. On this precise point the Mastro decision is in conflict with the Eighth Circuit’s decision in NLRB v. Brown & Root, Inc., supra. The Court there held that since interim earnings mitigated the employer’s liability as fixed by the Board, the issue was an affirmative defense and the Board’s failure to produce the employees’ testimony was not fatal to its ease. We think that the Board need not produce the testimony of each and every employee. First, we are not entirely convinced that the employees’ knowledge about their efforts to find interim work and the financial success they encountered can realistically be imputed to the Board. More important, to require the Board to call every employee in every case would place an intolerable burden on the agency, particularly where large numbers of employees were involved and there was little basis to dispute the Board’s calculations. A better rule would leave the burden on the employer, who could produce the employees’ testimony whenever necessary to dispute the Board’s figures, but who certainly would not find it necessary to call every employee involved. We conclude, however, that the employer should be given every opportunity to call the employees to testify on the issue of their interim earnings, and that upon the employer’s request, the Board should make available any information in its possession relevant to the whereabouts of the employees. When the Board calls an employee, it must, of course, permit the employer to cross examine him on any relevant matter. NLRB v. Miami Coca-Cola Bottling Co., supra. In this case, the Company was not denied the opportunity to call the employees as witnesses. Indeed, the trial examiner urged Mooney to do so. The failure of the Board to call each of the strikers to testify about the amount of his interim earnings was not fatal to its case. Since we find all of the Company’s points to be without merit, the supplemental order of the National Labor Relations Board is enforced. . See Backpay Specification and Notice of Hearing: Employee Page T R. C. Reed J. X Morrow 18 X O. Roe 20 K. F. Wilke 30 L. H. Ludeke 32 . NLRB v. Mastro Plastics, Corp., 2 Cir. 1965, 354 F.2d 170. . NLRB v. Miami Coca-Cola Bottling Co., supra. . NLRB v. Brown & Root, Inc., supra. . Here the employees were reinstated to a four day work week only one week after the backpay period began. It is unlikely that any of the employees found interim employment during that week or for the one day per week that they did not work for Mooney thereafter. . In an appropriate ease, this might include use of the escrow arrangement employed in NLRB v. Brown & Root, Inc., supra, whereby gross backpay is paid into escrow pending the availability of the employee’s testimony. . Trial Examiner’s Decision on Backpay, 1964, 148 N.L.R.B. 1057, 1062. Question: What is the state of the first listed state or local government agency that is a respondent? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_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. HOSPITAL EMPLOYEES’ DIVISION OF LOCAL 79, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, et al., Plaintiffs-Appellants, v. MERCY-MEMORIAL HOSPITAL CORPORATION, et al., Defendants-Appellees. No. 88-1041. United States Court of Appeals, Sixth Circuit. Argued Oct. 18, 1988. Decided Dec. 6, 1988. Christopher P. Legghio (argued), Russell S. Linden, Maria M. Fernandez, Miller, Cohen, Martens & lee, Southfield, Mich., for plaintiffs-appellants. Charles F. Glass, Schureman, Frakes, Glass & Wulfmeier, David M. Ottenwess (argued), Schureman, Frakes, Glass & Wulfmeier, Detroit, Mich., for defendants-appellees. Before MERRITT, MARTIN and MILBURN, Circuit Judges. MERRITT, Circuit Judge. The parties present two issues on appeal. First, whether a cause of action alleging management bribery of a union employee under section 302 of the Labor Management Relations Act of 1947, 29 U.S.C. § 186 (making it illegal for an “employer to pay ... any money or other thing of value ... to any employee ... in excess of [his] normal compensation for the purpose of causing such employee ... to influence any other employees in the exercise of the right to organize and bargain collectively”), is “preempted” by a section 8 NLRB unfair labor practice proceeding under the National Labor Relations Act, 29 U.S.C. § 158. Second, whether the Union as plaintiff has sufficiently alleged in its complaint two predicate offenses to support a claim under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961, et seq. The District Court dismissed the Union’s section 302 claim under Fed.R.Civ.P. 12(b)(1). The court concluded that the Union attempted to circumvent the exclusive jurisdiction of the NLRB by bringing this section 302 action alleging management payments to employees to rid the company of the Union. The District Court dismissed the Union’s RICO claim under Fed.R.Civ.P. 12(b)(6), holding that the predicate acts as alleged were committed during the course of a single scheme and did not constitute a “pattern” of racketeering. The plaintiffs-appellants are a labor union, Hospital Division of Local 79 of the Service Employees International Union, AFL-CIO, and some of its members. Local 79 is the certified exclusive bargaining representative of the employees of the defendant-appellee Mercy-Memorial Hospital, a privately owned, non-profit hospital in Monroe, Michigan. Defendant Richard Hiltz is the administrator of Mercy. In September 1985, Susan Dorsey, an employee of Mercy, filed a decertification petition that the Union now alleges was the result of illegal payments made by Mercy in violation of section 302 of LMRA. The Union filed a complaint with the NLRB, alleging that Mercy violated section 8(a)(1) of the NLRA by providing more than “ministerial aid” to a decertification petitioner. The NLRB investigated the complaint. In his summary report, the Regional Director, in the exercise of prosecutorial discretion, concluded that the section 8(a)(1) charge should not be brought because Mercy and its attorneys did not improperly interfere with or restrain the employees in the free exercise of their labor rights. The Director believed that the employees had already freely decided to seek a decertification election and that any aid given by Mercy’s lawyers to Dorsey in the form of assistance in the brief writing process would not interfere with the employees’ free exercise of their section 7 rights. The NLRB’s Office of Appeals approved this dismissal at the end of December 1986. On December 4,1986, the Union filed the complaint in this case. Count I alleges that Mercy violated section 302(a)(3) of the Labor Management Relations Act, 29 U.S.C. § 186(a)(3); Counts II and III alleged violations of RICO, 18 U.S.C. § 1961, by virtue of two separate violations of LMRA; Count IY alleged tortious interference with economic relations, a claim which is not a subject of this appeal. The Union alleges that Mercy “has provided and is providing financial assistance and/or other things of value to Susan Dorsey in excess of her normal compensation in support of her efforts to decertify Local 79.” Plaintiffs’ Complaint, paragraph 48. The Union also alleges that “Mercy-Memorial provided financial assistance and/or other things of value to Nolan Smallwood in support of his efforts to de-certify Local 79.” Plaintiffs’ Complaint, paragraph 34. This last allegation refers to a decertification petition filed with the NLRB in January 1983 by Nolan Small-wood, an employee of Mercy. The Small-wood petition was allegedly filed two years before the Dorsey petition. The District Court agreed with Mercy in characterizing the allegations in the Union’s complaint as claims of unfair labor practices, claims the court held were subject to the exclusive jurisdiction of the NLRB. The fundamental flaw in the District Court’s analysis is its application of the preemption doctrine to the facts of this case. Congress created the NLRB to administer the new regulatory structure established in the National Labor Relations Act. The federal scheme was designed to achieve uniformity in our national labor policy. See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 242-43, 79 S.Ct. 773, 778-79, 3 L.Ed.2d 775 (1959); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 748-49, 105 S.Ct. 2380, 2393-94, 85 L.Ed.2d 728 (1985). The need for a centralized administrative agency to enforce the Act was seen as crucial to achieving the desired national uniformity. 359 U.S. at 242, 79 S.Ct. at 778. The Supreme Court fashioned a special preemption doctrine to protect the centralization of administration envisioned by Congress. In Garmon, the Court held that “[w]hen an activity is arguably subject to § 7 or § 8 of the Act [NLRA], the States as well as the federal court, must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.” Id. 359 U.S. at 245, 79 S.Ct. at 779 (emphasis added). The Garmon and other doctrines are not designed to preempt other independent rights created by Congress, and we find no case authority holding that the doctrine preempts section 302. Preemption is not a problem in the present case because section 302 is an independent liability-creating statute enacted by Congress to provide additional judicial remedies for certain wrongful conduct. See Lingle v. Norge Div. of Magic Chef, Inc., — U.S. -, 108 S.Ct. 1877, 1884, 100 L.Ed.2d 410 (1988) (claims “based on rights arising out of a [federal] statute designed to provide minimum substantive guarantees to individual workers” are normally characterized as independent and not preempted by other federal labor statutes). For more comprehensive descriptions of the four preemption doctrines developed by the federal courts in the labor field, see McCall v. Chesapeake & Ohio Ry. Co., 844 F.2d 294, 299-301 (6th Cir.1988); Jones v. Truck Drivers Local Union No. 299, 838 F.2d 856, 868-75 (6th Cir.1988); Cox, Recent Developments in Federal Labor Law Preemption, 41 Ohio St. L.J. 277 (1980). Both section 302 of LMRA and section 8 of the NLRA may make similar conduct unlawful, but each provides an independent remedy. Section 8 is a general provision. In section 302 Congress has independently provided a judicial remedy for certain specifically described conduct. Using Gar-mon preemption against section 302 actions would effectively repeal section 302 because the conduct proscribed by section 302 is almost always arguably subject to sections 7 or 8 of the NLRA and, therefore, subject to the jurisdiction of the NLRB in an unfair labor practice proceeding. The preemption doctrine has no application to this case because Congress intended two separate but complimentary remedies. Count I of the Union’s complaint is, therefore, remanded for further proceedings on the merits. We do not have before us any claim of res judicata or collateral estoppel and have no occasion to consider their application here. The District Court also erred in its dismissal of the Union’s RICO claims. The court held that the alleged racketeering activity occurred in the course of a single illegal scheme. Therefore, it concluded that a pattern of racketeering, which requires at least two predicate offenses, was not properly alleged. The court apparently saw the two separate allegations of attempts to decertify the Union through bribery, one by Smallwood in 1983, the second by Dorsey in 1985, as part of a single scheme by Mercy to finance attempts to decertify Local 79 as the collective bargaining agent of the hospital employees. This view is in error. The complaint alleges two predicate acts of bribery as separate and independent wrongs. The fact that an employer has one overall purpose to get rid of a union does not conflate all of its alleged wrongful acts over a long period of time into only one RICO event. The two acts as alleged are independent and constitute two separate predicate acts under RICO. The acts are separate in time. The individual employees are different. Although they may be part of a single general purpose, they do not arise from a single set of facts constituting one transaction. As alleged they are separate offenses under section 302 and must be held to constitute separate predicate offenses under RICO. Accordingly, the judgment of the District Court is reversed and the case remanded for further proceedings. Question: What is the total number of appellants in the case that fall into the category "natural persons"? 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 the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. UNITED STATES of America, Plaintiff-Appellee, v. David Allen DeFUSCO, a/k/a David Allen Hagen, Defendant-Appellant. No. 90-4119 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 17, 1991. Rehearing and Rehearing En Banc Denied May 14, 1991. David Allen DeFusco, Sheridan, Or., pro se. Paul E. Ñaman, Asst. U.S. Atty., Bob Wortham, U.S. Atty., Beaumont, Tex., for U.S. Before POLITZ, DAVIS and BARKSDALE, Circuit Judges. POLITZ, Circuit Judge: Convicted on guilty pleas of conspiracy to commit mail fraud and of mail fraud, 18 U.S.C. §§ 371, 1341, David Allen DeFusco a/k/a David Allen Hagen appeals, claiming that his indictment was faulty, his plea invalid, and his counsel ineffective. Finding no error, we affirm. Background From the fall of 1987 until the summer of 1988 Freedom Financial Corporation, a Texas corporation which sold time-share properties in Texas and Missouri, mailed letters to millions of prospective customers, promising extraordinary prizes and “gifts” to recipients visiting the advertised properties. The mailings were of differing types; many were mailed from Washington, D.C., and bore official-looking, but fictitious, emblems and return addresses including the “Bureau of Adjustment, United States of America,” from whom a “summons” issued to come forth and claim a prize. Other mailings were in the form of warrants of appearance, deeds of trust, notices of audit, collection notices, and certificates of disbursement. One series had an IRS Form 1099, Miscellaneous Income, precompleted as if the recipient were already the winner of $7,500. Another series, styled U.S. Express, stated that either the recipient or one other named person, Linda Powell, was the guaranteed winner of a prize. These letters were posted after notification to Ms. Powell that she had won. DeFusco conceded that the U.S. Express “contest” was fraudulent. The promised prizes included automobiles, large sums of cash, gold bullion, televisions, and fur coats. The letters falsely stated that the recipient was the winner of one or more prizes; the “lucky” recipients discovered upon arrival at the time-share property that they had in fact won only the right to receive, for approximately $100 postage and handling expenses, a moderately-valued watch or home entertainment system. DeFusco, who did business through several corporations, was the designer, publisher, and administrator of the mailing operation. The fine print on the mailings identified his various corporations as the marketing agents. Indicted for one count of conspiracy and seven substantive counts, DeFusco entered into a plea agreement which provided that he would plead guilty to the conspiracy and one substantive count, and the other counts would be dismissed. He was sentenced to two concurrent 60-month periods of incarceration, 40 months of which are to be served consecutive to a sentence imposed by the Eastern District of Virginia for unrelated bankruptcy fraud and money laundering offenses. DeFusco timely appealed. Analysis On appeal, DeFusco first contends that his indictment failed to state the elements of an offense. Essentially he contends that he neither conspired to defraud nor defrauded any individual of money or property. He relies heavily on the Supreme Court’s holding in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). Mail fraud, proscribed by 18 U.S.C. § 1341, has three essential elements: (1) a scheme to defraud, (2) involving a use of the mails, (3) for the purpose of executing the scheme. United States v. Gordon, 780 F.2d 1165 (5th Cir.1986). It is uncontested that the scheme met the Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968, 970 (1924), requirement of a “trick, deceit, chicane or overreaching,” and that the mails were heavily used. DeFusco argues, however, that there was no scheme to defraud as no victims were deprived of money or property. We do not agree. In McNally the Court reversed the conviction of a former Kentucky official who received money through an extra-governmental enterprise in violation of what the trial court had found to be his fiduciary obligation to serve the public with integrity. The Court held: The mail fraud statute clearly protects property rights, but does not refer to the intangible right of the citizenry to good government.... Insofar as the sparse legislative history reveals anything, it indicates that the original impetus behind the mail fraud statute was to protect the people from schemes to deprive them of their money or property. 483 U.S. at 356, 107 S.Ct. at 2879, 97 L.Ed.2d at 299-300. Taking a cue from the McNally defendants, DeFusco contends that he took no “money or property” from the recipients of the mailings. He conveniently overlooks critical facts. The persons who traveled to the advertised resorts believing that they were winners did not receive their quid pro quo. DeFusco lied. There were no prizes; the money spent for travel expenses was lost. Time was wasted. The participants were defrauded of property. The indictment validly charged the conspiracy and substantive mail fraud offenses. DeFusco next contends that his guilty plea allocution was fatally defective because although the substantive count was read and explained in detail the conspiracy count was only generally addressed. The court’s discussion of the conspiracy count is not a textbook exemplar; indeed by admission of the government it is “scant,” but we cannot say on review of the record that there is an “entire failure” to address any one of the core concerns of a guilty plea hearing, United States v. Bernal, 861 F.2d 434 (5th Cir.1988), cert. denied, - U.S. -, 110 S.Ct. 203, 107 L.Ed.2d 156 (1989), sufficient to reverse the trial court’s finding that DeFusco’s pleas were informed and voluntary. DeFusco maintains that the district court failed to inform him of the minimum and maximum penalties assessable under the Sentencing Guidelines. The court did advise of the statutory maximum for the two offenses. It did not advise of the guideline range. In that there was no error. We do not expect the trial court to be fully apprised of the relevant guideline computations when guilty pleas are accepted. DeFusco next contends that the first amendment protected his publishing activities. We agree with our colleagues of the Second Circuit that “[misleading commercial speech is beyond the protective reach of the First Amendment.” Vidal Sassoon, Inc. v. Bristol-Myers Company, 661 F.2d 272, 276 n. 8 (2d Cir.1981) (citation omitted). Finally, DeFusco contends that his trial counsel provided grossly ineffective assistance. That issue was not raised before the district court; we will not consider it. United States v. Higdon, 832 F.2d 312 (5th Cir.1987), cert. denied, 484 U.S. 1075, 108 S.Ct. 1051, 98 L.Ed.2d 1013 (1988). AFFIRMED. . In addition to David DeFusco, his wife Annette Louise DeFusco was originally indicted. That indictment was dismissed on motion of the United States Attorney. DeFusco’s given name apparently is Hagen, but he went by DeFusco at all times relevant to this case. . These names were all registered with the Virginia Secretary of State, and included: U.S. Graphics & Mail Limited; Lead Marketing, Inc.; Leadco; Bureau of Adjustment; Publisher's Digest of America; Division of Adjustments & Disbursements; Royal Commonwealth Services; Lasergram; Western Express; U.S. Express; Radiogram; and Equity Services Group. .Four motions are also before this court. First, DeFusco moves for expedited hearing of this appeal and for release on bail pending appeal. Our decision today moots both requests. Second, the United States moves for permission to file a Supplemental Brief in response to the Reply Brief submitted by DeFusco's counsel, whom he retained subsequent to filing his initial pro se brief. We grant this motion despite the government’s tardiness. Finally, Robert I. Feldman, an inmate with DeFusco at F.P.C. Sheridan, moves, ex parte, to provide this court with extremely urgent information concerning DeFusco, and his culpability for the crimes herein charged. While his offer of help is appreciated, his motion is denied. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_timely	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 conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?" 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". ELECTRICAL ENGINEERS’ EQUIPMENT CO. v. CHAMPION SWITCH CO. Circuit Court of Appeals, Second Circuit. January 9, 1928. No. 114. 1. Courts <§=407(2) — Decree malting original decree the interlocutory decree on bill, after considering petitioner’s affidavits with old proof, held new decree, giving court jurisdiction of appeal therefrom. Decree, making original interlocutory decree the interlocutory decree on bill and continuing injunction granted thereby, after considering petitioner’s affidavits along with old proof, instead of granting motion for rehearing, vacating first decree, taking new proof, and entering new decree, held in substance a new decree, so as to give Circuit Court of Appeals jurisdiction of appeal therefrom, though defective in form. 2. Patents <§=328 — 1,212,161, for electrical' switch with floating blades, held apart by spacing block between outer ends, held not anticipated by switch moving together only through bolts on sides of clip. Getts patent, No. 1,212,161, for electrical disconnect switch, with two free floating .blades, held apart by spacing block between outer ends, held not anticipated by switch with blades which could move together only through bolts on sides of clip, though clamped against clip in operation as in ease of patented switch, and could not be solidly fastened together by bolts. 3. Patents <§=328 — 1,212,161 was not anticipated by electrical switch different in mode of operation and structure. Whether operation of electrical switch, alleged to anticipate Getts patent, No. 1,212,161, made it short-lived and interfered with contact, is immaterial; it being sufficient that mode of operation and structure differed, and that such differences resulted in entire elimination of older type and substitution of patented disclosure. 4. Patents <§=328 — 1,212,161, for electrical switch with floating'blades, pressed on clip by means of spring washers on bolts, held not anticipated by switch exerting pressure by lever operated by screw thread and springs. Getts patent, No. 1,212,161, for electrical disconnect switch with floating blades, pressed on clip by means of spring washers on bolts at outside of each blade, held not anticipated by switch in which blades had to be pressed against clip by lever operating by screw thread and two springs. 5. Patents <§=328 — 1,212,161, for electrical switch with floating blades, moving thirty-second of inch from spacing block, held infringed by switch with movement of about fifty-third of inch. Getts patent, No. 1,212,161, for electrical disconnect switch with floating blades, moving one thirty-second of an inch from spacing block, held infringed by switch with total movement of about one fifty-third of an inch, though bolt head is not in close contact with both blades when switch is raised; infringement not being avoided by decreasing amount of movement, if operation remains the same. 6. Patents <§=328 — 1,515,116, for electrical switch with latch to hold it from slipping off clip held not anticipated by switches which proved unsatisfactory and were succeeded by patented switch. ■ Jacobs patent, No. 1,515,116, for electrical disconnect switch with latch to hold it from slipping off clip, held not anticipated by switches, which proved unsatisfactory in operation and were succeeded by patented switch, though differing from latter only in fact that lugs in head of latch were weaker than solid T-end disclosed in patent. 7. Patents <§=312(11/8) — Defendant in patent infringement suit has burden of proving prior use of operable machine. Defendant in patent infringement suit has burden of proving that alleged prior use was of operable machine. 8. Patents <§=54 — Prior patent or use is not good anticipation, if inoperable because of defective designing or weak parts. Neither a prior patent nor a prior use is a good anticipation, if inoperable, whether because of defective designing, preventing parts from co-operating at all from outset, or of weak parts, which will break down in service. 9. Patents <§=54 — Machine breaking down under service is not within rule that anticipation need not work as well as patent. A machine which breaks down under service, and hence will not do work intended at all, is not within rule that anticipation need not work as well as the patent. 10. Patents <§=53 — Prior use contributing to art, despite defects obviously correctable by ordinary mechanic, is valid “anticipation.” A prior use, which contributes to the art, despite defects, correction of which is at once apparent to ordinary mechanic, is valid “anticipation.” [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Anticipation.] 11. Patents <§=328 — That electrical switches sold for commercial use were unsuccessful, because of immediately remediable defect would not affect their validity as anticipation of Jacobs patent, No. 1,515,116. That electrical switches actually sold, not as experiments, but for commercial use, were unsuccessful because of immediately remediable defect, would not affect their validity as anticipations of Jacobs patent; No. 1,515,116. 12. Patents <§=328 — Electrical switch company, working seven years on disconnect switches, without making or suggesting necessary change effected by Jacobs patent, No. 1,515,-116, held not to have shown defects correctable without invention. Electrical switch company, working for seven years on general subject of disconnect switches, and trying two forms before purchasing that alleged to infringe Jacobs' patent, No. 1,515,116, for switch with latch to hold it from slipping off clip, without making or suggesting such necessary change, held not to have shown that defects were correctable by ordinary mechanic without invention. 13. Patents <2=328 — Electrical switch, with latch operated by member loosely housed in block attached to longer of two biados, held not anticipated by Jacobs patent, No. 1,515,-116. Electrical switch, with latch of dii'ferent form than that covered by Jacobs patent, No. 1,515,116, and operated by member not extending beyond ends of two blades, but loosely housed in block attached to longer blade, with aperture admitting of only small play, held not correctable without invention, so as to constitute valid anticipation. 14. Patents <2=328 — 1,515,1 !6, claims 7, 35, 38, held infringed by electrical switch with pressure area on either side of clip, forcing blades together through bearing of springs on heads. Electrical switch, with more or less broad area of pressure on either side of clip, forcing blades together through bearing of springs on both heads, instead of confining pressure to geometrical line perpendicular to blades, held equivalent to, and hence infringement of, Jacobs patent, No. 1,515,116, claims 7, 35, 38. 15. Patents <2=314 — Court will consider only most general patent claim covering alleged infringement. Only most general patent claim, covering alleged infringement, will be considered by court in action for damages by, and injunction against, sale of infringing device, as infringement of more general claim, a fortiori infringes particular claims, which present moot issues. 16. Patents <@=328 — 1,212,161, for electrical disconnect switch with free floating blades, held valid and infringed. Getts patent, No. 1,212,161, for electrical disconnect switch with free floating blades, pressed on clip by means of spring washers on bolts outside of each blade, held valid and infringed. 17. Patents <2=328 — 1,515,116, for electrical switch with latch to hold it from slipping off clip held valid and infringed. Jacobs patent, No. 1,515,116, for electrical disconnect switch with free floating blades and latch to hold .switch from slipping off clips, held valid and infringed. Appeal from the District Court of the United States for the Western District of New York. Suit by the Electrical Engineers’ Equipment Company against the Champion Switch Company. From an interloentory decree holding valid and infringed Getts patent, No. 1,212,161, and Jacobs patent, No. 1,515,116, fendant appeals. Modified, and affirmed, as modified. .Both patents a.re for electrical switches, called “disconnect” switches, and used for carrying large quantities of current. Getts’ disclosure presupposed two terminals, or “clips,” which the switch proper was to bridge. It had been usual to have each clip in two blades, between which a single blade of the switch proper was wedged, when closed. Difficulties in the contact had been experienced, which it was the object of the invention to avoid. Switches had later been made of two blades, pivoted on the outside of one clip, and falling astride the other upon closure. These were fixed at an inalterable interval from each other by bolts pressing their free ends against a separating block. As the established interval was somewhat less than the width of the clip, the clip pressed the blades apart, the pressure being created by the resiliency of the blades themselves. Difficulties had, however, arisen in this device also because the contacts 'and pressures were not even over the whole surface of the clip, and the flow of current depends upon the completeness and the pressure of the contact. Getts’ patent was to remedy this defect by making the ends of the blades free to move to and from each other — -“free-floating” as it was called. To the outer ends of the blades was fastened a manipulating handle, the nearer end of which constituted the separating block. It was held by bolts loosely fitting in holes in the blades, so as to allow their necessary movement to and fro. In the form here in question two other bolts were inserted through the blades, likewise loosely fitted, one on the far, and one on the near, side of the clip. Pressure upon the clip was exerted by placing spring washers on these bolts at the outside of each blade, so that, when the blades descended astride the clip, it forced them apart against the resistance of the washers. In this way the inner sides of the blades were brought in firm and complete contact with the whole area of the clip. The Jacobs patent was for a switch like Getts’, and for an improvement on it. The features here in suit are two: A latch to hold the switch from slipping off the clip; and means for exerting pressure different from Getts’ spring washers. The latch was a complicated mechanism, difficult to describe in words, hut generally speaking as follows: The further edge of the clip was notched and the top beveled. Between the outer ends of the blades a latch was placed, moving longitudinally and spring-actuated, so that as the blades descended the bevel pushed out the latch towards the blade ends, until it had descended below the notch, when the spring drove it into place beneath the notch and held the blades firm. To disengage the latch a pivoted member was placed beyond it. and between the blade ends, so designed as to pull out the latch beyond the notch, when the pivoted member’s outer end was rotated. This member had lugs, which bore beneath ears extending laterally from the outer end of the latch. The second feature consisted in supplying the place of the spring washers by a saddle on the outside of each blade, straddling the clip. Inside the saddle on each side was a circular concave spring member, held in place by the saddle, and exerting a force at its own edge upon the outside of the blade to press it against the clip. The saddles were held in place by the bolts on either side of the clip, running through each blade and loosely fitted in the holes. The alleged infringement differed in design from Jacobs’ patent only in two respects. The defendant asserted and the plaintiff denied that the blades did not move to and fro as respects each other; both agreed that the spring pressure means, instead of being like the disclosure, was a single piece of metal on either side, anchored by the bolts, and bent eonvexly to the blade, and depending for its action upon its distortion if the blades were moved apart. This piece was in general triangular in form, and fastened by only one bolt at its near end, as opposed to Jacobs, which had two bolts on either side of the clip. The defense was that the bearing surface was only in a line, or small vertical surface, instead of in a circle, as in Jacobs. The Jacobs switch was the final step of a series, or, as the plaintiff chose to call it, in an evolution. More than two years before Getts applied for his patent, the plaintiff had made a similar two-bladed switch, called in the record the “Detroit switch.” “Free-floating”, blades straddled the clip, but they were of unequal length. The end of the shorter blade, was just long enough to carry the bolt on the outside of the clip, but the longer blade extended much further, and had on its inner side a block which contained a housed latch and releasing member, not dissimilar to the latch and member of Jacobs. Thereafter Getts’ patent appeared, and later, but more than two years before Jacobs’ application, another form, Exhibit 2, which had -the complete external appearance of the Jacobs switch. The lugs on the latch of this switch were, however, of different shape, and these switches, whenever installed, proved unsatisfactory, and had to be . replaced. Besides the Detroit switch and Exhibit No. 2, the defendant proved the use prior to Getts’ application of another two-bladed switch made by one Cartwright. Here the blades when in position were screwed together by a threaded bolt, actuated by a lever and putting pressure upon two springs, held in place by turning back the ends of the blades. The development of the plaintiff’s business was continuous over a period of seven years, culminating in Jacobs’ application in 1919. Its first “disconnect” switch had appeared in 1912; it was not free-floating. In 1913 was the first design for a lock, which was that installed in the “Detroit switch.” In 1916 Exhibit 2 appeared and was installed, but, as has appeared, was unsatisfactory. It, however, embodied Getts’ patent, which the plaintiff had acquired before issue. Jacobs, an expert then in the employ of the General Electric Company, came to the plaintiff in October of 1916, and with his contribution the plaintiff’s switch reached its final form. It has had a very considerable success, and has been adopted by the General Electric Company. The District Judge granted an interlocutory decree on August 6, 1926, and thereafter denied a motion for a rehearing. On February 19, 1927, the defendant filed what it called a petition in the nature of a bill of review, with voluminous affidavits, which the plaintiff- answered. The judge consented to entertain this petition, considered the affidavits, and affirmed his previous ruling. The deeree then entered, which is that appealed from, provided that upon the pleadings, the original proofs, and “those taken and filed on the reopening' of the cause under the bill of review and answer,” the original interlocutory deeree should be made the interlocutory deeree on the bill of review, and that the injunction therein should be continued in full force; further, that the proceedings had before the master should be regarded as had under the deeree on the bill of review. William S. Hodges, of Washington, D. C., Daniel J. Kenefick, of Buffalo, N. Y.,' and Oscar S. Blinn, of New York City, for appellant. Charles A. Brown and John A. Dienner, both of' Chicago, Ill., for appellee. Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges. L. HAND, Circuit Judge (after stating the facts as above). However anomalous may be a bill of review, or a bill in the nature of a bill of review, before final decree, we are content to accept this one as the equivalent of a petition for rehearing upon new evidence. Even so, the proceedings were quite irregular. The motion should have been granted, the first decree vacated, the new proofs taken and a now decree entered, if we are to have jurisdiction. Strictly speaking nothing of the sort was done, hut the first decree was made the decree on the bill. However, the affidavits were considered along with the old proof and it seems to us that, however defective the form, in substance the decree appealed from is a new decree, entered upon all the evidence, old and new, and the only interlocutor}’ decree now outstanding in the case, Armat, etc., Co. v. Edison Mfg. Co. (C. C. A. 2), 125 F. 939. In spite of the formal irregularity of what took place, the substance is such as gives us jurisdiction of the controversy. The only attack upon the validity of Getts’ patent worthy the name is from the “Detroit switch” and the “Cartwright switch.” . The “Detroit switch” did not have two blades, held together by a bolt and held apart by a spacing block between their outer ends. It is true that in operation this switch did clamp the two blades against the clip, just as Getts’ switch did; but the two blades could move together only through the two bolts one on either side of the clip. Moreover, as the blades had to bo free to approach or recede, they could not be solidly fastened together by the bolts; they must “float.” This was an essential feature of the structure, if it was to operate like Getts. It necessarily resulted from this design that, when the switch was pulled down upon the terminal, tho longer arm must pull down the shorter only by means of the two bolts that connected them. This tended to twist the two out of alignment, and the plaintiff asserts that it made the switch short-lived and interfered with the contact. To, this assertion we need not assent, for it is quite enough that the mode of operation and the structure differed, and that these differences resulted in the entire elimination of tho older type, and the substitution of the patented disclosure. The Cartwright switch is even more foreign to the patent. Here there was nothing at all which automatically pressed the floating blades upon the clip. On the contrary, after the switch had been closed, the blades were in loose contact, and had to be pressed against the clip by a lever operating by a screw thread and two springs. It is apparent that this has nothing whatever to do with Getts’ patent. Thus there is no valid anticipation. The defendant’s argument on the issue of infringement is that the blades of its switch do not in fact move to and from the spacing block, but that, on the contrary, they exert pressure upon the terminal only by their own resiliency, as in tho early two-bladed switches. It is a complete answer to this that the defendant’s own witness, Henke, acknowledged that there was a total movement of about a fifty-third of an inch. The play in the plaintiff’s practice is only one thirty-second of an inch, and infringement is not avoided by decreasing the amount, if the operation remains the same. We are not impressed by the attempt to turn this difference in degree into one of kind. If the defendant wishes to lock the ends of the blades to the spacing block so tightly that they will not move at all, it is easy to do so, and it will escape the injunction. While the bolt head is not in close contact with both blades when the switch is raised, that proves nothing. The important action is the movement to and fro of tho blades with respect to each other, and with the proof of this was proved the issue of infringement. Of the two classes of claims contained in the Jacobs patent, the latch and the clamping springs, the validity of the first alone is challenged. The nearest approach by way of anticipation is Defendant’s Exhibit 2, which was sold and installed both at St Louis and at Detroit. If it had worked successfully, perhaps it would have boon a good anticipation; at least, we shall assume as much. So far as we can see, the only difference between it and Jacobs’ disclosure is that the head of the latch has lugs of slighter strength than the solid T-end disclosed in tho patent, and this is not a feature of any of the claims. However, it is undisputed that all of these switches were unsatisfactory in operation, were taken out by the buyers, and were succeeded by the switch of the patent. Just what tho trouble was does not appear with entire certainty, though it is clear from Jacobs’ cross-examination that the lugs were not strong enough and broke in service. What were the, other difficulties, if any, is left wholly to speculation. The rule is that the defendant has the burden of proving that the alleged prior use was of an operable machine, for neither a prior patent nor a prior use is a good anticipation, if it is inoperable. Keystone Mfg. Co. v. Adams, 151 U. S. 139, 145, 14 S. Ct. 295, 38 L. Ed. 103; Kirchberger v. Amer., etc., Co. (C. C. A. 2) 128 F. 599, 605. We can see no difference between inoperability due to defective design-mg, by which the parts will not from the outset co-operate together at all, and that due to weak parts, which will break down in service. Nor do we think that a machine which breaks down under service is within the rule that an anticipation need not work as well as the patent. It will not do the work intended at all, because that is not confined to the initial movements. However, if the correction is obvious to the ordinary mechanic, the defect cannot be vital. In the case of a prior patent the claims would still be valid, if the correction was at once' apparent; a mere mistake in the disclosure is not fatal. Yet, if such a patent would be valid, it can only be because the public gets a good consideration for the monopoly, which means that, despite its defects, it contributes to the art. The same rule must apply to prior uses. Hence we conclude that, since the switches, Exhibit No. 2, were actually sold, not as experiments, but for commercial use, the fact that they were unsuccessful, because of an immediately remediable defect, would be irrelevant; they would still be anticipations. So the question is whether the defendant has shown that the defects were of a kind to be corrected without invention. It seems to us that the evidence does not justify that conclusion. The plaintiff was well skilled in the art; it had already been working for seven years upon the general subject of “disconnect” switches, and had tried two earlier forms; Exhibit No. 2 was the third. It is apparent that the problems involved were not easy, and that structures thought adequate by competent persons turned bad. The buyers were themselves engaged in electrical development; presumably they had the competence of the ordinary artisan, and, indeed, much more. They did'not themselves make the necessary changes, and, so far as appears, they did not suggest them. Jacobs, a new mind in this branch of the art, took the last step, and converted failure into success, and that a substantial success. In the light of the f oregoing, we should have to substitute our own uninformed speculation for the history of the art. We are, indeed, well aware of the hazards of such inferences; but, when all is said, in such cases there is nothing more reliable at hand. We can only resort to trite convention, and repeat that, if the change was so apparent, it should have earlier appeared.' The other alleged anticipation is the Detroit switch. The lateh was not of the Jacobs form; less like it, indeed, than Exhibit No. 2; and the member which operated it did not extend beyond the ends of the blades, being housed in the block attached to the longer. Verbally, at any rate, it does not read upon claims 1, 2, and 3. The difference is a slight one, as we have said; but the Detroit switch was inherently defective, and never got any currency. The member which operated the lateh lay loosely in the block, and was also housed in it. The aperture, being in the body of the housing, admitted of only a small play for the member, and was too small, if the blades were narrow. These were substantial defects, or, if not, substantial differences between the two. Not until after it had passed through the intermediate form of Exhibit No. 2 did invention come to an equilibrium. Again we say that it would be mere assumption to suppose that no invention was necessary to skip that step and to reach the desired f orm. The prior patents add nothing closer than what we have discussed, and there remains only the question of infringement. As to the claims for the lateh, no point is made; but claims 7, 35, and 38, involving the spring compression feature, are in issue. It is enough for these to say that, though the means is modified, it is in substance the same as is the result. The pressure in the alleged infringement is not confined to a geometrical line perpendicular to the blades. Eather it is an area of pressure, more or less broad on either side of the clip, forcing the blades together through the bearing of the springs upon the both heads. This is an equivalent of the claims whether or not it is an improvement. There were 9 claims in Getts’ patent and 39 in Jacobs’, of which all of the first and 27 of the second were here put in suit. Getts’ claims are not divided into classes determined by separate features of the disclosure; Jacobs’ were, as we have said. It was altogether unnecessary to cumber the ease with the mass of verbiage which these claims present in the aggregate. We have long enough protested against the practice; our complaints still l'emain unattended, and will be so until we take some action actively to discourage it. We mean to do so. Among several claims, the most general, which covers the alleged infringements, alone is necessary to a decision of the controversy; the rest there-' after necessarily present moot issues. If the defendant infringes the more general, a fortiori he infringes the particular. The plaintiff alleges that he has committed a tort in selling the device contrary to his monopoly. We so decide. He asks an injunction; we give it. Whether he has committed other torts is of no consequence. The dialectic which picks its way through the tangled language of 21 abstract statements of the same concept is barren and idle. We decline to engage in it. Wo hold claim 1 of the Getts patent, and claims 1 and 7 of the Jacobs patent, valid and infringed, and direct an injunction to go on each. We direct that the decree be modified, by dismissing the bill as to the other claims in suit without prejudice. The appellee will take no costs of the appeal for this reason. Decree modified as above, and, as modified, affirmed. Question: Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_state	19	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". Gerardeen M. SNYDER as the Executrix of the Succession of Eric Snyder and Charles Keenan, Plaintiffs-Appellants, and Allen Samuels, Inc., Intervenor-Appellant, v. CHAMPION REALTY CORPORATION, Defendant-Appellee. No. 79-2514. United States Court of Appeals, Fifth Circuit. Unit A Dec. 5, 1980. Rehearing Denied Dec. 31, 1980. William F. Wessel, Windhorst, Heisler, De Laup & Wysocki, Frederick P. Heisler, New Orleans, La., for Snyder, et al. Reynolds, Nelson & Theriot, Charles W. Nelson, Jr., New Orleans, La., for defendant-appellee. Before WISDOM, GARZA and REAV-LEY, Circuit Judges. WISDOM, Circuit Judge: The issue in this diversity case is whether the plaintiffs, real estate brokers, are entitled under Louisiana law to recover a commission from the defendant. We agree with the district court that they are not, and we affirm the grant of summary judgment for the defendant. The plaintiffs in this case are Eric Snyder, Allen Samuels, Inc. (“Samuels”), and Charles Keenan, three real estate brokers. The defendant is Champion Realty Corp. (“Champion”). Some time in 1974 Champion engaged Snyder and Samuels as non-exclusive agents for the sale of a large tract of land in Louisiana known as the Garyville tract. Champion offered the land for a minimum cash price of $125 an acre, or a total of $3,950,000, with Champion reserving all oil and gas rights. Champion agreed to pay any excess obtained over $125 an' acre to the brokers as their commission. Champion also agreed to “look at” any other deals that the brokers might arrange. Snyder and Samuels in turn obtained Keenan’s assistance and agreed to split the commission with him. The brokers introduced Champion to a buyer, Brian Investments, Ltd. (“Brian”), willing to pay $150 an acre. The parties reached an agreement and put it into two documents on October 4, 1974. Champion and Brian signed an Agreement to Buy and Sell, calling for sale of the entire tract at $125 an acre, cash, with Champion reserving all gas and oil rights. Champion acknowledged the brokers’ role in arranging the sale but did not promise to pay a commission. At the same time, Brian and the brokers signed a Commission Agreement for $25 an acre. Champion twice tendered title to Brian (on March 27 and April 28, 1975). Brian defaulted both times. Brian has never performed either of the October 4 agreements. Sometime after the second default Champion and Brian opened direct negotiations. As a result, on May 4, 1976, they entered into a new agreement. Again the price was $125 an acre, but Champion reserved only half of the oil and gas rights. Champion also promised to pay a commission of $7.50 an acre to a broker to be designated by Brian. This sale took place on October 1, 1976, on a credit basis. Brian later designated itself as the broker to collect the $7.50 commission. The agreement made no provision for payment of any commission to the plaintiffs, nor were they notified of or invited to participate in the negotiations or agreement. The plaintiffs sued Champion (but not Brian) in Louisiana state court; Champion removed the action to federal district court. The parties made extensive stipulations of fact. On cross-motions for summary judgment, the district court granted judgment for Champion. The plaintiffs concede that they cannot recover from Champion in contract on the original brokerage agreement. Under that agreement, Champion’s liability for any commission was subject to the condition precedent that the sale price exceed the stated net price of $125 an acre. The plaintiffs brought in a buyer willing to pay $150 an acre, but they could not consummate a sale for any such amount. Instead, the plaintiffs base their claim on a theory of unjust enrichment. The Louisiana courts have often invoked such a theory in proper circumstances to award equitable commissions to real estate brokers. The general rule is that when a broker brings a buyer and seller together, he is entitled to a commission on the sale even though (1) the sale takes place after the termination of the broker’s agency agreement; (2) the buyer and seller negotiate the deal themselves in the broker’s absence; (3) the sale price is less than that originally asked by the seller or offered by the buyer; or (4) there is no actual fraud or collusion to deprive the broker of his commission. J. R. Grand Agency, Inc. v. Staring, 1924, 156 La. 1094, 101 So. 723; Grace Realty Co. v. Peytavin Planting Co., 1924, 156 La. 93, 100 So. 62; Gottschalk v. Jennings, 1846, 1 La.Ann. 5; Sleet v. Gray, La.App. 1977, 351 So.2d 286; Hamberlin v. Bourgeois, La.App. 1973, 289 So.2d 358; Slimer v. White, La.App. 1973, 275 So.2d 468; Keating v. Lachney, La.App. 1968, 216 So.2d 906; Saturn Realty, Inc. v. Muller, La.App. 1967, 196 So.2d 321. Assuming that the plaintiffs in this case were instrumental in bringing about this sale, however, it does not follow from these authorities that they may recover in unjust enrichment against Champion. The cases cited all differ from this case in one crucial respect: in every instance there was a promise to pay either a flat sum or a stated percentage of the sale price. In some cases, as in this case, the seller named a minimum net price. But in no case of recovery by a broker or real estate agent was the bargain structured so that the existence and amount of a commission depended directly on the receipt of a sale price exceeding the stated minimum. To restate the distinction: in all the cited cases the sellers were liable for some commission if they sold at any price to buyers procured by the plaintiffs. Those sellers tried to evade that liability by discharging the brokers or by dealing directly with the buyers behind the brokers’ backs. Here, in contrast, the seller agreed to pay a commission only if the brokers brought about a sale for more than $125 an acre. No such sale occurred; Champion received a net price of $117.50 an acre, gave credit instead of receiving cash, and was able to retain only half of the mineral rights. A party is not unjustly enriched because it “evades” a liability that never existed. The plaintiffs assert that there is a fact issue as to whether Champion committed actual fraud, but they do not draw our attention to any facts that would support the accusation. A bare, conclusory assertion cannot defeat a motion for summary judgment. The plaintiffs, somewhat uncertain how to pigeon-hole their claim, argue that, despite the terms of the brokerage contract, Champion is guilty of “legal fault”, a kind of constructive bad faith, under the civilian doctrine of culpa in contrahendo. The doctrine is, in general terms, the civilian equivalent of the common law concept of promissory estoppel. It is used as a basis for compensating one party for his expenses incurred in reliance on another party’s offer to form a unilateral contract where that offer is withdrawn before acceptance. See Comment, Culpa in Contrahendo, in German, French and Louisiana Law, 15 Tul.L. Rev. 87 (1940). It has nothing to do with this case. We recognize that actual fraud is not a necessary element to a broker’s recovery for unjust enrichment. Nevertheless, we cannot agree that, under the Louisiana cases we have cited above, the mere act of selling to the broker’s buyer without cutting in the broker establishes bad faith. Rather, when the cases speak of bad faith, they refer to some active interference with the brokers’ ability to earn their contractual commissions. See J. R. Grand Agency, 101 So. at 724; Grace Realty, 100 So. at 63; Gottsch-aIk, 1 La.Ann. at 6-7. Here the plaintiffs had let the matter drop after Brian’s defaults; there was no continued effort with which Champion could have interfered. Nor do we agree, in the circumstances of this case, that Champion’s failure to notify the plaintiffs of the new negotiations establishes fault. Assuming that Champion had any duty to do so, the plaintiffs suffered no harm from the omission. If Champion could not persuade Brian to pay Champion’s original stated minimum net, it is unlikely that the plaintiffs could have persuaded Brian to pay a price above that minimum. The plaintiffs complain that this result allows a seller, faced with a balky buyer, to make “price concessions” by bargaining away the broker’s commission. That, however, is an inherent feature of the type of brokerage agreement the plaintiffs made. They agreed to accept only the excess money as their commission. They likewise chose to present Brian as a customer; thereby they took the risk that Brian would back away from its promise to pay $150 an acre. To protect their commission they could have extracted a promise from Brian (as in fact they did), or they could have found another, more reliable buyer (as they did not). The plaintiffs were entitled to expect that Champion would not sell at $125 if they produced a buyer willing and able to buy at $150. They were not entitled to expect such abstinence if they did not produce such a prospect. Perhaps it is not the plaintiffs’ fault that the sale they put together did not go through, but certainly it is not Champion’s fault. Since we find that Champion received no unjust enrichment at the plaintiffs’ expense, we conclude that Champion is entitled to judgment as a matter of law. We therefore AFFIRM the judgment of the district court. . Eric Snyder died during pendency of the case in the district court. Gerardeen Snyder was substituted as his Executrix. . The doctrine of unjust enrichment came from Roman law, flourished in France, had an unfriendly reception in England, is well developed in the common law states and, according to the Louisiana Supreme Court, emerged in Louisiana as early as 1814 in Meunier v. Duperron, 3 Mart. (O.S.) 285. Minyard v. Curtis Products, Inc., 1967, 251 La. 624, 205 So.2d 422. Min-yard, the leading case in Louisiana, states that the civil law action de in rem verso is an action for unjust enrichment. 205 So.2d at 427. The negotiorum gestio action offers another avenue. See Comment, Negotiorum Gestio in Louisiana, 7 Tul.L.Rev. 253 (1933). There is no specific codal article on the subject, although the action could be based on three articles. Article 21, which has no corresponding article in the French or Quebec codes, provides, in part, that “In all civil matters, where there is no express law, the judge is bound to proceed and decide according to equity”. Article 1965, defining equity, states, in part, that it rests “on the moral maxim of the law that no one ought to enrich himself at the expense of another”. Article 2294, dealing with the concept of quasi-contract, furnishes a third basis for the unjustified enrichment doctrine. See Comment, Actio De In Rem Verso in Louisiana: Minyard v. Curtis Products, Inc., 43 Tul.L.Rev. 263 (1969). See generally Nicholas, Unjustified Enrichment in Civil Law, Part I, 36 Tul.L.Rev. 603 (1962); Part II, 37 Tul.L.Rev. 49 (1962). .To recover on an unjust enrichment theory in Louisiana, a broker must be the “procuring cause” of the final sale. Ordinarily a broker is the procuring cause if he brings the parties together. E. g., Keating, 216 So.2d at 909-10. But if the parties fail to make a sale, part ways, and then come together again on their own initiative after a lapse of time, the broker does not earn a commission on the sale if he has no hand in the renewed dealings. Ford v. Shaffer, 1918, 143 La. 635, 79 So. 172; Cramer v. Guercio, La.App. 1976, 331 So.2d 550; Turner v. Swann, 1919, 11 La.App. 689, 124 So. 717. Here there is a factual dispute as to when Brian and Champion resumed negotiations and whether these were a mere continuation of the earlier negotiations or a new start. This alone is enough to defeat the plaintiffs’ motion for summary judgment, since it creates a genuine issue as to a fact material to their right to recover. Fed.R.Civ.P. 56(c). We nevertheless affirm summary judgment for Champion because we find that it is entitled to judgment as a matter of law even if the plaintiffs were the procuring cause of the sale. . In some cases there was no express agreement as to the amount of the brokers’ compensation. Apparently the courts assumed an implied contract to pay the prevailing percentage rate on realty brokerage agreements. . In the case of percentage commissions, of course, the recovery is the agreed percentage of the actual sale price, even if that price is less than the original asking price. Where the brokerage agreement calls for a commission stated in dollars on a sale for a stated minimum, and the sale takes place at a lower price, the rule is less clear. In Keating the appellate court awarded the full agreed amount, 216 So.2d at 907, .910. In Grace Realty, though, the supreme court in dictum suggested a pro rata share, 100 So. at 63. In any case, the point is that in all cases there existed some liability for a commission despite sale at below the stated minimum. . See Grace Realty, 100 So. at 64. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_casetyp1_7-2	E	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". UNITED STATES of America; South Carolina Department of Health and Environmental Control, Plaintiffs-Appellees, v. MONSANTO COMPANY; Allied Corporation; E.M. Industries, Inc.; Defendants-Appellants, American Insurance Association; Chemical Manufacturers Association Amici Curiae. and SOUTH CAROLINA RECYCLING AND DISPOSAL, INC.; Columbia Organic Chemical Company; Oscar Seidenberg; Harvey Hutchinson; Eaton Corporation; Rad Services, Inc.; Aquair Corporation; Defendants, v. G.D. SEARLE & COMPANY; Will Ross, Inc., Third Party Defendants. UNITED STATES of America; South Carolina Department of Health and Environmental Control, Plaintiffs-Appellees, v. Oscar SEIDENBERG; Harvey Hutchinson; Defendants-Appellants, American Insurance Association; Chemical Manufacturers Association, Amici Curiae. and MONSANTO COMPANY; Allied Corporation; Aquair Corporation; E.M. Industries, Inc.; South Carolina Recycling and Disposal, Inc.; Columbia Organic Chemical Company; Eaton Corporation; Rad Services, Inc., Defendants, v. G.D. SEARLE & COMPANY; Will Ross, Inc., Third Party Defendants. UNITED STATES of America Plaintiff-Appellant, and South Carolina Department of Health and Environmental Control, Plaintiff, v. MONSANTO COMPANY; Allied Corporation; E.M. Industries Inc.; South Carolina Recycling and Disposal, Inc.; Oscar Seidenberg; Harvey Hutchinson; Defendants-Appellees, American Insurance Association; Chemical Manufacturers Association, Amici Curiae. and COLUMBIA ORGANIC CHEMICAL COMPANY; Eaton Corporation; Rad Services, Inc.; Aquair Corporation, Defendants, v. G.D. SEARLE & COMPANY; Will Ross, Inc., Third Party Defendants. Nos. 86-1261, 86-1263 and 86-1265. United States Court of Appeals, Fourth Circuit. Argued Oct. 8, 1987. Decided Sept. 7, 1988. George Clemon Freeman, Jr. (William F. Kennedy, Alfred R. Light, Thomas E. Knauer, Hunton & Williams, Richmond, Va., on brief), Isadore S. Bernstein (Hammer & Bernstein, Columbia, S.C. on brief), for defendants-appellants. David Carlisle Shilton, Dept, of Justice (F. Henry Habicht, II, Asst. Atty. Gen., Myles E. Flint, Deputy Asst. Atty. Gen., Washington, D.C., Vinton D. Lide, U.S. Atty., Mary G. Slocum, Asst. U.S. Atty., Columbia, S.C., Jacques B. Gelin, Dept, of Justice, Washington, D.C., Walton J. McLeod, III, Gen. Counsel, Walterboro, S.C., William T. Lavender, Jr., Dennis N. Cannon, Jr., Staff Counsel, South Carolina Dept, of Health & Environmental Control, Columbia, S.C., Charles De Saillan, Dov Weitman, E.P.A., Washington, D.C., on brief), for plaintiffs-appellees. (Edward W. Warren, David G. Norrell, Amy R. Sabrin, Kirkland & Ellis, David F. Zoll, Washington, D.C., Barbara A. Hindin, Los Angeles, Cal., on brief), for amicus curiae Chemical Mfrs. Ass’n. (Thomas W. Brunner, Laura A. Foggan, Piper & Marbury, Washington, D.C., on brief) for amicus curiae American Ins. Ass’n. Before WIDENER, SPROUSE and ERVIN, Circuit Judges. SPROUSE, Circuit Judge: Oscar Seidenberg and Harvey Hutchinson (the site-owners) and Allied Corporation, Monsanto Company, and EM Industries, Inc. (the generator defendants), appeal from the district court’s entry of summary judgment holding them liable to the United States and the State of South Carolina (the governments) under section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). 42 U.S.C.A. § 9607(a) (West Supp.1987). The court determined that the defendants were liable jointly and severally for $1,813,624 in response costs accrued from the partial removal of hazardous waste from a disposal facility located near Columbia, South Carolina. The court declined, however, to assess prejudgment interest against the defendants. We affirm the district court’s liability holdings, but we vacate and remand for reconsideration its denial of prejudgment interest. I. In 1972, Seidenberg and Hutchinson leased a four-acre tract of land they owned to the Columbia Organic Chemical Company (COCC), a South Carolina chemical manufacturing corporation. The property, located along Bluff Road near Columbia, South Carolina, consisted of a small warehouse and surrounding areas. The lease was verbal, on a month-to-month basis, and according to the site-owners’ deposition testimony, was executed for the sole purpose of allowing COCC to store raw materials and finished products in the warehouse. Seidenberg and Hutchinson received monthly lease payments of $200, which increased to $350 by 1980. In the mid-1970s, COCC expanded its business to include the brokering and recycling of chemical waste generated by third parties. It used the Bluff Road site as a waste storage and disposal facility for its new operations. In 1976, COCC’s principals incorporated South Carolina Recycling and Disposal Inc. (SCRDI), for the purpose of assuming COCC’s waste-handling business, and the site-owners began accepting lease payments from SCRDI. SCRDI contracted with numerous off-site waste producers for the transport, recycling, and disposal of chemical and other waste. Among these producers were agencies of the federal government and South Carolina, and various private entities including the three generator defendants in this litigation. Although SCRDI operated other disposal sites, it deposited much of the waste it received at the Bluff Road facility. The waste stored at Bluff Road contained many chemical substances that federal law defines as “hazardous.” Between 1976 and 1980, SCRDI haphazardly deposited more than 7,000 fifty-five gallon drums of chemical waste on the four-acre Bluff Road site. It placed waste laden drums and containers wherever there was space, often without pallets to protect them from the damp ground. It stacked drums on top of one another without regard to the chemical compatibility of their contents. It maintained no documented safety procedures and kept no inventory of the stored chemicals. Over time many of the drums rusted, rotted, and otherwise deteriorated. Hazardous substances leaked from the decaying drums and oozed into the ground. The substances commingled with incompatible chemicals that had escaped from other containers, generating noxious fumes, fires, and explosions. On October 26, 1977, a toxic cloud formed when chemicals leaking from rusted drums reacted with rainwater. Twelve responding firemen were hospitalized. Again, on July 24, 1979, an explosion and fire resulted when chemicals stored in glass jars leaked onto drums containing incompatible substances. SCRDI’S site manager could not identify the substances that caused the explosion, making the fire difficult to extinguish. In 1980, the Environmental Protection Agency (EPA) inspected the Bluff Road site. Its investigation revealed that the facility was filled well beyond its capacity with chemical waste. The number of drums and the reckless manner in which they were stacked precluded access to various areas in the site. Many of the drums observed were unlabeled, or their labels had become unreadable from exposure, rendering it impossible to identify their contents. The EPA concluded that the site posed “a major fire hazard.” Later that year, the United States filed suit under section 7008 of the Resource Conservation and Recovery Act, 42 U.S.C. § 6973, against SCRDI, COCC, and Oscar Seidenberg. The complaint was filed before the December 11, 1980, effective date of CERCLA, and it sought only injunctive relief. Thereafter, the State of South Carolina intervened as a plaintiff in the pending action. In the course of discovery, the governments identified a number of waste generators, including the generator defendants in this appeal, that had contracted with SCRDI for waste disposal. The governments notified fhe generators that they were potentially responsible for the costs of cleanup at Bluff Road under section 107(a) of the newly-enacted CERCLA. As a result of these contacts, the governments executed individual settlement agreements with twelve of the identified off-site producers. The generator defendants, however, declined to settle. Using funds received from the settlements, the governments contracted with Triangle Resource Industries (TRI) to conduct a partial surface cleanup at the site. The contract required RAD Services, Inc., a subsidiary of TRI, to remove 75% of the drums found there and to keep a log of the removed drums. RAD completed its partial cleanup operation in October 1982. The log it prepared documented that it had removed containers and drums bearing the labels or markings of each of the three generator defendants. The EPA reinspected the site after the first phase of the cleanup had been completed. The inspection revealed that closed drums and containers labeled with the insignia of each of the three generator defendants remained at the site. The EPA also collected samples of surface water, soil, and sediment from the site. Laboratory tests of the samples disclosed that several hazardous substances contained in the waste the generator defendants had shipped to the site remained present at the site. Thereafter, South Carolina completed the remaining 25% of the surface cleanup. It used federal funds from the Hazardous Substances Response Trust Fund (Superfund), 42 U.S.C. § 9631, as well as state money from the South Carolina Hazardous Waste Contingency Fund, S.C.Code Ann. § 44-56-160, and in-kind contribution of other state funds to match the federal contribution. In 1982, the governments filed an amended complaint, adding the three generator defendants and site-owner Harvey Hutchinson, and including claims under section 107(a) of CERCLA against all of the non-settling defendants. The governments alleged that the generator defendants and site-owners were jointly and severally liable under section 107(a) for the costs expended completing the surface cleanup at Bluff Road. In response, the site-owners contended that they were innocent absentee landlords unaware of and unconnected to the waste disposal activities that took place on their land. They maintained that their lease with COCC did not allow COCC (or SCRDI) to store chemical waste on the premises, but they admitted that they became aware of waste storage in 1977 and accepted lease payments until 1980. The generator defendants likewise denied liability for the governments’ response costs. Among other defenses, they claimed that none of their specific waste materials contributed to the hazardous conditions at Bluff Road, and that retroactive imposition of CERCLA liability on them was unconstitutional. They also asserted that they could establish an affirmative defense to CERCLA liability under section 107(b)(3), 42 U.S.C. § 9607(b)(3), by showing that the harm at the site was caused solely through the conduct of unrelated third parties. All parties thereafter moved for summary judgment. After an evidentiary hearing, the district court granted the governments’ summary judgment motion on CERCLA liability. The court found that all of the defendants were responsible parties under section 107(a), and that none of them had presented sufficient evidence to support an affirmative defense under section 107(b). The court further concluded that the environmental harm at Bluff Road was “indivisible,” and it held all of the defendants jointly and severally liable for the governments’ response costs. United States v. South Carolina Recycling & Disposal, Inc., 653 F.Supp. 984 (D.S.C.1984) (SCRDI). As to the site-owners’ liability, the court found it sufficient that they owned the Bluff Road site at the time hazardous substances were deposited there. Id. at 993 (interpreting 42 U.S.C.A. § 9607(a)(2) (West Supp.1987)). It rejected their contentions that Congress did not intend to subject “innocent” landowners to CERCLA liability. The court similarly found summary judgment appropriate against the generator defendants because it was undisputed that (1) they shipped hazardous substances to the Bluff Road facility; (2) hazardous substances “like” those present in the generator defendants’ waste were found at the facility; and (3) there had been a release of hazardous substances at the site. SCRDI, 653 F.Supp. at 991-93 (interpreting 42 U.S. C.A. § 9607(a)(3) (West Supp.1987)). In this context, the court rejected the generator defendants’ arguments that the governments had to prove that their specific waste contributed to the harm at the site, and it found their constitutional contentions to be “without force.” SCRDI, 653 F.Supp. at 992-93, 995-98. Finally, since none of the defendants challenged the governments’ itemized accounting of response costs, the court ordered them to pay the full $1,813,624 that had been requested. Id. at 1009, 1014. It refused, however, to add prejudgment interest to the amount owed. Id. at 1009. This appeal followed. II. The site-owners and the generator defendants first contest the imposition of CERCLA liability vel non, and they challenge the propriety of summary judgment in light of the evidence presented to the trial court. The site-owners also reassert the “innocent landowner” defense that the district court rejected, and claim that the court erroneously precluded them from presenting evidence of a valid affirmative defense under section 107(b)(3), 42 U.S.C. § 9607(b)(3). The generator defendants likewise repeat their arguments based on the governments’ failure to establish a nexus between their specific waste and the harm at the site. They also claim that the trial court ignored material factual issues relevant to affirmative defenses to liability. We address these contentions sequentially, but pause briefly to review the structure of CERCLA’s liability scheme. In CERCLA, Congress established “an array of mechanisms to combat the increasingly serious problem of hazardous substance releases.” Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1078 (1st Cir.1986). Section 107(a) of the statute sets forth the principal mechanism for recovery of costs expended in the cleanup of waste disposal facilities. At the time the district court entered judgment, section 107(a) provided in pertinent part: (a) Covered persons; scope Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section— (2)any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, [and] (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility owned or operated by another party or entity and containing such hazardous substances, and (4) ... from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for— (A) all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan. 42 U.S.C.A. § 9607(a) (West Supp.1987). In our view, the plain language of section 107(a) clearly defines the scope of intended liability under the statute and the elements of proof necessary to establish it. We agree with the overwhelming body of precedent that has interpreted section 107(a) as establishing a strict liability scheme. Further, in light of the evidence presented here, we are persuaded that the district court correctly held that the governments satisfied all the elements of section 107(a) liability as to both the site-owners and the generator defendants. A. Site-Owners’ Liability In light of the strict liability imposed by section 107(a), we cannot agree with the site-owners contention that they are not within the class of owners Congress intended to hold liable. The traditional elements of tort culpability on which the site-owners rely simply are absent from the statute. The plain language of section 107(a)(2) extends liability to owners of waste facilities regardless of their degree of participation in the subsequent disposal of hazardous waste. Under section 107(a)(2), any person who owned a facility at a time when hazardous substances were deposited there may be held liable for all costs of removal or remedial action if a release or threatened release of a hazardous substance occurs. The site-owners do not dispute their ownership of the Bluff Road facility, or the fact that releases occurred there during their period of ownership. Under these circumstances, all the prerequisites to section 107(a) liability have been satisfied. See Shore Realty, 759 F.2d at 1043-44 (site-owner held liable under CERCLA section 107(a)(1) even though he did not contribute to the presence or cause the release of hazardous substances at the facility). The site-owners nonetheless contend that the district court’s grant of summary judgment improperly denied them the opportunity to present an affirmative defense under section 107(b)(3). Section 107(b)(3) sets forth a limited affirmative defense based on the complete absence of causation. See Shore Realty, 759 F.2d at 1044. It requires proof that the release or threatened release of hazardous substances and resulting damages were caused solely by “a third party other than ... one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant....” 42 U.S.C. § 9607(b)(3). A second element of the defense requires proof that the defendant “took precautions against foreseeable acts or omissions of any such third party and the consequences that could foresee-ably result from such acts or omissions.” Id. We agree with the district court that under no view of the evidence could the site-owners satisfy either of these proof requirements. First, the site-owners could not establish the absence of a direct or indirect contractual relationship necessary to maintain the affirmative defense. They concede they entered into a lease agreement with COCC. They accepted rent from COCC, and after SCRDI was incorporated, they accepted rent from SCRDI. See United States v. Northernaire Plating Co., 670 F.Supp. 742, 747-48 (W.D.Mich.1987) (owner who leased facility to disposing party could not assert affirmative defense). Second, the site-owners presented no evidence that they took precautionary action against the foreseeable conduct of COCC or SCRDI. They argued to the trial court that, although they were aware COCC was a chemical manufacturing company, they were completely ignorant of all waste disposal activities at Bluff Road before 1977. They maintained that they never inspected the site prior to that time. In our view, the statute does not sanction such willful or negligent blindness on the part of absentee owners. The district court committed no error in entering summary judgment against the site-owners. B. Generator Defendants’ Liability The generator defendants first contend that the district court misinterpreted section 107(a)(3) because it failed to read into the statute a requirement that the governments prove a nexus between the waste they sent to the site and the resulting environmental harm. They maintain that the statutory phrase “containing such hazardous substances” requires proof that the specific substances they generated and sent to the site were present at the facility at the time of release. The district court held, however, that the statute was satisfied by proof that hazardous substances “like” those contained in the generator defendants’ waste were found at the site. SCRDI, 653 F.Supp. at 991-92. We agree with the district court’s interpretation. Reduced of surplus language, sections 107(a)(3) and (4) impose liability on off-site waste generators who: “arranged for disposal ... of hazardous substances ... at any facility ... containing such hazardous substances ... from which there is a release ... of a hazardous substance.” 42 U.S.C.A. §§ 9607(a)(3), (4) (West Supp. 1987) (emphasis supplied). In our view, the plain meaning of the adjective “such” in the phrase “containing such hazardous substances” is “[ajlike, similar, of the like kind.” Black’s Law Dictionary 1284 (5th ed. 1979). As used in the statute, the phrase “such hazardous substances” denotes hazardous substances alike, similar, or of a like kind to those that were present in a generator defendant’s waste or that could have been produced by the mixture of the defendant’s waste with other waste present at the site. It does not mean that the plaintiff must trace the ownership of each generic chemical compound found at a site. Absent proof that a generator defendant’s specific waste remained at a facility at the time of release, a showing of chemical similarity between hazardous substances is sufficient. The overall structure of CERCLA’S liability provisions also militates against the generator defendants’ “proof of ownership” argument. In Shore Realty, the Second Circuit held with respect to site-owners that requiring proof of ownership at any time later than the time of disposal would go far toward rendering the section 107(b) defenses superfluous. Shore Realty, 759 F.2d at 1044. We agree with the court’s reading of the statute and conclude that its reasoning applies equally to the generator defendants’ contentions. As the statute provides — “[notwithstanding any other provision or rule of law” — liability under section 107(a) is “subject only to the defenses set forth” in section 107(b). 42 U.S. C.A. § 9607(a) (West Supp.1987) (emphasis added). Each of the three defenses established in section 107(b) “carves out from liability an exception based on causation.” Shore Realty, 759 F.2d at 1044. Congress has, therefore, allocated the burden of disproving causation to the defendant who profited from the generation and inexpensive disposal of hazardous waste. We decline to interpret the statute in a way that would neutralize the force of Congress’ intent. Finally, the purpose underlying CERC-LA’s liability provisions counsels against the generator defendants’ argument. Throughout the statute’s legislative history, there appears the recurring theme of facilitating prompt action to remedy the environmental blight of unscrupulous waste disposal. In deleting causation language from section 107(a), we assume as have many other courts, that Congress knew of the synergistic and migratory capacities of leaking chemical waste, and the technological infeasibility of tracing improperly disposed waste to its source. In view of this, we will not frustrate the statute’s salutary goals by engrafting a “proof of ownership” requirement, which in practice, would be as onerous as the language Congress saw fit to delete. See United States v. Wade, 577 F.Supp. 1326, 1332 (E.D.Pa.1983) (“To require a plaintiff under CERCLA to ‘fingerprint’ wastes is to eviscerate the statute.”). The generator defendants next argue that the trial court ignored evidence that established genuine factual issues as to the existence of an affirmative defense to liability. They maintain that summary judgment was inappropriate because they presented some evidence that all of their waste had been removed from Bluff Road prior to cleanup. We agree with the trial court, however, that the materials on which the generator defendants rely were insufficient to create a genuine issue of material fact. The generator defendants offered only conclusory allegations, principally based “on information and belief,” that their waste, originally deposited at Bluff Road, was at some time prior to 1979 transported from that facility to other sites operated by SCRDI. To withstand summary judgment under section 107(b)(3), however, the generator defendants had to produce specific evidence creating a genuine issue that all of their waste was removed from the site prior to the release of hazardous substances there. See 42 U.S.C. § 9607(b)(3). In light of the uncontroverted proof that containers bearing each of the defendants’ markings remained present at the site at the time of cleanup and the fact that hazardous substances chemically similar to those contained in the generators’ waste were found, the generator defendants’ affidavits and deposition testimony simply failed to establish complete removal as a genuine issue. See Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (summary judgment appropriately granted against nonmoving party who failed to produce evidence supporting an element essential to its case on which it bore burden of proof at trial). III. The appellants next challenge the district court’s imposition of joint and several liability for the governments’ response costs. The court concluded that joint and several liability was appropriate because the environmental harm at Bluff Road was “indivisible” and the appellants had “failed to meet their burden of proving otherwise.” SCRDI, 653 F.Supp. at 994. We agree with its conclusion. While CERCLA does not mandate the imposition of joint and several liability, it permits it in cases of indivisible harm. See Shore Realty, 759 F.2d at 1042 n. 13; United States v. ChemDyne, 572 F.Supp. 802, 810-11 (S.D.Ohio 1983). In each case, the court must consider traditional and evolving principles of federal common law, which Congress has left to the courts to supply interstitially. Under common law rules, when two or more persons act independently to cause a single harm for which there is a reasonable basis of apportionment according to the contribution of each, each is held liable only for the portion of harm that he causes. Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 260 n. 8, 99 S.Ct. 2753, 2756 n. 8, 61 L.Ed.2d 521 (1979). When such persons cause a single and indivisible harm, however, they are held liable jointly and severally for the entire harm. Id. (citing Restatement (Second) of Torts § 433A (1965)). We think these principles, as reflected in the Restatement (Second) of Torts, represent the correct and uniform federal rules applicable to CERCLA cases. Section 433A of the Restatement provides: (1) Damages for harm are to be apportioned among two or more causes where (a) there are distinct harms, or (b) there is a reasonable basis for determining the contribution of each cause to a single harm. (2) Damages for any other harm cannot be apportioned among two or more causes. Restatement (Second) of Torts § 433A (1965). Placing their argument into the Restatement framework, the generator defendants concede that the environmental damage at Bluff Road constituted a “single harm,” but contend that there was a reasonable basis for apportioning the harm. They observe that each of the off-site generators with whom SCRDI contracted sent a potentially identifiable volume of waste to the Bluff Road site, and they maintain that liability should have been apportioned according to the volume they deposited as compared to the total volume disposed of there by all parties. In light of the conditions at Bluff Road, we cannot accept this method as a basis for apportionment. The generator defendants bore the burden of establishing a reasonable basis for apportioning liability among responsible parties. Chem-Dyne, 572 F.Supp. at 810; Restatement (Second) of Torts § 433B (1965). To meet this burden, the generator defendants had to establish that the environmental harm at Bluff Road was divisible among responsible parties. They presented no evidence, however, showing a relationship between waste volume, the release of hazardous substances, and the harm at the site. Further, in light of the commingling of hazardous substances, the district court could not have reasonably apportioned liability without some evidence disclosing the individual and interactive qualities of the substances deposited there. Common sense counsels that a million gallons of certain substances could be mixed together without significant consequences, whereas a few pints of others improperly mixed could result in disastrous consequences. Under other circumstances proportionate volumes of hazardous substances may well be probative of contributory harm. In this case, however, volume could not establish the effective contribution of each waste generator to the harm at the Bluff Road site. Although we find no error in the trial court’s imposition of joint and several liability, we share the appellants’ concern that they not be ultimately responsible for reimbursing more than their just portion of the governments’ response costs. In its refusal to apportion liability, the district court likewise recognized the validity of their demand that they not be required to shoulder a disproportionate amount of the costs. It ruled, however, that making the governments whole for response costs was the primary consideration and that cost allocation was a matter “more appropriately considered in an action for contribution between responsible parties after plaintiff has been made whole.” SCRDI, 653 F.Supp. at 995 & n. 8. Had we sat in place of the district court, we would have ruled as it did on the apportionment issue, but may well have retained the action to dispose of the contribution questions. See 42 U.S.C.A. § 9613(f) (West Supp.1987). That procedural course, however, was committed to the trial court’s discretion and we find no abuse of it. As we have stated, the defendants still have the right to sue responsible parties for contribution, and in that action they may assert both legal and equitable theories of cost allocation. IV. The generator defendants raise numerous constitutional challenges to the district court’s interpretation and application of CERCLA. They contend that the imposition of “disproportionate” liability without proof of causation violated constitutional limitations on retroactive statutory application and that it converted CERCLA into a bill of attainder and an ex post facto law. They further assert, along with the site-owners, that the trial court’s construction of CERCLA infringed their substantive due process rights. The district court held that CERCLA does not create retroactive liability, but imposes a prospective obligation for the post-enactment environmental consequences of the defendants’ past acts. SCRDI, 653 F.Supp. at 996. Alternatively, the court held that even if CERCLA is understood to operate retroactively, it nonetheless satisfies the dictates of due process because its liability scheme is rationally related to a valid legislative purpose. Id. at 997-98. We agree with the court’s latter holding, and we find no merit to the generator defendants’ bill of attainder and ex post facto arguments. Many courts have concluded that Congress intended CERCLA’s liability provisions to apply retroactively to pre-enactment disposal activities of off-site waste generators. They have held uniformly that retroactive operation survives the Supreme Court’s tests for due process validity. We agree with their analyses. In Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976), the Supreme Court, in a different context, rejected a due process challenge to the retroactive operation of the liability provisions in the Black Lung Benefits Act of 1972. The Court stated that “a presumption of constitutionality” attaches to “legislative Acts adjusting the burdens and benefits of economic life,” and that “the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.” Id. at 15, 96 S.Ct. at 2892. It reasoned that although the Act imposed new liability for disabilities developed prior to its enactment, its operation was “justified as a rational measure to spread the costs of the employees’ disabilities to those who have profited from the fruits of their labor.” Id. at 18, 96 S.Ct. at 2893. The reasoning of Turner Elkhorn applies with great force to the retroactivity contentions advanced here. While the generator defendants profited from inexpensive waste disposal methods that may have been technically “legal” prior to CERCLA’s enactment, it was certainly foreseeable at the time that improper disposal could cause enormous damage to the environment. CERCLA operates remedially to spread the costs of responding to improper waste disposal among all parties that played a role in creating the hazardous conditions. Where those conditions are indivisible, joint and several liability is logical, and it works to ensure complete cost recovery. We do not think these consequences are “particularly harsh and oppressive,” United States Trust Co. v. New Jersey, 431 U.S. 1, 17 n. 13, 97 S.Ct. 1505, 1515 n. 13, 52 L.Ed.2d 92 (1977) (retrospective civil liability not unconstitutional unless it is particularly harsh and oppressive), and we agree with the Eighth Circuit that retroactive application of CERCLA does not violate due process. United States v. Northeastern Pharmaceutical & Chemical Co., Inc., 810 F.2d 726, 734 (8th Cir.1986), cert. denied, — U.S. -, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987). Nor does the imposition of strict, joint and several liability convert CERCLA into a bill of attainder or an ex post facto law. United States v. Conservation Chemical Co., 619 F.Supp. 162, 214 (W.D.Mo.1985); United States v. Tyson, 25 Env’t.Rep.Cas. (BNA) 1897 (E.D.Pa.1986) [available on WESTLAW, 1986 WL 9250]. The infliction of punishment, either legislatively or retrospectively, is a sine qua non of legislation that runs afoul of these constitutional prohibitions. See Nixon v. Administrator of General Services, 433 U.S. 425, 473-84, 97 S.Ct. 2777, 2805-11, 53 L.Ed.2d 867 (1977) (bill of attainder analysis); Weaver v. Graham, 450 U.S. 24, 28-30, 101 S.Ct. 960, 963-65, 67 L.Ed.2d 17 (1981) (ex post facto law analysis). CERCLA does not exact punishment. Rather it creates a reimbursement obligation on any person judicially determined responsible for the costs of remedying hazardous conditions at a waste disposal facility. The restitution of cleanup costs was not intended to operate, nor does it operate in fact, as a criminal penalty or a punitive deterrent. Cf. Tull v. United States, 481 U.S. 412, 107 S.Ct. 1831, 1838, 95 L.Ed.2d 365 (1987) (distinguishing civil penalties under Clean Water Act from equitable remedy of restitution). Moreover, as this case amply demonstrates, Congress did not impose that obligation automatically on a legislatively defined class of persons. V. The United States contends on cross-appeal that the district court erred in denying its request for prejudgment interest on its response costs. At the time the court issued its decision, CERCLA contained no explicit provision for the award of prejudgment interest. Since then, however, Congress has added the following language to section 10 Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
sc_petitioner	113	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. HANOVER SHOE, INC. v. UNITED SHOE MACHINERY CORP. No. 335. Argued March 5, 1968. Decided June 17, 1968. James V. Hayes argued the cause for petitioner in No. 336 and respondent in No. 463. With him on the briefs were Breck P. McAllister and Robert F. Morten. Ralph M. Carson argued the cause for respondent in No. 335 and petitioner in No. 463. With him on the briefs were Robert D. Salinger, Philip C. Potter, Jr., and Roland W. Donnem. Together with No. 463, United Shoe Machinery Corp. v. Hanover Shoe, Inc., also on certiorari to the same court. Mr. Justice White delivered the opinion of the Court. Hanover Shoe, Inc. (hereafter Hanover) is a manufacturer of shoes and a customer of United Shoe Machinery Corporation (hereafter United), a manufacturer and distributor of shoe machinery. In 1954 this Court affirmed the judgment of the District Court for the District of Massachusetts, 110 F. Supp. 295 (1953), in favor of the United States in a civil action against United under § 4 of the Sherman Act, 26 Stat. 209, 15 U. S. C. § 4. United Shoe Machinery Corp. v. United States, 347 U. S. 521. In 1955, Hanover brought the present treble-damage action against United in the District Court for the Middle District of Pennsylvania. In 1965 the District Court rendered judgment for Hanover and awarded trebled damages, including interest, of $4,239,609, as well as $650,000 in counsel fees. 245 F. Supp. 258. On appeal, the Court of Appeals for the Third Circuit affirmed the finding of liability but disagreed with the District Court on certain questions relating to the damage award. 377 F. 2d 776 (1967). Both Hanover and United sought review of the Court of Appeals’ decision, and we granted both petitions. 389 U. S. 818 (1967). I. Hanover’s action against United alleged that United had monopolized the shoe machinery industry in violation of § 2 of the Sherman Act; that United’s practice of leasing and refusing to sell its more complicated and important shoe machinery had been an instrument of the unlawful monopolization; and that therefore Hanover should recover from United the difference between what it paid United in shoe machine rentals and what it would have paid had United been willing during the relevant period to sell those machines. Section 5 (a) of the Clayton Act, 38 Stat. 731, as amended, 69 Stat. 283, 15 U. S. C. § 16 (a), makes a final judgment or decree in any civil or criminal suit brought by the United States under the antitrust laws "prima facie evidence ... as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto . . ..” Relying on this provision, Hanover submitted the findings, opinion, and decree rendered by Judge Wyzanski in the Government’s case as evidence that United monopolized and that the practice of refusing to sell machines was an instrument of the monopolization. United does not contest that prima facie weight is to be given to the judgment in the Government’s case. It does, however, contend that Judge Wyzanski’s decision did not determine that the practice of leasing and refusing to sell was an instrument of monopolization. This claim, rejected by the courts below, is the threshold issue in No. 463. If the 1953 judgment is not prima facie evidence of the illegality of the practice from which Hanover’s asserted injury arose, then Hanover, having offered no other convincing evidence of illegality, should not have recovered at all. Both the District Court and the Court of Appeals concluded that the lease only policy had been held illegal in the Government’s suit. We find no error in that determination, It is true that § 4 of the decree on which United relies condemned only certain clauses in the standard lease and that nowhere in the decree was any other aspect of United’s leasing system expressly described or characterized as illegal monopolization. It is also arguable that § 5 of the decree, which required that United thenceforward not “offer for lease any machine type, unless it also offers such type for sale,” was included merely to insure an effective remedy to dissipate the accumulated consequences of United’s monopolization. We are not, however, limited to the decree in determining the extent of estoppel resulting from the judgment in the Government’s case. If by reference to the findings, opinion, and decree it is determined that an issue was actually adjudicated in an antitrust suit brought by the Government, the private plaintiff can treat the outcome of the Government’s case as prima facie evidence on that issue. See Emich Motors Corp. v. General Motors Corp., 340 U. S. 558, 566-569 (1951). Section 5 of the decree would have been a justifiable remedy even if the practice it banned had not been instrumental in the monopolization of the market. But in our view the trial court’s findings and opinion put on firm ground the proposition that the Government’s case involved condemnation of the lease only system as such. In both its opinion with respect to violation and its opinion with respect to remedy, the court not only dealt with the objectionable clauses in the standard lease but also addressed itself to the consequences of only leasing machines and to the manner in which that practice related to the maintenance of United’s monopoly power. These portions of the court’s opinion are well supported by its findings of fact, which also estop United as against the Government and which therefore constitute prima facie evidence in this case. We have set out the relevant findings in an Appendix to this opinion. They are themselves sufficient to show that the lease only system played a significant role in United’s monopolization of the shoe machinery market. Those findings were not limited to the particular provisions of United’s leases. They dealt as well with United’s policy of leasing but not selling its important machines, with the advantages of that practice to United, and with its impact on potential and actual competition. When the applicable standard for determining monopolization under § 2 is applied to these facts, it must be concluded that the District Court and the Court of Appeals did not err in holding that United’s practice of leasing and refusing to sell its major machines was determined to be illegal monopolization in the Government’s case. II. The District Court found that Hanover would have bought rather than leased from United had it been given the opportunity to do. so. The District Court determined that if United had sold its important machines, the cost to Hanover would have been less than the rental paid for leasing these same machines. This difference in cost, trebled, is the judgment awarded to Hanover in the District Court. United claims, however, that Hanover suffered no legally cognizable injury, contending that the illegal overcharge during the damage period was reflected in the price charged for shoes sold by Hanover to its customers and that Hanover, if it had bought machines at lower prices, would have charged less and made no more profit than it made by leasing. At the very least, United urges, the District Court should have determined on the evidence offered whether these contentions were correct. The Court of Appeals, like the District Court, rejected this assertion of the so-called “passing-on” defense, and we affirm that judgment. Section 4 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 15, provides that any person “who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor . . . and shall recover threefold the damages by him sustained . . . We think it sound to hold that when a buyer shows that the price paid by him for materials purchased for use in his business is illegally high and also shows the amount of the overcharge, he has made out a prima facie case of injury and damage within the meaning of § 4. If in the face of the overcharge the buyer does nothing and absorbs the loss, he is entitled to treble damages. This much seems conceded. The reason is that he has paid more than he should and his property has been illegally diminished, for had the price paid been lower his profits would have been higher. It is also clear that if the buyer, responding to the illegal price, maintains his own price but takes steps to increase his volume or to decrease other costs, his right to damages is not destroyed. Though he may manage to maintain his profit level, he would have made more if his purchases from the defendant had cost him less. We hold that the buyer is equally entitled to damages if he raises the price for his own product. As long as the seller continues to charge the illegal price, he takes from the buyer more than the law allows. At whatever price the buyer sells, the price he pays the seller remains illegally high, and his profits would be greater were his costs lower. Fundamentally, this is the view stated by Mr. Justice Holmes in Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U. S. 390 (1906), where Atlanta sued the defendants for treble damages for antitrust violations in connection with the city's purchases of pipe for its waterworks system. The Court affirmed a judgment in favor of the city for an amount measured by the difference between the price paid and what the market or fair price would have been had the sellers not combined, the Court saying that the city “was injured in its property, at least, if not in its business of furnishing water, by being led to pay more than the worth of the pipe. A person whose property is diminished by a payment of money wrongfully induced is injured in his property.” Id,., at 396. The same approach was evident in Thomsen v. Cayser, 243 U. S. 66 (1917), another treble-damage antitrust case. With respect to overcharge cases arising under the transportation laws, similar views were expressed by Mr. Justice Holmes in Southern Pacific Co. v. Darnell-Taenzer Lumber Co., 245 U. S. 531, 533 (1918), and by Mr. Justice Brandeis in Adams v. Mills, 286 U. S. 397, 406-408 (1932). In those cases the possibility that -plaintiffs had recouped the overcharges from their customers was held irrelevant in assessing damages. United seeks to limit the general principle that the victim of an overcharge is damaged within the meaning of § 4 to the extent of that overcharge. The rule, United argues, should be subject to the defense that economic circumstances were such that the overcharged buyer could only charge his customers a higher price because the price to him was higher. It is argued that in such circumstances the buyer suffers no loss from the overcharge. This situation might be present, it is said, where the overcharge is imposed equally on all of a buyer’s competitors and where the demand for the buyer’s product is so inelastic that the buyer and his competitors could all increase their prices by the amount of the cost increase without suffering a consequent decline in sales. We are not impressed with the argument that sound laws of economics require recognizing this defense. A wide range of factors influence a company’s pricing policies. Normally the impact of a single change in the relevant conditions cannot be measured after the fact; indeed a businessman may be unable to state whether, had one fact been different (a single supply less expensive, general economic conditions more buoyant, or the labor market tighter, for example), he would have chosen a different price. Equally difficult to determine, in the real economic world rather than an economist’s hypothetical model, is what effect a change in a company’s price will have on its total sales. Finally, costs per unit for a different volume of total sales are hard to estimate. Even if it could be shown that the buyer raised his price in response to, and in the amount of, the overcharge and that his margin of profit and total sales had not thereafter declined, there would remain the nearly insuperable difficulty of demonstrating that the particular plaintiff could not or would not have raised his prices absent the overcharge or maintained the higher price had the overcharge been discontinued. Since establishing the applicability of the passing-on defense would require a convincing showing of each of these virtually unascertainable figures, the task would normally prove insurmountable. On the other hand, it is not unlikely that if the existence of the defense is generally confirmed, antitrust defendants will frequently seek to establish its applicability. Treble-damage actions would often require additional long and complicated proceedings involving massive evidence and complicated theories. In addition, if buyers are subjected to the passing-on defense, those who buy from them would also have to meet the challenge that they passed on the higher price to their customers. These ultimate consumers, in today's case the buyers of single pairs of shoes, would have only a tiny stake in a lawsuit and little interest in attempting a class action. In consequence, those who violate the antitrust laws by price fixing or monopolizing would retain the fruits of their illegality because no one was available who would bring suit against them. Treble-damage actions, the importance of which the Court has many times emphasized, would be substantially reduced in effectiveness. Our conclusion is that Hanover proved injury and the amount of its damages for the purposes of its treble-damage suit when it proved that United had overcharged it during the damage period and showed the amount of the overcharge; United was not entitled to assert a passing-on defense. We recognize that there might be situations — for instance, when an overcharged buyer has a pre-existing “cost-plus” contract, thus making it easy to prove that he has not been damaged — where the considerations requiring that the passing-on defense not be permitted in this case would not be present. We also recognize that where no differential can be proved between the price unlawfully charged and some price that the seller was required by law to charge, establishing damages might require a showing of loss of profits to the buyer. III. The District Court held that Hanover was entitled to damages for the period commencing July 1, 1939, and terminating September 21, 1955. The former date represented the greatest retrospective reach permitted under the applicable statute of limitations, and the latter date was that upon which Hanover filed its suit. In addition to somewhat shortening the forward' reach of the damage period, the Court of Appeals ruled that June 10, 1946, rather than July 1, 1939, marked the commencement of the damages period. June 10, 1946, was the date this Court decided American Tobacco Co. v. United States, 328 U. S. 781, which endorsed the views of the Court of Appeals for the Second Circuit in United States v. Aluminum Co. of America, 148 F. 2d 416 (1945). In the case before us the Court of Appeals concluded that the decisions in Alcoa-American Tobacco fundamentally altered the law of monopolization — that prior to them it was necessary to prove the existence of predatory practices as well as monopoly power, whereas afterwards proof of predatory practices was not essential. The Court of Appeals was also of the view that because in prior litigation United’s leases had escaped condemnation as predatory practices illegal under § 1, United’s conduct should not be held to have violated § 2 at any time prior to June 10, 1946. 377 F. 2d, at 790. This holding has been challenged, and we reverse it. The theory of the Court of Appeals seems to have been that when a party has significantly relied upon a clear and established doctrine, and the retrospective application of a newly declared doctrine would upset that justifiable reliance to his substantial injury, considerations of justice and fairness require that the new rule apply prospectively only. Pointing to recent decisions of this Court in the area of the criminal law, the Court of Appeals could see no reason why the considerations which had favored only prospective application in those cases should not be applied as well as in the civil area, especially in a treble-damage action. There is, of course, no reason to confront this theory unless we have before us a situation in which there was a clearly declared judicial doctrine upon which United relied and under which its conduct was lawful, a doctrine which was overruled in favor of a new rule according to which conduct performed in reliance upon the old rule would have been unlawful. Because we do not believe that this case presents such a situation, we have no occasion to pass upon the theory of the Court of Appeals. Neither the opinion in Alcoa nor the opinion in Amen-can Tobacco indicated that the issue involved was novel, that innovative principles were necessary to resolve it, or that the issue had been settled in prior cases in a manner contrary to the view held by those courts. In ruling that it was not necessary to exclude competitors to be guilty of monopolization, the Court of Appeals for the Second Circuit relied upon a long line of cases in this Court stretching back to 1912. 148 F. 2d, at 429. The conclusion that actions which will show monopolization are not “limited to manoeuvres not honestly industrial” was also premised on earlier opinions of this Court, particularly United States v. Swift & Co., 286 U. S. 106, 116 (1932). In the American Tobacco case, this Court noted that the precise question before it had not been previously decided, 328 U. S., at 811, and gave no indication that it thought it was adopting a radically new interpretation of the Sherman Act. Like the Court of Appeals, this Court relied for its conclusion upon existing authorities. These cases make it clear that there was no accepted interpretation of the Sherman Act which conditioned a finding of monopolization under § 2 upon a showing of predatory practices by the monopolist. In neither case was there such an abrupt and fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced an older one. Whatever development in antitrust law was brought about was based to a great extent on existing authorities and was an extension of doctrines which had been growing and developing over the years. These cases did not constitute a sharp break in the line of earlier authority or an avulsive change which caused the current of the law thereafter to flow between new banks. We cannot say that prior to those cases potential antitrust defendants would have been justified in thinking that then current antitrust doctrines permitted them to do all acts conducive to the creation or maintenance of a monopoly, so long as they avoided direct exclusion of competitors or other predatory acts. United relies heavily on three Sherman Act cases brought against it or its predecessors by the United States and decided by this Court. United argues that these cases demonstrate both that before Alcoa-American Tobacco the law was substantially different and that its leasing practices had been deemed by this Court not to be instruments of monopolization. United States v. Winslow, 227 U. S. 202 (1913); United States v. United Shoe Machinery Co. of New Jersey, 247 U. S. 32 (1918); United Shoe Machinery Corp. v. United States, 258 U. S. 451 (1922). In our opinion, however, United overreads and exaggerates the significance of these three cases. In Winslow, the Government charged the three groups of companies which had merged to form United with a violation of § 1. The trial court construed the indictment to pertain only to the merger of the companies and not to business practices which resulted from the merger; most significantly, it excluded United’s leasing policies from consideration. The Court specifically stated that “[t]he validity of the leases or of a combination contemplating them cannot be passed upon in this case.” 227 U. S., at 217. The third case, decided in 1922, was brought under § 3 of the Clayton Act rather than § 2 of Question: Who is the petitioner of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_respond1_1_4	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "construction". Your task is to determine what subcategory of business best describes this litigant. WILLIAMS v. FAVRET. No. 11840. Circuit Court of Appeals, Fifth Circuit. May 13, 1947. Rehearing Denied June 17, 1947. McCORD, Circuit Judge, dissenting. P. Z. Jones and Ross R. Barnett, both of Jackson, Miss., for appellant. John Harvey Thompson, of Jackson, Miss., for appellee. Before HUTCHESON, McCORD, and WALLER, Circuit Judges. HUTCHESON, Circuit Judge. As appellant stated it in substance in his complaint and in haec verba in his brief, the suit was “for damages caused by defendant’s refusal to contract with him for electrical work on a navy contract at Gulf-port, Mississippi”, which had been awarded to defendant as successful bidder. The claim was that though he had invited a bid from plaintiff, had used it in bidding and obtaining the contract, and had accepted it, defendant had failed and refused to enter into a subcontract with plaintiff. Defendant admitted that in making his bid as general contractor he had received and used plaintiff’s bid, and that the general contract had been awarded to him, but he categorically denied that he, or anyone acting with his authority, had ever accepted plaintiffs bid or otherwise obligated defendant to subcontract the electrical work to plaintiff. At the conclusion of plaintiff’s evidence, the defendant moved for judgment, and the district judge, before whom the case was tried without a jury, sustained the motion, made findings of fact and of rule, and entered judgment for defendant. Plaintiff is here insisting that the facts taken as a whole establish that a contract resulted and that it was error to deny him recovery. As his brief presents it, “The action was based upon an exchange of telegrams alleged by appellant to constitute an offer and acceptance which created the agreement to award him a subcontract”. The argument is that while the telegrams of the 4th and 6th did not constitute an unconditional acceptance of the bid, they constituted a conditional acceptance, the condition being that defendant, as general contractor, be awarded the contract. Citing Louisiana Civil Code Sections and cases construing them, plaintiff develops his argument thus: The obligation was a sus-pensive obligation so long as the contract from the government was not awarded to appellee under his bid, but the awarding of the contract to appellee, converted the conditional into an unconditional obligation. We cannot agree. Plaintiff’s bids to the several contractors weré offers expressly made to continue until June 6th, and then be withdrawn in the absence of advices from the contractors that they were used in the figuring. Such advices were sent, and the bids remained open offers until accepted or withdrawn. That an offer does not ripen into a contract until acceptance is hornbook law. Plaintiff recognizes that this is so. He seeks "to avoid its effect here by importing into the exchange of telegrams a conditional acceptance. Unfortunately for plaintiff, it is just as much hornbook law that where a contract is claimed as resulting from an offer and an acceptance, the offer must be clear, definite and complete, and the acceptance must be in the terms of the offer. The plaintiff’s telegram of the 4th was not a conditional offer. It was an absolute one to continue under the condition fixed until accepted. Defendant’s telegram of the 6th sent in direct response to plaintiff’s of the 4th contains nothing from which an acceptance of the offer, conditional or otherwise, can be implied. The district judge was right in holding that the exchange of telegrams constituted no contract. He was right too in holding that plaintiff did not prove a contract resting in parol. The judgment is affirmed. Plaintiff testified: that he, a general electrical contractor, received invitations from general contractors, including the defendant, to submit quotations on ihe electrical work for the naval station, that by wire, as follows, he submitted estimates to all of them: “Item 1 Base Bid $17,500.00 Item 2 Deduct 275.00 Item 3 Deduct 600.00 “If our estimate used wire us collect prior to June 6 or else same is withdrawn.” •and that defendant and another contractor had wired him that his bid w'as used, defendant’s wire being as follows: “June 6 We used your bid for wiring on barracks and dispensary Gulfport.” " He testified further: that later on he 'learned, though not from defendant, that defendant was low bidder; that still latter, Harold Favret, defendant’s son, told him that it would probably be two or .three weeks before the contract would come through and when it did. plaintiff would get the subcontract; that not getting the contract, he wrote defendant on June 26th that he would like to receive the subcontract as early "as possible so .as to begin getting ready for perform.■ance; and that defendant replied: “Acknowledging receipt of your letter of tlio 26íh inst. The electrical work has been let to the Busy Electric Co. Your bid, after given full consideration was found ;to be incomplete.” He further testified that his bid was •not incomplete; that it followed the bid forms, plans and specifications. Harold Favret, called by plaintiff, testified that he was an estimator and that he was mot authorized lo make contracts, and no proof was offered by plaintiff showing, or tending to show that lie was so authorized. In addition, Favret denied plaintiff’s testimony' that he had stated that plaintiff would receive the electrical subcontract. In explanation of the June 6 telegram, he testified that he sent it in compliance with the request in plaintiff’s telegram in order to keep the offer of the bid open. “ (2) That the invitation for bids on the electrical work as shown by the card, Exhibit P2 to the deposition of Harold Favret, and the telegram of June 5th from the plaintiff to the defendant, and the answer of the defendant to the plaintiff by telegram of June 6, 1944, do not constitute a contract; that, the words in the telegram of June 6th from defendant to plaintiff, reading as follows; ‘We used your bids for wiring on barracks and dispensary Gulfport’ did not amount to an acceptance of plaintiff’s offer; and that, therefore, no written contract was entered into. “(3) That the employee of the defendant, Harold Favret, was not authorized to accept an order or to bind the defendant for the work, or to contract; and that, therefore, the said Harold Favret did not ratify and contract on behalf of the plaintiff as against the defendant. “That the employee Christopher was not authorized to enter into any contract or ratify any contract for the defendant in favor of plaintiff.” “(3) The Court is of the opinion that under the law no contract, written or verbal, was entered into between the plaintiff and the defendant. “(2) That the relief sought by the complainant should be denied.” 2021, 2026, 2028; Decker v. Renaudin, 10 La.App. 725, 122 So. 600; Monteleone v. Blache, 11 La.App. 99, 120 So. 900. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "construction". What subcategory of business best describes this litigant? A. residential B. commercial or industrial C. other D. unclear Answer:

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