Split (2)

train · 553k rows

task stringclasses 260 values	output stringlengths 2 5	instruction stringlengths 576 44k
songer_appfiduc	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Monir A. GEORGE, Appellant, v. NEW JERSEY BOARD OF VETERINARY MEDICAL EXAMINERS, Maurice W. McQuade, Secretary of the Board, and David Eisenberg, President of the Board. No. 85-5817. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) June 5, 1986. Decided June 27, 1986. Rehearing and Rehearing In Banc Denied July 29,1986. Monir A. George, pro se. W. Cary Edwards, Atty. Gen. of New Jersey, James J. Ciancia, Asst. Atty. Gen., Trenton, N.J., Maxine H. Neuhauser, Deputy Atty. Gen., Newark, N.J., for appellees. Before ADAMS, HIGGINBOTHAM and MARIS, Circuit Judges. OPINION OF THE COURT MARIS, Circuit Judge. This is an appeal from the final order of the United States District Court for the District of New Jersey, 635 F.Supp. 953, dismissing the plaintiff’s complaint. That complaint charged the defendants, the New Jersey Board of Veterinary Medical Examiners and the Board’s secretary and president, with having violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. § 2000e et seq., in denying the plaintiff’s application to be admitted to practice veterinary medicine in New Jersey. The plaintiff asserted that the denial was based on his national origin, Egypt. In a well-reasoned opinion, Judge Lacey of the district court held that the defendant Board was not an employer or employment agency within the meaning of section 701 of the Civil Rights Act, as amended, with respect to applicants for admission to practice veterinary medicine in the State of New Jersey, such as the plaintiff, and was, therefore, not subject as to such persons to the prohibition of discriminatory employment practices imposed by section 703 of the Act. F.Supp. (D.N.J.1985). We are in accord with the views expressed by Judge Lacey and affirm for the reasons stated in his opinion and which it would serve no useful purpose to restate here. We need only add that Haddock v. Board of Dental Examiners of Cal., 777 F.2d 462 (9th Cir.1985), involving the licensing of dentists by the State of California, and Darks v. City of Cincinnati, 745 F.2d 1040 (6th Cir.1984), involving the licensing of dance halls by the City of Cincinnati, are in accord with our view that Title VII of the Civil Rights Act of 1964, as amended, is not applicable to the licensing functions of a public agency exercised under the police powers of a state. We do not regard Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973), upon which the plaintiff relies, as authority to the contrary. That case involved a private hospital which at the request of its patients contacted unemployed private duty nurses for employment by those patients. This procedure, the court said, constituted the hospital an employer within the meaning of Title VII of the Civil Rights Act. In preventing the plaintiff, a male nurse, from reporting to female patients who had requested private nursing service, the hospital, the court held, had engaged in an unlawful employment practice, discrimination on the basis of sex, within the purview of section 703 of the Act. In the Sibley Memorial Hospital case the relationship of the hospital to the employment by its patients of private duty nurses secured for them by the hospital was very close, whereas in the present case there was nothing even remotely resembling an employer-employee relationship between the Board and the plaintiff. Moreover, the exercise of the police power was not involved in the Sibley Memorial Hospital case, whereas in the present case that power was being exercised by the defendants to protect the public from unqualified veterinary service. The order of the district court will be affirmed. . “(b) The term "employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person____ “(c) The term "employment agency” means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.” 42 U.S.C.A. § 2000e. . "(a) It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise 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 ... "(b) It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex or national origin----” 42 U.S.C.A. § 2000e-2. Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number. Answer:
songer_usc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. FITZGERALD v. McFADDEN et al. No. 269. Circuit Court of Appeals, Second Circuit. March 15, 1937. Edwin V. Hellawell, of New York City, for appellant. O’Connor & Farber, of New York City (W. Lee Helms and Arnold T. Koch, both of New York City, of counsel), for appellees. Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges. L. HAND, Circuit Judge. This is an appeal from a decree in equity, dismissing a bill between- co-adventurers. The facts are as follows: The defendant, McFadden, in the summer of 1931, by his solicitor, the defendant, Helms, filed an application for a patent on a process for cleaning ships’ oil tanks. The plaintiff, Fitzgerald, who had lived in Georgia, and had been engaged all his life in shipping, met McFadden and Helms on November 18th, 1931, and they interested him in a project to exploit this invention. The three had a number of interviews and came to an agreement, on December 14, 1931, by which Fitzgerald, on behalf of himself and one, Meseck, was to pay $5,-000 to McFadden for an interest in the invention; Fitzgerald was to advance $3,000 to a corporation, the Sealand Process Company, which was to be organized to exploit the patent in the Port of New York; Fitzgerald and McFadden were to contribute between $3,000 and $5,000 toward the expenses of a second company to be organized, to which the patent was to be assigned; and Meseck was to turn over a tug for the use of the Sealand Company. Of the $5,000 later paid to McFadden, $2,-500 came from Meseck; but Meseck’s tug was apparently thought the equivalent of Fitzgerald’s financing of the Sealand Company. In consideration of these promises McFadden and Helms agreed to license the Sealand Company for the Port of New York, and to give Fitzgerald and Meseck jointly thirty-one per cent, of its shares; McFadden was to have fifty-one per cent, and the other eighteen per cent, was to be distributed between Helms and two others. The shares of the holding company when formed were to be divided in the same proportions. Fitzgerald paid $1,000 to McFadden on December fourteenth and the rest of the $5,000 later; just when, the record does not show. The Sealand Process Company was formed in December, and Fitzgerald advanced between $2,-700 and $2,800 to finance it. Again the dates are left uncertain. Fitzgerald swore that at their first meeting he inquired of Helms whether McFadden’s invention was patentable, and that Helms answered: “I have made thorough'searches of the records in Washington, both foreign and American, and it is new and novel and there has never been anything like it.” However, Fitzgerald appears not to have relied upon this, for he insisted upon a patent lawyer of his own, and on Helms’s recommendation he retained one, Hutchinson, a Washington correspondent of Cooper, Kerr & Dunham, a well known New York firm. He went to Washington with Helms on December sixteenth, but he did not personally see Hutchinson; Helms did, and asked him to complete a search in two days. Hutchinson did what he could, and Cooper, Kerr & Dunham reported the result to Helms on December twenty-fourth, saying that they had not been able to give the necessary time to determine whether the invention was patentable, but that it did not infringe any of ten patents which they enumerated. On November 17, 1931, three months after McFadden had filed his application, a patent issued on an earlier application to an Englishman named Freeman, for a process of “degreasing the interior” of ships’ condensers and the like. On or about January 1, 1932, Helms learned of this, and at once perceived its importance, for he began to bargain for it with the American owners, and on January nineteenth he offered twenty-five hundred dollars for it; and McFadden bought it for himself in May and has held it ever since as his personal property. On February twenty-fourth the patent examiner cited it against McFaddcn’s application; that reference has never been overcome, and up to the time of the trial McFadden had received no patent. ' The parties began to draw apart in the spring of 1932, and had come to a breach by the summer; it is probable that Fitzgerald was already contemplating taking out a patent of his own, which he too meant to keep for himself; but there is no evidence that he knew of the Freeman patent. On the fifteenth of July, 1932, he and Meseck, McFadden, Helms and the two other parties to the project, all entered into an agreement by which they released one another from all obligations; and under which Meseck and Fitzgerald gave back their shares in the Sea-land Company; Meseck received back his tug; and Fitzgerald got a license under the McFadden patent, when issued, for the states of Pennsylvania, Delaware and Maryland. Four days later Fitzgerald learned of the Freeman patent, and, on the second of August, that McFadden had bought it. He says that during the same month he tendered back the license to Helms and demanded his money, but this Helms denied, and the judge made no finding as to where the truth lay between them. On the twenty-second of March, 1933, he filed the bill at bar, seeking (1.) to charge McFadden with a constructive trust of the Freeman patent; (2.), to recover any surplus of what he had paid him that had not gone into it; and (3.) all advances that he had made to finance the Sea-land Process Company. The defendants pleaded the release of July 15, 1932, as a bar, and Fitzgerald replied that it had been procured by fraud. While the suit was pending the Navy Department had become interested in the exploitation of the invention for its vessels, and opened negotiations with both parties ; with McFadden, as owner of the Freeman patent-and of his own application, and with Fitzgerald as licensee of McFadden in three states, and as patentee of his own patent which had meanwhile issued. The Department secured licenses from both, and paid down $15,000, of which Fitzgerald got a third. Eighteen months before this contract was made, but apparently while the negotiations were pending, they agreed that any arrangement with the Navy Department should be “without prejudice to any and all rights and contentions in any present litigation * * * respecting said patents and applications * * * and further without prejudice to * * * all claims of the respective parties hereto except as to the rights and obligations created by this instrument.” So much of the bill as seeks to impress a constructive trust upon the Freeman patent on the theory that McFadden had bought it with Fitzgerald’s money, must fall because the judge found that all the money which McFadden used, came from elsewhere. McFadden swore in detail as to how he got it, and the judge, who saw him, believed what he said; his judgment on such an issue was better than ours can be. Upon this appeal Fitzgerald also insists that, no matter whose money purchased the Freeman patent, McFadden and Helms, as co-adventurers in the enterprise, might not buy it in for themselves and hold it as their own. Assuming this to be true, it will not serve Fitzgerald in this suit, because the limit of any relief which those facts would justify, is that McFadden should transfer the patent to the proposed holding company, and give the Sealand Process Company a license under it. Fitzgerald does not want that; he does not suggest that he again become a shareholder of the Sealand Company, or that McFadden proceed to organize the holding company; rather, the very demand for a transfer of the Freeman patent presupposed that he disaffirmed the contract, that the consideration should be restored and that he could trace it into another form. The remainder of the bill is to recover the payments to McFadden which did not go into the Freeman patent; as well as the payments to finance the Sealand Company. As to the first, like the demand for the Freeman patent, it presupposed a disaffirmance of the original contract without which the consideration could not be recovered. The allegations support sucl\ a cause of suit; they are that McFadden and Helms deceived Fitzgerald about the validity of McFadden’s_ invention. The evidence does not, however, prove that when the contract was closed on December 14, 1931, Helms knew of the Freeman patent; he may not have, for it had issued less than a month before. We cannot say, therefore, that there was any fraud in the inception of the contract. Moreover, if it had been once definitely closed, and if there be no implied representation in selling a patent application that a patent will issue, Fitzgerald could not have disaffirmed, merely because Helms learned of the Freeman patent thereafter. The law is indeed settled that if one buys an issued patent and it turns out later to be invalid, the buyer may disaffirm. Darst v. Brockway, 11 Ohio, 462; Herzog v. Heyman, 151 N.Y. 587, 45 N.E. 1127, 56 Am.St.Rep. 646; Harlow v. Putnam, 124 Mass. 553; Keith v. Hobbs, 69 Mo. 84. But it does not follow that the same doctrine applies to a patent application, which is necessarily a gamble anyway. However, we need not decide that here, because of the particular circumstances. We have already quoted what Fitzgerald said that Helms told him about McFadden’s invention. Helms disputed this in part, and though Meseck corroborated Fitzgerald, we will arguendo accept Helms’s version; at least he had told Fitzgerald that he had made a search and had found nothing. That gave Fitzgerald an assurance that, so far as Helms knew, the invention was valid. But, as we have said, Fitzgerald did not rely upon this; he retained Hutchinson to search and report to him. Although that was after the contract was closed and after he had paid down $1,000, it is obvious that he could only have meant that, in case the report turned out bad, he should have the power to withdraw. No other reasonable interpretation of it is possible. Nevertheless had Fitzgerald made his decision-after consulting his own lawyer, that would have ended it. He did not; it was Helms who got Hutchinson’s report from Cooper, Kerr & Dunham. He got it about December twenty-fourth and kept it till January 21, 1932, three weeks after he had learned of the Freeman patent. Now it is true that the report refused to pass upon the validity of McFadden’s invention because of too little time; but for that very reason Helms must have understood that if Fitzgerald continued in the project, he was relying in some measure upon what Helms had told him, when he said that he had searched and found nothing. Fitzgerald had consulted him and certainly expected some expert advice. When he sent on the report, knowing of the Freeman patent, it was a deceit unless that patent did not impair or substantially affect McFadden’s invention. Further, the report said that McFadden’s disclosure did not infringe any of the ten patents mentioned. If it infringed Freeman’s claims, it was an even plainer fraud to suppress its discovery. Embarrassed for these reasons, Helms and McFadden tried upon the trial to belittle the Freeman patent and say that McFadden’s process did not infringe it. That was altogether contradictory to Helms’s letter to Hutchinson, complaining that Hutchinson had not discovered it; Helms then thought it “exceedingly pertinent” to McFadden’s application and that opinion is confirmed by its repeated citation against the application. But quite aside from these evidences of its importance, a comparison leaves no doubt of its critical character. Taken as disclosure it anticipated every one of McFadden’s claims on file during the first six months of 1932, provided it covered “oil tanks” and the use of tetrachloride. It did both. It was said to cover “condensers and other structures which are not easily accessible”; and indeed that clause was not necessary anyway, because McFadden’s claims would at best have been only for a new use. It used trichlorethylene, but McFadden expressly made that an equivalent of tetrachloride. Limited claims might conceivably have been drawn which would escape; perhaps they still can be; but as the application stood, it was void; and at best any possible value which it could have, was very circumscribed. Furthermore, it is very doubtful whether one could practise McFadden’s process at all without infringing Freeman’s claims. “Heat exchange apparatus” was defined at page 2, lines 38-44, as covering any surfaces “difficult of access”; the inside of oil tanks were such surfaces. Certainly infringement was very likely, and every consideration of honesty demanded that Fitzgerald should be allowed to judge for himself. Therefore, Helms and McFadden — who was chargeable with Helms’s fraud — deceived Fitzgerald while he still could withdraw, and their fraud extended his privilege until he should learn of the Freeman patent. He may recover what he paid unless there be some bar to the suit. The first defence is the release of July 15, 1932. The fraud invalidated this as well as the contract, unless Fitzgerald had learned of the Freeman patent meanwhile. There is no direct evidence that he had, and the defendants have the affirmative. True, the judge made no finding on the issue, and there is some ground to suspect that the patent may have earlier come to Fitzgerald’s attention. He was .already trying to secure a patent of his own, and had retained a solicitor to make some sort of search, and, as we have said, four days after the release this attorney did report the patent to him- Yet this does not seem to us enough to carry the defendants’ burden and the right to dis-affirm the release like 'that to disaffirm the contract still persisted. The judge thought, however, that Fitzgerald’s delay after learning of the Freeman patent barred disaffirmance. We cannot agree; not even though he did nothing until March, 1933, •when the bill was filed. The defendants had not acted to their detriment in reliance upon his inaction, and seven months is too short a time to infer actual ratification in the absence of some affirmative act. Indeed, Fitzgerald swore that he demanded his money back in August, but Helms denied it, and since the judge would make no finding, we will assume that no demand was made. There is a passage in his testimony which may be read as saying that at one time in some negotiations with the Dupont Company about his own patent he had offered them his license under the McFadden patent; but it is very confusing, not plain enough to prove that he did offer that license. All he meant to say, apparently, was that the Dupont Company had told him that the Freeman patent underlay all the rest. Nothing but such an offer would be a ratification; he needed no license to practise the. invention before a patent issued, if he knew it. The record does not disclose whether the process was ever disclosed to him; originally it was a secret, but after the contract was closed he may have learned it. If he did, he did not learn it as a result of the release; if he did not, it does not appear that it was disclosed to him as part of the consideration for the release; if it was so disclosed, it does not appear that he ever practised it. We can therefore find no evidence of ratification after discovery of the fraud except the delay; and the defendants had the burden of the issue. There is another passage in his testimony which seems to say that he had been offered back his money, but a reading of the whole makes it plain that he did not mean this; and the defendants apparently understood that he did not. The judge also sustained the defence that Fitzgerald never tendered back his license or Meseck’s tug and that for this reason too he could not disaffirm the release. First, it is to be observed that his tender, even if any were necessary before suit, which it was not would not have included the tug. We have already said that Fitzgerald wants only to disaffirm the contract not to have it reinstated, and the conditions upon one are not the same as upon the other. We can consider the question most clearly by supposing that the two disaffirmances took place in sequence; if the defendants are restored to whatever they should have at the end of both, there is no reason to go through the intermediate steps- To disaffirm the release and get the contract reinstated, Fitzgerald would have to cancel his personal license and Meseck to return his tug; but that was all that both received. Thereupon they would have become entitled to thirty-one per cent, of the Sealand shares and their former status as co-adventurers in the project, being still liable, however, to finance the holding company when formed. If in that posture they had sought to disaffirm the contract they would have had to surrender the Sealand shares; would have become jointly entitled to $5,000; Meseck would have got back his tug; and Fitzgerald his advances to the Sealand Company. Thus at the end of both disaffirmances they would have been exactly where they will be now, if their money is refunded; and McFadden and Helms would have nothing they do not now have, except Fitzgerald’s personal license. The restoration of that and that alone is the only condition; and it was not necessary to tender that in advance of filing the bill, for the decree can take care of it. MacNamee v. Bankers’ Union, etc., 25 F.(2d) 614, 618 (C.C.A.2); Twin Lakes L. & W. Co. v. Dohner, 242 F. 399, 402 (C.C.A.6); Plews v. Burrage, 274 F. 881, 885 (C.C.A.1); Thomas v. Beals, 154 Mass. 51, 27 N.E. 1004; O’Neill v. Kunkle, 244 Mich. 653, 222 N.W. 110. From the foregoing it also appears that Meseck is not a necessary party to this suit. Fitzgerald does not ask for more than his half of the money paid to McFadden; McFadden can demand nothing from Meseck or Fitzgerald which the decree will not assure him. Meseck cannot himself sue and so subject McFadden and Helms to a second suit because he has waited for four years and a half with notice of the deceit and has not moved; he was a witness on the trial and was chargeable with notice of what came out there. Finally, the contract with the Navy was not a ratification of the release because the parties had expressly provided that it should not be. There was nothing unlawful in their doing so, or any reason why they should not stipulate that the status quo should remain as between themselves. Fitzgerald’s receipt of his share of the payment could not have been an “affirmation” of the release in the face of such an agreement. Thus there is no obstacle to the recovery by Fitzgerald from" McFadden of $2,500 with interest from the dates of payment. As to Fitzgerald’s payments to finance the Sealand Company somewhat different considerations apply. A decree against that company would, to be sure, be part of the restitution, since it was privy to, and chargeable with, Helms’s deceit. But such a decree would probably be without value, and the question is whether any decree should go against Helms and McFadden, as Helms’s principal. That must depend upon whether they are liable in delicto for Fitzgerald’s loss — not in restitution, but in damages. Any money advanced after Helms delivered Hutchinson’s report to Fitzgerald was a consequence of that deceit; for while it does not expressly appear that Fitzgerald would not have gone on, had he known of the Freeman patent, such an inference from the whole situation is altogether safe. More than that, Helms is liable for all payments between January first, when he knew of the Freeman patent, and January 21, 1932, because during that period he allowed Fitzgerald to act upon his original statement that his search had proved negative, a statement which he then knew to be false, and on the faith of which Fitzgerald was financing the Sealand Company. Loewer v. Harris, 57 F. 368 (C.C.A.2); Monier v. Guaranty Trust Co., 82 F.(2d) 252, 254, 104 A.L.R. 912 (C.C.A.2) (semble). Gerdes v. Lustgarten, 266 U.S. 321, 45 S.Ct. 107, 69 L.Ed. 309, is very similar. There is no objection to thus combining a recovery upon a legal cause of action with a cause of suit for restitution; equity will close up the whole matter at one time. However, as this part of the recovery will be for damages, theoretically it must be limited to the difference between Fitzgerald’s payments to the Sealand Company and any benefit which these added to his shares. Since the McFadden patent has never issued, it is not likely that this has any practical importance; but if the parties cannot agree, it must be settled in the district court. The reasoning by which Helms is liable for the Sealand payments also applies to make him liable for any payment made to McFadden ■ after January 1, 1932. He then knew that Fitzgerald was relying upon his word and that it had become false; he is liable for any resulting loss- Again the measure of that loss is the difference between 'the payments and the value of the interest which they purchased. Decree reversed; case remanded with instructions to proceed in accordance with the foregoing. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_source	D	What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. In re RIVERSIDE-LINDEN INVESTMENT CO., Debtor. Ralph O. BOLDT, Trustee; Estes & Hoyt, Appellants, v. Kathryn CRAKE; Earl Hafer, Appellees. No. 90-55479. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 16, 1991. Decided Sept. 30, 1991. Kevin J. Hoyt, Estes & Hoyt, San Diego, Cal., for appellants. John Forest Hilbert, Andersen, Goldberg & Waldron, San Diego, Cal., for appellees. Before PREGERSON, BRUNETTI and NELSON, Circuit Judges. BRUNETTI, Circuit Judge: Appellant law firm Estes and Hoyt (“E & H”) appeals the decision of the Bankruptcy Appellate Panel (“BAP”) affirming the Bankruptcy Court’s denial of attorney’s fees. We have jurisdiction pursuant to 28 U.S.C. section 158(d) and affirm. I. E & H was hired by the Bankruptcy Trustee for debtor, Riverside-Linden Investment Company (“Riverside-Linden”), to assist in the sale of Riverside-Linden’s property and in the liquidation and winding up of the estate. On December 30,1987, E & H filed a final fee application which requested reimbursement for fees incurred (1) investigating an unopposed claim by the sole remaining creditor (“the Hafer claim”) while the estate was solvent; (2) opposing a motion by Kathryn Crake (“Crake”), a partner in Riverside-Linden, to dismiss the case or compel distribution; and (3) investigating the history and formation of Riverside-Linden in preparing tax returns. The final application noted that the request assumed no objections to the application. In the event the application was contested, E & H requested leave to file a supplemental fee application. Crake objected to the final fee application. The Bankruptcy Court sustained Crake’s objections and denied fees incurred to investigate the Hafer claim, opposing Crake’s motion to dismiss, and the tax return investigations. See In re Riverside-Linden Inv. Co., 85 B.R. 107 (Bankr.S.D.Cal.1988). The BAP affirmed the Bankruptcy Court’s decision, see In re Riverside-Linden Inv. Co., 99 B.R. 439 (9th Cir. BAP 1989), and we affirmed in In re Riverside-Linden Inv. Co., 925 F.2d 320 (9th Cir.1991) (per curiam) (“Riverside-Linden /”). On May 26, 1988, E & H filed a supplemental fee application. The supplemental application sought $3418 in fees incurred opposing Crake’s objection to the final fee application. The supplemental application also sought, for the first time, $6266.32 in interest on fees and costs from May 21, 1985, the date following the date the estate was invoiced, through June 15, 1988, plus $9.97 per day thereafter, and fees incurred in researching whether E & H was entitled to such interest and calculating the amount of the requested interest. Crake objected to the supplemental application and the Bankruptcy Court sustained most of Crake’s objections and disallowed fees incurred in opposing Crake’s objection to the final fee application, for interest on fees prior to the date they were awarded, and fees incurred in determining whether it was entitled to interest and the calculations of such interest. See In re Riverside-Linden Inv. Co., 89 B.R. 848, 849-50 (Bankr.S.D.Cal.1988). Although the BAP disagreed in part with the reasoning of the Bankruptcy Court, it affirmed in In re Riverside-Linden Inv. Co., Ill B.R. 298 (9th Cir. BAP 1990) (“Riverside-Linden IT’). E & H filed this appeal. II. We consider whether the Bankruptcy Court erred in disallowing fees incurred opposing unsuccessfully Crake’s objection to E & H’s final fee application and determining that interest on attorney’s fees payable from the estate under 11 U.S.C. § 726(a)(5) accrues on the date the fees are awarded. We will not disturb a bankruptcy court’s award of attorney’s fees absent a finding that the court abused its discretion or erroneously applied the law. Riverside-Linden I, 925 F.2d at 322; In re Nucorp Energy, Inc., 764 F.2d 655, 657 (9th Cir.1985). A. Fees incurred opposing Crake’s objection to the final fee application. Crake objected to E & H’s final fee application on several grounds. The Bankruptcy Court sustained most of the objections and this court affirmed in Riverside-Linden I. It is the additional fees incurred by E & H in its unsuccessful opposition to Crake’s objection that we consider in this appeal. E & H argues that the fees were incurred preparing and presenting its fee application, and therefore compensable under In re Nucorp Energy, Inc., 764 F.2d 655 (9th Cir.1985). We disagree. In Nucorp, the Bankruptcy Court disallowed fees incurred by a law firm preparing and presenting to the court its unopposed fee application. We reversed. The starting point of our decision in Nucorp was 11 U.S.C. § 330(a)(1). This section permits a bankruptcy court to award attorneys reasonable compensation for actual, necessary services rendered ... based on the nature, the extent, and the value of such services, the time spent on such services and the cost of comparable services other than in a [bankruptcy] case. 11 U.S.C. § 330(a)(1). The Nucorp court found that fees incurred in the preparation and presentation of fee applications were “necessary” within the meaning of Section 330(a) because of the statutory requirement that the attorneys submit to the bankruptcy court a detailed accounting of all services rendered to the estate. 764 F.2d at 658-59 (citing 11 U.S.C. § 329(a), Fed.R.Bankr. 2016). Imposing such “substantial requirements on bankruptcy counsel” without compensating counsel for their compliance, Nucorp reasoned, would be “fundamentally inequitable.” Id. at 659. We are presented with facts entirely different from those before the Nucorp court. Here, the fees incurred preparing and presenting the final fee application were awarded to E & H by the Bankruptcy Court as Nucorp and Section 330(a) require. The fees at issue here are the additional fees incurred opposing Crake’s objection to the fee application. Unlike the presentation and preparation of the fee application itself, there is no statutory or Bankruptcy Rule requirement that attorneys for the debtor oppose objections to the fee application. We agree with the BAP that “Nucorp does not provide a blanket allowance of fees for any and all services related to the fee application.” Ill B.R. at 301. As the BAP reasoned, permitting fees in this situation could encourage attorneys to assert mer-itless fee requests. Regardless of whether or not they were awarded the requested fees, the attorneys could recover fees incurred in opposing objection to the meritless request. Such a result is not contemplated by Nucorp. Id. at 302. We do not decide whether the litigation of a fee application under some other set of circumstances may be found necessary within the meaning of Section 330(a). We hold only that the Bankruptcy Court’s denial of fees for expenses incurred by E & H in unsuccessfully opposing their final fee application was not an abuse of discretion. See Riverside-Linden I, 925 F.2d at 324. B. Interest on fees. When all claims against a Chapter 7 debtor have been paid, the surplus in the estate, if any, is to be paid out as interest to the claimants. 11 U.S.C. § 726(a)(5). A claim includes compensable attorney’s fees payable from the estate under Section 330(a) of the Bankruptcy Code. Id. §§ 726(a)(1), 507(a)(1), 503(b)(2). Section 726(a)(5) provides that interest on claims accrues “from the date of the filing of the petition.” Id. § 726(a)(5). For claims existing prior to the filing of the bankruptcy petition, a date-of-filing accrual date is appropriate and mandated under the plain language of the statute. See S.Rep. No. 95-989, 95th Cong., 2d Sess. 5, reprinted in 1978 U.S.Code Cong. & Admin. News, 5787, 5883 (Section 726(a)(5) “provides that postpetition interest on prepetition claims is ... to be paid to the creditor”). For a claim to Section 330(a) attorney’s fees arising subsequent to filing, however, a literal application of the statute makes little sense; “[ijnterest cannot accrue on fees for services which have not yet been performed,” Riverside-Linden II, 111 B.R. at 303. See, e.g., Bob Jones Univ. v. United States, 461 U.S. 574, 586, 103 S.Ct. 2017, 2025-26, 76 L.Ed.2d 157 (1983) (“[i]t is a well-established canon of statutory construction that a court should go beyond the literal language of a statute if reliance on that language would defeat the plain purpose of the statute”); Bechtel Constr., Inc. v. United Bd. of Carpenters & Joiners, 812 F.2d 1220, 1225 (9th Cir.1987) (statutes “should never be construed as establishing statutory schemes that are illogical, unjust, or capricious”). E & H concedes that a date-of-filing accrual date for post-petition awards of attorney’s fees could not have been intended by Congress, but argues that such interest accrues from the time the fees are invoiced. Crake contends that interest under Section 726(a)(5) should not accrue until the date the bankruptcy court awards the fees. The Bankruptcy Court and BAP agreed with Crake. See 89 B.R. at 850, 111 B.R. at 303. The BAP reasoned: Since the [attorney’s] fees and costs are not entitled to be treated as an administrative expense until the date the court awards the fees and costs, interest, which is paid under § 726(a)(5) based on the administrative expense status of the fees and costs, cannot begin to accrue until the date the court awards the fees and costs. 111 B.R. at 303. E & H argues that the BAP’s reasoning is flawed because the attorney’s fees are treated as administrative expenses from the time the attorney’s employment is authorized under section 328 of the Bankruptcy Code. Section 328 provides that, with the court’s approval, the trustee may employ an attorney “on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis.” 11 U.S.C. § 328(a). The provision which defines attorney’s fees as a compensable administrative expense, Section 503(b), refers to “compensation and reimbursement awarded under section 330.” 11 U.S.C. § 503(b)(2) (emphasis added). It is not until the fees have been awarded by the bankruptcy court pursuant to Section 330, therefore, that they become an administrative expense entitling them to treatment as a claim under Section 726(a)(5). See id. §§ 726(a)(1), 507(a)(1). We agree with the BAP and hold that interest on claims of attorney’s fees awarded under section 330(a) accrues from the date they are awarded. III. The Bankruptcy Court also disallowed fees incurred by E & H in determining whether it is entitled to interest under Section 726(a)(5) and the amount of such interest, 89 Bankr. at 850, and the BAP affirmed, 111 B.R. at 303. E & H failed to contest these findings in its opening brief, but argues in its reply brief that the research and calculations were necessary to prepare the fee application and therefore compensable under Nucorp. We “will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant’s opening brief.” Miller v. Fairchild Industries, Inc., 797 F.2d 727, 738 (9th Cir.1986); see also Fed.R.App.P. 28(a)(2) (appellant’s brief shall contain a “statement of the issues presented for review”). We have discretion to review an issue not raised by appellant, however, when it is raised in the appellee’s brief. Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir.1990). Here, Crake states only, “[b]ecause E & H is not entitled to interest [the Bankruptcy Court’s] ruling was proper. In any event, the fees charged were excessive.” Brief of Appellee at 15. We do not believe this statement by Crake raises the issue sufficiently to warrant review. See Ellingson v. Burlington Northern, Inc., 653 F.2d 1327, 1332 (9th Cir.1981). By failing to raise the issue in its opening brief, E & H did not permit the issue to be “fully explored,” id., and we consider the issue waived. AFFIRMED. . Crake also argues that the statutory language indicates that Section 726(a)(5) only applies to claims existing prior to the filing of the petition. Though the command that interest on a claim be paid "from the date of the filing of the petition" contemplates that the claim was in existence at the time the petition was filed, we do not construe the statute to exclude claims which arise after the filing. The statute provides that interest shall be paid "on any claim under paragraph (1), (2), (3), or (4) of this subsection.” 11 U.S.C. § 726(a)(5) (emphasis added). Paragraph (1) refers to claims specified in Section 507 of the Bankruptcy Code. Section 507 specifies certain administrative expenses, including attorney’s fees of the kind sought by E & H. See id. §§ 507(a)(1), 503(b)(2), 330(a). Our reading of the statutes indicates that interest on claims of attorney’s fees is permissible under section 726(a)(5). Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:
songer_appel1_1_3	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed 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. SATURN AIRWAYS, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Dan-Air Services, Ltd., et al., Intervenors. Lynn Michelle TSCHIRHART and Paul Jeffrey Tschirhart, Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent, Americans For Charter Travel et al., Intervenors. NATIONAL AIR CARRIER ASSOCIATION, INC., et al., Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent, Dan-Air Services, Ltd., et al., Intervenors. TRANSWORLD AIRLINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Lynn M. Tschirhart et al., Intervenors. PAN AMERICAN WORLD AIRWAYS INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, National Air Carrier Association, Inc., et al., Intervenors. AMERICAN AIRLINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, National Air Carrier Association, Inc., et al., Intervenors. AMERICAN SOCIETY OF TRAVEL AGENTS, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, National Air Carrier Association, Inc. and Overseas National Airways, Inc., Saturn Airways, Inc., et al., Intervenors. MASTER EXECUTIVE COUNCIL OF the AIR LINE PILOTS IN the EMPLOY OF UNITED AIR LINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, National Air Carrier Association, Inc., et al., Intervenors. Nos. 72-1904, 72-1905, 72-1908, 72-2042 to 72-2044, 72-2127 and 72-2129. United States Court of Appeals, District of Columbia Circuit. Argued April 24, 1973. Decided July 11, 1973. See also, 155 U.S.App.D.C. 151, 476 F.2d 907. Robert M. Lichtman, Washington, D. C., with whom Jerry D. Anker, Washington, D.C., was on the brief, for petitioners in Nos. 72-1904 and 72-1908 and intervenor National Air Carrier Assn., Inc., et al., in Nos. 72-2042, 72-2043, 72-2044, 72-2127 and 72-2129. Paul M. Ruden and Paul Y. Seligson, Washington, D.C., also entered appearances for petitioners in Nos. 72-1904 and 72-1905. Harold L. Warner, Jr., New York City, of the bar of the Court of Appeals of New York pro hac vice by special leave of Court, with whom Edmund E. Harvey and Jerry W. Ryan, New York City, were on the brief for petitioners in Nos. 72-2042, 72-2043, and 72-2044. Warren L. Sharfman, Associate Gen. Counsel, Litigation and Research, C. A. B., with whom Thomas E. Kauper, Asst. Atty. Gen., R. Tenney Johnson, General Counsel, O. D. Ozment, Deputy Gen. Counsel, Robert L. Toomey, Alan R. Demby, and Arnold Lav, Attys., C. A. B., were on the brief for respondent. Paul Y. Seligson, Washington,. D.C., was on the brief for petitioners in No. 72-1905. Charles A. Hobbs and Paul S. Quinn, Washington, D.C., were on the brief for petitioners in No. 72-2127. Richard F. Watt, Chicago, 111., was on the brief for petitioners in No. 72-2129. Lester .M. Bridgeman and Jeffrey M. Lang, Washington, D.C., were on the brief for intervenor, Dan-Air Services, Ltd., in Nos. 72-1904, 72-1908, 72-2042 and 72-2043. Benny L. Kass, Washington, D.C., was on the brief for intervenor, Americans for Charter Travel, in Nos. 72-1904, 72-1905, 72-1908, 72-2042, 72-2043 and 72-2044. Theodore I. Seamon, Joseph D. Sullivan and Lawrence D. Wasko, Washington, D.C., were on the brief for interve-nor, Capitol International Airways, Inc., in Nos. 72-1904, 72-1905, 72-1908, 72-2042, 72-2043, 72-2044, 72-2127 and 72-2129. Sanford Peyser, New York City, filed a brief on behalf of Louis J. Lefkowitz, Atty. Gen., of the State of New York, as amicus curiae urging affirmance. Howard E. Shapiro, Atty., Department of Justice, entered an appearance for the United States of America. John W. Simpson, Koteen & Burt, Washington, D. C., entered an appearance for intervenor, McCulloch International Airlines, Inc., in No. 72-1904. Edmund E. Harvey, New York City, entered an appearance for intervenors, Braniff Airways, Inc. et. al., in Nos. 72-2042, 72-2043 and 72-2044. Before TAMM and ROBB, Circuit Judges, and DAVIES, Senior United States District Judge for the District of North Dakota. Sitting by designation pursuant to 28 U.S.C. § 294(d) (1970). TAMM, Circuit Judge: “This case presents essentially a question of statutory construction. It grows out of the protracted and absorbing battle over the years between the regularly scheduled airlines and the so-called ‘sup-' plemental’ airlines.” Almost seven years ago we introduced our opinion in American Airlines, Inc. v. CAB, 125 U.S.App. D.C. 6, 365 F.2d 939, 940 (1966), with those two sentences; we find them an equally appropriate preface to today’s decision. The passage of time has soured rather than mellowed the pugnacious disposition of the scheduled and supplemental airlines, and we are once again called upon to exercise our judgment concerning the “liberalization” (if that beleaguered term is indeed appro-pos) of regulations governing the jurisdiction of supplemental air carriers to provide “charter trips ... in air transportation.” 49 U.S.C. § 1301(34) (1970). On January 7, 1972, the Civil Aeronautics Board [hereinafter “Board”] published a Notice of Proposed Rule Making in the Federal Register, 37 Fed.Reg. 222 (1972), proposing and submitting for public comment a new set of regulations which provided for a new type of charter in air transportation, “Travel Group Charter” [hereinafter “TGC”]. As the TGC proposed regulations were somewhat revolutionary in concept — they relied upon travel factors rather than non-travel affinity to distinguish the charters from individually ticketed travel — they understandably elicited a deluge of analysis and discussion. On September 27, 1972, following oral argument and the reception and analysis of comments from interested parties, the Board by a 3-2 vote adopted the proposed regulations with some modification. 37 Fed.Reg. 20808 (1972). These consolidated appeals are taken by several interested parties and raise many different issues regarding the legality of various aspects of the Board’s action. We find that the Board acted within the scope of its authority and was neither arbitrary, unreasonable, nor capricious in the promulgation of the TGC regulations, and consequently in all respects affirm the Board. I Supplemental air carriers are those certificated by the Board pursuant to a finding of public convenience and necessity to engage solely in “supplemental air transportation,” 49 U.S.C. § 1371(d)(3) (1970), which is basically defined as “charter trips ... in air transportation.” 49 U.S.C. § 1301(34) (1970). The act of Congress providing for such certification, passed in 1962, purposefully avoided a delineation of the term “charter trips,” leaving the Board with the task of “evolv[ing] a definition in relation to such variable factors as changing needs and changing aircraft . . . .” American Airlines, Inc. v. CAB, 121 U.S.App.D.C. 120, 348 F.2d 349, 354 (1965). In the past decade the Board has responded to the challenge in a painstaking, almost evolutionary process of developing comprehensive regulations which authorize various types of charter flights. See 14 C. F.R. § 208.6. These include (1) “single-entity” charters, which involve engagement of an aircraft by one person for the transportation of others who pay nothing; (2) “affinity” charters, where groups having some community of interest apart from transportation, for example membership in a club, engage an aircraft for transportation to be paid for on a pro rata basis; (3) “inclusive tour charters,” which involve the charter of an aircraft by an entrepreneur who offers space to the public as part of an all expense paid tour; and (4) “travel group charters,” where individual travelers without a community of interest apart from transportation are organized by a third party and, subject to certain travel related restrictions, charter an aircraft on a pro rata basis. The supplemental air carriers, once known as “non-scheduled” or “irregular” air carriers, are meant to provide a supplementary service to that of the scheduled or trunkline carriers, who offer individually ticketed, regularly scheduled service to the general public. Since the supplemental are not subject to the economic rigors attendant upon a regularly scheduled, individually ticketed service, for they essentially fly when they desire and nearly always carry a full planeload of passengers, the air fares for comparable routes on charter flights can be significantly less than those offered by the scheduled air carriers. Congress in providing for certification of the supplemental recognized the potential problem of competition and the real possibility that if not carefully controlled they would supplant, rather than supplement, the regularly scheduled service. See generally American Airlines, Inc. v. CAB, supra, 365 F.2d at 944-945. Individually ticketed, regularly scheduled service is the mainstay of an efficient air transportation system, and a critical necessity in any sophisticated economy. Congress realized that it must be preserved. Accordingly, the legislative history and language of the statute itself manifest a congressional intent that although the Board should have the power of definition, it should never permit “individually ticketed service to be offered to the general public under the guise of charter.” Sen.Rep.No.688, 87th Cong., 1st Sess. 13 (1961). It is thus with each successive modification of the charter service regulations that the scheduled air carriers, asserting that the indistinct line between group (charter) and individually ticketed travel has been crossed, raise strong opposition to their implementation. The TGC regulations have proven to be no exception to that pattern of behavior. A brief summary of the past struggles between the supplemental and scheduled air carriers, who evidently view their respective positions as unalterably antagonistic, should serve to place this current litigation in proper perspective and render invaluable assistance in determining its outcome. 1. Split Charters In early 1964 the Board revised part 295 of its Economic Regulations and included what are known as “split charters” within the definition of charter flights. See ER-408, 29 Fed.Reg. 6005 (1964). Split charters, generally speaking, are the process whereby each of two unrelated but qualified charter groups with similar destinations charter one half of the same aircraft. Three scheduled air carriers petitioned in this court for review of that action, asserting that the Board lacked the statutory authority to define “charter trips” in such a manner — such charters were not authorized at the time of passage of the 1962 statutory revision — and that even if redefinition powers were found to exist, because of serious diversion of carriage from the scheduled services the Board abused its discretion in so acting. This court, speaking through Judge [now Chief Justice] Burger, disagreed, and in so doing laid the foundation for future decisions. American Airlines, Inc. v. CAB, 121 U. S.App.D.C. 120, 348 F.2d 349 (1965) [hereinafter “American Airlines /”]. The court stated: We conclude Congress intended, although not without limits, that the Board should be free to evolve a definition in relation to such variable factors as changing needs and changing aircraft; whatever the limits on the Board’s power of definition, those limits are not breached by a definition which permits two groups to charter one half an aircraft each We agree with the Board that the legislative history reveals that a prime concern of Congress was to maintain the integrity of the charter concept— to preserve the distinction between group and individually ticketed travel; within these limits it is for the Board to evolve reasonable definitions. Id. at 354. 2. Inclusive Tour Charters Further scrutiny of the Board’s authority was not long in coming, for on March 11, 1966, the Board issued certificates of authority granting certain supplemental airlines the right to operate “inclusive tour charters” in both domestic and transatlantic markets. The regulations promulgated concurrent therewith defined an inclusive tour charter as a kind of all-expense paid tour, with restrictions such as a seven day minimum between departure and return, a minimum of three stops, and a requirement that the tour package price be no less than 110 percent of the lowest available fare charged by the scheduled air carriers for comparable individually ticketed travel. The Board action was challenged by certain scheduled air carriers who sought review in this court as to the domestic charters, American Airlines, Inc. v. CAB, 125 U.S.App.D.C. 6, 365 F.2d 939 (1966) [hereinafter “American Airlines II” 2, and in the second circuit court of appeals as to the transatlantic charters. Pan American World Airways, Inc. v. CAB, 380 F.2d 770. (2d Cir. 1967), aff’d by an equally divided Court, 391 U.S. 461, 88 S.Ct. 1715, 20 L.Ed.2d 748 (1968). Although American Airlines I had settled the question of the Board’s basic power to evolve changing definitions of charter, the scheduled air carriers questioned whether the Board had exceeded the limits of this authority by failing to maintain the individually ticketed — group fair distinction that Congress desired. This line of attack required the courts to take a hard look at congressional intent in the passage of the 1962 legislation. In American Airlines II this court stated what it found to be the three primary purposes of the 1962 legislation: (1) to eliminate irresponsible supplemental; (2) to stabilize the operating authority of the supplemental under certification, including authority to authorize charter trips on a broad enough basis so that the supplemental might remain economically viable organizations capable of meeting supplemental transportation needs and high safety standards; and (3) “to maintain the regulatory scheme of the Federal Aviation Act and the protection of the [scheduled] carriers ... by eliminating unregulated individually ticketed point-to-point competition from the supplemen-tals.” 365 F.2d at 945-946 (footnote omitted). It was to the third of these purposes that the contradictory references in committee reports, hearing transcripts, and floor speeches of Congressmen were directed. The court felt, however, that much of the concern over the specific authorization of inclusive tour charters arose because of the abuses experienced when, prior to 1962, the Board had granted supplemental air carriers the right to conduct ten flights per month of scheduled, individually ticketed carriage. “Groups of carriers would combine their operations and provide daily services claiming at least col- or of authority under the ten-flight per month authorization.” 365 F.2d at 945. The court then summarized the problem : The question therefore arises as to whether authorization of inclusive tour charters will in fact bring about the individually ticketed abuses experienced under the ten-trip-per-month authority. ... In order to insure that the supplementals were properly regulated in this respect, and to insure that the individual ticketing abuses would not occur, the Board issued stringent regulations at the time of its decision in the instant case to cover inclusive tour charters. The key to this case, we believe, is the fact that the Congress at the time it passed the legislation had no way of knowing specifically how the Board would regulate the actions of the supplemen-tals with respect to inclusive tour charters. 365 F.2d at 946 (footnote omitted). Finding that the stringent regulations promulgated by the Board would in fact preclude the abuses both experienced in the past and foreseen by the legislators, we concluded that the inclusive tour charter regulations maintained the important distinction between group and individually ticketed travel, and therefore upheld the Board's action. On September 27, 1966, two months following the issuance of American Airlines II, presidential approval was given to the transatlantic aspects of the inclusive tour charter authorizations. As we noted earlier, review was immediately sought in the second circuit court of appeals by certain scheduled airlines, challenging the Board’s action in the international arena upon the same grounds that had earlier been contested in American Airlines II. The second circuit, although of course looking to the same legislative history that we had analyzed several months earlier, reached a contrary conclusion: We . . . reject the argument that the legislators’ concern was with abuses growing out of the Board’s prior practice of allowing supplemental carriers to perform limited scheduled individually ticketed travel. Regardless of the extent to which there may have been legislative concern based on this prior experience, indeed whether or not the expression of concern was misguided or wholly unwarranted, it was in fact manifested in a congressional declaration binding on both the Board and this court, that was clearly intended to forbid the Board to authorize inclusive tours. 380 F.2d at 781. The Supreme Court’s effort to relieve this conflict between the circuits was far from totally successful, for its consideration of the Pan American decision resulted only in a per curiam affirmance by an equally divided court. World Airways, Inc. v. Pan American World Airways, Inc., 391 U.S. 461, 88 S.Ct. 1715, 20 L.Ed.2d 748 (1968). Although an af-firmance by an equally divided Supreme Court is not “entitled to precedential weight,” Neil v. Biggers, 409 U.S. 188, 192, 93 S.Ct. 375, 34 L.Ed.2d 401, (1972), its restricted effect was to affirm the second circuit’s decision, and thus while domestic inclusive tours were allowed by this court’s decision, transatlantic inclusive tours were forbidden. Accordingly, Congress quickly passed legislation which expressly included inclusive tour charters within the definition of supplemental air transportation. Act of September 26, 1968, Pub.L. No. 90-514, 82 Stat. 867, amending 49 U.S.C. § 1301(33) (1964) (codified at 49 U.S.C. § 1301(34) (1970))/ We note that the Senate and House committee reports enunciated that the purpose of the new legislation was to “clarify” rather than add to the authority of the Board as originally granted in the 1962 legislation. II We have analyzed the record in light of the history — both litigious and legislative — of charter air travel. We adhere to the analysis and conclusions of our American Airlines II decision, and find that in authorizing the TGCs the Board met its obligations to encourage “[t]he promotion of adequate, economical, and efficient service by air carriers at reasonable charges, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices,” pursuant to the mandate of 49 U.S.C. § 1302(c) (1970), and to maintain the legislatively desired distinction between individually ticketed and group travel. We want to stress two items that have particularly influenced us, and which we have drawn from our review of this case and other experiences with this type of litigation. First, the test we must apply is result oriented — one cannot really know how the public will react and how the TGCs will affect scheduled travel until they are tested in the crucible of the marketplace. This is a situation in which, in Judge Leventhal’s words, “a month of experience will be worth a year of hearings.” American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310, 359 F.2d 624, 633 (D.C.Cir.), cert. denied, 385 U.S. 843, 87 S.Ct. 73, 17 L.Ed.2d 75 (1966). We can only look to the record, contradictory legislative history, and the purposes of the enabling legislation itself to determine if the Board’s action is reasonable, and within its authority. We are loathe to be held out either as seers of the future or overseers of the air transportation system in this country. Secondly, the consistent lamentations and predictions of doom by diversion raised by the scheduled air carriers in the past have proved, to our way of thinking, to be considerably overstated. The actions of the Board in this area have provided for steady growth in both the scheduled and supplemental markets, and the public, as it should be, has been the primary beneficiary. An elaboration of the intricacies of the TGC regulations would serve little purpose. We have studied them carefully and find that they maintain the necessary distinction between group and individually ticketed travel, and that they are the result of painstaking and reasoned analysis by the Board. We are impressed with the five “substantial and vital” differences between TGCs and conventional travel that have been stressed by the Board in its argument before us: (1) The TGC traveler is a party to the charter contract itself, incurring liability for the pro rata share of the charter cost and running the risk that his cost may increase depending upon the load factor ultimately achieved. (2) The travel group must be formed no less than three months prior to the scheduled departure time, or the trip must be cancelled. (3) The members of the group formed in # 2 above must have paid a deposit of 25 percent of the minimum pro rata charter price before the time for filing the list of tour members with the Board has elapsed, no more than four nor less than three months prior to the scheduled departure. This deposit is, subject to certain exceptions, nonrefundable. Payment of the balance must then be made not later than two months before departure. As of then the participant risks, again subject to certain exceptions, a 100 percent forfeiture should he desire to change his plans. (4) There is a risk of cancellation of the flight up to 45 days prior to scheduled departure because of defaults by fellow charter participants. (5) All TGC participants must go and return as a group, subject to predetermined, fixed restrictions as to the length of the trip. Perhaps the primary reason for the extensive opposition to the TGCs on the part of the scheduled air carriers is that the TGCs do not require non-travel related “affinity.” Non-travel affinity, whereby members of an organization such as the Elks or Eagles Club are allowed to take advantage of charter fares through charters organized by their clubs, have proven to be discriminatory in application and difficult in enforcement. The Board correctly recognized that this non-travel “affinity” was not statutorily required, but only a vehicle to insure that charter travel did not become a guise for individually ticketed services. So long as such organizational membership is not necessary to insure the distinction — which can be and is maintained by travel related restrictions in both the inclusive tour and now in the TGC charters — it is not a sine qua non for legality. Finally, we find nothing at fault with the Board’s decision to forego an evidentiary hearing on the diversionary effects of the TGC authorizations. The Board stated that “insofar as the principal factual issues here involve largely unpredictable questions as to the traffic which these new rules will generate or cause to be diverted from scheduled carriers, they can best be resolved in light of experience gained through actual experimentation.” 37 Fed.Reg. 20811 (1972). The TGC regulations and authorizations are temporary in nature, with a termination date set for December 31, 1975. 14 C.F.R. § 372a.5. This is the best way to test the true effects of the TGCs, and the Board remains free at all times to adjust its regulations in the interim to adapt to unexpected results. The Board’s experience with charter definitions in the past and the comments and oral arguments submitted to it led it to believe that this experimentation approach was the proper manner in which to proceed. We cannot fault such an approach. See American Airlines, Inc. v. CAB, supra, 359 F.2d at 633, and Delta Air Lines, Inc. v. CAB, 147 U.S.App.D.C. 272, 455 F.2d 1340, 1344 (1971). Ill Several supplemental air carriers and the National Air Carrier Association, Inc., a trade association of the supplemental, challenge the TGC regulations from an understandably different posture. They urge us not to set aside any specific section of the regulations under review, but rather to remand to the Board for the limited purpose of reconsidering its requirement that the TGCs be marketed exclusively by independent charter organizers. The charter organizer is an “arranger.” He initially obtains an option from the air carrier which obligates it to enter into a contract to provide carriage, said contract to be entered into with the organizer as agent for the group he subsequently forms. The organizer is given a substantial administrative burden of filing contracts, passenger lists, etcetera, with the Board, and it is through his organizational abilities and solicitation of the charter group that the charter will ultimately succeed or fail. His compensation is in the form of a service charge from the charter group, which is pro rated among its members. He must be completely independent of, and receive no compensation from any air carrier. The Board’s reason for requiring an independent organizer is almost disarmingly simple — it is a further mechanism for separating the supplemental air carrier from the marketing of individual tickets to the general public. In light of Congress’ specific prohibition in the inclusive tour market, 49 U.S.C. § 1301(34) (1970): Nothing in this paragraph shall permit a supplemental air carrier to sell or offer for sale an inclusive tour . by selling . . . individual tickets directly to members of the general public, or to do so indirectly by controlling ... a person authorized by the Board to make such sales. We find this requirement to be eminently reasonable. Accordingly, the various Orders of the Civil Aeronautics Board authorizing Travel Group Charters and promulgating regulations concerning such, are Affirmed. . The Board on January 29, 1971, had previously issued an Advance Notice of Proposed Rule Making — Non-Affinity Charters. 36 Fed.Reg. 2514 (1971). The Advance Notice resulted from a petition for rule making filed by the Member Carriers of the National Air Carrier Assoeiation (an organization of supplemental air carriers) on July 30, 1970. . A listing of the initial and reply comments was filed with the majority statement accompanying the adoption of the Travel Group Charter regulations, and appears at page 679 of the Joint Appendix filed with this appeal. . Act of July 10, 1962, Pub.L. No. 87-528, 76 Stat. 143, amending the Federal Aviation Act of 1958, 72 Stat. 731, as amended, 49 U.S.C. § 1301 et seq. (1970). . There are also “study group charters,” 14 C.F.R. §§ 373.1-.31, and “overseas military personel charters,” 14 C.F.R. §§ 372.1-.40. . Trans World Airlines, Pan American World Airways, American Airlines, Bran-iff Airways, Delta Air Lines, Eastern Air Lines, National Airlines, Northwest Airlines, United Air Lines, and Western Air Lines are all certified pursuant to 49 U.S. C. § 1371(d)(1) (1970), and thus are representative scheduled or trunkline air carriers. It is important to note that 49 U.S.C. § 1371(e) (6) (1970) provides that “[a]ny air carrier, other than a supplemental air carrier, may perform charter trips or any other special service .” Therefore, the scheduled air carriers can, should they so desire, compete with the supplemental air carriers in the charter travel market. . The scheduled air carriers providing individually ticketed transportation, because they provide the country with a “dependable and predictable air transportation service at all times, one that operates in peak and off-peak periods, to large cities and to small ones and in dense and thin traffic markets,” Brief for Petitioners and Intervenors in Nos. 72-2042, 2043, 2044 at 6, are admittedly at an economic disadvantage when competing against charter services. Whereas the “load factor” (average percentage of occupancy) of charter flights is near 100 percent, scheduled service normally operates at an average of 50 percent. See Comments of Trans World Airlines, Inc. in Opposition to the Travel Group Charter Proposal, Jt. App. at 423. . See generally the thorough analysis of the legislative history contained in American Airlines, Inc. v. CAB, 125 U.S.App.D.C. 6, 365 F.2d 939 (1966), and Pan American World Airways, Inc. v. CAB, 380 F.2d 770 (2d Cir. 1967), aff’d by an equally divided Court, 391 U.S. 461, 88 S.Ct. 1715, 20 L.Ed.2d 748 (1968). . The Act of September 26, 1968, Pub.L. No. 90-514, 82 Stat. 867, amending 49 U.S.C. § 1301(33) (1964) (codified at 49 U.S.C. § 1301(34) (1970)), amended the definition of supplemental air transportation by providing, inter alia, that “[n]oth-ing in this paragraph shall permit a supplemental air carrier to sell or offer for sale an inclusive tour in air transportation by selling or offering for sale individual tickets directly to members of the general public . . . .” . On March 26, 1968, the Board again altered part 295 of its Economic Regulations, “by deleting the [then] existing rigid requirement that each group be comprised of one-half of the capacity of an aircraft and substituting therefore [a] more flexible requirement . . . namely, authorization of up to three groups on one aircraft with each group containing 40 or more passengers.” Reg. ER-531, Amdt. 1, 33 Fed.Reg. 5155 (1968). Subsequently, on January 29, 1971, the Board deleted part 295, incorporating it into part 208, and eliminated the limitation on number of groups per aircraft, while retaining the minimum passengers per group requirement. Reg. ER-659, Amdt. 9, 36 Fed.Reg. 2486 (1971). See 14 C.F.R. § 208.6(c). Both alterations were subjected to stiff opposition by the scheduled airlines. . The court continued, 348 F.2d at 354, in language we find relevant to the TGC controversy: In today’s swift engineering developments as to size and speed of aircraft a definition embalmed, for example, in • such origins as the admiralty law growing out of the sailing vessel era would be an unreasonable and unnecessary restraint on the Board and one we do not find in the statute or its history. . See generally Board Order E-23350 (March 11, 1966), and Keg. No. SPR-14, 31 Fed.Reg. 4779 (1966). . The regulations governing inclusive tour charters are contained in part 378 of the Board’s Economic Regulations, 14 C.F.R. §§ 378.1-.31. . The bill which evolved into the Act of July 10, 1962, Pub.L. No. 87-528, 76 Stat. 143, was prejoared by the Board and introduced in both houses of Congress early in the 87th Congress. See S.1969, 87th Cong., 1st Sess. (1961) ; H.R. 7318, 87th Cong., 1st Sess. (1961). Following lengthy committee hearings and floor argument the Senate and House versions of the bill became strikingly different — the Senate version attempted a definition of “charter service,” one which prevented individually ticketed service excepting that offered to “a member of a group on an all-expense-paid tour,” wliile the House version contained no definition whatsoever. The conflicting bills were submitted to a Conference Committee which reported out a substitute bill adopting the House version, and eliminating the definition of “charter” found in the Senate bill. This bill was ultimately enacted into law. As both Pan American World Airways, Inc. v. CAB, 380 F.2d 770, 777-782 (2d Cir. 1967), aff’d by an equally divided Court, 391 U.S. 461, 88 S.Ct. 1715, 20 L.Ed.2d 748 (1968), and American Airlines, Inc. v. CAB, 1 Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
sc_petitioner	180	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. LANCE et al. v. DENNIS, COLORADO SECRETARY OF STATE No. 05-555. Decided February 21, 2006 Per Curiam. The Rooker-Feldman doctrine prevents the lower federal courts from exercising jurisdiction over cases brought by “state-court losers” challenging “state-court judgments rendered before the district court proceedings commenced.” Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U. S. 280, 284 (2005). In this case, the District Court dismissed the plaintiffs’ suit on the ground that they were in privity with a state-court loser. We hold that the Rooker-Feldman doctrine does not bar the plaintiffs from proceeding, and vacate the District Court’s judgment. I This is the latest of several rounds of litigation involving the State of Colorado’s congressional redistricting after the 2000 census, under which the State gained a seat in the House of Representatives. Lance v. Davidson, 379 F. Supp. 2d 1117, 1121 (2005). The first round began in May 2001. When the Colorado General Assembly failed to pass a redistricting plan for the 2002 congressional elections by the close of its regular session, a group of Colorado voters asked the state courts to create a plan. The courts agreed, drawing a new map reflecting the additional district. See Beauprez v. Avalos, 42 P. 3d 642 (Colo. 2002) (en banc). The 2002 elections were held using this court-ordered plan. The General Assembly passed its own redistricting plan in the spring of 2003, prompting further litigation — this time about which electoral map was to govern, the legislature’s or the courts’. Two suits were filed seeking to enjoin the legislature’s plan: an original action in the Colorado Supreme Court by the state attorney general seeking to require the secretary of state to use the court-ordered plan, and a similar action brought in a lower state court by several proponents of the court-ordered plan. 379 F. Supp. 2d, at 1121. After the Colorado General Assembly intervened to defend its plan in the first case, the Colorado Supreme Court held that the plan violated Article V, §44, of the State Constitution, which the court construed to limit congressional redistricting to “once per decade.” People ex rel. Salazar v. Davidson, 79 P. 3d 1221, 1231 (2003) (en banc). It therefore ordered the secretary of state to use the court-created plan. We denied certiorari. 541 U. S. 1093 (2004). The second suit Was removed to federal court by the defendants on the basis of the plaintiffs’ federal-law claims. See Keller v. Davidson, 299 F. Supp. 2d 1171, 1175 (Colo. 2004). Once Salazar was decided by the Colorado Supreme Court, the viability of the defendants’ coimterclaims was the only remaining issue. A three-judge District Court held that the defendants were barred by the Rooker-Feldman doctrine from amending their counterclaims to assert additional challenges to the decision in Salazar. It also held that the defendants’ original coimterclaims, while not barred by the Rooker-Feldman doctrine, were precluded under Colorado law. by the judgment in Salazar. Accordingly, the court dismissed the case. Finally, this suit: Before the dismissal in Keller, several Colorado citizens unhappy with Salazar filed an action in the District Court seeking to require the secretary of state to use the legislature’s plan. The plaintiffs argued that Article V, §44, of the Colorado Constitution, as interpreted by the Colorado Supreme Court, violated the Elections Clause of Article I, §4, of the U. S. Constitution (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof”), and the First Amendment’s Petition Clause (“Congress shall make no law ... abridging . .. the right of the people ... to petition the Government for a redress of grievances”). The defendants filed a motion to dismiss, arguing that the Rooker-Feldman doctrine and Colorado preclusion law barred any attack on the Colorado Supreme Court’s judgment in Salazar and that the plaintiffs had failed to state a valid Petition Clause claim. The three-judge District Court ruled that under the Rooker-Feldman doctrine, it had no jurisdiction to hear the Elections Clause claim. 379 F. Supp. 2d, at 1127. The Rooker-Feldman doctrine, the court explained, includes three requirements: (1) “[T]he party against whom the doctrine is invoked must have actually been a party to the prior state-court judgment or have been in privity with such a party”; (2) “the claim raised in the federal suit must have been actually raised or inextricably intertwined with the state-court judgment”; and (3) “the federal claim must not be parallel to the state-court claim.” 379 F. Supp. 2d, at 1124. The District Court found the first requirement satisfied on the ground that the citizen-plaintiffs were in privity with the Colorado General Assembly — a losing party in Salazar. Relying on our decisions in Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S. 658 (1979), and Tacoma v. Taxpayers of Tacoma, 357 U. S. 320 (1958), the court stated that “when a state government litigates a matter of public concern, that state’s citizens will be deemed to be in privity with the government for preclusion purposes.” 379 F. Supp. 2d, at 1125. This principle, the court reasoned, applies “with equal force in the Rooker-Feldman context.” Ibid. The court went on to conclude that the Elections Clause claim was actually raised in Salazar, or inextricably intertwined with that decision, and was not parallel to the claims presented in Salazar. As to the Petition Clause claim, the court ruled that neither Rooker-Feldman nor Colorado preclusion law prevented the court from proceeding to the merits, but that the plaintiffs failed to state a claim. 379 F. Supp. 2d, at 1132; see Fed. Rule Civ. Proc. 12(b)(6). The plaintiffs appealed. See 28 U. S. C. § 1253. We now note jurisdiction, and address whether the Rooker-Feldman doctrine bars the plaintiffs from proceeding because they were in privity with a party in Salazar. We conclude it does not, and vacate the judgment of the District Court. II This Court is vested, under 28 U. S. C. § 1257, with jurisdiction over appeals from final state-court judgments. We have held that this grant of jurisdiction is exclusive: “Review of such judgments may be had only in this Court.” District of Columbia Court of Appeals v. Feldman, 460 U. S. 462, 482 (1988) (emphasis added); see also Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U. S. 281, 286 (1970); Rooker v. Fidelity Trust Co., 263 U. S. 413, 416 (1923). Accordingly, under what has come to be known as the Rooker-Feldman doctrine, lower federal courts are precluded from exercising appellate jurisdiction over final state-court judgments. The Rooker-Feldman doctrine takes its name from the only two cases in which we have applied this rule to find that a Federal District Court lacked jurisdiction. In Rooker, a party who had lost in the Indiana Supreme Court, and failed to obtain review in this Court, filed an action in Federal District Court challenging the constitutionality of the state-court judgment. We viewed the action as tantamount to an appeal of the Indiana Supreme Court decision, over which only this Court had jurisdiction, and said that the “aggrieved litigant cannot be permitted to do indirectly what he no longer can do directly.” 263 U. S., at 416. Feldman, decided 60 years later, concerned slightly different circumstances, with similar results. The plaintiffs there had been refused admission to the District of Columbia bar by the District of Columbia Court of Appeals, and sought review of these decisions in Federal District Court. Our decision held that to the extent plaintiffs challenged the Court of Appeals decisions themselves — as opposed to the bar admission rules promulgated nonjudicially by the Court of Appeals — their sole avenue of review was with this Court. 460 U. S., at 476. Neither Rooker nor Feldman elaborated a rationale for a wide-reaching bar on the jurisdiction of lower federal courts, and our cases since Feldman have tended to emphasize the narrowness of the Rooker-Feldman rule. See Exxon Mobil, 544 U. S., at 292 (Rooker-Feldman does not apply to parallel state and federal litigation); Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U. S. 635, 644, n. 3 (2002) (Rooker-Feldman “has no application to judicial review of executive action, including determinations made by a state administrative agency”); Johnson v. De Grandy, 512 U. S. 997, 1005-1006 (1994) (Rooker-Feldman does not bar actions by a nonparty to the earlier state suit). Indeed, during that period, “this Court has never applied Rooker-Feldman to dismiss an action for want of jurisdiction.” Exxon Mobil, supra, at 287. In Exxon Mobil, decided last Term, we warned that the lower courts have at times extended Rooker-Feldman “far beyond the contours of the Rooker and Feldman cases, overriding Congress’ conferral of federal-court jurisdiction concurrent with jurisdiction exercised by state courts, and superseding the ordinary application of preclusion law pursuant to 28 U. S. C. § 1738.” 544 U. S., at 283. Rooker-Feldman, we explained, is a narrow doctrine, confined to “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” 544 U. S., at 284. Although we have never addressed the precise question before us, we have held Rooker-Feldman inapplicable where the party against whom the doctrine is invoked was not a party to the underlying state-court proceeding. See De Grandy, supra, at 1006. In De Grandy, the State of Florida sought, using Rooker-Feldman, to prevent the United States from bringing a challenge under §2 of the Voting Rights Act of 1965 to the reapportionment of state electoral districts. The Florida Supreme Court, in an action initiated by the state attorney general, had already declared the law valid under state and federal law. We held that Rooker-Feldman did not bar the United States from bringing its own action in federal court because the United States “was not a party in the state court,” and “was in no position to ask this Court to review the state court’s judgment and has not directly attacked it in this proceeding.” 512 U. S., at 1006. In the case before us, the plaintiffs were plainly not parties to the underlying state-court proceeding in Salazar. Salazar was an action brought by the state attorney general against the secretary of state, in which the Colorado General Assembly intervened. 79 P. 3d, at 1227. The four citizen-plaintiffs here did not participate in Salazar, and were not in a “position to ask this Court to review the state court’s judgment.” De Grandy, supra, at 1006; see Karcher v. May, 484 U. S. 72, 77 (1987) (“[T]he general rule [is] that one who is not a party or has not been treated as a party to a judgment has no right to appeal therefrom”). Although the District Court recognized the “general rule” that “Rooker-Feldman may not be invoked against a federal-court plaintiff who was not actually a party to the prior state-court judgment,” 379 P. Supp. 2d, at 1123, it nevertheless followed Tenth Circuit precedent in allowing application of Rooker-Feldman against parties who were in privity with a party to the earlier state-court action, 379 F. Supp. 2d, at 1123 (citing Kenmen Eng. v. Union, 314 F. 3d 468, 481 (2002)). In determining whether privity existed, the court looked to cases concerning the preclusive effect that state courts are required to give federal-court judgments. 379 F. Supp. 2d, at 1125 (citing Washington, 443 U. S., at 693, n. 32; Taxpayers of Tacoma, 357 U. S., at 340-341). It concluded that — for Rooker-Feldman as well as preclusion purposes — “the outcome of the government’s litigation over a matter of public concern binds its citizens.” 379 F. Supp. 2d, at 1125. The District Court erroneously conflated preclusion law with Rooker-Feldman. Whatever the impact of privity principles on preclusion rules, Rooker-Feldman is not simply preclusion by another name. The doctrine applies only in “limited circumstances,” Exxon Mobil, supra, at 291, where a party in effect seeks to take an appeal of an unfavorable state-court decision to a lower federal court. The Rooker-Feldman doctrine does not bar actions by nonparties to the earlier state-court judgment simply because, for purposes of preclusion law, they could be considered in privity with a party to the judgment. A more expansive Rooker-Feldman rule would tend to supplant Congress’ mandate, under the Full Faith and Credit Act, 28 U. S. C. § 1738, that federal courts “ ‘give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged.’” Baker v. General Motors Corp., 522 U. S. 222,246 (1998) (quoting Kremer v. Chemical Constr. Corp., 456 U. S. 461, 466 (1982)); see Exxon Mobil, supra, at 293. Congress has directed federal courts to look principally to state law in deciding what effect to give state-court judgments. Incorporation of preclusion principles into Rooker-Feldman risks turning that limited doctrine into a uniform federal rule governing the preclusive effect of state-court judgments, contrary to the Full Faith and Credit Act. * * * The judgment of the District Court is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Although the secretary of state defended the legislature’s plan in Salazar, following that decision she agreed to defend the court-ordered plan in this litigation and to allow the state attorney general to represent her. 379 F. Supp. 2d 1117, 1122, n. 3 (Colo. 2005). In holding that Rooker-Feldman does not bar the plaintiffs here from proceeding, we need not address whether there are any circumstances, however limited, in which Rooker-Feldman may be applied against a party not named in an earlier state proceeding — e. g., where an estate takes a de facto appeal in a district court of an earlier state decision involving the decedent. Our holding also disposes of the claim, which the District Court did not reach, that plaintiffs were barred by Rooker-Feldman because they were in privity with the secretary of state, the other losing party in People ex rel. Salazar v. Davidson, 79 P. 3d 1221 (Colo. 2003) (en banc). We do not pass on the District Court’s resolution of the merits of the plaintiffs’ Petition Clause claim. 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_civproc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited. William E. HANES, Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Appellee. No. 9275. United States Court of Appeals Fourth Circuit. Argued April 21, 1964. Decided Sept. 23, 1964. Frank C. Maloney, III, Richmond, Va. (Allen, Allen, Allen & Allen, Richmond, Va., on brief), for appellant. Peter B. Bdelman, Attorney, Department of Justice (John W. Douglas, Asst. Atty. Gen., and Sherman L. Cohn, Attorney, Department of Justice, and C. Vernon Spratley, Jr., U. S. Atty., on brief), for appellee. Before SOBELOFF, Chief Judge, and BOREMAN and BRYAN, Circuit Judges. BOREMAN, Circuit Judge. William E. Hanes brought this action in the District Court under section 205 (g) of the Social Security Act (42 U.S. C.A. § 405(g)) to obtain judicial review of the decision of the Secretary of Health, Education and Welfare (hereinafter Secretary) denying his application for the establishment of a period of disability under section 216(i) (1) of the Act (42 U.S.C.A. § 416(i) (1)) and for disability benefits for himself and his children under section 223 (42 U.S.C.A. § 423). Following oral argument and the submission of briefs on behalf of both parties, the District Court granted defendant’s motion for summary judgment, thus sustaining the Secretary’s decision. Actually, the ultimate issue here is the same as that before the District Court, namely, whether the Secretary’s determination that claimant was not disabled within the meaning of the Act is supported by substantial evidence. Thomas v. Celebrezze, 331 F.2d 541 (4 Cir. 1964); Farley v. Celebrezze, 315 F.2d 704 (3 Cir. 1963); Ward v. Celebrezze, 311 F.2d 115 (5 Cir. 1962). We conclude that the court erred in granting the motion for summary judgment. Hanes was forty-six years old at the time he filed the application. It is shown by the record that he had completed six years of school when, at age fourteen, he left school to take a job m a paper- box factory where he worked for twelve years as a helper and machine operator. Thereafter he worked for a time as a truck driver for the City of Richmond, Virginia, and in 1941 was appointed to the Richmond Police Department. On May 1, 1959, he was struck from behind by an automobile as he was directing traffic in the performance of his duties as a police officer and sustained numerous injuries over various parts of his body in addition to severe internal injuries. He was hospitalized for eighty-nine days and during much of that time his condition was critical. On the day after his admission to the hospital, he underwent an operation for the resection of a gangrenous segment of the terminal ileum and end-to-end anastomosis. Following this operation his condition worsened and one week later a transverse ileocolostomy was performed and a partial dehiscence of the wound from the previous operation was repaired. Because of continued internal bleeding, a third operation was-performed on May 27, 1959, and a perforated stress ulcer of the stomach was: repaired. Although this operation was-successful, there was further bleeding caused by multiple stress ulcers and he-had edema and cardiac signs indicating some degree of heart failure. Thereafter, a severe abdominal wound infection-developed which was not completely cured for several months. During the period of' his hospitalization he suffered from phlebitis, jaundice, slight pneumonitis, diarrhea and other ailments. An orthopedic-examination revealed a separation of the' joint at his left shoulder. Hanes was discharged from the hospital on July 27, 1959. In October 1959' he was retired from the Richmond Police Department and, at the time of the hearing before the examiner, was receiving a monthly retirement pension of approximately $243.00. Despite his continuing physical impairments, as hereinafter described, he began working in January-1961 at the Ashland Memorial Building which is located two blocks from his home in Ashland, Virginia, and used by various organizations for meetings and other functions. Claimant’s job with respect thereto was described by the hearing examiner as follows: “ * # * The claimant has the key to the building. He opens the building when necessary, turns on the lights, and in season, turns up the thermostat for heat. At the close of the meeting the claimant checks the room to see that it has been properly taken care of, turns off the lights, turns down the heat, and locks the building. If any repairs are necessary the claimant notifies the proper authorities. During the summer the claimant opened the doors at about eight-thirty in the morning only on Mondays and returned at about five-thirty to lock up. During the winter months there are about twelve meetings a month. He generally opens the place at about seven-thirty in the evening then goes home. He returns at about ten-thirty to turn off the lights, heat, checks the place, and locks up. * * » Hanes testified that his work required only one or two hours per week during the summer and eight to ten hours per week during busy weeks in the winter. He further testified that “a good part of the time” he was unable to do the work and his duties were performed by his wife or son. For this work he was receiving $125.00 per month. Claimant first made application for a period of disability and disability benefits in November of 1959. His claim was denied in March 1960 and on October 20, 1960, he filed a second application which was prior to his employment at Ashland Memorial. This application was also administratively denied and he was granted a requested hearing before an examiner. After considering the testimony of Hanes and that of a physician who appeared on his behalf, together with a number of medical reports, the examiner concluded that “the claimant’s overall ability has not been so seriously impaired * * as to make him continuously unable to engage in any substantial gainful activity.” In support of his conclusion that the claimant was able to engage in light sedentary work, the examiner cited several industrial and governmental publications listing the types of jobs held by physically handicapped persons. Review by the Appeals Council was refused and the examiner’s decision became the final decision of the Secretary. The question presented by the circumstances here distinguishes this ease from any this court has heretofore considered. In view of the extensive medical evidence with respect to the degree of claimant’s impairments and his own testimony as to the extent to which his activities are limited, we would have no difficulty in holding that the examiner’s decision is unsupported by the record were it not for the fact that claimant is receiving $125.-00 per month from Ashland Memorial. The precise question, then, to be resolved is whether the evidence of these earnings constitutes substantial evidence to support the- Secretary’s decision. Although the District Court expressed the view that “it is difficult to believe that he [Hanes] could engage in substantial gainful activity other than the job which he has at the War Memorial Building in Ashland or in work of a similar nature * * it nevertheless concluded that Hanes’ earnings from that job constituted substantial evidence upon which the Secretary could base his decision. The court apparently felt that such conclusion was compelled by a departmental regulation (20 C.F.R. § 404.1534(b)) promulgated by the Secretary which provides : “An individual’s earnings from work activities averaging in excess of $100 a month shall be deemed to demonstrate his ability to engage in substantial gainful activity in the absence of evidence to the contrary.” After noting that the regulation is neither unreasonable nor inconsistent with the statute, the lower court stated: “The regulation provides that earnings of $100 a month shall be deemed to demonstrate the claimant’s ability to engage in substantial gainful activities ‘in the absence of evidence to the contrary.’ The Court finds no evidence to the contrary which removes this case from the application of the regulation. The Secretary’s determination that the plaintiff was not disabled within the meaning of the Act is supported by ■substantial evidence. * * * ” It is claimant’s position that this regulation is inconsistent with the provisions of the Social Security Act and that in the adoption and promulgation thereof the Secretary exceeded the authority granted by Congress. However, we need not decide whether, if given the interpretation which the District Court apparently placed upon it, the regulation would be valid. In our view, the court below erred in ascribing controlling significance to the evidence of claimant’s earnings. We are not aware of any other cases which have construed the regulation involved here. Significantly, the regulation does not say that an individual who earns in excess of one hundred dollars a month is engaged in substantial gainful activity; it merely creates an inference, in the absence of evidence to the contrary, that one who earns monthly in excess of the stated amount is able to engage in substantial gainful activity. As defined in another regulation of the Secretary, “ [substantial gainful activity is work activity that is both substantial and gainful.” 20 C.F.R. § 404.1502(h). See Celebrezze v. Bolas, 316 F.2d 498, 501 (8 Cir. 1963); Roop v. Flemming, 190 F.Supp. 820, 822 (W.D.Va. 1960). And, “ [substantial work activity involves the performance of significant physical or mental duties, or a combination of both, productive in nature. * * ” 20 C.F.R. § 404.1502(h). The examiner found that claimant’s duties are confined to opening and closing the Memorial Building a few times a week, turning on the lights, regulating the heat and, when repairs are necessary, notifying the proper authorities. His actual work requires no more than one or two hours a day, only one day a week during the summer and one or two hours a day three or four days a week during the winter. This finding was based wholly upon claimant’s testimony and there was no other evidence in the record as to the details of the work or the nature of the employment. It seems clear that claimant is not required to perform “significant mental or physical duties.” His duties, according to his testimony, are “a good part of the time” performed by his wife or thirteen year old son, and it is thus made to appear that they do not involve the exercise of significant individual responsibility. As we have indicated, the inference created by the regulation, arising from earnings, is not conclusive and may be rebutted by “evidence to the contrary.” We think the applicability and strength of the inference must vary with the circumstances in a particular ease and that the totality of circumstances must be considered. Here, the extent of the claimant’s impairments, the nature of the job from which the earnings are derived, and the extent to which the claimant is able to satisfactorily perform it are pertinent considerations. Where the evidence discloses that the claimant, in spite of severe and disabling impairments, is compelled to perform work to “keep the wolf from the door,” his earnings should be given little significance. Hicks v. Flemming, 302 F.2d 470, 473 (5 Cir.), cert. denied, 371 U.S. 868, 83 S.Ct. 132, 9 L.Ed.2d 106 (1962); Flemming v. Booker, 283 F.2d 321 (5 Cir. 1960). Similarly, where the claimant is provided with a job as a charitable gesture and his earnings bear little relationship to the value of his services, it is apparent, and indeed recognized in the regulations, that his earnings are entitled to slight weight in determining his ability to engage in substantial gainful activity. 20 C.F.R. § 404.1534(a); Pruitt v. Flemming, 182 F.Supp. 159 (S.D.W.Va.1960). The Secretary recognizes the relevance of these considerations but argues that here (because of his pension as a police officer) there is no wolf at claimant’s door and he is engaged in competitive, nonsubsidized employment. In our view, however, “evidence to the contrary” within the meaning of the regulation is not limited to the type of evidence exemplified by the foregoing illustrations. Manifestly, the inference of ability to engage in substantial gainful activity is stronger where the job itself constitutes substantial gainful activity. Hence, consideration must be given to the work which the claimant actually performs and the nature of the employment. Medical evidence with respect to the extent of the claimant’s impairments is also particularly relevant where the employment itself does not constitute substantial gainful activity. It is conceded that earnings from employment, whether or not the work itself is deemed substantial gainful activity, constitute some evidence tending to negate disability. Whether earnings in excess of $100 per month constitute substantial evidence to support the decision of the Secretary (denying disability benefits) must be determined from a considered analysis of the whole record. Cf. Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Thomas v. Celebrezze, 331 F.2d 541 (4 Cir. 1964); Farley v. Celebrezze, 315 F.2d 704 (3 Cir. 1963); Hayes v. Celebrezze, 311 F.2d 648 (5 Cir. 1963). We think the regulation has not altered this requirement. Reviewing the whole record as it now stands, we conclude that the Secretary’s decision is not supported by substantial evidence. Although there' are some inconsistencies in the various-medical reports of the several physicians-, who examined claimant between the time’ of his injuries in May of 1959 and the-date of the hearing before the examiner-in September 1962, there is no serious-conflict. All of the doctors agreed that claimant continues to suffer from serious-ailments as a result of the accident and’ the three abdominal operations. It is undisputed that he suffers considerably from pain in his legs, stomach and back; that he has severe diarrhea; that his-, left shoulder is permanently dislocated; and that he has a large ventral hernia.. There seems to be no question that his-, ability to engage in any sort of physical, activity is strictly limited. Two of the' doctors who submitted medical reports expressed the opinion that claimant is-, totally and permanently disabled. Another stated that he “apparently will not. be able to return to work.”. A physician-who examined claimant at government, expense on February 10,1960, concluded ;• “Although it is felt that cardiac disease is not present, this man’s abdominal residua [sic] and his dislocated shoulder,. ■together with his obesity, would make active work extremely difficult for him.” Dr. Suter, one of the physicians who expressed the view that claimant is totally -and permanently disabled and who had •examined him most recently, in a report •dated May 28, 1962, stated: “On the basis of this patient’s physical residual alone, it would appear that he is totally and permanently disabled for any type of work. Sedentary work would be impossible by virtue of the swelling of his legs, his back pain, as well as the difficulty with his diarrhea. Physical work requiring any type of moving around to labor would be equally impossible.” 'There was no medical evidence inconsistent with the conclusion that claimant is physically unable to engage in substantial gainful activity. In addition to the medical evidence, the record contains only the testimony of the -claimant. Before the examiner he testified that he has frequent swelling in "his legs; that he suffers constantly from severe pains in his legs, stomach and "back; that he has frequent headaches; that he has difficulty sleeping; and that "he has constant diarrhea which requires "him to visit the toilet ten to fifteen times ,a. day. He further testified that he is ■able to drive about twenty miles without "tiring; that he is able to shave, bathe and clothe himself; and that he is able to ■perform certain minor jobs around the "house such as helping his wife shell beans ■and feed the chickens. Virtually the only evidence in "the record tending to support the Secretary’s conclusion is the evidence of earnings. In view of the overwhelming evidence tending to establish his disability, -we do not believe this evidence can be regarded as substantial or controlling. 'The examiner made no specific finding as to whether claimant’s job constitutes substantial gainful activity. If it does not, ■as the record appears to indicate, then his earnings therefrom constitute very slight evidence of his ability to engage in activity which is substantial and gainful, and there should be a further inquiry as to the extent of claimant’s ability to engage in additional activities. Moreover, this determination should be coupled with a determination as to what, if any, employment opportunities consistent with his ability, education, background and experience are available to claimant. See Woodson v. Celebrezze, 325 F.2d 479 (4 Cir. 1963); Cochran v. Celebrezze, 325 F.2d 137 (4 Cir. 1963). In making the latter determination, it is important to keep in mind that the, employment opportunities must be actually and not merely theoretically available. Citing catalogues which list or contain capsule descriptions of thousands of jobs is unpersua-sive. Thomas v. Celebrezze, 331 F.2d 541, 546 (4 Cir. 1964); Stancavage v. Celebrezze, 323 F.2d 373 (3 Cir. 1963). Another consideration which significantly weakens the inference which might be drawn from the evidence of earnings is claimant’s testimony as to his inability to perform even his minimal duties at Ashland Memorial. He stated: “ * * A good part of the time my wife will go down and open up or either the boy, if I’m feeling extremely bad.” In the present state of the record it is impossible to evaluate the significance of this testimony. The Secretary argues that since Hanes described, at length and in personal terms, his job duties at the Ashland Memorial Building, the above quoted statement, which is the only reference in the record to his inability to perform that job, is entitled to little, if any, consideration. We cannot agree. Immediately after making that statement, claimant was instructed by the examiner: “You tell me about yourself now. When do you normally open this building up ? ” (Emphasis added.) What further explanation claimant might have offered had he not been so enjoined by the examiner we do not know. Since the extent to which claimant is unable to perform his job at the Ashland Memorial Building is directly relevant to the question as to whether he is able to engage in substantial gainful activity, this aspect of the case should be further explored. In sum, we conclude that there is not substantial evidence in the record, viewed as a whole, to support the Secretary’s decision and that the granting of summary judgment was error. If it can be properly determined that claimant’s job itself constitutes substantial gainful activity and that he is fully able to perform it, a different conclusion would be justified. Accordingly, the case is remanded to the District Court with directions to remand it to the Secretary for further proceedings consistent with the views herein expressed. Reversed and remanded. . As defined in 42 U.S.C.A. § 423(c) (2), the term “disability” means “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can. be expected to result in death or to be of long-continued and indefinite durations * * *» . Under 42 U.S.C.A. § 405(a), the Secretary is empowered to establish rules and regulations “not inconsistent with the provisions of this suhehapter, which are necessary or appropriate to carry out such provisions,” and to “adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder.” . A few cases, however, have recognized the Secretary’s use of the figure of $1200 annually as a rule of thumb to measure substantial employment. See Hicks v. Flemming, 302 F.2d 470, 473 (5 Cir.), cert. denied, 371 U.S. 868, 83 S.Ct. 132, 9 L.Ed.2d 106 (1962); Pollak v. Ribicoff, 300 F.2d 674, 678 (2 Cir. 1962); Butler v. Flemming, 288 F.2d 591, 593 (5 Cir. 1961); Flemming v. Booker, 283 F.2d 321, 324 (5 Cir. 1960). . Although, as the examiner noted, opinion testimony of physicians cannot be deemed conclusive of the ultimate issue, whether claimant is disabled within the meaning of the Act, it is nevertheless relevant and must be considered. See Thomas v. Celebrezze, 331 F.2d 541, 542-543 (4 Cir. 1964); Underwood v. Ribicoff, 298 F.2d 850 (4 Cir. 1962); Regulation of the Secretary, 20 C.F.R. § 404.1526. . Hicks v. Flemming, 302 F.2d 470, 473 (5 Cir. 1962); Kerner v. Flemming, 283 F.2d 916, 921 (2 Cir. 1960). . See Regulation of the Secretary, 20 C.F.R. § 404.1532. Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number. Answer:
songer_origin	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver of Cypress Savings Association, Plaintiff-Appellee, v. 232, INC., a Florida corporation; John M. McCabe; Thomas W. Underwood jointly and severally with Thomas S. Patton, Defendants-Appellants, Harbor Federal Savings & Loan Association, Defendant, Willis, Gwin & Associates, Inc., n/k/a Shoults, Gwin & Associates, Inc., a Florida corporation, Defendant-Intervenor. No. 90-3357 Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit. Jan. 7, 1991. Gary J. Anton, Stowell, Anton & Kraemer, Tallahassee, Fla., for defendants-appellants. Suzan Jon Jacobs, John S. Freud, Richard A. Boucher, Robert S. Geiger, Levine, Geiger, Kuperstein & Freud, P.A., Miami, Fla., Jaclyn C. Tanner, FDIC-Legal Div., Washington, D.C., for plaintiff-appellee. Marjorie Briley Breaux, Robert L. Henry, Jr., Henry, Monroig & Ketchel, Fort Walton Beach, Fla., for defendant-inter-venor Shoults, Gwin & Associates. William F. Stone, Fort Walton Beach, Fla., for defendant Harbor Federal Sav. & Loan. Before KRAVITCH and EDMONDSON, Circuit Judges, and HILL, Senior Circuit Judge. PER CURIAM: This appeal challenges the jurisdiction of the district court over an action against appellants by the Federal Savings and Loan Insurance Corporation (“FSLIC”), as receiver of a federally insured savings association. The savings association had sued to foreclose a mortgage, recover on certain notes and guarantees, and appoint a receiver. Appellants, 232, Inc. (as borrower), John N. McCabe, Thomas S. Underwood, and Thomas S. Patton (as guarantors), claim that the district court erred by not remanding the case to state court where the savings association had brought the action. We affirm. I. FACTUAL AND PROCEDURAL HISTORY In May, 1988, Cypress Savings Association filed an action in the Circuit Court of the First Judicial Circuit, in and for Walton County, Florida, to foreclose property located in Walton County, recover on certain notes and guarantees, and have a receiver appointed for 232, Inc. In November of that year, pursuant to 12 U.S.C.A. § 1729(c)(1)(B) (West 1989) (repealed 1989), the Federal Home Loan Bank Board appointed FSLIC as sole receiver of Cypress. In December, pursuant to 12 U.S.C.A. § 1730(k)(l)(B) (West 1989) (repealed 1989) and 28 U.S.C.A. § 1441 (West Supp. 1990), FSLIC removed the case to the United States District Court for the Northern District of Florida, Pensacola Division. On August 9, 1989, the president signed into law the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. 101-73, 103 Stat. 183 (1989) (“FIRREA”). Section 407 of FIRREA repeals section 1730(k)(l), and section 209 of FIRREA amends 12 U.S.C.A. § 1819 (West 1989). Section 1819(b)(2) governs jurisdiction and removal for cases in which the FSLIC (and now the FDIC) is a party. This section provides in pertinent part: (2) Federal court jurisdiction (A) In general Except as provided in subparagraph (D), all suits of a civil nature at common law or in equity to which the Corporation, in any capacity, is a party shall be deemed to arise under the laws of the United States. (B) Removal Except as provided in subparagraph (D), the Corporation may, without bond or security, remove any action, suit, or proceeding from a State court to the appropriate United States District Court. (D) State Actions Except as provided in subparagraph (E), any action— (i) to which the Corporation, in the Corporation’s capacity as receiver of a state insured depository institution by the exclusive appointment by State authorities, is a party other than as a plaintiff; (ii) which involves only the preclosing rights against the State insured depository institution, or obligations owing to, depositors, creditors, or stockholders by the State insured depository institution; and (iii)in which only the interpretation of the law of such State is necessary, shall not be deemed to arise under the laws of the United States. 12 U.S.C.A. § 1819(b)(2) (emphasis added). In October, 1989, subsequent to FIR-REA’s enactment, appellants moved for remand. At this point, the district court had not taken any action on the merits of the claims and counterclaims. Despite the enactment of FIRREA, appellants’ motion asserted a lack of jurisdiction under 12 U.S. C.A. § 1730(k)(l). Appellee did not raise FIRREA at this time, and the district court, in denying remand, relied upon the provisions of section 1730(k)(l). The court did not address the provisions of FIRREA. Appellants subsequently moved for reconsideration, again relying solely on section 1730(k)(l), and the appellee again did not cite or rely upon FIRREA. Likewise, the district court did not cite or rely upon the provisions of FIRREA when it denied the motion for reconsideration. The first time that FIRREA became an issue in this case was before this court. II. , DISCUSSION A. Applying FIRREA is Appropriate Appellants argue that we may not consider the applicability of FIRREA to this case because appellee did not raise FIRREA in the district court. We disagree. It is true that an appellate court generally will refuse to consider an issue not presented to the trial court and raised for the first time on appeal. Caban-Wheeler v. Elsea, 904 F.2d 1549, 1557 (11th Cir.1990). Whether to consider an argument first made on appeal, however, is left primarily to the discretion of the appellate courts, to be exercised on the facts of the individual cases. Id. “In the exercise of that discretion, appellate courts may pass on issues not raised below if the ends of justice will best be served by doing so.” Id. Here, neither party has raised new factual questions, a situation that might cause us to refuse to hear a new issue. See In re Daikin Miami Overseas, Inc., 868 F.2d 1201, 1207 (11th Cir.1989). Instead, we must simply decide whether FIR-REA should apply to this case, and if so, whether on the facts of this record the district court properly denied remand. As we will discuss below, the record supports appellee’s legal argument. Under such circumstances, a refusal to consider that argument could result in a miscarriage of justice. See Roofing & Sheet Metal Servs., Inc. v. LaQuinta Motor Inns, Inc., 689 F.2d 982, 990 (11th Cir.1982). Furthermore, considering appellee’s FIRREA argument is consistent with the concept that although an appellate court may disagree with the rationale given by a district court for its decision, affirming on other grounds is proper. See Paisey v. Vitale, 807 F.2d 889, 890 (11th Cir.1986). We must now address whether it is appropriate to apply FIRREA to this case despite its enactment while the action was pending. The text and legislative history of FIRREA are silent on this matter. The Supreme Court, however, has set forth the rule that a court is to apply the law in effect at the time it renders its decision unless manifest injustice would result. Bradley v. Richmond School Bd., 416 U.S. 696, 716, 94 S.Ct. 2006, 2018-19, 40 L.Ed.2d 476 (1974). Whether manifest injustice would result depends on three factors: “(a) the nature and identity of the parties, (b) the nature of their rights, and (c) the nature of the impact of the change in law upon those rights.” Id. at 717, 94 S.Ct. at 2019. This is not a case between private individuals. This case involves an agency of the federal government and an issue of national concern. According to a House Report on the subject of FIRREA, The interests of the American taxpayer demand an expedited resolution to the monumental problems involved with the unprecedented costs of dealing with hundreds of insolvent thrifts and the orderly disposition of the assets of these failed institutions. H.R.Rep. No. 54, 101st Cong., 1st Sess., pt. I, at 308 (1989), U.S.Code Cong. & Admin. News 1989, pp. 86, 104. Furthermore, as the First Circuit aptly observed in a similar case, the “public interest ... strongly favors enforcement of FIRREA in this ease, especially upon consideration of the wastefulness that would result if we allow the case to be remanded to state court only to have the [FSLIC] petition for removal again under FIRREA.” Demars v. First Serv. Bank for Sav., 907 F.2d 1237, 1240 (1st Cir.1990). The first factor thus supports application of FIRREA. We next address the nature of the parties’ rights. Application of FIRREA does not infringe on any substantive right of appellants. Even if under the former law appellants should have a right to a different forum, such a right is merely procedural. Hallowell v. Commons, 239 U.S. 506, 36 S.Ct. 202, 60 L.Ed. 409 (1916). The second factor thus weighs toward application of FIRREA. See Delmay v. Paine Webber, 872 F.2d 356, 357 (11th Cir.1989); United States v. Fernandez-Toledo, 749 F.2d 703, 705 & n. 6 (11th Cir.1985). The third factor also weighs toward applying FIRREA to the instant case. Retrospective application of FIRREA will not deny appellants’ “day in court.” Further, appellants have not alleged any detrimental reliance on the repealed jurisdictional statute. Retrospective application will, at most, alter the forum in which this case is heard. For the foregoing reasons, we hold that FIRREA’s jurisdictional provisions apply to this case. B. Remand is not Proper under FIR-REA Remand to state court would be proper if this case met the test for exclusive state jurisdiction under 12 U.S.C.A. § 1819(b)(2)(D), as set forth above. This case, however, fails the test. Subparagraph (i) provides that appointment of the Corporation exclusively by state authorities is a sine qua non to exclusive state jurisdiction. Here, the Federal Home Loan Bank Board appointed the FSLIC. As the statute plainly indicates, the failure to meet the requirements in subparagraph (i) is sufficient to preclude use of section 1819(b)(2)(D)’s exception to federal court jurisdiction. See also Carrollton-Farmers Branch Indep. School Dist. v. Johnson & Cravens, 889 F.2d 571, 572 (5th Cir.1989) (exception did not apply because FSLIC was appointed by both the appropriate state authority and the Federal Home Loan Bank Board); Triland Holdings & Co. v. Sunbelt Serv. Corp., 884 F.2d 205, 207 (5th Cir.1989) (exception did not apply because the Federal Home Loan Bank Board appointed FSLIC as receiver). We need not consider the additional state action requirements. III. CONCLUSION For the foregoing reasons, we AFFIRM the judgment of the district court. . Section 401(a) of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. 101-73, 103 Stat. 183 (1989) ("FIR-REA"), abolished the FSLIC. The FDIC has been substituted as the successor plaintiff as a matter of law. See FIRREA § 401(f)(2). For convenience, references to appellee in this opinion will be to FSLIC. . Section 1730 provided in pertinent part: (k)(l) Notwithstanding any other provision of law, (A) the Corporation shall be deemed to be an agency of the United States within the meaning of section 451 of Title 28; (B) any civil action, suit, or proceeding to which the Corporation shall be a party shall be deemed to arise under the laws of the United States, and the United States district courts shall have original jurisdiction thereof, without regard to the amount in controversy; and (C) the Corporation may, without bond or security, remove any such action, suit, or proceeding from a State court to the United States district court for the district and division embracing the place where the same is pending by following any procedure for removal now or hereafter in effect: Provided, That any action, suit, or proceeding to which the Corporation is a party in its capacity as conservator, receiver, or other legal custodian of an insured State-chartered institution and which involves only the rights or obligations of investors, creditors, stockholders, and such institution under State law shall not be deemed to arise under the laws of the United States.... 12 U.S.C.A. § 1730(k)(l). . Appellee raised the issue of FIRREA in its brief in support of its motion to amend pleadings. . This circuit has followed the Bradley rule in several cases. See, e.g., Delmay v. Paine Webber, 872 F.2d 356 (11th Cir.1989) (applying the Bradley rule to conclude that statutory amendment allowing appeal from order refusing stay of action in favor of arbitration was retrospectively applicable); Tallahassee Mem. Regional Medical Center v. Bowen, 815 F.2d 1435, 1454 n. 40 (11th Cir.1987) (recognizing that a court will ordinarily apply new legislation to pending cases unless manifest injustice would result), cert. denied, 485 U.S. 1020, 108 S.Ct. 1573, 99 L.Ed.2d 888 (1988); United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985) ("We are ... mindful of the general rule that a new statute should apply to cases pending on the date of its enactment unless manifest injustice would result”); National Wildlife Fed'n v. Marsh, 747 F.2d 616, 619-20 (11th Cir.1984) (“A new statute should not be applied retrospectively to cases pending on the date of its enactment ... if manifest injustice would result”). . In Hallowell, the Supreme Court held that new legislation giving the Secretary of the Interior, rather than the federal courts, jurisdiction to determine disputes between Indians over rights of succession should be applied to cases already pending in court. Regarding the change in tribunal, the court found that “the reference of the matter to the Secretary ... takes away no substantive right, but simply changes the tribunal that is to hear the case.” Hallowell, 239 U.S. at 508, 36 S.Ct. at 203. . It being so abundantly clear that FIRREA applies, we need not address the arguments in the briefs over whether the district court erred in its application of the former law. . We also note the general rule in this circuit that new statutes affecting only procedure apply retroactively. See, e.g., United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985); United States v. Vanella, 619 F.2d 384, 386 (5th Cir.1980); Turner v. United States, 410 F.2d 837, 842 (5th Cir.1969). Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_usc1sect	1623	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". UNITED STATES of America v. James D. HOCKENBERRY, Appellant. No. 72-1425. United States Court of Appeals, Third Circuit. Argued Oct. 3, 1972. Decided Feb. 21, 1973. Louis Lipschitz, Philadelphia, Pa., and Stanton D. Levenson, Watzman, Leven-son & Snyder, Pittsburgh, Pa., for appellant. Richard L. Thornburgh, U. S. Atty., James A. Villanova and Kathleen K. Cur-tin, Asst. U. S. Attys., Pittsburgh, Pa., for appellee. Before SEITZ, Chief Judge, and HASTIE and HUNTER, Circuit Judges. OPINION OF THE COURT HASTIE, Circuit Judge. James Hockenberry, a former county detective, has taken this appeal from his conviction of making a false material declaration under oath before a grand jury in violation of the recently enacted section 1623 of Title 18, United States Code. 84 Stat. 932. Hockenberry had testified before the grand jury only under judicial compulsion after he had been granted immunity under section 2514 of Title 18, United States Code. We must decide whether the trial judge committed reversible error in admitting into evidence against the accused at his perjury trial a truthful statement he had made to the grand jury on the same occasion as the alleged false statement but unrelated to it. The indictment charged Hockenberry with falsely swearing to the grand jury that he had no knowledge of or connection with bribes or payoffs to county detectives by persons engaged in unlawful gambling and prostitution. At his trial he took the stand in his own defense and denied any such knowledge or connection. In an effort to discredit him as a wit- ness, the prosecution cross-examined him, over objection, about other unrelated parts of his testimony before the grand jury. Part of the cross-examination was as follows: “Q. Well, do you recall appearing before the Grand Jury on the 16th of March, 1971, and my questioning you about certain returns on search warrants that you have executed under oath? “A. I recall that, yes. “Q. You do recall? “A. Yes. “Q. Do you recall testifying that there were at least two instances that you had executed a sworn return on those search warrants, and the information in it was false?” Then, after an objection had been overruled, the prosecution read two excerpts from Hockenberry’s grand jury testimony in which he admitted that on occasion, in the course of his work as a detective, he had signed affidavits wherein he falsely asserted personal knowledge of facts upon which search warrants were being sought. It was the contention of the prosecution that appellant’s admission before the grand jury — stating that on occasion he signed false affidavits to obtain search warrants — could be introduced to impeach him as a witness. The prosecution reasoned that this evidence was relevant and competent to show a “pattern of deceit” and thus discredit Hock-enberry’s denial at trial that he had lied to the grand jury about the unrelated matter of accepting bribes from criminals. Assuming that the law of evidence would permit such impeachment, there is a separate question whether this use of admissions made before the grand jury violated the immunity under which the admissions had been compelled. Hock-enberry originally had refused to testify before the grand jury, claiming Fifth Amendment privilege. He then was granted immunity under 18 U.S.C. § 2514 and ordered to testify. The admissions here in question were part of that testimony. After prescribing a procedure for compelling testimony, section 2514 continues as follows: “ . ' . . No such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal proceeding (except in a proceeding described in the next sentence) against him in any court. No witness shall be exempt under this section from prosecution for perjury or contempt committed while giving testimony or producing evidence under compulsion as provided in this section.” In this case appellant’s statements before the grand jury, truthful admissions of prior wrongdoing compelled under grant of immunity, certainly were used against him, since they were used to impeach his credibility as an accused person testifying in his own defense. Attempting to justify this disallowance of immunity, the government has found it necessary to argue that the use made of Hockenberry’s otherwise immunized testimony comes within the exception stated in the above quoted concluding provision of section 2514. The government reads that exception as meaning that, in a prosecution for perjury allegedly committed in the course of testimony required pursuant to section 2514, the statutory immunity does not cover either the allegedly false statement itself or anything else the accused may have said on the protected occasion. However, we think the exception is not that broad. Under the narrowest arguable reading of the Fifth Amendment, Hockenberry was compelled to incriminate himself when he was required to admit before the grand jury that he had executed false affidavits to obtain search warrants. However, Congress had authorized and the courts have sanctioned judicial compulsion of otherwise self-incriminating testimony so long as full protection is given the witness against injury through future incriminating use of the compelled statement. Kastigar v. United States, 1972, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212. “Answers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying.”. Gardner v. Broderick, 1968, 392 U.S. 273, 276, 88 S.Ct. 1913, 1915, 20 L.Ed.2d 1082. But quite apart from any question of self incrimination, a witness who testifies before a grand jury is required and sworn to tell the truth. The grant of immunity is superimposed upon that requirement. Protection is granted against future injurious use of the incriminating truth that the witness is required to speak, not against prosecution for or the use of any exculpatory falsehood that he may utter to avoid the required admission of wrongdoing. Hence, the immunity statute properly permits prosecution for perjury committed in an otherwise immunized statement and also the introduction in evidence of so much of the statement as is essential to establishing the corpus delicti. To go beyond that and to argue, as the government does, that the immunity statute allows the use of any truthful admission of wrongdoing made in an immunized statement to discredit the individual as a witness in a subsequent prosecution, so narrows the statutory grant of immunity as to jeopardize its adequacy as a constitutional means of requiring self incrimination. But for the grant of immunity Hockenberry would have been privileged to refuse to admit to the grand jury his wrongdoing in the execution of affidavits to obtain search warrants. And if immunity that deprived him of that privilege is to be, as constitutionally it must, co-extensive with the privilege itself, his compelled admission of wrongdoing cannot later be used to discredit his effort to defend himself against a charge of some other wrongdoing. “Immunity from the use of compelled testimony . . . prohibits the prosecutorial authorities from using the compelled testimony in any respect . . . ” Powell, J., in Kasti-gar v. United States, supra, 406 U.S. at 453, 92 S.Ct. at 1661. Finally, we have not overlooked the government’s reliance upon Harris v. New York, 1971, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, as supportive of what was done in this case. The Harris case holds that an arrested person’s voluntary incriminating statements, though inadmissible later as part of the prosecution’s ease in chief because the prisoner had not been advised of his right to counsel, may be used to impeach his credibility when he testifies as a witness in his own defense. In that case the Court was deciding how broad a sanction is necessary to vindicate the Miranda procedural requirement that an arrested suspect must be advised of his right to counsel before he shall be interrogated. In contrast, the question here is the scope of the use immunity thát government must afford and the Congress has undertaken to grant a witness in order to justify compelling him to make an incriminating statement. In this situation, as we already have pointed out, the mandated quid pro quo is immunity coextensive with the privilege; to-wit, immunity from any damaging use of the compelled truthful statement in a future prosecution. The Harris rule does not compel a person to incriminate himself. The abridgement of immunity in this case does, and that is its invalidating vice. Hockenberry’s conviction must be set aside and the cause remanded for a new trial. . In its brief the government argues that “[t]he better rule . . . is to permit the use of testimony obtained under an immunity grant, where otherwise relevant and admissible, for the purpose of impeaching the immunized witness or an immunized defendant when (as here) he chooses to testify on his own behalf”. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number. Answer:
songer_weightev	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Ned McDANIEL, Mary E. McDaniel and Robert A. Collier, Appellants, v. R. D. PAINTER, Dale Painter and Rhodes Danehower, Appellees. No. 241-69. United States Court of Appeals Tenth Circuit. Dec. 1, 1969. Thomas A. Wood, Wichita, Kan., for appellants. Thomas D. Kitch and Paul R. Kitch, Wichita, Kan. (Gerritt H. Wormhoudt, Wichita, Kan., on the brief), for appellees R. D. Painter and Dale Painter. Benjamin C. Langel, Wichita, Kan. (Robert C. Foulston, Wichita, Kan., on the brief), for appellee Rhodes Danehower. Before MURRAH, Chief Judge, and LEWIS and HILL, Circuit Judges. HILL, Circuit Judge. This diversity suit was brought by three minority stockholders against the vendors and vendee of a majority block of stock in The First National Bank of Chanute, Kansas, seeking redress for alleged breaches of fiduciary duties which they contend have resulted in diminution of minority stock valuation. Following interparty depositions, argument on a motion for summary judgment was made to the court and granted in defendants’ favor. Appellants now contend that the limited discovery suggests breaches of a fiduciary duty and request that the order be vacated and the case remanded for more extensive discovery and a trial on the merits. Appellants urge that a fiduciary relationship existed between majority and minority stockholders of the banking corporation, which obligation was breached by the act of selling and purchasing, in five particulars: (1) by unlawfully financing the stock purchase with a pledge of corporate assets and relinquishment of control to the lender in violation of 12 U.S.C.A. § 83; (2) by failure of sellers to investigate the financing method; (3) by conflicts of interest in contracting for the continued services of the former bank president; (4) by failing to inform minority shareholders of the offer to purchase; and (5) by the sale of stock by insiders at a price not available to minority stockholders. The suggested remedy is to place the responsibility upon the majority for making the purchase offer ratably available to all corporate stockholders. From a review of the briefs and record on appeal there appears no genuine issues of material facts which command the reversal of the summary judgment order. The controversy centers around and was precipitated by a sale of controlling interest stock in The First National Bank of Chanute, Kansas, on March 2, 1966. Prior to the sale, Dale and R. D. Painter owned 5157 of the 10,000 outstanding shares of capital stock in the Chanute bank; appellants cumulatively control 770 shares. During the preceding ten years very little trading was done in the bank’s capital stock, with the per share book value fluctuating upwards from $46.40 in 1955 to approximately $98.00 in 1966. Early in 1965, Dale Painter, with the aid of a disinterested bank, evaluated the worth of the Painter family’s interest in the Chanute bank. Several banks in the vicinity were informed of the Painters’ willingness to sell to a qualified buyer and requested those banks, in a confidential manner, to refer prospective purchasers to Dale. Ultimately, appellee Danehower was directed to the Chanute bank and, following several months of negotiation and investigation, in March, 1966, bought the Painters’ fifty-one per cent interest for $690,000 consideration. Included in the sales contract was provision for assignment of a credit life insurance agency and its assets as well as an agreement that Dale would be retained on the bank's staff for five years at an annual salary of $10,000, personally guaranteed by Danehower in the event the bank released Dale. Of the Painter family, only Dale remains, serving as Chairman of the Board; Danehower is now bank president. After the election of new officers, Dale and Danehower entered into another agreement, the substance of which was that Dale would be retained as a bank employee for five years at $10,000 per annum, to provide the bank his knowledge, experience and business acumen. Since the sale of controlling stock, there is absolutely no indication in the record that the bank has suffered from the change in ownership. Our decision is premised on the conviction that all material facts are before the court and that all inferences from those facts, when drawn most favorably to appellants, do not require reversal. By construing all facts and allegations in a light most promising to appellants, we are left with the conclusion that of the five alleged breaches of duty, only the latter two may be considered on appeal. The failure to inform of the sale, and the price discrimination reflected therein pose the possibility of individual injury. The remaining allegations are phrased in terms of corporate injury, for which these appellants may not personally recover. Even if the damage to a stockholder results indirectly, as the result of an injury to the corporation, he may not sue as an individual. This is a diversity ease dependent upon the substantive law of the forum for resolving the questions of law. In the course of arguing the question of “arising under” jurisdiction, the appellants have candidly admitted that there is no appearance of a federal question on the face of the complaint. It is therefore clear that this controversy does not depend upon federal question jurisdiction. This is not a derivative stockholder’s suit directly involving the national bank; rather, it is a suit seeking personal recovery and, resultingly, appellants may not rely upon the federal organization of the bank to invoke federal question jurisdiction. This is purely a case for Kansas law. As yet, however, the questions for review have not been squarely presented to the Kansas courts and we are put to the difficult task of anticipating their decision, were the issues before them. In that regard, the trial court’s view of state law will not be disturbed on appeal absent clear error. We are convinced that the trial court did not err. The cornerstone of appellants’ case proposed that a fiduciary duty exists regarding the sale of corporate stock by dominant stockholders and that a breach of that obligation may be redressed by individual stockholder suits. The universally accepted rule was stated by this court in Roby v. Dunnett, 88 F.2d 68, 69 (10th Cir. 1937): “* * * [Ejvery stockholder, including a majority holder, is at liberty to dispose of his shares at any time and for any price to which he may agree without being liable to other stockholders * * * as long as he does not dominate, interfere with, or mislead other stockholders in exercising the same rights.” In other words, a dominant or majority stockholder does not become a fiduciary for other shareholders by reason of mere ownership of stock. It is only when one steps out of the role as a stockholder and acts in the corporate management, with disregard for the interests and welfare of the corporation and its stockholders that he assumes the burden of fiducial responsibility. Thus, when transferring control of the corporation, the managing majority are duty-bound not to sell controlling interest to outsiders if the circumstances surrounding the proposed transfer would alert suspicion in a prudent man that the purchasers are an irresponsible group who will mismanage and loot the corporate assets. The fact that controlling stock sells for more than book value, as it did here, is not evidence of fraud since it is generally recognized that majority stock is more valuable than minority stock. Neither is there merit in the argument that appellees, as dominant shareholders, must refrain from receiving a premium which reflects the control potential of the stock. Christophides v. Porco., 289 F.Supp. 403, 405 (S.D.N.Y.1968). Mayflower Hotel Stockholders P. C. v. Mayflower Hotel Corp., 89 U.S.App.D.C. 171, 193 F.2d 666 (1951) does not stand for the broad proposition, as urged by appellants, that majority stockholders have a duty to disclose sales terms when selling control stock. That case dealt with interlocking directorates and the sale of one corporation to another, with the minority selling their interest upon misinformation supplied by the majority. Clearly such a duty exists in those circumstances and falls within the ambit of the Roby rule. We have read the law review articles cited by counsel and conclude that they neither state the law of the forum nor the rules generally applied in other jurisdictions. The cases relied upon by appellants graphically illustrate the imposition of a fiduciary duty in a multiplicity of situations involving stock sales. Notwithstanding, while each stands for a well stated principle, their rules are inapposite to the facts of this case. In those decisions in which recovery had been granted, the sales involved elements of fraud, misuse of confidential information, looting, siphoning off for personal gain of a business advantage rightfully belonging to the corporation and shareholders in common, or wrongfully appropriating corporate assets. The inappropriateness of these cases is highlighted by appellants’ admissions that they know of no specific misconduct on the part of the new management other than the propriety of the loan and the employment contract with Dale Painter. The sale to Danehower appears in all respects to be fair, free of secret or undisclosed arrangements which could create a suspicious atmosphere, and was consummated in the utmost of good faith. The confidential nature of the transaction and the continued employment of Dale Painter are not indicative of a plot to loot and mismanage the bank but rather reflect the high concern of all parties that the transition period be as smooth and business-like as possible. There is not even a scintilla of evidence to the contrary. To condemn the kind of transaction involved in this ease would tend strongly to discourage stock investments and would be a menace to the efficient management of corporate business. The general rule in Kansas provides that “shares of stock of a corporation are personal property, and may be transferred like any other property, unless the transfer is restrained by the charter or articles of association * * Van Demark v. Barons, 52 Kan. 779, 35 P. 798 (1894). No mention has been made about restraints on alienation within the corporate charter or articles of incorporation. The spirit and letter of the law have not been violated by parties to the sale. Appellees were free to sell their ownership in the bank to persons who, upon satisfactory investigation, proved to be of sufficient financial worth and good character. We affirm. . See McCullough Tool Co. v. Well Surveys, Inc., 395 F.2d 230 (10th Cir. 1968) ; Frey v. Frankel, 361 F.2d 437 (10th Cir. 1966) ; Norton v. Lindsay, 350 F.2d 46 (10th Cir. 1965). . Dale Painter presently owns 57 shares of bank stock. . Building Mart, Inc. v. Allison Steel Mfg. Co., 380 F.2d 196 (10th Cir. 1967). . See 13 Fletcher Cyc. Corp. (Perm. Ed.) § 5911. . Id. . Erie Rd. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). . See Gold-Washing and Water Co. v. Keyes, 96 U.S. 199, 24 L.Ed. 656 (1878); Wright, Federal Courts, § 18 (1963 ed.). . See Fulton v. Coppco, Inc., 407 F.2d 611 (10th Cir. 1969) ; Gates v. Willford, 406 F.2d 890 (10th Cir. 1969) ; Continental Casualty Co. v. Fireman’s Fund Ins. Co., 403 F.2d 291 (10th Cir. 1968). . See cases cited in Annot., 50 A.L.R.2d 1146, 1147-1150. . 13 Fletcher Cyc. Corp. (Perm. Ed.) § 5805. . Insuranshares Corp. of Delaware v. Northern Fiscal Corp., 35 F.Supp. 22 (E. D.Pa.1940) ; 13 Fletcher Cyc. Corp. (Perm.Ed.) § 5805, at pp. 145-146 and cases cited therein. . See Essex Universal Corp. v. Yates, 305 F.2d 572, 13 A.L.R.3d 346 (2d Cir. 1962) ; Levy v. Feinberg, 29 N.Y.S.2d 550 (Sup.1941) ; Tryon v. Smith, 191 Or. 172, 229 P.2d 251, 254 (1951). . Berle, “The Price of Power: Sale of Corporate Control,” 50 Cornell L.Q. 628 (1965) ; Andrews, “Stockholder’s Bight to Equal Opportunity in the Sale of Shares,” 78 Harv.L.Rev. 505 (1965) ; Jennings, “Trading in Corporate Control,” 44 Cal.L.Rev. 1 (1956) ; contra “Sales of Corporate Control and the Theory of Overkill,” 31 U.Chi.L.Rev. 725 (1964). . Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939) (fraudulent confession of corporate debt) ; Southern Pacific Co. v. Bogert, 250 U.S. 483, 39 S.Ct. 533, 63 L.Ed. 1099 (1919) (sale of corporate assets) ; Seagrave Corp. v. Mount, 212 F.2d 389 (6th Cir. 1954) (derivative suit urging constructive fraud) ; Soderstrom v. Kungsholm Baking Co., 189 F.2d 1008 (7th Cir. 1951) (fraudulent appropriation of business assets) ; Zahn v. Transamerica Corp., 162 F.2d 36, 172 A.L.R. 495 (3d Cir. 1947) (fraudulent stock redemption) ; Lebold v. Inland Steel Co., 125 F.2d 369 (7th Cir. 1941) (fraudulent corporate dissolution). . Annot., 50 A.L.R.2d 1146, 1150-1156 and cases cited therein. . See also Dewey v. Barnhouse, 83 Kan. 12, 109 P. 1081, 1083, 29 L.R.A..N.S., 166 (1910) ; Merrill v. Meade, 6 Kan. App. 620, 49 P. 787 (1897). Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_certreason	J	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. UNITED STATES et al. v. JANIS No. 74-958. Argued December 8, 1975 Decided July 6, 1976 Solicitor General Bork argued the cause for petitioners. With him on the brief were Assistant Attorney General Crampton, Stuart A. Smith, Robert E. Lindsay, and Carleton D. Powell. Herbert D. Sturman argued the cause for respondent. With him on the brief was Richard G. Sherman. Mr. Justice Blackmun delivered the opinion of the Court. This case presents an issue of the appropriateness of an extension of the judicially created exclusionary rule: Is evidence seized by a state criminal law enforcement officer in good faith, but nonetheless unconstitutionally, inadmissible in a civil proceeding by or against the United States? I In November 1968 the Los Angeles police obtained a warrant directing a search for bookmaking paraphernalia at two specified apartment locations in the city and, as well, on the respective persons of Morris Aaron Levine and respondent Max Janis. The warrant was issued by a judge of the Municipal Court of the Los Angeles Judicial District. It was based upon the affidavit of Officer Leonard Weissman. After the search, made pursuant to the warrant, both the respondent and Levine were arrested and the police seized from respondent property consisting of $4,940 in cash and certain wagering records. Soon thereafter, Officer Weissman telephoned an agent of the United States Internal Revenue Service and informed the agent that Janis had been arrested for bookmaking activity. With the assistance of Weissman, who was familiar with bookmakers’ codes, the revenue agent analyzed the wagering records that had been seized and determined from them the gross volume of respondent’s gambling activity for the five days immediately preceding the seizure. Weissman informed the agent that he had conducted a surveillance of respondent’s activities that indicated that respondent had been engaged in bookmaking during the 77-day period from September 14 through November 30, 1968, the day of the arrest. Respondent had not filed any federal wagering tax return pertaining to bookmaking activities for that 77-day period. Based exclusively upon its examination of the evidence so obtained by the Los Angeles police, the Internal Revenue Service made an assessment jointly against respondent and Levine for wagering taxes, under § 4401 of the Internal Revenue Code of 1954, 26 U. S. C. § 4401, in the amount of $89,026.09, plus interest. The amount of the assessment was computed by first determining respondent’s average daily gross proceeds for the five-day period covered by the seized material and analyzed by the agent, and then multiplying the resulting figure by 77, the period of the police surveillance of respondent’s activities. The assessment having been made, the Internal Revenue Service exercised its statutory authority, under 26 U. S. C. § 6331, to levy upon the $4,940 in cash in partial satisfaction of the assessment against respondent. Charges were filed in due course against respondent and Levine in Los Angeles Municipal Court for violation of the local gambling laws. They moved to quash the search warrant. A suppression hearing was held by the same judge who had issued the warrant. The defendants pressed upon the court the case of Spinelli v. United States, 393 U. S. 410 (1969), which had been decided just three weeks earlier and after the search warrant had been issued. They urged that the Weissman affidavit did not set forth, in sufficient detail, the underlying circumstances to enable the issuing magistrate to determine in-dependency the reliability of the information supplied by the informants. The judge granted the motion to quash the warrant. He then ordered that all items seized pursuant to it be returned except the cash that had been levied upon by the Internal Revenue Service. App. 78-80. In June 1969 respondent filed a claim for refund of the $4,940. The claim was not honored, and 18 months later, in December 1970, respondent filed suit for that amount in the United States District Court for the Central District of California. The Government answered and counterclaimed for the substantial unpaid balance of the assessment. In pretrial proceedings, it was agreed that the “sole basis of the computation of the civil tax assessment . . . was . . . the items obtained pursuant to the search warrant . . . and the information furnished to [the revenue agent] by Officer Weissman with respect to the duration of [respondent’s] alleged wagering activities.” Id., at 18. Respondent then moved to suppress the evidence seized, and all copies thereof in the possession of the Service, and to quash the assessment. Id., at 23-24. At the outset of the hearing on the motion, the District Court observed that it was “reluctantly holding that the affidavit supporting the search warrant is insufficient under the Spinelli and Aguilar [v. Texas, 378 U. S. 108 (1964)] doctrines.” Id., at 47. It then concluded that “[a] 11 of the evidence utilized as the basis” of the assessment “was obtained directly or indirectly as a result of the search pursuant to the defective search warrant,” and that, consequently, the assessment “was based in substantial part, if not completely, on illegally procured evidence ... in violation of [respondent's] Fourth Amendment rights to be free from unreasonable searches and seizures.” 73-1 USTC ¶ 16,083, p. 81,392 (1973). The court concluded that Janis was entitled to a refund of the $4,940, together with interest thereon, “for the reason that substantially all, if not all, of the evidence utilized by the defendants herein in making their assessment . . . was illegally obtained, and, as such, the assessment was invalid.” Ibid. Further, where, as here, “illegally obtained evidence constitutes the basis of a federal tax assessment,” the respondent was “not required to prove the extent of the refund to which he claims he is entitled.” Id., at 81,393. Instead, it was sufficient if he prove “that substantially all, if not all, of the evidence upon which the assessment was based was the result of illegally obtained evidence.” Accordingly, the court ordered that the civil tax assessment made by the Internal Revenue Service “against all the property and assets of . . . Janis be quashed,” and entered judgment for the respondent. Ibid. The Government's counterclaim was dismissed with prejudice. The United States Court of Appeals for the Ninth Circuit, by unpublished memorandum without opinion, affirmed on the basis of the District Court's findings of fact and conclusions of law. Pet. for Cert. 12A. Because of the obvious importance of the question, we granted certiorari. 421 U. S. 1010 (1975). II Some initial observations about the procedural posture of the case in the District Court are indicated. If there is to be no limit to the burden of proof the respondent, as “taxpayer,” must carry, then, even though he were to obtain a favorable decision on the inadmissibility-of-evidence issue, the respondent on this record could not possibly defeat the Government’s counterclaim. The Government notes, properly we think, that the litigation is composed of two separate elements: the refund suit instituted by the respondent, and the collection suit instituted by the United States through its counterclaim. In a refund suit the taxpayer bears the burden of proving the amount he is entitled to recover. Lewis v. Reynolds, 284 U. S. 281 (1932). It is not enough for him to demonstrate that the assessment of the tax for which refund is sought was erroneous in some respects. This Court has not spoken with respect to the burden of proof in a tax collection suit. The Government argues here that the presumption of correctness that attaches to the assessment in a refund suit must also apply in a civil collection suit instituted by the United States under the authority granted by §§ 7401 and 7403 of the Code, 26 U. S. C. §§ 7401 and 7403. Thus, it is said, the defendant in a collection suit has the same burden of proving that he paid the correct amount of his tax liability. The policy behind the presumption of correctness and the burden of proof, see Bull v. United States, 295 U. S. 247, 259-260 (1935), would appear to be applicable in each situation. It accords, furthermore, with the burden-of-proof rule which prevails in the usual preassessment proceeding in the United States Tax Court. Lucas v. Structural Steel Co., 281 U. S. 264, 271 (1930); Welch v. Helvering, 290 U. S. 111, 115 (1933); Rule 142(a) of the Rules of Practice and Procedure of the United States Tax Court (1973). In any event, for purposes of this case, we assume that this is so and that the burden of proof may be said technically to rest with respondent Janis. Respondent, however, submitted no evidence tending either to demonstrate that the assessment was incorrect or to show the correct amount of wagering tax liability, if any, on his part. In the usual situation one might well argue, as the Government does, that the District Court then could not properly grant judgment for the respondent on either aspect of the suit. But the present case may well not be the usual situation. What we have is a “naked” assessment without any foundation whatsoever if what was seized by the Los Angeles police cannot be used in the formulation of the assessment. The determination of tax due then may be one “without rational foundation and excessive,” and not properly subject to the usual rule with respect to the burden of proof in tax cases. Helvering v. Taylor, 293 U. S. 507, 514-515 (1935). See 9 J. Mertens, Law of Federal Income Taxation § 50.65 (1971). There appears, indeed, to be some debate among the Federal Courts of Appeals, in different factual contexts, as to the effect upon the burden of proof in a tax case when there is positive evidence that an assessment is incorrect. Some courts indicate that the burden of showing the amount of the deficiency then shifts to the Commissioner. Others hold that the burden of showing the correct amount of the tax remains with the taxpayer. However that may be, the debate does not extend to the situation where the assessment is shown to be naked and without any foundation. The courts then appear to apply the rule of the Taylor case. See United States v. Rexach, 482 F. 2d 10, 16-17, n. 3 (CA1), cert. denied, 414 U. S. 1039 (1973); Pizzarello v. United States, 408 F. 2d 579 (CA2), cert. denied, 396 U. S. 986 (1969); Suarez v. Commisioner, 58 T. C. 792, 814-815 (1972). But cf. Compton v. United States, 334 F. 2d 212, 216 (CA4 1964). Certainly, proof that an assessment is utterly without foundation is proof that it is arbitrary and erroneous. For purposes of this case, we need not go so far as to accept the Government’s argument that the exclusion of the evidence in issue here is insufficient to require judgment for the respondent or even to shift the burden to the Government. We are willing to assume that if the District Court was correct in ruling that the evidence seized by the Los Angeles police may not be used in formulating the assessment (on which both the levy and the counterclaim were based), then the District Court was also correct in granting judgment for Janis in both aspects of the present suit. This assumption takes us, then, to the primary issue. Ill This Court early pronounced a rule that the Fifth Amendment’s command that no person “shall be compelled in any criminal case to be a witness against himself” renders evidence falling within the Amendment’s prohibition inadmissible. Boyd v. United States, 116 U. S. 616 (1886). It was not until 1914, however, that the Court held that the Fourth Amendment alone may be the basis for excluding from a federal criminal trial evidence seized by a federal officer in violation solely of that Amendment. Weeks v. United States, 232 U. S. 383. This comparatively late judicial creation of a Fourth Amendment exclusionary rule is not particularly surprising. In contrast to the Fifth Amendment’s direct command against the admission of compelled testimony, the issue of admissibility of evidence obtained in violation of the Fourth Amendment is determined after, and apart from, the violation. In Weeks it was held, however, that the Fourth Amendment did not apply to state officers, and, therefore, that material seized unconstitutionally by a state officer could be admitted in a federal criminal proceeding. This was the “silver platter” doctrine. In Wolf v. Colorado, 338 U. S. 25 (1949), the Court determined that the Due Process Clause of the Fourteenth Amendment reflected the Fourth Amendment to the extent of providing those protections against intrusions that are “ 'implicit in the concept of ordered liberty.’ ” Id., at 27. Nonetheless, the Court, in not applying the Weeks doctrine in a state trial to the product of a state search, held: “Granting that in practice the exclusion of evidence may be an effective way of deterring unreasonable searches, it is not for this Court to condemn as falling below the minimal standards assured by the Due Process Clause a State’s reliance upon other methods which, if consistently enforced, would be equally effective.” 338 U. S., at 31. Not long thereafter, the Court ruled that means used by a State to procure evidence could be sufficiently offensive to the concept of ordered liberty as to make admission of the evidence so procured a violation of the Due Process Clause, Rochin v. California, 342 U. S. 165 (1952), but that such a violation would exist only in the most extreme case, Irvine v. California, 347 U. S. 128 (1954). Thus, as matters then stood, the Fourth Amendment was applicable to the States, but a State could allow an official to engage in a violation thereof with no judicial sanction except in the most extreme case. In addition, federal authorities, if they happened upon a State so inclined, could profit from the State’s action by receiving on a silver platter evidence unconstitutionally obtained. The federal authorities, profiting thereby, had no judicially created reason to discourage unconstitutional searches by a State, and the States, having no judicially mandated controls, were free to engage in such searches. Elkins v. United States, 364 U. S. 206, was decided in 1960. Invoking its “supervisory power over the administration of criminal justice in the federal courts,” id., at 216, the Court held that “evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant’s immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant’s timely objection in a federal criminal trial.” Id., at 223. The rule thus announced apparently served two purposes. First, it assured that a State, which could admit the evidence in its own proceedings if it so chose, nevertheless would suffer some deterrence in that its federal counterparts would be unable to use the evidence in federal criminal proceedings. Second, the rule discouraged federal authorities from using a state official to circumvent the restrictions of Weeks. Only one year later, however, the exclusionary rule was made applicable to state criminal trials. Mapp v. Ohio, 367 U. S. 643 (1961). The Court ruled: “Since the Fourth Amendment’s right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government.” Id., at 655. The debate within the Court on the exclusionary rule has always been a warm one. It has been unaided, unhappily, by any convincing empirical evidence on the effects of the rule. The Court, however, has established that the “prime purpose” of the rule, if not the sole one, “is to deter future unlawful police conduct.” United States v. Calandra, 414 U. S. 338, 347 (1974). See United States v. Peltier, 422 U. S. 531, 536-539 (1975). Thus, “[i]n sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” United States v. Calandra, 414 U. S., at 348. And “[a]s with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.” Ibid. In the complex and turbulent history of the rule, the Court never has applied it to exclude evidence from a civil proceeding, federal or state. IV In the present case we are asked to create judicially a deterrent sanction by holding that evidence obtained by a state criminal law enforcement officer in good-faith reliance on a warrant that later proved to be defective shall be inadmissible in a federal civil tax proceeding. Clearly, the enforcement of admittedly valid laws would be hampered by so extending the exclusionary rule, and, as is nearly always the case with the rule, con-cededly relevant and reliable evidence would be rendered unavailable. In evaluating the need for a deterrent sanction, one must first identify those who are to be deterred. In this case it is the state officer who is the primary object of the sanction. It is his conduct that is to be controlled. Two factors suggest that a sanction in addition to those that presently exist is unnecessary. First, the local law enforcement official is already “punished” by the exclusion of the evidence in the state criminal trial. That, necessarily, is of substantial concern to him. Second, the evidence is also excludable in the federal criminal trial, Elkins v. United States, supra, so that the entire criminal enforcement process, which is the concern and duty of these officers, is frustrated. Jurists and scholars uniformly have recognized that the exclusionary rule imposes a substantial cost on the societal interest in law enforcement by its proscription of what concededly is relevant evidence. See, e. g., Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 411 (1971) (Burger, C. J., dissenting); Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 429 (1974). And alternatives that would be less costly to societal interests have been the subject of extensive discussion and exploration. Equally important, although scholars have attempted to determine whether the exclusionary rule in fact does have any deterrent effect, each empirical study on the subject, in its own way, appears to be flawed. It would not be appropriate to fault those who have attempted empirical studies for their lack of convincing data. The number of variables is substantial, and many cannot be measured or subjected to effective controls. Record-keeping before Mapp was spotty at best, a fact which thus severely hampers before-and-after studies. Since Mapp, of course, all possibility of broad-scale controlled or even semi-controlled comparison studies has been eliminated. “Response” studies are hampered by the presence of the respondents’ interests. And extrapolation studies are rendered highly inconclusive by the changes in legal doctrines and police-citizen relationships that have taken place in the 15 years since Mapp was decided. We find ourselves, therefore, in no better position than the Court was in 1960 when it said: “Empirical statistics are not available to show that the inhabitants of states which follow the exclusionary rule suffer less from lawless searches and seizures than do those of states which admit evidence unlawfully obtained. Since as a practical matter it is never easy to prove a negative, it is hardly likely that conclusive factual data could ever be assembled. For much the same reason, it cannot positively be demonstrated that enforcement of the criminal law is either more or less effective under either rule.” Elkins v. United States, 364 U. S., at 218. If the exclusionary rule is the “strong medicine” that its proponents claim it to be, then its use in the situations in which it is now applied (resulting, for example, in this case in frustration of the Los Angeles police officers’ good-faith duties as enforcers of the criminal laws) must be assumed to be a substantial and efficient deterrent. Assuming this efficacy, the additional marginal deterrence provided by forbidding a different sovereign from using the evidence in a civil proceeding surely does not outweigh the cost to society of extending the rule to that situation. If, on the other hand, the exclusionary rule does not result in appreciable deterrence, then, clearly, its use in the instant situation is unwarranted. Under either assumption, therefore, the extension of the rule is unjustified. In short, we conclude that exclusion from federal civil proceedings of evidence unlawfully seized by a state criminal enforcement officer has not been shown to have a sufficient likelihood of deterring the conduct of the state police so that it outweighs the societal costs imposed by the exclusion. This Court, therefore, is not justified in so extending the exclusionary rule. Respondent argues, however, that the application of the exclusionary rule to civil proceedings long has been recognized in the federal courts. He cites a number of cases. But respondent does not critically distinguish between those cases in which the officer committing the unconstitutional search or seizure was an agent of the sovereign that sought to use the evidence, on the one hand, and those cases, such as the present one, on the other hand, where the officer has no responsibility or duty to, or agreement with, the sovereign seeking to use the evidence. The seminal cases that apply the exclusionary rule to a civil proceeding involve “intrasovereign” violations, a situation we need not consider here. In some cases the courts have refused to create an exclusionary rule for either intersovereign or intrasovereign violations in proceedings other than strictly criminal prosecutions. See United States ex rel. Sperling v. Fitzpatrick, 426 F. 2d 1161 (CA2 1970) (intrasovereign/parole revocation); United States v. Schipani, 435 F. 2d 26 (CA2 1970), cert. denied, 401 U. S. 983 (1971) (intersovereign/sentenc-ing). And in Compton v. United States, 334 F. 2d 212, 215-216 (1964), a case remarkably like this one, the Fourth Circuit held that the presumption of correctness given a tax assessment was not affected by the fact that the assessment was based upon evidence unconstitutionally seized by state criminal law enforcement officers. Only one case cited by the respondent squarely holds that there must be an exclusionary rule barring use in a civil proceeding by one sovereign of material seized in violation of the Fourth Amendment by an officer of another sovereign. In Suarez v. Commissioner, 58 T. C. 792 (1972) (reviewed by the court, with two judges dissenting), the Tax Court determined that the exclusionary rule should be applied in a situation similar to the one that confronts us here. The court concluded that “any competing consideration based upon the need for effective enforcement of civil tax liabilities (compare Elkins v. United States . . .) must give way to the higher goal of protection of the individual and the necessity for preserving confidence in, rather than encouraging contempt for, the processes of Government.” Id., at 805. No appeal was taken. We disagree with the broad implications of this statement of the Tax Court for two reasons. To the extent that the court did not focus on the deterrent purpose of the exclusionary rule, the law has since been clarified. See United States v. Calandra, 414 U. S. 338 (1974); United States v. Peltier, 422 U. S. 531 (1975). Moreover, the court did not distinguish between intersover-eign and intrasovereign uses of unconstitutionally seized material. Working, as we must, with the absence of convincing empirical data, common sense dictates that the deterrent effect of the exclusion of relevant evidence is highly attenuated when the “punishment” imposed upon the offending criminal enforcement officer is the removal of that evidence from a civil suit by or against a different sovereign. In Elkins the Court indicated that the assumed interest of criminal law enforcement officers in the criminal proceedings of another sovereign counterbalanced this attenuation sufficiently to justify an exclusionary rule. Here, however, the attenuation is further augmented by the fact that the proceeding is one to enforce only the civil law of the other sovereign. This attenuation, coupled with the existing deterrence effected by the denial of use of the evidence by either sovereign in the criminal trials with which the searching officer is concerned, creates a situation in which the imposition of the exclusionary rule sought in this case is unlikely to provide significant, much less substantial, additional deterrence. It falls outside the offending officer’s zone of primary interest. The extension of the exclusionary rule, in our view, would be an unjustifiably drastic action by the courts in the pursuit of what is an undesired and undesirable supervisory role over police officers. See Rizzo v. Goode, 423 U. S. 362 (1976). In the past this Court has opted for exclusion in the anticipation that law enforcement officers would be deterred from violating Fourth Amendment rights. Then, as now, the Court acted in the absence of convincing empirical evidence and relied, instead, on its own assumptions of human nature and the interrelationship of the various components of the law enforcement system. In the situation before us, we do not find sufficient justification for the drastic measure of an exclusionary rule. There comes a point at which courts, consistent with their duty to administer the law, cannot continue to create barriers to law enforcement in the pursuit of a supervisory role that is properly the duty of the Executive and Legislative Branches. We find ourselves at that point in this case. We therefore hold that the judicially created exclusionary rule should not be extended to forbid the use in the civil proceeding of one sovereign of evidence seized by a criminal law enforcement agent of another sovereign. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. R fi0 or<W- Me. Justice Stevens took no part in the consideration or decision of this case. Officer Weissman’s affidavit, App. 69-74, stated: He and Sergeant Briggs of the Los Angeles Police Department each had received information from an informant concerning respondent Janis and Levine and concerning telephone numbers the two men used for bookmaking. Police investigation disclosed that Janis had two telephones with unpublished numbers, including the number given by Weissman’s informant, and that there was a third published number at the same address in the name of Nancy L. Janis. The unpublished numbers given by Weissman’s informant as being used by Levine were found to be maintained by Levine at a different address, and that address was the one given by Briggs’ informant as being Levine’s base of operations. Both informants stated that Levine and Janis were working in concert. Each officer regarded his informant as reliable; the informant had given information in the past that led to arrests for bookmaking and, in the case of Briggs’ informant, to convictions as well. Preliminary hearings and trials were pending for persons arrested with the aid of Weissman’s informant. Each officer and his informant believed that it was necessary for the informant’s safety, and his future usefulness to law enforcement officers, that his identity be kept secret. Weissman further stated: “Prom the nature and context of the information supplied by the informant to this affiant, and from the nature and context of the information which was supplied to Sgt. Briggs, as told to this affiant, it is believed that the informants ... at all times mentioned in this affidavit, unless otherwise specified, were speaking with personal knowledge.” Id., at 73. The affidavit, taken in its entirety, bears some similarity to the affidavit the Court later considered in Spinelli v. United States, 393 U. S. 410, 420-422 (1969). Spinelli was a 5-3 decision handed down two months after the Los Angeles warrant in the present case had been issued. Mr. Justice White joined the opinion in Spinelli, id., at 423-429, but, in doing so, referred, id., at 427, to the “tension between Draper [v. United States, 358 U. S. 307 (1959)],” on the one hand, and Nathanson v. United States, 290 U. S. 41 (1933), and Aguilar v. Texas, 378 U. S. 108 (1964), on the other, and, “[p] ending full-scale reconsideration” of Draper “or of the Nathanson-Aguilar cases,” joined “the opinion of the Court and the judgment of reversal, especially since a vote to affirm would produce an equally divided Court.” 393 U. S., at 429. The Internal Revenue Service’s Certificate of Assessments and Payments, App. 81, shows a credit of $5,097, the amount actually seized by the police and subjected to the Service’s subsequent levy. The Government acknowledges, however, that $157 of this amount was money belonging to Levine. It was applied upon the joint assessment made against both Janis and Levine. Levine has not sought a refund of the $157. Brief for United States 5 n. 1. The present case, therefore, concerns only the $4,940 taken from respondent Janis. Officer Weissman testified that there was no departmental policy to call the Internal Revenue Service in a situation of this kind. He did it “as a matter of police procedure.” He would not do it, he said, on what he “would consider a small-size book, but I considered this one a major-size book. So, I, therefore, did it.” App. 42. He further stated that some of his fellow officers had acted similarly, but that he did not think “that they all have done it.” Ibid. The District Court did not rest its conclusion on any federal involvement in, or encouragement of, the search. We therefore must assume, for purposes of this opinion, that there was no federal involvement. See n. 31, infra. The wagering excise tax at the time was 10% of the amount of the wagers. § 4401 (a) of the Internal Revenue Code of 1954, 26 U. S. C. §4401 (a). The rate was reduced to 2%, effective December 1, 1974, by Pub. L. 93-499, §3 (a), 88 Stat. 1550. The Government advises us that, in order to avoid multiple litigation, its policy is to counterclaim in. a refund suit, just as it did here, where there is an outstanding unpaid assessment and the refund suit and the counterclaim involve the same facts. Brief for United States 17 n. 4. The Certificate of Assessments and Payments was stipulated "to be admissible without objection.” App. 20. The Government did not seek to introduce the wagering records obtained by the Los Angeles police. The Government has not asserted that, absent the seized materials, it would have had grounds for an assessment against respondent and Levine. The situation may be described as having some resemblance to that for which the Court has developed an exception to the Anti-Injunction Act, § 7421 (a) of the Code, 26 U. S. C. § 7421 (a). See Enochs v. Williams Packing Co., 370 U. S. 1 (1962); Bob Jones University v. Simon, 416 U. S. 725 (1974); Commissioner v. “Americans United” Inc., 416 U. S. 752 (1974); Laing v. United States, 423 U. S. 161 (1976); Commissioner v. Shapiro, 424 U. S. 614 (1976). Taylor, although decided more than 40 years ago, has never been cited by this Court on the burden-of-proof issue. The Courts of Appeals, the Court of Claims, the Tax Court, and the Federal District Courts, however, frequently have referred to that aspect of the case. E. g., Foster v. Commissioner, 391 F. 2d 727, 735 (CA4 1968); Herbert v. Commissioner, 377 F. 2d 65, 69 (CA9 1967). See Bar L Ranch, Inc. v. Phinney, 426 F. 2d 995, 999 (CA5 1970). E. g., United States v. Rexach, 482 F. 2d 10, 15-17 (CA1), cert. denied, 414 U. S. 1039 (1973); Psaty v. United States, 442 F. 2d 1154, 1158-1161 (CA3 1971); Ehlers v. Vinal, 382 F. 2d 58, 65-66 (CA8 1967). See Bar L Ranch, Inc. v. Phinney, 426 F. 2d, at 998. Although the present case presents only the issue whether such evidence may be used in the formulation of the assessment, there appears to be no difference between that question and the issue whether the evidence is to be excluded in the refund or collection suit itself. We perceive no principled distinction to be made between the use of the evidence as the basis of an assessment and its use in the case in chief. “[T]he raptured privacy of the victims’ homes and effects cannot be restored. Reparation comes too late.” Linkletter v. Walker, 381 U. S. 618, 637 (1965). “The rule is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.” Elkins v. United States, 364 U. S. 206, 217 (1960). See United States v. Calandra, 414 U. S. 338, 347-348 (1974); Mapp v. Ohio, 367 U. S. 643, 656 (1961); Tehan v. United States ex rel. Shott, 382 U. S. 406, 413 (1966); Terry v. Ohio, 392 U.S. 1, 29 (1968). In Elkins v. United States, 364 U. S., at 207 n. 1, the Court noted that the appellation stems from Mr. Justice Frankfurter’s plurality opinion in Lustig v. United States, 338 U. S. 74 (1949): “The crux of that doctrine is that a search is a search by a federal official if he had a hand in it; it is not a search by a federal official if evidence secured by state authorities is turned over to the federal authorities on a silver platter.” Id., at 78-79. The absence of this Court’s imposition of controls did not mean Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:
songer_appel1_1_3	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed 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. Keith LOWERY, d/b/a Lowery Trucking Co., and Leonard Anderson, Appellants, v. Elaine CLOUSE, a Minor, by Vincent Clouse, Her Father and Natural Guardian, Jerome Clouse, a Minor, by Vincent Clouse, His Father and Natural Guardian, and Vincent Clouse, Appellees. No. 17808. United States Court of Appeals Eighth Circuit. July 16, 1965. Sheldon J. Gensler, of Schermer & Gensler, Minneapolis, Minn., for appellants. David A. Bailly, of Cragg & Barnett, Minneapolis, Minn., for appellees Jerome and Vincent Clouse. Joe E. Thompson, of Johnson, Schmidt & Thompson, Willmar, Minn., for appel-lees Elaine Clouse and Vincent Clouse. Before VAN OOSTERHOUT, BLACK-MUN and MEHAFFY, Circuit Judges. BLACKMUN, Circuit Judge. This diversity litigation arises from a motor vehicle accident which occurred shortly before dawn on December 21, 1962, at an intersection in Kandiyohi County, Minnesota. The jury trial resulted in verdicts against the defendants Lowery and Anderson of $32,300 in favor of Elaine Clouse, of $3,000 in favor of her brother Jerome Clouse, and of smaller amounts in favor of their father, Vincent, and in a verdict adverse to the defendants on their third-party cause of action against Jerome and Vincent. The issues raised on appeal relate to the trial court’s instructions. Accordingly, the facts are not in serious dispute. The intersection is that of U. S. Highway 71, running north and south, and Minnesota Highway 7, running east and west. Jerome was permissively driving his father’s Ford automobile north on the federal highway. Elaine and Constance Lindquist, a high school student, were his passengers. All three were minors. Anderson was driving a trailer-tractor unit, owned by Lowery, east on Highway 7. The two vehicles collided, with the Ford hitting the tractor about three yards back from its front end. Constance was killed in the accident and Elaine and Jerome were injured. The Ford and the semi were damaged. The collision took place at 7:30 a. m. The sun rose there that day at 7:55 a. m. Elaine and Jerome instituted separate suits against the defendants jointly and each was joined by Vincent. By leave of court the defendants filed their third-party complaint in Elaine’s case against Jerome and Vincent, claiming contribution as to any judgment which Elaine and Vincent might obtain. The suits were consolidated for trial. At the intersection U.S. 71 is concrete and Minnesota 7 is bituminous. Both are two-lane and level. There are stop signs on the state highway. Overhanging the intersection is a traffic light flashing red for the east-west traffic on Minnesota 7 and flashing yellow for the north-south traffic on U.S. 71. Truck-stop service stations are on the northwest and southwest corners of the intersection but the view of approaching motorists is unobstructed. Anderson had stopped for coffee at the station on the south-west corner. He pulled out from its premises and onto Minnesota 7. His truck-trailer was more than 50 feet long and, with its load, weighed over 71,000 pounds. His head and clearance lights were on. There were three amber lights at each front top corner and at the center of the bottom of the trailer; all these were lit. Anderson testified that he stopped at the stop sign and then proceeded across the intersection in first gear at between two and three miles per hour; that when he was in the middle of the intersection he saw the Clouse car for the first time; that it was then about 100 feet away; and that “It wasn’t really light and it wasn’t really dark. It was just kind of in between. You could see a ways”. Anderson’s co-driver also testified as to their stop at the stop sign. Jerome testified that he was familiar with the intersection and its traffic controls; that he was aware that heavy trucks crossed there; that visibility was good; that there was nothing obstructing his view of Highway 7; that he was driving between 45 and 50 miles per hour; that he first saw the truck when it was proceeding slowly east toward the stop sign; that the truck had its lights on; that he did not see whether the truck stopped at the stop sign; that “I figured the truck was going to stop”; that he started to decelerate some 400 feet before he reached the intersection; and that he was 40 to 50 feet from the semi when he applied his brakes. There was other testimony as to the absence of any sound of air brakes on the semi and to the effect that the skid marks from the Ford extended for about 90 feet; that after the collision the front of the tractor was east of U.S. 71 and on Minnesota 7; that the rear of the trailer was west of the federal highway; and that the Clouse car was going about 65 miles per hour. The case was submitted to the jury on special verdict by agreement of counsel and as permitted by Rule 49(a), F.R. Civ.P. The questions and the jury’s answers were: 1. Was the defendant Anderson negligent? Yes. 2. If the defendant Anderson was negligent, was his negligence a proximate cause of the accident and the injuries and damages complained of? Yes. 3. Was plaintiff Jerome Clouse negligent? No. 4. If plaintiff Jerome Clouse was negligent, was his negligence a proximate cause of the accident and the injuries and damages complained of? No. 5. The damages of Elaine Clouse are Thirty-Two Thousand Three Hundred Dollars ($32,300.00). 6. The damages of Vincent Clouse because of Elaine’s injuries are Twelve Hundred Dollars ($1200.-00). 7. The damages of Jerome Clouse are Three Thousand Dollars ($3,000.00). 8. The damages of Vincent Clouse because of Jerome’s injuries are Five Hundred Dollars ($500.00). Judgments were entered accordingly except that the amounts in favor of Vincent were corrected, as the parties agreed, to conform with the evidence. The defendants urge here that the trial court erred (1) in refusing to submit to the jury the Minnesota reduced speed statute, Minn.Stat.Ann. § 169.14, subd. 3; (2) in refusing to amplify its amber light instruction; and (3) in giving instructions which permitted the jury to determine the effect of their answers upon the ultimate liability of the parties. Elaine’s judgment. We note initially that the judgment in favor of Elaine must stand in any event. Elaine was a passenger. No question of contributory negligence on her part is presented and contributory negligence on Jerome’s part, if such were determined to exist, is not imputable to her either at common law or under the Minnesota Safety Responsibility Act, Minn.Stat.Ann. § 170.-54. Jacobsen v. Dailey, 228 Minn. 201, 36 N.W.2d 711, 11 A.L.R.2d 1429 (1949); Christensen v. Hennepin Transp. Co., 215 Minn. 394, 10 N.W.2d 406, 413, 418-419, 147 A.L.R. 945 (1943); Olson v. Kennedy Trading Co., 199 Minn. 493, 272 N.W. 381, 383 (1937). There is no contention, therefore, that Elaine is barred from recovery. The only suggestion is that the amount of her judgment is excessive. This court, however, has stated clearly that excessiveness of a verdict is a matter basically for the trial court and that we interfere only in those rare situations where there is plain injustice or a monstrous or shocking result. Solomon Dehydrating Co. v. Guyton, 294 F.2d 439, 446-448 (8 Cir. 1961), cert. denied 368 U.S. 929, 82 S.Ct. 366, 7 L.Ed.2d 192; Bankers Life & Cas. Co. v. Kirtley, 307 F.2d 418, 423 (8 Cir. 1962). Elaine at the time of the accident was a young woman about 20 and received severe and permanent injuries. The amount of the verdict was carefully assessed by the trial court in response to the defense motion for a new trial. We find nothing here which warrants our interference with that verdict on the standards announced in the Solomon case. Neither do we find anything which leads us to conclude that Elaine’s verdict is not appropriately severable or is so intertwined with Jerome’s case that basic fairness would require that it stand or fall only with his. Rule 59(a), F.R.Civ.P.; Somerville v. Capital Transit Co., 89 U.S.App.D.C. 843, 192 F.2d 413, 415 (1951), cert. denied 342 U.S. 941, 72 S.Ct. 553, 96 L.Ed. 700; 6 Moore, Federal Practice, Par. 59.06, p. 3761 (2d Ed. 1953); 3 Barron & Holtzoff, Federal Practice & Procedure, § 1307, p. 384 (Wright Rev. 1958). See Constitution Publishing Co. v. Dale, 164 F.2d 210, 214 (5 Cir. 1947); Romer v. Baldwin, 317 F.2d 919, 922-923 (3 Cir. 1963). Elaine’s judgment therefore is to remain irrespective of the conclusion we reach in the companion cases. The reduced speed statute. The Minnesota statute, § 169.14, as it read at the time of the accident, provides a “basic rule” of prudence. It specifies speeds which are lawful “where no special hazard exists” and then calls for “an appropriate reduced speed when approaching and crossing an intersection * * * and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions”. Closely related is the right-of-way statute, § 169.20, subd. 3, relating to a stop sign at a through highway. The defendants asked the trial court to submit to the jury, along with other statutes, the third subdivision of § 169.14 and the portion we have quoted of § 169.20. The latter was submitted but the former was refused. The theory upon which the defense rests its claim of error is that a jury question as to the existence of special hazards, within the reach of § 169.14, subd. 3, was present ; that this is so because of the traffic, weather, and highway conditions, and the amber warning light at the intersection; and that if the jury found the statute violated by Jerome, any right of way he may have had was forfeited under § 169.20, subd. 1. This necessitates a review of the pertinent Minnesota cases. The bare fact that a driver is on a through highway does not prevent the application to him of the Minnesota reduced speed statute in appropriate circumstances. Norton v. Nelson, 236 Minn. 237, 53 N.W.2d 31, 34, 36 (1952); Kolatz v. Kelly, 244 Minn. 163, 69 N.W.2d 649, 655 (1955); Mocuik v. Svoboda, 253 Minn. 562, 93 N.W.2d 547, 552 (1958); Cherry v. Stedman, 259 F.2d 774, 776 (8 Cir. 1958). It has been said that the statute “bespeaks precaution, even from those having the right of way”, Dose v. Yager, 231 Minn. 90, 42 N.W.2d 420, 426 (1950); Norton v. Nelson, supra, p. 35 of 53 N.W.2d; Adelmann v. Elk River Lumber Co., 242 Minn. 388, 65 N.W.2d 661, 664 (1964), and that travel at a speed which is unlawful results in loss of the right of way and of the right otherwise to assume that a driver approaching on an intersecting highway will heed a stop sign. Dose v. Yager, supra, p. 426 of 42 N.W.2d; Norton v. Nelson, supra, p. 35 of 53 N.W.2d; Kolatz v. Kelly, supra, p. 655 of 69 N.W.2d. However, the driver on the through highway who is traveling at a speed which is prima facie lawful “may assume, until he sees otherwise, that drivers approaching an intersection so protected will heed the stop sign. * * * In short, he may assume ordinary care on the part of such drivers until he observes the contrary”, Olson v. Anderson, 224 Minn. 216, 28 N.W.2d 66, 68 (1947), and “ * * * need not reduce his speed ■ while approaching and passing over intersections along the through highway protected by stop signs where no special hazard exists other than an automobile approaching the intersection or stopped at it in obedience to a stop sign, provided that the driver of the automobile on the through highway is so close to the intersection as to constitute an immediate hazard to the automobile on the intersecting highway and provided further that the driver of the automobile on the through highway does not have reason to know that the driver on the intersecting highway is not going to obey the statute and yield the right of way to him. Likewise, drivers of vehicles on intersecting highways approaching the intersections of through highways protected by stop signs must anticipate that automobiles being driven upon through highways may approach and pass through intersections along the through highways at 60 miles an hour in the daytime where no special hazard exists without subjecting their drivers to a charge of negligence.” Schleuder v. Soltow, 239 Minn. 453, 59 N.W.2d 320, 324 (1953). Tollefson v. Ehlers, 252 Minn. 370, 90 N.W.2d 205, 208 (1958) and Mocuik v. Svoboda, supra, p. 551 of 93 N.W.2d, quote this language with approval. See Dahling v. Dammann, 251 Minn. 171, 87 N.W.2d 25, 29 (1957). And where the application of the statute is predicated solely upon the presence of an intersection and none of the other factors enumerated in the statute are present, it would be “both unreasonable and impractical” to hold that the statute requires the arterial driver always to reduce speed at a protected intersection. Neal v. Neal, 238 Minn. 292, 56 N.W.2d 673, 677 (1953); Mocuik v. Svoboda, supra, p. 551 of 93 N.W.2d; Schlukebier v. La Clair, 268 Minn. 64, 127 N.W.2d 693, 696 (1964). Thus, under such circumstances, the arterial driver need not reduce his otherwise lawful speed “for the statute does not contemplate such reduced speed on through highways, providing none of the other factors specifically enumerated in § 169.14, subd. 3, are present”. Schleuder v. Soltow, supra, p. 324 of 59 N.W.2d. The Schleuder case, p. 323 of 59 N.W.2d, also describes the duties of the intersecting driver. He should stop before entering the intersection, yield to vehicles which have entered it from the through highway and to others approaching the intersection “so closely as to constitute an immediate hazard”, and only then proceed. Also, where the intersecting driver has come to a full stop, “this in itself is an invitation to drivers approaching the intersection on the through highway so closely as to constitute an immediate hazard to proceed on through the intersection”. Kolatz v. Kelly, supra, p. 656 of 69 N.W.2d, emphasizes this invitational aspect. The Minnesota court has struggled with “the problem raised by an indiscriminate reading of” traffic statutes to the jury. Tollefson v. Ehlers, supra, p. 209 of 90 N.W.2d. There are cases where the submission of the reduced speed statute has been held not to be error, Tollef-son v. Ehlers, supra, p. 210 of 90 N.W. 2d; Mocuik v. Svoboda, supra, p. 552 of 93 N.W.2d; Koenigs v. Werner, 269 Minn. 530, 134 N.W.2d 301, 303 (1964); Staloch v. Belsaas, Minn., 136 N.W.2d 92 (1965), see Rod v. Jeffords, 238 Minn. 287, 56 N.W.2d 638, 640 (1953), and there is at least one case where the instruction has been held to be error, Neal v. Neal, supra, p. 677 of 56 N.W.2d. Correspondingly, the failure to submit the statute has been held not to be error, Schleuder v. Soltow, supra, p. 326 of 59 N.W.2d; Schlukebier v. La Clair, supra, p. 696 of 127 N.W.2d, and to constitute error, Adelmann v. Elk River Lumber Co., supra, pp. 664-665 of 65 N.W.2d. The distinction of course depends on the facts. The reduced speed statute in connection with one’s approach to an intersection relates to “special hazards” with respect to pedestrians, other traffic, “or by reason of weather or highway conditions”. Here no pedestrian was involved. There was no precipitation. The intersection was open. The view of both drivers was unobstructed. The highways were not wet or snow covered. There was no evidence of substance indicating that the roads were not in good driving condition. There was evidence that visibility was good for 1000 feet. The accident took place within a half hour before sunrise and thus, for what it is worth, was in the “daytime”, as defined in § 169.14, subd. 2. This leaves, for the application of the statute, only “other traffic” and “highway conditions” as such relate to traffic. The defense’s stress on Jerome’s familiarity with the intersection and his awareness that heavy trucks crossed there is of no persuasive significance. What is significant is the condition of traffic at the time. That condition, so far as Jerome was concerned, was that one semi was approaching the protected intersection from the west. The situation here comes down, we feel, essentially to that presented in Schleuder v. Soltow, supra. There the defendant, who was approaching an arterial highway, brought his automobile to a stop at or near the stop sign. He saw the plaintiff’s and still another automobile approaching from his left and saw the plaintiff overtake and pass the other. He proceeded to enter the intersection. A collision occurred when the front part of the defendant’s automobile was at least nearly across the traveled portion of the trunk highway. The Minnesota court held that the defendant “was not permitted to take a close chance” and that, under the circumstances, the denial of a request to submit the reduced speed statute to the jury was correct. That case controls this one. Adelmann v. Elk River Lumber Co., supra, 242 Minn. 388, 65 N.W.2d 661, stressed by the defendants, although close on its facts, concerned an uncontrolled intersection and not a protected arterial one. Finally, on this point we conclude that, in any event, the court’s charge, when read as a whole, actually submitted to the jury what the defendants claim is an omission here. The court did submit § 169.14, subd! 1, which requires that “in every event” speed shall be so restricted as to avoid a collision with a vehicle entering the highway legally and with due care. The court also submitted the first paragraph of § 169.20, subd. 3, which relates to the driver on the intersecting highway and provides that after he has stopped and yielded “the drivers of all other vehicles approaching the intersection on the through highway shall yield the right of way to the vehicle so proceeding into or across the through highway”. And the court instructed the jury generally as to reasonable care, negligence, lookout, reasonable speed, and the like, and their application to Jerome as well as to Anderson. The obligations of Jerome to reduce speed and to yield under appropriate circumstances were thus before the jury. While one may wish that the trial court had submitted the reduced speed statute ■ — and its submission here would not, we feel, have been error — its failure so to do is likewise not error here. The amber light instruction. The defendants requested that the court submit an instruction relating to the duty of a motorist proceeding through an intersection marked by a flashing yellow sign. The court, however, submitted this feature of the case to the jury by reading § 169.06, subd. 7, which relates not only to the driver against the yellow, but, as well, to the driver against the red, The defense theory is that there is a distinction between the obligations a driver possesses on an ordinary through highway and those he has on a through highway controlled by flashing yellow and that the latter are greater than the former. It must be conceded that the Minnesota statute recognizes this approach when it provides that a driver may proceed through the flashing yellow “only with caution”. Furthermore, the Minnesota court has refused to equate a highway controlled by a yellow signal with a through highway protected only by stop signs. Daugherty v. May Bros. Co., 265 Minn. 310, 121 N.W.2d 594, 601 (1963). See State for Use and Benefit of Hopkins v. Marvil Package Co., 202 Md. 592, 98 A.2d 94, 97-98 (1953). But, granting this, we fail to see error in the court’s refusal to give the requested instruction. The one actually given was the applicable statute. It, too, emphasized caution and, it contained, as we read it, everything embraced in the requested instruction except, possibly, the specific reference differentiating a highway protected by arterial stop signs. We cannot, however, assume that this jury was so unintelligent as not to understand what was involved in the instruction as given or the meaning of the word “caution” or its application to this very highway intersection. The special verdict. As has been noted, the case was submitted with the consent of counsel on special verdict. The defendants argue that, although the trial judge “did not expressly advise the jury what the legal effect of their answers to the special verdict questions would be”, the charge as a whole impliedly so informed them. It is then urged that, because of the size of Elaine’s verdict and of Vincent’s peculiar posture (growing out of Jerome’s and Elaine’s minority and out of Vincent’s ownership of the automobile) as both a plaintiff and a third party defendant, confusion and sympathy were present and prejudice against the defendants must have resulted. We are not persuaded. At the conclusion of the charge but before the jury retired all counsel agreed that all eight questions submitted were to be answered. The defendants did take exception to the charge “as being a combination charge for a general verdict and a special verdict” and did state that the jury should not be able under a special verdict to infer what the implications of their answers were. The court complied with the request of counsel and made it very clear to the jury that they were to answer all the questions. As to this there was no objection. We are aware that it has been said that among the purposes of a special verdict are the emphasis of facts and the removal of elements of personalities and prejudice, and that lack of knowledge by the jury as to the effect of its findings is helpful in the achievement of those purposes. 2B Barron & Holtzoff, Federal Practice & Procedure, § 1051, pp. 329-30 (Wright Rev. 1961); Ruddy v. New York Central R. R. Co., 124 F.Supp. 470, 472 (N.D.N.Y.1954), aff’d in part, 224 F.2d 96 (2 Cir. 1955), cert. denied 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 779; Mazer v. Lipschutz, 31 F.R.D. 123, 127-128 (E.D.Pa.1962), aff'd in part, 327 F.2d 42 (3 Cir. 1963). Submission of a special verdict to a federal jury, however, is a matter of procedure governed by the federal rules and not by state practice. Lang v. Rogney, 201 F.2d 88, 97 (8 Cir. 1953); McDonnell v. Timmerman, 269 F.2d 54, 58 (8 Cir. 1959). It is permissive and is not a matter of right and it is discretionary with the trial court. Great American Ins. Co. v. Horab, 309 F.2d 262, 266 (8 Cir. 1962); Siegfried v. Kansas City Star Co., 298 F.2d 1, 8 (8 Cir. 1962), cert. denied 369 U.S. 819, 82 S.Ct. 831, 7 L.Ed.2d 785; Skidmore v. Baltimore & Ohio R. R. Co., 167 F.2d 54, 66-67 (2 Cir. 1948), cert. denied 335 U.S. 816, 69 S.Ct. 34, 93 L.Ed. 371; Callan v. Great Northern Ry., 299 F.2d 908, 914 (9 Cir. 1961); 2B Barron & Holtzoff, Federal Practice & Procedure, § 1054 (Wright Rev. 1961); 5 Moore, Federal Practice, Par. 49.03 [1] (2d Ed. 1964). Indeed, the very language of Rule 49(a), F.R.Civ.P., supports this conclusion. There are indications in some state cases that if, in submitting a special verdict, the jury is advised, expressly or by implication, of the result of its findings, reversible error is committed. McCourtie v. United States Steel Corp., 253 Minn. 501, 93 N.W.2d 552, 562-564 (1958) (but see footnote 6, p. 563 of 93 N.W.2d); Banderob v. Wisconsin Cent. Ry. Co., 133 Wis. 249, 287, 113 N.W. 738, 751 (1907); McFaddin v. Hebert, 118 Tex. 314, 15 S.W.2d 213, 216-217 (1929). See Thedorf v. Lipsey, 237 F.2d 190, 193-194 (7 Cir. 1956) and comment in this court’s pre-Rules decision in Ward v. Cochran, 71 F. 127, 134 (8 Cir. 1895). It is to be observed, however, that in both Texas and Wisconsin a special verdict is mandatory when requested by either party and that the Minnesota court’s holding is not without its criticism. 43 Minn.L.Rev. 823 (1959). This court gave an adverse answer to the defendants’ contention in Concord Co. v. Willcuts, 125 F.2d 584, 589 (8 Cir. 1942), cert. denied 316 U.S. 705, 62 S.Ct. 1309, 86 L.Ed. 1773, when it said. “We have found nothing in the rule * * * which appears to cast any doubt upon the propriety of the court’s submission of the written question in this case. The objections that it let the jury know what effect their answers would have * * * have been considered”. The situation presented in Siegfried v. Kansas City Star Co., supra, p. 8 of 298 F.2d, is of like effect. See, also, 2B Barron & Holtzoff, Federal Practice & Procedure, § 1056, p. 349 (Wright Rev. 1961). It seems plain to us that a knowledgeable juror in receiving the court’s entire charge in this case, would obviously know the effect of the jury’s answers to the eight questions submitted. The court observed that one of the jury’s principal responsibilities “is to determine the question of legal liability”. It spoke of responsibility for accidents, of the grounding of liability on negligence, of negligence arising out of the violation of a duty to exercise reasonable care, of proximate cause, and of burden of proof. Under Rule 49(b) the court could have submitted written interrogatories with forms for a general verdict and, of course, it could have submitted the case on a general verdict. ’ It seems both illogical and unrealistic, particularly in the light of the discretionary aspect of the rule, to say that, because a special verdict was employed, nothing in the charge must intimate to the jury the legal effect of their answers. There may be situations where legal effect ought to be deemphasized but we fail to perceive any error in its presence in this case. We conclude that this was a matter for the trial court’s discretion and we further find no abuse in the exercise of that discretion here. Affirmed. . § 170.54 Driver deemed agent of owner “Whenever any motor vehicle * * * shall be operated upon any public street or highway of this state, by any person other than the owner, with the consent of tbe owner, express or implied, tbe operator thereof shall in case of accident, be deemed tbe agent of the owner of such motor vehicle in the operation thereof.” . “§ 169.14 Speed restrictions “Subdivision 1. Basic rule. No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then'existing. In every event speed shall be so restricted as may be necessary to avoid colliding with any person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care. “Subd. 2. Speed limits. Where no special hazard exists the following speeds shall be lawful, but any speeds in excess of such limits shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful; * * * (1) 30 miles per hour in any municipality; (2) 60 miles per hour in other locations during the daytime; (3) 50 miles per hour in such other locations during the nighttime. ‘Daytime’ means from a half hour before sunrise to a half hour after sunset, except at any time when due to weather or other conditions there is not sufficient light to render clearly discernible persons and vehicles at a distance of 500 feet. ‘Nighttime’ means at any other hour or at any time when due to weather or other conditions there is not sufficient light to render clearly discernible persons and vehicles at a distance of 500 feet. “Subd. 3. Reduced speed required. The driver of any vehicle shall, consistent with the requirements, drive at an appropriate reduced speed when approaching and crossing an intersection * * * and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions. t¡¡ % % Subd. 2 was amended in details not significant here by Session Laws 1963, c. 843, 81. . “§ 169.20 Right of way * * * “Subd. 3. Through highway — stop sign. The driver of a vehicle shall stop as required by this chapter at the entrance to a through highway and shall yield the right of way to other vehicles which have entered the intersection from the through highway or which are approaching so closely on the through highway as to constitute an immediate hazard, but the driver having so yielded may proceed, and the drivers of all other vehicles approaching the intersection on the through highway shall yield the right of way to the vehicles so proceeding into or across the through highway. * * * ” . “You are instructed that a motorist proceeding through an intersection on a flashing yellow does not have the same protection as a motorist driving on a through highway protected by arterial stop signs, but driver may proceed past the flashing yellow light only with caution.” . “169.06 .* * * “Subd. 7. Flashing signals. When flashing red or yellow signals are used they shall require obedience by vehicular traffic, as follows: “(l)When a red lens is illuminated by rapid intermittent flashes, drivers of vehicles shall stop before entering the nearest crosswalk at an intersection or at a limit line when marked, and the right to proceed is subject to the rules applicable after making a stop at a stop sign; “(2) When a yellow lens is illuminated with rapid intermittent flashes, drivers of vehicles may proceed through the intersection or past the signals only with caution.” Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
sc_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. COMMUNITY TELEVISION OF SOUTHERN CALIFORNIA v. GOTTFRIED et al. No. 81-298. Argued October 12, 1982 Decided February 22, 1983 Stevens, J., delivered the opinion of the Court, in which BURGER, C. J., and White, Blackmun, Powell, Rehnquist, and O’Connor, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 513. Edgar F. Czarra, Jr., argued the cause for petitioner in No. 81-298. With him on the briefs were Mark D. Nozette and Richard A. Meserve. Samuel A. Alito, Jr., argued the cause for petitioner in No. 81-799. With him on the briefs were Solicitor General Lee, Deputy Solicitor General Shapiro, Stephen A. Sharp, and C. Grey Pash, Jr. Charles M. Firestone argued the cause for respondents Gottfried et al. in both cases. With him on the brief were Abraham Gottfried and Stanley Fleishman. J. Roger Wollenberg, Timothy B. Dyk, Ralph E. Goldberg, and Eleanor S. Applewhaite filed a brief for CBS Inc., respondent under this Court’s Rule 19.6. Together with No. 81-799, Federal Communications Commission v. Gottfried et al., also on certiorari to the same court. Harry R. Sheppard filed a brief for Deaf Counseling, Advocacy and Referral Agency, Inc., et al. as amici curiae urging affirmance. Justice Stevens delivered the opinion of the Court. The question presented is whether § 504 of the Rehabilitation Act of 1973 requires the Federal Communications Commission to review a public television station’s license renewal application under a different standard than it applies to a commercial licensee’s renewal application. Contrary to the holding of the Court of Appeals for the District of Columbia Circuit, 210 U. S. App. D. C. 184, 655 F. 2d 297 (1981), we conclude that it does not. I On October 28, 1977, respondent Sue Gottfried filed a formal petition with the Federal Communications Commission requesting it to deny renewal of the television license of station KCET-TV in Los Angeles. She advanced two principal grounds for denial: First, that the licensee had failed to discharge its obligation to ascertain the problems, needs, and interests of the deaf and hearing-impaired population within its service area; and second, that the licensee had violated, and remained in violation of, § 504 of the Rehabilitation Act. Correspondence attached to Gottfried’s petition included complaints about KCET-TV’s failure to carry enough programming with special captioning or other aids to benefit the hearing-impaired members of the audience. The exhibits emphasized the station’s failure to broadcast the ABC evening news in captioned form prior to May 23, 1977, and its subsequent failure to broadcast the captioned program during prime time. In a verified opposition to the petition, the licensee recounted in some detail its efforts to ascertain the problems of the community it served, including the deaf and the hearing impaired, by a community leader survey and by a general public survey. App. in No. 79-1722 (CADC), pp. 102-105. The licensee also described its programming efforts to respond to the special needs of the hearing impaired, and explained why its two daily broadcasts of the ABC captioned news had usually been scheduled for 11:30 p. m. and 6:30 a. m. The licensee specifically denied that it had violated § 504 and averred that the Commission is not an appropriate forum for the adjudication of Rehabilitation Act claims. Id., at 113. On December 22, 1977, Gottfried filed a verified response, criticizing the station’s public survey, and commenting further on the station’s failure to rebroadcast ABC captioned news programs before May 23, 1977. The response renewed the charge that the station had violated § 504, and asserted that the Federal Communications Commission was indeed the proper forum to evaluate that charge. Gottfried also filed separate formal objections to the renewal of seven commercial television station licenses in the Los Angeles area. E. g., id,., at 199. The Commission consolidated all eight proceedings and ruled on Gottfried’s objections in a single memorandum opinion adopted on August 8, 1978. 69 F. C. C. 2d 451. The Commission first reviewed its own efforts to encourage the industry to serve the needs of the hearing impaired. In 1970, the Commission had issued a Public Notice to all licensees, advising them of the special needs of the deaf in responding to emergency situations as well as in appreciating general television programming. In 1972, the Commission had granted authority to the Public Broadcasting System to begin experimentation with a “closed” captioning system, which would enable hearing-impaired persons with specially equipped television sets to receive captioned information that could not be seen by the remainder of the viewing audience. In 1976, the Commission had adopted a rule requiring television licensees to broadcast emergency information visually. In that year, however, the Commission had also concluded that there were so many unanswered questions — both technical and financial — concerning the most effective means of improving television service for the hearing impaired, that it remained “the responsibility of each licensee to determine how it [could] most effectively meet those needs.” The Commission summarized its views concerning mandated forms of technology by noting that “there is no requirement that any television licensee — commercial or noncommercial— provide open or closed captioning or any other form of special visual program material other than for broadcasting emergency information.” Id., at 455. The Commission then turned to Gottfried’s objections to the eight license renewals. It approached the question whether the renewals would serve the public interest, convenience, and necessity from three different perspectives: ascertainment, programming, and § 504 of the Rehabilitation Act. It first found that the licensees’ efforts to ascertain the special needs of the community were adequate. Next, it held that the facts alleged by Gottfried did not give rise to a substantial and material question whether any of the eight stations had abused its discretion in its selection of programming matter. The Commission explained that it is more difficult to provide special programming for the hearing impaired than for other segments of the community; in the absence of any Commission requirement for specialized programming techniques, it found “no basis to fault a licensee for failure to provide these options for the deaf and hearing impaired in the station service area.” Id., at 458. The Commission held that § 504 of the Rehabilitation Act had no application to the seven commercial licensees because they were not alleged to have received any federal financial assistance. The Commission agreed that KCET-TV might be governed by § 504, and that a violation of the Act would need to be considered in a license renewal proceeding, but it saw no reason to consider § 504 in the absence of an adverse finding by the Department of Health, Education, and Welfare — “the proper governmental agency to consider such matters.” Id., at 459. On May 29,1979, the Commission adopted a second memorandum opinion and order denying Gottfried’s petition for reconsideration. 72 F. C. C. 2d 273. The Commission again reviewed Gottfried’s §504 charge and again concluded that the Rehabilitation Act does not apply to commercial stations and that the allegations against KCET-TV under that Act were premature unless and until the agency with authority to enforce compliance determined that the station had violated its provisions. The Commission also rejected Gottfried’s additional argument that it had a duty to adopt regulations to implement §504. Finally, the Commission refused to hold that either its omission of a rule requiring “captioning or other techniques to enable the deaf and hearing impaired to have full access to television broadcasts,” or the failure of the licensees to provide such services, was a violation of the “public interest” standard embodied in § 309 of the Communications Act of 1934, as amended. The Commission held: “We find no error and nothing inconsistent in concluding that licensees are serving the public interest although they are not currently providing captioning, in view of the fact that we have not required licensees to undertake such an activity. Furthermore, to judge a licensee’s qualifications on the basis of the retroactive application of such a requirement would, in our opinion, raise serious questions of fundamental fairness. Thus, there is no inconsistency or error in our finding that the subject licensees had met their public interest burden even though they did not caption their programming.” Id., at 279. Gottfried appealed the decision of the Commission to the Court of Appeals for the District of Columbia Circuit, pursuant to 47 U. S. C. § 402. The Court of Appeals affirmed the portion of the Commission’s order that related to the commercial stations but vacated the renewal of the KCET-TV license and remanded for further proceedings. 210 U. S. App. D. C. 184, 655 F. 2d 297 (1981). The court held that Congress did not intend the Commission’s renewal of a broadcast license to be considered a form of “financial assistance” within the meaning of §504 and therefore that the Rehabilitation Act did not directly apply to the seven commercial stations. The court was persuaded, however, that the Act reflected a national policy of extending increased opportunities to the hearing impaired and that commercial stations must therefore make some accommodation for the hard of hearing, given the Communications Act’s general requirement that licensees serve the “public interest, convenience, and necessity.” 47 U. S. C. §§307(d), 309(a), 309(d). In the absence of a more specific statutory directive than that contained in the public interest standard, however, the court accepted the Commission’s judgment that the commercial licenses should be renewed. “Recognizing that the Commission possesses special competence in weighing the factors of technological feasibility and economic viability that the concept of the public interest must embrace, we defer today to its judgment.” 210 U. S. App. D. C., at 202-203, 655 F. 2d, at 315-316 (footnote omitted). The majority of the Court of Appeals reached a different conclusion with respect to KCET-TV. As a recipient of federal financial assistance, the public station was admittedly under a duty to comply with § 504. The Court of Appeals did not hold that KCET-TV had violated § 504, or that its efforts to provide programming for the hearing impaired were less satisfactory than the efforts of the commercial licensees; nevertheless, it held that a stricter “public interest” standard should be applied to a licensee covered by § 504 than to a commercial licensee. Its narrow holding was that the Commission could not find the service of public stations “to be adequate to justify renewal without at least inquiring specifically into their efforts to meet the programming needs of the hearing impaired.” Id., at 188, 655 F. 2d, at 301. Judge McGowan dissented in part. He agreed with the majority’s view concerning commercial stations that rule-making would be “a better, fairer, and more effective vehicle for considering how the broadcast industry is required to provide the enjoyment and educational benefits of television to persons with impaired hearing,” id., at 188, 203, 655 F. 2d, at 301, 316, than case-by-case adjudication in license renewal proceedings. He felt, however, that the same standard should be applied to public stations until regulations had been issued by the Department of Education dealing specifically with the rights of access of the hearing impaired to television programs. Judge McGowan stated; “[F]orm is favored over substance when commercial stations are, for this reason, spared the expense and uncertainty of renewal hearings, and a noncommercial station is not. Neither, on the record before us, had advance notice during their expired license terms of what was, and therefore could reasonably be, expected of them with respect to the wholly laudable, but technically complex, objective of providing access for the hearing impaired.” Id., at 204, 655 F. 2d, at 317. Both the Commission and the licensee petitioned for certio-rari. Because of the serious implications of the Court of Appeals’ holding on the status of licenses of public broadcasting stations, we granted both petitions. 454 U. S. 1141 (1982). II All parties agree that the public interest would be served by making television broadcasting more available and more understandable to the substantial portion of our population that is handicapped by impaired hearing. The Commission recognized this component of the public interest even before the enactment of the Rehabilitation Act of 1973, see The Use of Telecasts to Inform and Alert Viewers with Impaired Hearing, 26 F. C. C. 2d 917 (1970), and that statute confirms the federal interest in developing the opportunities for all individuals with handicaps to live full and independent lives. No party suggests that a licensee, whether commercial or public, may simply ignore the needs of the hearing impaired in discharging its responsibilities to the community which it serves. We are not persuaded, however, that Congress intended the Rehabilitation Act of 1973 to impose any new enforcement obligation on the Federal Communications Commission. As originally enacted, the Act did not expressly allocate enforcement responsibility. See Pub. L. 93-112, Tit. V, §504, 87 Stat. 394. Nevertheless, since §504 was patterned after Title VI of the Civil Rights Act of 1964, it was understood that responsibility for enforcing it, insofar as it regulated private recipients of federal funds, would lie with those agencies administering the federal financial assistance programs. See S. Rep. No. 93-1297, pp. 39-40 (1974). When the Act was amended in 1978, that understanding was made explicit. See Pub. L. 95-602, Tit. I, §119, 92 Stat. 2982; n. 1, swpra. It is clear that the Commission is not a funding agency and has never been thought to have responsibility for enforcing §504. Furthermore, there is not a word in the legislative history of the Act suggesting that it was intended to alter the Commission’s standard for reviewing the programming decisions of public television licensees. If a licensee should be found guilty of violating the Rehabilitation Act, or indeed of violating any other federal statute, the Commission would certainly be obligated to consider the possible relevance of such a violation in determining whether or not to renew the lawbreaker’s license. But in the absence of a direction in the Rehabilitation Act itself, and without any expression of such intent in the legislative history, we are unwilling to assume that Congress has instructed the Federal Communications Commission to take original jurisdiction over the processing of charges that its regulatees have violated that Act. The fact that a public television station has a duty to comply with the Rehabilitation Act does not support the quite different conclusion that the Commission must evaluate a public station’s service to the handicapped community by a more stringent standard than that applicable to commercial stations. The interest in having all television stations — public and commercial — consider and serve their handicapped viewers is equally strong. By the same token, it is equally unfair to criticize a licensee — whether public or commercial— for failing to comply with a requirement of which it had no notice. As both the majority and the dissenting judge in the Court of Appeals observed, rulemaking is generally a “better, fairer, and more effective” method of implementing a new industrywide policy than is the uneven application of conditions in isolated license renewal proceedings. That observation should be as determinative in relicensing a public station as it is in relicensing a commercial station. A federal agency providing financial assistance to a public television station may, of course, attach conditions to its subsidy that will have the effect of subjecting such a licensee to more stringent requirements than must be met by a commercial licensee. Or regulations may be promulgated under the Rehabilitation Act that impose special obligations on the subsidized licensee. Conceivably, the Federal Communications Commission might determine that the policies underlying the Communications Act require extraordinary efforts to make certain types of programming universally accessible, thereby placing heightened responsibility on certain stations. But unless and until such a differential standard has been promulgated, the Federal Communications Commission does not abuse its discretion in interpreting the public interest standard, see FCC v. WNCN Listeners Guild, 450 U. S. 582 (1981), when it declines to impose a greater obligation to provide special programming for the hearing impaired on a public licensee than on a commercial licensee. The Court of Appeals was unanimous in its holding that the renewal of the seven commercial licensees was consistent with the public interest requirement in § 309 of the Federal Communications Act. Neither that court nor the Commission suggested that there was anything in the record that would justify treating the public licensee differently from the commercial licensees if both classes were to be judged under the same standard. The Court of Appeals’ affirmance of the Commission’s rejection of Gottfried’s objection to the renewal of the commercial licenses therefore requires a like disposition of the objections to the renewal of the KCET-TV license. Accordingly, the judgment of the Court of Appeals is reversed insofar as it vacated the order of the Commission. It is so ordered. Section 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, and as set forth in 29 U. S. C. § 794 (1976 ed., Supp. V), provides: “§ 794. Nondiscrimination under Federal grants and programs; promulgation of rules and regulations “No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees.” In her petition, Gottfried alleged, in part: “That the Licensee has violated, and remains in violation of Section 504 of the Rehabilitation Act of 1973, and the regulations promulgated thereunder, in that the Licensee has received and is receiving Federal financial assistance and has discriminated and is discriminating against the Petitioners ‘solely by reason of [their] handicap’, and said Petitioners have been and are ‘excluded from participation in [and have been and are denied] the benefits of, [and have been and are being] subjected to discrimination’ under the television services in connection with which Licensee has been and is receiving Federal financial assistance.” App. in No. 79-1722 (CADC), p. 26 (brackets in original). “Captioning” refers to any of several technologies, see Captioning for the Deaf, 63 F. C. C. 2d 378 (1976), that project written text onto a television image so that deaf viewers receive information that is communicated to others by the soundtrack. See also n. 8, infra. “Contrary to Petitioners’ unsupported charges (Petition, p. 3), KCET has responded to the needs of deaf and hearing-impaired persons in its service area. It has done so with three different types of programming: (a) Captioned ABC Evening News; (b) a variety of other programs, including children’s programs, which were captioned or signed so as to be understandable to the deaf and hearing-impaired; and (c) special programs which have directly addressed needs and concerns of the deaf and hearing-impaired. “Over the past three years, KCET has presented more than 960 programs which were either captioned, signed or, in rare instances, which had no spoken words in them at all. All of these programs were understandable to the deaf and hearing-impaired. In many instances, KCET has promoted these programs by listing them as designed for the hearing-impaired audience. During the past three years, in addition to ABC Captioned News, these broadcasts have included such programs as ‘Zoom’, ‘Once Upon a Classic’, ‘Nova’, films of Ingmar Bergman, ‘The Tribal Eye’, ‘Masterpiece Theatre’, ‘Adams Chronicles’, ‘President Carter’s Clinton, Massachusetts Town Meeting', and many others. “In addition to programs designed to be understood by the deaf and hearing-impaired, KCET has devoted several special programs to substantive issues affecting those groups.” App. in No. 79-1722 (CADC), pp. 106, 109. The response stated: “[T]he station has not been responsive to the needs of the deaf and hearing impaired. In the station’s viewing area, the deaf 20% of the population are not getting 20% of broadcast time; they were not even getting what other deaf in other viewing areas were receiving.” Id., at 148. The response continued: “The Commission is a proper forum for the adjudication of claims of discrimination in broadcasting, as it is the Commission’s obligation — even apart from the Act — to determine how the station has discharged its public trust obligations. The Act and the regulations thereunder, merely give further statutory and regulatory emphasis to that which the Commission is already charged to do under the law.” Id., at 150. The Use of Telecasts to Inform and Alert Viewers with Impaired Hearing, 26 F. C. C. 2d 917 (1970). The Commission described the effect of its 1970 action as follows: “[I]t was suggested that television stations could make use of visual as well as oral announcements of emergencies, utilize the fac[e] of newscasters wherever possible so as to permit lip reading, and feature visualization of materials in news, weather, and sports programs. The Commission hoped that the notice would alert licensees to our concern for the needs of the hearing impaired citizen and make television a truly valuable medium for that segment of the population — estimated by the Department of Health, Education, and Welfare to include 13.4 million persons. We observed, however, that ‘it may be necessary to begin rule making looking toward the adoption of minimum requirements.’” 69 F. C. C. 2d, at 454. “Through the use of an encoder at the transmitting end and a decoder at the receiving end, this closed captioning system could supply visual information — captioning—of the aural portion of the television program to those hearing impaired persons whose television sets were equipped to receive the captioned information while the rest of the viewing public would receive the normal visual and aural transmission. This differs from ‘open’ captioning utilized, for example, by PBS in its rebroadcast of the ABC Evening News. Open captioning is transmitted to all viewers who see a printed display of the text of the aural transmission at the bottom of the visual transmission.” Ibid. Captioning for the Deaf, 63 F. C. C 2d, at 389. “Generally speaking, [special programming for other segments of the community] can be achieved without any additional production techniques other than those utilized for regular programming. Obviously, that is not the situation confronting a licensee who might wish to program for the aurally handicapped. For such programming to be effective, it must offer some specific form of visual communication: sign language interpretations, captioning, or extensive utilization of charts, signs, and facial closeups to permit lip reading. Even sign language and lip reading efforts, according to Gottfried, serve to limit the number of deaf and hearing impaired since many do not effectively understand these methods.” 69 F. C. C. 2d, at 458. Judge McGowan pointed out that on January 19,1981, the Department of Education had issued a notice of intent to develop such regulations, and invited comments by March 5,1981. 210 U. S. App. D. C., at 204, 655 F. 2d, at 317. See 46 Fed. Reg. 4954. “Estimates of the number of citizens who have impaired hearing and therefore have need for the receipt of news and entertainment material through appropriate television programming range from 8.5 million to 20 million. Many of these persons, it appears, live alone and oftentimes do not receive important new information unless advised by neighbors or friends.” The Use of Telecasts to Inform and Alert Viewers with Impaired Hearing, 26 F. C. C. 2d 917 (1970). As the Commission has observed: “In the fulfillment of his obligation the broadcaster should consider the tastes, needs and desires of the public he is licensed to serve .... He should reasonably attempt to meet all such needs and interests on an equitable basis.” Report and Statement on Policy Re: Commission’s En Banc Programming Inquiry, 25 Fed. Reg. 7291, 7295 (1960). Accord, In re Applications of Alabama Educational Television Comm’n, 50 F. C. C. 2d 461, 472 (1975); In re Applications of Capitol Broadcasting Co., 38 F. C. C. 1135, 1139 (1965). If such an enforcement obligation existed, it would have to derive from the Rehabilitation Act itself, since the general words “public interest” in the Communications Act are not sufficient to create it. In McLean Trucking Co. v. United States, 321 U. S. 67 (1944), we observed that an agency charged with promoting the “public interest” in a particular substantive area may not simply “ignore” the policies underlying other federal statutes. Id., at 80. But we also emphasized that such an agency is not auto-. matically given “either the duty or the authority to execute numerous other laws.” Id., at 79. Thus, in McLean Trucking the Interstate Commerce Commission had an administrative duty to consider the effect of a motor carrier merger on competing motor carriers in determining whether the merger would effectuate overall transportation policy, id., at 87, yet was “not to measure proposals for all-rail or all-motor consolidations by the standards of the anti-trust laws,” id., at 85. Here, the FCC has an administrative duty to consider the needs of handicapped citizens in determining whether a license renewal would effectuate the policies behind the Communications Act but is by no means required to measure proposals for public television license renewals by the standards of § 504 of the Rehabilitation Act. In 1976, the President designated the Department of Health, Education, and Welfare as the agency responsible for coordinating the implementation of § 504. See Exec. Order No. 11914, 3 CFR 117 (1977). In 1980 that Executive Order was revoked and replaced by Exec. Order No. 12250, 3 CFR 298 (1981), which transferred the coordination and enforcement of authority for § 504 from HEW to the Department of Justice. Regulations previously adopted by HEW remain in effect pending the adoption of new regulations by the Department of Justice. See 28 CFR pt. 41 (1982). The Commission has explained its policy as follows: “Normally, we have declined to explore matters currently being litigated before the courts or to duplicate the ongoing investigative efforts of other government agencies charged with the responsibility of interpreting and enforcing the laws in question. Our restraint in this respect has not been predicated upon the unlikelihood of proving the violation of law. Indeed, conduct which does not contravene law may still run afoul of the public interest standard. ... By our forbearance we have sought to maintain a proper working relationship with the judiciary and other governmental agencies and to avoid burdening applicants with unnecessary, costly multiple proceedings.” FCC Form 803, 59 F. C. C. 2d 750, 763 (1976). This is not to say that the Commission may permit a licensee to ignore the needs of particular groups within the viewing public. The point is that the Commission’s duties derive from the Communications Act, not from other federal statutes. In NAACP v. FPC, 425 U. S. 662, 670, n. 7 (1976), for example, this Court noted that the Commission’s equal opportunity regulations could be regarded as “necessary ... to ensure that its licensees’ programming fairly reflects the tastes and viewpoints of minority groups.” We then reiterated, however, that an agency’s general duty to enforce the public interest does not require it to assume responsibility for enforcing legislation that is not directed at the agency: “It is useful again to draw on the analogy of federal labor law. No less than in the federal legislation defining the national interest in ending employment discrimination, Congress in its earlier labor legislation unmistakably defined the national interest in free collective bargaining. Yet it could hardly be supposed that in directing the Federal Power Commission to be guided by the ‘public interest,’ Congress thereby instructed it to take original jurisdiction over the processing of charges of unfair labor practices on the part of its regulatees.” Id., at 671. We have previously emphasized the desirability of making changes in licensing policies prospective. In FCC v. National Citizens Committee for Broadcasting, 436 U. S. 775, 811 (1978), we wrote: “One of the most significant advantages of the administrative process is its ability to adapt to new circumstances in a flexible manner, see FCC v. Pottsville Broadcasting Co., 309 U. S., at 137-138, and we are unwilling to presume that the Commission acts unreasonably when it decides to try out a change in licensing policy primarily on a prospective basis.” We note the Commission’s argument that, if a differential standard were appropriate, commercial stations would be better able to afford the costs associated with special programming than public television stations, which cannot sell advertising and which serve the public in large part by airing programs of specialized interest that lack the mass appeal required for broadcast on network affiliates. 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_usc1	11	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. FAKES v. GIRAND. Circuit Court of Appeals, Fifth Circuit. December 21, 1927. No. 5182. Bankruptcy (§=>314(6) — Trustee cannot be required to pay taxes assessed against property set aside to bankrupt as exempt (Bankr. Act I8S8, § 64, as amended by Act May 27, 1926 [II USCA § 104]). Under Bankruptcy Act 1898, § 64, as amended by Act May 27, 1926 (11 USCA § 104), trustee in bankruptcy cannot be required to pay taxes against property set aside to bankrupt as exempt, since it forms no part of bankrupt estate, and such equity as there may be in property over and above valid liens belongs to bankrupt. Petition to Superintend and Revise from the District Court of the United States for the Northern District of Texas; James C. Wilson, Judge. In the matter of the bankruptcy of Albert Perry Fakes. Order of the referee directing W. D. Girand, trustee, to pay certain taxes was reversed by the District Court, and the bankrupt petitions to superintend and revise. Affirmed. E. L. Harwell and R. W. Haynie, both of Abilene, Tex. (Wagstaff, Harwell & Wag-staff, of Abilene, Tex., on the brief), for pe- ' titionér. W. D. Girand, of Abilene, Tex., trustee, pro se. Before WALKER, BRYAN, and FOSTER, Circuit Judges. FOSTER, Circuit Judge. This case is brought up in the form of a petition to superintend and revise in matter of law, but will be treated as an appeal under section 24b of the Bankruptcy Act of 1898, as amended by the Act of May 27, 1926 (11 USCA § 47 [b ]). Petitioner was adjudicated bankrupt December 13, 1926, and surrendered two certain pieces of real estate, one of which he claimed as a business homestead and the other as a residence homestead, under the laws of Texas. The city of Abilene filed a claim for taxes assessed against the said property, amounting to $127.50, and asked that it be paid by priority. The referee found that the property claimed as a business homestead was of the reasonable value of $25,000, and was incumbered with valid liens in the sum of $20,000, leaving an equity of about $5,000, and that the residence homestead was of the reasonable value of $7,000, and ordered the trustee to pay the taxes, on the theory, apparently, that they should be paid because of the equity of the bankrupt in the property. On appeal to the District Court the order of the referee was reversed, and the ease is here for a review of the order of the District Court. ■ Under the law as it was prior to the amendment of section 64 of the Bankruptcy Act of 1898 by the Act of May 27, 1926 (11 USCA § 104), which amendment was in effect when petitioner was adjudicated bankrupt, there were decisions both ways as to the duty of the trustee to pay the taxes on exempt property and other property not administered in the bankruptcy proceedings. These cases, which it is unnecessary to quote, are no longer applicable, as the amendment of 1926 has made a change in the law, which must be given effect. Section 64 now reads as follows: “(a) The court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States, state, county, district; or municipality, in the order of priority as set forth in paragraph (b) hereof: Provided, that no order shall be made for the payment of a tax assessed against real estate of a bankrupt in excess of the value of the interest of the bankrupt estate therein as determined by the court.” Under the law as amended by the addition of the proviso above quoted, it is clear that the trustee cannot bo required to pay taxes assessed against property set aside to the bankrupt as exempt. It forms no part of the bankrupt estate administered by the trustee, and such equity as there may be in the property over and above valid liens belongs to the bankrupt. Lockwood v. Exchange Bank, 190 U. S. 294, 23 S. Ct. 751, 47 L. Ed. 1061. Affirmed. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_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". PUBLIC SERVICE COMPANY OF COLORADO, a corporation; Western Slope Gas Company, a corporation; and Public Service Company of Colorado, Successor by Merger to Pueblo Gas and Fuel Company, a corporation, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. No. 85-1049. United States Court of Appeals, Tenth Circuit. April 15, 1987. Timothy Fox of Kelly, Stansfield & O’Donnell, Denver, Col., for plaintiffs-appellants. Roger M. Olsen, Asst. Atty. Gen., Michael L. Paup, Jonathan S. Cohen, and Francis M. Allegra, Tax Division, Dept, of Justice, Washington, D.C., of counsel, Robert N. Miller, U.S. Atty., Denver, Col., for defendant-appellee. Before LOGAN, SEYMOUR, and MOORE, Circuit Judges. LOGAN, Circuit Judge. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); Tenth Cir.R. 34.1.8(c) and 27.-1.2. The cause is therefore ordered submitted without oral argument. In this appeal we decide whether an Internal Revenue Service classification of certain vehicles as truck-trailer combinations was contrary to the Highway Revenue Act, 26 U.S.C. § 4481-84. Section 4481(a) of the Act, before amendments effective in 1984, provided, in part, as follows: “A tax is hereby imposed on the use of any highway motor vehicle which (together with the semitrailers and trailers customarily used in connection with highway motor vehicles of the same type as such highway motor vehicle) has a taxable gross weight of more than 26,000 pounds____” (Emphasis added). The term “taxable gross weight” was defined in § 4482(b) as the sum of “(1) the actual unloaded weight of— (A) such highway motor vehicle fully equipped for service, and (B) the semitrailers and trailers (fully equipped for service) customarily used in connection with highway motor vehicles of the same type as such highway motor vehicle, and (2) the weight of the maximum load customarily carried on highway motor vehicles of the same type as such highway motor vehicle and on the semitrailers and trailers referred to in paragraph (1)(B). Taxable gross weight shall be determined under regulations prescribed by the Secretary (which regulations may include formulas or other methods for determining the taxable gross weight of vehicles by classes, specifications, or otherwise).” (Emphasis added). Treas.Reg. § 41.4482(b)-l, adopted under authority of § 4482(b), established weight classifications based upon how the vehicles were equipped for use, and treated vehicles equipped for use in combination with trailers or semitrailers as taxable according to the gross weight of the combination. Revenue Ruling 76-294,1976-2 C.B. 364, interpreting the regulation, classified utility trucks equipped with pintle hooks capable of towing heavyweight trailers as “equipped for use in combinations” and taxable, under § 4481, as truck-trailer combinations Id. at 365. Plaintiffs, Public Service Company of Colorado and Western Slope Gas Company, seek to recover highway motor vehicle use taxes assessed under § 4481 for the years 1972 to 1975 on plaintiffs’ trucks equipped with pintle hooks. Plaintiffs assert that classification of these vehicles as truck-trailer combinations merely because they are “equipped for use” with heavyweight trailers, without a factual determination as to “customary use,” is contrary to §§ 4481 and 4482. The district court disagreed and granted summary judgment for the government, finding that the pintle hook classification was “neither arbitrary nor inconsistent with the statute.” R. II, 338. Whether trucks equipped with pintle hooks permitting use with heavyweight trailers should be taxed as specified in Rev. Rul. 76-294 has already been addressed by five other circuits. Consolidated Edison Company of New York, Inc. v. United States, 782 F.2d 322 (2d Cir.1986); Minnesota Power and Light Co. v. United States, 782 F.2d 167 (Fed.Cir.1986); Northern Illinois Gas Co. v. United States, 743 F.2d 539 (7th Cir.1984), cert. denied, 472 U.S. 1027, 105 S.Ct. 3501, 87 L.Ed.2d 632 (1985); Northern States Power Co. v. United States, 663 F.2d 55 (8th Cir.1981), aff'g 503 F.Supp. 1182 (D.Minn.1981), cert. denied, 456 U.S. 965, 102 S.Ct. 2045, 72 L.Ed.2d 490 (1982); Pacific Gas and Electric Co. v. United States, 664 F.2d 1133 (9th Cir.1981). Only one of these opinions rejects the Secretary’s choice of “equipped for use” as a basis for taxation under § 4481. Pacific Gas and Electric, 664 F.2d at 1135. We find ourselves in agreement with the four other circuits that have accepted the Secretary’s interpretation. The provision in § 4482(b) that explicitly allows the Secretary to use “formulas or other methods for determining the taxable gross weight of vehicles by classes, specifications, or otherwise,” in effect gives the Secretary of the Treasury “legislative” rulemaking power, so long as the Secretary acts within the parameters of the statute. As the Federal Circuit in Minnesota Power & Light Co. stated: “ ‘The “customarily used” language ... [of § 4481] must be read in combination with the language in section 4482(b), which authorizes the Secretary to develop “formulas and other methods” for determining the taxable gross weight of vehicles. Because the “customarily used” requirement is integral to the determination of taxable gross weight, we read section 4482(b) as permitting the Secretary to develop a short-hand method for determining whether a certain type of vehicle is customarily used in combination with heavy trailers.’ ” 782 F.2d at 172 (quoting Northern Illinois Gas Co., 743 F.2d at 542). We will sustain an agency’s interpretation of a statute it is charged with administering unless the interpretation is unreasonable or inconsistent with the governing statute. See King v. United States, 545 F.2d 700, 706 (10th Cir.1976); Minnesota Power and Light Co., 782 F.2d at 170. The Secretary’s classification according to how the vehicle is equipped for use — its capacity — seems a more administratively feasible approach than a system which requires individual inquiry as to the actual use of each vehicle by each owner. We cannot find the legislative regulation to that effect beyond the power of the Secretary. The pintle hook revenue ruling seems a reasonable construction of the regulation, not inconsistent with the statute. Our affirmance of the Secretary’s interpretation is supported by recent congressional action. The Highway Revenue Act of 1982, Pub.L. No. 97-424, tit. V, 96 Stat. 2168, provides an express clarification of the “customary use” language: “(c) CLARIFICATION OF TRAILERS CUSTOMARILY USED IN CONNECTION WITH HIGHWAY MOTOR VEHICLES.— (1) Subsection (c) of section 4482 is amended by adding at the end thereof the following new paragraph: ‘(5) CUSTOMARY USE. — A semitrailer or trailer shall be treated as customarily used in connection with a highway motor vehicle if such vehicle is equipped to tow such semitrailer or trailer.’ ” Id., § 513(c), 96 Stat. 2179, codified at 26 U.S.C. § 4482(c)(5). The legislative history accompanying the 1982 Act emphasizes that the amendment is a clarification of congressional intent, not a modification. “The definition of taxable gross weight is not modified by the bill. However, the bill makes it clear that a semitrailer or trailer is to be treated as customarily used in connection with a highway motor vehicle if the vehicle is equipped to tow the semitrailer or trailer.” H.R.Rep. No. 945, 97th Cong., 2d Sess. 17-18 (1982). Subsequent legislation such as this “declaring the intent of an earlier statute is entitled to great weight in statutory construction.” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-81, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969) (footnote omitted). For the foregoing reasons we hold that the Secretary’s interpretation of customary use is not unreasonable or plainly inconsistent with §§ 4481 and 4482. AFFIRMED. . A pintle hook is a mechanism that can be attached to the back of a truck or other motor vehicle which will enable that vehicle to pull a trailer or other piece of equipment, provided the trailer or equipment has an eye that will attach to the hook. . Rev.Rul. 76-294 either modified or clarified the IRS’s earlier classification of utility trucks equipped with pintle hooks. See Rev.Rul. 57-547, 1957-2 C.B. 789. The district court allowed retroactive application of the 1976 ruling. No issue of retroactivity has been argued in this appeal. 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 James JONES, Appellant, v. BOARD OF POLICE COMMISSIONERS; Gerald McFadden; Terran Williams; Antoinette Lee; Lawrence Stevens; City of St. Louis; Robert J. Baer; John J. Frank; James E. Mosbacher; William H. Young; Arthur R. Coffey; Mayor Vincent C. Schoemel, Jr., Appellees. No. 87-1097. United States Court of Appeals, Eighth Circuit. Submitted Nov. 10, 1987. Decided April 1, 1988. Rehearing and Rehearing En Banc Denied May 20, 1988. Helmut Starr, St. Louis, Mo., for appellant. ' David Richard Bohm, St. Louis, Mo., for appellees. Before McMILLIAN, ARNOLD and BOWMAN, Circuit Judges. BOWMAN, Circuit Judge. James Jones, the plaintiff in this 42 U.S. C. § 1983 action for damages, appeals from a judgment entered by the District Court after a jury verdict for the defendants. The incident upon which the action is based occurred in O’Fallon Park in the city of St. Louis on April 13, 1982. There is a sharp dispute as to what transpired that evening. I. Jones testified that he stopped in the park to inspect an unusual noise coming from the rear of his vehicle. When shortly thereafter gunshots were fired by an unknown assailant and a bullet shattered the back windshield of his car, he jumped into his automobile and drove out of the park. A chase ensued. Only after leaving the park did he become aware that some of the vehicles following him were police cars. According to Jones, when the chase ended he stopped his automobile and stepped out, putting his hands in the air. While he was behind the door on the driver’s side of his vehicle, the police began firing at him, but none of the bullets struck either him or the car door. Two police officers, Gerald McFadden and Lawrence Stevens, approached Jones without weapons in their hands. They struck him, threw him to the ground, handcuffed him, and while he was lying there someone shot him in the groin. Defendants’ version of the incident is very different. The four police officers named as defendants were assigned to a special detail in O’Fallon Park. Defendants McFadden and Terran Williams were dressed in plain clothes and were operating an unmarked police car. Soon after entering the park, McFadden and Williams passed a black Cadillac driven by Jones. A black man was in the car with him. The Cadillac turned around and pulled up next to the police car, its occupants looking in at the two officers. When the Cadillac pulled away, they decided to follow it. After rounding a curve, the Cadillac parked near the front of a white Buick. The officers stopped their car and observed the scene with an infrared scope. Jones got out of the Cadillac and walked toward the Buick, holding either a rifle or a shotgun. Jones forced the passenger to get out of the Buick and walk toward the Cadillac. At this point, McFadden radioed that there was a robbery in progress. He and Williams drove closer to the scene. Using the door of the police car as a shield, McFadden ordered Jones to halt and identified himself as a police officer. Jones fired one shot in McFadden’s direction, then turned and fired at another police car that just had arrived. The occupants of this second car, Officers Stevens and Antoinette Lee, ducked as their windshield shattered. Jones jumped into the Cadillac and sped away. The police followed in hot pursuit, the Cadillac never leaving their sight except for two or three seconds as they rounded a corner. Both McFadden and Stevens fired shots at the Cadillac during the chase. The Cadillac’s flight ended at a police roadblock. It approached the roadblock at a high rate of speed, racing toward a police car driven by Officer Michael Johnson. Johnson and his partner leapt out of their car and Johnson fired three shots at the windshield of the Cadillac. The Cadillac pulled to the curb. Jones jumped out and started to run. The police fired a number of shots at him from the blockaded intersection. McFadden approached Jones on foot, advising him that he was a police officer and that Jones was under arrest. Jones struggled with McFadden in an attempt to escape, and McFadden struck him with his fist three times. Coming to McFadden’s aid, Stevens grabbed and struck Jones. Together the officers placed handcuffs on him. None of the officers fired any shots at Jones after he was handcuffed. After subduing Jones, the officers discovered that he had suffered a gunshot wound to the perineum. They did not find any weapons, nor did they find the passenger they had seen in the Cadillac. II. Jones was charged with robbery, was tried, and was acquitted. Thereafter, he filed this action against McFadden, Williams, Lee, and Stevens, and against the members of the Board of Police Commissioners of the City of St. Louis, alleging that defendants had deprived him of his liberty without due process of law. Specifically, Jones alleged that the police officers used excessive force in arresting him and that they shot him while he was handcuffed and lying on the ground. At trial, the District Court granted a directed verdict for the Board of Police Commissioners, and the jury returned a verdict for the remaining defendants. The District Court denied plaintiff’s motion for a new trial and entered judgment for all defendants. For reversal, Jones argues that the trial court erred by (1) denying his motion for new trial on the ground that the verdict is contrary to the clear weight of the evidence; (2) failing properly to instruct the jury concerning the officers’ liability for use of excessive force; and (3) denying his motion in limine to exclude evidence of his record as a convicted felon and allowing this evidence to be admitted for the purpose of impeaching his credibility as a witness. We affirm. III. Jones argues that the verdict is contrary to the clear weight of the evidence and that the District Court therefore abused its discretion by denying his motion for a new trial. “The denial of a motion for a new trial is within the sound discretion of the trial court, and its ruling will be reversed only upon a showing that the court abused its discretion.” Ryko Mfg. Co. v. Eden Serve., 823 F.2d 1215, 1221-22 (8th Cir.1987) (citations omitted), cert. denied, — U.S. —, 108 S.Ct. 751, 98 L.Ed. 2d 763 (1988). The evidence in this case is conflicting, and the jury chose to believe the police officers. Crediting their testimony, it is impossible to conclude that the verdict is against the weight of the evidence. There is substantial evidence that two of the officers saw Jones committing an apparent robbery, that he fled from the scene, that the officers used no more force than reasonably appeared necessary to apprehend and subdue him, and that they did not shoot him after he was handcuffed and lying on the ground. Accordingly, we cannot say that the District Court abused its discretion. IV. Jones contends that the District Court committed plain error by failing to instruct the jury that law enforcement officers may be liable under 42 U.S.C. § 1983 for using excessive force in completing an arrest. The challenged instruction provided: As stated before, the Fourteenth Amendment to the Federal Constitution provides that no state shall deprive any person of his liberty without due process of law. The plaintiff in this case, in common with the defendants and all other persons living under the protection of our Constitution, had the legal right at all times not to be deprived, without due process of law, of any liberty secured to him or protected by the Constitution or laws of the United States. To be deprived of liberty “without due process of law” means to be deprived of liberty without authority of the law. Before the jury can determine, then, whether or not the plaintiff was deprived by the defendants of any of his liberty under the Federal Constitution “without due process of law,” the jury must first determine, from a preponderance of the evidence in the case, whether the defendants knowingly did the acts alleged and, if so, whether, under the circumstances shown by the evidence in the case, the defendants acted within or without the bounds of their lawful authority under state law. For if the defendants acted within the limits of their lawful authority under state law, then the defendants could not have deprived the plaintiff of any liberty “without due process of law,” since the Court finds and instructs you that the state law applicable in this case meets the requirements of the Federal Constitution. At all times the plaintiff in this case had the legal right not to be deprived of any liberty protected by the Constitution or laws of the United States, except by due process of law. To be deprived of liberty “without due process of law” means to be deprived of liberty without authority of law. In this respect, this plaintiff has the same legal rights as have the defendants and as have all people living in the United States. Jury Instruction No. 11. Jones argues that this instruction permitted the jury to make an unguided determination regarding the validity of defendants’ acts under state law. When a particular jury instruction is assigned as error, the reviewing court must determine whether the instructions, taken as a whole and viewed in light of the evidence and the applicable law, fairly and adequately submitted the issues in the case to the jury. Swift v. R.H. Macy’s & Co., 780 F.2d 1358, 1360-61 (8th Cir.1985). Because Jones’s trial counsel made no objection to instruction 11, our review must be limited to determining whether the error, if any, is plain error in the sense that it has produced a miscarriage of justice. See Fed.R.Civ.P. 51; Rogers v. Rulo, 712 F.2d 363, 368 (8th Cir.1983), cert. denied, 464 U.S. 1046, 104 S.Ct. 719, 79 L.Ed.2d 181 (1984). The plain error exception is quite narrow and is confined to the exceptional case where the error seriously affected the fairness or the integrity of the trial. Rogers, 712 F.2d at 368. Reviewing the instructions as a whole, in light of the evidence and the applicable law, we cannot say that instruction 11 constituted plain error. Instruction 10, as well as 11, informed the jury that Jones had a right not to be deprived of liberty without due process of law. Using the expressions “unprovoked,” “without just cause or excuse,” “maliciously,” “wantonly,” and “oppressively,” instruction 17A correctly described the type of conduct that constitutes excessive force. Although instruction 11 standing alone would not give the jury sufficient guidance, we are satisfied, in view of the other instructions, that the rigorous requirements for reversal under the plain error standard of review have not been met in this case. V. Jones argues that the District Court abused its discretion by denying his motion in limine to exclude evidence of his convictions for robbery, rape, and forcible sodomy. Plaintiff argues that the District Court had a duty under Federal Rules of Evidence 403 and 609 to balance the probative value of this evidence against the potential for prejudice, and that the absence of a hearing on the motion in limine or any record of the court’s balancing constitutes reversible error. Jones similarly asserts error with regard to the admission, during his cross-examination, of all his prior convictions, and he particularly emphasizes his view that it was unfair to allow the jury to learn of his rape and forcible sodomy convictions. Federal Rule of Evidence Rule 609(a) provides: For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment. Rule 609(a) modifies the common law, which freely allowed the use of prior felonies, without regard to the nature of the particular offense, to impeach a witness’s credibility. See Fed.R.Evid. 609 advisory committee’s note. Subsection (1) requires the trial judge to balance the probative value of the evidence of prior felony convictions against the prejudicial effect “to the defendant.” Under subsection (2), a conviction (felony or misdemeanor) involving dishonesty or false statement is, subject to the ten-year time limit imposed by Rule 609(b), always admissible; there is no balancing to be done. With regard to the admissibility of Jones’s convictions, Rule 609(a)(1) is clearly not applicable in the present case. Assuming arguendo that the Rule does apply to civil cases — and we are not convinced that it does — it is not helpful to Jones as he is the plaintiff in this case. Although at least one other circuit has extended the balancing test of Rule 609(a)(1) to plaintiffs in civil cases, see Petty v. Ideco, 761 F.2d 1146, 1152 (5th Cir.1985), we do not believe that this decision can be reconciled with the unambiguous wording of Rule 609(a)(1). The plain language of the Rule simply cannot be read to mean anything other than that the Rule applies only when to admit evidence of prior convictions for impeachment purposes might unduly prejudice “the defendant.” Thus, a plaintiff has no standing to invoke Rule 609(a)(1), even if the Rule was intended to apply in civil cases, which we seriously doubt. We turn to Federal Rule of Evidence 403, which provides: 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. Rule 403 is a “rule of exclusion that cuts across the rules of evidence.” Shows v. M/V Red Eagle, 695 F.2d 114, 118 (5th Cir.1983) (citation omitted). In keeping with that broad view of Rule 403, we have held that Rule 609 does not preclude the application of Rule 403’s balancing test to evidence of prior convictions offered for impeachment purposes. See, e.g., Radtke v. Cessna Aircraft Co., 707 F.2d 999, 1000 (8th Cir.1983); Czajka v. Hickman, 703 F.2d 317, 319 (8th Cir.1983). Contra Campbell v. Greer, 831 F.2d 700, 707-08 (7th Cir.1987). In this Circuit, it thus is possible, at least in theory, that evidence of prior convictions admissible under Rule 609 without any balancing test could be excluded under the balancing test of Rule 403. Under Rule 403, the District Court was required to weigh the probative value of the evidence of Jones’s criminal record against the danger of unfair prejudice, but was empowered to exclude this evidence only if the court decided that its probative value was substantially outweighed by the danger of unfair prejudice. A trial court’s ruling as to the admissibility of evidence will not be disturbed unless there is a clear and prejudicial abuse of discretion. See Radtke, 707 F.2d at 1001 (citing E.I. du Pont de Nemours & Co, v. Berkley & Co., 620 F.2d 1247, 1272 (8th Cir.1980)). We find no such abuse of discretion in this case. While it is part of the conventional wisdom to regard crimes such as robbery, rape, and forcible sodomy as being less probative of a witness’s veracity than are offenses involving crimen falsi, a number of courts have approved the admission of evidence of such crimes for purposes of assessing credibility. See, e.g., Campbell, 831 F.2d at 707-08; Leno v. Gaughan, 664 F.2d 314, 315 (1st Cir.1981). Cases such as the one before us, in which the jury had to choose between conflicting versions of the same occurrence, turn on the jury’s credibility determinations. The evidence of. Jones’s prior convictions had probative value to an assessment of his credibility as a witness, and we cannot say, that he was unfairly prejudiced by the admission of this evidence. While it would have been preferable for the trial court to have made a record of its balancing of the probative value of Jones’s convictions against the danger of unfair prejudice, its failure to do so is harmless when “the substantial rights of the parties” are not affected. See Fed.R. Civ.P. 61. Cf Czajka, 703 F.2d at 319. By denying Jones’s motion in limine to exclude the evidence of his convictions, the Court necessarily responded to his claims of prejudice. We are satisfied that the Court’s failure to make a record of its balancing of probative value against danger of unfair prejudice did not affect Jones’s substantial rights. Jones raises other issues. We have carefully considered them and find them to be without merit. Accordingly, the judgment of the District Court is affirmed. . The Honorable William L. Hungate, United States District Judge for the Eastern District of Missouri. . It is undisputed that Jones suffered a single gunshot wound to the perineum and that the edges of the wound were burned. The perineum is the region between the thighs, bounded in the male by the scrotum and the anus. Dor-land’s Medical Dictionary 529-30 (23d ed. 1982). The police deny that anyone shot Jones while he was lying on the ground. There was uncontra-dicted testimony that it was unlikely that Jones’s wound occurred as he claimed, since from that extremely close range the ammunition used by the police would have caused greater injury than Jones actually suffered. The physician who treated Jones’s wound testified that the rim of burn around the wound was not excessive, that he did not recall if the burned skin showed any sign of gunpowder, and that he could not speculate as to the distance from which the bullet had been fired. . This Court has questioned whether we have the authority to overturn as an abuse of discretion a trial court’s denial of a motion for a new trial on the ground that the jury’s verdict is against the weight of the evidence. See, e.g., Chohlis v. Cessna Aircraft Co., 760 F.2d 901, 906 (8th Cir.1985); SCNO Barge Lines, Inc. v. Anderson Clayton & Co., 745 F.2d 1188, 1194 (8th Cir.1984). We need not address this issue as we find no abuse of discretion in this case. . There is considerable difference of opinion as to whether Rule 609(a)(1) is applicable in civil cases. Compare Campbell v. Greer, 831 F.2d 700, 703-05 (7th Cir.1987) (Rule 609(a)(l)’s balancing test applies only when the prosecutor in a criminal case is trying to impeach the defendant) with Petty v. Ideco, 761 F.2d 1146, 1152 (5th Cir.1985) (Rule 609(a)(l)’s balancing test applies in civil cases). . In Campbell, supra note 5, 831 F.2d 700, the Seventh Circuit held that, with regard to Rule 609(a), the “only prejudicial effect that the judge is to consider in ruling on the admissibility of a prior conviction is the prejudicial effect on the defendant in a criminal trial; as to all other witnesses, prior convictions are admissible for purposes of impeachment without any balancing test." Id. at 704. Other courts have similarly held. See Linskey v. Hecker, 753 F.2d 199, 201 (1st Cir.1985). See also United States v. Martin, 562 F.2d 673, 680-81 n. 16 (D.C.Cir.1977) (dictum). While we do not need to decide the issue, we find the Seventh Circuit’s reasoning to be very persuasive. .Evidence of prior convictions admissible after balancing under Rule 609(a)(1) would be admissible a fortiori under Rule 403 because 609(a)(1) permits admission of the evidence only when its probative value outweighs its prejudicial effect to the defendant, whereas 403 requires admission of the evidence unless its probative value is substantially outweighed by the danger of unfair prejudice. 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_majvotes	3	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes. Kobert Paul PHILIPPS, Appellant, v. UNITED STATES of America, Appellee. No. 71-1513. United States Court of Appeals, Eighth Circuit. Submitted March 17, 1972. Decided April 12, 1972. Robert Paul Philipps, pro se. Harold O. Bullis, U. S. Atty., Fargo, N. D., for appellee. Before GIBSON, HEANEY and ROSS, Circuit Judges. PER CURIAM. Robert Paul Philipps was convicted of contempt of court for knowingly disobeying and resisting the lawful process, order and command of the court. He was fined $500.00 and given a suspended sentence of six months in custody. Phil-ipps contends that the conviction and sentence were unlawful and in violation of his constitutional rights. Notwithstanding Philipps’ failure to comply with the rules of this Court in filing his appeal, we have examined the record in an effort to ascertain if any error was committed by the trial court. Our review convinces us that the evidence was sufficient to sustain the conviction and that the trial court committed no error except that discussed below. The trial court erred in imposing sentence. 18 U.S.C. § 401 provides that “[a] court of the United States shall have power to punish by fine or imprisonment, at its discretion, * * * contempt of its authority * * (Emphasis added.) This section has been construed to prohibit the imposition of both imprisonment and fine. Board of Education v. York, 429 F.2d 66, 70 (10th Cir. 1970); United States v. Temple, 372 F.2d 795 (4th Cir. 1966), cert. denied, 386 U.S. 961, 87 S.Ct. 1024, 18 L.Ed.2d 110 (1967); United States v. Schiffer, 351 F.2d 91, 96 (6th Cir. 1965), cert. denied, 384 U.S. 1003, 86 S.Ct. 1914, 16 L.Ed.2d 1017 (1966), rehearing denied, 385 U.S. 890, 87 S.Ct. 12, 17 L.Ed.2d 121 (1967); In re Osborne, 344 F.2d 611, 616 (9th Cir. 1965). The case must, therefore, be remanded. The question arises whether, on remand, Philipps would be entitled to a jury trial under Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966). In Cheff, the Supreme Court ruled that “sentences exceeding six months for criminal contempt may not be imposed by federal courts absent a jury trial or waiver thereof.” 384 U.S. at 380, 86 S.Ct. at 1526. If there were any possibility that Philipps might be required, at some future time, to serve the six months’ sentence in addition to paying the $500.00 fine, we have little doubt that a jury trial on remand would be required under Cheff, Bloom v. State of Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), and Frank v. United States, 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969). However, the commitment in this ease reads: “ * * -x- [T]he defendant is hereby committed to the custody of the Attorney General * * * for imprisonment for a period of Six (6) months, commencing at Twelve o’clock noon of this date, said sentence is suspended and defendant is fined Five Hundred Dollars ($500.00), payable to the United States of America, in installments of not less than $100.00 a month * * While the wording of this sentence is uncommon and somewhat ambiguous, we construe it as nullifying, for all practical effect, the six months’ sentence. Thus, for Cheff purposes, this offense was treated as petty by the trial court, cf., Frank v. United States, supra, and Phil-ipps is not entitled to a jury trial. The case is remanded to the District Court with instructions to modify the sentence in accordance with 18 U.S.C. § 401 and this opinion, by striking either the $500.00 fine or the six months’ suspended sentence. . Following the decision in Bloom v. State of Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), the Supreme Court of Illinois, on remand, granted a new trial. This result appears to be inconsistent with United States v. R. L. Polk and Company, 438 F.2d 377 (6th Cir. 1971). We are persuaded that the Illinois Supreme Court’s action more properly reflects the intentions of the Supreme Court, particularly as expressed in Bloom and Frank v. United States, 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969). Question: What is the number of judges who voted in favor of the disposition favored by the majority? Answer:
songer_usc1sect	2314	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". Wayne Hunter CARLTON, Appellant, v. UNITED STATES of America, Appellee. No. 18837. United States Court of Appeals Eighth Circuit. March 28, 1968. Edward L. Garnett, of Barrs & Gar-nett, Tampa, Fla., for appellant. William F. Sherman, Asst. U. S. Atty., Little Rock, Ark., for appellee; W. H. McClellan, U. S. Atty., Little Rock, Ark., on the brief. Before BLACKMUN, GIBSON and HEANEY, Circuit Judges. HEANEY, Circuit Judge. Wayne Hunter Carlton appeals from a conviction of transporting or causing to be transported in interstate commerce, a falsely made and forged check from Little Rock, Arkansas, to Atlanta, Georgia, on November 14, 1964, in violation of 18 U.S.C. § 2314 (1964 ed.). He was sentenced to four years. The evidence presented at the trial was, in our view, sufficient to sustain the verdict and was substantially as follows: The defendant negotiated a check in a Little Rock, Arkansas, store on November 14, 1964. It purported to be a check of the American Oil Company, payable to “Mr. T. F. Butler” and drawn on an Atlanta, Georgia, bank. The defendant purported to be the payee, stating that the check was his pay check. In fact, the oil company had no account with the drawee bank and the signature of the drawer was a forgery. The defendant was identified, at trial, by the owner of the store who approved the check and by the salesman who waited on him. On January 28, 1965, the police of Monroe, Louisiana, were informed that the defendant, who was wanted as a Florida parole violator, was registered at a local motel with his wife and a Mr. Freeman and a female companion. The two couples occupied adjoining rooms, 711 and 713; both of which were registered in the name of H. Hunter. Assistant Police Chief Johnson went to the motel with another officer. He knocked on the door of room 713, and a female voice invited him in. Upon entering the room, he saw two women standing in 713, and saw the defendant enter 713 through the open door to the adjoining room, 711. He also noted some blank checks in an attache case in 711. These checks were plainly visible, however, he did not examine them closely at that time. He placed the defendant under arrest, and took him to police headquarters. There, the defendant signed a consent to search 713, and Freeman signed a consent to search 711. About an hour and a half after the arrest, the Assistant Police Chief returned to the motel and searched both rooms. The clothing of the defendant and his wife was located solely in 713, and Freeman’s in 711. However, a revolver and one other article of personal property belonging to the defendant and his wife were found in 711. He found and seized the blank checks which he had observed on his earlier visit and which were still in 711. The prosecution called the Assistant Police Chief as a witness, and it was he who testified as to what took place in Monroe. The defendant objected to the officer’s testimony in its entirety on the grounds that it was based on observations made during an illegal search and was too remote to be relevant. The defendant simultaneously objected to the introduction of the evidence seized in the search (the blank check) on the grounds that the search was not incidental to a lawful arrest and on further grounds that the defendant had consented to the search of 713 but not 711. The trial court ruled that if, in fact, Freeman was the sole occupant of 711, then the consent that he signed gave the police proper authority to search that room. In the alternative, the court ruled that if the defendant and Freeman were co-occupants of 711, then the defendant’s consent to search 713, which he also occupied, extended to 711. We believe that the trial court properly determined the testimony of Officer Johnson, and the exhibits introduced through him, to be relevant. “ * * * Only with reluctance will the Court of Appeals substitute its judgment for that of the trial judge * * . The trial court’s determination of legal relevancy must be considered an act of discretion not to be disturbed absent a clear showing of abuse. * * ” Cotton v. United States, 361 F.2d 673, 676 (8th Cir. 1966). The officer’s testimony had “enough rational connection with the issue to be considered a factor contributing to an answer.” United States v. Pugliese, 153 F.2d 497, 500 (2d Cir. 1945). It is not unreasonable to infer that the defendant’s subsequent possession of identical checks was some indication that he may have passed the check for which he was charged. As in most cases, this conviction resulted “from the cumulation of bits of proof which, taken singly, would not be enough in the mind of a fair-minded person,” but when taken together, justify the conviction. Ibid. Halfen v. United States, 321 F.2d 556 (5th Cir. 1963), cert. denied, 376 U.S. 934, 84 S.Ct. 704, 11 L.Ed.2d 653 (1964), is closely in point. There, the Court upheld a conviction in which the government had introduced evidence that subsequent to the violation the defendant was charged with, he had passed or attempted to pass forged money orders in the same series. Notwithstanding the fact that the latter instances were crimes in and of themselves, the Court permitted the testimony. We also believe that the trial court properly refused to suppress the evidence seized in the search. In reaching this conclusion, we do not determine the validity of the defendant’s consent to the search. The law is clear that the evidence seized, pursuant to the search as authorized by Freeman, can be used against the defendant. This is true whether Freeman and his companion were the sole occupants of 711 or were joint occupants of it with the defendant and his wife. Drummond v. United States, 350 F.2d 983 (8th Cir. 1965), cert. denied, 384 U.S. 944, 86 S.Ct. 1469, 16 L.Ed.2d 542 (1966); Reeves v. Warden, Maryland Penitentiary, 346 F.2d 915 (4th Cir. 1965); United States v. Sferas, 210 F.2d 69 (7th Cir.), cert. denied, 347 U.S. 935, 74 S.Ct. 630,, 98 L.Ed. 1086 (1954); Driskill v. United States, 281 F. 146 (9th Cir. 1922); Dokes v. State, 241 Ark. 720, 409 S.W.2d 827, cert. denied, 389 U.S. 901, 88 S.Ct. 212, 19 L.Ed.2d 218 (1967); People v. Silva, 140 Cal.App.2d 791, 295 P.2d 942 (1956); People v. Walker, 34 Ill.2d 23, 213 N.E.2d 552 (1966); State v. Stuart, 415 S.W.2d 766 (Mo.Sup.1967); Van Wyck v. State, 56 Okl.Cr. 241, 37 P.2d 321 (1934); State v. Cairo, 74 R.I. 377, 66 A.2d 841 (1948); Shafer v. State, 219 Tenn. 416, 381 S.W.2d 254 (1964) (semble). The defendant also objects to the introduction of evidence seized in the search of 711 on the grounds that the consents signed by him and Freeman were invalid because: (1) there was no evidence that either consent was voluntary or that either party was advised of his right to refuse consent; (2) that the consents did not enumerate the items to be seized with the specificity that would have been required had the police sought a search warrant; and (3) that the evidence seized (the blank check) was “mere evidence” and thus not subject to seizure. These grounds were not explicitly or implicitly asserted at trial and cannot be asserted for the first time on appeal : “ * * * For the search and admissibility of the product of the search to be challenged on appeal, that challenge must be made in the first instance in the trial court. ‘Fairness to that court and to counsel and to a reviewing court demands this. So do “fair procedural requirements” ’. Robinson v. United States, 327 F.2d 618, 623 (8 Cir. 1964); Gendron v. United States, 295 F.2d 897 (8 Cir. 1961). * * *” One 1961 Lincoln Continental Sedan v. United States, 360 F.2d 467 (8th Cir. 1966). Affirmed. . There can he no question that the sufficient intent was proved where, as in this case, the check was drawn on a bank in another state and thus would, of necessity, have to travel in interstate commerce. Hall v. United States, 372 F.2d 603 (8th Cir. 1967). . Officer Johnson had arrested Freeman in a department store parking lot immediately before going to the motel. The grounds for Freeman’s arrest were vagrancy and suspicion of auto theft. When arresting the defendant, Officer Johnson asked Mrs. Oarlton and Freeman’s female companion if they wished to accompany him to Headquarters. They accepted his invitation and were arrested for vagrancy upon arriving at Headquarters. . The defendant signed the following mimeographed consent form (Italicized portions indicate handwriting) : “This is to certify that I, Wayne H. Oarlton, do hereby, and by these presents, consent that my premises located at Municipal Number Rm. 713 Holliday Inn, Monroe, Louisiana may be examined and searched by you, or any of your duly qualified and acting Deputies, and I do further waive the execution, presentation or service upon me of any warrant for search of the said premises, and you are further hereby authorized to seize, without further authority, any property found on said premises which may have been the subject of a theft, or otherwise involved in a felony.” Freeman’s consent was not contained in the record of this case. The testimony indicated that it was identical in form to the one signed by the defendant. . The defendant was not present at the search of room 711, and did not expressly object to its search until trial. Compare, Tompkins v. Superior Court, 59 Cal.2d 65, 27 Cal.Rptr. 889, 378 P.2d 113 (1963); Dorsey v. State, 2 Md.App. 40, 232 A.2d 900 (1967). . See generally, Hall & Kamisar 1967 SUPPLEMENT to the Second Edition of MODERN CRIMINAL PROCEDURE, and BASIC CRIMINAL PROCEDURE, p. 8-9. . The defendant contends that the blank cheek is “mere evidence” as distinguished from an instrumentality and the Fourth Amendment prohibits the seizure of mere evidence. He cites: Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927); Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921); Takahashi v. United States, 143 F.2d 118 (9th Cir. 1944). First, we note that the defendant and Freeman could and did sign a consent broad enough on its face to encompass the seizure of mere evidence. Those consents would not be implicitly limited by the cases that the defendant cites, since the Supreme Court has overruled them. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (advance sheet). Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number. Answer:
songer_usc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. CLIFT et al. v. UNITED STATES. Circuit Court of Appeals, Sixth Circuit. November 18, 1927. No. 4980. I. Criminal law <§=1168(1) — Judgment will not be reversed because one charge is not supported by evidence, if another is, and sentence is not greater than might be imposed on that alone. Where defendants were convicted generally under an indictment charging conspiracy to commit two different offenses, as to one of which there was sufficient evidence, and the other not, the judgment will not be reversed, if the sentence was not greater than might be imposed on either separate charge. 2. Criminal Law <§=>388 — Test of alcoholic content by “ebuliiometer” held admissible. On trial on charge of conspiracy to manufacture, possess, and sell intoxicating liquor, test of alcoholic contents by means of ebuliiometer, held admissible; an “ebuliiometer” being apparatus by which, through obtaining boiling temperature of -water and of liquid tested, and thereby the specific gravities, the alcoholic percentage could be ascertained. In Error to the District Court of the United States for the Eastern District of Tennessee; Xenophon Hicks, Judge. Bruce Clift and Gray Clift were convicted under an indictment charging conspiracy to manufacture, possess, and sell intoxicating liquor, and they bring error. Affirmed. Fred C. Houk, of Knoxville, Tenn., and O. L. McMahon, of Morristown, Tenn., for plaintiffs in error. Geo. C. Taylor, U. S. Atty., of Knoxville, Tenn. Before DENISON and MOORMAN, Circuit Judges, and RAYMOND, District Judge. DENISON, Circuit Judge. The two plaintiffs in error, father and son, were convicted under an indictment which in general terms charged a conspiracy to manufacture, possess, and sell intoxicating liquor. Interpreting the general terms of tho indictment hy the overt acts alleged and by tho proofs, it is clear that the intention was to prosecute the defendants for two separable plans .to violate the law, although the two might he said in a vague way to be branches of orfe general conspiracy. It is the theory of the prosecution that the defendants were guilty of forming and executing a scheme to manu-' facture and sell at retail moonshine whisky, and a scheme to make and sell at retail home brew. From the general course of tho trial it is fairly evident that the jury intended to convict the defendants, of both of these somewhat related transactions. So far as concerns the whisky) we are 'satisfied that the evidence was not sufficient to go to the jury. While there was proof tending to show that the manufacture was at least aided and abetted by the father, and that the son, a minor, made some retail sales, there is nothing substantially supporting the inference that the selling was connected with the manufacture, or that the father had to do with the sales, or that the son had to do with the manufacture. Hence there was no proof of this part of the conspiracy. Including permissible inferences, there was sufficient proof to support a conviction of carrying on a common plan to make and sell home brew. In this branch of the case the only point requiring comment is the defendants’ claim that there was no proof of the necessary alcoholic content of the beverage sold. Even without the aid of the test to be mentioned, we are not sure that the evidence would be deficient in this respect. It was shown that the fermentation of this liquid was finished, and that the resulting scum had been skimmed off, and the liquid bottled. It is familiar knowledge that in the regular manufacture of beer the fermentation develops a substantial alcoholic percentage, and that in the now permitted making of nonalcoholic beer, it is necessary to go through a distilling operation in order to get rid of the inevitable alcohol in excess of one-half of 1 per cent. If there were doubt as to whether a liquid manufactured by the process in this record described, and surreptitiously sold as home brew at a relatively high price, contained more than one-half of 1 per cent, of alcohol, we are not sure that it could rightly be called a reasonable doubt. However that might be, the prohibition officer here describes his test, which indicated, he says, between 3 and 4 per cent, of alcohol. He made the test by using the instrument called the “ebulliometer.” This is merely a convenient vessel for boiling a liquid. By using it and a specially graduated thermometer, he obtained the boiling temperature, first of water, and then, under the same conditions, of the liquid being tested. The differences in the boiling temperatures, indicating differences in specific gravity, were then translated into percentage of alcohol. This was done by reference to a table or chart purporting merely to state and formulate the scientific knowledge on this subject. We understand the evidence to be that this chart, along with the instrument and the thermometer, were furnished to the witness by the prohibition department and are in general use throughout the country by the representatives of the department for such tests — in other words, that they constitute a commonly recognized standard. In the absence of any challenge as to the accuracy of the standard, we think it may be accepted as some substantial proof that the scientific conclusions therein stated are correct. It seems to be equivalent, so far as it goes, to a standard scientific text-book. We have, then, a ease where a verdict is in some aspects of the prosecution supported by sufficient evidence and in other aspects is not. The situation is legally the’ same as if there had been two counts, a general sentence not greater than permitted on either count, and a finding by the appellate court that one count was bad. The sentence would not ordinarily be reversed. Claassen v. United States, 142 U. S. 140, 146, 12 S. Ct. 169, 35 L. Ed. 966. Judgment affirmed. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_applfrom	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). Grace D. GRAHAM, Plaintiff-Appellant, v. Jaime Luis COLON, Defendant-Appellee. No. 16483. United States Court of Appeals Seventh Circuit. April 3, 1968. Rehearing Denied April 26, 1968. Cummings, Circuit Judge, dissented. Louis L. Anderson, South Bend, Ind., for appellant. Roland Obenchain, Jr., Frederick Link, South Bend, Ind., for appellee. Before HASTINGS, Chief Judge, ENOCH, Senior Circuit Judge, and CUMMINGS, Circuit Judge. ENOCH, Senior Circuit Judge. This cause arose out of an automobile accident. Plaintiff, Grace D. Graham, brought suit to recover damages from the defendant, Jaime Luis Colon, for injuries sustained by her because of his alleged negligence in the operation of his automobile in which the plaintiff was riding at the time. Plaintiff appeals from the judgment for defendant entered on the general verdict of the jury. It is plaintiff’s position that the Trial Judge erred in giving and refusing certain instructions. Defendant, himself a student, testified that he had driven other students from Cincinnati to Chicago on several occasions. He described one incident when he had three passengers. On arrival at Chicago be found his gasoline had cost a little more than $12. He had divided that with the other three students by accepting contributions of $3 from each. On another occasion he had driven only one student and had accepted $3 from her. He testified further that he had told other students that when he went to Chicago on certain weekends, other students might travel with him. He had a conversation, he said, with the plaintiff about two weeks before March 5, 1965, the date of the accident, in the course of which she asked whether he could take her to Chicago and what he would charge her. He had told her that on previous trips the several riders had shared the gasoline cost with him and that this had come to about $3 per person, but that if fewer riders came, he would say, “Just give me three dollars, so that you don’t have the burden of the rest.” He stated that on all these trips he was going to Chicago whether or not he had other riders with him. The plaintiff testified that she telephoned the defendant about two or two and one-half weeks before March 5, 1965, asked him if he were going to Chicago and how much he would charge, that he had said “three dollars” to which she replied “fine” and that she had given him the $3 when she boarded his automobile on March 5,1965. Plaintiff contends that these facts show an express contract for transportation between plaintiff and defendant for which plaintiff paid a cash consideration which rendered inapplicable the Indiana Statute in effect on the day of the accident, March 5, 1965, which provided: The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest, while being transported without payment therefor, * * * [absent wanton or wilful misconduct] Acts 1937, Ch. 259, § 1, p. 1229, Burns’ Indiana Statutes Annotated 47-1021. The Trial Judge instructed the jury: In order for you to find that plaintiff was a paying passenger in defendant’s automobile, you must find that the transportation of plaintiff by defendant was motivated primarily by business reasons, as distinguished from hospitable, friendly, or other social motives. In other words, plaintiff’s presence must have in some way directly compensated defendant in a substantial and material way, as opposed to providing a social benefit or incidentally contributing to the expenses of the trip. Incidental benefits, even the payment of money by plaintiff to defendant, do not constitute plaintiff a fare-paying passenger if her presence was due primarily to hospitable, friendly or other social motives, rather than business ones. Expectation of a material gain rather than social companionship must have motivated the defendant in inviting or permitting the plaintiff to ride. The plaintiff charges that it was error for the Court to refuse to instruct the jury that as a matter of law, the plaintiff was a paying passenger outside the scope of the aforesaid Indiana guest statute. The defendant, on the other hand, argued that only where the monetary consideration paid was the sole motivation for the transportation did such monetary consideration remove the occupant from the operation of the Indiana guest statute. The plaintiff accordingly feels that the Court improperly admitted evidence of subjective intent and motive and relative costs of transportation. Plaintiff’s position is that a bad bargain is still a bargain and that adequacy of consideration is open to question only where there is an issue of fraud, which is admittedly lacking here. Plaintiff draws analogies from cases in other jurisdictions dealing with statutes similar to that of Indiana to the effect that payment under an express contract (as distinguished from an implied contract) removes the passenger from operation of a guest act. Thus plaintiff argues that it was in the case of an implied contract for transportation, that an Ohio Court in Burrow v. Porterfield, 1960, 171 Ohio St. 28, 168 N.E.2d 137, 141, followed the rule that the guest statute applied unless the payment for transportation in money or other property is substantially commensurate with the cost to the driver. The Court there (p. 142) quoted from Duncan v. Hutchinson, 1942, 139 Ohio St. 185, 189, 39 N.E.2d 140, 142, to the effect that payment of expense money which was not substantially commensurate with cost would not take the passenger out of the guest status unless payment for transportation as such was actually agreed upon. The Court said in Burrow that it would be unfair to hold the motorist to liability for injuries to his guest due to the hazards of transportation unless he was compensated for such transportation in a manner substantially commensurate with the cost and hazard of the undertaking. The plaintiff contends that the evidence here unequivocally shows payment for transportation as such was actually agreed on. We disagree. The defendant invites our attention to Lawson v. Cole, 1953, 124 Ind.App. 89, 96, 115 N.E.2d 134, 138, where there was an express agreement that the appellee would pay for gasoline, oil and any food on the trip if the appellant furnished his automobile. The appellee did provide the initial tank of gasoline and the only meal the parties had prior to the accident. The Indiana Appellate Court said that if the trip were primarily social, incidental benefits though monetary would not exclude the guest relationship, and that the Appellate Court must determine whether the evidence led inescapably to the conclusion that social companionship rather than material gain motivated the appellant in permitting the appellee to ride with him. The Court went on to say that the jury could properly have found that the relationship was of a business nature rather than social, that the trip was undertaken by virtue of an agreement, both appellant and appellee saving money by virtue of the arrangement. Both parties cite Liberty Mutual Insurance Co. v. Stitzle, 1942, 220 Ind. 180, 41 N.E.2d 133, and Allison v. Ely, 1960, 241 Ind. 248, 170 N.E.2d 371. In the Liberty Mutual case, the occupants were traveling to Chicago to select furnishings to be sold to the defendant by the company which employed some of the other occupants of the vehicle. The Indiana Supreme Court held that the words in the Statute “without payment for such transportation” implied some valuable consideration for the ride, that the presence of the injured party must have directly compensated the operator in a substantial and material way; that expectation of material gain rather than social companionship must have motivated the operator in permitting the other person to ride. The plaintiff argues that the use of the word “implied” indicates that an express contract, as plaintiff contends was made here, would have removed the injured person from operation of the statute. We think that is a strained interpretation. In a Washington case, cited by plaintiff, Parrish v. Ash, 1949, 32 Wash.2d 637, 203 P.2d 330, the jury were permitted to decide whether a 100 payment by the plaintiff to the defendant on the day prior to the accident was made and accepted for transportation on a 7-mile stretch of road as such or whether it was paid for a quantity of stale bread which was in the automobile and which was intended for chicken feed. There was a conflict in the evidence as to whether the rider paid the 100 specifically for the ride and then asked to buy one loaf of the bread, paying an additional 50 therefor or whether she paid the initial 100 for two loaves of the bread, saying nothing about the transportation. The rider claimed that on the day of the accident, she would have paid another 100 at the end of the ride. These parties who lived at farms close to each other were going to and from a place of mutual employment. Evidence was offered of a customary payment of such small sums for transportation in the community. The jury found for the plaintiff and the Court said that there was sufficient evidence to sustain a jury finding that the sum paid was for the transportation as such and operated to remove the plaintiff from the scope of the guest act. The plaintiff contends that the District Court here erroneously relied on Allison v. Ely, which held that the motives and purposes actuating the transaction were of prime importance. Plaintiff seeks to distinguish Allison in that regard because the Court in Allison stated that there was no express contract as to the payment of money for gasoline and oil or any other expenses of the trip “which would make appellee-Ely a fare-paying passenger and the trip one primarily for business purposes.” In that case there was an arrangement for transportation of a number of college students including payment toward purchase of gasoline for the trip. The Court there said that the arrangement was made solely to get the students home for Thanksgiving more conveniently and expeditiously, that under the decisions of the Indiana Courts such an arrangement could not be said to be motivated by business reasons; that it was purely social and no material gain was anticipated, even though there might have been some cash differential accruing. Plaintiff interprets the statement above as indicating that a specific sum contributed in advance instead of payment along the way for such gasoline etc., as was needed would have converted Ely into a fare-paying passenger and the trip itself one for primarily business purposes. We do not agree. In effect we have a similar case here. Plaintiff contributed toward the gasoline costs of a trip purely social in nature despite the fact that she paid her contribution in advance as she entered the automobile. She testified that she had it in her hand because she had a bad habit of forgetting things and she handed it to the defendant and told him that she didn’t want to forget to give it to him. The Court in Allison held that if the trip were primarily social or for pleasure as distinguished from business, incidental benefits, even the payment of money, did not exclude the guest relationship. The Court then discussed the motives which actuated the parties such as the saving of time, avoidance of inconvenience and expense of available public transportation. Similar motives were obviously at work here. In Knuckles v. Elliott, Ind.App.1967, 227 N.E.2d 179, there was an arrangement for appellant to provide the automobile and appellee to pay the expenses. The Court there said that to exclude such cases from the guest statute, consideration must be given in excess of expenses incidental to the trip, that there must be a clear intent on the part of the owner of the vehicle to receive something more than mere reimbursement for such expenses as are incurred. As in Knuckles, little or no economic benefit accrued to defendant here. The record shows that defendant planned to go from Cincinnati to Chicago and that he would have gone alone. He took along with him the plaintiff who wanted to visit Chicago, having told her his guests generally contributed toward gas and oil in a sum which was usually $3. There was no evidence of any business motive and the financial aspects of the trip were incidental. The Court also said in Knuckles: Whether or not the kind of payment here alleged was such as was intended by the Legislature in § 47-1021, where it is said, “while being transported without payment therefor,” is a matter of law to be decided by the court. * * * citing inter alia Allison v. Ely, 1960, 241 Ind. 248, 170 N.E.2d 371. The District Judge here submitted to the jury, with appropriate instructions, the issue of motivation which involved a question of fact. In effect, however, the Trial Judge did rule on the legal issue when he refused to instruct the jury that plaintiff was a paying passenger as a matter of law and when he later denied a motion for new trial. On this record, we would be somewhat loathe to hold as not clearly erroneous any contrary ruling by the Trial Judge that as a matter of law the payment here was such as intended by the legislature to take the appellant out of the scope of the guest statute. Nor can we agree with plaintiff that it was error not to withdraw the issue of contributory negligence from the jurors who were charged on that issue. The plaintiff testified that she was turned around in her seat, looking over her shoulder out the side to the back window, with her left leg drawn up on the seat and probably under her. She had no idea how long she had been looking in that direction. The jury might well have decided that her assumption of such a vulnerable position in a moving vehicle constituted contributory negligence. We have carefully considered all points and authorities to which our attention has been invited and remain convinced that the judgment of the District Court must be affirmed. Affirmed. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_casetyp1_7-2	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". UNITED STATES of America, Appellant, v. HASTINGS MOTOR TRUCK CO. et al., Appellees. No. 71-1646. United States Court of Appeals, Eighth Circuit. Submitted April 13, 1972. Decided June 1, 1972. Robert J. Becker, Asst. U. S. Atty., William K. Schaphorst, U. S. Atty., D. Neb., Omaha, Neb., for appellant. James T. Gleason, Omaha, Neb., for Frederick G. Iske, Marilyn Iske, Richard L. Christensen and Ellen G. Christensen, appellees. Arthur Sidner, Fremont, Neb., for John 0. Knigge and Ester M. Knigge, appellees. James D. Conway, Hastings, Neb., James K. Langdon, Omaha, Neb., for John H. Hueske and Grace E. Tompkins, appellees. Before VAN OOSTERHOUT, BRIGHT and STEPHENSON, Circuit Judges. VAN OOSTERHOUT, Circuit Judge. This is an appeal by the United States from final judgment dismissing its complaint against defendants wherein a deficiency judgment is sought against all defendants for the unpaid balance of four loans secured by mortgage obtained from the Small Business Administration (SBA), an agency of the United States. The loans were described as disaster loans made for the purpose of providing funds to repair damage to realty caused by floods. The final loan was made on May 25, 1961. The mortgaged property was subject to a first mortgage to a third person which has been foreclosed. Foreclosure sale has been made and approved. A substantial deficiency remained after the SBA received the excess on the foreclosure sale above the amount due on the first mortgage. Title to the mortgaged property changed hands a number of times. Defendants are persons who obligated themselves on the mortgage notes and indebtedness as makers, guarantors or assumers of the mortgage indebtedness. The liabilities contracted by the various defendants vary but no determination of the amount due from each defendant is required in view of the result we reach. On August 16, 1963, subsequent to the making of all the mortgage loans and guarantee agreements here involved, Interstate Agency, Inc., the then holder of legal title to the mortgaged property, by warranty deed conveyed the property to F. M. Jacobberger with the knowledge and consent of SBA. The sole consideration for the conveyance was Jacobberger’s agreement to assume and pay all mortgages against the property. All payments thereafter made were made by Jacobberger but such payments were irregular and no payments were made subsequent to February 11, 1965. The case was tried to the court without a jury. The facts are largely stipulated. Some testimony was offered. The trial court filed a memorandum opinion (not reported) incorporating detailed findings of fact and conclusions of law and upon the basis thereof dismissed the case as to all defendants. The dismissal as to Jaeobberger is based upon his adjudication as a bankrupt on July 16, 1969, his scheduling of plaintiff’s claim as a debt accruing prior to adjudication and his discharge as a bankrupt. The dismissal as to Jaeobberger is not challenged on this appeal. The trial court based its judgment in favor of all defendants other than Jacobberger on a finding that a novation occurred which released the original mortgagors and guarantors from liability when Jaeobberger delivered his assumption agreements to the SBA. The Government asserts the court erred in finding a novation for the following reasons: 1. Parol evidence was received to vary the terms of the pre-existing contracts establishing the liability of the various defendants. 2. In any event, there is no substantial evidence to support novation. The evidence asserted to have been received in violation of the parol evidence rule was not offered for the purpose of varying the terms of the original contractual obligation assumed by the defendants but for the purpose of showing a new subsequent contract terminating defendants’ liability on the earlier contracts. The parol evidence rule is one of substantive law and the law of the state where the transaction took place is controlling. Bellows v. Porter, 8 Cir., 201 F.2d 429, 432; see 30 Am.Jur.2d, Evidence § 1017. In Jenkins v. Watson-Wilson Transportation Sys., Inc., 183 Neb. 634, 163 N.W.2d 123, plaintiff had entered into an agreement with defendant to transport freight at a specified rate. Defendant contended that the rate was modified by a subsequent agreement. In holding that parol evidence was admissible to establish the subsequent oral contract, the Nebraska court states: “The parol evidence rule relates to parol agreements made prior to or contemporaneous with a written agreement. It does not apply to parol agreements made after a written agreement, which is the situation here. As we said in Andrews v. Wilkie, 181 Neb. 398, 148 N.W.2d 924: ‘The terms of a written executory contract may be changed by a subsequent parol agreement before a breach thereof.’ ” 163 N.W.2d 123, 125. See 30 Am.Jur.2d, Evidence § 1063. The parol evidence was properly received. The trial court applied the law on novation as stated in Restatement on Contracts, § 428, as follows: “Where a third person contracts with a debtor to assume, as an immediate substitution for the debtor’s duty, a duty to the creditor to render either the performance for which the debtor was previously bound, or some other performance, and the creditor agrees either with the debtor or with the third person to such substitution, there is a novation that discharges the original debtor and subjects the third person to a duty to the creditor.” The law on novation as stated by the Supreme Court of Nebraska in Thomas v. George, 105 Neb. 44, 178 N.W. 922, modified on rehearing, 105 Neb. 44, 181 N.W. 646, cited by the Government and approved by the defendant, is not substantially different than the restatement rule as applied to the facts of our present ease. See also Anno: Novation —-What Constitutes, 61 A.L.R.2d 755; 58 Am.Jur.2d, Novation § 16. Included in the court’s findings are the following: “On January 15, 1965, Jaeobberger executed in writing instruments labeled ‘Assumption Agreement of Debt and Acknowledgment of Mortgage’. The record shows that SBA required approval of the guarantors before it would accept this agreement of Jaeobberger. Some of the guarantors gave their approval in writing, and the evidence shows that verbal assurances were made to all the guarantors by SBA that each of them would be released from any further obligation at the time Jacobberger executed the aforesaid assumption agreements. No payments on the loans were ever made by Jacobberger after February 11, 1965. ****** “In the present case Agency conveyed the previously described realty to Jacobberger on August 15, 1963, with SBA approval. Thereafter, on January 15, 1965, Jacobberger, acknowledged the existence of the SBA mortgage and assumed and agreed to pay the promissory notes, when he executed certain documents entitled ‘Assumption Agreement of Debt and Acknowledgment of Mortgage.’ The evidence establishes that the SBA at that time and on subsequent occasions made certain assurances to the defendants, other than Jacobberger, which would lead a reasonable man to believe that he was released from any further liability. “The assumption agreements of Jacobberger, contain language that he was to perform all of the obligations under the agreements of the prior debtors and guarantors, ‘as if he were the original maker thereof.’ “The actions of SBA after Jacobberger executed the assumption agreement, show that it was then looking solely to Jacobberger for performance, and not to the prior debtors and guarantors. “In addition the evidence establishes that representatives of SBA made oral assurances to the guarantors and prior debtors, that as far as SBA was concerned the Jacobberger assumption would let said guarantors and debtors ‘off the hook.’ “The record is replete with testimony and other evidence which can lead only to the ultimate conclusion that a novation was intended and in fact took place. This Court is of the opinion that while other evidence could be discussed in this opinion, which would buttress the conclusion that a novation occurred, such discussion would be cumulative in view of the facts already set forth." We have carefully examined the record. The evidence of course must be viewed in the light most favorable to the defendants as the prevailing party. We find substantial evidentiary support for the trial court’s findings. Like the trial court, we find in the record additional evidentiary support for the novation determination but we shall not prolong this opinion by setting out such evidence in detail. We do observe, however, that the record contains SBA reports which reflect that SBA initially was favorably impressed with Jacobberger; that it believed that contemplated improvements would produce increased rentals that would liquidate the debt; that they considered the property to be worth more than the first mortgage and the SBA mortgage; and they had a financial statement showing Jacobberger had a substantial net worth. After Jacobberger acquired the property, SBA had notice of a condemnation proceeding against the mortgaged property which allowed Jacobberger $35,000.00. SBA took no steps to have this applied upon the debt. There was considerable delay in obtaining the required assumption agreement from Jacobberger on the prescribed form but this was ultimately furnished along with the assent of defendants thereto and the assumption agreement was retained by the SBA. We hold that the trial court’s findings are supported by substantial evidence and are not induced by any erroneous view of the law. The judgment is affirmed. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
songer_othcrim	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. 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". Carter CALDWELL v. UNITED STATES. No. 10689. United States Court of Appeals Sixth Circuit. Dec. 17, 1948. Carter Caldwell, appellant, of Leavenworth, Kansas, in pro. per. Thomas P. Thornton, of Detroit, Mich., for appellee. Before ALLEN, MARTIN, and MILLER, Circuit Judges. PER CURIAM. The order of the district court, entered herein March 30, 1948, denying motion of the appellant Carter Caldwell to vacate sentence on the second count of the indictment and dismissing motion for declaratory judgment is affirmed; and it is further ordered that no relief can be granted appellant on his motion to correct sentence filed on April 8, 1948, and his amendment thereto filed April 21, 1948. Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim. A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_source	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. Richard Andrew ALLISON, Appellant, v. UNITED STATES of America, Appellee. No. 8042. United States Court of Appeals Tenth Circuit. June 28, 1965. Peter J. Mulvaney, Cheyenne, Wyo., for appellant. Guy L. Goodwin, Asst. U. S. Atty. (Newell A. George, U. S. Atty., District of Kansas, on the brief), for appellee. Before PICKETT, BREITENSTEIN and HILL, Circuit Judges. BREITENSTEIN, Circuit Judge. A jury found appellant guilty of the interstate transportation of a stolen motor vehicle in violation of 18 U.S.C. § 2312. He appeals from the judgment sentencing him to a term of three years and contends that the evidence is insufficient to sustain the conviction. The charge against appellant relates to a 1962 Chevrolet which was stolen in Springfield, Missouri, during the night of July 11, 1964. A car of similar appearance was seen by a farmer parked in a field near Elk City, Kansas, in the early morning of July 13. Two men were in the car. The farmer identified the one sitting in the right-hand front seat as the appellant. On the evening of the same day the farmer saw the car in the same location but with no person in it who was visible. When he circled the car to approach it, the car was driven away. It was found abandoned the next morning near Elk City. The car v/as subsequently identified as the Chevrolet which had been stolen in Springfield. A fingerprint lifted from the wing window of the right front door of the car was identified as the print of the right index finger of the defendant. On the afternoon of the 13th a car was stolen in Elk City and found the next day in Paw-huska, Oklahoma. The appellant and another were arrested several blocks from the place where that car was found. In the pocket of one of them — the record does not disclose which one — was a jumper cable. The defense offered no evidence. To convict under § 2312 the government must prove that the vehicle was stolen, that it was transported in interstate commerce, and that such transportation was with knowledge that the vehicle was stolen. Proof that an accused is in possession of a vehicle recently stolen in another state sustains the inferences that he knew the vehicle was stolen and that he transported it in interstate commerce. The basis of the inferences is the possession of the vehicle. Absent possession no inference may be drawn. As used in this context the term possession means actual control, dominion, or authority. The proof of possession is that appellant was seen sitting in the right-hand front seat — not the driver’s seat— while the car was standing still and that the print of one of his fingers was found on the wing window of the right front door. Fingerprints on a stolen car were held insufficient to convict of a violation of § 2312 in Camilla v. United States, 6 Cir., 207 F.2d 339, 340. Testimony that appellant was sitting as a passenger in the stationary car adds nothing of significance. Neither the fingerprint nor the presence in the car shows control, dominion, or authority over the car. In Glover v. United States, 10 Cir., 306 F.2d 594, 595, we said that evidence which •creates a mere suspicion of guilt will not sustain a conviction. Here the evidence may create a suspicion of possession but that is not enough to warrant a finding of possession from which the inferences of required knowledge and interstate transportation may be drawn. After viewing the entire evidence in the light most favorable to the government, we conclude that it was not sufficient to support the verdict. Reversed and remanded with instructions to dismiss. . Fitts v. United States, 10 Cir., 284 F.2d 108, 110-111. See also Grandsinger v. United States, 10 Cir., 332 F.2d 80, 82, and Fitts v. United States, 10 Cir., 328 F.2d 844, 846, certiorari denied 379 U.S. 851, 85 S.Ct. 96, 13 L.Ed.2d 55. . See Pearson v. United States, 6 Cir., 192 F.2d 681, 692-693, and authorities assembled in concurring opinion in Barfield v. United States, 5 Cir., 229 F.2d 936, 942-943. Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:
songer_circuit	D	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. Hedwig POKRINCHAK, Mary Pokrinchak, and Jordan Pokrinchak, Appellants, v. HOLIDAY HOUSE MOTEL, INC., Appellee. No. 9978. United States Court of Appeals Fourth Circuit. Argued Nov. 5, 1965. Decided Nov. 17, 1965. Edwin B. Fockler, III, Elkton, Md., (Roney & Fockler, Elkton, Md., on the brief), for appellants. Alleck A. Resnick, Baltimore, Md., (Kartman & Resnick, Baltimore, Md., on the brief), for appellee. Before HAYNSWORTH, Chief Judge, and ALBERT V. BRYAN and J. SPENCER BELL, Circuit Judges. HAYNSWORTH, Chief Judge: The plaintiff sought to recover damages consequent upon an alleged deceit perpetrated by the sellers of a motel which' she purchased at public auction. After a verdict of a jury for the defendant, she brought the case here complaining of the Court’s instructions. We affirm, for we find the submission fair and complete. In response to advertisements she had seen in the New York Times plaintiff, with an adviser or male companion, went to a motel in Maryland on the morning of the afternoon when it was to be put up for public sale. The plaintiff testified that she and her adviser went to the motel office, whereupon they were taken by the manager’s wife into three rooms in one wing of the motel. She did not enter other open rooms in the vicinity of those she saw, but she testified that after her return to the office, she asked to see more of the rooms. The manager’s wife, in his presence, so the plaintiff stated, responded that when she had seen three rooms she had seen them all. Later the manager did show her the heating plant and other facilities. The plaintiff’s testimony about the alleged statement of the manager’s wife was contradicted by the defendant’s evidence. Testimony on behalf of the plaintiff indicated that after she purchased the motel at auction, she visited it on several occasions before the final closing and that, the day after she actually took possession, she discovered for the first time that some of the rooms in a wing which she had not inspected were uninhabitable because of severe termite infestation. The Court submitted the case to the jury on the theory that under the laws of Maryland, recovery for deceit might be had if the manager’s wife made the statement attributed to her by the plaintiff and if it was reasonably understood as a representation that all the other rooms were in comparable condition to that of those she had seen, or if it was-intended to, and did, effectively divert the plaintiff from inspecting other rooms. In either event, however, the jury was told the plaintiff could recover only if the manager’s wife had apparent authority to show the rooms and to speak for the defendant, that is, if the plaintiff reasonably understood that the manager’s wife was acting for and in the interest of the sellers, and only if the jury found that the manager’s wife actually made the statement the plaintiff attributed to her. The plaintiff contends that she is entitled to recover if the sellers affirmatively misrepresented the condition of the motel or if they obstructed or prevented her discovery of its defects through an inspection of the affected rooms. The Court clearly informed the jury, however, that it might find a verdict for the plaintiff if it found the underlying facts to support either theory of the plaintiff’s claim. In either event, the plaintiff’s case was dependent upon a finding that the wife of the motel manager made the statement attributed to her by the plaintiff. There was no other evidence of an effective misrepresentation or of an obstruction of an inspection. The Court properly instructed the jury that if it found that the manager’s wife made no such statement, they must find for the defendant. The instruction about the apparent authority of the wife to speak for the sellers was essential and as favorable to the plaintiff as she had any reason to expect. Such a statement in private to the plaintiff by her own adviser or by an obvious interloper in the absence of the sellers or any of their representatives would give rise to no cause of action against the sellers. It is only if the manager’s wife spoke for the sellers or was reasonably understood by the plaintiff to speak for them, that the sellers could be held responsible for her conduct. Indeed, on this phase of the case, the Court’s instructions approached a requirement that the jury find that the sellers were responsible for whatever the wife said; the verdict for the defendant is understandable only in terms of a finding by the jury that the alleged statement was not made, or, if made, that it did not affect the scope of the plaintiff’s inspection. We conclude that the plaintiff’s criticisms of the Court’s instructions to the jury are unfounded. Affirmed. . The plaintiff testified that some of the damaged areas had been covered over with fresh plaster. She did not see the fresh plaster until after she took possession of the motel, however, and, when she did see it, she recognized it as camouflage. Application of the plaster may have been an attempted misrepresentation, but it was not effective, for it did not mislead the plaintiff. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
songer_appnonp	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "groups and associations". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. John SAS, Appellant, v. STATE OF MARYLAND, Director of Patuxent Institution, Appellees. Albert Delanor MUREL, Appellant, v. STATE OF MARYLAND and Director of Patuxent Institution, Appellees. James C. SHINE, Appellant, v. STATE OF MARYLAND, Director of Patuxent Institution and the Maryland State Legislature, Appellees. Timothy Patrick O’CONNOR, Appellant, v. STATE OF MARYLAND Director, Patux-ent Institution, Appellees. George L. CRESWELL, Appellant, v. DIRECTOR, PATUXENT INSTITUTION, Appellee. Nos. 9094, 9095, 9096, 9098, 9143. United States Court of Appeals Fourth Circuit. Argued Nov. 6, 1963. Decided June 16, 1964. Brodnax Cameron, Jr., Bel Air, Md., and John D. Alexander, Jr., Baltimore, Md. (court-assigned counsel), for appellants. Gerard Wm. Wittstadt, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., and Jacques E. Leeds, Asst. Atty. Gen., on brief), for appellees. Before BOREMAN and J. SPENCER BELL, Circuit Judges, and CRAVEN, District Judge. J. SPENCER BELL, Circuit Judge. This is a consolidated appeal of five petitions for writs of habeas corpus filed by five inmates of Maryland’s Patuxent Institution wherein they seek to have the Maryland Defective Delinquent Act, Ann.Code of Md., Article 31B (Supp. 1961) [hereinafter the Act], under which they are confined declared unconstitutional. The petitions were denied by the district court without the issuance of a writ of habeas corpus or show cause order, without requiring the state to file returns, without appointment of counsel for the indigent petitioners and without argument or hearing. The petitioners allege facts which raise serious questions of a non-frivolous nature which concern the constitutionality of the Act. \| We hold that jiptatuteto be facially constitutional; i. e., ; it is within the power of the state to \| segregate from among its lawbreakers a \| class or category which is dangerous to {the public safety and to confine this j group for the purpose of treatment or for the purpose of protecting the public from ^further depredations, j We remand the case in order that the district court may appoint counsel, issue a show cause order to the State of Maryland, and permit the filing of an answer to the petition. Thereafter, the district court will accord to each petitioner whatever type hearing may be appropriate in accordance with the standards promulgated in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and will then determine whether the statute is being constitutionally applied. In addition to any points which counsel may raise, the court should consider and determine whether the statutory definition of a defective delinquent as applied by the Maryland courtsJi¡r sufficiently definitive to permit its practical application within constitutional limitatons; whether the procedures embodied in the statute are applied in such a manner as to afford due process to the accused within the confrontation requirements of the sixth amendment; whether the proposed objectives of the Act are sufficiently implemented in its actual administration to support its categorization as a civil procedure and justify the elimination of conventional criminal procedural safeguards, Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); whether the interpretation and application of the statutory requirement that a defective delinquent be found to be “an actual danger to society” may within the eighth amendment’s prohibition against cruel and unusual punishment include those whose conduct indicates no more than a danger to property rights as distinguished from violence to the person; whether Patuxent does in fact furnish treatment for treatable defective delinquents as distinguished from other lawbreakers which would support the Act under the equal protection clause of the-fourteenth amendment. Only when these and any other questions raised by the petitioners at the hearing are answered can the requirements of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745 (1963), be satisfied. The Defective Delinquent Act of Maryland is the end result of a series of ■studies made in Maryland between 1948 ■and 1950. In 1947 the Legislature authorized and directed the Governor to appoint a commission consisting of doctors, judges, psychiatrists, psychologists and lawyers to study the problems of medico-legal psychiatry raised by recidivism. On December 28, 1948, the ■commission completed its work and submitted a report. Meanwhile, the Maryland Board of Correction had appointed a special advisory committee of seven eminent psy■chologists and psychiatrists to study the ■same general problem, and this commit•tee rendered its report in January 1949. Ultimately, the two groups made a joint recommendation that a new institution •should be set up for “criminal mental and emotional defectives”, such institution to include a unit to function as a diagnostic clinic. It further recommended an indeterminate sentence law for criminal •defectives to fulfill the purposes of the new institution. Thereafter, the Legislative Council of Maryland appointed a 'Committee on Medico-Legal Procedure, •charged with the responsibility of making a study of the joint recommendations ■of the commission and the committee, and of drafting the proposed legislation. In 1951, the bill prepared by this committee was passed by the Legislature with a few minor amendments as the Defective Delinquent Act of Maryland and ■codified as Article 31B of the Annotated ■Code of Maryland (1951). The first four sections of the Act provide for the establishment of the Patux-ent Institution, the composition of its staff and its general administrative organization. It requires that the Director be a psychiatrist of at least five years experience in practice or teaching. Two of the Associate Directors must be psychiatrists with at least three years experience. An operating staff of psychiatrists, social workers, psychologists and sociologists is provided to operate the diagnostic clinic and to provide the treatment for the inmates of Patuxent. Section five, the heart of the Act, defines the term defective delinquent as follows: “Defective Delinquents “§ 5. Defined. “For the purposes of this article, a defective delinquent shall be defined as an individual who, by the demonstration of persistent aggravated antisocial or criminal behavior, evidences a propensity toward criminal activity, and who is found to have either s.uch intellectual deficiency or emotional unbalance, or both, as to clearly demonstrate an actual danger to society so as to require such confinement and treatment, when appropriate, as may make it reasonably safe for society to terminate the confinement and treatment.” The remainder of the Act provides, in essence, that persons convicted of specified offenses may be thereafter tried as defective delinquents and if found to be such may be confined for an indeterminate period. Section 6(a) lists the offenses conviction of which will subject one to trial for being a defective delinquent. It includes: (1) felonies; (2) seriou's misdemeanors; (3) crimes of violence; (4) certain sex crimes; and (5) two or more convictions for any offenses or crimes punishable by imprisonment in a Maryland criminal court. These classifications include both felons and rogues, _vagabonds and other offenders against property. See, e. g., (Reed v. Warden, 212 Md. 645, 129 A.2d 92 (1957) (rogue and vagabond). See generally Brumbaugh, A New Criminal Code for Maryland?, 23 Md.L.Rev. 1 (1963). A convict may be examined for possible defective delinquency upon the request of the Department of Correction, the prosecuting State’s Attorney in the criminal case, the convict or his attorney, or the convicting criminal court, “on any knowledge or suspicion of the presence of defective delinquency.” Act, Section 6(b). This request may only be made if the convict has been sentenced to or is then serving a criminal sentence in a state penal institution. Act, Section 6(c). The request is filed with the convicting criminal court, which thereafter retains jurisdiction over the defendant. Act, Sections 6(d), (e). After the examination is ordered, the convict suspected of defective delinquency is transferred to Patuxent Institution and examined by a medical physician, a psychiatrist and a psychologist, who on the basis of their examination and study of the suspected defective delinquent and the circumstances of the originating crime, copies of any probation or other reports about him, and reports as to his social, physical, mental and psychiatric condition and history determine whether the suspected person is or is not a defective delinquent. Act, Section 7(a). If the institutional report states that the suspected person is a defective delinquent, he is brought before the criminal court which sentenced him and is entitled to counsel of his choice and a jury trial. The right to speedy trial under the sixth amendment and Article 21 of the Maryland Declaration of Rights does not apply. McCloskey v. Director, 230 Md. 635, 187 A.2d 833 (1963). At the defective delinquency determination hearing, the state has the burden to establish, by a preponderance of the evidence, and not beyond a reasonable doubt, that the criminal is a defective delinquent. Purks v. Director, 226 Md. 43, 171 A.2d 726 (1961); Blizzard v. State, 218 Md. 384, 147 A.2d 227 (1958). If a jury is prayed, the jury is judge of the fact only and not of law and fact, as in criminal cases under the Maryland Constitution, Article 15, Section 5. Blizzard v. State, supra. The defendant may not argue law to the jury, as in criminal cases. Purks v. Director, supra. The state’s evidence at the hearing is essentially that of expert witnesses, whose “expert findings and conclusions are to be accorded very serious consideration, particularly in a case such as this one, when the trial court almost necessarily must rely to a considerable degree on the opinions of expert witnesses.” Palmer v. State, 215 Md. 142, 152, 137 A.2d 119, 125 (1957). See Purks v. State, 226 Md. 43, 171 A.2d 726 (1961). The institutional experts who testify for the state are not in a patient-physician relationship with the criminal and may testify as to matters learned from the criminal in interviews and tests, even if the same concerns prior criminal offenses and convictions and admissions of prior antisocial conduct. Simmons v. Director, 227 Md. 661, 177 A.2d 409 (1962); McDonough v. Director, 229 Md. 626, 183 A.2d 368 (1962); Purks v. State, supra. (Extensive hear-\| [say regarding the past social, physical, [ ¡mental and psychiatric and criminal con- j Edition and history is admitted at thef ¡hearing over objection', since it is deemed ’that the Act requires the introduction of the same and that the purpose of the law would be defeated unless evidence of antecedent conduct is presented upon which to establish the propensity toward criminal activity. Simmons v. Director, supra; Fairbanks v. Director, 226 Md. 661, 173 A.2d 913 (1961). The psychiatrist of the criminal’s own choice, which must be furnished him by the state upon request, is not in the position of a medical expert in an adversary proceeding. He is considered to be “independent.” He is required to submit a written report of his examination and findings to the court for consideration by the trier of fact. The defendant has no control over the admission of the report of this independent psychiatrist and the physician-patient relationship does not apply. Simmons v. Director, supra. Defendant’s counsel has access to the records and reports of Patuxent (and of the “independent” psychiatrist) which, presumably, he can put into evidence just as can the state. Act, Section 8. The defendant also has discovery procedures available to him pursuant to the Maryland Rules of Civil Procedure. Purks v. State, 226 Md. 43, 171 A.2d 726 (1961). At a determination hearing the sole issue is “whether the peison is a defective delinquent as defined in § 5.” Act, Section 8(c). The trier of fact is precluded from considering whether Treatment will aid defendant and whether any is available. Purks v. State, 226 Md. 43, 50, 171 A.2d 726 (1961); Queen v. Director, 226 Md. 664, 174 A.2d 351 (1961). If the defendant is found not to be a defective delinquent, he is returned to the custody of the Department of Correction under his original criminal sentence, with credit for time spent in Patuxent and credit for behavior at Patuxent pursuant to the provisions of the state criminal code. Act, Section 9(a); Ann.Code, of Md., Article 27, Section 688 (Supp 1962). If the defendant is found to be a defective delinquent, the court is required to commit him to the Patuxent Institution, “for an indeterminate period without either maximum or minimum limits” and the sentence for the originating crime is suspended. Act, Section 9(b). The defective delinquent convict can be incarcerated at Patuxent Institution after his originating criminal sentence has expired, the purpose of his confinement being not to punish, but to receive “such confinement and treatment, when appropriate, as may make it reasonably safe for society to terminate the confinement and treatment.” Act, Section 5. If he should escape this confinement, even if his originating criminal sentence has expired, he is guilty of the crime of escape under the provisions of the criminal code, Ann.Code of Md., Article 27, Section 139 (Supp.1963). See McCloskey v. Director, 230 Md. 635, 187 A.2d 833 (1963); Caparella v. State, 214 Md. 355, 135 A.2d 311 (1957). During incarceration at Patuxent, the Institutional Board of Review may request the original criminal court to reinstate and reimpose the original criminal sentence upon the defective delinquent, who is then thereafter imprisoned in a penal institution, though he is still a delinquent. Act, Section 13(d). Any person in the custody of the Pat7 uxent institution may be transferred by administrative decision, without a hearing, to the Department of Correction for imprisonment. Act, Section 16(d). This administrative transfer to a penal institution for imprisonment may take place regardless of whether t the ^originating 'crimíñaHseñtence has expired. A convict* sentenced to a determinate criminal sentence could, after defective delinquency determination, spend the rest of his life in the penitentiary. }jf- During Patuxent confinement, the defective delinquent is subject to the term of his suspended original criminal sentence, and if released prior to its expiration, may be required to serve the remainder of that sentence. Act, Sections 13(f). While it is clear that a Patuxent inmate is subject to immediate and actual physical confinement without maximum or minimum limits, there is no requirement that he be given treatment unless the same is “appropriate.” Act, Section 5. See Purks v. State, 226 Md. 43, 171 A.2d 726 (1961). The Institutional Board of Review is required to review and re-examine each defective delinquent annually, utilizing examination procedures used in the first determination, and make a recommendation for the future status and treatment of each inmate so reviewed. Act, Section 13(b). After a defective delinquent has been confined for two-thirds of his original criminal sentence or for a period of two years, whichever is longer, he may file a petition for redetermination of his defective delinquency. Act, Section 10(a). If the inmate is found not to be a defective delinquent, the court may discharge him from confinement or commit him under his original criminal sentence with credit for time spent at Patuxent and credit for behavior at Patuxent pursuant to the provisions of the criminal code. Act, Section 10(a); Ann.Code of Md., Article 27, Section 688 (Supp.1962). If the inmate is found to be a defective delinquent, excepting his application for leave to appeal, he is denied further petitions for review until intervals of not less than three years have elapsed. Act, Section 10(b). The Act expressly saves the writ of habeas corpus to the defective delinquent, the Act, Section 10(c), who also has a post conviction remedy pursuant to the criminal code, Ann.Code of Md., Article 27, § 645A (Supp.1959). In neither proceeding can the. defective delinquent raise the question of his defective delinquency on the merits. See Brown v. Director, 224 Md. 635, 165 A.2d 895 (1960), cert. denied, 365 U.S. 859, 81 S.Ct. 830, 5 L.Ed.2d 825 (1961). The State’s brief explains the objectives of the Act: “The Maryland Defective Delinquency Act is expressly designed to apply to that borderline group of individuals who, though found to be legally sane, are mental or emotional defectives, or both. Under the Act, these individuals adjudged defective delinquents, would be incarcerated not for the purpose of punishment or deterrence, but for treatment and for the protection of society during the period that they were undergoing such treatment.” It is obvious, however, from the statistics to date, that the justification for the Act may not rest solely or even primarily, on the theory that all defective delin-' quents will receive treatment or that the majority of the inmates who do will be "greatly benefitted or cured by treatment. Certainly this is true for the foreseeable’ future unless unanticipated increases in staff and break throughs in the science of psychiatry make great changes in the amount and efficacy of diagnosis and treatment possible. Many of the inmates will, therefore, in all likelihood,’ be confined for life on the premise that’ they are untreatable or incurable but, nevertheless, too dangerous either to life or to property to be released in a’ free so-biety. The petitioners attack the Act on several constitutional grounds. First it is contended that the definition of the defective delinquent as set forth in the statute is too vague both as to the class of persons who fall within the Act and the applicable tests to ascertain guilt to constitute valid legislation. We cannot agree that the statutory definition upon its face is unconstitutional. The sub j ect matter of the ‘ statute — the health, welfare and safety) of the people of Maryland — is within the! area of the police power of the legisla-j ture. This being true, only if the Act has not real or substantial relation to that objective — or is palpably and patently an invasion of the individual’s constitutional rights — may the courts strike down the Act. Jacobson v. Massachusetts, 197 U.S. 11, 31, 25 S.Ct. 358, 49 L.Ed. 643 (1905). In Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744 (1940), the appellant had filed a writ of prohibition to prevent the probate judge from trying him as a “Psychopathic Personality” under the Minnesota Act. The Minnesota Appellate Court had defined the Act to apply to persons who by an habitual (¡bourse of "misconduct showed an utter of power to control their sexual im’pulses, and hence were likely to attack ijothers or otherwise inflict injury. In -upholdingthe statute, as construed by the state court, Chief Justice Hughes held that there was a rational basis for the class selected by the legislature; that the definition was not so vague or indefinite as to constitute invalid legislation and, therefore, the Act was constitutional upon its face. While psychiatrists no longer approve the term psychopath as a definitive medical term, we note that the definition adopted by the Minnesota Appellate Court and approved by the Supreme Court was not dependent upon the medical acceptability of the term psychopath. It is obvious that the Maryland statutory definition was carefully drawn to conform to the definition approved by the Court in the Minnesota case. The Maryland Court of Appeals, however, has construed the statutory definition to include mentally deficient persons and/or psychopaths who by persistent aggravated anti-social or criminal behavior have clearly demonstrated themselves to be such an actual danger to society as to require confinement. Palmer v. State, 215 Md. 142, 137 A.2d 119, 122 (1957). Whether or not the court’s interpretation of the words “emotionally unbalanced” as used in the statutory definition to include “psychopaths” — a term which is not determinable by medical standards alone — has rendered the definition too vague to be constitutionally acceptable is a matter which may not be determined without the aid of expert testimony not available on this record. Counsel for the petitioners offer the expert writings of members of the Patux-ent staff to show that "emotional unbalance” is such a quantitatively and qualitatively inaccurate term that any person who seeks to apply the definition is forced to depend upon an individual interpretation of the evidence of past antisocial and criminal conduct. Again it is the district court which must provide a record which will offer a solution to this issue. We must also reject the petitioners’ contention that the Act upon its face violates the equal protection clause of the fourteenth amendment. The preoccupation of society with the "problems of recidivism and "rehabilitation, which show no signs of/solution by conventional penological methods, strongly support the efforts of Maryland to seek TTnew approach^ The problem furnishes ’ITrationaTbasis for the legislature’s efforts to set apart a group of convicted felons — who were “demonstrably dangerous to society unless cured of their criminal propensities.” Eggleston v. State, 209 Md. 104, 121 A.2d 698 (1956). In Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 60 S.Ct. 523 (1940), the Court answered this contention as follows: “The question, however, is whether the legislature could constitutionally make a class of the group it did select. That is, whether there is any rational basis for such a selection. We see no reason for doubt upon this point. Whether the legislature could have gone farther is not the question. f The class it did select is identified by the state court in terms [which clearly show that the persons j'within the class constitute a danger-i ous element in the community which l the legislature in its discretion could [put under appropriate control/'"' "we have often said, the legislature is free to recognize degrees of harm, and it may confine its restrictions to those classes of cases where the" heed is deemed to be the clearest. If the law ‘presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied.”’ 270 U.S. at 274-75, 60 S.Ct. at 526. See also Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927), where Mr. Justice Holmes writing, the Court upheld the constitutionality of the Virginia Sterilization Law. In rejecting the equal protection argument he said: “But the answer is that the law does all that is needed when it does all that it can, indicates a policy, applies it to all within the lines, and seeks to bring within the lines all similarly situated so far and so fast as its means allow.” 274 U.S. at 208, 47 S.Ct. at 585. The petitioners also contend that the Act does not provide them with a fair trial in that it denies them procedural due process. An examination of the trial and hearing provisions of the Act can leave no doubt that it places around the accused more procedural safeguards than any of the Acts of a similar nature which have been upheld by the courts against this attack. Not until the convicted felon has been examined and diagnosed by the Patuxent Clinic is he liable to trial under the statute as a defective delinquent. He is entitled to a jury trial with special finding. He must be allowed counsel of his own choice or furnished counsel. He has the power to summon witnesses. He is entitled to be furnished a psychiatrist who is independent of Patuxent. While the sentence prescribed for the defective delinquent is fixed by the law as an indeterminate sentence, it nevertheless requires yearly administrative review of his record by the Patuxent staff and an opportunity to the petitioner at fixed times to have a judicial review of his status. JThe procedural protection here furnished exceeds” that provided in either the Minnesota Psychopathic Personality Statute, or the Virginia Sterilization Act, both of ‘which were upheld by the Supreme Court. In the Minnesota case the Court pointed out that the statute provided for notice and hearing, the right to counsel and to witnesses, and impartial experts to assist in the examination and appeal. There too, the penalty was indeterminate confinement but the Court felt that the right to petition for release was adequate procedural protection for this provision of the Act. But petitioners attack the trial provided in the Maryland Act on the ground that it departs from the common law rules of evidence in permitting the experts to testify over objection to hearsay matters either admitted by the petitioner during his clinical examination at Patuxent or collected by the staff from the petitioner’s school records or indeed from any source deemed of relevance by the psychiatrist in forming his opinion. They also question the fairness of permitting the experts to express their opinion on the ultimate issue before the jury; i. e., whether the petitioner is a defective delinquent within the meaning of the statute. The petitioners also complain that the statute provides that the.state must carry its case only by the greater weight of the evidence. The answer to all of these objections is that with respect to state action repeated decisions of the Supreme Court have put it beyond the range of further debate that the “due process” clause of the fourteenth amendment has not the effect of imposing upon the states any particular form or mode of procedure, so long as the essential rights of notice and a hearing, or opportunity to be heard, before a competent tribunal are not interfered with. Frank v. Mangum, 237 U.S. 309, 340, 35 S.Ct. 582, 59 L.Ed. 969 (1915). Thus the Supreme Court has ruled that trial by jury may, by a state, be modified or abolished altogether; so also compulsory incrimination, Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908), and double jeopardy, Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937). Care, however, should be taken to read these cases in the light of the Court’s more recent decisions beginning with Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925), in which the Court has broadened the concept of liberty contained in the fourteenth amendment and thus has brought to bear on the states the constitutional requirement of fundamental fairness contained in many sections of the Bill of Rights not theretofore thought to apply to them. See Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and at pages 345-47, 83 S.Ct. at pages 797-98, where Mr. Justice Douglas in a concurring opinion reviews the history of this process. See also Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). It would, therefore, appear that the Act upon its face provides adequate procedural safeguards; indeed it throws around the accused many safeguards not ordinarily found in so-called civil proceedings. By examining the records of the actual trials of the petitioners, the district court can determine whether in application these safeguards result in basic fairness of procedure imposed upon the state by the fourteenth amendment. We are not here speaking only of the “perfection of the machinery for correction” which may be referred to as procedural due process. Fay v. Noia, 372 U.S. 391, 421, 83 S.Ct. 822, 839 (1963); Cf. Moore v. Dempsey, 261 U.S. 86, 90-91, 43 S.Ct. 265, 67 L.Ed. 543 (1923). Finally, we again caution that we are here concerned only with the constitutionality of the Maryland^jl^tufe upon ^its_face. = ^We are fully aware of the dangers inherent in the application of this new and radical approach in the/ present state of medico-legal knowledge of the problems of crime and recidivism. In its essence, the statute rejects the age old concept that every legally sane person possesses in equal degree the free will to choose between doing right and doing wrong. Instead, it substitutes the concept that there is a category of legally sane persons who by reason of men-j tal or emotional deficiencies “evidence a propensity toward criminal activity,” which they are incapable: of controlling.! For those in the category who are treatable it would substitute psychiatric treatment for punishment in the conventional sense and would free them from confinement, not when they have “paid their debt to society,” but when they have been sufficiently cured to make .it reasonably safe to release them. ( With this humanitarian and progressive approach to the problem no person who has deplored the inadequacies of conventional penological practices can complain.^ But a "statute though “fair on'its face and impartial in appearance” may be fraught with the possibility of abuse in that if not administered in the spirit in which it is conceived it can become a mere device for warehousing the obnoxious and_ antisomál^élements of society. Many of the inmates in Patuxent are there by reason of offenses against property rights. Many jurists and laymen would seriously question the wisdom of the practice of indefinitely confining young men under these circumstances. Deficiencies in staff, facilities, and finances would undermine the efficacy of the Institution and the justification for the law, and ultimately the constitutionality of its application. The petitions should be reconsidered by the district court and .since they are pro se petitions they should be construed liberally. Darr v. Burford, 339 U.S. 200, 203-04, 70 S.Ct. 587, 94 L.Ed. 761 (1950). The creation of a non-medically deter-? minable category of persons who may be] confined for indeterminate periods by aj ( civil proceeding is so serious a departure ' from traditional concepts of justice that it deserves a critical analysis on the broadest of terms after a Question: What is the total number of appellants in the case that fall into the category "groups and associations"? Answer with a number. Answer:
songer_numresp	7	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. Van HOWELL, Plaintiff-Appellant, v. Joe D. TANNER, Individually and as Commissioner of Department of Natural Resources, et al., Defendants-Appellees. No. 79-3374. United States Court of Appeals, Fifth Circuit. Unit B July 13, 1981. Rehearing and Rehearing En Banc Denied Sept. 18, 1981. J. E. B. Stewart, Jonesboro, Ga., for plaintiff-appellant. Mark A. Dickerson, Isaac Byrd, Asst. Attys. Gen., Atlanta, Ga., William P. Lang-dale, Jr., Valdosta, Ga., for defendants-appellees. Ronald A. Lowry, Atlanta, Ga., for Raulerson. Before JONES, FAY and HENDERSON, Circuit Judges. HENDERSON, Circuit Judge: The appellant, Van Howell, filed suit in the United States District Court for the Northern District of Georgia pursuant to provisions of 42 U.S.C. §§ 1983 and 1985(3) alleging that he was maliciously arrested and prosecuted as well as physically accosted in violation of his constitutional rights. Named as defendants were the Georgia Department of Natural Resources (DNR); Joe D. Tanner, Commissioner of the DNR; Louis T. Raulerson, Ross Knowlton and Wallace King, employees of the DNR; J. Leon Raulerson, the former sheriff of Echols County, Georgia; and The Langdale Company, the owner of the land subject to a game management contract with the DNR. On June 21, 1975, Howell was arrested and cited by state game and fish officers Knowlton and King on charges of criminal trespass and possession of a firearm. Louis T. Raulerson conferred with the officers at the arrest site. Shortly thereafter warrants on the same charges were sworn out against Howell by Raulerson. On January 28, 1976, J. Leon Raulerson, brother of Louis Raulerson and the sheriff of Echols County, drew up an affidavit in support of the accusations which were then pending in Echols Superior Court. Meanwhile earlier that month, on January 3, 1976, Louis T. Raulerson had had a previous encounter with Howell. While driving near Halo, Georgia in the company of his daughter, Howell was waved down by Raulerson, who was standing by the DNR car which had been assigned to him. Raulerson was dressed in his DNR uniform but was off-duty. When he had stopped, Howell was questioned by Louis Raulerson about nails which had been placed on the property leased by The Langdale Company to DNR. The parties disagree on the sequence of events which followed. Howell contends that Raulerson maliciously and without warning shot him several • times with a DNR rifle and then beat and kicked him while he lay unconscious on the roadway. By Raulerson’s account the trouble began when Howell became, argumentative and waved a pistol at him. Allegedly Raulerson shot Howell in self defense. Three days later, on January 6, 1976, a warrant based on an affidavit by Raulerson was issued for the arrest of Howell and his daughter on the charge of aggravated assault against Raulerson. The criminal proceeding on this charge was terminated a month later, however, when the county grand jury returned a “no bill”. Eventually Howell also prevailed on the charges against him for criminal trespass and unlawful possession of a firearm. These counts came on for trial on February 5, 1976. The jury found Howell not guilty of trespass but guilty of a firearm offense. On appeal of the firearm conviction to the Supreme Court of Georgia, Howell’s conviction was reversed on grounds that the Georgia statute permitting prosecution was unconstitutional. Howell filed this civil suit in the Northern District of Georgia on January 2, 1978. The district court judge dismissed DNR as a party defendant, but denied the motion to dismiss filed by the other defendants. Thereafter a motion for change of venue filed by the defendants was granted and the cause was transferred to the Middle District of Georgia, Valdosta Division. Additional motions were filed by the defendants in the Middle District of Georgia. The district judge granted motions for summary judgment as to all the defendants except Louis Raulerson “for the reasons asserted by counsel” in their briefs. He dismissed the claim against Louis Raulerson because he found it to be “too nebulous to rise to the constitutional proportions”. The final judgment from which this appeal is taken was rendered on August 30, 1979. Howell assigns as error (1) the award of summary judgment to all defendants except Louis Raulerson and the granting of Louis Raulerson’s motion to dismiss; (2) the change of venue from the Northern District of Georgia to the Middle District of Georgia; (3) the refusal to remand the case to the Northern District of Georgia; (4) the entry of final judgment by the clerk; (5) the denial of his motion to amend his complaint; (6) the refusal to reinstate the DNR as a party defendant; and (7) the dismissal of the “summary of events” filed by Howell. The appellant attacks the summary judgment ruling on procedural as well as substantive grounds. He first focuses on the fact that he received no notice of the date of the hearing on the motion. He purportedly had affidavits he would have filed had he known that a decision on the motion would be forthcoming so quickly. At oral argument, Howell’s counsel identified this lack of notice as the principal error in the case and the main reason for reversal of the summary judgment. Howell’s counsel reads the Fed.R.Civ.P. 56(c) requirement for notice of the hearing date to mean that he will know the outside time in which opposing affidavits must be served. The appellant cannot dispute the fact that he had notice of the pendency of the motion, though, because he filed a response. The appellees answer that the litigants’ rights are preserved by a local rule for the Middle District of Georgia which provides that (1) a respondent to a motion for summary judgment must submit all responses, briefs or affidavits within ten days of service of the motion; and (2) all motions are decided without hearing unless otherwise ordered by the court on its own motion or at the request of counsel. M.D.Ga.R. (b), (e) (1960). Fed.R.Civ.P. 56(c) contemplates that the ten-day advance notice of the earliest possible hearing date must be given so that the adverse party will have an opportunity to fully prepare his case. The respondent’s Rule 56 interests were fully protected by the local rule which defined a ten-day period within which all materials must be filed in order to receive consideration from the court. Kibort v. Hampton, 538 F.2d 90, 91 n. 1 (5th Cir. 1976). Howell also maintains that the adverse summary judgment was erroneously .rendered as a matter of law. We do not agree with the appellant. We find, as did the district judge, that the facts and law were adequately and accurately presented by the parties in their briefs on motion in the trial court. For the following reasons, the district judge was correct in entering summary judgment favorable to the appellees. Game and Fish rangers Knowlton, King and Raulerson are charged with deprivation of Howell’s constitutionally-protected interests in arrest and prosecution accomplished with due process of law. See Cook v. Houston Post, 616 F.2d 791 (5th Cir. 1980); Reeves v. City of Jackson, Mississippi, 608 F.2d 644 (5th Cir. 1979). The appellees had probable cause to believe in good faith that Howell broke the law on June 21, 1975. Howell admitted that the area in which he was approached was a game management area. (Appellant’s Reply Brief at 24). He further concedes that he was carrying a firearm, but he says the possession was lawful because the gun was broken. (Transcript at 173). The defense of probable cause negates a § 1983 claim based on an alleged false arrest. Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 228 (1967); Hunter v. Clardy, 558 F.2d 290, 291 (5th Cir. 1977); Rodriguez v. Jones, 473 F.2d 599, 604-05 (5th Cir.), cert. denied 412 U.S. 953, 93 S.Ct. 3023, 37 L.Ed.2d 1007 (1973). Once probable cause has been established, the legality of the arrest is not affected by collateral bad faith of the arresting officer or a subsequent dismissal or acquittal of the charges. Hunter v. Clardy, 558 F.2d at 292; Perry v. Jones, 506 F.2d 778, 780 (5th Cir. 1975). Knowlton, King and Louis T. Raulerson were entitled to summary judgment as a matter of law. Joe D. Tanner’s lack of personal participation in Howell’s arrest dictates the summary judgment in his favor. The arrest was not effected pursuant to either a direct order from Tanner or a custom or policy instituted by Tanner. Since there is no showing of direct involvement by Tanner in the arrest, he cannot be liable under § 1983. See Reimer v. Short, 578 F.2d 621, 625 (5th Cir. 1978) cert. denied 440 U.S. 947, 99 S.Ct. 1425, 59 L.Ed.2d 635 (1979); Locust v. DeGiovanni, 485 F.Supp. 551, 552 (E.D.Pa.1980). Summary judgment was also authorized for Sheriff Leon Raulerson. In his deposition, Howell stated that he included Raulerson as a party only because his action in swearing out the accusations for the trespass and firearms offenses made him a “prosecutor”. Raulerson is required by state law to issue accusations upon receipt of instructions from the district attorney as was the case here. Ga.Code Ann. § 27-704 (1972) (current version at Ga.Code Ann. § 27-704 (Supp.1980)). Where state law obligates an official to perform a ministerial duty, good faith is presumed absent express evidence on the record of bad motive. Tucker v. Maher, 497 F.2d 1309, 1313 (2d Cir.) cert. denied 419 U.S. 997, 95 S.Ct. 312, 42 L.Ed.2d 271 (1974). With respect to the claim against Louis Raulerson arising from the January 3, 1976 shooting incident, however, we think the appellant alleged sufficient facts to withstand a motion to dismiss. A claimant must state facts showing that the state has deprived him of a liberty or property interest without due process of law. Marrero v. City of Hialeah, 625 F.2d 499, 519 (5th Cir. 1980) (U.S. app. pending). If these facts, when proven, would establish that the officer acted under color of state law and the conduct deprived the claimant of a constitutionally protected interest, then the plaintiff must have an opportunity to prove his case. In the complaint, Howell asserted that Louis Raulerson, while dressed in his ranger uniform and standing beside a DNR vehicle, stopped him and threatened him with death if Howell were found to have placed “nails in the access road to the reserve”. Given these references in the pleading to indicia of official state authority, coupled with the contention that the dispute centered on a DNR-related problem, we find that the appellant sufficiently pleaded state action. The magic words “under color of state law” are not absolutely necessary to state a § 1983 claim when factual allegations in the complaint clearly point in this direction. Geach v. Moynahan, 207 F.2d 714, 716-17 (7th Cir. 1953). Unquestionably, the malicious infliction of bodily injury as alleged by Howell constitutes deprivation of a property interest without due process of law. Hence, we are compelled to reverse the judgment of the district court granting Louis Raulerson’s motion to dismiss for failure to state a cause of action and remand Howell’s claim for a hearing on the merits. Assignments of error two and three are directed to the venue orders entered by the district judges in this case. The appellant argues that both judges abused their discretion in holding that the Middle District of Georgia was thé appropriate venue because they did not consider the “interests of justice”. A district judge has the authority to transfer an action to any district in which it might have been brought for the convenience of parties and witnesses and in the interest of justice. 28 U.S.C. § 1404 (1976). The plaintiff’s choice of forum should not be disturbed unless it is clearly outweighed by other considerations. Simmons Ford, Inc. v. Consumers Union of United States, Inc., 490 F.Supp. 106, 107 (W.D.Mich., S.D.1980). Once a trial judge decides that a transfer is justified, though, his ruling can only be overturned for a clear abuse of discretion. The presumption in favor of the district court judge is heavy. Appellate review is limited because it serves little purpose to reappraise such an inherently subjective decision. Codex Corp. v. Milgo Electronic Corp., 553 F.2d 735, 737 (1st Cir.) cert. denied 434 U.S. 860, 98 S.Ct. 185, 54 L.Ed.2d 133 (1977). The appellant suggests that justice is not served by hearing his case in a district where he believes his likelihood of success on the merits would be prejudiced by extraneous factors. This argument manifests a misconception of the “interests of justice” standard. In applying § 1404, efforts to select one district to avoid or obtain particular rulings of another district is disfavored. Cheeseman v. Carey, 485 F.Supp. 203, 215 (S.D.N.Y.) remanded for dismissal 623 F.2d 1387 (2d Cir. 1980); McCrystal v. Barnwell County, 422 F.Supp. 219, 225 (S.D.N.Y.1976). The judges took proper account of the interests of justice when they considered the forum in which judicial resources could most efficiently be utilized and the place in which the trial would be most “easy, expeditious and inexpensive.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055, 1062 (1947); ROC, Inc. v. Progress Drillers, Inc., 481 F.Supp. 147, 152 (W.D.Okl.1979); Bartolacci v. Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 476 F.Supp. 381, 382-83 (E.D.Pa.1979); Pope v. Missouri Pacific Railroad Co., 446 F.Supp. 447, 451 (W.D.Okl.1978). We affirm both venue determinations. We have carefully reviewed the record and find no merit in assignments of error four through seven. For the foregoing reasons, the judgment of the district court is AFFIRMED in part and REVERSED in part. . The § 1985(3) claims were dismissed by order of May 22, 1978, because the complaint was devoid of factual allegations from which it could be concluded that Howell was a member of a class against which invidious bias might exist. See McLellan v. Mississippi Power & Light Company, 526 F.2d 870 (5th Cir. 1976) modified 545 F.2d 919 (5th Cir. 1977); Fallis v. Toastmasters International, Inc., 467 F.2d 1389 (5th Cir. 1972); Jacobson v. Industrial Foundation of Permian Basin, 456 F.2d 258 (5th Cir. 1972). . The Echols County Grand Jury also returned a “no bill” with respect to Howell’s aggravated assault charge against Raulerson arising from the same January 3, 1976 incident. . Howell v. State, 238 Ga. 95, 230 S.E.2d 853 (1976). Ga.Code Ann. § 45-116 provides that anyone who violates regulations promulgated by a commission is guilty of a misdemeanor and can be punished accordingly. In the opinion of the Georgia Supreme Court, the statute unconstitutionally delegated legislative authority to the commission by permitting it to make regulations the violations of which constituted a misdemeanor. No consideration was given to the evidentiary merits of the case. . Fed.R.Civ.P. 56(c) (1971) states in pertinent part: “The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits.” . An oral hearing is not required by Fed.R.Civ.P. 56(c). Davis v. Howard, 561 F.2d 565, 570-71 (5th Cir. 1977); Benson v. Matthews, 554 F.2d 860, 862 (8th Cir. 1977); Kibort v. Hampton, 538 F.2d 90, 91 (5th Cir. 1976). . Howell’s conviction for the firearm offense conclusively established that the arrest was made with probable cause, absent a showing of fraud, perjury or corrupt means. Bergstralh v. Lowe, 504 F.2d 1276, 1278 (9th Cir. 1974), cert. denied 420 U.S. 930, 95 S.Ct. 1131, 43 L.Ed.2d 402 (1975). Arguably this presumption survived intact after the Georgia Supreme Court’s reversal on other than evidentiary grounds. Furthermore, the officers, could not have known that the Georgia statute would be declared unconstitutional. The Howell decision was the opinion of a divided court and represented a shift in view which was foreshadowed by the most recent of precedent only. See Sundberg v. State, 234 Ga. 482, 216 S.E.2d 332 (1975). . It is clear that Tanner would not be responsible on a respondeat superior theory, even if the rangers’ actions were unconstitutional. Thompson v. Bass, 616 F.2d 1259, 1268 (5th Cir. 1980), cert. denied - U.S. -, 101 S.Ct. 399, 66 L.Ed.2d 245 (1980). . In his complaint Howell alleged that The Langdale Company entered a lease agreement with the State of Georgia so that certain lands in Echols County were established as a “game and fish management area”. He further averred that Louis T. Raulerson and J. Leon Raulerson acted as agents of The Langdale Company in signing warrants and executing accusations respectively against him. The Langdale Company offered evidence proving that it did not employ any other of the named defendants, nor did it authorize any of the named defendants to perform any of the acts upon which Howell bases his claims. Furthermore, respondeat superior would provide no right of recovery against The Langdale Company pursuant to § 1983. Thompson v. Bass, 616 F.2d 1259, 1268 (5th Cir. 1980) cert. denied - U.S. -, 101 S.Ct. 399, 66 L.Ed.2d 245 (1980). Finally, the contractual lease agreement does not constitute concerted action with the state such as is necessary to make out an independent cause of action against a private individual under § 1983. See generally Vance v. Billingsly, 487 F.Supp. 439, 442 (E.D.Tenn., N.D.1980). . The same set of facts may give rise to violations of both the federal statute and Georgia tort law. The rights protected by each are not necessarily identical, however, nor are the elements composing each cause of action. Accordingly, the existence of a state tort claim does not negate the entitlement of a litigant to a federal action as well. Briley v. State of California, 564 F.2d 849, 854 n. 4 (9th Cir. 1977). . We do think assignment of error six warrants some mention. At the time it issued the order dismissing the DNR, the district court did not have the benefit of Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) which overruled Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the case relied upon by the trial court. Monell holds that a municipal governing body may be a “person” subject to liability under 42 U.S.C. § 1983. However, Monell has no relevance to the dismissal of DNR, because the Supreme Court’s decision is “ ‘limited to local government units which are not considered part of the State for Eleventh Amendment purposes’.” Bogard v. Cook, 586 F.2d 399, 410 (5th Cir. 1978) cert. denied 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979) (citing Monell v. New York City Dept. of Social Services, 436 U.S. at 690 n. 54, 98 S.Ct. at 2035-36 n. 54, 56 L.Ed.2d at 635 n. 54 (1978). Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_origin	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. Kiran K. SHAH, Plaintiff-Appellant, v. GENERAL ELECTRIC COMPANY, Defendant-Appellee. No. 86-5548. United States Court of Appeals, Sixth Circuit. Argued Feb. 13, 1987. Decided April 20, 1987. James C. Hickey, argued, Ewen, MacKenzie and Peden, Louisville, Ky., for plaintiff-appellant. Edwin Hopson, Louisville, Ky.,for defendant-appellee. Before MERRITT and MILBURN, Circuit Judges; and PECK, Senior Circuit Judge. MILBURN, Circuit Judge. Plaintiff Kiran K. Shah appeals the summary judgment for defendant General Electric Co. (“GE”) in this action alleging that GE terminated plaintiffs employment because of his color and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (“Title VII”), and the Civil Rights Act of May 31, 1870, 42 U.S.C. § 1981 (“section 1981”). Plaintiff further alleged that GE discharged him without just cause and without following the policies and procedures set forth in the company’s Organization and Policy Guide and thereby breached the employment contract between plaintiff and GE. For the reasons that follow, we affirm the dismissal of plaintiff's federal claims but reverse the grant of summary judgment on the breach of contract claim. I. Plaintiff, a dark-skinned native of India, has been a citizen of the United States since 1975. He holds a bachelor’s degree in Chemical Engineering from Bombay University in India, a Master’s Degree in Chemical Engineering from Northwestern University in Evanston, Illinois, and an MBA in Marketing and Finance from the University of New Haven, Connecticut. After a short tenure teaching Strategic Planning and Marketing in the graduate program at the University of New Haven, plaintiff was employed by Uniroyal from 1964 to 1979. In February 1980, GE offered plaintiff the “relatively high position” of Manager of Business Development and Planning for the Air Conditioning Business Division (“ACBD”) at GE’s Appliance Park Facility in Louisville, Kentucky. This position was the second most important position in planning at ACBD, and plaintiff’s starting salary of Sixty Thousand Dollars ($60,000.00) per annum was the highest amount paid any exempt employee not on Division Staff. Plaintiff was also eligible for GE’s Incentive Compensation Plan. On discovery, plaintiff testified that during the interview process, he was shown a GE Organization and Policy Guide and that he received a copy after he began his employment. The manual contained GE’s policies on “Treatment of Less than Satisfactory Performance.” Plaintiff further testified that he was told that GE did not terminate its employees “without a just and sufficient cause.” Plaintiff began his employment with GE on April 1,1980, and worked without direct supervision until June 1980, when W.T. Hewitt became his supervisor. Hewitt’s assessment of plaintiff “was quite complimentary with regard to his performance, and was quite positive with regard to his promotability.” Mr. Palmer, Manager of Organization and Manpower for ACBD, further deposed that there was nothing negative in plaintiff’s personnel file prior to his termination. In July 1981, plaintiff’s immediate supervisor resigned, and plaintiff was appointed acting manager. On August 26, 1981, William Sharpstone was named manager and plaintiff returned to the number two position. The district court observed that, “For whatever reason, relations between Sharpstone and plaintiff were less than cordial.” Plaintiff further testified on discovery that he met Sharpstone for the first time at the airport for a trip to Tyler, Texas. Plaintiff stated that Sharpstone refused to shake hands or to speak with him during the plane ride, and that in the succeeding months, Sharpstone would not respond to his memoranda or his verbal requests for conferences. Plaintiff testified that he felt Sharpstone was isolating him from the mainstream of the department’s work, and further testified that Sharpstone consistently misspelled his name. On discovery, Sharpstone testified that plaintiff’s work was unsatisfactory. First, Sharpstone felt that a speech prepared by plaintiff was unfocused, disorganized, and without any conclusion. Second, Sharp-stone testified that plaintiff failed to follow his directions in preparing a model for forecasting industry trends. Third, Sharpstone felt that plaintiff’s analysis of one of GE’s principal competitors was disorganized and not usable for action- purposes. Fourth, in Sharpstone’s view, plaintiff’s comments during meetings were unfocused and “off the wall.” As a result of these perceived deficiencies in plaintiff’s performance, Sharpstone denied plaintiff incentive compensation for 1981. Moreover, Sharpstone decided that plaintiff’s employment should be terminated. Sharpstone further testified on discovery that he made this decision prior to plaintiff’s departure on an extended trip to India in November 1981 for personal reasons. However, plaintiff was not informed until January 6, 1982, shortly after he returned to the United States. Plaintiff testified that at that time Sharpstone stated that plaintiff would be replaced. Sharp-stone essentially confirmed that he expected at that time to replace plaintiff. On January 18, 1982, plaintiff was formally notified of his termination. Although the separation date was set for the end of April 1982, GE extended the separation date to June 1982, and placed plaintiff on lack of work status in order to enable plaintiff to receive more benefits and additional severance pay. At this same time, GE decided to reduce the ACBD staff and eliminated plaintiff's position. Accordingly, no one was ever hired to replace plaintiff. There is some dispute as to whether, prior to the decision to eliminate plaintiffs position, GE interviewed individuals to replace plaintiff. GE officials deposed that there were no interviews. Plaintiff, on the other hand, testified that Sharpstone interviewed a Mr. Jaffee in the late summer of 1981, which would be approximately one year before plaintiff’s termination. There is no indication in our record as to Mr. Jaffee’s race. After exhausting his administrative remedies, plaintiff filed the present action on July 1, 1983. Following discovery, GE moved for summary judgment on February 26, 1986, which the district court granted on April 14, 1986. The district court first rejected GE’s argument that plaintiff’s section 1981 claim was deficient because East Indians are not entitled to protection under the statute. The district court next turned to an analysis of plaintiff’s Title VII and section 1981 claims under the standards set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny. The district court first held that although plaintiff’s evidence established the first three elements of a prima facie case under McDonnell Douglas; viz., (1) that plaintiff is a member of a protected class, (2) he was discharged, and (3) he was qualified for the position, plaintiff’s evidence did not establish the fourth element; i.e., that plaintiff was replaced by someone with his qualifications. The district court went on to hold that, assuming arguendo that plaintiff had established a prima facie case, GE had carried its burden of producing evidence that it terminated plaintiff for the legitimate, nondiscriminatory reason that his job performance was inadequate. However, the district court further held that plaintiff’s evidence could not support a finding that the reason proffered by GE was pretextual. The district court dismissed plaintiff’s implied contract claim because, in its view, under Kentucky law, plaintiff’s employment was terminable at will. Further, the district court declined to exercise pendant jurisdiction over plaintiff’s claim under Kentucky’s Civil Rights Act, Ky.Rev.Stat. ch. 344 (1983). On appeal plaintiff argues (1) that the district court erred in holding that he did not establish a prima facie case because he was not replaced; (2) that the district court erred in holding that the evidence could not support a finding that GE’s proffered reason for discharging him was pretextual; and (3) that the district court erred in holding that, under Kentucky law, he was an employee at will. GE argues, as a partial, alternative ground for affirming the district court, that plaintiff, as an East Indian, is not entitled to protection under section 1981. II. A. Prima Facie Case In a disparate treatment case, such as the present action, the plaintiff's ultimate burden is to persuade the court that he has been the victim of intentional discrimination. See, e.g., Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981); Rowe v. Cleveland Pneumatic Co., 690 F.2d 88, 92 (6th Cir.1982) (per curiam). In the absence of direct evidence, “[pjroof of discriminatory motive ... can in some situations be inferred from the mere fact of differences in treatment.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). See also Rowe, 690 F.2d at 92. In McDonnell Douglas, the Supreme Court established a tripartite analysis for disparate treatment claims: the plaintiff must prove a prima facie case; the defendant must offer a legitimate, nondiscriminatory reason for its actions; and the plaintiff must establish that the defendant’s proffered explanation is a pretext to mask an illegal motive. 411 U.S. at 802-04, 93 S.Ct. at 1824-25. The McDonnell Douglas Court stated that in a failure-to-hire case, the Title VII plaintiff may establish a prima facie case of racial discrimination “by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of [plaintiffs] qualifications.” Id. at 802, 93 S.Ct. at 1824. This test was recently reaffirmed in Cooper v. Federal Reserve Bank, 467 U.S. 867, 104 S.Ct. 2794, 2799, 81 L.Ed.2d 718 (1984). A slightly different test has been applied in the discharge setting: The three elements necessary to establish a prima facie case of discriminatory discharge were specifically enumerated by this court in Potter v. Goodwill Industries, 518 F.2d 864 (6th Cir.1975). A plaintiff must show “[1] that he is a member of a class entitled to the protection of the Civil Rights Act, [2] that he was discharged without valid cause, and [3] that the employer continued to solicit applications for the vacant position.” Id. at 865. Failure to prove any one of these elements by a preponderance of the evidences mandates a dismissal of the plaintiffs suit. Morvay v. Maghielse Tool & Die Co., 708 F.2d 229, 233 (6th Cir.), cert. denied, 464 U.S. 1011, 104 S.Ct. 534, 78 L.Ed.2d 715 (1983). Case law subsequent to McDonnell Douglas has emphasized that the prima facie method “was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). See also United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983). “The burden of establishing a prima facie case of disparate treatment is not onerous.” Burdine, 450 U.S. at 253, 101 S.Ct. at 1094. However articulated, the significance of the prima facie case is that it permits an “inference of discrimination ... because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Furnco, 438 U.S. at 577, 98 S.Ct. at 2949. Thus, “[t]he central inquiry in evaluating whether the plaintiff has met his initial burden is whether the circumstantial evidence presented is sufficient to create an inference [of discrimination].” B. Schlei and P. Grossman, Employment Discrimination Law 247 (Supp.1983-84). The essence of a- disparate treatment case is that “[t]he employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.” Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15. See also Furnco, 438 U.S. at 577, 98 S.Ct. at 2949. Rowe, 690 F.2d at 92. Accordingly, “individual disparate treatment ... cases generally require indirect evidence from which an inference of discriminatory motive may be drawn, namely, comparative evidence demonstrating that the treatment of the plaintiff differs from that accorded to otherwise ‘similarly situated’ individuals who are not within the plaintiff’s protected group.” B. Schlei & P. Grossman, supra, at 1291 (2d ed. 1983). A Title VII plaintiff supplies this indispensable comparative evidence at the prima facie stage through the last prong of the McDonnell Douglas test (as restated in Morvay) by identifying those individuals who are allegedly treated differently. See Hughes v. Chesapeake & Potomac Telephone Co., 583 F.Supp. 66, 69 (D.D.C.1983) (“Because no one replaced plaintiff when she was terminated, to make a prima facie case, plaintiff must show that non-minority employees with comparable records were not terminated.”). This explains the McDonnell Douglas Court’s articulation of this factor as requiring a showing “that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” 411 U.S. at 802, 93 S.Ct. at 1824 (emphasis supplied). Proof that a Title VII plaintiff belongs to a racial minority, that he was qualified for his position, and that he was fired, without more, simply fails to present evidence that the plaintiff “was rejected under circumstances which give rise to an inference of unlawful discrimination.” Burdine, 450 U.S. at 253,101 S.Ct. at 1094. Cf. Teamsters, 431 U.S. at 358 n. 44, 97 S.Ct. at 1866 n. 44. (“An employer’s isolated decision to reject an applicant who belongs to a racial minority does not show that the rejection was racially based.”). We do not mean to suggest that a Title VII plaintiff seeking to prove disparate treatment must always present evidence establishing the last prong of the McDonnell Douglas prima facie test. See Beaven v. Kentucky, 783 F.2d 672, 676 (6th Cir.1986). We do note, however, that in cases where courts have found that a Title VII plaintiff presented a prima facie case without proof that the employer continued to solicit applications, some additional evidence tended to establish the inference of discrimination. In particular, the plaintiffs were able to point to other individuals who were more favorably treated. For example, in Beaven, supra, we held that although plaintiff failed to show that his eliminated position was filled, the district court erred in failing “to consider Beaven’s status as a merit employee and the possibility that defendants had offered Beaven’s next position to a white employee.” Id. at 675. Similar reasoning can be found in Peters v. Jefferson Chemical Co., 516 F.2d 447, 450 (5th Cir.1975). Although the court declined in Peters to decide whether the plaintiff had established a prima facie case, it indicated that other factors “counterbalanced the fact that [the defendant] did not try to fill” plaintiff's former position. Id. The court observed that the decision not to fill the position came after the plaintiff’s rejection and that two other positions for which the plaintiff was qualified were filled subsequent to her termination. Id. Other cases have held that a plaintiff who was not replaced can nonetheless establish a prima facie case by showing that the defendant engaged in a pattern of racial discrimination which supports an inference that any particular employment decision, during the period the discriminatory policy was in force, was made pursuant to that policy. See, e.g., Wooten v. New York Telephone Co., 485 F.Supp. 748, 758-60 (S.D.N.Y.1980) (quoting Teamsters, 431 U.S. at 362, 97 S.Ct. at 1868.) This case differs from Tye v. Board of Education of the Polaris Joint Vocational School District, 811 F.2d 315 (6th Cir.1987). Tye was a reduction in force case where the task previously performed by the Title VII plaintiff was still being performed by someone. Precisely, that case involved the elimination of one of two guidance counselors. The school continued to have a counselor for each of its students but had less individuals performing that task. Thus, the “jobs” were consolidated but the task remained the same; each individual counselor merely had to work harder to perform that same task. We held that for purposes of establishing a prima facie case, the remaining counselor replaced the fired counselor. In this case, however, the task itself — and eventually the entire department — was actually eliminated. Under these facts, no one replaced the plaintiff. Nevertheless, plaintiff argues that the district court erred in requiring that he show that he was replaced because proof that GE undertook to fill the vacated position satisfies the requirements of a prima facie case. We do not disagree with plaintiff’s legal premise. Indeed, in Morvay and Potter, this court defined the last factor of the prima facie case as requiring that plaintiff show “that the employer continued to solicit applications for the vacant position.” Morvay, 708 F.2d at 233 (quoting Potter, 518 F.2d at 865). Nonetheless, any error by the district court in requiring plaintiff to show that he was replaced, rather than considering whether GE continued to accept applications, is not a ground for reversal because there is no genuine issue of material fact as to whether GE accepted applications for plaintiff’s position after his discharge. See Herm v. Stafford, 663 F.2d 669, 684 (6th Cir.1981) (“An appellate court can find an alternative basis for concluding that a party is entitled to summary judgment and ignore any erroneous basis relied upon by the district court, provided it proceeds carefully so the opposing party is not denied an opportunity to respond to the new theory.”); 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2716, at 658 (1983). In this case, plaintiff has not been denied an opportunity to respond as he has argued before this court that he presented evidence showing that GE continued to accept applications. Plaintiff first relies on his deposition testimony that Sharpstone interviewed someone by the name of Jaffee for the position of Business Development Manager. Although plaintiff initially stated that the interview was conducted in the late summer of 1982, he then corrected himself that he meant 1981. Plaintiff further deposed (as did Sharpstone) that the decision to discharge him was made in November 1981. An interview conducted some three months before the decision was made to discharge plaintiff is simply irrelevant. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824 (plaintiff must show that “after his rejection, the position remained open and the employer continued to seek applicants____”) (emphasis supplied). Plaintiff also relies on the deposition testimony of Palmer that GE interviewed persons for a position utilizing the slot vacated by plaintiff. However, Palmer’s uncontradicted testimony was that the position for which interviews were taken “bore no resemblance to the job that [plaintiff] had been doing for us.” In this regard we also place some significance on the fact that there is no indication in the record that the individuals plaintiff asserts were interviewed were not members of a protected group. In the absence of such proof, plaintiff’s attempt to establish a prima facie case is particularly unpersuasive. See Daniels v. Board of Education, 805 F.2d 203, 210 (6th Cir.1986); Hudson v. IBM, 620 F.2d 351, 354 (2d Cir.), cert. denied, 449 U.S. 1066, 101 S.Ct. 794, 66 L.Ed.2d 611 (1980). See also Valentino v. United States Postal Service, 674 F.2d 56, 63 (D.C.Cir.1982) (“To establish a prima facie case of discriminatory refusal to promote, a plaintiff need only ‘show that ... other employees of similar qualifications who were not members of the protected group were indeed promoted at the time the plaintiff’s request for promotion was denied.’ ”) (citation omitted; emphasis supplied); Hughes v. Chesapeake & Potomac Telephone Co., 583 F.Supp. 66, 69 (D.D.C.1983) (“To establish a prima facie case of racial discrimination, plaintiff must show that ... other employees with comparable qualifications and work records who were not members of a racial minority were not terminated.”) (emphasis supplied). As earlier noted, plaintiff’s failure to show that GE attempted to fill his vacated position is not fatal if he can establish other evidence raising an inference of disparate treatment. See, e.g., Beaven, supra, 783 F.2d at 675-76. For example, a plaintiff can establish a prima facie case by presenting evidence that similarly situated nonminority employees were not fired. See id. at 676; Hughes, supra, 583 F.Supp. at 69 (“Because no one replaced plaintiff when she was terminated, to make a prima facie case, plaintiff must show that non-minority employees with comparable records were not terminated.”). Plaintiff’s evidence does not, however, permit such a finding. Plaintiff first observes that he was the only employee of ACBD terminated for unsatisfactory job performance and the only eligible employee denied incentive compensation for 1981. However, there is no evidence that any other ACBD employees had work records and evaluations similar to plaintiff’s. Absent proof that other employees were similarly situated, it is not possible to raise an inference of discrimination. See Reynolds v. Humko Products, 756 F.2d 469, 472 (6th Cir.1985) (plaintiff failed to establish prima facie case of discrimination because he did not establish that other employees who “had committed offenses of the same magnitude” were subjected to less discipline); Hughes, supra, 583 F.Supp. at 69 (“plaintiff must show that non-minority employees with comparable records were not terminated.”). Plaintiff next points out that Bill Huff, the white, number three man in the department, was invited to meetings with Sharp-stone, but plaintiff was purposefully excluded. While this evidence might raise an inference of discrimination regarding plaintiffs treatment while employed, this is not the wrong for which plaintiff seeks recovery; viz., discriminatory discharge and denial of incentive compensation. The evidence regarding Huff does not have a close enough nexus to the discriminatory acts alleged as a basis for recovery to alone establish an inference of disparate treatment. Plaintiff next notes that a white employee named Jim Lehman, who had performance problems, was not terminated; instead, another job at a lower level was found for him. The evidence regarding Lehman is found in Mr. Palmer’s deposition. His uncontradicted testimony was that Lehman was treated differently in deference to his long service (twenty plus years) with the company. Thus, Lehman was not similarly situated to plaintiff, who had worked for GE for only nineteen months when Sharpstone decided to terminate his employment in November 1981. Accordingly, this evidence is insufficient to raise an inference of discrimination. Finally, we note that when asked what facts plaintiff had to support his allegation of discrimination, plaintiff generally set forth the following: (1) that he could not accept poor performance as the reason for his termination; (2) that Sharpstone refused to shake his hand; (3) that Sharp-stone failed to answer plaintiff’s memos; (4) that Sharpstone isolated plaintiff from the mainstream of the division; (5) that Sharpstone told him to leave their shared secretary alone when plaintiff gave her some work; and (6) that Sharpstone did not spell plaintiff’s name correctly. When plaintiff was asked whether he knew of anybody else that Sharpstone treated differently, plaintiff replied, “I did not spend any time finding out that____” Considered in the light most favorable to plaintiff, Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.), cert. dismissed, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979), we do not believe this evidence is sufficient to raise an inference of discrimination. In affirming the district court’s dismissal of plaintiff’s Title VII claim, we are not unaware that cases such as this, “involving questions of motive or intent are normally not suited to disposition on summary judgment.” Locke v. Commercial Union Insurance Co., 676 F.2d 205, 207 (6th Cir.1982) (per curiam) (Jones, J., dissenting) (citing First National Bank v. Cities Service Co., 391 U.S. 253, 284-85, 88 S.Ct. 1575, 1590, 20 L.Ed.2d 569 (1968)); Smith v. Hudson, supra, 600 F.2d at 66. Nonetheless, “[wjhile the factual disputes involved in most Title VII suits preclude their resolution on summary judgment, summary judgment is available in an appropriate Title VII case.” McKenzie v. Sawyer, 684 F.2d 62, 67 (D.C.Cir.1982) (citing Sagers v. Yellow Freight System, Inc., 529 F.2d 721, 729 (5th Cir.1976)). For the foregoing reasons, we conclude that plaintiff’s failure to establish evidence sufficient to raise an inference of disparate treatment entitled GE to summary judgment on plaintiff’s Title VII and section 1981 claims. Locke v. Commercial Union Insurance Co., 676 F.2d 205 (6th Cir.1982) (per curiam) (affirming district court’s grant of summary judgment for defendant in light of plaintiff’s inability to establish prima facie case in age discrimination action). In light of this disposition, we need not discuss the district court’s holdings on pretext and the availability of section 1981 to plaintiff. B. Implied Contract The final issue to be decided is whether the district court erred in dismissing plaintiff’s breach of implied contract claim. In his complaint, plaintiff alleged basically two implied contractual terms of employment. First, plaintiff alleged that GE failed to follow the terms of its Organization and Policy Guide, which provides that in cases where an employee’s performance is less than satisfactory, the company will provide the employee with a performance appraisal, provide him an opportunity to correct any alleged deficiencies, and make an effort to provide him with alternative employment opportunities within the company. Second, plaintiff alleged that GE discharged him without just and sufficient cause. As to his alleged first term of employment, the district court rejected “plaintiff's unilateral decision to construe his perceived rights under defendant’s policies as contractual.” As to his alleged second term of employment, the court held that “[sjince plaintiff’s discharge was not ‘motivated by the desire to punish [him] for seeking benefits to which he is entitled by law’, Firestone Textile Co. Div. v. Meadows, 666 S.W.2d 730, 734 (Ky.1983), he is terminable at will.” Op. at 35. Firestone, however, is not in point. Therein, the issue was “does a complaint seeking damages for wrongful discharge because an employee was terminated for pursuing a claim ... for workers’ compensation state a cause of action?” Id. at 731. The Kentucky Supreme Court held that such a claim is actionable. However, the court did not address the issue before us. In Firestone, as well as the other cases cited by the district court, it was a given fact that the employment relationship was “at will.” In the present case, the issue is whether Kentucky recognizes a cause of action for breach of an implied contract to discharge only for cause. In support of his position, plaintiff cites Shah v. American Synthetic Rubber Corp., 655 S.W.2d 489 (Ky.1983), wherein the plaintiff alleged that the defendant fired him without cause in violation of a contract that he would be fired only for cause in accordance with policies and procedures established by the defendant. In reversing the trial court’s grant of summary judgment in favor of the defendant, the Kentucky Supreme Court stated: Shah seeks enforcement of a covenant beyond one for permanent employment or employment for an indefinite term. He seeks relief for breach of ASRC’s covenant that if he survived the 90-day probationary period he could be fired only for cause — work-connected cause— in accordance with the policies and procedures of the company. Here the parties fixed the term of Shah’s employment— employment until he was fired for cause in accordance with the policies and procedures of the company. Enforceability of this covenant in a contract between an employer and an individual employee has not heretofore been decided in this jurisdiction. Protection of employees against discharge without cause is routinely provided under collective bargaining agreements as well as under civil service statutes and ordinances. See cases and statutes collected in 93 Harv.L.Rev. 1816, 1816, n. 1 (1980). It is there estimated that one-third of the entire national work force is accorded such protection. Employers and individual employees should be equally free to contract against discharge without cause, as Shah and ASRC are presumed for purposes of ASRC’s motion for summary judgment to have done. We join a number of other jurisdictions which hold that parties may enter into a contract of employment terminable only pursuant to its express terms — as “for cause” — by clearly stating their intention to do so, even though no other considerations than services to be performed or promised, is expected by the employer, or performed or promised by the employee. Id. at 491-92 (citations omitted; emphasis supplied). Therefore, it is clear that the district court erred in its implicit holding that, under Kentucky law, all employees are terminable at will unless the discharge was motivated by the desire to punish the employee for seeking benefits to which he is entitled by law. As stated, the district court also believed that plaintiffs proof established only a unilateral belief that GE’s policies were contractual. However, plaintiff presented copies of the policies and testified that they were shown to him during the preemployment negotiations and during his first week of employment. In Shah, the Kentucky Supreme Court stated: Whether Shah’s employment contract contained a “termination for cause only” covenant or whether he was fired, in accordance with company policies and procedures for one or more of the many causes alleged by ASRC cannot be resolved against him on ASRC’s Motion for a Summary Judgment. Murphy v. Taxicabs of Louisville, Inc., Ky., 330 S.W.2d 395 (1959). These issues must be resolved on a motion for a directed verdict or upon a jury verdict after a plenary trial on the merits and after application of the good faith standard established in Crest Coal Company, Inc. v. Bailey, Ky., 602 S.W.2d 425 (1980). 655 S.W.2d at 492 (emphasis supplied). Under this authority, the district court erred in granting summary judgment on plaintiff’s implied contract claim. III. For the reasons set forth above, the district court’s grant of summary judgment on, and dismissal of, plaintiffs Title VII and section 1981 claims is AFFIRMED. The district court’s grant of summary judgment in favor of GE on plaintiffs state law breach of contract claim is REVERSED, and the case is REMANDED for further proceedings not inconsistent with this opinion. We express no opinion as to the merits of plaintiff’s breach of contract claim. . The order and allocation of proof in a section 1981 case are the same as in a Title VII action. See Daniels v. Board of Education, 805 F.2d 203, 207 (6th Cir.1986). . Establishment of this factor is also significant in that it eliminates one of the most likely legitimate causes for the employer's adverse action — the absence of a job opening. See Teamsters, 431 U.S. at 358 n. 44, 97 S.Ct. at 1866 n. 44. B. Schlei & P. Grossman, supra, at 1299 (2d ed. 1983). . See supra note 1. . The court also held that the policies do not apply to plaintiffs position, citing Palmer’s deposition. As to this sub-issue, a disputed issue of material fact exists as Ms. Moran, a GE employee, deposed that the policies were applicable to ACBD employees. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_appel1_1_3	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. Donald H. FRIEZE, Appellee, v BOATMEN’S BANK OF BELTON, Appellant. No. 91-1030. United States Court of Appeals, Eighth Circuit. Submitted Sept. 13, 1991. Decided Dec. 2, 1991. Robert B. Hoemeke, St. Louis, Mo., argued (John J. Moellering and Curtis C. Callow, St. Louis, Mo., on the brief), for appellant. G. Edwin Proctor, Jr., Kansas City, Mo., argued, for appellee. Before McMILLIAN, FAGG, and WOLLMAN, Circuit Judges. FAGG, Circuit Judge. Donald H. Frieze brought this action against Boatmen’s Bank of Belton (Boatmen’s) under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1982 & Supp. Ill 1985). Boatmen’s appeals the district court’s denial of its motion for judgment notwithstanding the verdict. We reverse. We state the facts in the light most favorable to Frieze, who won the verdict. See Caudill v. Farmland Indus., 919 F.2d 83, 86 (8th Cir.1990). Boatmen’s corporate predecessor hired Frieze in October 1979 when Frieze was forty years old. During his employment with Boatmen’s, Frieze primarily made and collected loans. Frieze advanced from making simple consumer loans to making more sophisticated commercial and real estate loans. Boatmen's always rated Frieze as either competent or superior on his performance evaluations. In May 1983 Frieze’s supervisor in the loan department, Edwin Hartzler, was promoted to president of Boatmen’s. Boatmen’s hired Jerry Martin as senior vice-president to replace Hartzler as head of the loan department. Boatmen’s made Frieze an assistant vice-president, but Frieze’s duties did not change. In November 1986 Martin told Frieze to prepare a stock appraisal for a loan file. Frieze had reviewed the customer’s appraisal of the stock, but had not prepared his own appraisal. Angered by Martin’s request, Frieze prepared the stock appraisal and signed it, “[Pjersonally by God looked up by me—D.H. Frieze.” Later that month, Hartzler terminated Frieze’s employment at Boatmen’s. Hartzler told Frieze he was being discharged because of the defiant notation he made on the stock appraisal. Frieze admits making the notation was unprofessional. Boatmen’s did not hire another loan officer when it discharged Frieze. Martin and two other loan officers, Deborah Catron and John West, absorbed the work Frieze had performed. Martin was forty-four, Ca-tron was thirty-one, and West was thirty-seven. Almost five months after Frieze was discharged, Martin resigned from Boatmen's to take a position at another bank. Boatmen’s then promoted Catron to assistant vice-president and West to vice-president. In May 1987 Boatmen’s hired John Dix Wellington as a management trainee. Wellington was twenty-four years old and had no banking experience. Wellington began working in the loan department in September 1987, but did not make his first loan until February 1988. Wellington did not begin making commercial and real estate loans until 1989, more than two years after Boatmen’s discharged Frieze. Frieze brought this action asserting Boatmen’s stated reason for discharging him was a pretext and Boatmen’s really fired him because of his age. The jury returned a verdict in favor of Frieze. In deciding whether Boatmen’s is entitled to judgment notwithstanding the adverse jury verdict, we must consider the evidence in the light most favorable to Frieze, assume all conflicts in the evidence were resolved by the jury in Frieze’s favor, assume Frieze proved all facts his evidence tends to prove, and give Frieze the benefit of all favorable inferences that may reasonably be drawn from the proven facts. Caudill, 919 F.2d at 86. A judgment notwithstanding the verdict “should be granted only when all the evidence points one way and is susceptible of no reasonable inferences sustaining [Frieze’s] position.” Washburn v. Kansas City Life Ins. Co., 831 F.2d 1404, 1407 (8th Cir.1987); see also Caudill, 919 F.2d at 86. Boatmen’s claims a jury could not reasonably infer Frieze was discriminated against on the basis of age. We agree. In reaching this conclusion, we have considered the evidence favoring Frieze and uncontradicted evidence of Martin’s departure and Wellington’s arrival. See Cau-dill, 919 F.2d at 86. It is not our task to assess the soundness of Boatmen’s decision to terminate Frieze. See Wilkins v. Eaton Corp., 797 F.2d 342, 343 (6th Cir.1986). “[0]ur role is to ascertain whether the record contains evidence from which a reasonable [jury] could have concluded that age discrimination was a determining factor in [Frieze’s] dismissal.” Brooks v. Monroe Sys. for Business, Inc., 873 F.2d 202, 204 (8th Cir.), cert. denied, 493 U.S. 853, 110 S.Ct. 154, 107 L.Ed.2d 112 (1989). Frieze contends the absorption of his work by other members of the loan department creates a reasonable inference of age discrimination because some of the members were under forty. We disagree. Employers often distribute a discharged employee’s duties to other employees performing related work for legitimate reasons. Boatmen’s distributing Frieze’s work to other members of the loan department does not increase or decrease the likelihood that Boatmen’s discharged Frieze because of his age. Frieze presented no evidence that his discharge was part of a pattern of Boatmen’s discharging employees over forty and distributing their work to younger employees. See Morgan v. Arkansas Gazette, 897 F.2d 945, 950-51 (8th Cir.1990). Thus, the absorption of Frieze’s work by other employees in Boatmen’s loan department does not permit a reasonable inference of discrimination. Although Frieze is entitled to the benefit of all reasonable inferences, an inference is reasonable only if it can be drawn from the evidence without resort to speculation. See Caudill, 919 F.2d at 86. Frieze also contends Boatmen’s hiring Wellington creates a reasonable inference of age discrimination. We disagree. Boatmen’s hired Wellington only after Martin resigned from the bank, nearly five months after Frieze was discharged. Given Wellington’s total lack of banking experience and the time lag between Frieze’s discharge and Wellington’s emergence in the loan department as a loan officer, the jury could not reasonably infer Boatmen’s hired Wellington to replace an experienced loan officer like Frieze. See De Arteaga v. Pall Ultrafine Filtration Corp., 862 F.2d 940, 943 (1st Cir.1988). Thus, Boatmen’s hiring Wellington does not create a reasonable inference of age discrimination. Similarly, Boatmen’s promoting Catron and West does not create a reasonable inference of age discrimination because Catron and West were not promoted until Martin resigned from Boatmen’s. In an attempt to discredit Boatmen’s stated reason for firing him, Frieze presented evidence showing Martin was not terminated when he made a loan without performing a stock appraisal. Frieze contends the difference between Boatmen’s treatment of him and Boatmen’s treatment of Martin shows Boatmen’s stated reason for firing Frieze was a pretext, and thus, creates an inference of discrimination. Discrediting an employer’s stated reason for discharging an employee can create an inference of age discrimination. See MacDissi v. Valmont Indus., 856 F.2d 1054, 1059 (8th Cir.1988). Boatmen’s stated reason for firing Frieze, however, was not Frieze’s failure to perform a stock appraisal. Thus, evidence that Martin was not fired when he failed to perform a stock appraisal does not create an inference that Boatmen’s discriminated against Frieze. Frieze also contends Boatmen’s rating Frieze as competent in its employee performance evaluations discredits Boatmen’s stated reason for firing Frieze. An employer rating an employee as competent discredits the employer’s stated reason for discharging the employee, however, only when the employer’s stated reason is the employee’s general incompetence. See La Montague v. American Convenience Prods., 750 F.2d 1405, 1414 (7th Cir.1984). Boatmen’s stated reason for discharging Frieze was Frieze’s insubordinate response to his superior’s insistence on an in-house stock appraisal, not Frieze’s incompetence. Thus, Boatmen’s rating Frieze as competent does not give rise to an inference of discrimination. Finally, Frieze contends comments made to him by Boatmen’s employees create an inference of age discrimination. More than four years before Hartzler discharged Frieze, Hartzler told Frieze that Frieze had “waited too long ... to start [his] effort towards becoming president of a bank and [Frieze] would never make it.” Hartzler made this comment during a general discussion with Frieze about their personal goals. Hartzler had not yet become president of Boatmen’s. Martin and the bank’s cashier also told Frieze that Frieze “was too old and ... had too little rank ... [to become] president of a bank.” When Hartzler terminated Frieze, Hartzler suggested Frieze could not work within the bank’s framework. Martin’s and the cashier’s comments do not create a reasonable inference of age discrimination because Martin and the cashier did not take part in the decision to discharge Frieze. La Montagne, 750 F.2d at 1412. Hartzler’s statement about Frieze’s chances to become president of a bank does not create a reasonable inference of discrimination because Hartzler made this stray remark more than four years before he discharged Frieze. See Guthrie v. Tifco Indus., 941 F.2d 374, 378-79 (5th Cir.1991). Similarly, Hartzler’s statements about Frieze not being able to fit into the bank’s framework are too vague to create a reasonable inference of age discrimination. See id. In sum, we conclude the evidence in this case does not support the jury’s verdict that Frieze was discharged because of his age. Accordingly, we reverse and remand to the district court to enter judgment notwithstanding the verdict in Boatmen’s favor. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_applfrom	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). LOCAL 33, INTERNATIONAL HOD CARRIERS BUILDING AND COMMON LABORERS’ UNION OF AMERICA, Plaintiff-Appellant, v. MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK and Local 23, International Hod Carriers Building and Common Laborers’ Union of America, Defendants-Appellees. No. 315, Docket 26677. United States Court of Appeals Second Circuit. Argued April 11, 1961. Decided June 8, 1961. Howard N. Meyer, New York City (Paul O’Dwyer and O’Dwyer & Bernstien, New York City, on the brief), for plaintiff-appellant. Ernest Fleischman, New York City (Aaron Weissman and Delson, Levin & Gordon, New York City, on the brief), for defendant-appellee, Mason Tenders Dist. Council of Greater New York. Helen Minkin, New York City (Giuffre & Minkin, New York City, on the brief), for defendant-appellee, Local 23, International Hod Carriers Building and Common Laborers’ Union of America. Before CLARK, MEDINA and FRIENDLY, Circuit Judges. MEDINA, Circuit Judge. On a series of motions and cross-motions that we shall later describe in some detail the District Court has dismissed the complaint of Local 33, International Hod Carriers Building and Common Laborers’ Union of America for failure to state a claim upon which relief can be granted under Section 301 (a) of the Labor-Management Relations Act, 29 U.S.C.A. § 185(a), and Local 33 appeals. Chief Judge Ryan’s opinion is reported at 186 F.Supp. 737. The action is one for a declaratory judgment and for injunctive relief, based upon an alleged “agreement, custom and practice” concerning the assignment or allocation of work by Mason Tenders on building construction in the City of New York. While, as will later appear, we have decided that there was no such “agreement, custom or practice” as is alleged, and that summary judgment for appellees should have been granted for this reason, and also because the record clearly discloses that Local 33 had not exhausted its contractual administrative remedies within the framework of the Constitutions of the Unions, there is necessarily involved in limine the question of the jurisdiction of the District Court to consider the case under Section 301(a) of the Labor-Management Relations Act, 29 U.S.C.A. § 185(a). The dispute itself is simple enough. There was an old hotel at 33 West 51st Street, in New York City. Because the condition of a parapet on the roof of the hotel had become a source of danger it was repaired, and some Mason Tenders, members of defendant Local 23 of the International Hod Carriers Building and Common Laborers’ Union of America, were employed by Turner Construction Company for a few days in December, 1956, repairing the parapet. The business agent of Local 23 promptly appointed a shop steward and, as required by the Union rules, he notified the defendant Mason Tenders District Council of Greater New York. In the course of time the hotel was torn down and the land on which it stood was used for a time as a parking space for automobiles. In 1959 the construction of the new Zeckendorf Hotel, as it was called, was commenced on a large parcel, which included the site of the hotel that had been demolished. The work began on August 3, 1959 and the first two Mason Tenders to be employed by the contractor, Fuller Construction Company, were Richard Fitzsimmons and Patrick Kelly, members of Local 33. The business agent of Local 33 at once appointed Patrick Kelly “as shop steward for this construction job” and sent the customary notification to the District Council. Shortly thereafter Local 23 claimed to be entitled to designate the shop steward because of the repairs in 1956 to the parapet on the roof of the old hotel, on part of the Zeckendorf Hotel job site. Each of the two locals rested its claim upon a so-called custom or practice that is said to have been recognized by the Mason Tenders in New York City for many years. The Hod Carriers Building and Common Laborers’ Union consists of several separate but affiliated labor organizations formed in accordance with a more or less common type of system or plan. In the New York metropolitan territory there are five Locals of Mason Tenders, including Local 23 and Local 33. Next higher up is the Mason Tenders District Council of Greater New York. At the top is the International. Each of these Unions is a separate entity, but each is contractually bound to the others by the terms of their respective Constitutions, especially the Constitution of the International. The District Council is given jurisdiction, supervision and control of all matters relating to agreements with employers in the City of New York, with power to discipline its Locals for violations and compel obedience by them to the Constitution of the International. Elaborate and detailed procedures are prescribed for the processing of grievances, such as is the basis of the claim of Local 33 in this case, and under Article 13, Section 1 of the Constitution of the International, it is provided that neither the District Council nor any of the affiliated Locals shall resort to a court in any matter involving a question arising out of their membership until they have first exhausted the remedies provided by the respective Constitutions of the International, the District Council and the Local. All these documents are in the record before us here. The first step was an appeal by Local 33 to the administrative head of the District Council and he promptly ruled in favor of Local 23. The Collective Bargaining Agreement between the Building Contractors Employers Association, Inc. and the District Council, effective from July 1, 1957 to June 30, 1960 merely provided in Article VII, Section 1: “Where Mason Tenders are employed on a job, the Union shall designate a shop steward who shall be the second man on the job up to the completion of the job.” There was no strike, no coercion or pressure of any kind brought to bear on the employer or upon anyone else. Local 33’s shop steward was out and Local 23’s was in. Thereafter, on September 8, 1959, and in accordance with the procedure prescribed in the Constitutions, Local 33 filed a grievance with the District Council. The Executive Board, after a hearing, decided in favor of Local 23, and Local 33 was informed of this decision by letter of October 14, 1959. This action was confirmed by vote of the entire District Council, including the other affiliated Locals, having the same standing in the framework of the Unions as Locals 23 and 33, and a letter notifying Local 33 of this action was sent on November 19, 1959. In the meantime counsel for Local 33 had been diligently dictating letters. Complaint was made that Local 33 had not been afforded at the hearings or meetings the opportunity of counsel and the right to its own stenographer, although we find nothing in any of the Constitutions of the various Unions to indicate that any such right existed, and it was protested that the failure to deliver a copy of the minutes of the hearing before the Executive Board impaired the right of Local 33 to appeal to the International. There was much dust thrown in the air. We have no way of knowing whether Local 33 and its advisers really thought it was being deprived of its right of appeal to the International, or was merely building up an excuse to by-pass the appeal and throw the controversy into the District Court. On November 23, 1959 Local 33 again requested a copy of the minutes, and a copy of this letter was sent to the International. The whole tenor of Local 33’s letters of November 11 and 23, 1959 was to the effect that it intended to appeal to the International. Thus it was quite natural, we think, for the International to inform Local 33 on December 29, 1959 that the International treated Local 33’s letters of November 11 and 23 as notices of appeal to the General Executive Board of the International within the 30 days allowed for such an appeal, and the case was put on the January, 1960 calendar. Both Local 33 and the District Council were directed to submit as soon as possible “copies of all papers and documents or other data required by the Constitution in connection with such matters.” This, of course, included the minutes about which Local 33 was making such a fuss. The complaint in this action was filed on December 30, 1959, the defendants were served on January 5, 1960, and Local 33’s appeal to the General Executive Board of the International was adjourned because it was thought that it might interfere with the action before the District Court. We think it quite clear that the appeal is still pending and that Local 33 has not exhausted its contractual administrative remedies. It will also suffice to say by way of preliminary that the papers submitted in support of and in opposition to appellant’s motion for summary judgment disclose a welter of miscellaneous charges and counter-charges out of which the only inference we can draw with reasonable certainty is that there was at no time any agreement whatever such as was claimed by Local 33, or any custom or practice sufficiently definite to be worthy of the name. The critical terms of the so-called “custom and practice” were in a state of flux and we cannot go further than to say that Local 33 had hopes that some agreement on the terms of the “custom and practice” might finally, some day be made. Thus, if we have power to decide the case, we must direct a dismissal of the case on the merits, because there is no such “agxeement, custom and practice” as was claimed. Moreover, summary judgment would also be required because, even if there were such an “agreement, custom and practice,” Local 33 has not exhausted its contractual administrative remedies. In order to treat the subject of jurisdiction with any degree of clarity, however, we must now examine the complaint, catalogue the various motions made by the parties, and examine the reasons for the dismissal below, which was not for lack of jurisdiction, or. for failure to exhaust administrative remedies, but for failure to state a claim on which relief can be granted under Section 301(a) of the Labor-Management Relations Act, 29 U.S.C.A. § 185(a). The complaint alleges jurisdiction under Section 301(a); the other legislation cited on the subject of jurisdiction is plainly inapplicable. The parties are alleged to be labor organizations, and the “contract” sued upon is set forth in the following manner: “Eighth: In order to enable said Locals to secure an equitable distribution among their members of such employment opportunities as might be available in their territorial jurisdiction, the plaintiff, the defendants and other Locals referred to herein agreed: “(a) By custom and practice, of long standing, that when a new construction job was commenced, the jurisdiction over such job and preference in appointing a shop steward should be vested in the Local to whom the first two men employed on the job belong; and (b) That all disputes in the interpretation and application of such custom and practice should be objectively and justly determined by the defendant Council.” Reference is made to the Collective Bargaining Agreement and to the exclusion of Local 33 from the so-called Zeckendorf Hotel job. With reference to the grievance procedure pursuant to the provisions of the Constitutions of the respective unions, it is alleged that the District Council “went through the form of a hearing,” proceeded to make a decision against Local 33 “contrary to and irrespective of the facts and merits,” and .then prevented an appeal to the General Executive Board of the International by refusing to furnish Local 33 with a copy of the minutes above referred to. The relief prayed is a declaration that, “under the agreements in effect, and the custom and practice prevailing in the construction industry in the City of New York,” Local 33 had duly appointed a shop steward and that it is entitled to priority of employment on the Zeckendorf Hotel job. Other collateral relief is requested, including an injunction. The District Council filed three motions: (1) On January 5, 1960, to dismiss the complaint for lack of jurisdiction over subject matter, claiming inter alia that the complaint “does not disclose a cause of action” under Section 301 (a); (2) on February 17, 1960, to dismiss the complaint for lack of jurisdiction over subject matter, because of failure to exhaust its remedies “within the International Hod Carriers and Common Laborers’ Union of America”; (3) on April 5, 1960, again to dismiss the complaint for lack of jurisdiction over subject matter, because the National Labor Relations Act “confers primary jurisdiction over disputes relating to assignments of work to the National Labor Relations Board.” In the meantime, on March 1, 1960, Local 23 made a motion to dismiss the complaint for failure to exhaust union remedies and for lack of jurisdiction under Section 301(a); and, on March 14, 1960, Local 33, plaintiff-appellant, moved for summary judgment and for a preliminary injunction. Neither the District Council nor Local 23 made a cross-motion for summary judgment. By the time Chief Judge Ryan took these motions under advisement the record had grown and grown, until all the pertinent documents and numerous affidavits pro and con had placed before the Court all the proofs necessary to dispose of the case on the merits. The decision below was to the effect: (1) That there had been a failure to exhaust contractual remedies as required by the Constitutions of the Unions, and that the Court “would be warranted in the exercise of our discretion in dismissing the complaint as not presenting a controversy ripe for declaratory judgment”; and (2) that, although the parties were “labor organizations” and an “unwritten custom and practice constitutes a contract within the statute” [Section 301(a) ] the inconveniences attendant upon throwing such controversies into the federal courts were such that it was to be inferred that the Congress did not intend by Section 301(a) to authorize the District Courts to hear and determine “this type of suit.” On the basis of this reasoning the complaint was dismissed for failure to state a claim under Section 301(a). I The provisions of Section 301(a) are simple and direct and there appears to be nothing ambiguous about them. The statute reads: “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties:” The parties here are clearly labor organizations within the meaning of Section 301(a), according to the definition of “labor organization” in 29 U.S.C.A. § 152(5), made applicable to Section 301 (a) by 29 U.S.C.A. § 142(3); and there is no dispute over the fact that these “labor organizations” represent employees in an industry affecting commerce as defined in the Act. We say this despite the fact that there is a difference of opinion in the District Courts over whether Section 301(a) is applicable to intra-union disputes. Compare Sun Shipbuilding & Dry-Dock Co. v. Industrial Union, D.C.E.D.Pa.1950, 95 F.Supp. 50; Kriss v. White, D.C.N.D.N.Y.1949, 87 F.Supp. 734; Snoots v. Vejlupek, D.C.N.D.Ohio 1949, 87 F.Supp. 503, with Local 2608, Lumber & Sawmill Workers, etc. v. Millmen’s Local, D.C.N.D.Cal.1958, 169 F.Supp. 675; cf. Burlesque Artists Ass’n v. American Guild of Variety Artists, D.C.S.D.N.Y.1958, 187 F.Supp. 393; Local 1104, etc. v. Wagner Elec. Corp., D.C.E.D.Mo.1951, 109 F.Supp. 675. In the absence of some indication to the contrary in the legislative history we think it plain on the face of the statute that the District Courts have jurisdiction where the complaint alleges the violation of a contract between labor organizations representing employees in an industry affecting commerce, as the term “labor organization” is defined in 29 U.S.C.A. § 152(5). As Section 301(a) confers federal question jurisdiction in the District Courts, Textile Workers Union of America v. Lincoln Mills, 1957, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, we think the District Court gets such jurisdiction upon the commencement of an action in which the complaint discloses a claim by one labor organization against another “for violation of” an alleged contract. The plaintiff may turn out to be “right or wrong,” the case may be won or lost on the merits, but the District Court has jurisdiction. See Cunningham v. Erie Railroad Company, 2 Cir., 1959, 266 F.2d 411. See also Bell v. Hood, 1946, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939. Under the Federal Rules of Civil Procedure pleadings are to be liberally construed. F.R.Civ.P., Rule 8(f), 28 U.S.C.A. Beacon Theatres, Inc. v. Westover, 1959, 359 U.S. 500, 506, 79 S.Ct. 948, 3 L.Ed.2d 988; Conley v. Gibson, 1957, 355 U.S. 41, 47, 48, 78 S.Ct. 99, 2 L.Ed.2d 80; Moore’s Federal Practice, Vol. 2, pp. 1605, 1711, 2245. We do not see how we can apply a less liberal or more strict rule of construction because the case involves a labor dispute. The fair intendment of the pleading here is to assert the existence of an agreement or contract between the parties, namely a “custom and practice, of long standing” to the terms of which the parties had agreed. Indeed, we do not see how the allegations of the complaint can mean anything else. Perhaps in the field of labor relations, as elsewhere, there may be a host of miscellaneous vague and ill-defined practices and customs that are wholly unenforceable in court. This would seem to be no reason to refuse relief when the proof establishes a practice or custom that is not vague and ill-defined and one that the parties have agreed shall control their conduct. Moreover, we see no basis for construing Section 301(a) as applicable only to collective bargaining agreements, compare Retail Clerks Int’l Ass’n v. Lion Dry Goods, Inc., D.C.N.D.Ohio, 1959, 179 F.Supp. 564, affirmed 6 Cir., 1960, 286 F.2d 235, certiorari granted 1961, U.S., 81 S.Ct. 1094; Sun Shipbuilding & Dry-Dock Co. v. Industrial Union, supra, with United Textile Workers, etc. v. Textile Workers Union, 7 Cir., 1958, 258 F.2d 743; Burlesque Artists Ass’n v. American Guild of Variety Artists, supra; Local 2608, Lumber & Sawmill Workers, etc. v. Millmen’s Local, supra, or as restricted to written contracts. Cf. Hamilton Foundry & Machine Co. v. International M. & F. Workers, 6 Cir., 1951, 193 F.2d 209, certiorari denied 1952, 343 U.S. 966, 72 S.Ct. 1060, 96 L.Ed. 1363. II This brings us to the heart of the case. Despite everything we have just written and despite the plain language of Section 301(a), it is arguable, and it is the principal reason given by Chief Judge Ryan for his decision below, that it was the intention of the Congress, as expressed in the National Labor Relations Act “to avoid diversity and conflict of opinion and to foster harmony in the labor field and stabilize industrial relations by entrusting administration of the nation’s labor policy to a centralized administrative agency,” 186 F.Supp. at pages 744-745, and that the only body properly equipped to handle this type of controversy is the National Labor Relations Board. Thus reading Section 301 (a) and the various provisions of the National Labor Relations Act together, and exercising a “play of judicial judgment,” Chief Judge Ryan concluded it was not the intention of the Congress to give the District Courts jurisdiction over “a family squabble” between two groups of the same labor organization that concerned the “various members of the same family and no one else.” Accordingly, he thought the reasoning of Judge Mathes in International Union, etc. v. Metal Polishers, etc. Union, D.C.S.D.Cal.1960, 180 F.Supp. 280, involving a no-raiding agreement between two unions, was analogous and persuasive; and he disagreed with the decision by the Seventh Circuit in United Textile Workers, etc., v. Textile Workers Union, 7 Cir., 1958, 258 F.2d 743, reluctantly followed by Judge Halbert in Local 2608, Lumber & Sawmill Workers, etc. v. Millmen’s Local, D.C.N.D.Cal.1958, 169 F.Supp. 765. If this reasoning is to prevail and the controversy in this case is one within the exclusive power of the National Labor Relations Board to determine, the District Court would lack competence to decide the case on the merits and the dismissal should have been for lack of jurisdiction over subject matter. This was the disposition made by Judge Mathes in the Metal Polishers case, supra, 180 F.Supp. at page 287. See also Association of Westinghouse Salaried Employees v. Westinghouse Elec. Corp., 1955, 348 U.S. 437, 75 S.Ct. 488, 99 L.Ed. 510, affirming a judgment of dismissal for lack of jurisdiction by the Third Circuit, 1954, 210 F.2d 623. The question is a prickly one and we think it better to face the problem frankly rather than to muddy the waters by deciding the merits and evading the issue of jurisdiction. The plain truth of the matter is that the Congress adopted the clause “or between any such labor organizations,” without any realization of the Pandora’s box it was thus opening up, and the most diligent examination •of the legislative history turns up nothing of real significance that is relevant to the matter under discussion. United Textile Workers, etc. v. Textile Workers Union, supra. Perhaps it is fair to conclude that where the contract sued upon impinges upon some clearly established activities of the NLRB a District Court must step aside or at least stay its hand. The reasons stated by Judge Mathes in the Metal Polishers case are cogent ones, as a no-raiding agreement between unions deals with representation disputes. In such an agreement a union agrees it will not seek to represent employees doing certain work. This may be in direct conflict with the National Labor Relations Act’s theory of free employee choice of a representative, see Sections 7 and 9 [29 U.S.C.A. §§ 157, 159], and the conflicts with the NLRB reflected in the Textile Workers and Lumber & Sawmill Workers cases above cited are certainly to be avoided if possible. But we decide nothing as to no-raiding agreements, as none such are before us now. What we do have before us is a work assignment dispute between Local 33 and Local 23 as to which local has the right to designate the shop steward on a particular job. The significant provisions of the National Labor Relations Act dealing with the role of the NLRB in work assignment disputes are to be found in Sections 8(b) (4) (D) and 10(k) of the Act. 29 U.S.C.A. §§ 158(b) (4) (D), 160 (k). Including subdivision (ii) of Section 8(b) (4) (D), added to the section by amendment in 1959, 73 Stat. 542, Section 8(b) (4) (D) in pertinent part reads: “(b) It shall be an unfair labor practice for a labor organization or its agents— * * * “(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is— * * “(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class * * * ” Section 10(k) provides: “(k) Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 158(b) of this title [i. e., Section 8(b) of the Act], the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed.” It is obvious from reading these sections that this statutory scheme does not purport to give the Board general supervisory powers over controversies between labor organizations relating to work assignments. The Board may act only when a charge has been filed, and a mere disagreement over work assignments is not enough to create an unfair labor practice. Before a labor organization can be said to have violated Section 8(b) (4) (D), it must have engaged in one of the activities proscribed in Section 8(b) (4) (i) and (ii). Here none of the labor organizations involved have engaged in any of these proscribed activities. There was no strike or threat of a strike, no inducement or encouragement, nor any threat, coercion or restraint upon any employer or anyone else. Local 33 sought only to assert its union rights within the framework of the arrangement among the labor organizations which were parties to the alleged agreement, and by bringing this suit against the District Council and Local 23. The only things here that could conceivably come within the words “to threaten, coerce, or restrain” used in Section 8(b) (4) (ii) are the acrimonious exchanges between Local 33 and the District Council, growing out of efforts to settle the dispute. Surely, Congress intended something more than this when it used these words. Under these circumstances, we do not see how the NLRB could have passed on this controversy in any way. Nor is there any basis whatever for the filing of a charge with the NLRB alleging violation of Section 8(b) (4) (D) against any of the parties to this litigation or anyone else. Moreover, a reading of Section 10 (k) of the National Labor Relations Act, 29 U.S.C.A. § 160 (k), above cited reveals the emphasis which Congress has placed on voluntary adjustment of work assignment disputes and dispels any notion that uniformity of decision is a paramount consideration in this area, for certainly the results reached in voluntary adjustments such as those in arbitration will not always be the same the Board would have reached if it had heard a particular case. We think to hold that the District-Court has no jurisdiction would run counter to the position which Congress has accorded to voluntary adjustments. See Meltzer, The Supreme Court, Congress,, and State Jurisdiction over Labor Relations: II, 1959, 59 Colum.L.Rev. 269,. 299. We thus conclude that in a case such as the present one, where there is no likelihood whatever of conflict with the NLRB, there is no basis whatever for holding that the District Court lacks jurisdiction. See Note, 1959, 59 Colum.L. Rev. 202, 204. The fact that plaintiff in its prayer for relief seeks, inter alia, a declaration that it is entitled to priority of employment on the job would not be a reason for concluding that the District Court lacked jurisdiction. That such relief would run counter to the policy expressed in Section 8(b) (2) of the National Labor Relations Act, 29 U.S.C.A. § 158(b) (2), might only warrant the District Court to deny it in the exercise of its jurisdiction. This we do not decide. If we were to decide that the District Court lacked jurisdiction, we think we would emasculate Section 301(a) and leave the parties to contracts between labor organizations wholly at the mercy of those who wish to repudiate their bargains without having any valid reason to ■do so. This is the inevitable result if neither the NLRB nor the courts have power to afford redress. It is difficult for us to see how any such result, in the face ■of the plain language of Section 301(a), •can be beneficial to labor. Ill There remains the question “whether there is authority to grant summary judgment for defendants in the ab•senee of a cross-motion for summary judgment. It is Professor Moore’s view that such a motion would be a mere formality and is unnecessary in a situation •such as we have before us, where the proofs before the court show plaintiff has no case. Moore’s Federal Practice, Yol. 6, pp. 2088-9. Although the writer ■of this opinion expressed a contrary opinion in 1948 as a District Judge, Truncale v. Blumberg, D.C., 8 F.R.D. 492, he is glad to take this occasion to state that he has changed his mind. Especially where there are several motions by the respective parties and the evidence of the facts bearing on the issues arising out of the complaint is all before the court in affidavit form, it is most desirable that the court cut through mere outworn procedural niceties and make the same decision as would have been made had defendant made a cross-motion for summary judgment. Accordingly, the judgment is affirmed but as a summary judgment for defendants, rather than as a dismissal for failure to state a claim on which relief can be granted. Appellee Local 23’s motion to strike certain portions of appellant’s appendix is denied. . The clause was added to Section 301(a) late in its history by the Conference Committee. There is no indication in either the Conference Report or in the post-conference debates as to exactly what was intended to be accomplished by this addition. The only reference to it is contained in a summary of the principal differences between the bill passed by the Senate and the bill which came out of conference, prepared by Senator Taft and inserted in the Congressional Record. In this summary it was merely stated that “Section 301 differs from the Senate bill in two respects. Subsection (a) provides that suits for violation of contracts between labor organizations, as well as between a labor organization and an employer, may be brought in the Federal Courts. * * * ” NLRB, Legislative History of the Labor Management Relations Act, 1947, Vol. 2, p. 1543; 93 Cong. Rec. 6445. . What was written in 1948 was; “While it is my personal preference that the summary judgment rule be made as flexible and expeditious as possible, so that the full potentialities of this procedural device may be realized, I cannot persuade myself that Rule 56 was intended to permit an adjudication on the merits favorable to the party opposing a motion for summary judgment, without a cross-motion. This view is confirmed by the circumstance that this very question of the necessity for a cross-motion received thoughtful consideration by the Advisory Committee at the time of the formulation of the amendments, which took effect in March of this year. The decision by the Advisory Committee that no change should be made, would seem to be a clear indication that such relief should not now be granted in the absence of a cross-motion. After all, there will in most cases be little delay and no substantial inconvenience if the cross-motion is required. “Accordingly, I shall hold the papers for an additional two weeks in order that counsel may have an opportunity to make a cross-motion, if they desire to do so.” Since then several courts have held a cross-motion for summary judgment not to be necessary, e. g., Hennessey v. Federal Security Adm’r, D.C.D.Conn.1949, 88 F.Supp. 664; American Auto Ins. Co. v. Indemnity Ins. Co. of North America, D.C.E.D.Pa.1952, 108 F.Supp. 221, affirmed 3 Cir., 1956, 228 F.2d 622; Farmers Ins. Exchange v. Allstate Ins. Co., D.C.E.D.Mich.1956, 143 F.Supp. 213, and we are content to follow them. In the new revision of the Federal Rules of Civil Procedure there is reason to hope that there will be some specific provision to the effect that a cross-motion is not required. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
sc_certreason	L	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. WATTS et al. v. SEWARD SCHOOL BOARD et al. No. 325. Argued March 26, 1968. Decided June 3, 1968. George Kaufmann argued the cause and filed briefs for petitioners. Theodore M. Pease, Jr., argued the cause and filed a brief for respondents. Per Curiam. The judgment is vacated and the case is remanded to the Supreme Court of Alaska for further consideration in light of Pickering v. Board of Education of Township High School District 205, Will County, ante, p. 563. Mr. Justice Douglas, with whom Mr. Justice Black joins, would reverse the judgment outright for the reasons stated by him in Pickering v. Board of Education, ante, p. 575. Mr. Justice White dissents. Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:
sc_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 TIMES FILM CORP. v. CITY OF CHICAGO et al. No. 34. Argued October 19-20, 1960. Decided January 23, 1961. Felix J. Bilgrey and Abner J. Mikva argued the cause and filed a brief for petitioner. Robert J. Collins and Sydney R. Drebin argued the cause for respondents. With them on the brief was John C. Melaniphy. Mr. Justice Clark delivered the opinion of the Court. Petitioner challenges on constitutional grounds the validity on its face of that portion of § 155-4 of the Municipal Code of the City of Chicago which requires submission of all motion pictures for examination prior to their public exhibition. Petitioner is a New York corporation owning the exclusive right to publicly exhibit in Chicago the film known as “Don Juan.” It applied for a permit, as Chicago’s ordinance required, and tendered the license fee but refused to submit the film for examination. The appropriate city official refused to issue the permit and his order was made final on appeal to the Mayor. The sole ground for denial was petitioner’s refusal to submit the film for examination as required. Petitioner then brought this suit seeking injunctive relief ordering the issuance of the permit without submission of the film and restraining the city officials from interfering with the exhibition of the picture. Its sole ground is that the provision of the ordinance requiring submission of the film constitutes, on its face, a prior restraint within the prohibition of the First and Fourteenth Amendments. The District Court dismissed the complaint on the grounds, inter alia, that neither a substantial federal question nor even a justiciable controversy was presented. 180 F. Supp. 843. The Court of Appeals affirmed, finding that the case presented merely an abstract question of law since neither the film nor evidence of its content was submitted. 272 F. 2d 90. The precise question at issue here never having been specifically decided by this Court, we granted certiorari, 362 U. S. 917 (1960). We are satisfied that a justiciable controversy exists. The section of Chicago’s ordinance in controversy specifically provides that a permit for the public exhibition of a motion picture must be obtained; that such “permit shall be granted only after the motion picture film for which said permit is requested has been produced at the office of the commissioner of police for examination”; that the commissioner shall refuse the permit if the picture does not meet certain standards; and that in the event of such refusal the applicant may appeal to the mayor for a de novo hearing and his action shall be final. Violation of the ordinance carries certain punishments. The petitioner complied with the requirements of the ordinance, save for the production of the film for examination. The claim is that this concrete and specific statutory requirement, the production of the film at the office of the Commissioner for examination, is invalid as a previous restraint on freedom of speech. In Joseph Burstyn, Inc., v. Wilson, 343 U. S. 495, 502 (1952), we held that motion pictures are included “within the free speech and free press guaranty of the First and Fourteenth Amendments.” Admittedly, the challenged section of the ordinance imposes a previous restraint, and the broad justiciable issue is therefore present as to whether the ambit of constitutional protection includes complete and absolute freedom to exhibit, at least once, any and every kind of motion picture. It is that question alone which we decide. We have concluded that § 155-4 of Chicago’s ordinance requiring the submission, of films prior to their public exhibition is not, on the grounds set forth, void on its face. Petitioner’s narrow attack upon the ordinance does not require that any consideration be given to the validity of the standards set out therein. They are not challenged and are not before us. Prior motion picture censorship cases which reached this Court involved questions of standards. The films had all been submitted to the authorities and permits for their exhibition were refused because of their content. Obviously, whether a particular statute is “clearly drawn,” or “vague,” or “indefinite,” or whether a clear standard is in fact met by a film are different questions involving other constitutional challenges to be tested by considerations not here involved. Moreover, there is not a word in the record as to the nature and content of “Don Juan.” We are left entirely in the dark in this regard, as were the city officials and the other reviewing courts. Petitioner claims that the nature of the film is irrelevant, and that even if this film contains the basest type of pornography, or incitement to riot, or forceful overthrow of orderly government, it may nonetheless be shown without prior submission for examination. The challenge here is to the censor’s basic authority ; it does not go to any statutory standards employed by the censor or procedural requirements as to the submission of the film. In this perspective we consider the prior decisions of this Court touching on the problem. Beginning over a third of a century ago in Gitlow v. New York, 268 U. S. 652 (1925), they have consistently reserved for future decision possible situations in which the claimed First Amendment privilege might have to give way to the necessities of the public welfare. It has never been held that liberty- of speech is absolute. Nor has it been suggested that all previous restraints on speech are invalid. On the contrary, in Near v. Minnesota, 283 U. S. 697, 715-716 (1931), Chief Justice Hughes, in discussing the classic legal statements concerning the immunity of the press from censorship, observed that the principle forbidding previous restraint “is stated too broadly, if every such restraint is deemed to be prohibited. . . . [T]he protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases.” These included, the Chief Justice found, utterances creating “a hindrance” to the Government’s war effort, and “actual obstruction to its recruiting service'or the publication of the sailing dates of transports or the number and location of troops.” In addition, the Court said that “the primary requirements of decency may be enforced against obscene publications” and the “security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.” Some years later, a unanimous Court, speaking through Mr. Justice Murphy, in Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942), held that there were “certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Thereafter, as we have mentioned, in Joseph Burstyn, Inc., v. Wilson, supra, we found motion pictures to be within the guarantees of the First and Fourteenth Amendments, but we added that this was “not the end of our problem. It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places.” At p. 502. Five years later, in Roth v. United States, 354 U. S. 476, 483 (1957), we held that “in light of . . . history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance.” Even those in dissent there found that “Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it.” Id., at 514. And, during the same Term, in Kingsley Books, Inc., v. Brown, 354 U. S. 436, 441 (1957), after characterizing Near v. Minnesota, supra, as “one of the landmark opinions” in its area, we took notice that Near “left no doubts that ‘Liberty of speech, and of the press, is also not an absolute right . . . the protection even as to previous restraint is not absolutely unlimited.’. . . The judicial angle of vision,” we said there, “in testing the validity of a statute like § 22-a [New York’s injunctive remedy against certain forms of obscenity] is ‘the operation and effect of the statute in substance.’ ” And as if to emphasize the point involved here, we added that “The phrase ‘prior restraint’ is not a self-wielding sword. Nor can it serve as a talismanic test.” Even as recently as our last Term we again observed the principle, albeit in an allied area, that the State possesses some measure of power “to prevent the distribution of obscene matter.” Smith v. California, 361 U. S. 147, 155 (1959). Petitioner would have us hold that the public exhibition of motion pictures must be allowed under any circumstances. The State’s sole remedy, it says, is the invocation of criminal process under the Illinois pornography statute, Ill. Rev. Stat. (1959), c. 38, § 470, and then only after a transgression. But this position, as we have seen, is founded upon the claim of absolute privilege against prior restraint under the First Amendment — a claim without sanction in our cases. To illustrate its fallacy, we need only point, to one of the “exceptional cases” which Chief Justice Hughes enumerated in Near v. Minnesota, supra, namely, “the primary requirements of decency [that] may be enforced against obscene publications.” Moreover, we later held specifically “that obscenity is not within the area of constitutionally protected speech or press.” Roth v. United States, 354 U. S. 476, 485 (1957). Chicago emphasizes here its duty to protect its people against the dangers of obscenity in the public exhibition of motion pictures. To this argument petitioner’s only answer is that regardless of the capacity for, or extent of, such an evil, previous restraint cannot be justified. With this we cannot agree. We recognized in Burstyn, supra, that “capacity for evil . . . may be relevant in determining the permissible scope of community control,” at p. 502, and that motion pictures were not “necessarily subject to the precise rules governing any other particular method of expression. Each method,” we said, “tends to present its own peculiar problems.” At p. 503. Certainly petitioner’s broadside attack does not warrant, nor could it justify on the record here, our saying that — aside from any consideration of the other “exceptional cases” mentioned in our decisions— the State is stripped of all constitutional power to prevent, in the most effective fashion, the utterance of this class of speech. It is not for this Court to limit the State in its selection of the remedy it deems most effective to cope with such a problem, absent, of course, a showing of unreasonable strictures on individual liberty resulting from its application in particular circumstances. Kingsley Books, Inc., v. Brown, supra, at p. 441. We, of course, are not holding that city officials may be granted the power to prevent the showing of any motion picture they deem unworthy of a license. Joseph Burstyn, Inc., v. Wilson, supra, at 504-505. As to what may be decided when a concrete case involving a specific standard provided by this ordinance is presented, we intimate no opinion. The petitioner has not challenged all — or for that matter any — of the ordinance’s standards. Naturally we could not say that every one of the standards, including those which Illinois’ highest court has found sufficient, is so vague on its face that the entire ordinance is void. At this time we say no more than this — that we are dealing only with motion pictures and, even as to them, only in the context of the broadside attack presented on this record. Affirmed. The portion of the section here under attack is as follows: “Such permit shall be granted only after the motion picture film for which said permit is requested has been produced at the office of the commissioner of police for examination or censorship. . . .” That portion of § 155-4 of the Code providing standards is as follows: “If a picture or series of pictures, for the showing or exhibition of which an application for a permit is made, is immoral or obscene, or portrays depravity, criminality, or lack of virtue of a class of citizens of any race, color, creed, or religion and exposes them to contempt, derision, or obloquy, or tends to produce a breach of the peace or riots, or purports to represent any hanging, lynching, or burning of a human being, it shall be the duty of the commissioner of police to refuse such permit; otherwise it shall be his duty to grant such permit. “In case the commissioner of police shall refuse to grant a permit as hereinbefore provided, the applicant for the same may appeal to the mayor. Such appeal shall be presented in the same manner as the original application to the commissioner of police. The action of the mayor on any application for a permit shall be final.” It should be noted that the Supreme Court of Illinois, in an opinion by Schaefer, C. J., has already considered and rejected an argument against the same Chicago ordinance, similar to the claim advanced here by petitioner. The same court also sustained certain of the standards set out above. American Civil Liberties Union v. City of Chicago, 3 Ill. 2d 334, 121 N. E. 2d 585 (1954). Joseph Burstyn, Inc., v. Wilson, supra (“sacrilegious”); Gelling v. Texas, 343 U. S. 960 (1952) (“prejudicial to the best interests of the people of said City”); Commercial Pictures Corp. v. Regents, 346 U. S. 587 (1954) (“immoral”); Superior Films, Inc., v. Department of Education, 346 U. S. 587 (1954) (“harmful”); Kingsley International Pictures Corp. v. Regents, 360 U. S. 684 (1959) (“sexual immorality”). Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_respond1_1_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". BROWN v. NORFOLK & W. RY. CO. Circuit Court of Appeals, Fourth Circuit. June 3, 1927. No. 2537. 1. Master and servant @=>137(4) — Railroad held not liable for death of employee, carrying commercial coal taken from car in railroad yard in violation of instructions. Where mason’s helper of railroad bridge repair crew, who was also “kitchen flunkey” on camp train, while camp train temporarily stopped in railroad yard on its way to take crew to repair a bridge, and while he was carrying commercial coal taken from ears in yard, which coal employees were forbidden to use, was killed by a passenger train naming 35 miles an hour, held, that railroad was not liable for negligence, in view of evidence that station signal was sounded by locomotive, and that as soon as engineer discovered decedent’s perilous position he applied his brakes and did everything in his power to avoid injuring him. 2. Appeal and error @=>714(2) — Appellate court cannot consider as part of record matters considered in other cases not before it. Appellate court cannot consider as part of record matters considered in other cases not before it. In Error to the District Court of the United States for the Western District of Virginia, at Roanoke; Henry Clay McDowell, Judge. Aetion by W. L. Brown, as administrator of the estate of W. E. Brown, deceased, against the Norfolk & Western Railway Company. Judgment for defendant (12 E. [2d] 319), and plaintiff brings error. Affirmed. William H. Werth, of Tazewell, Va., for plaintiff in error. S. K. Eunkhouser, of Roanoke, Va., and Joseph M. Sanders, of Bluefield, W. Va. (E. M. Rivinus, of Philadelphia, Pa., Eunkhouser & Apperson, of Roanoke, Va., and Sanders, Crockett, Fox & Sanders, of Bluefield, W. Va., on tho brief), for defendant in error. Before ROSE and PARKER, Circuit Judges, and MeCLINTIC, District Judge. PER CURIAM. Plaintiff’s intestate, W. E. Brown, was employed by defendant as a member of a mason’s crew, and at the time of his death was being transported, with other members of the crew, on a “camp train,” to repair a bridge used in interstate commerce. He had been assigned to the position of “kitchen flunkey” on tho camp train, and as such he had, in addition to his duties as mason’s helper, the duty of keeping the kitchen and dining ear supplied with water and coal. The train made a temporary stop at tho Plat Top railway yard to enable the shifting engine which was pulling it to do certain shifting in the yard. During this stop the crew had no duties to perform, but were directed to remain in the cars, as the train was liable to he moved towards its destination at any moment. While the train was standing in the Elat Top yards, decedent took a sack and crossed the main line railway tracks to a third track, upon which stood some cars loaded with commercial coal, which the employees of defendant had been forbidden to use. He climbed upon one of the ears, placed a bushel or more of coal in the bag, and throw it to the ground. He then climbed down from the car, picked up the bag of coal, and started acróss the track, when a bystander halloed to Mm that a train was approaching. Before he could get out of the way he was struck and killed by tho train, which was a regular passenger train running at the rate of 35 miles an hour. At the conclusion of the evidence the District Judge directed a verdict for the defendant, on the ground that the evidence did not disclose that the defendant was guilty of any negligence. Without adopting all of the reasomng of the Distriet Judge, we think that this conclusion was correct. The evidence conclusively establishes that the station signal was sounded by the whistle of the locomotive, and that, as soon as the engineer discovered decedent in a perilous position, he applied his brakes and did everything in his power to avoid injuring him. We do not think that there is any evidence that the train was running at an excessive rate of speed. Plaintiff introduced a rule of defendant providing that, when within yard limits, trains must run with great care and under the control of the engineman. But the uncontradicted evidence established that this rule had no application to passenger trains, and had never been applied to them. In this court plaintiff cited eases in which the company had relied upon the rule in question as applicable to passenger trains; but there was nothing of the sort in the record in this case, and we cannot consider as a part of the record what may or may not have been shown or done in a ease not before us. We have carefully examined the record, and we fail to find any substantial evidence which would justify the conclusion that, in the operation of the train which struck and killed decedent, defendant failed to give proper signals or was guilty of other negligence. t The judgment of the District Court is accordingly affirmed. Affirmed. The late Circuit Judge BOSE, who sat in the hearing of this case, concurred in the decision that the judgment of the District Court should be affirmed, but died before this opinion was prepared. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_constit	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 constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lloba ALONSO, Jose Escandel, and Alberto Gomez, Defendants-Appellants. No. 80-5899. United States Court of Appeals, Eleventh Circuit. April 12, 1982. Bierman, Sonnett, Beiley & Shohat, P. A., Edward R. Shohat, Benedict P. Kuehne, Miami, Fla., for defendants-appellants. Kenneth W. Lipman, John F. Peyton, Jr., Asst. U. S. Attys., Miami, Fla., for plaintiffappellee. Before RONEY and FAY, Circuit Judges, and EDENFIELD , District Judge. The Honorable Newell Edenfield, United States District Judge for the Northern District of Georgia, sitting by designation. This case is being decided by a quorum due to the death of Judge Edenfield on December 27, 1981. 28 U.S.C. § 46(d). PER CURIAM: This appeal turns on the validity of a warrantless stop and boarding of an American vessel by customs agents in customs waters. Following the stop, approximately 15,720 pounds of marijuana were discovered on defendants’ boat, sufficient to convict defendants of attempt and conspiracy to import marijuana. They argue the customs agents needed a search warrant in order to stop and board their boat. Rejecting the argument that the knowledge that defendants’ boat might contain contraband prevented the authorities from making a documentary stop under 19 U.S.C.A. § 1581(a), without a search warrant, we affirm. During the late afternoon of July 1,1979, Captain Richter of the United States Customs Patrol received information from his supervisor that at least two vessels reportedly loaded with marijuana would be coming into the Marathon, Florida area. The vessels were supposed to come from the Sombrero Light which is on the reef line. Captain Richter was given the names of two suspect vessels: the DON JOSE and the TONY JUNIOR. Captain Richter and other officers proceeded toward the Sombrero Light in a Florida Marine Patrol boat, investigating various vessels along the way. About 11:15 p. m. they observed two lobster boats traveling together in a northerly direction toward the United States, within several yards of each other. The customs’ boat intercepted one lobster boat, the WOLF, approximately five to six miles off the coast, the other lobster boat continuing on its course. The officers boarded the WOLF, identified themselves, and requested the boat’s papers. Upon entering the cabin for the papers, the officers smelled the strong odor of marijuana and saw material which looked like marijuana through an open hatch. Placing the crew members under arrest, Captain Richter returned to the Marine Patrol boat and pursued the other lobster boat. A few minutes later he saw the boat’s name, the TONY JUNIOR. Captain Richter boarded the TONY JUNIOR and asked the captain for the vessel’s documents. They went to the cabin where Captain Richter noticed a strong marijuana odor and saw marijuana through an open forward door. He then arrested the individuals on board, the defendants in this case. This appeal involves only those individuals arrested on the TONY JUNIOR. The stop occurred in customs waters. 19 U.S.C.A. § 1401(j). Customs officers have broad statutory authority to stop and board vessels in customs waters without a warrant: Any officer of the customs may at any time go on board of any vessel .. . within the customs waters ... and examine the ... documents ... and examine, inspect, and search the vessel . .. and every part thereof and any person, ... or cargo on board, and to this end may .. . stop such vessel ..., and use all necessary force to compel compliance. 19 U.S.C.A. § 1581(a). In spite of the unlimited language of the statute, the Customs’ authority is restricted by the reasonableness requirement of the Fourth Amendment. United States v. Serrano, 607 F.2d 1145, 1147 (5th Cir. 1979), cert. denied, 445 U.S. 965, 100 S.Ct. 1655, 64 L.Ed.2d 241 (1980); United States v. Conroy, 589 F.2d 1258, 1268 (5th Cir.), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979). The law is clear that the statute authorizes a documentary stop without even a modicum of suspicion and that such stops are constitutionally permissible. United States v. Freeman, 579 F.2d 942, 945 (5th Cir. 1978). Accord, United States v. Ruano, 647 F.2d 577 (5th Cir. 1981); United States v. Kleinschmidt, 596 F.2d 133, 135 (5th Cir.), cert. denied, 444 U.S. 927, 100 S.Ct. 267, 62 L.Ed.2d 184 (1979). See United States v. Warren, 578 F.2d 1058, 1064-65 (5th Cir. 1978) (en banc) (no need for Coast Guard to have any particularized suspicion to stop a vessel for a document and safety check under 14 U.S.C.A. § 89(a)), cert. denied, 446 U.S. 956, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980). Defendants argue, however, that the officers here were investigating a suspected crime which had targeted the TONY JUNIOR by the time of the stop, so the stop was not “morally neutral.” They argue that customs officials who are investigating crime have less constitutional authority than those who are making random stops. This “morally neutral” argument has surfaced in other briefs before this Court. We reject the argument out of hand. There is a difference between the stop and boarding of a vessel and the search of a vessel. The “morally neutral” language was picked up from use in a search context, United States v. Williams, 617 F.2d 1063 (5th Cir. 1980) (en banc), and is not useful at all in determining whether a stop is constitutionally permissible. Regardless of its application were there a search of a vessel, a point we need not decide, the following argument from defendants’ brief has no support in the law of this Circuit concerning customs stops in customs waters: “This was not a routine documents and administrative check that was ‘morally neutral’ but instead was very definitely an intrusive stop to uncover evidence of suspected wrongdoing.” As to the Coast Guard, we have consistently held that the mere fact that boarding officers suspect customs and narcotics violations does not taint the validity of a safety and documentation stop on the high seas. United States v. Jonas, 639 F.2d 200 (5th Cir. 1981); see United States v. Hillstrom, 533 F.2d 209, 211 (5th Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct., 734, 50 L.Ed.2d 749 (1977). The Coast Guard statute, 14 U.S.C.A. § 89(a) has been held analogous to the Customs statute, 19 U.S.C.A. § 1581(a). United States v. Freeman, 579 F.2d 942, 946 (5th Cir. 1978); see United States v. Williams, 617 F.2d 1063, 1081 (5th Cir. 1980) (en banc). Suspicion or knowledge of customs violations could not infect an otherwise legal stop because some cases have seemed to require a reasonable suspicion of criminal activity to justify a stop in customs waters. United States v. Ruano, 647 F.2d 577 (5th Cir. 1981). There was no search conducted in this case. Once the officers were on board the contraband was in plain view. The cases suggesting a constitutional proscription of a pretextual safety inspection that in fact was a search of the private areas of the vessel are not applicable. See, e.g., United States v. Mazyak, 650 F.2d 788 (5th Cir. 1981); United States v. Ruano, 647 F.2d 577 (5th Cir. 1981); United States v. Jonas, 639 F.2d 200 (5th Cir. 1981); United States v. Peabody, 626 F.2d 1300 (5th Cir. 1980); United States v. Baker, 609 F.2d 134, 139-40 (5th Cir. 1980); United States v. Erwin, 602 F.2d 1183 (5th Cir. 1979), cert. denied, 444 U.S. 1071, 100 S.Ct. 1014, 62 L.Ed.2d 752 (1980), reh. denied, 445 U.S. 972, 100 S.Ct. 1668, 64 L.Ed.2d 251 (1980); United States v. Warren, 578 F.2d 1058 (5th Cir. 1978) (en banc), cert. denied, 446 U.S. 956, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980). There is a serious question whether the officers had probable cause, as argued, to believe the TONY JUNIOR contained contraband until the WOLF had been stopped. These defendants had no Fourth Amendment interest in the WOLF. Facts developed on stopping the WOLF which would only then give probable cause to believe that the TONY JUNIOR carried contraband, together with the exigent circumstances, would insulate the subsequent stop of the TONY JUNIOR from constitutional defect. See United States v. Weinrich, 586 F.2d 481 (5th Cir. 1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402 (1979). Defendants were charged with and convicted of conspiracy to import marijuana and attempt to import marijuana in violation of 21 U.S.C.A. § 963. They claim they committed only a single offense since their actions involved violation of a single statute and the charges arose from the same transaction. This issue was decided contrary to defendants’ argument in United States v. Anderson, 651 F.2d 375 (5th Cir. 1981). Reviewing the same statute, the Court held that since conspiracy to import and attempt to import each require proof of different facts they are separate crimes. 651 F.2d at 378-79. This Court is bound by former Fifth Circuit law. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc). AFFIRMED. Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant? A. Issue not discussed B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant D. The resolution of the issue had mixed results for the appellant and respondent Answer:
songer_genresp2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. Johnny JAMES, Petitioner-Appellant, v. Felix RODRIGUEZ, Respondent-Appellee. No. 76-1047. United States Court of Appeals, Tenth Circuit. Argued and Submitted March 3, 1977. Decided April 12, 1977. Rehearing Denied April 29, 1977. W. Michael Celestre, Window Rock, Ariz. (Robert Ericson, Window Rock, Ariz., on the brief), for petitioner-appellant. Andrea R. Buzzard, Asst. Atty. Gen., Santa Fe, N. M. (Toney Anaya, Atty. Gen., Santa Fe, N. M., on the brief), for respondent-appellee. Before MeWILLIAMS, BREITENSTEIN and DOYLE, Circuit Judges. WILLIAM E. DOYLE, Circuit Judge. The United States District Court for the District of New Mexico denied relief on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. Section 2254. The dismissal was without prejudice, the basis for it being that the prosecutor had no discretion in invoking the Habitual Criminal Act, that application of the Act did not constitute cruel and unusual punishment, and that the defendant had failed to exhaust his state remedies as to his claim that the Act was applied to him in an arbitrary and discriminatory manner. The alleged invalidity of the sentence imposed by the District Court of McKinley County, New Mexico has given rise to the instant habeas corpus proceeding and the appeal. Concurrent sentences of not less than one year nor more than five years were originally imposed. On appeal the New Mexico Court of Appeals reversed and remanded for a new trial. There followed a conviction on the original charges at the second trial at which time the appellent was sentenced to two terms of confinement of not less than one year and not more than five years, the sentences to run consecutively. Only after this imposition of sentence did the district attorney proceed to file a new information alleging that the petitioner was a habitual offender under NMSA Sections 40A-29-5 and 40A-29-6. The court determined that the defendant had been convicted in accordance with this additional charge and proceeded to impose a sentence of life imprisonment. Post conviction relief from the state court was pursued and on appeal the argument of appellant was that the legislative intent required that the Habitual Offender Act be applied one step at a time, that the prosecutor’s act had the appearance of retaliation, and that the application of the Habitual Offender Act constitutes cruel and unusual punishment. The New Mexico Court of Appeals rejected these arguments. As we have noted above, there were two trials and in each instance the sentence was one year to five years, the first sentence was to run concurrently, the second consecutively. It was not until after the reversal of the first conviction and the sentence on the occasion of the second conviction that the district attorney proceeded under the Habitual Offender Act, whereby his sentence to life imprisonment was imposed. The contention of appellant is that the filing of the habitual criminal charge subsequent to the appellant’s retrial and reconviction, thereby bringing about a sentence to life imprisonment, was contrary to North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). The Pearce case is not unlike the case at bar. Pearce was first convicted in a North Carolina court of assault with intent to commit rape. He was sentenced to a term of 12 to 15 years in prison. Some time later he initiated a post-conviction proceeding in state court which resulted in reversal of this conviction by the Supreme Court of North Carolina. This was brought about because of the receipt in evidence of an involuntary confession. He was retried, was again convicted and was sentenced, this time to eight years in prison, a sentence which resulted in his serving more time than he would have had he not appealed. It increased his sentence in the net amount of three years. Pearce instituted habeas corpus proceedings in the United States District Court for the Eastern District of North Carolina. That court ruled that the longer sentence was unconstitutional and void. When the state court neglected to resentence Pearce within 60 days, the federal court ordered his release, an order which was affirmed by the United States Court of Appeals for the Fourth Circuit. In a companion case to Pearce, that of Simpson v. Rice, an Alabama court sentenced the accused following pleas of guilty to four charges of second degree burglary. The sentence was to prison terms aggregating ten years. Two and one-half years later the judgments were set aside for failure to provide Rice with counsel. He was then retried and convicted and sentenced to prison terms aggregating 25 years, no credit having been given for the time spent in prison under the original judgments. He also brought habeas corpus proceedings in the United States District Court for the Middle District of Alabama, contending that the trial court had acted invalidly in failing to give him credit. The district court agreed with this noting that justification for the harsher sentence was not shown in the record. The Supreme Court ruled that it was a violation of due process to compel a man to serve the same sentence twice because of having appealed. The Court then went on to say that the cases from the Supreme Court and other courts have uniformly held that if a man appeals and succeeds in getting the judgment reversed that the imposition of a heavier sentence on the second conviction is not per se unconstitutional, and that neither the double jeopardy provision of the Fifth-Fourteenth Amendments nor the equal protection clause of the Fourteenth Amendment creates an absolute bar to a more severe sentence following reconviction. The evil arises, according to the opinion of Mr. Justice Stewart, where the more severe sentence is related to the fact that the defendant appealed; the imposition of a punishment for exercising a constitutional right is “patently unconstitutional.” The objection to the heavy sentence is that it interferes with the free exercise of the right of appeal. Thus it is potentially a misuse of power where it is done vindictively. To avoid this it was held that the reasons for the more severe sentence must be set forth and must include objective information. In the Rice case there was no attempt to justify the increased punishment. In the Pearce case also it did not appear that there was any justification apart from the naked power to impose it. On that basis the holding was that the sentences were invalid. In the instant case, there was also no attempt to justify the increased punishment. Blackledge v. Perry, supra, was not dissimilar. A North Carolina inmate had an altercation with another prisoner, and was charged with and convicted of assault with a deadly weapon in state district court. He appealed to the higher court where he would have been entitled to a trial de novo, but upon the exercise of this right of appeal the district attorney filed a more serious charge, the felony of assault with a deadly weapon with intent to kill and inflict serious bodily injury. Defendant entered a plea of guilty to that charge. Thereafter, he applied for a writ of habeas corpus in federal court claiming that the new charge deprived him of due process. The district court granted the writ and the court of appeals affirmed. The Supreme Court agreed with the contention that the filing of the felony charge constituted a violation of due process since the defendant had a right to pursue his de novo appeal without fear of a more serious charge being filed against him. In the Perry case there was an additional problem not present at bar growing out of the fact that Perry had entered a plea of guilty to the felony count. The Supreme Court’s answer to this was that it was invalid to file a felony charge and, therefore, his plea of guilty was incapable of validating that proceeding. The essence of the Court’s holding was that the refiling was vindictive, there having been nothing in the record to disprove this, and where there is a realistic likelihood of vindictiveness the due process clause is violated. The district attorney, it is pointed out, has a stake in discouraging appeals and he has the ability at hand to prevent them. Neither bad faith nor motive is necessary. Rather, the emphasis is on the right of the person convicted to pursue his right to trial de novo or appeal without fear that he will suffer a more serious charge. On that ground it was held to be a violation of the Constitution for the state to respond to the appeal of Perry by filing a more serious charge against him. Judging the case at bar by the standards set forth in Pearce and Perry, we must conclude that in the absence of evidence to the contrary, the filing of the habitual criminal charge was not unrelated to his having appealed. The fact that there was a gross increase in the sentence supports this conclusion. Thus one who appeals a one to five year sentence ought not to have to anticipate that he will end up being sent to prison for life. It is argued by the government that the district attorney was not exercising discretion because the habitual criminal statute, Section 40A-29-6 NMSA (1953 Comp.), provides that where the defendant has a criminal record the filing of the habitual criminal statute is mandatory. It is true that the statute contains mandatory language. The courts of New Mexico have construed the statute as being mandatory. See State v. Gonzales, 84 N.M. 275, 502 P.2d 300 (App. 1972); State v. Sedillo, 82 N.M. 287, 480 P.2d 401 (App.1971); and State v. McCraw, 59 N.M. 348, 284 P.2d 670 (1955). But see State v. Baldonado, 79 N.M. 175, 441 P.2d 215 (App.1968). In State v. Gonzales, supra, for example, defendant was convicted in November 1971 and was sentenced to two to ten years. On December 22, 1971, the district attorney filed a habitual criminal information based on an earlier conviction plus the November 1971 conviction. The result of this was that an amended sentence of five to twenty years was imposed. In State v. Baldonado, supra, the New Mexico Court of Appeals upheld an individual’s conviction under the Habitual Criminal Act and overruled his contention that his rights under the equal protection clause of the Fourteenth Amendment were violated because of the uneven application of the habitual criminal statute. In its opinion the New Mexico Court of Appeals recognized that district attorneys do not file an information under the Habitual Criminal Act in each instance in which it is possible to do so. The court recognized that a reason for failing to prosecute defendant subject to the Act, such as inability to prove the prior conviction or procedures necessary to obtain the presence of witnesses from out of state, was not available. The court went on to say that selective application of the Act will be a ground for relief only when it is shown to be intentional or personal discrimination or arbitrary action amounting to an unjust and illegal discrimination between persons in similar circumstances. From a reading of this opinion it is apparent that the Act is not always used. In State v. McCraw, supra, it was held that where an information which charged the defendant with being a habitual criminal was filed a month after his last conviction, there was good and sufficient reason for the delay. In the case at bar no effort has been made by the State of New Mexico to furnish an explanation as required by the Supreme Court’s opinions in North Carolina v. Pearce, supra, and Blackledge v. Perry, supra. The State simply points to the mandatory terms of the statute. We, however, do not consider this a sufficient answer to the charge that the habitual criminal statute was employed in a manipulative way. On the other hand, we find it significant that the habitual criminal charge was not brought in until after the appeal and reversal of the first conviction. Another reason why the mandatory nature of the Habitual Criminal Act is not a conclusive answer to the unexplained filing of the habitual criminal charge after appeal and reversal is that the district attorney, and he alone, is empowered to file informations. He also has authority to not file informations. The fact that a state court might be able to force him to file under the Habitual Criminal Act where such a charge would lie does not mean that he does not or cannot file a charge or withhold the charge as he sees fit. In the case at bar he chose to withhold the filing of it at the time of the first conviction, and it was only after the appeal, reversal and trial resulting in conviction on the charge in the second proceeding that he came forward with the habitual criminal charge. In our opinion what appears to be a tactical filing under the Habitual Criminal Act constitutes an interference with the right of appeal and it is thus a violation of the due process clause of the Fourteenth Amendment. Accordingly, we conclude that the judgment of the district court must be reversed. The cause is remanded to the district court with instructions to grant the relief requested, which is the vacating of the aggravating life imprisonment sentence. The district court is further directed to order the State District Court for the New Mexico Eleventh Judicial District to reinstate the two one to five year sentences to run consecutively. Upon resentencing of the defendant the sentencing court should be directed to credit the defendant with time which he has served on this particular charge. It is so ordered. . NMSA Section 40A-29-6 provides that: If at any time, either after sentence or conviction, it shall appear that a person convicted of a felony has previously been convicted of a crime amounting to a felony in this state . it shall be the duty of the district attorney of the district in which such subsequent conviction was had, to file an information charging the person as a habitual offender. Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_state	49	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". MORTGAGE SERVICES, INC., a West Virginia Corporation, Appellant, v. Ralph I. YARNELL, Appellee. No. 74-1884. United States Court of Appeals, Fourth Circuit. Argued March 6, 1975. Decided March 26, 1975. William L. Jacobs, Parkersburg, W. Va. (Louie S. Davitian, Parkersburg, W. Va., on brief), for appellant. Randall Metcalf (Arthur N. Gustke, Parkersburg, W. Va., on brief), for appellee. Before BRYAN and BUTZNER, Circuit Judges, and- CLARKE, District Judge. PER CURIAM: The Appellant sought recovery from Appellee for alleged breach of contract for services. Appellee asserted several defenses including failure of Appellant to perform and fraudulent misrepresentation by Appellant. The jury verdict on conflicting evidence was in favor of Appellee and the judgment entered on the verdict is the basis of this appeal. Upon consideration of the briefs, record and oral argument, we find no error and accordingly, the judgment of the lower court is affirmed. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_opinstat	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. McRAE v. WOODS, Acting Housing Expediter. No. 4390. United States Court of Appeals, Tenth Circuit. April 18, 1952. Rehearing Denied June 2, 1952. Gretchen McRae, pro se. Cecil H. Lichliter, Special Litigation Attorney, Office of Rent Stabilization, Washington, D. C. (Ed Dupree and A. M'. Edwards, Jr., Washington, D. C., were with him on the brief) for appellee. Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges. PER CURIAM. This is an appeal from an order of the United States District Court of Colorado, denying certain motions of the appellant Gretchen McRae, seeking to review previous rulings of the trial court, including a final judgment in favor of the appellee, entered September 9, 1947, and from which no appeal was taken. The full history of this litigation will be found in Porter v. McRae, 10 Cir., 155 F.2d 213; McRae v. Creedon, 10 Cir., 162 F.2d 989, and McRae v. Woods, Em.App., 165 F.2d 790, certiorari, denied 333 U.S. 882, 68 S.Ct. 912, 92 L.Ed. 1157, and it would serve no useful purpose to recount it here. Without enumerating the many pleadings filed, and contentions made, subsequent to the prior litigation, it is sufficient to say that they raise only issues which were presented, tried and finally decided in the former litigation. The trial court correctly decided that the pleadings presented no new issues and its judgment is affirmed. Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:
songer_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. QUEEN CITY SHOE MFG. CORPORATION v. COMMONWEALTH LAST CO. et al. No. 3840. Circuit Court of Appeals, First Circuit. April 1, 1943. J. Morton Rosenblum, of Manchester, N. H., and Walter M. Espovich, of Haverhill, Mass., for appellant. Bernard A. Riemer, of Boston, Mass., and Charles W. Tobey, Jr., of Concord, N. H., for appellees. Before MAHONEY and WOODBURY, Circuit Judges, and PETERS, District Judge. PETERS, District Judge. The appellant was adjudicated a bankrupt by the district court on the petition of three creditors, two of whom had previously assented in writing to a general assignment for the benefit of creditors, executed by the debtor, which was the sole act of bankruptcy relied upon in the petition. The appellant answered the involuntary petition and moved to dismiss it because of the participation of two of the three creditors in the prior proceeding having for its purpose the adjustment of the affairs of the debtor. This motion was denied by the district court on the ground that the Chandler Act, by Section 59, sub. h, 11 U.S.C.A. § 95, sub. h, had removed the disqualification which might otherwise have estopped the two creditors in this case from acting as such in the involuntary bankruptcy proceeding and construed Section 59, sub. h, when applied to the admitted facts, as permitting these creditors to join in this bankruptcy petition. Section 59, sub. h, reads as follows: “A creditor shall not he estopped to act as a petitioning creditor because he participated in any prior matter or judicial proceeding, having for its purpose the adjustment or settlement of the affairs of the debtor or the liquidation of his property, or to allege such prior matter or proceeding as an act of bankruptcy, unless he has consented thereto in writing with knowledge of the facts, if any, which would be a bar to the discharge of the debtor under this Act [title].” It was admitted that there were no facts in this case which would be a bar to the discharge of the debtor under the Bankruptcy Act. We think the district court fell into error when it said, in construing the statute: “There is only one condition which would bar a creditor from joining in a petition in bankruptcy after having assented in writing to a common law assignment and that is when there are facts existing which would bar a bankrupt from obtaining a discharge and a petitioning creditor has knowledge of that fact.” [46 F.Supp. 961, 962.] _ _ This ruling limits the estoppel effect of the assent in writing to a case where there are existing facts which would bar a discharge; in effect, requiring for estoppel a combination of three facts, (1) the assent in writing, (2) facts present which would prevent a discharge and (3) knowledge by the creditor of those facts. The situation surrounding the passage of the legislation shows no indication that Congress intended by it to make a distinction between cases where the debtor can ultimately get his discharge and where he cannot. Before the passage of the Chandler Ac* the practice and the decisions were not uniform in respect of the status of a petitioning creditor who had, previous to the institution of the involuntary bankruptcy, assented to or participated in other proceedings for the settlement of the affairs of the debtor, such as a receivership or an assignment for the benefit of creditors. Mr. Chandler, Chairman of the Committee, in making his report on the Bill, referring to the Section in question, stated that the new Section 59, sub. h * * * “is designed to make definite the consent of any creditor to an equity receivership or an assignment for the benefit of creditors where it is afterwards claimed that he is estopped to use the same as an act of bankruptcy because he previously consented. The present practice is very loose, and the mere sending of a statement of account to a receiver or an assignee has been construed to constitute such consent as to prevent that creditor from becoming a petitioner in a subsequent involuntary petition.” House Hearings on H.R. 6439, 75th Congress, 1st Session Committee Report No. 1409. To correct that particular loose practice the Chandler Act provided that thereafter a creditor should not be estopped unless his consent to the prior proceeding was in writing. It will be noted that the language is negative in character. It does not purport to codify the applicable law of estoppel. The prior law was and is that “a creditor who has assented in writing to the terms of a common-law assignment for the benefit of creditors is not entitled ordinarily to join in an involuntary petition alleging, as the sole act of bankruptcy, the making of the general assignment to which he has expressly assented.” Moulton v. Coburn et al., 1 Cir., 131 F. 201, 203, certiorari denied 196 U.S. 640, 25 S.Ct. 796, 49 L.Ed. 631. Obviously, that principle should be applied here and the appellees disqualified from acting as petitioning creditors, unless the language of the last part of Section 59, sub. h, has limited the effect of a creditor’s prior written assent to an assignment to the special case where there are facts existing which will prevent a discharge of the debtor. We think the language should not be so construed. We believe it was the intention of Congress by this language merely to protect a creditor from possible bad faith of the debtor by saying, in substance, that the creditor shall not be estopped by his action in assenting to the assignment, even when in writing, if he did so in ignorance of existing facts which would prevent a discharge of the debtor. If there are no such facts the language does not apply. Moulton v. Coburn, supra, was decided on the principle of election of remedies. A creditor of a bankrupt should not be held to a choice of methods of protecting his rights if he made the choice in ignorance of wrongful acts of the debtor which materially affected the rights of creditors. The court said, in that case: “It must be assumed that the assenting creditor had knowledge of his rights under the bankruptcy act, and voluntarily chose to assent to the terms of the assignment in preference to exercising his rights under the act.” The language in Section 59, sub. h, makes the assumed fact a statutory requisite to estoppel. If a bankrupt, for instance, has made a fraudulent conveyance of assets (a fact which would bar a discharge) a creditor should not be precluded from having that fact investigated in bankruptcy, with the aid of the machinery therein provided for reaching and distributing assets, unless he waived his right to do so with knowledge of the facts — facts which would naturally be well known to the debtor. In re Curtis et al., 7 Cir., 94 F. 630. See Collier on Bankruptcy, 14th Ed. pp. 656-657. In the case before us it does not appear that the assent to the assignment for the benefit of creditors was signed under any circumstances, statutory or otherwise, which would prevent its having the usual effect, which was to disqualify the creditors who had so signed from acting as petitioning creditors in the subsequent involuntary petition in bankruptcy. We conclude that the motion of the appellant in the district court to dismiss the involuntary petition should have been granted. The appeal is sustained with costs. The judgment of the District Court is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion; the appellant recovers costs of appeal. 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_pretrial	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's rulings on pre-trial procedure favor the appellant?" This includes whether or not there is a right to jury trial, whether the case should be certified as a class action, or whether a prospective party has a right to intervene in the case, but does not include rulings on motions for summary judgment. 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. John Arney WHITE, Appellant. No. 88-2750. United States Court of Appeals, Eighth Circuit. Submitted Sept. 12, 1989. Decided Nov. 30, 1989. Lee T. Lawless, Asst. Federal Public Defender, St. Louis, Mo., for appellant. Frederick E. Buckles, Asst. U.S. Atty., St. Louis, Mo., for appellee. Before LAY, Chief Judge, BOWMAN and MAGILL, Circuit Judges. BOWMAN, Circuit Judge. John Arney White challenges the sentence he received for a federal firearms violation. The sentence was imposed pursuant to a federal enhancement statute applicable in this case because of White’s prior convictions. We affirm. White was convicted by a jury of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Supp. V 1987). The District Court sentenced him to fifteen years in prison without parole pursuant to 18 U.S.C. § 924(e) (Supp. V 1987). That enhancement statute mandates a minimum fifteen year sentence upon conviction of a defendant charged with possession of a firearm by a felon, if the defendant has three or more previous convictions for violent felonies or serious drug offenses. A “violent felony” includes, among others, a crime that is punishable by more than one year in prison and involves force or threatened force, or “is burglary.” Id. § 924(e)(2)(B). White’s 1980, 1981, and 1982 convictions in Missouri for burglary second degree subjected him to an enhanced sentence under this provision. White appeals the enhanced sentence on three grounds: (1) the previous convictions for burglary second degree were erroneously classified as “burglary” within the meaning of the statute; (2) the enhanced sentence violates White’s fifth amendment equal protection rights in that convictions for identical offenses in other states are not called “burglary” and so would not be used to enhance a sentence under the federal statute; (3) at least two of the three convictions used to enhance White’s sentence were the result of unconstitutional guilty pleas. In connection with his first claim, White argues that the convictions used to enhance his sentence were for burglaries that did not involve weapons and occurred in buildings unoccupied at the time of the crimes. His contention is that, despite the plain language of the statute, these burglary convictions were not the type of burglary offenses contemplated by Congress when it enacted the enhancement provision. This Court already has indicated it finds no merit in that argument. “In our view, the statute says ‘burglary,’ and we take that to mean ‘burglary,’ however a state may choose to define it.” United States v. Portwood, 857 F.2d 1221, 1223-24 (8th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 2073, 104 L.Ed.2d 638 (1989). As conceded by White and noted by the government, Portwood establishes the law of this Circuit, and White cannot prevail on this argument. White next argues that the enhancement provision as applied violates his equal protection rights. He claims that similarly situated persons in other states are not subject to enhanced sentences, because other state laws do not define White’s previous burglary offenses as “burglary.” We agree with the government that, since this issue was neither raised by White in the earlier proceedings nor addressed by the District Court, the issue is not properly before us. See Page v. United States, 282 F.2d 807, 810-11 (8th Cir.1960) (where claim as to constitutionality of statute under which defendant was charged was not raised in district court, it would not be reviewed on appeal). What the Court said in Page is also true here: “[The statute] is certainly not so plainly unconstitutional that the failure of the trial court or this Court to hold it so can be regarded as a plain error or a culpable neglect of judicial duty.” Id. at 811 (citation omitted). Moreover, even if White’s equal protection claim were properly before us, we believe that it would fail, since a federal court may look to the substance of a defendant’s prior conviction and treat it as burglary for purposes of 18 U.S.C. § 924(e) even though the law of the state in which the conviction occurred calls the offense by some name other than burglary. For example, we recently affirmed the use of a breaking and entering conviction to enhance a sentence under section 924(e). United States v. Payton, 878 F.2d 1089, 1092 (8th Cir.1989). In Payton, we held that the district court had properly deemed the offense a burglary for purposes of section 924(e), even though it was not called “burglary” in the state statute. Finally, White argues that at least two of the three convictions used to enhance his sentence were the result of constitutionally invalid guilty pleas. He claims the pleas were taken in violation of the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), as he did not make them intelligently and voluntarily. The District Court conducted a hearing on White’s claim and filed a written memorandum finding each of the disputed guilty pleas valid. We review these findings under the clearly erroneous standard, see Fed.R.Civ.P. 52(a), and for application of proper legal standards. United States v. Dickens, 879 F.2d 410, 412 (8th Cir.1989). We conclude that the District Court applied the proper legal standards and that its findings that the disputed guilty pleas are valid are not clearly erroneous. White’s challenges are to his 1980 and 1982 guilty pleas and the subsequent convictions. A transcript of the 1980 plea proceedings was unavailable, so the District Court conducted an evidentiary hearing and found no Boykin violation in that plea. We find no error in the District Court’s ruling. White attacks the constitutionality of the 1982 guilty plea on the ground that the transcript of the proceedings omits any mention of defendant’s privilege against self incrimination. The District Court examined “the record as a whole” and, considering White’s previous experience with the criminal justice system, found no Boy-kin violation. See Stacey v. Solem, 801 F.2d 1048, 1050 (8th Cir.1986) (“Thus we must examine whether the record as a whole shows a voluntary and intelligent plea.”). We have reviewed the transcript and are satisfied the District Court’s finding that this plea was constitutionally valid is not clearly erroneous. White contends that the District Court erred in not requiring the government to prove beyond a reasonable doubt that the pleas resulting in the convictions that were used to enhance his present sentence met the Boykin standards. White cites no cases for his position and, in fact, there is authority from this Court that is quite the contrary. In a recent opinion, a panel of this Court upheld a sentence imposed under the Federal Sentencing Guidelines that had been increased from the base offense level because of the defendant’s prior conviction. Dickens, 879 F.2d at 411. The previous conviction was the result of a guilty plea that appellant challenged under Boykin. Using a preponderance of the evidence standard, the district court found the conviction constitutionally valid, and we affirmed. Id. Based on Dickens, we reject the higher burden of proof proposed by White. As we find no merit in any of White’s arguments on appeal, his sentence is affirmed. . The Honorable John F. Nangle, Chief Judge, United States District Court for the Eastern District of Missouri. . At oral argument, appellant cited Payton as support for his claim that Portwood was incorrectly decided. He contends that if a court may look beyond an offense called "breaking and entering" and find a burglary, it should be permitted to look behind an offense called “burglary" and find no burglary. This contention is specious. We direct White’s attention to the portion of the Portwood opinion where we said that the possibility of the property owner’s return or of investigation by a neighbor or law enforcement officer during an offense involving breaking and entering "present a grave threat of harm to persons.” Portwood, 857 F.2d at 1224 (construing burglary second degree under Missouri law). We stated that burglary convictions ipso facto define a defendant as "the type of potential threat to society that Congress sought to control by the enactment of § 924(e).” Id. Question: Did the court's rulings on pre-trial procedure favor the appellant? This includes whether or not there is a right to jury trial, whether the case should be certified as a class action, or whether a prospective party has a right to intervene in the case, but does not include rulings on motions for summary judgment. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_opinstat	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. Douglas E. WALL, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 87-2684. United States Court of Appeals, Tenth Circuit. May 30, 1989. David M. Berrett, Denver, Colo., for petitioner-appellant. David E. Brunori, Atty., Tax Div., Dept, of Justice (William S. Rose, Jr., Asst. Atty. Gen., Gary R. Allen and David English Carmack, Attys., Tax Div., with him on the brief), Dept, of Justice, Washington, D.C., for respondent-appellee. Before LOGAN, MOORE and EBEL, Circuit Judges. LOGAN, Circuit Judge. Petitioner Douglas E. Wall appeals from a decision of the United States Tax Court holding that the Commissioner of Internal Revenue was not barred from issuing Wall a notice of deficiency almost six years after Wall had executed Form 872-A, an indefinite waiver of the three-year limitations period on income tax assessments. See I.R.C. § 6501(a). The sole issue on appeal is whether the Commissioner should be es-topped to assess the deficiency in this case for making it within an allegedly unreasonable period of time after Wall executed Form 872-A. The facts are not in dispute. In 1975, the Internal Revenue Service (IRS) notified Wall that it needed additional time to complete its examination of Wall's 1972 tax return and requested an eighteen-month waiver of the three-year limitations period. Wall agreed and executed Form 872, which effected the waiver for the requested time. Subsequently, the IRS requested and received additional waivers for successive limited periods on the 1972 return and returns for certain other years. In 1980, however, the IRS requested an indefinite waiver that Wall executed on Form 872-A, which is designed specifically for that purpose. Three years later, the IRS requested certain information from Wall. After a series of intermittent settlement negotiations failed, the IRS issued Wall a deficiency notice in late 1985. In the Tax Court, Wall did not contest the amount of the assessed deficiency and he does not challenge it here. Rather, Wall argues that the indefinite waiver terminated upon the expiration of a reasonable time, which he claims elapsed prior to the IRS’s assessment in this case. The Tax Court upheld the validity of the Form 872-A waiver, refusing to apply a “reasonable time” standard to such agreements. We agree with that holding. The issue before us was recently presented to the full Tax Court, which unanimously held that Form 872-A waivers do not expire by operation of law after a reasonable time. Estate of Prudencio B. Camara, 91 T.C. No. 60 (1988) ; see also Richard R. Stenclik, 56 T.C.M. (CCH) 1059 (1989). In Camara, the court discussed seemingly inconsistent statements from prior cases regarding the validity of unlimited waivers and concluded that sound policy reasons militated against applying a reasonableness test to Form 872-A extensions. We are in substantial agreement with the Camara court’s analysis, and briefly note the most salient reasons why a reasonableness analysis should not be applied in the instant case. First, most of the decisions relied on by Wall and the taxpayer in Ca-mara were decided either under indefinite extension agreements that contained no provisions for termination, or old Form 872-A, which provided for termination of the agreement ninety days after “written notification” to the IRS of an election to terminate, without specifying any particular form of that notice. See, e.g., McManus v. Commissioner, 583 F.2d 443, 446 & n. 4 (9th Cir.1978). In contrast, current Form 872-A, executed by Wall, provides a simple and effective method of terminating the waiver by requiring the use of Form 872-T, thereby eliminating any disputes about “whether various written communications eonstitute[] termination letters.” Camara, 91 T.C. No. 60 at 961. It is undisputed that Wall never executed a Form 872-T termination. Second, allowing a reasonableness defense to a Form 872-A waiver would embroil already overburdened courts in disputes between the Commissioner and taxpayers regarding what constitutes a reasonable assessment period. The need for such an inquiry is obviated by requiring the taxpayer to utilize the 872-T termination form or be held to the agreement he made. Third, the Form 872-A indefinite waiver relieves the IRS of the great administrative burden of tracking the limitations period and obtaining successive waivers on each individual case. Imposing a reasonableness standard would substantially undermine this objective. Finally, the Form 872-A waiver does not unilaterally benefit the government — the taxpayer obtains a quid pro quo in the form of more time to produce evidence to negate a deficiency or to negotiate a compromise and settlement before facing a deficiency notice that would require him to go to court to contest the assessment. Having said all of this, we do not exclude the possibility of finding the government may be barred in an egregious case in which a Form 872-A has been executed— for instance, when the IRS has made no contact with a taxpayer for twenty years after a Form 872-A was executed. The facts of the present case, however, do not approach an extreme case in which the justification for a reasonableness analysis might outweigh the strong policy considerations discussed above for avoiding such an inquiry. Thus, the validity of Wall’s waiver must be upheld. AFFIRMED. . Neither party brought Camara, a decision squarely supporting the government’s position, to the attention of this court. We should not have to remind practitioners before our bar that it is the practice in the Tenth Circuit to notify the court of all pertinent and significant authorities bearing on contested issues decided during the post-briefing period before a final decision is rendered. Cf. Fed.R.App.P. 28(j). Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:
songer_respond1_3_2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. BRYANT v. COMMISSIONER OF INTERNAL REVENUE. No. 6156. United States Court of Appeals. Fourth Circuit. Argued Oct. 16, 1950. Decided Dec. 8, 1950. Joel B. Adams, Asheville, N.C. (Adams & Adams, Asheville, N.C., on brief) for petitioner. L. W. Post, Sp. Asst, to the Atty. Gen. (Theron Lamar Caudle, Asst. Atty. Gen., and Ellis N. Slack, Sp. Asst, to the Atty. Gen., on brief) for respondent. Before PARKER, SOPER and DOBIE, Circuit Judges. SOPER, Circuit Judge. This petition for review relates to a decision of the Tax Court of the United States in which a deficiency of $4-59.40 in the income and victory tax for the year 1943-, and a deficiency of $12221.05 in the income tax for the year 1944 was adjudicated against the petitioner. Edith Moorhead Bryant, the taxpayer, was one of the beneficiaries and the remainderman of a trust estate created by the will of S. E. Moorhead, her father, a resident of New Yorle who died in 1941. He bequeathed 2500 shares of stock of Liggett & Myers Tobacco Company to the Guardian Trust Company of New York in trust to pay out of the income therefrom or from the principal, if necessary, $10,000 annually to his wife for her life, and to pay the balance of the income, if any, to his daughter. Upon -the death or remarriage of the widow the trustee was directed to pay over the principal of the trust fund, less statutory commissions, to his daughter. The widow died on October 17, 1943, but the estate was not transferred to- the taxpayer until April 3, 1944 when the trustee delivered the entire corpus to the taxpayer. The trustee collected $8857.30 of income in 1943 and $1837.58 of income in 1944. Out of the income for 1943 the trustee paid to the widow before her death and to- her estate after her death the aggregate sum of $7945.20 (less commissions), which represented the -proportionate part of $10,000 due her for the period from January 1 to October 17, 1943. Out of the balance of the income the trustee paid state and federal income taxes on capital gains, expenses incurred in the termination of the ■trust, consisting of trustee’s commissions, attorney’s fees, transfer taxes and express charges, and also paid the trustee’s commissions . on income. These payments amounted in all to $4707.12, leaving only $186.71 remaining in its hands. This sum, together with the corpus, was paid and delivered to the taxpayer on or about April 3, 1944. No- part of the principal or income from the estate was paid to the taxpayer prior to that date. An instrument in the form of a receipt, release and indemnification was executed between the Trust Company, the taxpayer and the executors of the esate of the widow, which recited that the taxpayer had paid to the trustees the sum of $4461.81 to enable the trustee to avoid the necessity of liquidating any of the securities of the trust estate for the purpose of paying the income due the estate of the widow and the commissions due the trustee and other termination charges. No- payment, however, was in fact made by the taxpayer to the trustee, but the expenditures referred to were paid solely out of the income as previously stated. The Tax Court held that none of the ■ payments made by the Trustee were properly deductible from the income due the taxpayer except the income due the widow for the year 1943, the income taxes due the State of New York, and the trustee’s commissions on income, and that hence the remainder of income in\he trustee’s hands, amounting to the sum of $596.61 for the year 1943 and the sum of $1752.72 for the year 1944 represented income which was currently distributable to the taxpayer. The taxpayer contends that this decision was wrong because she actually received only $186.71 as income from the trust estate in 1943 and 1944, and that only this amount was currently distributable to her within the meaning of Section 162(b) of the Internal Revenue Code, 26 U.S.C.A. § 162(b), which provides in effect that in computing the net income of an estate for income tax purposes, the amount of the income for the taxable year which is to be distributed currently to the beneficiaries may be deducted; but the amount so allowed as a deduction shall be included in computing the net income of the beneficiary whether distributed to them or not. The decision of the case is not controlled by the erroneous statement in the agreement of settlement between the trustee and the taxpayer that the taxpayer furnished the funds which enabled the trustee to defray taxes and termination charges without selling any of the corpus of the trust; nor by the fact that the trustee actually used income of the trust to pay these expenses so that the taxpayer received only a small part of the income in the taxable years. The test of taxability is not the receipt of income but the right to receive it. Freuler v. Helvering, 291 U.S. 35, 54 S.Ct. 308, 78 L.Ed. 634 and the right to receive the income of a trust depends upon the terms of the trust instrument and governing state law. Commissioner v. Lewis, 3 Cir., 141 F.2d 221; Abell v. Tait, 4 Cir., 30 F.2d 54; Ardenghi v. Helvering 2 Cir., 100 F.2d 406, certiorari denied 307 U.S. 622, 59 S.Ct. 793, 83 L.Ed. 1501; United States v. Blosser, 8 Cir., 104 F.2d 119. The Tax Court followed the established rule in New York that only those expenses properly chargeable against income are deductible from income and those expenses chargeable against corpus are deductible from corpus. In re Petremont’s Will, 213 App.Div. 3I8, 210 N.Y.S. 379; affirmed 241 N.Y. 586, 150 N.E. 566; Matter of Eddy’s Will, 207 App.Div. 162, 201 N.Y.S. 760, 761; In re Marvin’s Estate, 135 Misc. 899, 241 N.Y.S. 500; In re Chave’s Estate, 227 App.Div. 554, 238 N.Y.S. 678. The testator’s intention in this respect, as shown by the terms of the will, was in accord with this rule for it expressly directed the trustee at the termination of the trust upon the death of the widow to “deliver the principal of said trust fund or so much thereof as then remains, less statutory commissions” to' his daughter. It therefore became the duty of the trustee at the termination of the trust to pay the capital expenses from the corpus in accordance with the local rule in New York. The trustee was of course entitled to a reasonable time in which to settle the trust estate after the death of the widow and in the meantime the trust estate was a taxable entity; Commissioner v. First Trust & D. Co., 2 Cir., 118 F.2d 449; Frederich v. Commissioner, 5 Cir., 145 F.2d 796, 157 A.L.R. 841; but the will contemplated that upon the death of the widow the corpus should belong to the taxpayer and it follows that the income on the corpus thereafter collected by the trustee during the taxable years belonged to and was currently payable to the taxpayer after the widow’s share of the income for 1943 and the expenses attributable to income had been set aside. The amount of these deductions are not disputed in this case. In Commissioner v. First Trust & D. Co., supra, upon which the taxpayer depends, the court held that the income was not distributable to the beneficiaries by reason of the terms of the will. In Trust of Bingham v. Commissioner, 325 U.S. 365, 65 S.Ct. 1232, 89 L.Ed. 1670, it was held that in com-pitting the taxable income of a trust which imposed the duty upon the trustee to maintain and administer the estate for a period of twenty-one years, the expenses incurred by the trustee in the distribution of the corpus were deductible as expenses of management; but in that case the court was not considering the tax liability of distributees of income but the fax liability of the-trust estate, and the taxable entity was the estate and not the distributees thereof. Deductions allowable to an es-state are not available to beneficiaries unless the tax statute so provides. Anderson v. Wilson, 289 U.S. 20, 27, 53 S.Ct. 417, 77 L.Ed. 1004; New Colonial Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 78 L.Ed. 1348. In Sitterding v. Commissioner, 4 Cir., 80 F.2d 939, the income of the estate pending the settlement thereof was not payable to the legatees under the will, and the court-found that the amount of the income in the hands of the executor was not enough to pay the state and federal taxes which under the Revenue Act of 1928 were deductible from the gross income of estate. In short it was held that no income taxes were due either by the estate or the legatees. See the comment on this case iii Ardenghi v. Helvering', supra. We find nothing in these decisions in conflict with the Tax Court’s decision and it is therefore affirmed. . This sum exceeded the amount held by the Commissioner to be distributable to tbe taxpayer in 1944, but since no increased deficiency was requested, the Tax Court accepted the Commissioner’s figure. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
sc_decisiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. J. D. B. v. NORTH CAROLINA No. 09-11121. Argued March 23, 2011 Decided June 16, 2011 Barbara S. Blackman argued the cause for petitioner. With her on the briefs were S. Hannah Demeritt, Benjamin Dowling-Sendor, and Staples S. Hughes. Roy Cooper, Attorney General of North Carolina, argued the cause for respondent. With him on the brief were Christopher G. Browning, Jr., Solicitor General, Robert C. Montgomery, Special Deputy Attorney General, and LaToya B. Powell, Assistant Attorney General. Eric J. Feigin argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Katyal, Assistant Attorney General Breuer, Deputy Solicitor General Dreeben, and William C. Brown Kriefs of amici curiae urging reversal were filed for the American Bar Association by Stephen N. Zack; for the American Civil Liberties Union by Dennis D. Parker and Steven R. Shapiro; for the Center on Wrongful Convictiono of Youth ct al. by Angela C. Vigil and Steven A Drizin; for the Juvenile Law Center et al. by Marsha L. Levick and Jessica R. Feier-man; and for the National Association of Criminal Defense Lawyers by Jeffrey T. Green, Mark D. Hopson, and Jonathan Hacker. A brief of amid mriao urging affirmance was filed for the State of Indiana ct al. by Gregory F, Zoollor, Attorney Ccneral of Indiana, Thomas M. Fisher, Solicitor General, Stephen R. Creason, Andrew A Kobe, and Ellen H. Meilaender, Deputy Attorney General, by Kevin T. Kane, Chief Stato’e Attorney of Connecticut, and William H. Ryan, Jr., Acting Attor ney General of Pennsylvania, and by the Attorneys General for their respective jurisdietiono ao followo: Luther Strango of Alabama, Dustin McDaniel of Arkansas, Joseph R. Biden III of Delaware, Pamela Jo Bondi of Florida, Samuel S. Olens of Georgia, Leonardo M. Rapadas of Guam, David M. Louie of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Tom, Miller of Iowa, Jack Conway of Kentucky, James T) Caldwell of Louisiana, William J. Schneider of Maine, Bill Schuette of Michigan, Steve By Hock of Montana, Jon Bruning of Nebraska, Catherine Cortez Masto of Nevada, Guillermo A Somom Colombani of Puerto Rico, E. Scott Pruitt of Oklahoma, Michael DeWine of Ohio, Peter F. Kilmartin of Rhode Island, Alan Wilson of South Carolina, Marty J. Jackley of South Dakota, Robert E. Cooper, Jr., of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, Kenneth T. Cuceinelli II of Virginia, Robert M. Mc-Kenna of Washington, and Bruce A Salzburg of Wyoming, John Cha/rlos Thomas and Mogan Miller filed a brief for the National District Attorneys Association as amicus curiae. Justice Sotomayor delivered the opinion of the Court. This case presents the question whether the age of a child subjected to police questioning is relevant to the custody-analysis of Miranda v. Arizona, 384 U. S. 436 (1966). It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same cireum-stances would feel free to leave. Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child’s age properly informs the Miranda custody analysis. I A Petitioner J. D. B. was a 13-year-old, seventh-grade student attending class at Smith Middle School in Chapel Hill, North Carolina, when he was removed from his classroom by a uniformed police officer, escorted to a closed-door conference room, and questioned by police for at least half an hour. This was the second time that police questioned J. D. B. in the span of a week. Five days earlier, two home break-ins occurred, and various items were stolen. Police stopped and questioned J. D. B. after he was seen behind a residence in the neighborhood where the crimes occurred. That same day, police also spoke to J. D. B.’s grandmother — his legal guardian — as well as his aunt. Police later learned that a digital camera matching the description of one of the stolen items had been found at J. D. B.’s middle school and seen in J. D. B.’s possession. Investigator DiCostanzo, the juvenile investigator with the local police force who had been assigned to the case, went to the school to question J. D. B. Upon arrival, DiCostanzo informed the uniformed police officer on detail to the school (a so-called school resource officer), the assistant principal, and an administrative intern that he was there to question J. D. B. about the break-ins. Although DiCostanzo asked the school administrators to verify J. D. B.’s date of birth, address, and parent contact information from school records, neither the police officers nor the school administrators contacted J. D. B.’s grandmother. The uniformed officer interrupted J. D. B.’s afternoon social studies class, removed J. D. B. from the classroom, and escorted him to a school conference room. There, J. D. B. was met by DiCostanzo, the assistant principal, and the administrative intern. The door to the conference room was closed. With the two police officers and the two administrators present, J. D. B. was questioned for the next 30 to 45 minutes. Prior to the commencement of questioning, J. D. B. was given neither Miranda warnings nor the opportunity to speak to his grandmother. Nor was he informed that he was free to leave the room. Questioning began with small talk — discussion of sports and J. D. B.’s family life. DiCostanzo asked, and J. D. B. agreed, to discuss the events of the prior weekend. Denying any wrongdoing, J. D. B. explained that he had been in the neighborhood where the crimes occurred because he was seeking work mowing lawns. DiCostanzo pressed J. D. B. for additional detail about his efforts to obtain work; asked J. D. B. to explain a prior incident, when one of the victims returned home to find J. D. B. behind her house; and confronted J. D. B. with the stolen camera. The assistant principal urged J. D. B. to “do the right thing,” warning J.' D. B. that “the truth always comes out in the end.” App. 99a, 112a. Eventually, J. D. B. asked whether he would “still be in trouble” if he returned the “stuff.” Ibid. In response, DiCostanzo explained that return of the stolen items would be helpful, but “this thing is going to court” regardless. Id., at 112a; ibid. (“[WJhat’s done is done[;] now you need to help yourself by making it right”); see also id., at 99a. DiCos-tanzo then warned that he may need to seek a secure custody order if he believed that J. D. B. would continue to break into other homes. When J. D. B. asked what a secure custody order was, DiCostanzo explained that “it’s where you get sent to juvenile detention before court.” Id,, at 112a. After learning of the prospect of juvenile detention, J. D. B. confessed that he and a friend were responsible for the break-ins. DiCostanzo only then informed J. D. B. that he could refuse to answer the investigator’s questions and that he was free to leave. Asked whether he understood, J. D. B. nodded and provided further detail, including information about the location of the stolen items. Eventually J. D. B. wrote a statement, at DiCostanzo’s request. When the bell rang indicating the end of the schoolday, J. D. B. was allowed to leave to catch the bus home. B Two juvenile petitions were filed against J. D. B., each alleging one count of breaking and entering and one count of larceny. J. D. B.’s public defender moved to suppress his statements and the evidence derived therefrom, arguing that suppression was necessary because J. D. B. had been “interrogated by police in a custodial setting without being afforded Miranda warning[s],” id., at 89a, and because his statements were involuntary under the totality of the circumstances test, id., at 142a; see Schneckloth v. Bustamonte, 412 U. S. 218, 226 (1973) (due process precludes admission of a confession where “a defendant’s will was overborne” by the circumstances of the interrogation). After a suppression hearing at which DiCostanzo and J. D. B. testified, the trial court denied the motion, deciding that J. D. B. was not in custody at the time of the schoolhouse interrogation and that his statements were voluntary. As a result, J. D. B. entered a transcript of admission to all four counts, renewing his objection to the denial of his motion to suppress, and the court adjudicated J. D. B. delinquent. A divided panel of the North Carolina Court of Appeals affirmed. In re J. D. B., 196 N. C. App. 234, 674 S. E. 2d 795 (2009). The North Carolina Supreme Court held, over two dissents, that J. D. B. was not in custody when he confessed, “declin[ing] to extend the test for custody to include consideration of the age ... of an individual subjected to questioning by police.” In re J. D. B., 363 N. C. 664, 672, 686 S. E. 2d 135, 140 (2009). We granted certiorari to determine whether the Miranda custody analysis includes consideration of a juvenile suspect’s age. 562 U. S. 1001 (2010). I — t t-H A Any police interview of an individual suspected of a crime has “coercive aspects to it.” Oregon v. Mathiason, 429 U. S. 492, 495 (1977) (per curiam). Only those interrogations that occur while a suspect is in police custody, however, “heighte[n] the risk” that statements obtained are not the product of the suspect’s free choice. Dickerson v. United States, 530 U. S. 428, 435 (2000). By its very nature, custodial police interrogation entails “inherently compelling pressures.” Miranda, 384 U. S., at 467. Even for an adult, the physical and psychological isolation of custodial interrogation can “undermine the individual’s will to resist and ... compel him to speak where he would not otherwise do so freely.” Ibid. Indeed, the pressure of custodial interrogation is so immense that it “can induce a frighteningly high percentage of people to confess to crimes they never committed.” Corley v. United States, 556 U. S. 303, 321 (2009) (citing Drizin & Leo, The Problem of False Confessions in the Post-DNA World, 82 N. C. L. Rev. 891, 906-907 (2004)); see also Miranda, 384 U. S., at 455, n. 23. That risk is all the more troubling — and recent studies suggest, all the more acute — when the subject of custodial interrogation is a juvenile. See Brief for Center on Wrongful Convictions of Youth et al. as Amici Curiae 21-22 (collecting empirical studies that “illustrate the heightened risk of false confessions from youth”). Recognizing that the inherently coercive nature of custodial interrogation “blurs the line between voluntary and involuntary statements,” Dickerson, 530 U. S., at 435, this Court in Miranda adopted a set of prophylactic measures designed to safeguard the constitutional guarantee against self-incrimination. Prior to questioning, a suspect “must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” 384 U. S., at 444; see also Florida v. Powell, 559 U. S. 50, 60 (2010) (“The four warnings Miranda requires are invariable, but this Court has not dictated the words in which the essential information must be conveyed”). And, if a suspect makes a statement during custodial interrogation, the burden is on the Government to show, as a “prerequisite]” to the statement’s admissibility as evidence in the Government’s case in chief, that the defendant “voluntarily, knowingly and intelligently” waived his rights. Miranda, 384 U. S., at 444, 475-476; Dickerson, 530 U. S., at 443-444. Because these measures protect the individual against the coercive nature of custodial interrogation, they are required “ ‘only where there has been such a restriction on a person’s freedom as to render him “in custody.”’” Stansbury v. California, 511 U. S. 318, 322 (1994) (per curiam) (quoting Mathiason, 429 U. S., at 495). As we have repeatedly emphasized, whether a suspect is “in custody” is an objective inquiry. “Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave. Once the scene is set and the players’ lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with formal arrest.” Thompson v. Keohane, 516 U. S. 99, 112 (1995) (internal quotation marks, alteration, and footnote omitted). See also Yarborough v. Alvarado, 541 U. S. 652, 662-663 (2004); Stansbury, 511 U. S., at 323; Berkemer v. McCarty, 468 U. S. 420, 442, and n. 35 (1984). Rather than demarcate a limited set of relevant circumstances, we have required police officers and courts to “examine all of the circumstances surrounding the interrogation,” Stansbury, 511 U. S., at 322, including any circumstance that “would have affected how a reasonable person” in the suspect’s position “would perceive his or her freedom to leave,” id., at 325. On the other hand, the “subjective views harbored by either the interrogating officers or the person being questioned” are irrelevant. Id., at 323. The test, in other words, involves no consideration of the “actual mindset” of the particular suspect subjected to police questioning. Alvarado, 541 U. S., at 667; see also California v. Beheler, 463 U. S. 1121, 1125, n. 3 (1983) (per curiam). The benefit of the objective custody analysis is that it is “designed to give clear guidance to the police.” Alvarado, 541 U. S., at 668. But see Berkemer, 468 U. S., at 441 (recognizing the “occasiona[l]. . . difficulty” that police and courts nonetheless have in “deciding exactly when a suspect has been taken into custody”). Police must make in-the-moment judgments as to when to administer Miranda warnings. By limiting analysis to the objective circumstances of the interrogation, and asking how a reasonable person in the suspect’s position would understand his freedom to terminate questioning and leave, the objective test avoids burdening police with the task of anticipating the idiosyncrasies of every individual suspect and divining how those particular traits affect each person’s subjective state of mind. See id., at 430-431 (officers are not required to “make guesses” as to circumstances “unknowable” to them at the time); Alvarado, 541 U. S., at 668 (officers are under no duty “to consider ... contingent psychological factors when deciding when suspects should be advised of their Miranda rights”). B The State and its amici contend that a child’s age has no place in the custody analysis, no matter how young the child subjected to police questioning. We cannot agree. In some circumstances, a child’s age “would have affected how a reasonable person” in the suspect’s position “would perceive his or her freedom to leave.” Stansbury, 511 U. S., at 325. That is, a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go. We think it clear that courts can account for that reality without doing any damage to the objective nature of the custody analysis. A child’s age is far “more than a chronological fact.” Eddings v. Oklahoma, 455 U. S. 104, 115 (1982); accord, Gall v. United States, 552 U. S. 38, 58 (2007); Roper v. Simmons, 543 U. S. 551, 569 (2005); Johnson v. Texas, 509 U. S. 350, 367 (1993). It is a fact that “generates commonsense conclusions about behavior and perception.” Alvarado, 541 U. S., at 674 (Breyer, J., dissenting). Such conclusions apply broadly to children as a class. And, they are self-evident to anyone who was a child once himself, including any police officer or judge. Time and again, this Court has drawn these commonsense conclusions for itself. We have observed that children “generally are less mature and responsible than adults,” Ed-dings, 455 U. S., at 115-116; that they “often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them,” Bellotti v. Baird, 443 U. S. 622, 635 (1979) (plurality opinion); that they “are more vulnerable or susceptible to ... outside pressures” than adults, Roper, 543 U. S., at 569; and so on. See Graham v. Florida, 560 U. S. 48, 68 (2010) (finding no reason to “reconsider” these observations about the common “nature of juveniles”). Addressing the specific context of police interrogation, we have observed that events that “would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens.” Haley v. Ohio, 332 U. S. 596, 599 (1948) (plurality opinion); see also Gallegos v. Colorado, 370 U. S. 49, 54 (1962) (“[N]o matter how sophisticated,” a juvenile subject of police interrogation “cannot be compared” to an adult subject). Describing no one child in particular, these observations restate what “any parent knows” — indeed, what any person knows — about children generally. Roper, 543 U. S., at 569. Our various statements to this effect are far from unique. The law has historically reflected the same assumption that children characteristically lack the capacity to exercise mature judgment and possess only an incomplete ability to understand the world around them. See, e. g., 1 W. Blackstone, Commentaries on the Laws of England 464-465 (hereinafter Blackstone) (explaining that limits on children’s legal capacity under the common law “secure them from hurting themselves by their own improvident acts”). Like this Court’s own generalizations, the legal disqualifications placed on children as a class — e. g., limitations on their ability to alienate property, enter a binding contract enforceable against them, and marry without parental consent — exhibit the settled understanding that the differentiating characteristics of youth are universal. Indeed, even where a “reasonable person” standard otherwise applies, the common law has reflected the reality that children are not adults. In negligence suits, for instance, where liability turns on what an objectively reasonable person would do in the circumstances, “[a]ll American jurisdictions accept the idea that a person’s childhood is a relevant circumstance” to be considered. Restatement (Third) of Torts § 10, Comment b, p. 117 (2005); see also id., Reporters’ Note, pp. 121-122 (collecting cases); Restatement (Second) of Torts §283A, Comment b, p. 15 (1963-1964) (“[TJhere is a wide basis of community experience upon which it is possible, as a practical matter, to determine what is to be expected of [children]”). As this discussion establishes, “[o]ur history is replete with laws and judicial recognition” that children cannot be viewed simply as miniature adults. Eddings, 455 U. S., at 115-116. We see no justification for taking a different course here. So long as the child’s age was known to the officer at the time of the interview, or would have been objectively apparent to any reasonable officer, including age as part of the custody analysis requires officers neither to consider circumstances “unknowable” to them, Berkemer, 468 U. S., at 430, nor to “anticipate] the frailties or idiosyncrasies” of the particular suspect whom they question, Alvarado, 541 U. S., at 662 (internal quotation marks omitted). The same “wide basis of community experience” that makes it possible, as an objective matter, “to determine what is to be expected” of children in other contexts, Restatement (Second) of Torts §283A, at 15; see supra, at 273, and n. 6, likewise makes it possible to know what to expect of children subjected to police questioning. In other words, a child’s age differs from other personal characteristics that, even when known to police, have no objectively discernible relationship to a reasonable person’s understanding of his freedom of action. Alvarado holds, for instance, that a suspect’s prior interrogation history with law enforcement has no role to play in the custody analysis because such experience could just as easily lead a reasonable person to feel free to walk away as to feel compelled to stay in place. 541 U. S., at 668. Because the effect in any given case would be “contingent [on the] psychologty]” of the individual suspect, the Court explained, such experience cannot be considered without compromising the objective nature of the custody analysis. Ibid. A child’s age, however, is different. Precisely because childhood yields objective conclusions like those we have drawn ourselves — among others, that children are “most susceptible to influence,” Eddings, 455 U. S., at 115, and “outside pressures,” Roper, 543 U. S., at 569 — considering age in the custody analysis in no way involves a determination of how youth “subjectively affect[s] the mindset” of any particular child, Brief for Respondent 14. In fact, in many cases involving juvenile suspects, the custody analysis would be nonsensical absent some consideration of the suspect’s age. This case is a prime example. Were the court precluded from taking J. D. B.’s youth into account, it would be forced to evaluate the circumstances present here through the eyes of a reasonable person of average years. In other words, how would a reasonable adult understand his situation, after being removed from a seventh-grade social studies class by a uniformed school resource officer; being encouraged by his assistant principal to “do the right thing”; and being warned by a police investigator of the prospect of juvenile detention and separation from his guardian and primary caretaker? To describe such an inquiry is to demonstrate its absurdity. Neither officers nor courts can reasonably evaluate the effect of objective circumstances that, by their nature, are specific to children without accounting for the age of the child subjected to those circumstances. Indeed, although the dissent suggests that concerns “regarding the application of the Miranda custody rule to minors can be accommodated by considering the unique circumstances present when minors are questioned in school,” post, at 297 (opinion of Auto, J.), the effect of the schoolhouse setting cannot be disentangled from the identity of the person questioned. A student — whose presence at school is compulsory and whose disobedience at school is cause for disciplinary action — is in a far different position than, say, a parent volunteer on school grounds to chaperone an event, or an adult from the community on school grounds to attend a basketball game. Without asking whether the person “questioned in school” is a “minor,” ibid., the coercive effect of the schoolhouse setting is unknowable. Our prior decision in Alvarado in no way undermines these conclusions. In that case, we held that a state-court decision that failed to mention a 17-year-old’s age as part of the Miranda custody analysis was not objectively unreasonable under the deferential standard of review set forth by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214. Like the North Carolina Supreme Court here, see 363 N. C., at 672, 686 S. E. 2d, at 140, we observed that accounting for a juvenile’s age in the Miranda custody analysis “could be viewed as creating a subjective inquiry,” 541U. S., at 668. We said nothing, however, of whether such a view would be correct under the law. Cf. Renico v. Lett, 559 U. S. 766, 778, n. 3 (2010) (“[Wjhether the [state court] was right or wrong is not the pertinent question under AEDPA”). To the contrary, Justice O’Con-nor’s concurring opinion explained that a suspect’s age may indeed “be relevant to the 'custody’ inquiry.” Alvarado, 541 U. S.; at 669. ' Reviewing the question de novo today, we hold that so long as the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test. This is not to say that a child’s age will be a determinative, or even a significant, factor in every case. Cf. ibid. (O’Connor, J., concurring) (explaining that a state-court decision omitting any mention of the defendant’s age was not unreasonable under AEDPA’s deferential standard of review where the defendant “was almost 18 years old at the time of his interview”); post, at 296 (suggesting that “teenagers nearing the age of majority” are likely to react to an interrogation as would a “typical 18-year-old in similar circumstances”). It is, however, a reality that courts cannot simply ignore. Ill The State and its amici offer numerous reasons that courts must blind themselves to a juvenile defendant’s age. None is persuasive. To start, the State contends that a child’s age must be excluded from the custody inquiry because age is a personal characteristic specific to the suspect himself rather than an “external” circumstance of the interrogation. Brief for Respondent 21; see also id., at 18-19 (distinguishing “personal characteristics” from “objective facts related to the interrogation itself” such as the location and duration of the interrogation). Despite the supposed significance of this distinction, however, at oral argument counsel for the State suggested without hesitation that at least some undeniably personal characteristics — for instance, whether the individual being questioned is blind — are circumstances relevant to the custody analysis. See Tr. of Oral Arg. 41. Thus, the State's quarrel cannot be that age is a personal characteristic, without more. The State further argues that age is irrelevant to the custody analysis because it “go[esj to how a suspect may internalize and perceive the circumstances of an interrogation.” Brief for Respondent 12; see also Brief for United States as Amicus Curiae 21 (hereinafter U. S. Brief) (arguing that a child’s age has no place in the custody analysis because it goes to whether a suspect is “particularly susceptible” to the external circumstances of the interrogation (some internal quotation marks omitted)). But the same can be said of every objective circumstance that the State agrees is relevant to the custody analysis: Each circumstance goes to how a reasonable person would “internalize and perceive” every other. See, e. g., Stansbury, 511 U. S., at 325. Indeed, this is the very reason that we ask whether the objective circumstances “add up to custody,” Keohane, 516 U. S., at 113, instead of evaluating the circumstances one by one. In the same vein, the State and its amici protest that the “effect of . . . age on [the] perception of custody is internal,” Brief for Respondent 20, or “psychological,” U. S. Brief 21. But the whole point of the custody analysis is to determine whether, given the circumstances, “a reasonable person [would] have felt he or she was ... at liberty to terminate the interrogation and leave.” Keohane, 516 U. S., at 112. Because the Miranda custody inquiry turns on the mindset of a reasonable person in the suspect’s position, it cannot be the ease that a circumstance is subjective simply because it has an “internal” or “psychological” impact on perception. Were that so, there would be no objective circumstances to consider at all. Relying on our statements that the objective custody test is “designed to give clear guidance to the police,” Alvarado, 541 U. S., at 668, the State next argues that a child’s age must be excluded from the analysis in order to preserve clarity. Similarly, the dissent insists that the clarity of the custody analysis will be destroyed unless a “one-size-fits-all reasonable-person test” applies. Post, at 293. In reality, however, ignoring a juvenile defendant’s age will often make the inquiry more artificial, see supra, at 275-276, and thus only add confusion. And in any event, a child’s age, when known or apparent, is hardly an obscure factor to assess. Though the State and the dissent worry about gradations among children of different ages, that concern cannot justify ignoring a child’s age altogether. Just as police officers are competent to account for other objective circumstances that are a matter of degree such as the length of questioning or the number of officers present, so too are they competent to evaluate the effect of relative age. Indeed, they are competent to do so even though an interrogation room lacks the “reflective atmosphere of a [jury] deliberation room,” post, at 295. The same is true of judges, including those whose childhoods have long since passed, see post, at 293. In short, officers and judges need no imaginative powers, knowledge of developmental psychology, training in cognitive science, or expertise in social and cultural anthropology to account for a child’s age. They simply need the common sense to know that a 7-year-old is not a 13-year-old and neither is an adult. There is, however, an even more fundamental flaw with the State’s plea for clarity and the dissent’s singular focus on simplifying the analysis: Not once have we excluded from the custody analysis a circumstance that we determined was relevant and objective, simply to make the fault line between custodial and noncustodial “brighter.” Indeed, were the guiding concern clarity and nothing else, the custody test would presumably ask only whether the suspect had been placed under formal arrest. Berkemer, 468 U. S., at 441; see ibid, (acknowledging the “occasional] . . . difficulty” police officers confront in determining when a suspect has been taken into custody). But we have rejected that “more easily administered line,” recognizing that it would simply “enable the police to circumvent the constraints on custodial interrogations established by Miranda.” Ibid.; see also ibid., n. 33. Finally, the State and the dissent suggest that excluding age from the custody analysis comes at no cost to juveniles’ constitutional rights because the due process voluntariness test independently accounts for a child’s youth. To be sure, that test permits consideration of a child’s age, and it erects its own barrier to admission of a defendant’s inculpatory statements at trial. See Gallegos, 370 U. S., at 63-55; Haley, 332 U. S., at 599-601 (plurality opinion); see also post, at 297 (“[Cjourts should be instructed to take particular care to ensure that [young children’s] incriminating statements were not obtained involuntarily”). But Miranda’s procedural safeguards exist precisely because the voluntariness test is an inadequate barrier when custodial interrogation is at stake. See 384 U. S., at Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_genresp2	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. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 307, PLUMBERS, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPE FITTING INDUSTRY OF the UNITED STATES AND CANADA (AFL-CIO), et al., Respondents. No. 71-1660. United States Court of Appeals, Seventh Circuit. Argued June 2, 1972. Decided Aug. 24, 1972. Marcel Mallet-Prevost, Asst. Gen. Counsel, Robert A. Giannasi, Peter G. Nash, Gen. Counsel, Thomas E. Silfen, Attys., N. L. R. B., Washington, D. C., for petitioner. Bernard M. Mamet, Chicago, 111., for respondent. Before SWYGERT, Chief Judge, and CUMMINGS and SPRECHER, Circuit Judges. SWYGERT, Chief Judge. This is an application by the National Labor Relations Board for enforcement of its order directed against Local 307, Plumbers, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (hereinafter, “Plumbers”); Local 697, International Brotherhood of Electrical Workers (hereinafter, “Electrical Workers”) ; and Northwestern Indiana Building and Construction Trades Council, AFL-CIO (hereinafter, “Council”). The Board’s Decision and Order were issued on December 31, 1970 and are reported at 187 N.L.R.B. No. 94 (1971). The trial examiner found that respondent union violated section 8(b) (4) (i) (B) and 8(b) (4) (ii) (B) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4) (i)(B) and (ii)(B), by picketing for the proscribed object of forcing a neutral general contractor to cease doing business with the subcontractor with whom respondents had a labor dispute. The Board affirmed the trial examiner and adopted his findings of fact and conclusions of law, one Board member dissenting. The facts which follow are those found by the trial examiner and are essentially undisputed. For several years prior to 1969, the Plumbers had been involved in a continuing labor dispute with Meyer Plumbing, Inc. (hereinafter, “Meyer”) concerning Meyer’s failure to employ union members and pay the prevailing wage in the area. On September 26, 1969 neutral general contractor Vail Rubber Products Corporation (hereinafter, “Vail”) engaged Meyer as a subcontractor for the installation of plumbing fixtures at a planned warehouse facility. A few days later, Vail subcontracted the concrete flooring work to Hobbs Concrete Construction Co., Inc. (hereinafter, “Hobbs”) and the electrical work to A & W Electrical Service, Inc. (hereinafter, “A & W”). The plumbing and concrete work began at the jobsite around October 14, 1969. On or about October 21 Plumbers’ business agent George McCarthy noticed a Meyer truck at the jobsite while he was checking a unionized construction project across the street. McCarthy immediately called the Plumbers’ attorney to find out if could put up a picket line protesting Meyer’s wages and working conditions. The following day, Sam Spitale, president of the Council (a multi-union group including both the Plumbers and Eleetrical Workers) called Vail- president William Boyd and asked who his subcontractors were. When Boyd told him, he remarked that Hobbs and A & W were “fair” contractors but that Meyer was not. Spitale explained that a “fair” contractor was someone who was “fair with us” and who “paid the prevailing wages established in the area,” whereas Meyer hired “foreigners” and did not pay them more than $4.00 an hour. Spitale offered to send Boyd a list of the “fair” plumbers and of the “fair” contractors for jobs which had not yet been subcontracted; Boyd expressed no objection. Spitale then mentioned that there would be a meeting of the Council that evening and that the matter of Boyd’s plumbing subcontractor was sure to come up. The following day, October 23, the Plumbers began picketing the jobsite with signs which read as follows: Meyer Plumbing — Inc. ■ — ■ Fails to Meet Prevailing Wages and Conditions This Notice is addressed only' to the Public. It is not addressed to any employers or employees, nor is anyone asked to cease doing business with anyone. Please read handbill which spells out purposes of patrolling. PLUMBERS Union 307 AFL-CIO Boyd visited the jobsite that afternoon and observed the pickets. He then spoke to Jim Hobbs, his concrete subcontractor, who informed him that union business agents had visited that day and that Hobbs would have to stop its concrete work as soon as its men finished unloading a truck at the site. Later that afternoon, Spitale called Boyd and told him that the matter of his plumbing subcontractor had come up at the Council meeting and “the men were very angry.” Boyd replied that that was evident from the presence of the pickets. Spitale said he would have Plumbers’ business agent McCarthy give Boyd a list of “fair plumbers.” When McCarthy called the following day with his list of “fair plumbers,” Boyd asked about four other plumbing subcontractors from whom he had received bids, and McCarthy told him that they were all “fair.” Boyd then told McCarthy that their bids had been two or two and one-half times higher than Meyer’s bid and asked McCarthy what he meant by a “fair” plumber. McCarthy explained that he meant “fair with us,” but agreed that under the circumstances there was no reason to send the list. The conversation thus ended, the picketing continued and no more work was done by Hobbs or A & W. On November 5 Boyd went to the Electrical Workers Hall for the meeting with Spitale, McCarthy, and Harold Hagberg, business manager of the Electrical Workers. Boyd explained his warehouse project, mentioning that he was new at general contracting, and then referred to the Meyer plumbing subcontract and the problems caused by the picketing. Spitale told Boyd that members of the unions represented at the meeting would not work with Meyer plumbers because he did not pay the prevailing wage and because his plumbers did not have the skill acquired by men who had completed the Plumbers’ apprentice course. Boyd replied that he should have been told when he was soliciting bids in June that there were certain subcontractors with whom the employees of other subcontractors would not work, so that he could have made his choice with that in mind. Boyd then asked “if Meyer was not on the job, would there be a picket?” McCarthy replied that if Meyer were not on the job there would be no reason for picketing. After some further discussion to the effect that" prevailing wages were union wages and that Meyer did not pay them, Boyd asked if the pickets would be removed if Meyer paid the prevailing wage. McCarthy replied that they would be removed if such were proven to him. Hagberg then asked Boyd if he would be willing to cancel the Meyer contract and give the balance of that work to a “fair” plumber. Boyd replied that that was not a “fair” question and that there must be some other alternative. Hag-berg asked McCarthy if he knew of any other solution, and McCarthy replied that “I can’t think of any other solution other than to cancel the contract with Meyer and place the balance of it with a, fair plumber.” Spitale asked whether Boyd would object to placing the remaining subcontracts with “members of the Building Trades,” to which Boyd replied that he would not hesitate to do so if the bids were competitive. The union representatives then held a private caucus, after which Spitale reported to Boyd. The testimony is contradictory as to the nature of this discussion. Spitale testified that he said that the way to remove the pickets was to get proof that Meyer was paying the prevailing wage. Boyd testified that he was told that the only solution was to cancel the Meyer contract and give the balance of the work to a “fair” plumber. Boyd replied that he did not think that to be a fair solution, any more than it would be fair to cancel all the contracts with union subcontractors and give the balance to nonunion subcontractors. McCarthy then showed Boyd a list of the “fair” plumbers, and Boyd indicated that some of them had bid. At this point McCarthy and Hagberg had to leave, so Spitale suggested that Boyd should “sleep on it” for a few days. Boyd replied that McCarthy should sleep on it and perhaps Spitale could prevail on him to remove the pickets. When Spitale called Boyd a few days later, Boyd said that no progress had been made and that he had gone to see the National Labor Relations Board. On December 9 after the General Counsel of the Board was denied an injunction by the United States District Court for the Northern District of Indiana against the respondents’ picketing, Boyd notified the respondents that Meyer’s contract had been cancelled. The picket line was immediately removed by the Plumbers, and the work was subcontracted to another plumber a few weeks later. Section 8(b)(4)(B) of the National Labor Relations Act makes it an unfair labor practice for a union or its agents: (i) . . .to induce or encourage any individual employed by any person ... to engage in, a strike . . . ; or (ii) to threaten, coerce, or restrain any person . . . where in either case an object thereof is— * -X -X- * -X X (B) forcing or requiring any person . to cease doing business with any other person . . .; Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any . . . primary picketing. These provisions reflect “the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own.” NLRB v. Denver Bldg. and Trades Council, 341 U.S. 675, 692, 71 S. Ct. 943, 953, 95 L.Ed. 1284 (1951). The purpose of section 8(b)(4)(B) is explained in NLRB v. Local 825, Int’l Union of Operating Eng’rs, 400 U.S. 297, 302-303, 91 S.Ct. 402, 406, 27 L.Ed.2d 398 (1971): Congressional concern over the involvement of third parties in labor disputes not their own prompted § 8(b)(4)(B). This concern was focused on . pressure brought to bear, not “upon the employer who alone is a party [to a dispute], but upon some third party who has no concern with it” with the objective of forcing the third party to bring pressure on the employer to agree to the union’s demands. Section 8(b)(4)(B) is, however, the product of legislative compromise and also reflects a concern with protecting labor organizations’ right to exert legitimate pressure aimed at the employer with whom there is a primary . dispute, (footnotes omitted). The line between legitimate “primary” activity directed against the offending employer and unlawful “secondary” activity directed against the neutral employer with whom the union has no dispute is often difficult to discern in a “common situs” case such as presented here. But, “however difficult the drawing of lines more nice than obvious, the statute compels the task.” Local 761, Int’l Union of Elec. Workers v. NLRB, 366 U.S. 667, 674, 81 S.Ct. 1285, 1290, 6 L.Ed.2d 592 (1960). In Sailors’ Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547 (1950), the Board formulated certain standards for legitimate picketing at sites where employers other than primary employers are performing tasks. Those standards are: (1) that the picketing be limited to times when the situs of dispute was located on the secondary premises, (2) that the primary employer be engaged in his normal business at the situs, (3) that the picketing take place reasonably close to the situs, and (4) that the picketing clearly disclose that the dispute was only with the primary employer. The Supreme Court in Electrical Workers in applying those standards stated that their observance would be “presumptive of valid primary activity” 366 U.S. at 677, 81 S.Ct. 1285, but then made clear that they should not be applied mechanically. Thus, if the union’s purpose in picketing were to coerce the secondary employer, and that purpose were communicated to the secondary, formal compliance with the standards will not immunize a union or its agents from an action under section 8(b)(4) (B). For, as the Board said ,in Millwrights Local 1102, 155 N.L.R.B. 1305, 1309 (1965), the “totality of a union’s conduct in a given situation may well disclose a real purpose to enmesh neutrals in a dispute, despite literal compliance with the Moore Dry Dock standards.” A number of courts have adopted this approach. See, e. g., IBEW Local 480 v. NLRB, 134 U.S.App.D.C. 178, 413 F.2d 1085 (1969); NLRB v. Northern California District Council of Hod Carriers, 389 F.2d 721 (9th Cir. 1968). It has been argued that the instant case presents precisely that kind of situation. We agree. The Board adopted the trial examiner’s ultimate finding that the picketing was designed “to force Vail to cancel the Meyer contract, thereby forcing it to cease doing business with Meyer.” Substantial evidence supports that finding. We so conclude notwithstanding the fact that the declared purpose of the picketing was to force Meyer to meet the prevailing wage standards of the area and that the picketing formally met the Moore Dry Dock criteria. If that were its sole aim the picketing would have easily been sanctioned by the Board. See, e. g., Int’l Hod Carriers, Local 41, 133 N.L.R.B. 512 (1961); IBEW, 145 N.L.R.B. 1163 (1964); Plumbers Local 307, 146 N.L. R.B. 888 (1964). In this case, however, regardless of the surface legitimacy of the picketing, respondents’ agents disclosed to Boyd that one if not the most important purpose of the picketing was to pressure Vail into cancelling its contract with Meyer. The effect of these disclosures on Boyd was to convert an ostensibly legal activity directed at the primary employer to an illegal activity directed at the secondary employer. Spitale, the Council’s president, called Boyd, saying that Meyer was “unfair” in that he failed to pay prevailing wages and then offered to provide Boyd with a list of “fair” plumbers. This statement is meaningless unless it was intended to persuade Vail to substitute a “fair” plumber for Meyer. The picketing started the next day; at the same time, Spitale followed up his initial call, telephoning Boyd to say that “the men were very angry” about Meyer’s continuance as subcontractor and that the Plumbers’ business agent, McCarthy, would send Boyd a list of “fair” plumbers. The following day McCarthy called Boyd and indicated that he had such a list. The conversation ended, however, when Boyd stated that some of the bids of the “fair” plumbers were higher than Meyer’s bid. On a subsequent date a meeting was arranged between the union agents and Boyd. During the meeting, Hagberg, the business manager for the Electrical Workers asked Boyd if he would be willing to cancel the contract with Meyer and give the remaining work to a “fair” plumber. Boyd replied that this was not a “fair” question, that there must be some other alternative. Hagberg asked McCarthy if he knew of any other solution. McCarthy replied that he could think of none except to replace Meyer by a “fair” plumber. When the foregoing circumstances are considered, there can be little doubt that the picketing was principally directed at effectuating Meyer’s removal from the job. The picketing continued, the employees of the other subcontractors honored the picket line, and eventually the object was accomplished. Vail cancelled Meyer’s contract and immediately the picket line was removed. Respondents argue that the picketing is legal principally because it meets the standards outlined in Moore Dry Dock. They characterize the subsequent conversations with Boyd as “friendly conversations” initiated by the neutral employer which, as such, cannot transform a legal picketing into an illegal one. They suggest that the Board’s findings result from an impermissible bootstrap argument in which the Board is confusing the unintended, though well-nigh inevitable effects of the picketing, with its objects. The vice of this analysis is that it overvalues compliance with Moore Dry Dock standards and substantially undervalues the importance of the surrounding circumstances. The effects of picketing can be channeled in many directions depending in part upon compliance at the site of the picketing with Moore Dry Dock and in part upon the activities of the union outside the immediate area. The conversations and the meetings between the union officials and Boyd constituted conduct as much as that which occurred on the picket line. The union’s conduct in this instance directly communicated to Boyd one of the purposes of picketing, namely, Meyer’s removal. As the General Counsel points out, the picketing coupled with the direct appeals to the neutral employer constitute the kind of “restraint” which the statute was designed to prevent. In addition, as a matter of law, this combination of conduct constituted the inducement and encouragement of those employed by neutral subcontractors to “engage in a strike” the object of which was illegal. The order of the Board will be enforced. . The handbill distributed by the picketers said: The peaceful patrolling is being done by Plumbers Local Union No. 307 of the AFL-CIO. As a union we are, of course, pro-union but this is not why we are picketing. True, we always like to see members of the union employed not only because they are our members, but also because we know that as the result of their intense training and experience and the completion of a five-year apprenticeship program these men are qualified to give the finest service and perform work with the expert craftsmanship which they have learned. But we have an additional interest in our area. We believe it is our obligation along with other residents of the area to maintain a certain standard of living. A standard of living comes from wages and conditions and we believe the wages and conditions which permit the maintenance of our standard of living and your standard, are those which prevail in the general area. Once these wages and conditions which prevail are reduced this means that the standard of living is reduced and it is not only reduced for the mechanic but it is reduced in the entire community as well because the merchant, the professional man and anyone whose business is dependent upon the prevailing wage of the mechanic is hurt when prevailing wages are not met. And, this is why we are patrolling. Meyer Plumbing, Inc. is not meeting prevailing wages and conditions and this, in our opinion, represents a threat to the entire community. This notice is addressed only to the public. It is not addressed to any employers or to any employees. There is no intent or attempt to induce or encourage employees of any employer, or any person to engage in a refusal to -work, transport, or otherwise handle or work on any goods, materials and so on. No one is requested to cease performing any services. No one is requested to cease doing business with any one person. There is no intent to have any particular work assigned to anyone, nor is there an intent to seek recognition or start bargaining. We believe that the people in this area should be familiar with what is going on and that is the sole purpose of patrolling. Plumbers Local Union No. 307 Affiliated with A.F.L.-O.I.O. . Although the trial examiner concluded that employees of neutral subcontractors were induced to withhold their services, the Board rejected that finding. Furthermore, a stipulation signed by the parties in the district court ease reads in pertinent part: “The parties argee that the employees of Hobbs were already on the job site when picketing commenced, and that no representative of any of these Respondent Unions spoke with any employee, officer or' agent of Hobbs. Petitioner (Board) admits that when a labor organization engages in lawful primary picketing, the fact that employees of other (secondary) employers working at the job site (such as employees of Hobbs) cease working at the job site in response to picketing, it does not, in and of itself, render the picketing unlawful. In other words, under said circumstances, the ‘effect’ of the picketing is not material and not to be considered. . . . ” Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_geniss	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". William H. BEGGS and Mary Clark Beggs, Plaintiffs-Appellees, v. DOUGHERTY OVERSEAS, INC., Defendant-Appellant. No. 258, Docket 26509. United States Court of Appeals Second Circuit. Argued Jan. 20, 1961. Decided Feb. 15, 1961. Robert Granville Burke, New York City (Chapman & Burke, New York City, on the brief), for plaintiffs-appellees. J. Edward Davey, Jr., New York City (Carl E. Buckley and Nevius, Jarvis & Pilz, New York City, on the brief), for defendant-appellant. Before LUMBARD, Chief Judge, and MEDINA and SMITH, Circuit Judges. SMITH, Circuit Judge. Plaintiffs, husband and wife, brought this action for damages against defendant for damages for wrongful termination of their employment contracts. The District Court, Sugarman, J., found for plaintiffs, awarding plaintiff William H. Beggs damages of $13,015.15 and plaintiff Mary Clark Beggs damages of $344.-63, with interest. William H. Beggs was employed under a contract dated October 1, 1956 as a personnel manager, Mary Clark Beggs under a contract dated November 25, 1956 as a stenographer, both to perform services in Cambodia in connection with the construction for the Cambodian government of a highway project that was financed by the International Cooperation Administration, an agency of the United States. On April 1, 1957, while Mr. and Mrs. Beggs were employed at Phnom Penh, Cambodia, A. L. Dougherty, president of defendant, in Cambodia on an inspection trip, fired Beggs after a dispute as to whether Beggs had been instructed on the previous day to clear Dougherty’s bags through customs on April 1. Beggs’ contention is that no such instructions had been given, and that Dougherty, mistakenly believing they had been given, cursed Beggs out before his wife and others and on Beggs’ reacting to that conduct by telling Dougherty to carry his own bags, fired Beggs. Mrs. Beggs’ employment was also terminated by her superior because of her husband’s departure. Dougherty’s contention was that Beggs had been instructed as to the bags the previous day, had not taken care of them, and when Beggs was asked by Dougherty, without profanity, who had taught him to be a personnel manager, Beggs told Dougherty to carry his own “-bags,” whereupon Beggs was fired for cause. Appellant contends that the trial court was in error in crediting Beggs’ story, since there were inconsistencies in it and it was contradicted by credible witnesses. It was within the province of the trial judge to determine credibility, however, and he might have found the inconsistencies not established or that they were innocent errors not affecting the determination of the essential issue, whether the firing was for cause. The first claimed inconsistency was testimony that Beggs saw one Smith in New York October 3, 1956, while company travel documents purported to show that Smith arrived in Cambodia October 1, 1956. This was clearly wide of the issue and easily ascribable to innocent failure of memory, even if the company records be taken as infallible. The second discrepancy was closer to the issue, testimony by Beggs that he was instructed to take one Finney to the doctor April 1 while company records are claimed to show Finney admitted to the infirmary March 31. The record in evidence, however, while it shows an order that Finney be confined to bed for observation, does not establish that confinement to bed was effected on March 31 in the infirmary. Again the trier may have determined that Beggs was incorrect in his memory without wholly discrediting his other testimony, or may have determined that the records were not sufficient to contradict him. The third claimed inconsistency is even weaker, an argument that Beggs couldn’t have been meeting Portuguese employees at the airport because Beggs couldn’t speak Portuguese, and his failure to mention his Portuguese assistant. The claimed inconsistencies did not require as a matter of law that the judge discredit Beggs on the main points. The trial judge saw the witnesses and had the advantage of observation of their demeanor on the stand. “The burden on an appellant, who seeks to reverse a judgment for error in fact, to show that essential findings are clearly erroneous, is, indeed, a heavy one when, as in this instance, decision must turn largely upon the credibility of witnesses the trial judge saw and heard testify. Rule 52(a) F.R.C.P., 28 U.S.C.A.: U. S. v. Aluminum Co. of America, 2 Cir., 148 F.2d 416, 433; Moore v. Ford Motor Co., 2 Cir., 43 F.2d 685.” Hedger v. Reynolds, 2 Cir., 1954, 216 F.2d 202, 203. Cf. Broadcast Music, Inc. v. Havana Madrid Restaurant Corp., 2 Cir., 1949, 175 F.2d 77, 79, 80. The finding that the discharges were not for good cause and that they were in breach of contract must stand. Three other issues remain on this appeal, whether the court properly allowed as elements of damage (1) $650.00 spent in seeking new employment, and (2) $1610.38 awarded Mr. Beggs and $341.01 awarded Mrs. Beggs for United States income taxes; (3) whether plaintiffs are entitled to award of additional costs because the appeal was frivolous and for purposes of delay. The parties assume that New York law applies. Since the contract was entered into in New York and since there is no proof that the law of Cambodia, the only other jurisdiction with any apparent relation to the contract, differs from that of New York, nor proof that the parties to the contract intended any other law to apply, we consider that New York law does so apply. The award of $650 allegedly spent in seeking employment is attacked on three grounds, failure of proof, necessity of such expenditure in any case on completion of the contract term, and a claimed New York rule that advertising costs for a new position are not proper items of damages. The lack of proof argument is based on an alleged absence of vouchers and receipts. That type of evidence might have been helpful, but such corroboration is not essential to support direct testimony, R. pp. 97, 134, 136, that the expenditures had been made. So far as the contention goes that the expenditures would have been necessary regardless of the breach, it is entirely possible that future employment might have been obtained by normal contacts and correspondence starting a sufficient time before the end of the contract term, and it must be remembered that after the breach the employees were under a duty to use all reasonable means to obtain prompt employment elsewhere to minimize damages. The general rule appears to be that a wrongfully discharged employee may recover the necessary expenses of seeking new employment. Corbin, Contracts, Section 1044; Williston, Contracts, Section 1359; McCormick, Damages, Section 163; Sedgwick, Damages, Section 667. Development Co. of America v. King, 2 Cir., 1909, 170 F. 923 and cases collected in 84 A.L.R. 171. The appellant contends that the New York rule is to the contrary, citing Van Raas v. Rosenbaum-Grinnell, App.Term 1960, 23 Misc.2d 919, 206 N.Y.S.2d 235. Were there a clear precedent in the Appellate Division to this effect we would be bound to follow it as expository of the New York law. Fidelity Union Trust Co. v. Field, 1940, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109, Six Companies of California v. Joint Highway District No. 13 of California, 1940, 311 U.S. 180, 61 S.Ct. 186, 85 L.Ed. 114. The Van Raas case, however, is far from a clear enunciation of New York doctrine. It is a brief one paragraph memorandum opinion, disallowing so much of the recovery ($37.50 of a total of $780) as was claimed to be advertising expense. It may, however, have been eliminated for lack of proof, a highly probable conclusion in view of the apparent allowance in that case of reimbursement of other re-employment expense. The ambiguity of the memorandum, the lack of other New York cases looking in the direction of disallowance, and the weight of authority favoring allowance, persuades us that the highest New York court would allow such an item. We conclude that New York would follow the general rule and allow the $650.00 re-employment expense item here. On the income tax item, both parties were familiar with the advantage in this regard enjoyed in foreign employment for 18 months, Sec. 911, I.R.C., 26 U.S.C.A. § 911. Significantly, the basic contemplated term of the employment contract was one of eighteen months, as evidenced by the maximum 10% bonus attainable upon completion of that length of satisfactory service. Furthermore, the provision in Section XIX of the contract concerning reimbursement for Cambodian income tax payments indicates that the parties, as is the case in so many foreign employment contracts, had income taxes on their minds. From these facts it may be inferred that the tax benefits accruing from lengthy foreign employment were very much in the minds of the parties when they contracted; plaintiffs lost these benefits because of the wrongful discharge. Since the damages were foreseeable and in the reasonable contemplation of the parties as a result of a breach (Hadley v. Baxendale, 9 Exch. 341, 156 Eng.Reprint 145), the income tax items were properly allowed as elements of damage. The additional claim of the plaintiffs for damages under Rule 26(b), Rules, 28 U.S.C.A., Court of Appeals for the Second Circuit, is not, however, sustainable. The issues on re-employment expense and loss of tax advantage cannot be said to be colorable, particularly in view of the dearth of New York precedent in this field. The appeal is far from frivolous. Affirmed. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
sc_caseorigin	020	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. MARRAMA v. CITIZENS BANK OF MASSACHUSETTS et al. No. 05-996. Argued November 6, 2006 Decided February 21, 2007 Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Auto, J., filed a dissenting opinion, in which Roberts, C. J., and Scaua and Thomas, JJ., joined, post, p. 376. David G. Baker argued the cause for petitioner. With him on the briefs was Jeffrey A. Kitaeff G. Eric Brunstad, Jr., argued the cause for respondents. With him on the brief for respondent Citizens Bank of Massachusetts were Rheba Rutkowski and William C. Heuer. Respondent Mark G. DeGiacomo filed a brief pro se. With him on the brief were Olga L. Bogdanov and Tarima Garg. Lisa S. Blatt argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were Solicitor General Clement, Deputy Solicitor General Hungar, R Matthew Sutko, and Knight Elsberry Seth P. Waxman and Craig Goldblatt filed a brief for the National Association of Consumer Bankruptcy Attorneys as amicus curiae urging reversal. Lynne F. Riley filed a brief for the National Association of Bankruptcy Trustees as amicus curiae urging affirmance. Justice Stevens delivered the opinion of the Court. The principal purpose of the Bankruptcy Code is to grant a ‘“fresh start’” to the “‘honest but unfortunate debtor.’” Grogan v. Garner, 498 U. S. 279,286,287 (1991). Both Chapter 7 and Chapter 13 of the Code permit an insolvent individual to discharge certain unpaid debts toward that end. Chapter 7 authorizes a discharge of prepetition debts following the liquidation of the debtor’s assets by a bankruptcy trustee, who then distributes the proceeds to creditors. Chapter 13 authorizes an individual with regular income to obtain a discharge after the successful completion of a payment plan approved by the bankruptcy court. Under Chapter 7 the debtor’s nonexempt assets are controlled by the bankruptcy trustee; under Chapter 13 the debtor retains possession of his property. A proceeding that is commenced under Chapter 7 may be converted to a Chapter 13 proceeding and vice versa. 11 U. S. C. §§ 706(a), 1307(a) and (c).. An issue that has arisen with disturbing frequency is whether a debtor who acts in bad faith prior to, or in the course of, filing a Chapter 13 petition by, for example, fraudulently concealing significant assets, thereby forfeits his right to obtain Chapter 13 relief. The issue may arise at the outset of a Chapter 13 case in response to a motion by creditors or by the United States trustee either to dismiss the case or to convert it to Chapter 7, see § 1307(c). It also may arise in a Chapter 7 case when a debtor files a motion under § 706(a) to convert to Chapter 13. In the former context, despite the absence of any statutory provision specifically addressing the issue, the federal courts are virtually unanimous that prepetition bad-faith conduct may cause a forfeiture of any right to proceed with a Chapter 13 case. In the latter context, however, some courts have suggested that even a bad-faith debtor has an absolute right to convert at least one Chapter 7 proceeding into a Chapter 13 case even though the case will thereafter be dismissed or immediately-returned to Chapter 7. We granted certiorari to decide whether the Code mandates that procedural anomaly. 547 U. S. 1191 (2006). I On March 11,2003, petitioner, Robert Marrama, filed a voluntary petition under Chapter 7, thereby creating an estate consisting of all his property “wherever located and by whomever held.” 11 U. S. C. § 541(a). Respondent Mark DeGiacomo is the trustee of that estate. Respondent Citizens Bank of Massachusetts (hereinafter Bank) is the principal creditor. In verified schedules attached to his petition, Marrama made a number of statements about his principal asset, a house in Maine, that were misleading or inaccurate. For instance, while he disclosed that he was the sole beneficiary of the trust that owned the property, he listed its value as zero. He also denied that he had transferred any property other than in the ordinary course of business during the year preceding the filing of his petition. Neither statement was true. In fact, the Maine property had substantial value, and Marrama had transferred it into the newly created trust for no consideration seven months prior to filing his Chapter 7 petition. Marrama later admitted that the purpose of the transfer was to protect the property from his creditors. After Marrama’s examination at the meeting of creditors, see 11 U. S. C. § 341, the trustee advised Marrama’s counsel that he intended to recover the Maine property as an asset of the estate. Thereafter, Marrama filed a “Verified Notice of Conversion to Chapter 13.” Pursuant to Federal Rule of Bankruptcy Procedure 1017(f)(2), the notice of conversion was treated as a motion to convert, to which both the trustee and the Bank filed objections. Relying primarily on Marrama’s attempt to conceal the Maine property from his creditors, the trustee contended that the request to convert was made in bad faith and would constitute an abuse of the bankruptcy process. The Bank opposed the conversion on similar grounds. At the hearing on the conversion issue, Marrama explained through counsel that his misstatements about the Maine property were attributable to “scrivener’s error,” that he had originally filed under Chapter 7 rather than Chapter 13 because he was then unemployed, and that he had recently become employed and was therefore eligible to proceed under Chapter 13. The Bankruptcy Judge rejected these arguments, ruling that there is no “Oops” defense to the concealment of assets and that the facts established a “bad faith” case. App. 34a~35a. The judge denied the request for conversion. Marrama’s principal argument on appeal to the Bankruptcy Appellate Panel, for the First Circuit was that he had an absolute right to convert his case from Chapter 7 to Chapter 13 under the plain language of § 706(a) of the Code. The panel affirmed the decision of the Bankruptcy Court. It construed § 706(a), when read in connection with other provisions of the Code and the Bankruptcy Rules, as creating a right to convert a case from Chapter 7 to Chapter 13 that “is absolute only in the absence of extreme circumstances.” In re Marrama, 313 B. R. 525, 531 (2004). In concluding that the record disclosed such circumstances, the panel relied on Marrama’s failure to describe the transfer of the Maine residence into the revocable trust, his attempt to obtain a homestead exemption on rental property in Massachusetts, and his nondisclosure of an anticipated tax refund. On appeal from the panel, the Court of Appeals for the First Circuit also rejected the argument that § 706(a) gives a Chapter 7 debtor an absolute right to convert to Chapter 13. In addition to emphasizing that the statute uses the word “may” rather than “shall,” the court added: “In construing subsection 706(a), it is important to bear in mind that the bankruptcy court has unquestioned authority to dismiss a chapter 13 petition — as distinguished from converting the case to chapter 13 — based upon a showing of ‘bad faith’ on the part of the debtor. We can discern neither a theoretical nor a practical reason that Congress would have chosen to treat a first-time motion to convert a chapter 7 case to chapter 13 under subsection 706(a) differently from the filing of a chapter 13 petition in the first instance.” In re Marrama, 430 F. 3d 474, 479 (2005) (citations omitted). While other Courts of Appeals and Bankruptcy Appellate Panels have refused to recognize any “bad faith” exception to the conversion right created by § 706(a), see n. 2, supra, we conclude that the courts in this case correctly held that Marrama forfeited his right to proceed under Chapter 13. II The two provisions of the Bankruptcy Code most relevant to our resolution of the issue are subsections (a) and (d) of 11 U. S. C. § 706, which provide: “(a) The debtor may convert a case under this chapter to a case under chapter 11, 12, or 13 of this title at any time, if the case has not been converted under section 1112,1208, or 1307 of this title. Any waiver of the right to convert a case under this subsection is unenforceable. “(d) Notwithstanding any other provision of this section, a case may not be converted to a case under another chapter of this title unless the debtor may be a debtor under such chapter.” Petitioner contends that subsection (a) creates an unqualified right of conversion. He seeks support from language in both the House and Senate Committee Reports on the provision. The Senate Report stated: “Subsection (a) of this section gives the debtor the onetime absolute right of conversion of a liquidation case to a reorganization or individual repayment plan case. If the case has already once been converted from chapter 11 or 13 to chapter 7, then the debtor does not have that right. The policy of the provision is that the debtor should always be given the opportunity to repay his debts, and a waiver of the right to convert a case is unenforceable.” S. Rep. No. 95-989, p. 94 (1978); see also H. R. Rep. No. 95-595, p. 380 (1977) (using nearly identical language). The Committee Reports’ reference to an “absolute right” of conversion is more equivocal than petitioner suggests. Assuming that the described debtor’s “opportunity to repay his debts” is a shorthand reference to a right to proceed under Chapter 13, the statement that he should “always” have that right is inconsistent with the earlier recognition that it is only a one-time right that does not survive a previous conversion to, or filing under, Chapter 13. More importantly, the broad description of the right as “absolute” fails to give full effect to the express limitation in subsection (d). The words “unless the debtor may be a debtor under such chapter” expressly conditioned Marrama’s right to convert on his ability to qualify as a “debtor” under Chapter 13. There are at least two possible reasons why Marrama may not qualify as such a debtor, one arising under § 109(e) of the Code, and the other turning on the construction of the word “cause” in § 1307(c). The former provision imposes a limit on the amount of indebtedness that an individual may have in order to qualify for Chapter 13 relief. More pertinently, the latter provision, § 1307(c), provides that a Chapter 13 proceeding may be either dismissed or converted to a Chapter 7 proceeding “for cause” and includes a nonexclusive list of 10 causes justifying that relief. None of the specified causes mentions prepetition bad-faith conduct (although paragraph (10) does identify one form of Chapter 7 error— which is necessarily prepetition conduct — that would justify dismissal of a Chapter 13 case). Bankruptcy courts nevertheless routinely treat dismissal for prepetition bad-faith conduct as implicitly authorized by the words “for cause.” See n. 1, supra. In practical effect, a ruling that an individual’s Chapter 13 case should be dismissed or converted to Chapter 7 because of prepetition bad-faith conduct, including fraudulent acts committed in an earlier Chapter 7 proceeding, is tantamount to a ruling that the individual does not qualify as a debtor under Chapter 13. That individual, in other words, is not a member of the class of “ ‘honest but unfortunate debtor [s]’” that the bankruptcy laws were enacted to protect. See Grogan v. Garner, 498 U. S., at 287. The text of § 706(d) therefore provides adequate authority for the denial of his motion to convert. The class of honest but unfortunate debtors who do possess an absolute right to convert their eases from Chapter 7 to Chapter 13 includes the vast majority of the hundreds of thousands of individuals who file Chapter 7 petitions each year. Congress sought to give these individuals the chance to repay their debts should they acquire the means to do so. Moreover, as the Court of Appeals observed, the reference in § 706(a) to the unenforceability of a waiver of the right to convert functions “as a consumer protection provision against adhesion contracts, whereby a debtor's creditors might be precluded from attempting to prescribe a waiver of the debtor’s right to convert to chapter 13 as a non-negotiable condition of its contractual agreements.” 430 F. 3d, at 479. A statutory provision protecting a borrower from waiver is not a shield against forfeiture. Nothing in the text of either § 706 or § 1307(c) (or the legislative history of either provision) limits the authority of the court to take appropriate action in response to fraudulent conduct by the atypical litigant who has demonstrated that he is not entitled to the relief available to the typical debtor. On the contrary, the broad authority granted to bankruptcy judges to take any action that is necessary or appropriate “to prevent an abuse of process” described in § 105(a) of the Code, is surely adequate to authorize an immediate denial of a motion to convert filed under § 706 in lieu of a conversion order that merely postpones the allowance of equivalent relief and may provide a debtor with an opportunity to take action prejudicial to creditors. Indeed, as the Solicitor General has argued in his brief amicus curiae, even if § 105(a) had not been enacted, the inherent power of every federal court to sanction “abusive litigation practices,” see Roadway Express, Inc. v. Piper, 447 U. S. 752, 765 (1980), might well provide an adequate justification for a prompt, rather than a delayed, ruling on an unmeritorious attempt to qualify as a debtor under Chapter 13. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. See, e. g., In re Alt, 305 F. 3d 413, 418-419 (CA6 2002); In re Leavitt, 171 F. 3d 1219,1224 (CA9 1999); In re Kestell, 99 F. 3d 146,148 (CA4 1996); In re Molitor, 76 F. 3d 218, 220 (CA8 1996); In re Gier, 986 F. 2d 1326, 1329-1330 (CA10 1993); In re Love, 957 F 2d 1350,1354 (CA7 1992); In re Sullivan, 326 B. R. 204, 211 (Bkrtcy. App. Panel CA1 2005) (per curiam). See, e. g., In re Martin, 880 F. 2d 857, 859 (CA5 1989); In re Croston, 313 B. R. 447 (Bkrtcy. App. Panel CA9 2004); In re Miller, 303 B. R. 471 (Bkrtcy. App. Panel CA10 2003). The trustee also noted that in his original verified schedules Marrama had claimed a property in Gloucester, Mass., as a homestead exemption, see 11 U. S. C. § 522(b)(2); Mass. Gen. Laws, ch. 188, §1 (West 2005), but testified at the meeting of creditors that he did not reside at the property and was receiving rental income from it, App. 71a-72a. Moreover, when asked at the meeting whether anyone owed him any money, Marrama responded “No,” id., at 50a, and in response to a similar question on Schedule B to his petition, which specifically requested a description of any “tax refunds,” Marrama indicated that he had “none,” Supp. App. 6. In fact, Marrama had filed an amended tax return in July 2002 in which he claimed the right to a refund, and shortly before the hearing on the motion to convert, the Internal Revenue Service informed the trustee that Marrama was entitled to a refund of $8,745.86, App. 30a-31a. The parties dispute the accuracy of this representation. The trustee’s brief notes that Schedule I to Marrama’s original petition indicates that he had been employed by a flooring company at the time the case was filed. See Brief for Respondent Mark G. DeGiacomo 10, n. 7 (citing Supp. App. 18, 30). Marrama’s counsel stated during oral argument, however, that the income listed in Schedule I represented an estimate based on employment that had not yet begun. Tr. of Oral Arg. 24. Since the sufficiency of the evidence of bad faith is not at issue, we may assume that Marrama did have more income available when he sought to convert than when he commenced the Chapter 7 case. The judicial council of any circuit is authorized by statute to establish a bankruptcy appellate panel service, comprising bankruptcy judges, to hear appeals from the bankruptcy courts with the consent of the parties. See 28 U. S. C. § 158(b); Connecticut Nat. Bank v. Germain, 503 U. S. 249, 252 (1992). The First Circuit has established this service. Subsection (e) of 11 U. S. C. §109 provides: “Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $250,000 and noncontingent, liquidated, secured debts of less than $750,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts that aggregate less than $250,000 and noncontingent, liquidated, secured debts of less than $750,000 may be a debtor under chapter 13 of this title.” These dollar limits are subject to adjustment for inflation every three years. See § 104(b). Marrama initiated a new Chapter 13 case the day after we granted certiorari in the present case. The new case was dismissed on the grounds that, under § 109(e), he was ineligible to be a Chapter 13 debtor. See In re Marrama, 345 B. R. 458, 463-464, and n. 10 (Bkrtcy. Ct. Mass. 2006). As the Bankruptcy Judge made no such determination on the record before us in this case, and as it is not necessary to our decision that such a determination be made, we do not consider whether Marrama fails to meet the § 109(e) debt limit. Title 11 U. S. C. § 1307(c) provides, in relevant part: “Except as provided in subsection (e) of this section, on request of a party in interest or the United States trustee and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 7 of this title, or may dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause, including— “(1) unreasonable delay by the debtor that is prejudicial to creditors; “(2) nonpayment of any fees and charges required under chapter 123 of title 28; “(3) failure to file a plan timely under section 1321 of this title; “(10) only on request of the United States trustee, failure to timely file the information required by paragraph (2) of section 521.” Section 521(2), which has since been amended and redesignated as § 521(a)(2), see 119 Stat. 38, imposes a duty on a debtor in a Chapter 7 proceeding to file within a certain time period a statement of intent with respect to the retention or surrender of property being used to secure debts. See 11 U. S. C. § 521(a)(2) (2000 ed., Supp. V). Indeed, because § 521(a)(2) by its terms applies only to Chapter 7 debtors, at least one prominent treatise has assumed that this subsection could only apply to a debtor who has converted a case from Chapter 7 to Chapter 13. See 8 Collier on Bankruptcy ¶ 1307.04[9] (rev. 15th 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. 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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_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. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 640, and its agent, Glynn Ross, Respondents. No. 71-2837. United States Court of Appeals, Ninth Circuit. July 18, 1972. Pregerson, District Judge, filed dissenting opinion. William H. DuRoss, III, Atty. (argued), Robert A. Giannasi, Atty., Marcel Mallet-Prevost, Asst. Gen. Counsel, Peter G. Nash, Gen. Counsel, N.L.R. B., Washington, D. C.; C. Woodrow Greene, Director, Region 28, N.L.R.B., Albuquerque, N. M., for petitioner. A. D. Ward (argued), of Ward & Contreras, Charles E. Jones, of Jennings, Strouss & Salmon, Phoenix, Ariz., for respondents. Before CHAMBERS and WRIGHT, Circuit Judges, and PREGERSON, District Judge. Honorable Harry Pregerson, United States District Judge for the Central District of California, sitting by designation. EUGENE A. WRIGHT, Circuit Judge: The National Labor Relations Board asks the court to enforce its order directing IBEW Local 640 to cease and desist from certain secondary boycott activities and to post the customary notices. The Board adopted the Trial Examiner’s findings that the union violated Section 8(b) (4) (i) and (ii) (B) of the National Labor Relations Act by threatening Phoenix electrical contractors with refusal to handle or install materials purchased from Brown Wholesale Electrical Company and by actually refusing to handle Brown materials, for the purpose of forcing the contractors to cease doing business with Brown. We hold that substantial evidence supports the Board’s findings and we enforce the order. Brown is a major wholesale supplier of fixtures, wiring and equipment for electrical contractors in the Phoenix area. Its employees are not represented by a labor organization. The contractors involved here belong to the Phoenix division of the National Electrical Contractors Association, which has a collective bargaining agreement with the union. Nearly all employees of the contractors are union members. The union began to picket Brown’s place of business on November 20, 1969, as part of a campaign to obtain recognition from Brown. In addition to this primary activity, union members at construction sites began refusing to unload, handle, or install Brown materials. These refusals continued after the Board obtained a district court order enjoining further picketing of Brown’s premises. The Trial Examiner found that the NECA contractors had agreed among themselves to refrain from placing new orders with Brown, for so long as the union’s campaign against Brown had the color of legality. After the March 11, 1970 court order, the contractors inquired of the union whether further difficulties would be encountered if they ordered Brown materials. The Trial Examiner found that the union responded with subtle and indirect threats of continued secondary boycott activity against supplies ordered from Brown, as well as with several incidents of actual refusal to handle Brown materials. Without detailing the evidentiary support for these conclusions, suffice it to say that we find it to be substantial. The union mounts two attacks against the findings. One rests upon its disagreement with the credibility findings by the Trial Examiner. We have said, “[t]his Court is required to respect the duty of the trier-of-fact to decide who to believe to reconcile conflicting evidence, and to draw such inferences as the evidence reasonably supports. We will not disturb the resolution of conflicting testimony made by the trier-of-fact.” N. L. R. B. v. Construction & General Laborers’ Union Local 270, 398 F.2d 86, 89 (9th Cir. 1968). See also N. L. R. B. v. Intalco Aluminum Corp., 446 F.2d 1232 (9th Cir. 1971). The Trial Examiner explained the basis for his credibility resolutions in some detail, and we will not disturb them. The union’s second challenge to the findings is grounded upon the lack of direct evidence to show that any agent of the union encouraged or induced the employees who refused to handle or install Brown materials. We quote the Trial Examiner on this issue: “The Examiner concedes that no witness testified to hearing a union agent actually tell a contractor employee represented by the Union not to handle or install materials purchased by his employer from or through Brown. The evidence, however, demonstrates a consistent pattern of refusals by contractor employees represented by the Union to handle or install such materials until and unless their employers contacted a representative of the Union, satisfied such representative that the materials came within a recognized exception to the union bar against such handling and installation, and received orders from a union representative to go ahead and handle and install the materials in question. The Examiner believes the discipline apparent from this behavior warrants the inference that it stemmed from union encouragement and inducement, and so finds and concludes.” We believe the Examiner’s inference could reasonably be drawn from the evidence and, as we view the record, was by far the most plausible explanation of the employees’ conduct. The petition of the Board for enforcement of its order is granted. 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_certreason	K	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. REMMER v. UNITED STATES. No. 156. Argued January 18, 1956. Decided March 5, 1956. Leslie C. Gillen argued the cause for petitioner. With him on the brief were John B. Golden and Spurgeon Avakian. John R. Benney argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Holland and Joseph M. Howard. Mr. Justice Minton delivered the opinion of the Court. This case is here for the third time. Petitioner was convicted on four counts of wilfully attempting to evade and defeat federal income taxes. When this case was first here we knew nothing about the facts concerning the phase of the case now before us. It was alleged in the petitioner’s motion and affidavits supporting his motion for a new trial that during the trial one juror, Smith, had been approached by one Satterly, an outsider, with a suggestion that the juror could make some easy money if he would make a deal with petitioner Remmer. It was further alleged by the petitioner that the juror reported the matter to the trial judge, who in turn reported it to the district attorney, who, with the judge’s approval, called in the Federal Bureau of Investigation — all of which was unknown to the petitioner until he read about it in the newspaper after the jury had returned its verdict finding him guilty. The Government did not deny these allegations. We sent the case back to the District Court with directions to hold a hearing, with the petitioner and counsel present, to determine from the facts whether or not communication with the juror by the outsider and the events that followed were prejudicial and, therefore, harmful to the petitioner, and, if so, to grant a new trial. 347 U. S. 227. On remand, the District Court held a hearing and found the incidents to be free of harm. 122 F. Supp. 673. Thereafter, this Court remanded the entire record to the Court of Appeals for the Ninth Circuit to consider the whole case in the light of our recent net-worth decisions. 348 U. S. 904. The Court of Appeals reviewed the whole record and affirmed the petitioner’s conviction in a per curiam opinion. 222 F. 2d 720. The case is here again on certiorari, limited to the question of the effect of the extraneous communications with the juror upon the petitioner’s right to a fair trial. 350 U. S. 820. The District Court read our opinion and mandate to mean that “the incident complained of” to be inquired into at the hearing was the purpose and effect of the F. B. I. investigation. The District Court found that the purpose of the F. B. I. investigation was not to examine Smith’s conduct, but rather to determine whether Satterly had committed an offense. The court further found that the F. B. I. agent’s discussion with Smith had “no effect whatever upon the judgment, or the integrity or state of mind” of Smith, whom the court found to be a “forthright and honest man.” On the basis of these two findings, the court concluded: “Consequently, the court finds that 'the incident complained of’ was entirely harmless so far as the petitioner was concerned and did not have the slightest bearing upon the integrity of the verdict nor the state of mind of the foreman of the jury, or any of the members of the jury. Thus any presumption of prejudice is conclusively dispelled. . . .” The District Court’s limit of our mandate, it seems to us, is hardly warranted by the language of the opinion, even though the language might well have been more explicit. It was our intention that the entire picture should be explored and the incident complained of and to be examined included Satterly’s communication with the juror and the impact thereof upon him then, immediately thereafter, and during the trial, taken together with the fact that the F. B. I. was investigating a circumstance involving the juror and the fact that the juror never knew all during the balance of the trial what the outcome of that investigation was. Thus we stated: “In a criminal case, any.private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court . . . with full knowledge of the parties.” 347 U. S., at 229. We also pointed out that the record we had before us did not reflect what in-fact transpired, “or whether the incidents that may have occurred were harmful or harmless.” Ibid. It was the paucity of information relating to the entire situation coupled with the presumption which attaches to the kind of facts alleged by petitioner which, in our view, made manifest the need for a full hearing. Nevertheless, there is sufficient evidence in the record relating to the total situation, including both the Satterly and the F. B. I. contacts, which makes it unnecessary to remand the case for further consideration. We will consider the. evidence free from what we think are the unduly narrow limits of the question as viewed by the District Court. The evidence shows that three weeks after the trial started, juror Smith, who is a real estate and insurance broker, was visited in his home by Satterly and his wife about an insurance policy. Satterly had been employed in a gambling house in Nevada as a dealer of craps. The petitioner was or had been engaged in the operation of gambling houses in Nevada. The Satterlys had met the Smiths socially at a hunting lodge. Smith and Satterly seated themselves in one end of a large room and their wives were seated in the other end of the room, a convenient arrangement if an approach was to be made. Satterly made substantially the following remark: “I know Bones Remmer very well. He sold Cal-Neva for $850,000 and really got about $300,000 under the table which he daresn’t touch. Why don’t you make a deal with him?” Smith vigorously reminded Satterly that he was on the jury and that he could not talk about the case. Nothing more was said. Smith was disturbed. As he later testified, “I always felt, whether Mr. Satterly said it in so many words or not, I always felt that money was involved; otherwise why would any question be put to me.” So disturbed was Smith that he told the trial judge about it. The judge’s reaction, at least as he manifested it to Smith, was that the Satterly conversation should be regarded as a joke. But the judge related the incident to the district attorney and they decided to refer the matter to the Federal Bureau of Investigation. Shortly thereafter, during a recess, an F. B. I. agent called on Smith at his place of business. Smith testified that the agent explained the purpose of this visit as follows: “He told me that he had been instructed to come and interview me relative to this conversation I had with Mr. Satterly. ... To check and see whether there was anything to this or not.” On direct examination the agent testified: “I told him I had been requested to conduct an investigation relating to his talk with Mr. Satterly and the possibility of improper approach.” In reply to questions put by the District Court, the agent testified that he had explained to Smith that the purpose of his investigation was to examine Satterly’s conduct. Sat-terly was never interviewed by the F. B. I. during its investigation. It was not until a month after the trial had ended that the Government determined that further investigation or criminal prosecution was unwarranted. Driving home after the trial with two other jurors, Smith mentioned that there was some question as to whether he had been approached during the trial and that he had reported the incident to the trial judge. He thanked one of the jurors on dropping her at her home, “because I have been under a terrific pressure . . . Sometime I will discuss it.” We think this evidence, covering the total picture, reveals such a state of facts that neither Mr. Smith nor anyone else could say that he was not affected in his freedom of action as a juror. From Smith’s testimony it is quite evident that he was a disturbed and troubled man from the date of the Satterly contact until after the trial. Proper concern for protecting and preserving the integrity of our jury system dictates against our speculating that the F. B. I. agent’s interview with Smith, whatever the Government may have understood its purpose to be, dispersed the cloud created by Satterly’s communication. As he sat on the jury for the remainder of the long trial and as he cast his ballot, Smith was never aware of the Government's interpretation of the events to which he, however unwillingly, had become a party. He had been subjected to extraneous influences to which no juror should be subjected, for it is the law’s objective to guard jealously the sanctity of the jury’s right to operate as freely as possible from outside unauthorized intrusions purposefully made. The unduly restrictive interpretation of the question by the District Court had the effect of diluting the force of all the other facts and circumstances in the case that may have influenced and disturbed Smith in the untrammeled exercise of his judgment as a juror. We hold that on a consideration of all the evidence uninfluenced by the District Court’s narrow construction of the incident complained of, petitioner is entitled to a new trial. The Court of Appeals’ judgment is vacated and the case is remanded to the District Court with directions to grant a new trial. It is so ordered. Mr. Chief Justice Warren and Mr. Justice Harlan took no part in the consideration or decision of this case. Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:
songer_appfed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Rose MAYBURG, et al., Plaintiffs, Appellees, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellant. No. 84-1022. United States Court of Appeals, First Circuit. Argued May 9, 1984. Decided Aug. 2, 1984. Harold J. Krent, Atty., Appellate Staff, Civ. Div., Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., William F. Weld, U.S. Atty., Boston, Mass., and Anthony J. Steinmeyer, Atty., Appellate Staff, Civ. Div., Dept, of Justice, Washington, D.C., were on brief, for defendant, appellant. Daniel S. Manning, with whom Sally Hart Wilson, was on brief, for plaintiffs, appellees. Before CAMPBELL, Chief Judge, BREYER, Circuit Judge, and PETTINE, Senior District Judge. Of the District of Rhode Island, sitting by designation. BREYER, Circuit Judge. With certain qualifications, the Medicare Act, Part A, provides eligible persons with 90 days of hospital “inpatient” coverage and 100 days of post-hospital “extended care” coverage during each “spell of illness.” 42 U.S.C. § 1395d(a). The Act defines “spell of illness” as a period (1) beginning with the first day (not included in a previous spell of illness) (A) on which such individual is furnished inpatient hospital services or extended care services, and (B) which occurs in a month for which he is entitled to benefits under part A, and (2) ending with the close of the first period of 60 consecutive days thereafter on each of which he is neither an inpatient of a hospital nor an inpatient of a skilled nursing facility. 42 U.S.C. § 1395x(a). This language seems to say that the “spell of illness” clock begins to tick when one first receives covered services; and it is not turned off and reset unless, and until, one is no longer (“an inpatient of a hospital” or) “an inpatient of a skilled nursing facility” for at least sixty days. This case asks how this language applies to a person who lives in a skilled nursing facility, a very old person who receives no medical treatment at the facility, but who can no longer be kept at home. Does her “spell of illness” clock, once started, never turn off? Once she uses up the full treatment allowance offered for a single “spell of illness” (and a lifetime reserve), is she out of luck? The Department of Health and Human Services (“HHS”) believes so. It has long interpreted the words “inpatient of a skilled nursing facility” to include one who receives only “custodial” care in the facility, i.e., one who simply lives there. And HHS believes that such people consequently cannot reset the “spell of illness” clock. The plaintiff in this case, Rose Mayburg, is an 88 year old woman who lives in a “skilled nursing facility” but who receives only “custodial” care. Medicare Part A does not reimburse the cost of this custodial care. But Medicare Part A does pay for any hospital (and related) treatment. Since April 1977 she has been admitted to a hospital at least four times, sometimes for fever and sometimes because of rectal bleeding. In each instance she returned to the nursing facility where she lives. Blue Cross told her that Medicare Part A would not cover her after March 4, 1980, for she had used up the benefits pertaining to one “spell of illness;” and she had elected not to use her special lifetime allowance; since she lives in a nursing home, her “spell of illness” clock could not be reset. She appealed this decision through HHS and finally to the district court. The district court found that HHS erroneously interpreted the statute. The words “inpatient of a skilled nursing facility” do not apply to one who receives only custodial care at a skilled nursing facility. Thus, such a person’s “spell of illness” clock turns off (after sixty days of no treatment) and begins to run again. 574 F.Supp. 922. HHS appeals this holding. After considering the arguments and reading the legislative history of the statute, we conclude that the district court is correct. I We can state our reasons for agreeing with the district court briefly. First, the court’s decision is consistent with the overwhelming weight of judicial authority. Three separate circuits, the Second, Third, and Sixth, as well as many district courts, have rejected the Secretary’s interpretation of the statute. Levi v. Heckler, 736 F.2d 848 (2d Cir.1984) (per curiam); Kaufman v. Harris, 731 F.2d 370 (6th Cir.1984) (per curiam); Friedberg v. Schweiker, 721 F.2d 445 (3rd Cir.1983); Henningson v. Heckler, Slip Op. No. 83-3077 (N.D.Iowa Oct. 27, 1983); Steinberg v. Schweiker, 549 F.Supp. 114 (S.D.N.Y.1982); Estate of Picard v. Secretary of Health and Human Services, [1980-1981 Transfer Binder] Medicare & Medicaid Guide (CCH) 1130, 722 (S.D.N.Y. Sept. 2, 1980); Levine v. Secretary of Health, Education and Welfare, 529 F.Supp. 333 (W.D.N.Y.1981); Burt v. Secretary of Health, Education and Welfare, No. S-77-619 (E.D.Cal. Feb. 22, 1979); Eisman v. Mathews, 428 F.Supp. 877 (D.Md. 1977); Gerstman v. Secretary of Health, Education and Welfare, 432 F.Supp. 636 (W.D.N.Y.1977); Hasek v. Mathews, [1977-1978 Transfer Binder] Medicare & Medicaid Guide (CCH) 1128,345 (N.D.Cal. Feb. 8, 1977); Hardy v. Mathews, [1976-1977 Transfer Binder] Medicare & Medicaid Guide (CCH) 1128,031 (D.Minn. July 28, 1976). Only two district courts have upheld the Secretary, and neither of their opinions analyzes the issue in much detail. Stoner v. Califano, 458 F.Supp. 781 (E.D. Mich.1978); Brown v. Richardson, 367 F.Supp. 377 (W.D.Pa.1973). Second, the court’s decision adopts the meaning that the plain language of the statute suggests. The word “patient” ordinarily refers to one who receives treatment. Webster defines an “inpatient” as “a patient ... who receives lodging and food as well as treatment.” Webster’s Third New International Dictionary 1167 (1976 unabridged). One like Mrs. May-burg, who receives only custodial care, receives “lodging and food” but not “treatment.” Hence, ordinary English usage places her outside the scope of the term “inpatient.” Third, the Secretary’s interpretation creates a curious anomaly. Had Mrs. May-burg lived at home, sixty days after she was released from the hospital (and after any “extended care” was no longer necessary), her “spell of illness” would have terminated and the clock would have been reset. Because she lived in a nursing home, the Secretary believes the “spell” does not terminate. Yet, there is no medical difference between the actual Mrs. Mayburg who lives in the nursing home and the hypothetical Mrs. Mayburg who lives at home. Why should the place of residence then create a difference in result? Fourth, the administrative and technical arguments that the Secretary advances in favor of a more technical meaning for “inpatient” are weak. The Secretary points out that administratively it is easier to determine (1) whether a person is living in a nursing home than to determine (2) whether a person living in a nursing home is receiving only custodial care or treatment as well. But, the force of this administrative argument is weakened by the fact that the Secretary typically must determine treatment levels anyway — to decide, for example, when a “spell of illness” begins or whether expenses are to be reimbursed. The Secretary also points to the use of “inpatient” in two neighboring sections of the Act, defining “extended care services,” 42 U.S.C. § 1395x(h) and “skilled nursing facility,” 42 U.S.C. § 1395x(j). But the Secretary does not demonstrate any significant administrative or interpretive problem that would arise if the word “inpatient” in those sections, as well as in the “spell of illness” section, were interpreted to refer to a resident who receives some form of treatment. {See Appendix A for text.) Juxtaposing these sections reveals no linguistic anomaly sufficient to justify the practical anomaly to which the Secretary’s interpretation leads. Fifth, the district court’s position is consistent with the general principle that the Social Security Act should be broadly construed, so as to carry out Congress’s intent to provide medical expense coverage for all qualifying individuals. Rodriguez v. Celebrezze, 349 F.2d 494, 496 (1st Cir.1965); Rowe v. Finch, 427 F.2d 417, 419 (4th Cir. 1970). II The Secretary makes two sets of arguments in favor of her interpretation that warrant further discussion. a. She claims that the legislative history . of the statute supports her interpretation of the word “inpatient,” to include all who live at a skilled nursing facility. We have read the history, however, and have not found significant support for her interpretation. Congress enacted the statutory provision in 1965. The parties have found nothing in the legislative history of that 1965 statute that is on point. The 1965 history suggests, at most, that Congress did not intend to finance longterm hospital stays; but, any such intent is consistent with either “inpatient” definition. For the most part the legislative history that the Secretary cites developed two years later in 1967 when Congress considered amending the statute. The President of Blue Cross then testified, for example, that present law does not authorize any distinction between a beneficiary who is receiving skilled nursing care and other services in an extended care facility and one who [simply] resides in a nursing home____ Once the resident who is domiciled in such a nursing home has used up his presently authorized ... days of extended-care facility benefits, he cannot start a new spell of illness and become entitled to further care [unless he changes his residence]---- Proposed amendment to the Social Security Act: Hearings before the Senate Comm, on Finance, 90th Cong. 1st Sess. 915, 919 (1967). And, other witnesses testified similarly. Id. at 920, 924 (statement of Walter McNerney, President, Blue Cross Association); id. at 1023, 1027 (statement of Garland Bonin, Commissioner of the Louisiana Dept, of Public Welfare); id. at 1028 (colloquy between Senator Curtis and Mr. Roberts, Blue Cross Welfare Services Director); id. at 1836, 1840-41 (statement of Ed Walker, President, American Nursing Home Association); The President’s Proposals for Revision of the Social Security System, Hearings before the House Comm, on Ways and Means, 90th Cong., 1st Sess. 1003, 1006-07 (statement of Thomas Jenkins, President, American Association of Homes for the Aging); id. at 2308, 81 (letter to Rep. Wilbur D. Mills from Greater Miami Jewish Federation). This history is beside the point, however, for by 1967 HHS had made its position clear. It had interpreted the 1965 statute to reach the result that these witnesses opposed. It is no wonder then that they described present law in those terms and asked for legislative relief. Their description does not demonstrate that HHS had correctly interpreted the 1965 statute. At most, their descriptions, their effort to obtain legislation, and Congress’s failure to amend, suggests a congressional “acquiescence” in the HHS interpretation. This “acquiescence” is arguably also evidenced by the fact that a House of Representatives Report, written in 1967, came close to adopting HHS’s description of present law. In explaining Congress’ decision to extend the number of days of treatment that would be covered, the Report states: The proposed increase in the number of days of inpatient hospital benefits is intended to help meet the problem faced by a beneficiary who requires long-term care in an extended care facility and whose spell of illness continues throughout his stay in the facility because he has not been out of a hospital or any institution that is primarily engaged in providing skilled nursing care and related services for 60 consecutive days. H.R.Rep. No. 207, 90th Cong., 1st Sess. 44 (1967); accord S.Rep. No. 744, 90th Cong., 1st Sess. 70 (1967), U.S.Code Cong. & Admin.News 1967, p. 2834. The Secretary points out that Congress could then have overturned the HHS interpretation legislatively, but it did not do so. It is a mistake, however, to equate a congressional failure to act with congressional action. Congress has neither the time nor the inclination to correct every administrative misinterpretation of a prior statute. Moreover, given the many stages through which a bill must pass before emerging from Congress, it is typically easier to halt legislation than to enact it. And, varying potential impacts of proposed laws among varying groups can create complex sets of reasons behind opposition to a legislative proposal. This is to say that failure to pass a “revising amendment” does not automatically show that any member of Congress ever thought that an existing administrative interpretation of present law was desirable or correct, much less that Congress intended to “underwrite” it. Although “acquiescence” is entitled to some weight in interpreting a statute, that weight cannot be conclusive. See SEC v. Sloan, 436 U.S. 103, 119-23, 98 S.Ct. 1702, 1712-14, 56 L.Ed.2d 148 (1977). And, where acquiescence has been deemed significant, there is typically far more evidence of congressional intent than that which is present here. Compare Bob Jones University v. United States, 461 U.S. 574,---, 103 S.Ct. 2017, 2032-34, 76 L.Ed.2d 157 (1983) (finding acquiescence) with Aaron v. SEC, 446 U.S. 680, 694 n. 11, 100 S.Ct. 1945, 1954 n. 11, 64 L.Ed.2d 611 (1980) (finding no acquiescence) and SEC v. Sloan, 436 U.S. at 119—23, 98 S.Ct. at 1712-14 (same). The legislative history does not lead us to change our conclusion. b. The Secretary also argues that this court should simply defer to HHS’s interpretation of the statute. She points to a line of Supreme Court cases that, she argues, compel such deference. See, e.g., FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 39, 102 S.Ct. 38, 45-6, 70 L.Ed.2d 23 (1981) (inquiry is “whether the Commission’s construction was ‘sufficiently reasonable’ to be accepted by a reviewing court”); Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565, 100 S.Ct. 790, 796, 63 L.Ed.2d 22 (1980) (Federal Reserve Board’s interpretation of its statute will control unless “demonstrably irrational”); Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979) (if Labor Board’s construction of its statute is “reasonably defensible,” it should not be rejected); Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969) (agency’s construction should be followed “unless there are compelling indications that it is wrong”). See also Udall v. Tollman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). A different line of Supreme Court cases, however, cautions us that “deference” is not complete; sometimes a different, and more independent judicial attitude is appropriate. Bureau of Alcohol, Tobacco & Firearms v. Federal Labor Relations Authority, — U.S. -, -, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983) (court reviewing agency interpretation of law should not “slip into judicial inertia” or “rubberstamp” the agency); American Ship Building Co. v. NLRB, 380 U.S. 300, 318, 85 S.Ct. 955, 967, 13 L.Ed.2d 855 (1964) (deference owed to agency “cannot be allowed to slip into a judicial inertia”); NLRB v. Brown Food Store, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1964) (reviewing courts “are not obliged to stand aside and rubber stamp” the agency); NLRB v. Insurance Agents’ International Union, 361 U.S. 477, 499-500, 80 S.Ct. 419, 432-33, 4 L.Ed.2d 454 (1960) (recognition of administrative power “cannot exclude all judicial review” of agency’s actions); see also NLRB v. Highland Park Manufacturing Co., 341 U.S. 322, 325-26, 71 S.Ct. 758, 760-61, 95 L.Ed. 969 (1951); Davies Warehouse Co. v. Bowles, 321 U.S. 144, 156, 64 S.Ct. 474, 481, 88 L.Ed. 635 (1944). Moreover, the Administrative Procedure Act states that “the reviewing court,” not the agency, “shall decide all relevant questions of law.” 5 U.S.C. § 706. In order to apply correctly what Judge Friendly has described as conflicting authority, (see Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 49 (2d Cir. 1976); see also 4 K. Davis, Administrative Law Treatise § 30.1 (1958 & 1982 Supp.)), we must ask why courts should ever defer, or give special weight, to an agency’s interpretation of a statute’s meaning. And, here there are at least two types of answers, neither of which supports more than a modicum of special attention here. First, one might argue that specialized agencies, at least sometimes, know better than the courts what Congress actually intended the words of the statute to mean. Thus, in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), the Supreme Court wrote We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control. Id. at 140, 65 S.Ct. at 164. The fact that a question is closely related to an agency’s area of expertise may give an agency greater “power to persuade.” Its interpretation may also carry more persuasive power if made near the time the statute was enacted when congressional debates and interest group positions were fresh in the administrators’ minds. Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796 (1933). An interpretation that has proved to be administratively workable because it is consistent and longstanding is typically more persuasive, Massachusetts Trustees of Eastern Gas & Fuel Associates v. United States, 377 U.S. 235, 241, 84 S.Ct. 1236, 12 L.Ed.2d 268 (1964), as is an interpretation that has stood throughout subsequent reenactment of the statute, NLRB v. Bell Aerospace Co., 416 U.S. 267, 275, 94 S.Ct. 1757, 1762, 40 L.Ed.2d 134 (1974). See 2 K. Davis, Administrative Law Treatise § 7:14 (1979). All these factors help to convince a court that the agency is familiar with the context, implications, history and consequent meaning of the statute. But, still, under Skidmore the agency ultimately must depend upon the persuasive power of its argument. The simple fact that the agency has a position, in and of itself, is of only marginal significance. In the case before us, the fact that the agency’s interpretation is consistent, longstanding, and left untouched by Congress all count in its favor. Nonetheless, HHS points to no significantly adverse administrative consequences that might flow from the contrary interpretation. Under these circumstances, the considerations mentioned in Part I are simply more persuasive. They convince us, as they have convinced other courts, that in this instance, HHS has not interpreted the statute as Congress meant. Second, a court might give special weight to an agency’s interpretation of a statute because Congress intended it to do just that in respect to the statute in question. In Social Security Board v. Nierotko, 327 U.S. 358, 66 S.Ct. 637, 90 L.Ed. 718 (1946), for example, the Court noted that an agency, “when it interprets a statute” may act “as a delegate to the legislative power.” And the Court added that “such interpretive power may be included in the agencies’ administrative functions.” Id. at 369, 66 S.Ct. at 643. If Congress expressly delegates a law-declaring function to the agency, of course, courts must respect that delegation. Schweiker v. Gray Panthers, 453 U.S. 34, 44, 101 S.Ct. 2633, 2640, 69 L.Ed.2d 460 (1981); Batterton v. Francis, 432 U.S. 416, 424-26, 97 S.Ct. 2399, 2404-06, 53 L.Ed.2d 448 (1977); 2 K. Davis, supra at § 7:8 (1979). But, if Congress is silent, courts may still infer from the particular statutory circumstances an implicit congressional instruction about the degree of respect or deference they owe the agency on a question of law. See Chevron v. Natural Resources Defense Council, Inc., — U.S.-, -, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (U.S.1984). They might do so by asking what a sensible legislator would have expected given the statutory circumstances. The less important the question of law, the more interstitial its character, the more closely related to the everyday administration of the statute and to the agency’s (rather than the court’s) administrative or substantive expertise, the less likely it is that Congress (would have) “wished” or “expected” the courts to remain indifferent to the agency’s views. International Brotherhood of Teamsters v. Daniel, 439 U.S. 551, 566 n. 20, 99 S.Ct. 790, 800 n. 20, 58 L.Ed.2d 808 (1979); Constance v. Secretary of Health and Human Services, 672 F.2d 990, 995-96 (1st Cir. 1982); L. Jaffe, Judicial Control of Administrative Action 560-64 (1965). Conversely, the larger the question, the more its answer is likely to clarify or stabilize a broad area of law, the more likely Congress intended the courts to decide the question themselves. Compare NLRB v. Hearst Publications, Inc., 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944) with Pack ard Motor Car Co. v. NLRB, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947). In this instance, the “spell of illness” provision is central to the statutory scheme. The interpretive skills called for seem primarily judicial, not administrative, in nature. The “administrative” implications seem trifling, or non-existent. And, nothing else suggests any specific congressional intent to place the power to construe this statutory term primarily in the agency’s hands. Thus, the arguments for completely deferring to the agency’s interpretation of the statute are not strong here. In sum, we have paid particular attention to HHS’s arguments; we have taken note of its experience administering the statute and of its administrative needs; we have reached our decision with all those factors in mind. Having done so, we nonetheless believe, for the reasons stated in Part I, that the agency’s interpretation of the statute is incorrect. Ill Believing that the Secretary was pursuing a policy of “nonacquiescence” under which she would refuse either to appeal or to apply (except in the particular case) adverse judicial decisions, Mayburg asked the district court to certify her suit as a class action on behalf of all Medicare recipients in her administrative region who had been or would be denied benefits because of the Secretary’s interpretation. The district court agreed to certify the class because the Secretary had “acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole ....” Fed.R.Civ.P. 23(b)(2). It defined the class as all persons residing in Region I of the Department of Health and Human Services who, having presented claims for Medicare Part A benefits, have been or will be denied such benefits based on a determination that they have had a single “spell of illness” which continued while they resided in a skilled nursing home, even though they were receiving custodial rather than skilled nursing care. The effect of the certification was simply to require the Secretary to apply the court’s interpretation of the statute in all similar cases. The Secretary argues that the district court did not have jurisdiction over all members of this class; in particular, it lacked jurisdiction over claims of those persons who had not yet exhausted their administrative remedies and of claims amounting to less than $1,000. The district court believed that it had jurisdiction over all such claims under either the judicial review provision of the Medicare Act, 42 U.S.C. § 1395ff(b) (incorporating 42 U.S.C. § 405(g)), or the Mandamus and Venue Act, 28 U.S.C. § 1361. At oral argument, counsel for the Secretary undercut the premise upon which the class was certified, for in response to questions about “non-acquiescence” he stated the following: The Secretary has followed the district court order in this case. She has every intention of doing so if she loses on appeal as well. In addition, in the Third Circuit case which we lost, she has begun to implement the content of the adverse order of the Third Circuit Court of Appeals. There is no reason to think that she will not [sic] do otherwise in this case and I’ve been told that from everything that they can tell so far they intend to follow an adverse decision by this court, unless, of course, they seek certiorari. In context, it is apparent that the government wanted to say either that “[t]here is no reason to think that she will ... do otherwise” or “[t]here is no reason to think that she will not do [the same].” (The Secretary should inform us if that is not so). And, as so read, we take this statement as an abandonment of any policy of “non-acquiescence” in this circuit. For this reason we see no need to explore the difficult jurisdictional questions that this case raises. Both sides agree that mandamus is appropriate only when no other adequate remedy is available. Cervoni v. Secretary of Health, Education and Welfare, 581 F.2d 1010, 1019 (1st Cir.1978); see United States ex rel Girard Trust Co. v. Helvering, 301 U.S. 540, 544, 57 S.Ct. 855, 857, 81 L.Ed. 1272 (1937). The Secretary’s statement means that other adequate remedies exist for all members of the class who might be affected by today's decision. Each member can simply invoke ordinary administrative procedures, for the Secretary intends to follow our interpretation of the “spell of illness” provisions, subject only to the minor qualifications contained in the quoted dialogue. Thus, mandamus jurisdiction does not extend to any of the claims of this case. Without mandamus jurisdiction, the court’s authority to consider claims is controlled by 42 U.S.C. § 1395ff (incorporating 42 U.S.C. § 405(g)). This section expressly denies judicial Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_applfrom	L	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). John T. MENZIES, President of The Crosse & Blackwell Company; Charles P. McCormick, President of McCormick & Company, Inc., and Samuel H. Hoffberger, President of Pompeian Olive Oil Corporation, Appellants, v. FEDERAL TRADE COMMISSION, Appellee. No. 7352. United States Court of Appeals Fourth Circuit. Argued Jan. 23, 1957. Decided March 7, 1957. Writ of Certiorari Denied May 13, 1957. See 77 S.Ct. 863. G. C. A. Anderson, Baltimore, Md., and James W. Cassedy, Washington, D. C. (A. Adgate Duer, Niles, Barton, Yost & Dankmeyer, Anderson Barnes & Coe, Baltimore, Md., and Morton J. Hollander, Washington, D. C., on brief), for appellants. Robert B. Dawkins, Asst. Gen. Counsel, Federal Trade Commission, Washington, D. C., (Earl W. Kintner, Gen. Counsel, and John T. Loughlin, Atty., Federal Trade Commission, Washington, D. C., on brief), for appellee. Before PARKER, Chief Judge, and HARRY E. WATKINS and GILLIAM, District Judges. PARKER, Chief Judge. These are appeals from an order enforcing subpoenas duces tecum issued by the Federal Trade Commission pursuant to section 9 of the Federal Trade Commission Act, 15 U.S.C.A. § 49. The subpoenas were issued in proceedings before the Commission in which three corporations were charged with violation of section 2(d) of the Clayton Act as amended by the Robinson-Patman Act. 15 U.S.C.A. § 13(d). The contentions on appeal are that the subpoenas are invalid on the ground that the Commission does not have power to issue subpoenas under section 9 of the Federal Trade Commission Act in proceedings had before it for enforcement of the Clayton Act and that, even if this power exists, the subpoenas are violative of the provisions of the Fourth Amendment to the Constitution of the United States. The facts are fully stated and the applicable statutory provisions are accurately set forth and analyzed in the opinion of the District Judge. See Federal Trade Commission v. Menzies, 145 F.Supp. 164. We note that like action was taken in the case of Federal Trade Commission against Reed in the Northern District of Illinois, not yet report-? ed, although not followed in Federal Trade Commission v. Rubin, D.C.S.D.N.Y., 145 F.Supp. 171. With due respect to the opinion of the judge in the case last mentioned, which we have carefully read and considered, we entertain no doubt as to the correctness of decision of the District Judge in this case and feel that little need be added to his opinion. It is not without significance that for more than forty years the Federal Trade Commission, in proceedings had before it under the Clayton Act, has issued subpoenas such as it issued here and has issued many thousands of such subpoenas. While we agree that this is not conclusive as to its power to issue them, it is not reasonable to suppose that the power would have gone unchallenged for so long a period in such a sensitive field of the law, if there were any real doubt as to its existence. The Federal Trade Commission Act, 15 U.S.C.A. § 41 et seq., and the Clayton Act, 15 U.S.C.A. § 12 et seq. were before Congress at the same time and were in pari materia, dealing with the same general subject matter, restraints of trade and unfair competition. The Clayton Act, 38 Stat. 730, laid down substantive rules of law and provided for their enforcement by courts and administrative agencies. The Federal Trade Commission Act created the Commission as an administrative agency and conferred certain powers upon it, among others the power to enter cease and desist orders upon a finding of unfair competition and to conduct investigations as to “the organization, business, conduct, practices, and management of any corporation engaged in commerce, excepting banks and common carriers * * * and its relation to other corporations and to individuals, associations and partnerships”. 38 Stat. 717-724, 15 U.S.C.A. § 46. Authority to enforce compliance with the provisions of the Clayton Act, except as to banks and common carriers, was conferred by section 11 of that act on the Federal Trade Commission; and this could mean nothing else than that, in carrying out this provision, the Commission should exercise the powers with respect to investigations and hearing vested in it by the act of its creation. Among such powers, was the power to examine documents and witnesses and issue subpoenas. This was provided in section 9 of the Act, the pertinent portion of which is as follows: “Sec. 9. That for the purposes of this Act the commission, or its duly authorized agent or agents, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any documentary evidence of any corporation being investigated or proceeded against; and the commission shall have power to require by subpoena the attendance and testimony of witnesses and the production of all such documentary evidence relating to any matter under investigation. Any member of the commission may sign subpoenas, and members and examiners of the commission may administer oaths and affirmations, examine witnesses, and receive evidence. * * *." Contention is made that the language “for the purposes of this Act” limits the power of examining witnesses and issuing subpoenas to proceedings and investigations authorized by the act creating the Commission and that the power may not be exercised in an enforcement provision which the Commission is authorized by the Clayton Act to conduct. This, we think, is an unreasonable and forced construction of the language used, the manifest purpose of which was to give the Commission the power of subpoena and examination in connection with any investigation or proceeding which it was authorized by law to conduct. The language in question is “for the purposes of this Act;” and one of the purposes of the act was to vest the Commission with adequate powers to conduct investigations and proceedings with respect to restraints of trade and unfair competition. When duties of investigation or enforcement are imposed upon the Commission by another act or acts, the reasonable intendment is that it shall exercise the power conferred upon it by law in the discharge of such duties. As was well said in the opinion of the Commission: “The Federal Trade Commission Act and the Clayton Act were enacted as remedial measures designed to correct apparent deficiencies in the Sherman Act [15 U.S.C.A. §§ 1-7, 15 note] through administrative proceedings. They are statutes in pari materia which were enacted in the same session of Congress, and, therefore, are to be construed together so as to reinforce their common legislative purpose. “The Federal Trade Commission was designated as a major agency for enforcement of sections 2, 3, 7 and 8 of the Clayton Act. That designation necessarily implied that the Commission was to be aided in the effective discharge of its duties in adversary proceedings by the compulsory processes which were being made available to it under its organic act. That Congress thus intended is clear because section 11 of the Clayton Act provides for quasi-judicial hearings culminating in findings as to the facts and orders, including orders to cease and desist, and, without the power to compel the production of evidence in the course of proceedings thereunder, the danger of improvident orders lacking bases in fact would be great. We hold, therefore, that there is sound legal basis for the issuance and enforcement of the Commission’s processes requiring the production of appropriate information in Clayton Act inquiries and adjudicative proceedings.” It is conceded that if the Commission were conducting an investigation under section 5 or section 6 of the Trade Commission Act into the discriminatory practices of the corporations here being investigated, it would have power to issue subpoenas under section 9 of the Act and to use the information thus obtained in a subsequent proceeding to enforce the provisions of the Clayton Act. Certainly the power of the Commission to issue subpoenas and conduct the investigation is not less because of the fact that it gives notice in advance that the information obtained is to be so used; and the filing of the complaint under the Clayton Act amounts to no more than this. To deny such power to the Commission would in large measure defeat the purpose which Congress manifestly had in mind in the enactment of these statutes; and we find nothing in the language or history of either statute which at this late day requires such a result. The contention that the subpoenas authorize searches and seizures violative of the Fourth Amendment is so lacking in merit as not to warrant discussion. See United States v. United States District Court for the Southern District of West Virginia, 4 Cir., 238 F.2d 713; Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 202-211, 66 S.Ct. 494, 90 L.Ed. 614; Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 510, 63 S.Ct. 339, 344, 87 L.Ed. 424. As said in the case last cited: “The subpoena power delegated by the statute as here exercised is so. clearly within the limits of Congressional authority that it is not necessary to discuss the constitutional questions urged by the petitioner, and on the record before us the cases on which it relies are inapplicable and do not require consideration.” The subpoenas did not violate the rule of reasonableness laid down in Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652. They ask for records containing information clearly relevant to the charges being investigated and describe the records as accurately as they could be described under the circumstances. The order of the court below directed that none of the records be made public unless and until received in evidence and that documents containing trade secrets be placed in a confidential file in accordance with the practice followed by the Commission in such cases. There was further provision for the examination of records in the offices of the corporations being investigated and for the production before the Commission of only such as were material to the matter under inquiry. The orders appealed from will accordingly be affirmed, and, in order that there may be no more delay than necessary in the proceedings before the Commission, mandate will issue twenty days after entry of the judgment of this court and will not be further stayed unless the appellant shall in the meantime have filed applications with the Supreme Court of the United States for writ of certiorari to review the judgment. Affirmed. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Noak CROOKS, Collector, etc., Appellant, v. J. R. VANSANT. No. 9105. Circuit Court of Appeals, Eighth Circuit. Jan. 15, 1931. For opinion below, see 43 F.(2d) 166. William L. Vandeventer, U. S. Atty., of Kansas City, Mo., for appellant. Albert F. Hillix, Edward L. Scheufler, and Sam B. Sebree, all of Kansas City, Mo., for appellee. PER CURIAM. Appeal docketed and dismissed without costs to either party in this eourt, on motion of appellant and consent of appellee. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_genresp1	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. LONG v. DAVIS et al. No. 12024. United States Court of Appeals Ninth Circuit. Sept. 21, 1948. Hunter & Liljestrom, of Los Angeles, Cal., for appellant. Milton V. Backman, of Salt Lake City, Utah, for appellees. Before MATHEWS, STEPHENS and BONE, Circuit Judges. PER CURIAM. This appeal is from a motion granting a new trial. The appeal was taken on July 9, 1948. Appellees moved to dismiss it on the ground that the order was not a final decision, within the meaning of § 128(a) of the Judicial Code, 28 U.S.C.A. § 225(a), 1946 Edition, then in effect, and hence was not appealable. The motion is well founded. Sentinel v. Dinwiddie, 7 Cir., 41 F.2d 57; Hunt v. United States, 10 Cir., 53 F.2d 333; East Erie Commercial Co. v. Denial, 3 Cir., 66 F.2d 555; Frank Mercantile Corp. v. Prudential Ins. Co., 3 Cir., 115 F.2d 496. Accordingly, it is granted and the appeal is dismissed. Now 28 U.S.C.A. § 1291. 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_fedvst	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court rule that federal law should take precedence over state or local laws in a case involving the conflict of laws (i.e, which laws or rules apply)?" 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". Oliver T. CARR, Jr., Trustee et al, v. DISTRICT OF COLUMBIA, a Municipal Corporation et al. United States of America, Appellant. No. 79-1571. United States Court of Appeals, District of Columbia Circuit. Argued Sept. 30, 1980. Decided Dec. 18, 1980. Carl Strass, Atty., Dept, of Justice, Washington, D. C., with whom Dirk D. Snell, Atty., Dept, of Justice, Washington, D. C., was on brief, Sanford Sagalkin, James W. Moorman and James C. Kilbourne, Attys., Dept, of Justice, Washington, D. C., for appellant United States of America. William Joseph H. Smith, Washington, D. C., with whom S. Lamont Bossard, Jr., Redondo Beach, Cal., was on brief, for appellees. Before ROBINSON, WILKEY and GINSBURG, Circuit Judges. GINSBURG, Circuit Judge: In one of the most successful examples of urban development based upon cooperation between government and the private sector, Maryland landowners and trustees appointed by President George Washington arranged in 1791 for transfers of land to establish a Federal City, later named Washington. In this action and similar litigation in the Court of Claims and District of Columbia courts, latter twentieth century real estate developers have rehearsed the history of the creation of the nation’s capital. The context is a dispute over the District’s current authority to impose a charge upon closing an “original alley,” i. e., an alley located within the original boundaries of the City. The most thorough ventilation of the alley-closing dispute occurred in the District of Columbia courts. Recently authenticated original documents preserved in the National Archives were carefully studied, and all issues raised in this proceeding were fully and fairly litigated in the parallel proceeding before the D.C. Superior Court and Court of Appeals. We conclude, as did District Court Judge Thomas A. Flannery, ruling on cross-motions for summary judgment, that the adjudication in the District of Columbia courts merits full credit here. Accordingly, we affirm the District Court’s judgment. I. Background D.C. Alley-Closing Authority The D.C. Code authorizes the City Council to close public alleys it finds “useless or unnecessary.” Upon closure, title to the alley space reverts to the owners of the abutting property, and ordinarily no fee may be charged, unless the United States holds title to the land on which the alley stood. If the land is owned by the United States, the District of Columbia may dispose of it “to the best advantage of the locality.” One method of disposition specifically identified in the Code is a cash sale at fair market value. If the D.C. Council elects the cash sale option, the sale proceeds must be paid into the United States Treasury. It is undisputed that for decades the District government did not elect the cash sale option. The City Council commenced imposing fair market value charges for closing original alleys in 1967. At that time, it was generally assumed that alleys within the original Federal City boundaries were owned by the United States.9 This assumption, the Superior Court declared, was incorrect. In a comprehensive opinion, Judge John Garrett Penn determined, largely from the documents found in the National Archives and not theretofore fully presented to any court, that title to the “original alleys” was not and never had been in the United States. Rather, Judge Penn concluded, Federal City parcels, as first sold to members of the public, encompassed both lot and adjacent alley space. He held, therefore, that on closure of an original alley, title reverted to the abutting property owners under the applicable terms of the D.C. Code, and no sale charge could be imposed. In an appeal brought solely by the United States, the D.C. Court of Appeals affirmed. The Issue Preclusion Question The United States urges no facts, issues or argument here that it did not raise in its presentation to the D.C. Court of Appeals. Indeed, its brief in this court simply reruns the points it made, unsuccessfully, in the appellate court across the street. Nevertheless, the United States insists that fresh decision by this court is mandated because the judgments of the D.C. Superior Court and Court of Appeals, in favor of plaintiffs not before this court, are themselves inconsistent with an earlier judgment rendered by the Court of Claims. Our reconsideration, unencumbered by the adjudication in the District of Columbia courts, is invited on two further grounds. First, the United States contends that the District of Columbia courts lacked subject matter jurisdiction over the controversy. It characterizes the District of Columbia action, and the one before us, as quiet title suits in which federal court jurisdiction is exclusive. Second, the United States maintains that a “pure question of [federal] law” is at stake, an issue on which the decision of a nonfederal court should not bind a federal tribunal. To explain our conclusion that the United States offers no sound reason for denying full credit to the adjudication in the District of Columbia courts, we set out first the sequence of litigation in the District Court and this court, in the Court of Claims, and in the District of Columbia courts. Thereafter, we consider application to the case before us of the rule of issue preclusion, sometimes referred to as collateral estoppel, the rule that a party, having fully and fairly litigated an issue on a previous occasion, may not relitigate that issue. Litigation on Three Fronts Carr v. District of Columbia, 371 F.Supp. 293 (D.D.C.1974), aff’d without opinion, 521 F.2d 324 (D.C.Cir.1975), modified and rehearing denied, 543 F.2d 917 (D.C.Cir.1976) (“Carr II”). Appellees Oliver T. Carr, Jr. and George H. Beuchert, Jr., as trustees for 1800 M Associates, held legal title to property abutting an original alley. On December 7, 1971, Carr and Beuchert applied for the closing of the alley in order to construct a building on land encompassing the alley space and the several lots surrounding it. Pursuant to a resolution adopted by the D.C. Council on June 6, 1972, the alley was closed on December 12, 1972. Construction commenced thereafter and an office building now stands on the property. The City Council conditioned the alley closing upon payment of $196,200, representing the fair market value of the land contained in the alley. Carr and Beuchert disputed the Council’s authority to impose the sale charge, although they did not then question United States ownership of the alley. By agreement with the Corporation Counsel, the $196,200 were deposited in escrow with The Riggs National Bank pending judicial determination whether the charge was lawfully imposed. In January 1973, Carr and Beuchert filed an action in the District Court seeking a declaration that the City Council could not exact a price for the alley space closed. They invoked the jurisdiction the District Court then had in civil actions brought in the District of Columbia where the amount in controversy exceeded $50,000. All agreed that the alley in question was an original alley. Based upon that undisputed fact, Judge Flannery concluded that the Council had authority to sell the property at market value for the account of the United States. Carr and Beuchert assumed for purposes of the contest that the United States owned the alley. They rested their case on two statutory construction arguments. First, they maintained that, under the relevant D.C. Code provision, the sale authority came into play only when the Council could not otherwise dispose of the alley space in a manner advantageous to the locality. Second, they urged that sale authority was confined to cases in which the District closed a United States alley on its own initiative. Judge Flannery found both arguments insubstantial and this court agreed with his analysis. While the appeal was under submission, Carr and Beuchert filed motions asserting for the first time in this litigation that the generally held assumption concerning United States ownership of original alleys was erroneous. This dramatic new assertion was not considered by the court because it lacked support in the record. On petition for rehearing, however, the panel explicitly preserved to plaintiffs an opportunity to bring an independent action for relief from the judgment based on the historical evidence recently explored at the National Archives. Washington Medical Center, Inc. v. United States, 545 F.2d 116 (Ct.C1.1976), cert. denied, 434 U.S. 902, 98 S.Ct. 296, 54 L.Ed.2d 188 (1977), petition for relief from judgment denied sub nom. 1776 K Street Associates v. United States, 602 F.2d 354 (Ct.C1.1979). Shortly after the final disposition in Carr II, the Court of Claims addressed the District’s authority to charge for original alley closings. In a decision consolidating four cases, the earliest commenced in 1972, the latest in 1975, that court adhered to the traditional understanding. It declared the United States owner of the alleys, and therefore held that the closing charges were lawfully imposed by the D.C. Council and properly deposited in the Treasury. The plaintiffs in Washington Medical Center did attempt to show that the first purchasers of original Federal City lots also paid for portions of the alleys. However, the Archives study was still in progress and the plaintiffs were not yet in a position to support their contention with convincing evidence. The Court of Claims found that the proof plaintiffs did submit lacked “probative value.” 545 F.2d at 126. It characterized plaintiffs’ ownership contention as “afterthought,” and suggested that, in any event, plaintiffs were not comfortably situated to raise the issue. They had paid the alley-closing charges fixed by the D.C. Council without protest, and might have been stopped at the threshold on that account. It was unseemly, the Court of Claims thought, for plaintiffs to claim back from the Treasury amounts they had willingly paid to get the alleys closed. Id. at 120-21. After the Archives research turned up more secure evidence, some of the Washington Medical Center plaintiffs sought rehearings, and later petitioned for relief from the judgment. The Court of Claims declined to reconsider, noting again plaintiffs’ voluntary payment of the charges, and stressing plaintiffs’ voluntary submission of the case for expedited treatment on incomplete evidence. Had the plaintiffs sought to delay adjudication pending full development of the new evidence, the court would have been accommodating. 602 F.2d at 357. Significantly, the Court of Claims indicated it did not expect that its 1976 judgment would have “an adverse collateral estoppel or res judicata effect on other cases.” Id. at 358. Chesapeake & Potomac Telephone Co. v. District of Columbia, 106 Daily Wash.L. Rep. No. 104 (D.C.Super.Ct. March 28, 1978), aff’d sub nom. United States v. Chesapeake & Potomac Telephone Co., 418 A.2d 114 (D.C.1980) (“C&P Telephone”). Largest of the alley-closing controversies, C&P Telephone was commenced in the D.C. Superior Court in 1975, before Washington Medical Center was decided, and while Carr II was pending in this court. The proceeding consolidated six cases instituted by owners of several parcels of realty in downtown Washington. Each parcel abutted an original alley. As in Carr, the alley-closing payments set by the D.C. Council were deposited in escrow pending judicial determination of the Council’s authority to impose the charges. A full dress presentation followed, including testimony and argument. Center stage in the presentation was a detailed exploration of ancient material both in court and at the National Archives. Items spread before the court included deeds, maps, records of land divisions and dispositions, legal opinions and correspondence, legislative enactments, presidential proclamations and building regulations, all contemporaneous with the establishment of the Federal City. We have already recounted the end-product of the C&P Telephone litigation. (Then) Superior Court Judge John Garrett Penn ruled, and a unanimous D.C. Court of Appeals panel affirmed, that (1) the D.C. Council lacked authority to charge for the alley closings and (2) the realty owners were entitled to return of the money held in escrow. Carr v. District of Columbia, Civil Action No. 77-445 (D.D.C. January 12, 1979) (“Carr III”). After this court’s 1976 remand, plaintiffs promptly instituted an independent action and Judge Flannery denied a motion to dismiss it. In the unique circumstances presented, he concluded, Carr and Beuchert ought not be tied to the initial judgment. Plaintiffs had searched with diligence all available D.C. land records. The District’s Surveyor and Corporation Counsel had represented throughout that the United States owned the alleys. The evidence contradicting that representation was located in the National Archives, not a “normal” place for a local land records search. J.A. 25. He reopened the case and, after Judge Penn’s decision in the Superior Court, granted summary judgment to the plaintiffs. Judge Flannery noted that he had given the United States substantial time to review the records in the Archives, and that the government had raised not a single fact indicating that, “on the merits, [the United States] is indeed the owner of the original alleys.” His review indicated three assessments: the extensive and prolonged historical research had set the record straight; the United States had been accorded a full and fair chance to litigate; it was time to bring the alley dispute to a final closing, II. Legal Analysis Use of Issue Preclusion as a Sword Carr and Beuchert were not party to the adjudications concerning original alley closings in the District of Columbia courts or in the Court of Claims. However, the United States defended the District’s alley-closing charges in those cases, as it did in the case before us. Carr and Beuchert invoke the adjudication in the District of Columbia courts as a sword; they seek “offensive” use of the issue preclusion (collateral estoppel) principle to foreclose yet another airing of the District’s authority to condition original alley closings on payment of a fair market value charge by abutting property owners. In Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331, 99 S.Ct. 645, 651, 58 L.Ed.2d 552 (1979), the Supreme Court instructed lower federal courts on the “preferable approach” in a case such as this one. No fixed rule precluding or directing the use of offensive collateral estoppel is appropriate, the Court said. Rather, a case by case analysis should be employed. Trial courts should take into account a variety of eonsiderations, all relevant to the ultimate question: Would application of offensive estoppel be unfair to the defendant? Exposing this unique case to the particularized analysis Parklane approved, we conclude that the determination in the District of Columbia courts should have issue preclusive effect here. Incentive and Opportunity to Litigate Two considerations are quickly cleared. First, the United States had every incentive to litigate fully and vigorously, and in fact did so, in the District of Columbia courts. Six cases were consolidated in the District of Columbia C&P Telephone proceeding; only one alley is involved in the current Carr litigation. Nor does the United States suggest it participated with muted zeal in C&P Telephone; indeed, the government concedes that it presented in the District of Columbia courts every fact and legal argument it urges here. Second, the United States does not assert, nor could it plausibly, that federal court procedures afford it outcome influencing opportunities unavailable in the District of Columbia courts. The Ease of Joining a First Action Parklane cautions lower courts not to reward a plaintiff who “could easily have joined in the earlier action.” 439 U.S. at 331, 99 S.Ct. at 651. Carr and Beuchert might have joined the several plaintiffs in the C&P Telephone case, but they had compelling reasons to continue the federal court contest. First, C&P Telephone was not “the earlier action.” It was commenced in 1975, over two years after commencement of the Carr II case. Of greater importance, Carr and Beuchert suffered an adverse judgment in the District Court in 1974, and that judgment withstood challenge in this court in 1975 and 1976. Unless Carr and Beuchert prevailed in their effort to set aside the 1974 judgment, they could not have benefited from a decision for plaintiffs in the C&P Telephone litigation. They had “everything to lose, and nothing to gain” by abandoning the fray in the District Court. In short, Carr and Beuchert were not sideline sitters while others carried the ball. They did not adopt the “wait and see” attitude the Supreme Court had in mind when it declared the “general rule” that a plaintiff who “could easily have joined” a prior action may not offensively invoke issue preclusion. 439 U.S. at 330, 331-32, 99 S.Ct. at 651-652. That general rule simply does not fit this exceptional case. The Relevance of a Prior Inconsistent Judgment Parklane also identifies as a factor militating against offensive use of collateral estoppel the existence of a prior inconsistent judgment. 439 U.S. at 330, 99 S.Ct. at 651. Washington Medical Center yielded such a judgment, the United States emphasizes. Moreover, the Washington Medical Center, a loser in the Court of Claims, was allowed to relitigate (albeit as to a different alley) in the District of Columbia courts in C&P Telephone. It would be ironic, the United States asserts, to allow Carr and Beuchert to invoke the C&P Telephone adjudication offensively when the District of Columbia courts in that case rejected the government’s plea for defensive use of collateral estoppel against the Washington Medical Center. We recognize, as the Supreme Court did, that in many cases it would be “unfair to a defendant if the judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments in favor of the defendant.” 439 U.S. at 330, 99 S.Ct. at 651. We underscore again, however, that the case before us is atypical. The Court of Claims decision in Washington Medical Center was based on an incomplete record. It issued at a time when the Archives research was ongoing. In 1979, when the Court of Claims refused to set aside its 1976 judgment, it appeared to acknowledge the limited effect of that judgment. The 1976 decision was unchallengeable on its record, the Court of Claims said. 602 F.2d at 356. It settled the precise claims in suit, it put to rest any controversy concerning the particular alleys the Washington Medical Center plaintiffs had paid for without protest. But the Court of Claims observed: Plaintiffs do not allege that our former decision is having an adverse collateral estoppel or res judicata effect on other cases. The decisions they do cite would refute such a claim if made. We conclude that the Washington Medical Center decision, based as it was on a record that did not include the Archives evidence, should not block reliance in Carr on the C&P Telephone adjudication. The District of Columbia courts carefully canvassed a full record. It would have been an inordinate waste of judicial resources for the District Court to retread the same ground. The Quiet Title Characterization In the District Court, in this court, and in the District of Columbia courts, the United States consistently urged that the alley-closing disputes are in reality quiet title actions governed by 28 U.S.C. § 2409a (1977). Exclusive jurisdiction to quiet title to real property in which an interest is claimed by the United States resides in the district courts. Id. § 1346(f). Hence, the United States concludes, the District of Columbia courts lacked subject matter jurisdiction in the C&P Telephone cases. Moreover, the limitation period for actions to quiet title to land in which the United States claims an interest is 12 years, 28 U.S.C. § 2409a(f) (1977), a period the United States asserts has “long since expired.” We find the argument farfetched. First, we note a certain lapse on the part of the United States in pressing the characterization. The District of Columbia’s authority to impose a sale charge for an alley closing turns on United States ownership of the alley. Therefore, the United States maintains, “this case is in fact a quiet title action, and it cannot be anything else.” Significantly, the United States takes no such position with respect to the Court of Claims adjudication in Washington Medical Center. Decision in Washington Medical Center also turned on United States ownership of original alleys. The logic is inescapable that if this case cannot be anything but a quiet title action, the Court of Claims case could not have been “anything else” either. But we do not rest our determination on the United States treatment of the quiet title characterization as a “sometimes thing.” We merely observe that on another day, the United States thought a tribunal other than a federal district court had authority to decide as a threshold matter whether the United States owned original alleys. As the D.C. Court of Appeals stated, abutting property owners in the alley-closing cases were not bringing an action to establish title. They challenged action by the D.C. Council — imposition of a fair market value charge for alley space closed — as beyond the authority of that body under the Street Readjustment Act. Title figured in the litigation as the pivotal issue, but it was a question incidental to the matter directly in controversy. While we view the C&P Telephone case and, indeed, the Washington Medical Center case, as instances in which a court legitimately determined incidentally an issue it lacks jurisdiction to determine directly, the argument presented by the United States encounters another shoal. The D.C. Court of Appeals, in response to the objection raised by the United States, expressly determined that it had subject matter jurisdiction in the C&P Telephone contest. We decline the invitation to sideswipe that determination: When the question of the tribunal’s [subject matter] jurisdiction is raised in the original action, in a modern procedural regime there is no reason why the determination of the issue should not therefore be conclusive under the usual rules of issue preclusion. The force of the considerations supporting preclusion is at least as great concerning determinations of the issue of jurisdiction as it is with respect to other issues. Restatement (Second) of Judgments § 15, comment c at 154 (Tent. Draft No. 6,1979); see Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963). Nor can we credit the contention that issue preclusion should be withheld because C&P Telephone and the instant case involve “a pure question of law, the interpretation of undisputed facts and documents as a matter of federal law.” The “fact/law” characterization of the issue before us is not critical; it is today well accepted that issue preclusion applies to questions of law and law application as well as to questions of fact. Moreover, what we have said as to the preclusive effect of subject matter jurisdiction determinations sufficiently answers this further contention on the part of the United States. Conclusion The precise question we decide today bears restatement. The D.C. Court of Appeals did not rule directly and dispositively 'that owners of parcels abutting original alleys hold title to the alleys, nor do we. That court did rule definitively that the D.C. Council was without authority under the Street Readjustment Act and related D.C. Code provisions to impose a sale charge for an original alley closing. We hold that further contest on that ultimate issue is precluded here. Accordingly, we reject the request by the United States that we review the “undisputed facts and [public] documents,” and make our own decision on the merits. The decision on the merits made in the District of Columbia courts is that the D.C. Council lacks discretion under the relevant legislation to condition original alley closings on payment of a fair market value price. That once arguable question, we hold, cannot be argued anymore. Affirmed. . For discussion of the history of the founding of the Federal City, see Morris v. United States, 174 U.S. 196, 250-59, 19 S.Ct. 649, 671-74, 43 L.Ed. 946 (1899) (with maps at 220-21, 19 S.Ct. at 660-61); Van Ness v. City of Washington, 29 U.S. (4 Pet.) 232, 7 L.Ed. 842 (1830). . Washington Medical Center, Inc, v. United States, 545 F.2d 116 (Ct.Cl.1976), cert. denied, 434 U.S. 902, 98 S.Ct. 296, 54 L.Ed.2d 188 (1977), petition for relief from judgment denied sub nom. 1776 K Street Associates v. United States, 602 F.2d 354 (Ct.Cl.1979). . Chesapeake & Potomac Telephone Co. v. District of Columbia, 106 Daily Wash.L.Rep. No. 114 (D.C.Super.Ct. March 28, 1978), aff’d sub nom. United States v. Chesapeake & Potomac Telephone Co., 418 A.2d 114 (D.C.1980) (“C&P Telephone"). . Carr v. District of Columbia, Civil Action No. 77-445 (D.D.C. January 12, 1979) (“Carr III"), reprinted in Joint Appendix (“J.A.”) 44-54. . Street Readjustment Act § 1, D.C. Code § 7-401 (West Supp.1979). In an earlier contest, Judge Sirica observed that a principal economic purpose of this Act was “elimination of barriers to real estate development in the District.” Carr v. District of Columbia, 312 F.Supp. 283, 286 (D.D.C. 1970), aff’d without opinion, No. 24,406 (D.C.Cir.1971) (“Carr I"). . The Council may exact a protective payment from the closure applicant when there is a risk of damage to neighboring property for which the District might be liable. Id. at 285. . D.C. Code § 7-401 (West Supp.1979); id. § 7-302 (West 1966). . Id. § 7-325. For fuller description of the relevant D.C. Code provisions, see Carr v. District of Columbia, 543 F.2d 917, 919-24 (D.C. Cir.1976) (“Carr II”). . Exorbitant statements appear in the opening brief suggesting that United States consent is necessary to close an original alley and that the United States may “charge any sum it wishes” for the closing. Brief for the United States at 17, 18, 22-23. These indulgences in wishful thinking were not repeated at oral argument. Beyond debate, the Street Readjustment Act, supra note 5, provides no role for the United States in decisions concerning alley closings. In fact, the United States conceded that it “did not involve itself in any decision, past or present, to charge or not to charge for the closing of [original] alleys, that it did not involve itself in the decision to begin charging for the alley closings in 1967,” and that it does not take part in deciding how much to charge for an alley closing, or indeed, whether to charge anything at all. C&P Telephone, supra note 3, 106 Daily WashX.Rep. at p. 1071. . The assumption prevailed for over 175 years. Washington Medical Center, supra note 2, 545 F.2d at 126. . C&P Telephone, supra note 3 (D.C.Super.Ct. March 28, 1978). . The C&P Telephone case, and the litigation here, were similarly styled as actions for declaratory relief. The complaints named only the District of Columbia and the District of Columbia Council as defendants. Plaintiffs sought declarations that the District lacked statutory authority to condition closing of the alleys in question upon payment of a sale charge. Judge Penn in the Superior Court, C&P Telephone, supra note 3, 106 Daily Wash. L.Rep. at p. 1070-71, and Judge Flannery in the District Court, Carr v. District of Columbia, 371 F.Supp. 293, 296-97 (D.D.C.1974), aff’d without opinion, 521 F.2d 324 (D.C.Cir.1975), modified and rehearing denied, 543 F.2d 917 (D.C.Cir. 1976) (“Carr II”), held that the United States was not an indispensable party to the proceedings. In both cases, however, the United States participated actively before the trial courts and, as intervenor, appealed both decisions. The District of Columbia did not join in the appeal to the D.C. Court of Appeals. . The plaintiffs in the District of Columbia courts were Chesapeake & Potomac Telephone Co., The Supreme Council, 6th & E Street, Inc., Sylvan C. German and Saul H. Bernstein, Ulysses and Lulu Auger, Bicentennial Associates, and Washington Medical Center, Inc. J.A. 87. . Washington Medical Center, Inc. v. United States, supra note 2. The plaintiffs in the consolidated Court of Claims proceedings were Washington Medical Center, Inc., William J. and Frances S. Cusack, Mary C. Morgan, 1776 K Street Associates, Metropolitan Club of the City of Washington, D. F. Antonelli, Jr. and Jack Kogok. Id. at 118-19. . See 28 U.S.C. § 1346(f) (1977). . See Restatement (Second) of Judgments ch. 1, introduction at 1 (Tent. Draft No. 7, 1980). In the traditional terminology, res judicata refers to the preclusive effect of a judgment on the claim involved, while collateral estoppel concerns the judgment’s preclusive effect on issues involved. Id. at 4. Claim preclusion and issue preclusion are more descriptive labels for the same concepts. It was once the rule that a person who did not participate in a prior action, and therefore was not bound by the judgment there, could not invoke issue preclusion against a party to the prior adjudication. This “mutuality of estoppel” rule has undergone erosion to the point where it is now generally held in the federal courts and in many state courts that “a party who loses the contest of an issue against one adversary is ordinarily precluded from relitigating it against any other adversary.” Id. at 9. Application of preclusion rules in an interjurisdictional context in the United States has a constitutional dimension. Under the full faith and credit clause, U.S.Const. Art. IV, § 1, and the federal statute associated with it since 1790, 28 U.S.C. § 1738 (1977), it is the general rule that judgments are to have no lesser preclusive effects in any court within the United States than they have in the court from which they are taken. See Restatement (Second) of Judgments, supra, § 134, at 71-83; cf. Restatement (Second) of Conflict of Laws § 95, comment g. . And now trustees of the successor venture, Square 140 Associates. In an earlier District Court action, Carr successfully resisted an alley-closing charge the District sought to impose. In that action, alley ownership by the United States was not raised by the parties or discussed by the court. With the “original alley” issue absent from the controversy, Judge Sirica ruled for the plaintiffs, holding that the Street Readjustment Act, supra note 5, limited charges to cases in which the District needed protection against future liability to neighboring property owners whose parcels might be adversely affected by the closing. Carr v. District of Columbia, 312 F.Supp. 283 (D.D.C.1970), aff’d without opinion, No. 24,406 (D.C.Cir.1971) (“Carr/”). . D.C. Code § 11-501(4) (West Supp.1970). This provision is part of the District of Columbia Court Reorganization Act of 1970, P.L. No. 91-358, 84 Stat. 473; it continued District Court jurisdiction for a 30-month transition period. See generally Williams, District of Columbia Court Reorganization, 1970, 59 Geo.L.J. 483 (1971). . D.C. Code § 7-401 (West Supp.1979). . Carr II, 543 F.2d at 929. Although the one-year time limit applicable under Fed.R.Civ.P. 60(b) had expired, timeliness of an independent action is determined less woodenly by doctrines of laches and due diligence. See Restatement (Second) of Judgments § 127, at 121-22, 125 (Tent. Draft No. 6, 1979) (indicating as the sounder approach removal of the fixed time limit for Rule 60(b) relief). . See note 20 and accompanying text supra. . Judge Flannery’s appraisal of the case for extraordinary relief is inharmonious with the position taken by the Court of Claims in 1776 K Street Associates v. United States, 602 F.2d 354 (Ct.C1.1979) (the Washington Medical Center case). However, his determination permitting plaintiffs to proceed in the independent action was not challenged by the United States in this appeal. . Carr III, supra, slip op. at 7, reprinted in J.A. 50. On United States participation in the Carr and C&P Telephone proceedings, see note 12 supra and C&P Telephone, Question: Did the court rule that federal law should take precedence over state or local laws in a case involving the conflict of laws (i.e, which laws or rules apply)? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_issuearea	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. HENDERSON, CORRECTIONAL SUPERINTENDENT v. KIBBE No. 75-1906. Argued March 1, 1977 Decided May 16, 1977 Lillian Zeisel Cohen, Assistant Attorney General of New York, argued the cause for petitioner. With her on the briefs were Louis J. Lefkowitz, Attorney General, Samuel A. Hirsho* witz, First Assistant Attorney General, and Margery Evans Reifler, Assistant Attorney General. Sheila Ginsberg argued the cause for respondent. With her on the brief were William E. Hellerstein and Phylis Skloot Bamberger Lawrence T. Kurlander filed a brief for Monroe County, N. Y., as amicus curiae. Mr. Justice Stevens delivered the opinion of the Court. Respondent is in petitioner’s custody pursuant to a conviction for second-degree murder. The question presented to us is whether the New York State trial judge’s failure to instruct the jury on the issue of causation was constitutional error requiring a Federal District Court to grant habeas corpus relief. Disagreeing with a divided panel of the Court of Appeals for the Second Circuit, we hold that it was not. On the evening of December 30, 1970, respondent and his codefendant encountered a thoroughly intoxicated man named Stafford in a bar in Rochester, N. Y. After observing Stafford display at least two $100 bills, they decided to rob him and agreed to drive him to a nearby town. While in the car, respondent slapped Stafford several times, took his money, and, in a search for concealed funds, forced Stafford to lower his trousers and remove his boots. They then abandoned him on an unlighted, rural road, still in a state of partial undress, and without his coat or his glasses. The temperature was near zero, visibility was obscured by blowing snow, and snow banks flanked the roadway. The time was between 9:30 and 9:40 p. m. At about 10 p. m., while helplessly seated in a traffic lane about a quarter mile from the nearest lighted building, Stafford was struck by a speeding pickup truck. The driver testified that while he was traveling 50 miles per hour in a 40-mile zone, the first of two approaching cars flashed its lights — • presumably as a warning which he did not understand. Immediately after the cars passed, the driver saw Stafford sitting in the road with his hands in the air. The driver neither swerved nor braked his vehicle before it hit Stafford. Stafford was pronounced dead upon arrival at the local hospital. Respondent and his accomplice were convicted of grand larceny, robbery, and second-degree murder. Only the conviction of murder, as defined in N. Y. Penal Law § 125.25 (2) (McKinney 1975), is now challenged. That statute provides that “[a] person is guilty of murder in the second degree" when “[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” (Emphasis added.) Defense counsel argued that it was the negligence of the truckdriver, rather than the defendants’ action, that had caused Stafford’s death, and that the defendants could not have anticipated the fatal accident. On the other hand, the prosecution argued that the death was foreseeable and would not have occurred but for the conduct of the defendants who therefore were the cause of death. Neither party requested the trial judge to instruct the jury on the meaning of the statutory requirement that the defendants’ conduct “thereby cause [d] the death of another person,” and no such instruction was given. The trial judge did, however, read the indictment and the statute to the jury and explained the meaning of some of the statutory language. He advised the jury that a “person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense ivhen he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists.” App. 89 (emphasis added). The Appellate Division of the New York Supreme Court affirmed respondent’s conviction. People v. Kibbe, 41 App. Div. 2d 228, 342 N. Y. S. 2d 386 (1973). Although respondent did not challenge the sufficiency of the instructions to the jury in that court, Judge Cardamone dissented on the ground that the trial court’s charge did not explain the issue of causation or include an adequate discussion of the necessary mental state. That judge expressed the opinion that “the jury, upon proper instruction, could have concluded that the victim’s death by an automobile was a remote and intervening cause.” The New York Court of Appeals also affirmed. 35 N. Y. 2d 407, 321 N. E. 2d 773 (1974). It identified the causation issue as the only serious question raised by the appeal, and then rejected the contention that the conduct of the driver of the pickup truck constituted an intervening cause which relieved the defendants of criminal responsibility for Stafford’s death. The court held that it was “not necessary that the ultimate harm be intended by the actor. It will suffice if it can be said beyond a reasonable doubt, as indeed it can be here said, that the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused.” The court refused to consider the adequacy of the charge to the jury because that question had not been raised in the trial court. Respondent then filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of New York, relying on 28 U. S. C. § 2254. The District Court held that the respondent’s attack on the sufficiency of the charge failed to raise a question of constitutional dimension and that, without more, “the charge is not reviewable in a federal habeas corpus proceeding.” App. 21. The Court of Appeals for the Second Circuit reversed, 534 F. 2d 493 (1976). In view of the defense strategy which consistently challenged the sufficiency of the proof of causation, the majority held that the failure to make any objection to the jury instructions was not a deliberate bypass precluding federal habeas corpus relief, but rather was an “obviously inadvertent” omission. Id., at 497. On the merits, the court held that since the Constitution requires proof beyond a reasonable doubt of every fact necessary to constitute the crime, In re Winship, 397 U. S. 358, 364, the failure to instruct the jury on an essential element as complex as the causation issue in this case created an impermissible risk that the jury had not made a finding that the Constitution requires. Because the Court of Appeals decision appeared to conflict with this Court's holding in Cupp v. Naughten, 414 U. S. 141, we granted certiorari, 429 U. S. 815. Respondent argues that the decision of the Court of Appeals should be affirmed on either of two independent grounds: (1) that the omission of an instruction on causation created the danger that the jurors failed to make an essential factual determination as required by Winship; or (2) assuming that they did reach the causation question, they did so without adequate guidance and might have rendered a different verdict under proper instructions. A fair evaluation of the omission in the context of the entire record requires rejection of both arguments. I The Court has held “that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, supra, at 364. One of the facts which the New York statute required the prosecution to prove is that the defendants’ conduct caused the death of Stafford. As the New York Court of Appeals held, the evidence was plainly sufficient to prove that fact beyond a reasonable doubt. It is equally clear that the record requires us to conclude that the jury made such a finding. There can be no question about the fact that the jurors were informed that the case included a causation issue that they had to decide. The element of causation was stressed in the arguments of both counsel. The statutory language, which the trial judge read to the jury, expressly refers to the requirement that defendants’ conduct “cause [d] the death of another person.” The indictment tracks the statutory language; it was read to the jurors and they were given a copy for use during their deliberations. The judge instructed the jury that all elements of the crime must be proved beyond a reasonable doubt. Whether or not the arguments of counsel correctly characterized the law applicable to the causation issue, they surely made it clear to the jury that such an issue had to be decided. It follows that the objection predicated on this Court's holding in Winship is without merit. II An appraisal of the significance of an error in the instructions to the jury requires a comparison of the instructions which were actually given with those that should have been given. Orderly procedure requires that the respective adversaries' views as to how the jury should be instructed be presented to the trial judge in time to enable him to deliver an accurate charge and to minimize the risk of committing reversible error. It is thé rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court. The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing réquired to establish plain error on direct appeal. The question in such a collateral proceeding is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process," Cupp v. Naughten, 414 U. S., at 147, not merely whether “the instruction is undesirable, erroneous, or even 'universally condemned,' " id., at 146. In this case, the respondent’s burden is especially heavy because no erroneous instruction was given; his claim of prejudice is based on the failure to give any explanation — beyond the reading of the statutory language itself — of the causation element. An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law. Since this omission escaped notice on the record until Judge Cardamone filed his dissenting opinion at the intermediate appellate level, the probability that it substantially affected the jury deliberations seems remote. Because respondent did not submit a draft instruction on the causation issue to the trial judge, and because the New York courts apparently had no previous occasion to construe this aspect of the murder statute, we cannot know with certainty precisely what instruction should have been given as a matter of New York law. We do know that the New York Court of Appeals found no reversible error in this case; and its discussion of the sufficiency of the evidence gives us guidance about the kind of causation instruction that would have been acceptable. The New York Court of Appeals concluded that the evidence of causation was sufficient because it can be said beyond a reasonable doubt that the “ultimate harm” was “something which should have been foreseen as being reasonably related to the acts of the accused.” It is not entirely clear whether the court’s reference to “ultimate harm” merely required that Stafford’s death was foreseeable, or, more narrowly, that his death by a speeding vehicle was foreseeable. In either event, the court was satisfied that the “ultimate harm” was one which “should have been foreseen.” Thus, an adequate instruction would have told the jury that if the ultimate harm should have been foreseen as being reasonably-related to defendants’ conduct, that conduct should be regarded as having caused the death of Stafford. The significance of the omission of such an instruction may be evaluated by comparison with the instructions that were given. One of the elements of respondent’s offense is that he acted “recklessly,” supra, at 148, 149. By returning a guilty verdict, the jury necessarily found, in accordance with its instruction on recklessness, that respondent was “aware of and consciously disregard[ed] a substantial and unjustifiable risk” that death would occur. A person who is “aware of and consciously disregards” a substantial risk must also foresee the ultimate harm that the risk entails. Thus, the jury’s determination that the respondent acted recklessly necessarily included a determination that the ultimate harm was foreseeable to him. In a strict sense, an additional instruction on foreseeability would not have been cumulative because it would have related to an element of the offense not specifically covered in the instructions given. But since it is logical to assume that the jurors would have responded to an instruction on causation consistently with their determination of the issues that were comprehensively explained, it is equally logical to conclude that such an instruction would not have affected their verdict. Accordingly, we reject the suggestion that the omission of more complete instructions on the causation issue “so infected the entire trial that the resulting conviction violated due process.” Even if we were to make the unlikely assumption that the jury might have reached a different verdict pursuant to an additional instruction, that possibility is too speculative to justify the conclusion that constitutional error was committed. The judgment is reversed. It is so ordered. Mr. Justice Rehnquist took no part in the consideration or decision of this case. A pathologist testified that the alcohol content in Stafford’s blood was indicative of a “very heavy degree of intoxication.” App. 58. Tr. 723. Respondent was sentenced to concurrent terms of 15 years to life on the murder conviction; 5-15 years on the robbery conviction; and an indeterminate term of up to four years on the grand larceny conviction. “Let’s look at this indictment. Count 1 says and I will read the important part. That the defendant, ‘Felon[i] ously and under circumstances evincing a depraved indifference to human life recklessly engaged in conduct which created a grave risk of death to another person, to wit, George Stafford and thereby caused the death of George Stafford.’ So, you can see by the accent that I put on reaching that, the elements of this particular crime, and which must be proven beyond a reasonable doubt. “. . . [YJou are going to have to honestly come to the conclusion that here is three people, all three drinking, and that these two, or at least my client were in a position to perceive this grave risk, be aware of it and disregard it. Perceive that Mr. Stafford would sit in the middle of the northbound lane, that a motorist would come by who was distracted by flashing lights in the opposite lane, who then froze at the wheel, who then didn’t swerve, didn’t brake, and who was violating the law by speeding, and to make matters worse, he had at that particular time, because of what the situation was, he had low beams on, that is a lot of anticipation. That is a lot of looking forward. Are you supposed to anticipate that somebody is going to break the law when you move or do something? I think that is a reasonable doubt.” App. 68. “As I mentioned not only does the first count contain reference to and require proof of a depraved indifference to a human life, it proves that the defendant recklessly engaged in conduct which created a risk of death in that they caused the death of George Stafford. Now, I very well know, members of the jury, you know, that quite obviously the acts of both of these defendants were not the only the direct or the most preceding cause of his death. If I walked with one of you downtown, you know, and we went across one of the bridges and you couldn’t swim and I pushed you over and you drowned because you can’t swim, I suppose you can say, well, you drowned because you couldn’t swim. But of course, the fact is that I pushed you over. The same thing here. Sure, the death, the most immediate, the most preceding, the most direct cause of Mr. Stafford’s death was the motor vehicle .... But how did he get there ? Or to put it differently, would this man be dead had it not been for the acts of these two defendants? And I submit to you, members of the jury, that the acts of these two defendants did indeed cause the death of Mr. Stafford. He didn’t walk out there on East River Road. He was driven out there. His glasses were taken and his identification was taken and his pants were around his ankles.” Id,., at 75-76. 41 App. Div. 2d, at 231, 342 N. Y. S. 2d, at 390. He added: “There are no statutory provisions dealing with intervening causes — nor is civil case law relevant in this context. The issue of causation should have been submitted to the jury in order for it to decide whether it would be unjust to hold these appellants liable as murderers for the chain of events which actually occurred. Such an approach is suggested in the American Law Institute Model Penal Code (see Comment, § 2.03, pp. 133, 134 of Tentative Draft No. 4).” Id., at 231-232, 342 N. Y. S. 2d, at 390. The dissent did not cite any New York authority describing the causation instruction that should have been given. 35 N. Y. 2d, at 412, 321 N. E. 2d, at 776. The New York court added: “We subscribe to the requirement that the defendants’ actions must be a sufficiently direct cause of the ensuing death before there can be any imposition of criminal liability, and recognize, of course, that this standard is greater than that required to serve as a basis for tort liability. Applying these criteria to the defendants’ actions, we conclude that their activities on the evening of December 30, 1970 were a sufficiently direct cause of the death of George Stafford so as to warrant the imposition of criminal sanctions. In engaging in what may properly be described as a despicable course of action, Kibbe and KralL left a helplessly intoxicated man without his eyeglasses in a position from which, because of these attending circumstances, he could not extricate himself and whose condition was such that he could not even protect himself from the elements. The defendants do not dispute the fact that their conduct evinced a depraved indifference to human life which created a grave risk of death, but rather they argue that it was just as likely that Stafford would be miraculously rescued by a good [SJamaritan. We cannot accept such an argument. There can be little doubt but that Stafford would have frozen to death in his state of undress had he remained on the shoulder of the road. The only alternative left to him was the highway, which in his condition, for one reason or another, clearly foreboded the probability of his resulting death.” Id., at 413, 321 N. E. 2d, at 776. Cf. Humphrey v. Cady, 405 U. S. 504, 517; Fay v. Noia, 372 U. S. 391, 427-428, 438-439. “The omission of any definition of causation, however, permitted the jury to conclude that the issue was not before them or that causation could be inferred merely from the fact that Stafford’s death succeeded his abandonment by Kibbe and Krall. “. . . The possibility that jurors, as laymen, may misconstrue the evidence before them makes mandatory in every case instruction as to the legal standards they must apply. . . . Error in the omission of an instruction is compounded where the legal standard is complex and requires that fine distinctions be made. That is most assuredly the situation in this case. It has been held that where death is produced by an intervening force, such as Blake’s operation of his truck, the liability of one who put an antecedent force into action will depend on the difficult determination of whether the intervening force was a sufficiently independent or supervening cause of death. See W. LaFave & A. Scott, Criminal Law 257-263 (1972) (collecting cases). The few cases that provide similar factual circumstances suggest that the controlling questions are whether the ultimate result was foreseeable to the original actor and whether the victim failed to do something easily within his grasp that would have extricated him from danger.” 534 F. 2d, at 498-499 (footnotes omitted). In dissent, Judge Mansfield reasoned that the arguments of counsel, the reading of the statutory definition of the crime, and the general instructions made it clear to the jury that they had to find beyond a reasonable doubt that defendants’ conduct was a direct cause of Stafford’s death and that the death was not attributable solely to the truckdriver. Even though instructions on intervening cause might have been helpful, Judge Mansfield concluded that the omission was not constitutional error. “In determining the effect of this instruction on the validity of respondent’s [state] conviction, we accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v. United States, 271 U. S. 104, 107 (1926). While this does not mean that an instruction by itself may never rise to the level of constitutional error, see Cool v. United States, 409 U. S. 100 (1972), it does recognize that a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction.” Cupp v. Naughten, 414 U. S. 141, 146-147. Allis v. United States, 155 U. S. 117, 122-123; Harvey v. Tyler, 2 Wall. 328, 339; see, e. g., Lopez v. United States, 373 U. S. 427, 436. In Namet v. United States, 373 U. S. 179, 190, the Court characterized appellate consideration of a trial court error which was not obviously prejudicial and which the defense did not mention during the trial as “extravagant protection.” See Boyd v. United States, 271 U. S. 104, 108. The strong interest in preserving the finality of judgments, see, e. g., Blackledge v. Allison, ante, p. 83 (Powell, J., concurring); Schneckloth v. Bustamonte, 412 U. S. 218, 256-266 (Powell, J., concurring), as well as the interest in orderly trial procedure, must be overcome before collateral relief can be justified. For a collateral attack may be made many years after the conviction when it may be impossible, as a practical matter, to conduct a retrial. 35 N. Y. 2d, at 412-413, 321 N. E. 2d, at 776. The passage of the opinion quoted in n. 7, supra, emphasizes the obvious risk of death by freezing, suggesting that defendants need not have foreseen the precise manner in which the death did occur. Supra, at 149. In charging the jury on recklessness the trial judge quoted the statutory definition of that term in N. Y. Penal Law § 15.05 (3) (McKinney 1975). In fact, it is not unlikely that a complete instruction on the causation issue would actually have been favorable to the prosecution. For example, an instruction might have been patterned after the following example given in W. LaFave & A. Scott, Criminal Law 260 (1972): “A, with intent to kill B, only wounds B, leaving him lying unconscious in the unlighted road on a dark night, and then C, driving along the road, runs over and kills B. Here C’s act is a matter of coincidence rather than a response to what A has done, and thus the question is whether the subsequent events were foreseeable, as they undoubtedly were in the above illustration.” Such an instruction would probably have been more favorable to the prosecution than the instruction on recklessness which the court actually gave. 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_numresp	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of 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. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ASSOCIATED WHOLESALE GROCERY OF DALLAS, Inc., Respondent. No. 17333. United States Court of Appeals Fifth Circuit. Jan. 14, 1959. Elmer P. Davis, Chief Law Officer, N. L. R. B., Fort Worth, Tex., Thomas J. McDermott, Associate Gen. Counsel, N. L. R. B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Jerome D. Fenton, Gen. Counsel, Frederick U. Reel, Alice Andrews, Attorneys, National Labor Relations Board, Washington, D. C., for petitioner. Emil Corenbleth, Dallas, Tex., for respondent. Before HUTCHESON, Chief Judge, and CAMERON and BROWN, Circuit Judges. CAMERON, Circuit Judge. The question presented by petitioner’s prayer for enforcement of its order of October 18, 1957, is whether respondent violated the National Labor Relations Act by sending its striking employees two letters which, as held by the Board, constituted a discharge based upon the striking activities of the employees. Respondent is a wholesale grocery company in Dallas, Texas. No question is raised as to the applicability of the Act. Dallas General Drivers, Warehouse-men and Helpers, Local No. 745, AFL-CIO was certified as the exclusive bargaining agent of respondent’s employees. The Union and respondent were unable to agree on contract terms and the employees went out on strike on August 27, 1956. It is conceded that the strike began as an economic strike. On the same day that the strike began respondent sent the striking employees a letter. The strikers did not return to work by the deadline set out in the letter and respondent, on August 29th, sent a second letter. August 31,1956, the Union filed unfair labor practice charges against respondent, alleging that the strikers were unlawfully discharged. The Trial Examiner, on the basis of the two letters involved, concluded that respondent violated § 8(a)(1) and (3) of the National Labor Relations Act by threatening to discharge the strikers, and by thereafter discharging them for participating in the strike. The Board upheld this finding of the Trial Examiner and ordered respondent to cease and desist from violating the Act and to reinstate the strikers with all privileges and rights to which they were entitled before the strike, including back pay. Two members of the Board dissented. The law is well settled that respondent is free to replace the strikers so long as they are not discharged because of their striking activities. Collins Baking Co. v. N.L.R.B., 5 Cir., 193 F.2d 483; and Bentley Lumber Co. v. N.L.R.B., 5 Cir., 1950, 180 F.2d 641. This is conceded by the majority of the Labor Board, but it found that the two letters constituted a discharge of the striking employees because they were striking and that the strike which was initially economic was, by these two letters, converted into an unfair labor practice strike. The Board wrote a short decision adopting the findings, conclusions and recommendations of the Trial Examiner. The Examiner based his conclusions chiefly on our decision in N.L.R.B. v. United States Cold Storage Corporation, 5 Cir., 1953, 203 F.2d 924, certiorari denied 346 U.S. 818, 74 S.Ct. 30, 98 L.Ed. 344; and the petitioner places its greatest reliance on that case in the argument before us. The two dissenting members of the five-member Board considered themselves bound by the former decision of the Board in Kerrigan Iron Works, Inc., 108 N.L.R.B. 933, which they thought ■controlled. Respondent bases its argument before us chiefly on that case and on our decision in Rubin Bros. Footwear, Inc., v. N.L.R.B., 5 Cir., 1953, 203 F.2d 486. The facts before the Board here were undisputed, and its decision, therefore, involved only the application of legal principles to established facts. Analysis of the facts 4, leads, in our opinion, inevitably to the conclusion that the Board committed an error of law in entering its order. The Trial Examiner and the Board made two fundamental mistakes: in singling out the word “terminated” in the two communications and permitting it to color the whole of the writings in derogation of the rule requiring that every phrase and word in the writings must be looked to and given ■effect so that the intent of the parties will be discovered from the writings as a whole; and in divorcing the writings from the actions of the parties construing and implementing them. In committing these two errors we think that the Board rejected the rule •generally applied to labor relationships in determining whether there have been unfair labor practices, of looking to the entire transaction, including all of the actions of the parties as well as all of the words they employed. An examination of United States Cold Storage will illustrate this statement. The employer there sent two communications in which a deadline was fixed for the strikers to return to work, and they were told that, since they did not return to work, “consequently we consider you are no longer an employee of the company.” [203 F.2d 926] The words of the communications were supported by the testimony of the company’s manager, who stated categorically that the strikers’ employment was terminated upon the expiration of the deadline. Moreover, the Union made four separate requests in writing upon the employer for further bargaining sessions, which were refused by the company in derogation of decisions of this Court, pointed out in the opinion. It is clear that our order enforcing the Board’s petition in that case was bottomed upon the entire course of conduct and the testimony of the company’s manager and not alone upon the writings. In Rubin Bros., supra, rendered a few days before that case, we went into the facts detailing the action which followed the sending of a letter by the employer and, based upon the letter and the subsequent actions of the parties we vacated the Board’s enforcement order. The Kerrigan case, as we read it, bears a closer resemblance to the facts of this one than any of the others cited by either side. The language of the notice mailed to the employees in Kerrigan is unequivocal and is stronger than the language with which we are dealing. The Board held in that case that “the objective conduct of the respondent showed that the respondent did not, by its letter * * * impair the protected status of the striking employees,” and the Court of Appeals of the Sixth Circuit approved, 219 F.2d at page 876. Petitioner, standing under the risk of non-persuasion, introduced no evidence tending to prove that the wholesale grocery company did not write and perform in good faith the concluding words of its communications, — “the company will reemploy you to work at your former job upon the same terms and conditions of your former employment.” This unequivocal language laid an enforceable obligation upon the employer and tended to give meaning to the residue of the two letters. In fact, the Trial Examiner found that none of the jobs of the strikers were filled on a permanent basis until forty-five days after the two letters were sent, and that all former employees who applied were given their old jobs or their equivalents. Construing the writings as a whole, therefore, in the light of the actions of the parties under them, we hold that the striking employees were not discharged and that the findings of unfair labor practices were without foundation in the record and that, as a matter of law, from undisputed proof the Board’s decision and order were erroneous. Enforcement is, therefore, denied. . 29 U.S.C.A. § 151 et seq. . “You have walked off your job and refused to work without the Company’s consent. “Unless you return to work at your regular time on Wednesday, August 29, 1956, your employment with this Company is terminated, and your former job will be permanently filled. . “On August 27th the company wrote you that you had walked off your job without permission and refused to work, and that if you did not return to work by Wednesday, August 29th, at the regular time your employment would be terminated and your former job permanently filled. “You failed to report for work and' your employment is terminated. Enclosed find the company’s check for work done by you before you walked off your job. The company will now hire new employees to permanently fill the job you and others held with the company before the strike. “If, promptly after the strike ends, or sooner, if you desire, you wish to be reemployed by the company you should make written application to the company. If, at the time of such application, your former job has not been permanently filled, the company will reemploy you to work at your former job upon the same terms and conditions of your former employment.” . Affirmed sub nomine Shopmen’s Local Union No. 733, Intern. Ass’n of Bridge, Structural & Ornamental Iron Workers, A.F.L. v. N. L. R. B., 6 Cir., 1955, 219 F.2d 874, certiorari denied 350 U.S. 835, 76 S.Ct. 70, 100 L.Ed. 745. . Which will be adverted to only briefly, in line with sentiments, which we approve, expressed by the Sixth Circuit in Shopmen’s Local, etc. v. N. L. R. B., supra: “In view of the fact that this court, and all the other circuit courts of appeals, have loaded the law books with weighty fact reviews in cases arising under the National Labor Relations Act, * * * we consider it unnecessary in the present controversy to detail the facts or to restate reasoning and authority so often applied by this court.” . Petroleum Financial Corporation v. Cockburn, 5 Cir., 1957, 241 F.2d 312; American Aviation & General Insurance Company v. Georgia Telco Credit Union, 5 Cir., 1955, 228 F.2d 206, 51 A.L.R.2d 316; Guaranty Trust Company of New York v. Williamsport Wire Rope Co., 3 Cir., 1955, 222 F.2d 416; City of Orlando v. Murphy, 5 Cir., 1936, 84 F.2d 531. . 203 F.2d at page 928. . “You are notified to return on that date and failure to do so will be deemed an indication on your part that you do not desire reemployment in our plant, and your employment will thereupon be permanently terminated.” 219 F.2d at page 875. [Emphasis added.] . The language of the minority of the Board in this case furnishes a good analysis of Kerrigan and its application here: “The majority relies on two items which it believes distinguish Kerrigan from this case. They relate to inferences to be drawn from the wording of the letters rather than from the total strike situation of which the letters are a part. Thus, the majority points to phrases in Respondent’s letter of August 29, which imply that the strikers would only he reemployed after they had made written applications. We believe that this places an unwarranted emphasis upon a phrase which can as reasonably be interpreted to mean that when the strike ends the employees whose jobs had not been permanently filled would be reinstated. That this is a more logical interpretation of the entire communication from Respondent, appears from the last sentence of the letter in which each striker is told that if his job has not been permanently filled he will be reemployed ‘upon the the same terms and conditions’ of his former employment. The letter contains no threats of loss of seniority or of those fringe benefits such as insurance or hospitalization which are normally disrupted when a break in employment tenure occurs. Moreover, we note that the letter sent to the strikers in the Kerrigan ease also speaks of permanent termination upon failure to return as an indication that the strikers do not desire ‘reemployment’.” [Emphasis supplied.] Question: What is the total number of respondents in the case? Answer with a number. 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. O’BRIEN v. GENERAL ACCIDENT, FIRE & LIFE ASSURANCE CORPORATION, LIMITED, OF PERTH, SCOTLAND. No. 8716. Circuit Court of Appeals, Eighth Circuit. June 9, 1930. Arthur F. Mullen, of Omaha, Neb. (Richard C. Hunter and Charles C. Sheppard, both of Omaha, Neb., on the brief), for appellant. Yale C. Holland, of Omaha, Neb. (J. A. C. Kennedy, G. L. De Lacy, and Charles F. McLaughlin, all of Omaha, Neb., on the brief), for appellee. Before STONE and VAN VALKENBURGH, Circuit Judges, and OTIS, District Judge. OTIS, District Judge. Appellant, who was plaintiff in the court below, was beneficiary in a policy of accident insurance issued by appellee August 11, 1926, to one James O’Hara and, in the capacity of beneficiary, brought this suit to recover on the policy. In her petition she alleged that O’Hara was accidentally killed on August 29, 1926, when the policy was in full force and effect. The defense, at least in part, was that O’Hara committed suicide. What the evidence upon that issue was we do not know, since much of the evidence appears to have been omitted from the transcript. Even the policy sued on is not included. The verdict of the jury was for appellee. A motion for new trial was overruled. The assignment of errors, four in number, is as follows: “1. The court erred in overruling the motion for a new trial. “2. There was misconduct of the juror, Charles Connor, as shown by the affidavits that appear in the transcript. “3. The court erred in permitting the witness, Dr. Vernon Thomas, to testify at the trial regarding communications had between the deceased, James O’Hara, and himself, which evidence was admitted over the objection of the plaintiff, the specific ground of objection being that said communications were privileged between the deceased, James O’Hara, and the witness, Dr. Vernon Thomas, and the evidence of said Dr. Vernon Thomas was incompetent, irrelevant and immaterial and said communications were professional communications made to him by the deceased at the time when the said deceased was a patient of the said Dr. Vernon Thomas. “4. The court erred in permitting the introduction of evidence, over the objection of the plaintiff, as to transactions and conversations had between the deceased and other witnesses, in particular, the witness, Dr. Vernon Thomas, which evidence was hearsay and was incompetent, irrelevant and immaterial.” 1. The first assignment may be disposed of briefly. Rule 11 of this court, governing assignments of errors on appeals, as it was when this appeal was taken and presented, provides that: “The plaintiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or appeal, an assignment of errors, which shall set out separately and particularly each error asserted and intended to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been filed. When the error alleged is to the admission or to the rejection of evidence, the assignment of errors shall quote the full substance of the evidence admitted or rejected. When the error alleged is to the charge of the court, the assignment of errors shall set out the part referred to totidem verbis, whether it be in instructions given or in instructions refused. Such assignment of errors shall form part of the transcript of the record and be printed with it. When this is not done, counsel will not be heard, except at the request of the court; and errors not assigned according to this rule will be disregarded; but the court, at its option, may notice a plain error not assigned.” The rule requires that the assignment “shall set out separately and particularly each' error asserted and intended to be urged,” and that “errors not assigned according to. this rule will be disregarded.” The first assignment certainly does not particularize as to the asserted error. There is no suggestion as to why it was an error to overrule the motion for a new trial. It is simply asserted it was an error and that is all. Moreover, the granting or sustaining of a motion for a new trial is within the discretion of the trial court, and, generally speaking, its ruling on such a motion is not reviewable. Holmgren v. United States, 217 U. S. 509, 521, 30 S. Ct. 588, 54 L. Ed. 861, 19 Ann. Cas. 778; Mattox v. United States, 146 U. S. 140, 147, 13 S.. Ct. 50, 36 L. Ed. 917; Reagan v. Aiken, 138 U. S. 109, 113, 11 S. Ct. 283, 34 L. Ed. 892; Pittsburgh, C. & St. L. Railway Co. v. Heck, 102 U. S. 120, 26 L. Ed. 58; McLanahan et al. v. Insurance Co., 1 Pet. 170, 182, 7 L. Ed. 98. It is only when the court has abused or refused to exercise its discretion that its action may be reviewed. Paine v. St. Paul Union Stockyards Co. (8 C. C. A.) 35 F.(2d) 624, 627; United Press Ass’ns v. National Newspaper Ass’n (8 C. C. A.) 254 F. 284, 285. It follows that, before there is anything for review, the assignment must set out facts indicating abuse of or failure to exercise discretion. There is nothing of that nature in the first assignment. 2. Although upon the oral argument it was vigorously maintained by appellant’s counsel that the second assignment of error was in no way involved in the first assignment or intended as a part thereof, obviously it is either so involved or it is nothing. It too does not conform to Rule 11. It asserts as error that -“there was misconduct of the juror, Charles Connor.” But there is no hint in the assignment as to what that misconduct was, no suggestion as to wherein the trial court erred in connection with the alleged misconduct. But we assume, notwithstanding the contention of appellant’s counsel, that it was intended by the second assignment to particularize assignment No. 1, to indicate the ground on which the motion.for new trial ought to have been sustained, and to suggest perhaps that the trial court abused its discretion when it denied the motion. We consider then whether the trial court did abuse its discretion by denying a new trial notwithstanding the showing made concerning the juror Charles Connor. The showing as to this juror was in the form of an affidavit of counsel for appellant, filed after verdict, and of the juror’s testimony under oath. 'Counsel’s affidavit set out that whereas on the voir dire examination of the panel Connor, who was an insurance agent, testified that he was not an agent of appellee, that he had no connection with it, and that he had had no business relations with it, he was. in fact an agent of appellee and had had business with it. Con-nor testified that he was not an agent of appellee and had never been, that he had had no connection with, and that at the time of the voir dire examination he had no knowledge of ever having had any business with the appellee, but that after the verdict he learned that several years before certain applications for insurance secured by him had been placed by another agent with the appellee company. Upon this business the commissions received by him had been about $60. He was ignorant of the fact when he was examined and while he was serving as a juror that any insurance business originating with him ever had been placed with the appellee. It Was his further testimony that on the voir dire examination he was not asked whether he had had any business with .the appellee. He said he would have answered in the negative had he been asked that question. Clearly upon this showing the trial court was justified in finding that the juror had been guilty of no misconduct and in overruling the motion for a new trial. The trial court might well have found and most probably did find that the juror had answered every question asked him fully and truthfully and that in no real sense did he have or had he had any connection with the appellee company. In this connection appellant has cited cases announcing the rule that the employee of a corporation is not competent to act as a juryman in a ease in which the corporation is a party. Burnett v. Railroad Co., 16 Neb. 332, 334, 20 N. W. 280; Louisville, etc., R. Co. v. Cook, 168 Ala. 592, 53 So. 190, 192; Central Railroad Co. v. Mitchell, 63 Ga. 173, 179; Hubbard v. Rutledge, 57 Miss. 7, 12; Pearce v. Mining Co., 149 Mich. 112, 112 N. W. 739, 740, 12 Ann. Cas. 304; Blevins v. Cotton Mills Co., 150 N. C. 493, 497, 64 S. E. 428; Norris v. Morgan Mills, 154 N. C. 474, 480, 70 S. E. 912; State v. Dushman, 79 W. Va. 747, 91 S. E. 809; 810; Ensign v. Harney, 15 Neb. 330, 18 N. W. 73, 48 Am. Rep. 344; Crawford v. U. S., 212 U. S. 183, 192, 29 S. Ct. 260, 53 L. Ed. 465, 15 Ann. Cas. 392. Other cases are cited holding that a stockholder is not qualified to act as juryman in a case when the corporation is a party. Miller v. United States, 38 App. D. C. 361, 40 L. R. A. (N. S.) 973; McElhanon v. State, 99 Ga. 672, 26 S. E. 501, 504; State v. Thompson, 24 Utah, 314, 67 P. 789, 790. And eases are cited holding that, where a juror deceives or misleads a party by falsely testifying that he has no interest and is unprejudiced and impartial, on discovery of the fact, after verdict, a new trial will be ordered, even though he claims to have acted impartially. Hyman v. Eames (C. C.) 41 F. 676; State v. Wright, 112 Iowa, 436, 84 N. W. 541, 542; State v. Cleary, 40 Kan. 287, 19 P. 776, 779; State v. Thompson, 24 Utah, 314, 67 P. 789, 790; Seaton v. Swem, 58 Iowa, 41, 11 N. W. 726; Pearcy v. Ins. Co., 111 Ind. 59, 12 N. E. 98, 99, 60 Am. Rep. 673; Ensign v. Harney, 15 Neb. 330, 18 N. W. 73, 48 Am. Rep. 344; Bennett v. Howard, 3 Day (Conn.) 219, 223; State v. Watkins, 9 Conn. 47, 21 Am. Dec. 712. Still other cases are cited for the rule that a juror who has deceived or misled the court and counsel by false or incorrect answer cannot, by a subsequent statement, repair the legal injury caused by his conduct on his preliminary examination. Pearcy v. Ins. Co., 111 Ind. 59, 12 N. E. 98, 99, 60 Am. Rep. 673; Hudspeth v. Herston, 64 Ind. 133, 134; Territory v. Kennedy, 3 Mont. 520; Ensign v. Harney, 15 Neb. 330, 18 N. W. 73, 48 Am. Rep. 344; Nelson v. Dickson, 63 Ga. 682, 685, 36 Am. Rep. 128. Finally appellant has cited eases holding that, even, though a person is ignorant of his interest or relationship', if he has misled a party to the suit, he is not qualified to act as a juryman, and, after the fact is discovered and objection is made, courts generally grant a new trial. McElhannon v. State, 99 Ga. 672, 26 S. E. 501; Moore v. Farmers’ Mutual Ins. Ass’n, 107 Ga. 199, 33 S. E. 65; Bank v. Tuck, 107 Ga. 211, 33 S. E. 70; Hudspeth v. Herston, 64 Ind. 133, 134; Lyens v. State, 133 Ga. 587, 597, 66 S. E. 792; Jewell v. Jewell, 84 Me. 304, 24 A. 858, 18 L. R. A. 473. Each of the cases cited by appellant we have read and carefully considered. For various reasons none of them helps appellant. In the majority of instances they are eases in which the question of a juror’s disqualification arose on the voir dire examination and in which an exception was saved to the court’s ruling. Such a situation furnished something for review by the appellate court. In other instances, where, the juror’s disqualification was discovered only after verdict and where a motion for a new trial was denied notwithstanding that discovery, state statutes absolutely disqualified the juror or made a juror’s misconduct ground for new trial. Moreover, in those instances, contrary to the rule in federal courts, appeals were from the action of the trial court on its ruling on a motion for a new trial. In other words, action of the trial court on such a motion was not discretionary. None of the cases are in point. 3. The third and fourth assignments have to do with the competence of certain testimony. Like the first and second, they plainly are insufficient under rule 11 and should be disregarded. That rule, as we have seen, specifically provides that, “when the error alleged is to the admission or rejection of evidence, the assignment of errors shall quote the full substance of the evidence omitted or rejected. * * * ” These assignments not only do not quote the full substance of the evidence rejected, but they do not contain the slightest suggestion as to the nature of that evidence. A rule disregarded at last becomes no rule. A court which does not respect its own rules cannot well ask others to respect them. The proviso in the rule that “the court, at its option, may notice a plain error not assigned” should not be too often exercised, but only in the most unusual situations, else the whole purpose of requiring the assignment of errors is lost. It is a purpose too important to be lightly sacrificed. But, “as an act of grace,” to use the language of Faris, J., speaking for this court in Weber v. United States, 32 F.(2d) 110, 111, we have considered the questions raised. 4. We have seen that one Of the defenses alleged in appellee’s answer was that O’Hara committed suicide. Apparently; although the policy is not here, under its terms suicide was a complete defense. Doubtless anticipating what might be shown in evidence in that connection by appellee, appellant, as a part of her case, put on testimony to prove ‘that before his death O’Hara was in a good condition of physical and mental health. Appellant, who was O’Hara’s fiancee (they ‘were shortly to be married) went so far in her testimony as to say that O’Hara’s doctor had informed him there was nothing wrong with him, that all he needed was a little rest. To meet this testimony appellee called as a witness one Thomas, a chiropractor, who testified, among other things, (1) that O’Hara had told him that he (O’Hara) was impotent; and (2) that upon examination he found that that was true. The contention of the appellant is that O’Hara’s statement to Thomas was a privileged communication made by a patient to his physician and therefore incompetent, ,and that it was prejudicial error to overrule appellant’s objection to it on that ground. If the communication made by O’Hara to Thomas was privileged it is because of some Nebraska statute. At common law no communications of patients to physicians were privileged. 40 Cyc. 2381. The pertinent Nebraska statute (section 8840; Compiled Statutes of Nebraska, 1922) is as follows: “§ 8840. Privileged Communications.— No practicing attorney, counselor, physician, surgeon, minister of the gospel or priest of any denomination, shall be allowed in giving testimony to disclose any confidential communication,- properly intrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline.” With this statute before us four questions present themselves: (1) Is a chiropractor a physician within the meaning of the statute? (2) Was the communication to Thomas such a one as is covered by the statute? (3) May another than the patient claim the privilege created by the statute? and (4) May the privilege be waived and, if so, by whom? Passing the first question and at once answering the second in the affirmative, we come to the third. As to that the rule is thus stated in 40 Cyc. 2394, “the privilege is that of the patient * * * no other person has thé right to object.” A Nebraska case that to some slight extent bears on the question is Thrasher v. Nebraska, 32 Neb. 110, 138 N. W. 120, 121, Ann. Cas. 1913E, 882, which contains the language: “Communications between patient and physician were not privileged at common law, but depend alone upon the statute. It is to be applied only as between them, and is for the protection of the patient.” It was a case in which a communication of a patient to a physician was sought to be proved at the trial of one charged with the murder of the patient over the objection of the alleged murderer. But, in the absence of any more applicable decision and of any contention on the part of the appellee based on this ground we are disposed to hold that the appellant had the right here to object on the ground of privileged communication. There is at least dictum in the ease of Sovereign Camp of W. O. W. v. Grandon, 64 Neb. 39, 41, 89 N. W. 448, 451, supporting this conclusion. We are thus brought to the fourth and last of the questions stated, Could the appellant waive the privilege and did she do so? The answer to the first part of this question depends upon the Construction given section 8841 of the Compiled Statutes of Nebraska of 1922. That section reads as follows : “§ 8841. * * * The prohibitions in the preceding sections [which include section 8840 above set out] do not apply to eases where the party in whose favor the respective provisions are enacted, waives the rights thereby conferred.” One then who is a “party in whose "favor” section 8840 was enacted may waive the privilege. Who is such a “party”? If we look only at the language of section 8840, we must say the patient is that “party.” The Supreme Court of Nebraska in Thrasher v. Nebraska, supra, said the statute is “for the protection of the patient.” But the appellee earnestly contends that a later opinion of the Nebraska Supreme Court in Sovereign Camp of W. O. W. v. Grandon, supra, puts a broader construction on the statute. Therefore we carefully consider that opinion. The Grandon Case was one in which the widow of one Grandon, the widow being beneficiary in a certificate of fraternal insurance on the life of Grandon, brought suit against the insurer on 'the certificate. The defendant put Grandon’s physician on the witness stand. Plaintiff objected to testimony by the physician on the ground of privileged communication. That objection was sustained. On cross-examination of the physician, plaintiff had him testify as to what Grandon’s state of health actually was. On redirect defendant then sought to examine him on the same subject, contending that plaintiff by her cross-examination had waived the privilege. The trial court ruled that the privilege still continued. As to that the Supreme Court said: The plaintiff “opened up the question of his [Grandon’s] condition, and thereby waived the privilege which the statute gave her." The opinion of the Supreme Court of Nebraska in the Grandon Case determines two things: (1) That the beneficiary in a policy of insurance ,on the life of another who has made communications to or been examined by a physician, is a “party in whose favor” section 8840 was enacted; and (2) that such beneficiary under section 8841 may waive the privilege. The second part of our fourth question is, In the present ease did the appellant as beneficiary waive the privilege? Here again appellee relies on the Gran-don Case, insisting that that case holds that, wherever one who has the right to waive the privilege opens up the question of the physical condition of one who has been a patient of a physician, by so doing he has waived the privilege. A careful consideration of the Grandon Case forces us to the conclusion that such an interpretation of that case is an erroneous one. What the Grandon Case holds is this, and no more than this, that where one, who has the right to assert the privilege, himself calls upon the physician to testify, by that act he waives the privilege, and the other party may then examine the same physician. That the Supreme Court of Nebraska meant no more than that becomes apparent when we consider the one case which that court cited in support of its conclusion, Morris v. Railroad Co., 148 N. Y. 88, 42 N. E. 410, 413, 51 Am. St. Rep. 675. In the Morris Case (it was a suit for damages for personal injuries) the plaintiff had been examined by two physicians at the same time and together. She called one to testify in her behalf as to her injuries. The defendant called the other. There was objection on the ground of privileged communications. The Court of Appeals of New York held that the objection should have been overruled, saying: “We think that a construction of the statute. which permits a patient who has been attended by two physicians at the same examination and consultation to call one of them as a witness to prove what took place, or what he learned, thus making public the whole interview, and still retain the right to object to the other, is unreasonable and unjust, and should not be followed. The waiver is complete as to that consultation when one of them is used as a witness.” In the same opinion the Court of Appeals expressly said that one who only discloses his own physical condition does not thereby waive the right to object to his physician’s testimony. We conclude then that under the Nebraska law as it was before section 8841 was amended in 1925 (Laws 1925, c. 74) appellant, by putting on lay testimony as to the physical and mental condition of O’Hara, did not waive the right to object to testimony by his physician. There remains for consideration whether the 1925 amendment of section 8841 by the Legislature of Nebraska makes that a waive which before would not have been. The section as amended reads as follows: “Section 8841. Prohibitions Waived.— The prohibitions of the preceding sections do not apply to cases where the party in whose favor the respective provisions are enacted, waives the rights thereby conferred; and if a party to any action now pending, or hereafter brought, shall offer evidence with reference to his ‘physical or mental condition, or the alleged cause thereof, or if the personal representative of a deceased person in any such action shall offer such evidence as to such deceased person, the right conferred by Section 8840, Compiled Statutes of Nebraska for 1922, shall be deemed to have been waived as to any physician or surgeon who shall have attended said party or said deceased person.” This amendment had at least one definite effect. After its adoption, although, as we have seen, such was not the ease before, one who has the right to waive the privilege does waive it by offering any testimony with reference to the physical or mental condition of the patient. That was an enlargement of one branch of the doctrine of the Grandon Case. The question now is, Did the amendment, by seemingly extending the power of waiver to those who had not before had it, inferentially deny it to some, including beneficiaries, who theretofore, under the Grandon Case, had that power. We think not. The intention of the Legislature was not limitation but enlargement. That part of the section in its original form, which was retained, was retained with all the meaning theretofore given it by the judicial interpretation. So the benefieiáry may still waive the privilege. Under the amendment he does waive it by offering any testimony touching the physical or mental condition of the insured. 5. The contention that the testimony of Thomas as to what O’Hara told him was incompetent as hearsay is also made. Not only is the assignment of this error insufficient, but the testimony when offered was not objected to on that ground. McFarland v. National Bank (8 C. C. A.) 26 F.(2d) 890, 892; Wear v. Imperial Window Glass Co. (8 C. C. A.) 224 F. 60, 63. Again, Thomas testified to the facts about which O’Hara told him; hence statements made by O’Hara, even if hearsay, added little to the appellee’s ease. The error, if any, therefore, was not prejudicial. Finally, when suicide was an issue, the statements made by O’Hara were in no true sense hearsay. Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, 295, 12 S. Ct. 909, 36 L. Ed. 706; Occidental Life Ins. Co. v. Graham (C. C. A.) 22 F.(2d) 528, 529. His statement that he was impotent was not admitted to prove that he was impotent but as external indication of a worried state of mind which might prompt suicide. The judgment below; should be and is affirmed. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_prejud	B	What follows is an opinion from a United States Court of Appeals. The issue is: "Was there prejudicial conduct by prosecution? (including prosecutor refusing to produce evidence which would aid 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". UNITED STATES of America, Plaintiff-Appellee, v. John H. KELLEY, Defendant-Appellant. No. 15036. United States Court of Appeals Sixth Circuit. March 11, 1963. Harry Lewis, Columbus, Ohio, Wright, Gilbert & Lewis, Columbus, Ohio, on brief, for appellant. Robert A. Bell, Asst. U. S. Atty., Columbus, Ohio, Joseph P. Kinneary, U. S. Atty., Columbus, Ohio, on brief, for appellee. Before WEICK, Circuit Judge, and BOYD and THORNTON, District Judges. WEICK, Circuit Judge. Appellant was tried and convicted by a jury in the District Court on a three-count Information charging that he received wagers in each of the years 1958, 1959 and 1960 and wilfully failed to register and pay the special occupational tax imposed by Section 4411 of the Internal Revenue Code of 1954, in violation of 26 U.S.C. § 7203. He was fined $1,000 and placed on probation for a period of five years. The principal errors relied upon in this appeal are that the District Court erred in limiting cross-examination of the Government’s witness, Esposito, and in threatening defense counsel on two occasions with contempt of court in the presence of the jury during the course of the trial. On direct examination, Esposito had been asked general questions by Government counsel about placing “wagers” with defendant. He testified that when he had lost about $100 defendant would come to his office to collect. The bets related to football or basketball games. He guessed that 20 to 25 bets had been placed in 1958, about the same number in 1959 and 10 or 15 in 1960. The defendant objected to a number of the questions on the ground that no specific bets or dates were mentioned and that the questions dealt only in generalities. The objections were overruled. The following took place upon cross-examination : “By Mr. Bernard: “Q. Now, you have described a lot of general activity, Mr. Esposito. I want you to name five specific bets that you made with Jack Kelley. I want you to name the amount of the bet, the event upon which you wagered, when you made the wager, and where you made the wager? “Mr. Bell: Objection. “The Court: Sustained. “Mr.. Bernard: If the Court please, I think that we have a perfect right to prepare a defense. “The Court: The Court has ruled. It is not material as to the amount of wagers. It is a question whether he made wagers. “Mr. Bernai'd: I would like to know what the wagers were. “The Court: The Court sustained the objection. You may have to inquire through other sources for it. “Mr. Bernard: May I ask the question individually ? I don’t want to impose upon the Court. “The Court: The Court doesn’t intend for you to impose upon it. Go ahead. “Mr. Bernard: That’s right. “The Court: Now, if he has any recollection I will permit him to answer. I think under the law it is a question whether or not he made wagers, whether it is five dollars, ten dollars, a hundred, or a thousand. It is whether or not he placed wagers. If he has knowledge of any particular wagers the Court will permit him to answer. “Q. Can you recall five specific bets that you made during the year 1960? “Mr. Bell: Objection. "The Court: I don’t think this comes down to a specific matter, Mr. Bernard. I think the question involved here is whether' or not he received wagers as defined by Section 4421 and in so doing was required to register and pay his special occupational tax. That is the gist of this indictment. We don’t care whether he won money, lost money, or whether he bet one dollar or a hundred, but did he wager with this man. That is the question involved. You will confine your questions to that line. “Q. Name five specific wagers— “The Court: The Court has ruled two or three times. “Mr. Bernard: I don’t understand the Court, then. This defendant is accused of receiving wagers. “The Court: I understand, and the Court has advised you that specific amounts are not involved. “Mr. Bernard: How about the subject matter? “The Court: Ask him about it, without testifying as to particular wagers. “Q. Name five specific events upon which you wagered— “The Court: This is the last time the Court is going to rule. If you want to get in contempt of court you repeat that same question again and you will be in contempt of court. “Mr. Bernard: I don’t understand the Court. “The Court: I have ruled and I have sustained the objection. Proceed in regular order. This is not a police court, this is a United States Federal Court. “Q. Isn’t it a fact, Mr. Esposito— “Mr. Bernard: I have no further questions.” As before indicated, the witness had testified to making about 65 wagers with the defendant over a three year period. He did not give any specific date as to any of the bets or any information as to what any particular bet encompassed. He was asked on cross-examination to give specific information as to only five of these bets. These questions were proper on cross-examination to test the memory of the witness and his truth and veracity. The District Court erred in sustaining objections to the questions. We find no basis for the District Judge’s threat to the lawyer to hold him in contempt for repeating the question in an effort to comply with an erroneous ruling. We do not understand the Judge’s reference to the police court. For all this to take place in the presence of the jury was extremely prejudicial to the defendant. The implication was present that defendant’s lawyer was indulging in tactics prevalent in a police court which supposedly were not proper. There was no occasion for the Judge to comment disparagingly on any other court. The threat of contempt not only tended to belittle the lawyer in the eyes of the jury, but also to unnerve him and throw him off balance so that he could not devote his best talents to the defense of his client. After the witness Esposito had been discharged and during the direct examination of the witness Jones, the Court made the following comment: “The Court: Now in its ruling on your question, Mr. Bernard, the Court was not intending to circumscribe you on testing the veracity or truthfulness of the witness, but your question was a complex, complicated question, stated in general terms, which made it improper. That was the reason for the Court ruling against you on it. Had you asked the man about specific events that might have been different, but when you lumped them all in five specific times without a fixing time, that was the reason for the Court’s ruling. If you want to recall that witness and cross examine him further, the Court will permit you to do so. Go ahead.” While the court stated that he was not intending to circumscribe the lawyer on testing the veracity or truthfulness of the witness, the fact is that he did and still maintained that he was correct in doing so. We see nothing complex or complicated in the questions which were asked and we do not believe they were improper. The lawyer did not recall the witness for further cross-examination probably because he did not know how to frame a question which would meet the requirements as to admissibility imposed by the Judge. In any event, the damage to the defendant’s case had already been done. The Government witness, Slav-en, testified on direct examination as to making wagers with defendant, but placed the time in 1954 which was prior to the offenses charged in the Information. The following then took place. “The Court: Just a moment. The court is telling counsel at this time he wants you to stop your smiling, wants you to stop pointing at the jury with your arm, or one of you is going to be held in contempt. This is not a circus, this is a trial. You are both able lawyers, able lawyers at both tables, and I want you to conduct yourselves according with the ethics of the profession. I have observed too much of it up to this time.” If the Judge did not like the facial expressions of defense counsel or the movement of their arms, he could have admonished them without making another threat of contempt or insinuating that they were unethical in the presence of the jury. The lawyer’s feelings in the matter are best expressed in the closing lines of his argument to the jury. He said: “I have no more to say to you, ladies and gentlemen. It seems that I have probably reached the end of my luck with the Honorable Judge Underwood, and I am afraid if I say any more he is liable to get real mean with me. “The Court: No, Mr. Bernard. You are a good lawyer, you know the province of proper argument. You know it is highly improper for you to attempt to tell the jury what the law is.” Mr. Bernard made no further argument. In our judgment, these errors were prejudicial and operated to prevent the defendant from having a fair trial. United States v. Koenig, 300 F.2d 377 (C.A. 6). In view of this disposition of the case it is not necessary for us to pass upon the other errors alleged. The judgment of the District Court is reversed and the cause is remanded for a new trial. Question: Was there prejudicial conduct by prosecution? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_district	F	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". Roy P. BRIEHLER, Plaintiff-Appellant, v. CITY OF MIAMI, a Fla. Municipal Corp., Xavier Suarez, individually & as Mayor for the City of Miami, Cesar H. Odio, individually & as Mgr. for the City of Miami, Rouse-Miami, Inc., a Maryland Corp., Bayside Center Limited Partnership, a ltd. partnership, Maryland, with sole general partner being: Rouse-Miami, Inc., Armando Codina, Natan Rok, Ignacio Garcia, Garth Reeves, & Ron Frazier, James Rouse, James Dausch, Mathias J. Devito, Joule Yacht Transport Inc., Richard Joule, and William Joule, Defendants-Appellees. No. 90-5708. United States Court of Appeals, Eleventh Circuit. Feb. 20, 1991. Roy Briehler, Trenton, N.J., for plaintiff - appellant. Marlene K. Silverman, Alan H. Rolnick, Miami, Fla., for defendants-appellees. Before FAY, KRAVITCH and BIRCH, Circuit Judges. BY THE COURT: Roy P. Briehler filed a complaint alleging various counts against a number of defendants, including Rouse-Miami, Inc. and Bayside Center Limited Partnership (collectively the “Bayside Appellees”). On July 24, 1990, the district court dismissed counts II, III, IV, and V with prejudice. The court dismissed the two remaining counts (counts I and VI) with leave to amend, but did not specify a time by which Briehler was to amend. On August 22, 1990, Briehler filed a notice of appeal to this court stating: Notice is hereby given that plaintiff ROY P. BRIEHLER hereby appeals to the United States Court of Appeals for the Eleventh Circuit from the Order Granting Motion to Dismiss Counts 2, 3, 4, and 5 of plaintiffs complaint with prejudice, entered in this action on the 24th. [sic] day of July, 1990. After an initial review of the record, this court, sua sponte, asked the parties to address the issue of whether or not the district court’s order is final and appeal-able. We hold that it is. An order dismissing a complaint is not final and appealable unless the order holds that it dismisses the entire action or that the complaint could not be saved by amendment. Czeremcha v. International Ass’n of Machinists and Aerospace Workers, AFL-CIO, 724 F.2d 1552, 1554-55 (11th Cir.1984). In Schuurman v. Motor Vessel “Betty K V”, 798 F.2d 442, 445 (11th Cir.1986), however, this court held that where an order dismisses a complaint with leave to amend within a specified period, the order becomes final (and therefore appealable) when the time period allowed for amendment expires. This case falls between these two rules because the district court gave leave to amend on two counts, but did not specify a time limit. In Czeremcha, the plaintiff filed a complaint basing subject matter jurisdiction on the National Labor Relations Act (“NLRA”). On December 23, 1982, the district court dismissed the complaint for lack of subject matter jurisdiction, stating that jurisdiction was properly based on the Railway Labor Act (“RLA”), not the NLRA. On January 4, 1983, pursuant to Rule 15 of the Federal Rules of Civil Procedure, the plaintiff moved for leave to amend the complaint to allege jurisdiction under the RLA. The district court denied the motion on March 10, 1983. On April 8, 1983, the plaintiff filed a notice of appeal. The defendant argued that the plaintiff’s April 8, 1983 notice of appeal was not timely because it was not made within thirty days of the dismissal of the complaint. See Fed.R.App.P. 4(a). In rejecting that argument, this court held that a dismissal of a complaint is not final and appealable “unless the court holds either that no amendment is possible or that the dismissal of the complaint also constitutes dismissal of the action.” Czeremcha, 724 F.2d at 1554. Therefore, the order was not final until the plaintiff’s motion for leave to amend was denied. In Czeremcha, however, the court noted that the predecessor to this court “has indicated that a plaintiff has the choice either of pursuing a permissive right to amend a complaint after dismissal or of treating the order as final and filing for appeal.” Id. (citing United States v. Mayton, 335 F.2d 153, 158 n. 12 (5th Cir.1964); United Steelworkers v. American Int’l Aluminum Corp., 334 F.2d 147, 150 n. 4 (5th Cir.1964)). We conclude that this choice was available to Briehler in this case. Although the district court gave Briehler leave to amend his complaint, the court in no way required amendment. Thus, if Briehler chose not to amend, there was nothing left for the district court to do and the court’s order of dismissal became final when Briehler filed his notice of appeal. The Bayside Appellees argue, however, that even under the rule enunciated above, the order is not final because Briehler’s notice of appeal states only that Briehler appeals from the district court’s “Order Granting Motion to Dismiss Counts 2, 3, 4, and 5 of plaintiff's complaint with prejudice,” and does not state that he is appealing the dismissal with leave to amend of counts I and VI. Although Briehler’s notice of appeal is not precise as to its scope, in answer to this court’s jurisdictional question Briehler made clear that he did not intend to amend his complaint. Thus, Briehler obviously has chosen to appeal rather than exercise his right to amend. Our result in this case is consistent with our holding in Schuurman. In Schuur-man, we held that an order dismissing a complaint with a specified time for amendment became final at the time the amendment period expired. We further noted that a plaintiff need not wait until the time expires, but can treat the dismissal as final and file a notice of appeal before the expiration of the amendment period. In so doing, however, the plaintiff waives the right to later amend. Schuurman, 798 F.2d at 445; see also Connecticut Nat’l Bank v. Fluor Corp., 808 F.2d 957, 960-61 (2d Cir.1987) (appellant’s unequivocal statement at oral argument that no further amendments would be made was sufficient to cure nonfinal nature of dismissal with leave to amend). We believe our holding in this case is fair to both parties. The rule recognizes that a dismissal with leave to amend is not final and appealable, and therefore a plaintiff who attempts to amend would not later be time-barred from appealing. See Czerem-cha, 724 F.2d at 1554-55. On the other hand, where a plaintiff chooses to waive the right to amend, there is nothing left for the district court to do and the order therefore becomes final. The rule is also fair to defendants. If a defendant fears that a plaintiff will unduly prolong litigation by filing amended complaints far into the future, the defendant can move that the district court enter final judgment. In accordance with the above reasoning, we hold that the district court’s order is final and appealable and that Briehler has waived his right to amend any portions of his complaint. This court has jurisdiction and the appeal may proceed. IT IS SO ORDERED. . Although Briehler’s complaint listed many defendants, only the Bayside Appellees were properly served. The time has expired for Briehler to serve any additional parties, and therefore the Bayside Appellees are the only defendants in the case. . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), the Eleventh Circuit Court of Appeals adopted as precedent the decisions of the former Fifth Circuit issued before October 1, 1981. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_origin	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Defendant, Appellant, v. UNITED STATES of America, Plaintiff, Appellee. No. 6143. United States Court of Appeals First Circuit. April 27, 1964. Stuart A. McCarthy, New York City, with whom James P. Lynch, Jr., Boston, Mass., Thomas J. Craig, Jr., Charles W. Muller, New York City, and Nutter, McClennen & Fish, Boston, Mass., were on brief, for appellant. Stanton H. Zarrow, Attorney, Department of Justice, with whom John B. Jones, Jr., Acting Asst. Atty. Gen., Lee A. Jackson and Joseph Kovner, Attorneys, Department of Justice, W. Arthur Garrity, Jr., U. S. Atty., and Murray H. Falk, Asst. U. S. Atty., were on brief, for appellee. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. ALDRICH, Circuit Judge. One Brody, a former resident of Massachusetts, having survived various personal difficulties with the government due to nonpayment of his income tax, cf. Brody v. United States, 1 Cir., 1957, 243 F.2d 378, cert. den. 354 U.S. 923, 77 S.Ct. 1384, 1 L.Ed.2d 1438, disappeared, possibly to Switzerland. He is presumably still alive. He left behind, in addition to this outstanding obligation, two policies of life insurance on his life issued by appellant Equitable Life Assurance Society, the proceeds or value of which the government now seeks to reach, asserting a tax lien thereon under section 6321 of the Internal Revenue Code of 1954. The policies, so far as appears, are in the hands of Brody’s attorney in Florida who, not having Brody’s permission, has declined to give them up. Equitable received the statutory notice of the tax lien in January 1959 and due demand for surrender of all “monies and property” subject thereto in May 1960, but refused any payment, including the accumulated dividends, no separate point of which is made on this appeal, because the policies had not been physically surrendered. This action to obtain payment under 26 U.S.C. § 7403, was instituted in October 1961 against Equitable and Brody in the district court for the district of Massachusetts. Equitable, a New York corporation with its home office in New York, is doing business in Massachusetts. It is not claimed that Brody was domiciled in that state, but his returns had been filed there, which may have suggested this selection. See 28 U.S.C. § 1396. Jurisdiction rests on 28 U.S.C. § 1340. Brody not being found within the state, and his address being unknown, service was made by publication in compliance with the terms of 28 U.S.C. § 1655, infra. No other person was named as a party, or, on the record, could have any interest in the policies. Policy No. 11,653,183 (hereinafter the ’183 policy) was issued to Brody in April 1943 in the face amount of $30,000 on the 15-year endowment plan. This meant that the policy totally “matured,” viz., became payable to the endowment beneficiary, in April 1958. It would also have become payable on the insured’s death had that occurred prior to the endowment maturity. The amount payable in either instance was the face amount, plus any accumulated dividends, less any outstanding indebtedness and interest thereon. If the policy matured as an endowment the payee was the insured, whereas in case of death it was a named beneficiary. The right to change the beneficiary was reserved, and in 1957 Brody designated the Internal Revenue Service as the (revocable) beneficiary. Prior to maturity the insured could, from among other policy rights, elect to surrender the policy, or to borrow against it up to the current “Loan and Surrender Value” pursuant to a table contained in the policy. This table recited the dollar amount of the cash surrender value for each policy year, and stated that the loan value was the same amount minus a prepaid interest deduction computed to the next anniversary date. The reason for the difference is that a loan leaves the policy in force, where as surrendering it terminates the insurance. While the policy did not expressly say so, it has been held that surrendering the policy for its surrender value implies a physical delivery. Kothe v. Phoenix Mut. Life Ins. Co., 1929, 269 Mass. 148, 168 N.E. 737. In connection with paying the matured amount the policy expressly provided for its “surrender.” The policy was written on a single premium basis, which premium was paid when the policy was issued. Policy No. 10,777,528 (hereinafter the ’528 policy) in the face amount of $1,-000, was originally written in a different form, but in 1956 Brody converted it to an endowment policy maturing January 21, 1962, prepaying all premi-urns. The general policy provisions and circumstances, including the naming of the government as beneficiary, were otherwise similar to the ’183 policy. The foregoing facts appearing, the government moved for summary judgment. Equitable resisted on the ground that Brody was an indispensable party, ineffectively served by publication, and that in his absence it was not liable on the policies unless they were physically surrendered, from which it would follow that if it paid now it could be obligated to pay a second time. The court granted the government’s motion and decreed that the liens were foreclosed. It ordered Equitable to pay the government the “cash value and proceeds * * * computed as of the day of payment,” which, while perhaps not precise, served to designate amounts which the company admits it would have owed had Brody then surrendered the policies and demanded payment. It further decreed that upon such payment every obligation of Equitable with respect to the policies would be discharged as to all persons. In its accompanying opinion the court stated that Equitable’s cases of United States v. Massachusetts Mut. Life Ins. Co., 1 Cir., 1942, 127 F.2d 880, hereinafter referred to simply as Mass. Mutual, and United States v. Penn. Mut. Life Ins. Co., 3 Cir., 1942, 130 F.2d 495, had been “discredited” by United States v. Bess, 1958, 357 U.S. 51, 78 S.Ct. 1054, 2 L.Ed. 2d 1135. Equitable appeals. Equitable’s first contention is that under Mass. Mutual the surrender of the policies was an absolute requirement, or condition precedent, to any liability. Mass. Mutual involved an unma-tured policy, and we will defer discussing it until later. The ’183 policy had matured even before the government filed notice of lien, and was absolutely owing except for whatever effect was due the surrender requirement. Under these circumstances the special considerations which moved us in Mass. Mutual do not apply. The provisions for physical surrender of the policy in connection with obtaining the matured value is a mere housekeeping matter to permit the company to tidy up its affairs. As the district court pointed out, an insurance policy is not a negotiable instrument or specialty embodying the obligation. Cf. Rosenthal v. Maletz, 1948, 322 Mass. 586, 593, 78 N.E.2d 652, 1 A.L.R.2d 1022. If the government was otherwise entitled to reach the obligation in this action the company could no more avoid this result by providing for the physical turning over of the policy than could a savings bank by a rule requiring delivery of the bank book. United States v. Manufacturers Trust Co., 2 Cir., 1952, 198 F.2d 366; United States v. Bowery Sav. Bank, 2 Cir., 1961, 297 F.2d 380. This is not to voice disagreement with the principle that in matters of substance the government’s lien cannot rise above the rights of the taxpayer. United States v. Winnett, 9 Cir., 1947, 165 F.2d 149. Considering, accordingly, the matured obligation represented by the ’183 policy as absolutely owing to the insured, the question is whether it can be reached in this proceeding. The government says there is no problem. It concedes that the basic statute, section 7403, supra, fn. 2, made Brody an indispensable party, Macatee, Inc. v. United States, 5 Cir., 1954, 214 F.2d 717; cf. Shields v. Barrow, 1854, 17 How. 130, 139, 15 L.Ed. 158; State of Washington v. United States, 9 Cir., 1936, 87 F.2d 421, 427-28; F.R.Civ.P. 19, but asserts that he was adequately brought in for the purposes of quasi in rem jurisdiction by substituted service complying with the terms of 28 U.S.C. § 1655. The presently pertinent portions of this statute are the following : “In an action in a district court to enforce any lien upon or claim to, or to remove any incumbrance or lien or cloud upon the title to, real or personal property within the district, where any defendant cannot be served within the State, or does not voluntarily appear, the court may order the absent defendant to appear or plead .by a day certain. ***** “If an absent defendant does not appear or plead within-the time allowed, the court may proceed as if the absent defendant had been served with process within the State, but any adjudication shall, as regards the absent defendant without appearance, affect only the property which is the subject of the action. * * ” -.,4 * * * * * The omitted portions are material in connection with the ’528 policy, and will appear infra. The function of this statute, insofar as here relevant, is to give absent nonresident parties claiming an interest in property over which the court seeks to exercise jurisdiction due notice and opportunity to be heard, a fundamental condition not to jurisdiction, but to its assertion. Cooper v. Reynolds, 1870, 10 Wall. 308, 19 L.Ed. 931; Gran-nis v. Ordean, 1914, 234 U.S. 385, 34 S.Ct. 779, 58 L.Ed. 1363; Pennington v. Fourth National Bank, supra, 243 U.S. at 272, 37 S.Ct. 282, 61 L.Ed. 713. Unless the statute is to be read as wholly inapplicable to liens upon intangibles its use here seems peculiarly appropriate. Such liens are clearly given by section 6321 of the 1954 Code, supra, and are enforceable' under 26 U.S.C. § 7403, supra, and there is no other statute which could be invoked where the defendant is outside the jurisdiction. In the absence of any applicable constitutional limitations, we must give the phrase “personal property” in section 1655 the broad meaning necessary to effectuate the scope of these other provisions. It cannot be determinative that historically the principal use of this statute was in connection with liens upon tangible property. Cf. Crichton v. Wingfield, 1922, 258 U.S. 66, 42 S.Ct. 229, 66 L.Ed. 467; Omaha National Bank of Omaha, Neb. v. Federal Reserve Bank of Kansas City, 8 Cir., 1928, 26 F.2d 884, 887-89; United States v. Dallas National Bank, 5 Cir., 1945, 152 F.2d 582; see also Blume, Actions Quasi in Rem Under Section 1655, Title 28, U.S.C., 50 Mich.L.Rev. 1, 20-22 (1951). There are, of course, limits as to what constitutes intangible property, see, e. g., United States v. Long Island Drug Co., 2 Cir., 1940, 115 F.2d 983, but in our opinion any chose of sufficient vitality to support a lien cognizable under section 7403 must equally qualify as property under section 1655. United States v. Metropolitan Life Ins. Co., 4 Cir., 1958, 256 F.2d 17. While, admittedly, the property must be subject to the control of the court, Chase v. Wetzlar, 1912, 225 U.S. 79, 32 S.Ct. 659, 56 L.Ed. 990; compare Hanson v. Denckla, 1958, 357 U.S. 235, 246-250, 78 S.Ct. 1228, 2 L.Ed. 2d 1283, it can hardly be said that the statutory federal lien afforded the district court, upon obtaining in personam jurisdiction of the obligor, any less dominion and control over the property herein than that which was held sufficient to permit state courts to render the judgments examined in such cases as Chicago, R. I. & Pac. Ry. v. Sturm, 1899, 174 U.S. 710, 19 S.Ct. 797, 43 L.Ed. 1144, Harris v. Balk, 1905, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023, and Biggert v. Straub, 1906, 193 Mass. 77, 78 N.E. 770 (garnishment) or Pennington v. Fourth National Bank, supra, and Bragg v. Gaynor, 1893, 85 Wis. 468, 55 N.W. 919, 21 L.R.A. 161 (injunction). But compare Andrews, Situs of Intangibles in Suits Against Nonresident Claimants, 49 Yale L.J. 241, 248-253, 254-261 (1939) (conflicting claim cases). Special questions arise with respect to the ’528 policy. In United States v. Massachusetts Mut. Life Ins. Co., (Mass. Mutual), supra, the defendant insurance company refused to recognize a notice of levy and distraint whereby the government sought to obtain the cash surrender value of an unmatured policy on the life of a defaulting taxpayer. The government thereupon brought an action under section 3710(b) of the Internal Revenue Code of 1939 (now I.R.C. (1954) § 6332(b)) for a “penalty” measured by the value of the “property, or rights to property, subject to distraint * * * ” wrongfully withheld. The defense was that the policy had not been surrendered by the insured. We held for the company. In an opinion carefully analyzing the mutual rights and obligations of the parties under a policy of life insurance we stated, 127 F.2d at 883, that since “the insured has made no application for the cash surrender value and has not surrendered the policy. * * * the insurance company does not now owe the insured the cash surrender value.” Or, as the court said in United States v. Manufacturers Trust Co., supra, 198 F.2d at 368, “the insurance company did not owe [the surrender value] * * * to the insured unless, and until, the insured elected to receive it by relinquishing his other rights under the policy.” This was not to say that the government did not have a lien against the contract. The reverse was there assumed. But where a contract calls for alternative performances, at the obligee’s choice, until the obligee chooses the obligor owes neither. See 1 Williston, Contracts, § 44 at 148 n. 15 (3d ed. Jaeger 1957); 5 Corbin, Contracts, § 1079 at 383-384 (1951); Restatement, Contracts, § 325 (comment a) (1932). In fact a selection of the cash surrender value is more than an ordinary election between two alternative rights. The insurance obligation was already operative. The company would remain liable for that obligation unless some positive action, binding on the insured, could affirmatively terminate it and substitute the alternative promise which, at least until the contract has finally matured, is clearly “inconsistent.” (United States v. Behrens, 2 Cir., 1956, 230 F.2d 504, 506, cert. den. 351 U.S. 919, 76 S.Ct. 709, 100 L.Ed. 1451). Consequently, as the court correctly pointed out in United States v. Penn. Mut. Life Ins. Co., 3 Cir., 1942, 130 F.2d 495, the payment of a “penalty” by the company to the government on the theory that this selection had been accomplished by the levy must leave the company still subject to the primary obligation unless one were to say, which, correctly, the court could not, that the ex parte levy could bind the insured, the one who “possessed” (United States v. Bess, 357 U.S. 51, 56, 78 S.Ct. 1054, 2 L.Ed.2d 1135, infra) the right to elect it. This was not a taking of money in the bank. In other words, what we held in Mass. Mutual was that the government, by merely filing a notice of lien, or by an ex parte attempt to obtain the surrender value by levy, could not exercise the insured’s election for him and make the company’s obligation to pay mature as a debt in “possession.” Not presently owing the surrender value, it was not “in possession of property * * * subject to distraint” in the sense that it could incur the section 3710(b) penalty for failure to respond. There were sound practical reasons for this. The surrender value of a life insurance policy is related to the normal life expectancy of the insured, usually as of the date the policy was purchased. It constitutes the minimum worth of the policy. As we pointed out in Mass. Mutual an insured may be in various degrees of health and have but a short expectancy, making the actual value of his policy much greater. For poor health, or other reasons, he may be not rein-surable at any cost. The government failed in that case precisely for the reason that it could be permitted neither to exercise the insured’s election to surrender the policy and cut off other rights in a procedure which did not afford him and other interested parties the opportunity to protect their interests in the manner provided herein under section 7403 and by section 1655, nor to expose the insurance company to multiple liability, United States v. Penn. Mut. Life Ins. Co., supra. Nor does United States v. Bess, 1958, 357 U.S. 51, 78 S.Ct. 1054, 2 L.Ed.2d 1135, dictate a contrary result. In Bess a delinquent taxpayer died leaving policies of life insurance payable to his widow as beneficiary. Prior to his death the government had filed a notice of lien with the insurance company, but had taken no other action. The total cash surrender values immediately prior to death were relatively small, considerably less than the tax indebtedness, whereas the net proceeds payable to the beneficiary at death were substantially larger. The government attempted to collect the entire tax from the widow. The court held that pursuant to section 3670 (now I.R.C. (1954) § 6321) the government had a lien upon “all property and rights to property” of the insured, but restricted the government’s recovery to the amount of the surrender values as of the time of death. While it is true that the court stated, 357 U.S. at 59, 78 S.Ct. at 1059, 2 L.Ed.2d 1135, that the “surplus of the paid premiums accumulated to make up the cash surrender value should be treated for some purposes as though in fact a ‘fund’ held by the insurer * * * ” this was very carefully not saying it was a fund. It was not a holding that the surrender value was an open debt, and particularly it was not a holding that this value became payable to the government upon its demand. Although the district court’s opinion that the Mass. Mutual line of decisions has been discredited was unwarranted, nonetheless Equitable’s position is not advanced. In the present case the government does not seek to proceed summarily against the company, but has brought a plenary action joining the insured. Had there been personal service on the insured within the jurisdiction no one would question the court’s right to reach the policy. United States v. Bess, supra, 357 U.S. at 57 n. 3, 78 S.Ct. 1054, 2 L.Ed.2d 1135; United States v. Fried, 2 Cir., 1962, 309 F.2d 851. Since the unmatured contract was sufficient to support a lien the government may equally proceed under section 1655. The insured is afforded the opportunity to protect his interests, and by the same token the company is protected against double liability. This right in the insured is far from a theoretical one As we have pointed out, for example, because of an ipsured’s poor health a policy may have a substantial worth beyond its cash surrender value. A sale of the policy may be more advantageous than its surrender. Or arranging for a policy loan in the government’s behalf might be sufficient to meet the tax indebtedness. That the court has scope in affording the insured relief see Schwarz v. United States, 4 Cir., 1951, 191 F.2d 618. If the insured is served only by publication, as in the case at bar, there may be an additional problem not recognized by the court in United States v. Metropolitan Life Ins. Co., supra, and not adverted to by the parties here. We mention it, however, lest our decision be too broadly construed. Section 1655 provides that when any defendant cannot be served within the state, or does not voluntarily appear, an order to appear “ * * * shall be served on the absent defendant personally if practicable, wherever found. * * . Where personal service is not practicable, the order shall be published as the court may direct, not less, than once a week for six consecutive weeks. **** “Any defendant not so personally notified may, at any time within one year after final judgment, enter his appearance, and thereupon the court shall set aside the judgment and permit such defendant to plead on payment of such costs as the court deems just.” This means that an absent defendant who fails to appear and who was not personally served, even though the publication was made can as of right have the judgment vacated within the year. Perez v. Fernandez, 1911, 220 U.S. 224, 31 S.Ct. 412, 55 L.Ed. 443. The right to have the judgment set aside raises no problem where the intangible property on which the government has foreclosed was a simple debt. If the foreclosure was erroneously effected the defendant-claimant, on his learning of it within the year, will merely find that his interest has changed hands, but has not changed in character. If, however, his policy of life insurance has been surrendered, this is a most material change. If the policy cannot be ordered reinstated, a defendant may have suffered irretrievable injury. On the other hand, if the insurance company, an innocent third party, can be compelled to reinstate the contract, there is an obvious danger of “selection,” to use an insurance term, against it. The most likely case where reinstatement will be requested, even, perhaps, by collusion between the other parties, will be where the insured-against loss has occurred. In other words, to foreclose a policy outright where there is an outstanding right to have the judgment vacated leaves open an avenue of unfairness in one direction or another. In these circumstances in the ordinary case where the insured or other parties having possible interests in the policy are not personally served and fail to appear, we might feel it inappropriate to foreclose on the contract to the extent of taking the surrender value directly and terminating the contract. Different considerations apply to enforcing the lien against the loan value. In such a case such maximum loan might be taken as would permit an arrangement under the flexible powers given to the court by section 7403, to continue the policy in force for the year available to reopen the judgment. Such questions, however, need not concern us here, for the ’528 policy matured as a simple debt prior to the decree. The decree, appropriately, spoke as of the date of its entry. For the government to be awarded all of the net proceeds would accordingly effect no damaging change of position nor prevent the restoration of the status quo if Brody should hereafter exercise his right to have the judgment set aside. Judgment will be entered affirming the judgment of the District Court. . “If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount * * * shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.” . Summarizing, subsection (a) “Filing,” provides for an action in the district court “to enforce the lien of the United States under this title with respect to such tax or liability or to subject any property, of whatever nature, of the delinquent, or in which he has any right, title, or interest, to the payment of such tax or liability.” Subsection (b) “Parties,” provides that all persons “claiming any interest” in the property shall be made parties. Subsection (c) “Adjudication and Decree,” provides for an adjudication of all matters involved, and permits a sale of the property by decree of court and distribution in accordance with the interests of the parties. Subsection (d) “Receivership,” permits the court to appoint a receiver with power, inter alia, to enforce the lien. . There could be no new beneficiary, nor any assignment which could affect the company, because the policies required any such change to be made in writing and filed at the home office. Cases cited by the company which have disregarded such provisions as between competing claimants for equitable reasons have not required a company that paid without notice of conflicting claims to pay twice. . It is arguable that any unearned prepaid amounts should he treated differently, with respect to the lien, from the amounts governed by the loan and cash surrender provisions of the policy. See Pyle, Liability of Life Insurance and Annuities for Unpaid Income Taxes of Living Insureds, Annuitants, and Beneficiaries, 9 Tax L.Rev. 205, 325, 337-338 (1954). However, the parties have not discussed this point and we need not pursue it. . Apparently dividends on this policy were to be applied to provide additional paid-up endowment insurance. No explicit disposition or even any mention of such amounts, if any, appears in the record. We do not decide to what extent, if at all, the government’s lien might effectively proscribe the application of dividends to this use. See, generally, Pyle, supra, at 334-335, 340-342. . The district court, and the parties, in speaking of the ’528 policy treated it as unmatured, which it was at the date of the institution of suit. This was the correct approach, because unless the company’s obligations constituted property within the district at that time there could be no basis for quasi in rem jurisdiction. Crichton v. Wingfield, 1922, 258 U.S. 66, 42 S.Ct. 229, 66 L.Ed. 467, see Pennington v. Fourth National Bank, 1917, 243 U.S. 269, 37 S.Ct. 282, 61 L.Ed. 713. By amendment to the complaint, if filed and allowed by the court under F.R..Civ.P. 15(d), (and further publication) the government could have proceeded on the basis that this policy, also, had become fully matured, but no such amendment was filed. The parties apparently wish to treat this as a test case “of concern to * * * the entire insurance industry.” . There are none. Cf. Chicago, R. I. & Pac. Ry. v. Sturm, 1899, 174 U.S. 710, 19 S.Ct. 797, 43 L.Ed. 1144; Harris v. Balk, 1905, 198 U.S. 215, 25 S.Ct. 625, 49 L. Ed. 1023; Biggert v. Straub, 1906, 193 Mass. 77, 78 N.E. 770. Compare Hanson v. Denckla, 1957, 357 U.S. 235, 246-250, 78 S.Ct. 1228, 2 L.Ed.2d 1283. . There is a suggestion in Eguitable’s brief that there are further obstacles in that it “is not organized under the laws of Massachusetts nor is its principal office here.” We could not accept the proposition that a debt or other incorporeal obligation on which the obligor can be sued elsewhere can be restricted for the purposes of section 1655 to the obligor’s domicile. See fn. 7, supra; cf. United States v. First National City Bank, 2 Cir., 1963, 321 F.2d 14. . See I.R.C. (1939) §§ 3670-72, 3690, 3692, 3710(a), now I.R.C. (1954) §§ 6321-23, 6331(a), (b), 6334(c), 6332(a). . The amount of real insurance at any moment during the life of the policy is the difference between the cash surrender value and the face amount. An election to take the cash value prior to maturity is a discharge of the insurance feature of the contract. We cannot agree with the oft-quoted statement in In re McKinney, D.C.S.D.N.Y., 1883, 15 F. 535, 537, that the surrender value “constitutes * * * [an] advance to make up the deficiency in later premiums * * S: the ‘net reserve’ required by law to be kept by the company for the benefit of the assured * * A’.’ Actually the surrender value is less than the reserve which must be maintained against the policy. See Maclean, Life Insurance 181 (8 ed. 1957). Moreover, it represents matters in addition to an advance for payment for future premiums, or it would ultimately decrease as the policy approaches maturity. The fact is, as is illustrated by the within policies and, as we might judicially notice, ordinary life and endowment policies generally, it continuously increases. Returning to the matter of “inconsistency,” it seems clear that upon death the inconsistency between the cash value and the insurance feature of the contract disappears. The company then owes the beneficiary the cash value plus the amount of the true insurance. Consequently, if we may be permitted to say so, as a matter of analysis we would wholly agree with the court in United States v. Bess, 1958, 357 U.S. 51, 78 S.Ct. 1054, 2 L.Ed.2d 1135, infra, that the property of the insured which passes to the beneficiary on death is the surrender value. . Section 3710 of the 1939 Code then under consideration read “in possession of property * * * ” whereas present section 6332 reads “in possession of (or obligated with respect to) property * * This does not change the concept of a present obligation. . It would unnecessarily prolong tliis opinion to consider to wliat extent the governemnt could subject rights in insurance policies to distraint and sale. As the court said in United States v. Stock Yards Bank, 6 Cir., 1956, 231 F.2d 628, at 631, distraint is a “blunt instrument” of sometimes doubtful propriety. For reasons at least indirectly indicated infra, its use in this field may be questionable. For present purposes we point out that if there is a levy and sale, as distinguished from the even blunter assertion of a penalty attempted in Mass. Mutual, the owner of the policy must be given notice. 26 U.S.C. § 6335(b). . It is important to note that we were there, and are here, talking in terms of contractual rights, and surrendering the policy in a contractual sense as distinguished from mere physical delivery. If Brody’s Florida attorney, for example, had complaisantly turned over these policies without authority it would in our view have affected the present case in no particular. Equitable, and companies in other cases, do themselves a disservice, in the sense of beclouding the issues, when they talk in terms of physical surrender. . With the greatest deference, a not strictly accurate characterization. See fn. 10, supra. The surrender value also represents what might be termed a savings factor. . In Bess the policy had matured. Moreover, all parties were before the court. Our decision conflicts with neither the holding, the language, nor the reasoning. The district court’s view, on the other hand, that Mass. Mutual, which was nowhere mentioned, was discredited by Bess leads to peculiar difficulties. In United States v. Salerno, D.C.D.Nev., 1963, 222 F.Supp. 664, the court, relying on the opinion below, held that the government’s notice of levy and demand upon the insurance company for payment found the company with the surrender value in its “possession” to the extent that it became liable to account to the government, and assessed a penalty in the equivalent amount for not paying it over. At the same time the court held that the insurance contract continued in force. It so happened that the insured did not die, or the court might have had more forcefully Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_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". Ray B. SPURGIN, Appellant, v. Fred MIXON, Jr., Appellee. No. 5576. United States Court of Appeals Tenth Circuit. June 12, 1957. Lon Kile, Hugo, OkL, for appellant. James W. Shepherd, Oklahoma City, Old. (James D. Foliart and Jake Hunt, Oklahoma City, Old., on the brief), for appellee. Before PHILLIPS, PICKETT and LEWIS, Circuit Judges. PHILLIPS, Circuit Judge. On August 8, 1956, Spurgin commenced this action against Mixon to recover damages to a tractor of Spurgin, resulting from a collision between such tractor and a trailer tractor of Mixon, in charge of an employee of Mixon, on Highway 66 in the State of Oklahoma, and alleged to have been caused by the negligence of such employee. The trial court sustained a motion for summary judgment on the ground that the action was barred by the Oklahoma two-year statute of limitation. 12 O.S.1951 § 95. Spurgin has appealed. The facts are not in dispute. At all times here material, Mixon maintained a residence at Idabel, in McCurtain County, Oklahoma, where he resided with his family. He did not maintain a residence at any other place. He was engaged in business with his brother as a copartner, under the name of the Mixon Brothers Post Company, at Idabel, where the partnership maintained an office. It never maintained a business office at any other place than Idabel. During the period from July 16, 1954, the date of the collision, until the last of November, 1955, he made trips averaging two per month from Idabel to the State of Arkansas to buy posts. On each trip he left in the morning and returned to Idabel in the afternoon of the same day. During such periods of absence his wife was at his home and residence in Idabel. The trailer tractor was owned by the partnership and the employee in charge of the trailer tractor at the time of the accident was an employee of the partnership. 12 O.S.A. § 98 provides: “Absence or flight of defendant “If, when a cause of action accrues against a person, he be out of the State, or has absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the State, or while he is so absconded or concealed; and if, after the cause of action accrues, he depart from the State, or abscond, or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought.” 12 O.S.A. § 159 provides: “Service—How made “The service shall be made by delivering a copy of the summons to the defendant personally or by leaving one at his usual place of residence with some member of his family over fifteen years of age, at any time before the return day.” It was clearly established by undisputed evidence that during the entire period from July 16, 1954, until August 8, 1956, service of summons could have been made either upon Mixon or by leaving a copy of the summons at his usual place of residence with a member of his family, his wife. Counsel for Spurgin, however, contend that § 98, supra, was adopted from a like statute in Kansas and that under the Kansas decisions, at the time of such adoption, the fact that summons could be served upon the defendant during the period of his absence from the state does not prevent the tolling of the statute of limitations by such absence. However, the Oklahoma decisions have not followed the Kansas decisions. In Knupp v. Hubbard, 130 Okl. 111, 265 P. 133, 135, the court said: “This court in the case of St. Louis & S. F. R. Co. v. Taliaferro, 67 Okl. 37, 168 P. 788, L.R.A. 1918B, 994, said: “ ‘The theory of the statute of limitations is that it operates to bar all actions, except as against persons and corporations upon whom notice of the action cannot be served because of their being out of the state. If such notice can be served during the whole of the prescribed period, and a personal judgment obtained which can be enforced in the mode provided by law, then such person or corporation is not “out of the state” within the meaning of the section,’ ” In Tucker v. Leonard, 144 Okl. 264, 291 P. 124, 133, the court said: “The statute of limitations does not run in favor of a nonresident of the state until summons can be served within the state and a valid personal judgment be had which can be enforced in a mode provided by law.” In Bean v. Rumrill, 69 Okl. 300, 172 P. 452, 458, the court said: “In the case last cited [St. Louis & S. F. Ry. Co. v. Taliaferro, 67 Okl. 37, 168 P. 788, L.R.A.1918B, 994] Mr. Justice Kane holds that the statutes of limitation begin to run from the time when summons can be served within the state and a valid personal judgment had which can be enforced in a mode provided by law.” In Walker v. L. E. Meyers Const. Co., 175 Okl. 548, 53 P.2d 547, 548, the court said: “The test as to whether the statute is tolled or not seems to be whether it is possible at all times to obtain service of process upon a foreign corporation, upon which a personal judgment could be rendered, even though the foreign corporation is absent from the state and a nonresident of the state.” To the same effect see Wynne v. McCarthy, 10 Cir., 97 F.2d 964, 969. Accordingly, we conclude that the statute of limitations was not tolled by Mixon’s temporary absences from the state and that the action was barred by limitation. 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_casetyp1_7-3-4	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 - bankruptcy, antitrust, securities". In re NEW YORK INVESTORS, Inc. RECONSTRUCTION FINANCE CORPORATION v. KELBY et al. No. 299. Circuit Court of Appeals, Second Circuit. July 27, 1942. Root, Clark, Buckner & Ballantine, of New York City (William P. Palmer and Frank L. Dewey, both of New York City, of counsel), for appellants. Max E. Sanders, of New York City, for appellee New York Investors, Inc. Frueauff, Burns & Ruch, of New York City (Clinton J. Ruch and Ross W. Lynn, both of New York City, of counsel), for appellee Charles H. Kelby, trustee in bankruptcy. Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges. AUGUSTUS N. HAND, Circuit Judge. This is an appeal by the Reconstruction Finance Corporation, the largest creditor of the debtor, New York Investors, Inc., from an order denying its application for an allowance. Charles H. Kelby and Clifford S. Kelsey were successively appointed receivers in equity of New York Investors, Inc., and trustees in a proceeding for its reorganization brought under Section 77B, Bankr.Act, 11 U.S.C.A. § 207. After plans for reorganization failed and liquidation became necessary, Charles H. Kelby was appointed trustee in bankruptcy. The question before us is whether the District Court properly denied the application of the RFC for an allowance for its services: (a) in opposing applications for compensation by the receivers in equity and their counsel, and by Edward Endelman, who represented an intervening committee of stockholders in the Prudence Company whose dividends had been guaranteed by New York Investors, Inc.; (b) in opposing the compensation claimed by Lawrence A. Baker, special tax counsel for the receivers, and also the compensation claimed by the trustees and their counsel in the 77B proceeding; (c) in opposing the compensation claimed in the 77B proceeding by counsel for the trustees, by Endelman, and by counsel for the debtor, for work done after December 18, 1938. By taking an appeal and obtaining a modification of the order of the District Court granting allowances to the equity receivers and their counsel and to Mr. Endelman, the RFC saved the estate of New York Investors, Inc., $93,000. The allowances of $23,000 to Endelman were thereby eliminated; and the allowance of $110,-000 to the receivers and their counsel was reduced by $70,000. This was accomplished solely by the efforts of the RFC. The receivers had refused to take any action to review the allowance to Endelman, though requested to do so by the RFC, and the only appeal from the allowances to the trustees, their counsel, or to Endelman was taken by the RFC. As compensation for the work set forth in (a), supra, the RFC asks $15,000, and for that set forth in (b) and (c) it asks $2,500. There can be no doubt that the services of the RFC in keeping down expenses in this as well as in other cases that have come to our attention have been advantageous to creditors. The law as to the proper manner of reviewing allowances to equity receivers and to succeeding trustees, appointed under Section 77B, was rather unsettled during the period following the enactment of Section 77B and required far more study and labor than might be anticipated in view of the apparent narrowness of the issues involved. The work of the RFC in opposing allowances which it deemed excessive continued over a number of years, involved large sums of money, and was extensive. Important results were achieved by its efforts and on the merits substantial compensation was earned. But the District Court denied any compensation because of our recent decisions: In re Porto Rican American Tobacco Co., 2 Cir., 117 F.2d 599; In re Progress Lektro Shave Corporation, 2 Cir., 117 F.2d 602; see also In re Postal Telegraph & Cable Corporation, 2 Cir., 119 F.2d 861; In re Eureka Upholstering Co., 2 Cir., 48 F.2d 95. In these cases we in effect held that it was the duty of a trustee to perform all services requisite to the administration of the estate and that compensation could not be awarded from the estate to others than himself and his duly authorized attorneys’ and agents (1) unless they benefited the estate and (2) unless the trustee refused to act and formal authorization was procured from the court to proceed in his stead. In re Progress Lektro Shave Corporation, 2 Cir., 117 F. 2d at page 604. The cautious procedure of requiring a preliminary order as a condition of later entertaining an application for payment for services at the expense of estates was adopted in order to mitigate, if not completely avoid, the harassing importunities of numerous claimants for allowances out of the property of insolvent debtors, and to relieve the District Courts from the embarrassment of passing upon the merits of claims for compensation after all the services had been performed instead of determining initially whether the services were such as the trustees or their attorneys were bound to perform. The rule we have adopted clearly applies to compensation for all the services mentioned in subdivisions (a), (b) and (c), supra, except those in which the receivers, trustees, or their attorneys may have had personal interests so opposed to those of the creditors that only the latter would be likely to question what was allowed. It is said that the same reasoning should apply to Endelman’s allowances because the trustees refused to appeal from the order allowing them, though they were requested by the RFC to do so. But there was nothing to prevent an application by the RFC to the court for an order directing the trustees to appeal (and they were apparently appropriate persons to do so) or authorizing the RFC to do so in their stead. Under such circumstances, we think an application was necessary before the RFC was entitled to claim any compensation from the estate for appealing Endelman’s allowances. Compensation for opposing allowances to trustees and their counsel stands on a different footing from compensation for opposing allowances to third parties. Trustees cannot be expected to take appeals from their own allowances. They are in a scarcely better position to appeal from allowances to their counsel, who would certainly be unlikely to advise such appeals. It is true that the RFC might have applied to the District Court for an order authorizing it at the expense of the estate to raise objections to excessive compensation to the trustees and their attorneys, and to appeal .from orders awarding too high compensation. But it seems to us that the efficient administration of the estate would have been but little promoted by such a step, even though it might have been better practice to seek a preliminary order. It is true that several creditors may seek compensation for opposing allowances to trustees and their attorneys, and then the very difficulties may arise which an initial order was designed to prevent. But denial of all compensation in a situation like the present entails great hardship to the applicant and brings few advantages to offset this hardship. Where the creditor has not unnecessarily duplicated the efforts of others, and where his services are such as the trustees cannot reasonably have been expected to peform, little difficulty can arise from omitting the requirement. Since this is so, we think that considerable freedom in raising objections, for the benefit of the estate, to allowances which the trustees are unable or most unlikely to question, may wisely be accorded to interested creditors, and we will not here penalize the applicant for a departure from the better practice which appears not to have prejudiced the administration of the estate. Accordingly, the RFC should be compensated for its services in objecting to the allowances of the receivers and their counsel and in securing their reduction by $70,000 through their appeal. They cannot, however, be awarded compensation for services rendered in securing the denial of the allowance to Endelman because of their failure to apply for authority to act in behalf of the estate. Likewise, we think that no compensation should be allowed from the estate for services in respect to items in (b) and (c), supra. Although the RFC may have benefitted the creditors by opposing the claims of the trustees and their attorneys for compensation, which are set forth in (b) and (c), yet it is a mere guess how far, if at all, their efforts increased the sum available for distribution among the creditors and whether had there been no objections on the part of the RFC the court would not have made the same allowances as it did. Only the District Judge could have settled this doubt for only he could have known what affected his judgment in making the awards. On the other hand the saving to the estate by the appeal of $70,-000 originally awarded to the receivers and their counsel is entirely clear. The order will be modified so as to allow the RFC compensation out of the estate for services in opposing and securing the reduction of allowances sought by the trustees and their attorneys and we fix such compensation at the sum of $7,500. Order modified accordingly. Question: What is the specific issue in the case within the general category of "economic activity and regulation - bankruptcy, antitrust, securities"? A. bankruptcy - private individual (e.g., chapter 7) B. bankruptcy - business reorganization (e.g., chapter 11) C. other bankruptcy D. antitrust - brought by individual or private business (includes Clayton Act; Sherman Act; and Wright-Patman) E. antitrust - brought by government F. regulation of, or opposition to mergers on other than anti-trust grounds G. securities - conflicts between private parties (including corporations) H. government regulation of securities Answer:
songer_prejud	A	What follows is an opinion from a United States Court of Appeals. The issue is: "Was there prejudicial conduct by prosecution? (including prosecutor refusing to produce evidence which would aid 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". UNITED STATES of America, Appellee, v. Harry Blake JOHNSON, Appellant. No. 71-1056. United States Court of Appeals, Fourth Circuit. Argued Aug. 31, 1971. Decided Nov. 26, 1971. Robert L. Dolbeare, Richmond, Va. (court-appointed counsel) [Obenshain, Hinnant & Dolbeare, Richmond, Va., on brief] for appellant. Rodney Sager, Asst. U. S. Atty., for the Eastern District of Virginia (Brian P. Gettings, U. S. Atty., on the brief) for appellee. Before BRYAN, CRAVEN, and BUTZNER, Circuit Judges. PER CURIAM: Harry Blake Johnson appeals his conviction of conspiracy and interstate travel in aid of racketeering in violation of 18 U.S.C. §§ 2, 371, and 1952. His principal assignment of error is the district court’s refusal to suppress evidence seized under the authority of a search warrant issued by a state justice of the peace. Johnson contends the evidence should have been excluded because Federal Rule of Criminal Procedure 41(a) requires that the state officer issuing a search warrant be a judge of a court of record. He makes no claim that the warrant or the search and seizure violated the fourth amendment. He relies on Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1948), Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520 (1927), and Navarro v. United States, 400 F.2d 315 (5th Cir. 1968), which hold that where federal officers participate, the search must be conducted according to federal standards. The district court admitted the evidence because in its opinion the federal agents did not participate in the search. The evidence disclosed that an informant told the F.B.I. of gambling operations that had come to his attention. He also notified the state police, who conducted an investigation. The state officers obtained a search warrant, searched the gamblers’ premises, seized and marked the evidence and retained custody of it. They also prosecuted charges against the operators of the gambling establishment in a state court. Later when the federal case was tried, they testified about the search and laid the foundation for the introduction into evidence of the articles that they had seized. Federal agents conferred with the state officers about the investigation, but they did not assist in obtaining the warrant. Three federal agents were present when the state officers searched the premises. They did not, however, join in the search, seize any evidence, or interrogate any suspects. We believe the district judge correctly held that the federal agents were present simply as observers and that they did not participate in the search. Cf. United States v. Coronna, 420 F.2d 1091 (5th Cir. 1970); Stonehill v. United States, 405 F.2d 738 (9th Cir. 1968), cert. denied, 395 U.S. 960, 89 S.Ct. 2102, 23 L.Ed.2d 747 (1969). Johnson also complains that his motion for a severance and mistrial should have been granted after the other defendants changed their pleas to guilty during the trial. We think the court’s instructions to the jury about this unexpected occurrence fully protected Johnson, and we find no abuse of discretion in the denial of the motion. Affirmed. . Federal Kule of Criminal Procedure 41(a) provides: “(a) Authority to Issue Warrant. A search warrant authorized by this rule may be issued by a judge of the United States or of a state, commonwealth or territorial court of record or by a United States commissioner within the district wherein the property sought is located.” Question: Was there prejudicial conduct by prosecution? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_respond2_7_2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). UNITED STATES of America, Appellant, v. Robert P. ANDERSON et al., Appellees. No. 8134. United States Court of Appeals Tenth Circuit. Sept. 30, 1966. See also 34 F.R.D. 518. Kathryn H. Baldwin, Atty., Dept, of Justice (John W. Douglas, Asst. Atty. Gen., Lawrence M. Henry, U. S., Atty., Alan S. Rosenthal, Atty., Dept, of Justice, with her on the brief), for appellant. Benjamin E. Sweet, Denver, Colo. (Ralph E. Crandell, Denver, Colo., with him on brief), for appellees. Before MURRAH, Chief Judge, and PICKETT and HICKEY, Circuit Judges. HICKEY, Circuit Judge. The First National Bank of Englewood, Colorado (Bank) loaned $250,000.-00 to U. S. Durox Corporation of Colorado (Corporation). In order to induce the Bank to make the loan to the Corporation, the appellees, directors of the Corporation, executed an unconditional guarantee to the Bank, its successors or assigns. After default on the obligation, the Bank assigned the note together with all collateral including the unconditional guarantees to the Small Business Administration (SBA), who had joined with the Bank in a participating loan. The directors, who guaranteed the loan, were ousted. A new board was elected and application for reorganization made under Chapter X of the Bankruptcy Act. The ousted directors and the assignee, SBA, objected to the reorganization. Nevertheless, an amended plan which ordered liquidation of the assets was approved by the Bankruptcy Court. SBA, a secured creditor under the plan, bid $250,000.00 for the property under an order of the court to sell the property for cash. After the sale had been approved, SBA applied to the court to permit it to pay $8,000.00 in cash and set off its secured obligation of $242,000.00 as full payment of the property purchased. The Bankruptcy Court refused to allow this method of payment, because it did not provide the necessary cash to pay the cost of administration of the reorganization attempt. The court agreed to permit SBA to set off a portion of the amount secured if it would pay $124,500.-00 in cash to the trustees. This amount was the estimated total of the priority claims in the Chapter X proceeding which included the costs of administration. SBA complied and received title to the property free and clear of all liens or claims against the debtor corporation. The SBA then filed this action against the guarantors, who had induced the loan by their guaranty, claiming $113,668.87 on the guaranteed portion of the loan plus accruing interest as the deficiency. The accountings contained in the record are confusing and do not afford an accurate accounting. The. trial court adjudged the liability to be the amount of principal balance plus interest as of February 6, 1959 (the date of the petition in bankruptcy); the costs and expenses of preservation, including insurance on the property (and interest on the amount of premium), repair of the property and local property taxes; and expenses directly connected with the auction sale including auctioneers. From the sum of these amounts is to be deducted the amount of $250,000.00 to determine the deficiency for which guarantors are now liable. Nowhere in the record can such an accounting be found. The SBA appeals from this judgment complaining that the cost of administering the Chapter X proceedings is a charge which should be made against the guarantors and should be included in the liability adjudged by the trial court. It is uncontroverted that: (1) SBA succeeded as assignee of the secured beneficiaries; (2) that SBA succeeded 'as secured creditor of the mortgage and the note; (3) that SBA became the creditor of the corporation for the balance due on the note; (4) that the guaranties are unconditional agreeing to pay the balance due on the note to the bank or its assignee without requiring the bank or its assignee to pursue or exhaust their rights or remedies against the debtor. The guaranties also provide that when the principal, interest and all other sums payable in accordance with the terms of the note of the debtor are due, payment will be made. The note provides, “the term indebtedness * * * shall mean the indebtedness evidenced by this note, including principal, interest, and expenses, whether contingent, now due or hereafter to become due and whether heretofore or contemporaneously herewith or hereafter contracted. The indebtedness shall immediately become due and payable, without notice or demand, upon * * * the filing of a petition * * * under the provisions of the Bankruptcy Act of 1898 * * The question then is the effect of the participation of SBA in the bankruptcy proceedings, wherein it purchased the property and agreed to pay administrative costs to the trustee, upon the guarantors’ obligation. Taking a broad and more comprehensive view of the entire proceedings, it becomes patent that these bankruptcy transactions can have little effect on the guaranties. Section 34 of the Bankruptcy Act provides that guarantors are not released from liability by a discharge of the bankrupt. Therefore, the reorganization proceedings and the sale to SBA do not have the effect of releasing guarantors from their obligations. The section, however, does not authorize the secured beneficiaries to incur additional expenses by engaging in proceedings other than for collection from the guarantors. The trial court properly found, “On the basis of data now before the Court it is not possible to determine exactly the amount of the guarantors’ liability on a deficiency. The guarantors’ liability consists of: (1) The amount of principal balance as of February 6, 1959, plus interest thereon; (2) the costs and expenses directly attributable to preservation of the collateral, including insurance of the property (and interest on the amount of the premium), repair of the property, and local property taxes; * * * » “The law is settled that a guaranty is a collateral agreement to pay a debt or perform a duty for another in case of default which may be enforced separately from the primary obligation. It is not necessary to proceed against the primary debtor. An unconditional guaranty is one whereby the guarantor agrees to pay or perform a contract upon default of the principal without limitation. It is an absolute undertaking to pay a debt at maturity or perform an agreement if the principal does not pay or perform, (citations omitted). A definition of conditional and unconditional contracts of guaranty and the liability of guarantors under them is well stated by this court in Pavlantos v. Garoufalis, [10 Cir.] 89 F.2d 203, 206, where it is said: * * * ‘An absolute guaranty is an unconditional undertaking on the part of the guarantor that the person primarily obligated will make payment or will perform, and such a guarantor is liable immediately upon default of the principal without notice. * * ’” “As pointed out in Woodstock Bank v. Downer, 27 Yt. 539, supra, it was not necessary to bring an action against the maker of the bonds to charge defendants on their guaranty, nor do we think it was necessary to appear in the bankruptcy proceedings. Plaintiff could have proceeded against defendants without an action against the cement company, and without appearing in the bankruptcy proceedings.” As indicated, supra, the SBA had a clear cause of action against the guarantors immediately after the default occurred and at the time the bankruptcy proceedings were filed. SBA’s participation in the Chapter X proceeding was unnecessary to protect their interest, therefore, the guarantors would not be liable for unnecessary costs incurred in the administration of the attempted reorganization. “As a general rule, a guarantor, even under a conditional guaranty, is not liable for the costs of a suit which was instituted unnecessarily * * ” Therefore, the trial court’s finding that the guarantors were responsible for the obligations represented by the note at the time the petition in bankruptcy was filed is sustained by the law and the evidence, and they cannot be charged with the unnecessary expense of the administration of the Chapter X bankruptcy. Affirmed. . 11 U.S.C. § 34 (1953). . 6A Collier, Bankruptcy, § 11.18 at 694 (1965). . United States v. Anderson, 226 F.Supp. 932, 940 (1964). . Joe Heaston Tractor & Imp. Co. v. Securities Accept. Corp., 243 F.2d 196, 199 (10 Cir., 1957); Duke v. Reconstruction Finance Corp., 209 F.2d 204 (4 Cir., 1954). . Walker v. McNeal, 134 Okl. 111, 272 P. 443, 447 (1928). . Supra, note 4 and contents of note instrument. . 38 C.J.S. Guaranty § 58 at 1215 (1943). Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:
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. ANCHOR BREWING CO. et al. v. UNITED STATES. (Circuit Court of Appeals, Third Circuit. May 27, 1925.) No. 3291. Courts <@=3348 — Equity rule 46 held not to preclude use of transcribed testimony taken on a preliminary hearing. In a suit to enjoin a nuisance under Prohibition Act, tit. 2, § 22 (Comp. St. Ann, Supp. 1923, § !0138%k), where testimony was taken on a motion for preliminary injunction, at which defendants appeared by counsel, introduced testimony, and cross-examined witnesses, but did not appear on the day set for final hearing, equity rule 46, providing that testimony shall be taken orally in open court, heldi not to invalidate a decree granting a permanent injunction on testimony produced by complainant and a transcript of the testimony taken on the preliminary hearing. Appeal from the District Court of the United States for the Western District of Pennsylvania; Frederic P. Sehoonmaker, Judge. Suit in equity by the United States against the Anchor Brewing Company and others. Decree for the United States, and defendants appeal. Affirmed. Oliver K. Eaton and R. P. Tannehill, both of Pittsburgh, Pa., for appellants. Walter Lyon, U. S. Atty., and George Y. Moore and David P. MacQuarrie, Sp. Asst. U. S. Attys., all of Pittsburgh, Pa, Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. BUFFINGTON, Circuit Judge. In the court below the United States, on July 25, 1924, pursuant to section 22 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138%k), filed a bill in equity," accompanied by sustaining affidavits, against the Anchor Brewing Company and certain individuals, praying for an injunction restraining them from. continuance of a nuisance. Thereupon, a temporary injunction was granted. On July 28, 1924, service of the subpcena and of the temporary injunction was accepted by counsel for all defendants, which subpcena provided that defendants were required to file an answer or defense on or before 20 days; “otherwise, the bill may be taken pro eonfesso.” No answer was filed. On August 7, 1924, a hearing was had on the continuance of the temporary injunction, at which defendants were represented by counsel, and witnesses on both sides were sworn, examined, and cross-examined by counsel. The testimony, thus taken viva voce and in the presence of the .court, was reduced to writing, and on August 30, 1924, filed in court. At the conclusion of the hearing on August 7,1924, the court entered an order that, “after hearing the testimony adduced and counsel for both sides, we are convinced that a nuisance exists on the premises set out in the bill of complaint, and that the preliminary injunction should be continued till final hearing.” On September 30, 1924, the case came on for final hearing, at which time the court made this entry in the minutes: “This case was definitely set for final hearing and trial this date, the 30th of September, 1924. This, day was fixed in open court at the time of the preliminary hearing, at which time both the government and the defendants and counsel were present in court. A minute was made in the trial calendar of this court of the fixing of this date, and the case has now come on for final hearing.” The counsel for the defendants, who was in his office, had been called up, but did not appear or ask for any postponement, simply stating that the court had not definitely listed the case for the day, but had said it could not be heard before that day. Thereupon the court proceeded to hear the case. The witnesses who had testified at the hearing of August 7th were on hand, but, as the defendants’ counsel did not and would not appear, the transcript of the testimony of the witnesses taken on the former trial was received in evidence. This included, inter alia, the testimony of the witnesses for the defendant and the cross-examination of the government’s witnesses. Thereupon the court held “the ease was set down for final hearing on the 30th day of September, 1924, at 10 o’clock a. m., at which time the government appeared with counsel and witnesses, and defendants did not appear. From the bill and proofs, we find that the allegations of the bill of complaint are sustained, and that a nuisance as defined by the National Prohibition Act exists on the premises of the defendant as alleged in the bill of complaint.” No steps were taken by defendants or their counsel to explain their absence, or from relief from their default, and on October 1st a formal decree was entered closing the premises. Subsequently the defendants, on October 18th, entered this appeal and have appeared by other counsel, and assign for error, inter alia, that the court erred in entering said final order and decree, when said order and decree was not based on the testimony of any witnesses heard by the court when said cause .came on for final hearing, and that the court erred in receiving the evidence produced at the hearing on August 7th, and that “under the evidence and the pleading the court was without jurisdiction and power to enter its final order and decree of October 1, 1924.” And this result, it is argued, follows because of equity rule 46, which provides: “In all trials in equity the testimony of witnesses shall be taken orally in open court, except as otherwise provided by statute or these rules.” In construing and applying rules, we inquire what mischief they were meant to overcome, and what advantage they were meant to secure. The purpose of this rule was to expedite the work of courts, by requiring the testimony to be taken in open court, where the testimony could be abridged by the rulings of a judge and the delays incident to the uncontrolled range of testimony when taken elsewhere. In the earlier days of this cause, the testimony had been taken in open court, the defendants had all been represented by counsel; the testimony of their witnesses had been taken, the government had examined its witnesses, and the defendants had cross-examined them; all of this testimony had been transcribed and filed, and the same question of injunction came up before the same judge at the final hearing, when the same witnesses were produced by the government for viva voce examination. It is manifest, therefore, that in the taking of the testimony in the earlier state of the case, and in the government’s preparedness to again call the same witnesses for viva voce examination, the spirit and purpose of the rule were met, and would have been carried out literally and exactly, had the defendant by its counsel done its bounden duty and been present in pursuance of the adjournment of the ease made by the court on August 7th. But the defendants made default, and do not now allege that the decree the court made was not justified by the proofs it received, or in view of those proofs that any other decree should now or hereafter be entered. They plant themselves entirely on the literalism of the rule. The entire testimony is before us, and, if permissible, it fully sustains the decree. Moreover, even if the literalism of the rule had compelled the court to call the witnesses and take their testimony viva voce a second time, the cause was ripe for a decree pro con-fesso, for the defendant had filed no answer and under rule 16 of the trial court such decree could be entered; and such being the ease, and this court having the power to remand the ease to the court below, and direct the entry of the decree pro eonfesso nunc pro tunc under rule 16, the court is of opinion that no real error is shown in the decree entered, and it is therefore affirmed. “It shall be the duty of the defendant, unless it shall be enlarged, for cause shown, by a judge of the court, to file his answer or other defense to the bill in the clerk’s office within the timp named in- the subpmna, as required by rule 12. In default thereof, the plaintiff may, at his election, take an order as of course that the bill be taken pro eonfesso, and thereupon the cause shall be proceeded in ex parte.” Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
sc_authoritydecision	G	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. ORTEGA-RODRIGUEZ v. UNITED STATES No. 91-7749. Argued December 7, 1992 Decided March 8, 1993 Stevens, J., delivered the opinion of the Court, in which Blackmun, Scalia, Kennedy, and Souter, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which White, O’ConnoR, and Thomas, JJ., joined, post, p. 252. James R. Gailey argued the cause for petitioner. With him on the briefs were Stewart G. Abrams and Paul M. Rashkind. Amy L. Wax argued the cause for the United States. With her on the brief were Solicitor General Starr, Assistant Attorney General Mueller, and Deputy Solicitor General Bryson. Justice Stevens delivered the opinion of the Court. In United States v. Holmes, 680 F. 2d 1372, 1373 (1982), cert. denied, 460 U. S. 1015 (1983), the Court of Appeals for the Eleventh Circuit held that “a defendant who flees after conviction, but before sentencing, waives his right to appeal from the conviction unless he can establish that his absence was due to matters completely beyond his control.” Relying on that authority, and without further explanation, the court dismissed petitioner’s appeal. Because we have not previously considered whether a defendant may be deemed to forfeit his right to appeal by fleeing while his case is pending in the district court, though he is recaptured before sentencing and appeal, we granted certiorari. 504 U. S. 984 (1992). I In the early evening of November 7,1988, a Customs Service pilot was patrolling the Cay Sal Bank area, located midway between Cuba and the Florida Keys. Approximately 30 miles southwest of Cay Sal, the pilot observed a low-flying aircraft circling over a white boat and dropping bales. The boat, described by the pilot as 40 to 50 feet in length, was circling with the plane and retrieving the bales from the water as they dropped. Because the Customs Service plane was flying at an altitude of 2,500 feet, and visibility was less than optimal, the pilot was unable to identify the name of the boat. United States v. Mieres-Borges, 919 F. 2d 652, 654-655 (CA11 1990), cert. denied, 499 US. 980 (1991); Report and Recommendation in United States v. Ortega-Rodriguez, No. 88-10035-CR-KING (SD Fla., Feb. 23, 1989). The following morning, another Customs Service pilot found the Wilfred, a boat resembling the one spotted approximately 12 hours earlier. This boat, located just off the beach of Cay Sal, was described as a 30- to 40-foot sport-fishing vessel. Upon making this discovery, the pilot first flew to the drop point identified the night before, 30 miles away, and found no activity. Returning to Cay Sal, he found a number of bales stacked on the beach, and the Wilfred underway and headed toward Cuba. The pilot alerted the captain of a Coast Guard cutter, who intercepted, boarded, and searched the Wilfred. He found no narcotics, weapons, or other incriminating evidence on the boat. Nevertheless, the three members of the crew failed to convince the Coast Guard that they were fishing for dolphin, although a large number of similar vessels frequently do so in the area. Mieres-Borges, 919 F. 2d, at 655-657, 659-660. Petitioner is one of the three crew members arrested, tried, and convicted of possession with intent to distribute, and conspiring to possess with intent to distribute, over five kilograms of cocaine. After the trial, the District Court set June 15,1989, as the date for sentencing. Petitioner did not appear and was sentenced in absentia to a prison term of 19 years and 7 months, to be followed by 5 years of supervised release. Though petitioner’s codefendants appealed their convictions and sentences, no appeal from the judgment was filed on petitioner’s behalf. The District Court issued a warrant for petitioner’s arrest, and 11 months later, on May 24, 1990, he was apprehended. Petitioner was indicted and found guilty of contempt of court and failure to appear. Pursuant to the Sentencing Reform Act of 1984, 18 U. S. C. §3551 et seq., the District Court imposed a prison sentence of 21 months, to be served after the completion of the sentence on the cocaine offenses and to be followed by a 3-year term of supervised release. While petitioner was under indictment after his arrest, the Court of Appeals disposed of his two codefendants’ appeals. The court affirmed one conviction, but reversed the other because the evidence was insufficient to establish guilt beyond a reasonable doubt. Also after petitioner was taken into custody, his attorney filed a “motion to vacate sentence and for resentencing,” as well as a motion for judgment of acquittal. The District Court denied the latter but granted the former, vacating the judgment previously entered on the cocaine convictions. The District Court then resentenced petitioner to a prison term of 15 years and 8 months, to be followed by a 5-year period of supervised release. Petitioner filed a timely appeal from that final judgment. On appeal, petitioner argued that the same insufficiency of the evidence rationale underlying reversal of his codefend-ant’s conviction should apply in his case, because precisely the same evidence was admitted against the two defendants. Without addressing the merits of this contention, the Government moved to dismiss the appeal. The Government’s motion was based entirely on the fact that petitioner had become a fugitive after his conviction and before his initial sentencing, so that “fujnder the holding in Holmes, he cannot now challenge his 1989 conviction for conspiracy and possession with intent to distribute cocaine.” In a per curiam order, the Court of Appeals granted the motion to dismiss. II It has been settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal. The Supreme Court applied this rule for the first time in Smith v. United States, 94 U. S. 97 (1876), to an escaped defendant who remained at large when his petition arose before the Court. Under these circumstances, the Court explained, there could be no assurance that any judgment it issued would prove enforceable. The Court concluded that it is “clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render.” Ibid. On two subsequent occasions, we gave the same rationale for dismissals based on the fugitive status of defendants while their cases were pending before our Court. Bohanan v. Nebraska, 125 U. S. 692 (1887); Eisler v. United States, 338 U. S. 189 (1949). Enforceability is not, however, the only explanation we have offered for the fugitive dismissal rule. In Molinaro v. New Jersey, 396 U. S. 365, 366 (1970), we identified an additional justification for dismissal of an escaped prisoner’s pending appeal: “No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims.” As applied by this Court, then, the rule allowing dismissal of fugitives’ appeals has rested in part on enforceability concerns, and in part on a “disentitlement” theory that construes a defendant’s flight during the pendency of his appeal as tantamount to waiver or abandonment. That ensuring enforceability is not the sole rationale for fugitive dismissals is also evident from our review of state provisions regarding escaped prisoners’ pending appeals. In Allen v. Georgia, 166 U. S. 138 (1897), we upheld not only a state court’s dismissal of a fugitive’s appeal, but also its refusal to reinstate the appeal after the defendant’s recapture, when enforceability would no longer be at issue. We followed Allen in Estelle v. Dorrough, 420 U. S. 534 (1975), upholding the constitutionality of a Texas statute providing for automatic appellate dismissal when a defendant escapes during the pendency of his appeal, unless the defendant voluntarily returns within 10 days. Although the defendant in Estelle had been recaptured before his appeal was considered and dismissed, resolving any enforceability problems, there were, we held, other reasons for dismissal. Referring to our own dismissal in Molinaro, we found that the state statute served “similar ends .... It discourages the felony of escape and encourages voluntary surrenders. It promotes the efficient, dignified operation of the Texas Court of Criminal Appeals.” 420 U. S., at 537 (footnotes omitted). Estelle went on to consider whether the Texas statute was irrational because it applied only to prisoners with appeals pending when they fled custody. Citing the “peculiar problems posed by escape of a prisoner during the ongoing appellate process,” id., at 542, n. 11, we concluded that it was not. The distinct concerns implicated by an escape pending appeal justified a special rule for such appeals: “Texas was free to deal more severely with those who simultaneously invoked the appellate process and escaped from its custody than with those who first escaped from its custody, returned, and then invoked the appellate process within the time permitted by law. While each class of prisoners sought to escape, the first did so in the very midst of their invocation of the appellate process, while the latter did so before returning to custody and commencing that process. If Texas is free to adopt a policy which deters escapes by prisoners, as all of our cases make clear that it is, it is likewise free to impose more severe sanctions on those whose escape is reasonably calculated to disrupt the very appellate process which they themselves have set in motion.” Id., at 541-542. Thus, our cases consistently and unequivocally approve dismissal as an appropriate sanction when a prisoner is a fugitive during “the ongoing appellate process.” Moreover, this,rule is amply supported by a number of justifications. In addition to addressing the enforceability concerns identified in Smith v. United States, 94 U. S. 97 (1876), and Bohanan v. Nebraska, 125 U. S. 692 (1887), dismissal by an appellate court after a defendant has fled its jurisdiction serves an important deterrent function and advances an interest in efficient, dignified appellate practice. Estelle, 420 U. S., at 537. What remains for our consideration is whether the same rationales support a rule mandating dismissal of an appeal of a defendant who flees the jurisdiction of a district court, and is recaptured before he invokes the jurisdiction of the appellate tribunal. Ill In 1982, the Government persuaded the Eleventh Circuit that our reasoning in Molinaro should be extended to the appeal of a “former fugitive,” returned to custody prior to sentencing and notice of appeal. The Court of Appeals recognized in Holmes that all of the cases on which the Government relied were distinguishable, “because each involved a defendant who fled after filing a notice of appeal.” 680 F. 2d, at 1373 (emphasis added). The court was satisfied, however, that the disentitlement rationale of Molinaro “is equally forceful whether the defendant flees before or after sentencing.” 680 F. 2d, at 1374. The Eleventh Circuit also expressed concern that absent dismissal, the Government might be prejudiced by delays in proceedings resulting from presentencing escapes. The rule of Holmes differs from that applied in Molinaro in three key respects. First, of course, the Holmes rule reaches defendants who flee while their cases are before district courts, as well' as those who flee while their appeals are pending. Second, the Holmes rule, unlike the rule of Molinaro, will not mandate dismissal of an entire appeal whenever it is invoked. As the Eleventh Circuit explained, because flight cannot fairly be construed as a waiver of appeal from errors occurring after recapture, defendants who flee presentencing retain their right to appeal sentencing errors, though they lose the right to appeal their convictions. 680 F. 2d, at 1373. Finally, as announced in Holmes and applied in this case, the Eleventh Circuit rule appears to call for automatic dismissal, rather than an exercise of discretion. See n. 11, supra. In our view, the rationales that supported dismissal in cases like Molinaro and Estelle should not be extended as far as the Eleventh Circuit has taken them. Our review of rules adopted by the courts of appeals in their supervisory capacity is limited in scope, but it does demand that such rules represent reasoned exercises of the courts’ authority. See Thomas v. Arn, 474 U. S. 140, 146-148 (1985). Accordingly, the justifications we have advanced for allowing appellate courts to dismiss pending fugitive appeals all assume some connection between a defendant’s fugitive status and the appellate process, sufficient to make an appellate sanction a reasonable response. These justifications are necessarily attenuated when applied to a case in which both flight and recapture occur while the case is pending before the district court, so that a defendant’s fugitive status at no time coincides with his appeal. There is, for instance, no question but that dismissal of a former fugitive’s appeal cannot be justified by reference to the enforceability concerns that animated Smith v. United States, 94 U. S. 97 (1876), and the cases that followed. A defendant returned to custody before he invokes the appellate process presents no risk of unenforceability; he is within control of the appellate court throughout the period of appeal and issuance of judgment. Cf. United States v. Gordon, 538 F. 2d 914, 915 (CA1 1976) (dismissing pending appeal of fugitive because it is “unlikely that [the] convicted party will respond to an unfavorable decision”). Similarly, in many cases, the “efficient . . . operation” of the appellate process, identified as an independent concern in Estelle, 420 U. S., at 537, will not be advanced by dismissal of appeals filed after former fugitives are recaptured. It is true that an escape may give rise to a “flurry of extraneous matters,” requiring that a court divert its attention from the merits of the case before it. United States v. Puzzanghera, 820 F. 2d 25, 26 (CA1), cert. denied, 484 U. S. 900 (1987). The court put to this “additional trouble,” 820 F. 2d, at 26, however, at least in the usual course of events, will be the court before which the case is pending at the time of escape. When an appeal is filed after recapture, the “flurry,” along with any concomitant delay, likely will exhaust itself well before the appellate tribunal enters the picture. Nor does dismissal of appeals filed after recapture operate to protect the “digni[ty]” of an appellate court. Cf. Estelle, 420 U. S., at 537. It is often said that a fugitive “flouts” the authority of the court by escaping, and that dismissal is an appropriate sanction for this act of disrespect. See, e. g., United States v. DeValle, 894 F. 2d 133, 138 (CA5 1990); United States v. Persico, 853 F. 2d 134, 137-138 (CA2 1988); Ali v. Sims, 788 F. 2d 954, 958-959 (CA3 1986); United States v. London, 723 F. 2d 1538, 1539 (CA11), cert. denied, 467 U. S. 1228 (1984). Indeed, the premise of Molinaro’s disentitlement theory is that “the fugitive from justice has demonstrated such disrespect for the legal processes that he. has no right to call upon the court to adjudicate his claim.” Ali v. Sims, 788 F. 2d, at 959; see Molinaro, 396 U. S., at 366. We have no reason here to question the proposition that an appellate court may employ dismissal as a sanction when a defendant’s flight operates as an affront to the dignity of the court’s proceedings. The problem in this case, of course, is that petitioner, who fled before sentencing and was recaptured before appeal, flouted the authority of the District Court, not the Court of Appeals. The contemptuous disrespect manifested by his flight was directed at the District Court, before which his case was pending during the entirety of his fugitive period. Therefore, under the reasoning of the cases cited above, it is the District Court that has the authority to defend its own dignity, by sanctioning an act of defiance that occurred solely within its domain. See United States v. Anagnos, 853 F. 2d 1, 2 (CA1 1988) (declining to follow Holmes because former fugitive’s “misconduct was in the district court, and should affect consequences in that court, not in ours”). We cannot accept an expansion of this reasoning that would allow an appellate court to sanction by dismissal any conduct that exhibited disrespect for any aspect of the judicial system, even where such conduct has no connection to the course of appellate proceedings. See supra, at 244, and n. 15. Such a rule would sweep far too broadly, permitting, for instance, this Court to dismiss a petition solely because the petitioner absconded for a day during district court proceedings, or even because the petitioner once violated a condition of parole or probation. None of our cases calls for such a result, and we decline today to adopt such an approach. Accordingly, to the extent that the Holmes rule rests on the premise that Molinaro’s disentitlement theory by itself justifies dismissal of an appeal filed after a former fugitive is returned to custody, see 680 F. 2d, at 1374, it cannot be sustained. Finally, Estelle’s deterrence rationale, 420 U. S., at 537, offers little support for the Eleventh Circuit rule. Once jurisdiction has vested in the appellate court, as in Estelle, then any deterrent to escape must flow from appellate consequences, and dismissal may be an appropriate sanction by which to deter. Until that time, however, the district court is quite capable of defending its own jurisdiction. While a case is pending before the district court, flight can be deterred with the threat of a wide range of penalties available to the district court judge. See Katz v. United States, 920 F. 2d 610, 613 (CA9 1990) (when defendant is before district court, “disentitlement doctrine does not stand alone as a deterrence to escape”). Moreover, should this deterrent prove ineffective, and a defendant flee while his case is before a district court, the district court is well situated to impose an appropriate punishment. While an appellate court has access only to the blunderbuss of dismissal, the district court can tailor a more finely calibrated response. Most obviously, because flight is a separate offense punishable under the Criminal Code, see nn. 3-4, swpra, the district court can impose a separate sentence that adequately vindicates the public interest in deterring escape and safeguards the dignity of the court. In this case, for instance, the District Court concluded that a term of imprisonment of 21 months, followed by three years of supervised release, would serve these purposes. If we assume that there is merit to petitioner’s appeal, then the Eleventh Circuit’s dismissal is tantamount to an additional punishment of 15 years for the same offense of flight. Cf. United States v. Snow, 748 F. 2d 928 (CA4 1984). Our reasoning in Molinaro surely does not compel that result. Indeed, as Justice Stewart noted in his dissenting opinion in Estelle v. Dorrough, 420 U. S., at 544-545, punishment by appellate dismissal introduces an element of arbitrariness and irrationality into sentencing for escape. Use of the dismissal sanction as, in practical effect, a second punishment for a defendant’s flight is almost certain to produce the kind of disparity in sentencing that the Sentencing Reform Act of 1984 and the Sentencing Guidelines were intended to eliminate. Accordingly, we conclude that while dismissal of an appeal pending while the defendant is a fugitive may serve substantial interests, the same interests do not support a rule of dismissal for all appeals filed by former fugitives, returned to custody before invocation of the appellate system. Absent some connection between a defendant’s fugitive status and his appeal, as provided when a defendant is at large during “the ongoing appellate process,” Estelle, 420 U. S., at 542, n. 11, the justifications advanced for dismissal of fugitives’ pending appeals generally will not apply. We do not ignore the possibility that some actions by a defendant, though they occur while his case is before the district court, might have an impact on the appellate process sufficient to warrant an appellate sanction. For that reason, we do not hold that a court of appeals is entirely without authority to dismiss an appeal because of fugitive status predating the appeal. For example, the Eleventh Circuit, in formulating the Holmes rule, expressed concern that a long escape, even if ended before sentencing and appeal, may so delay the onset of appellate proceedings that the Government would be prejudiced in locating witnesses and presenting evidence at retrial after a successful appeal. Holmes, 680 F. 2d, at 1374; see also United States v. Pérsico, 853 F. 2d, at 137. We recognize that this problem might, in some instances, make dismissal an appropriate response. In the class of appeals premised on insufficiency of the evidence, however, in which petitioner’s appeal falls, retrial is not permitted in the event of reversal, and this type of prejudice to the Government will not serve as a rationale for dismissal. Similarly, a defendant’s misconduct at the district court level might somehow make “meaningful appeal impossible,” Holmes, 680 F. 2d, at 1374, or otherwise disrupt the appellate process so that an appellate sanction is reasonably imposed. The appellate courts retain the authority to deal with such cases, or classes of cases, as necessary. Here, for instance, petitioner’s flight prevented the Court of Appeals from consolidating his appeal with those of his codefendants, which we assume would be its normal practice. See United States v. Mieres-Borges, 919 F. 2d, at 654, n. 1 (noting that petitioner is absent and not party to appeal). If the Eleventh Circuit deems this consequence of petitioner’s flight a significant interference with the operation of its appellate process, then, under the reasoning we employ today, a dismissal rule could properly be applied. As this case reaches us, however, there is no reason to believe that the Eleventh Circuit has made such a judgment. Application of the Holmes rule, as formulated by the Eleventh Circuit thus far, does not require the kind of connection between fugitivity and the appellate process that we hold necessary today; instead, it may rest on nothing more than the faulty premise that any act of judicial defiance, whether or not it affects the appellate process, is punishable by appellate dismissal. See Holmes, 680 F. 2d, at 1374; supra, at 246. Accordingly, that the Eleventh Circuit saw fit to dismiss this case under Holmes does not by itself reflect a determination that dismissal would be appropriate under the narrower circumstances we now define. Nor is there any indication in the record below — either in the Government’s motion to dismiss, or in the Eleventh Circuit’s per curiam order — that petitioner’s former fugitivity was deemed to present an obstacle to orderly appellate review. Thus, we have no reason to assume that the Eleventh Circuit would consider the duplication of resources involved in hearing petitioner’s appeal separately from those of his codefendants — which can of course be minimized by reliance on the earlier panel decision in United States v. Mieres-Borges, see supra, at 238, and n. 6—sufficiently disruptive of the appellate process that dismissal would be a reasonable response, on the facts of this case and under the standard we announce today. We leave that determination to the Court of Appeals on remand. In short, when a defendant’s flight and recapture occur before appeal, the defendant’s former fugitive status may well lack the kind of connection to the appellate process that would justify an appellate sanction of dismissal. In such cases, fugitivity while a case is pending before a district court, like other contempts of court, is best sanctioned by the district court itself. The contempt for the appellate process manifested by flight while a case is pending on appeal remains subject to the rule of Molinaro. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. So ordered. The Court of Appeals order merely stated that the Government’s “motion to dismiss is GRANTED,” without actually citing Holmes. App. 78. Because the Government’s motion to dismiss, id., at 68-71, relied entirely on Holmes and on United States v. London, 723 F. 2d 1538 (CA11), cert. denied, 467 U. S. 1228 (1984), which followed Holmes, we construe the Court of Appeals order as a routine application of the Holmes rule. No. 88-10035-CR-KING (SD Fla., June 23, 1989). Title .18 U. S. C. § 401(3) provides: “A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as .. . [disobedience or resistance to its lawful writ, process, order, rule, decree, or command.” Title 18 U. S. C. §3146 provides, in relevant part: “(a) Offense. — Whoever, having been released under this chapter knowingly— “(1) fails to appear before a court as required by the conditions of release; or “(2) fails to surrender for service of sentence pursuant to a court order; shall be punished as provided in subsection (b) of this section. “(b) Punishment. — (1) The punishment for an offense under this section is— “(A) if the person was released in connection with a charge of, or while awaiting sentence, surrender for service of sentence, or appeal or certio-rari after conviction for— “(i) an offense punishable by death, life imprisonment, or imprisonment for a term of 15 years or more, a fine under this title or imprisonment for not more than ten years, or both; “(ii) an offense punishable by imprisonment for a term of five years or more, a fine under this title or imprisonment for not more than five years, or both; “(iii) any other felony, a fine under this title or imprisonment for not more than two years, or both; or “(iv) a misdemeanor, a fine under this chapter or imprisonment for not more than one year, or both; and “(B) if the person was released for appearance as a material witness, a fine under this chapter or imprisonment for not more than one year, or both. “(2) A term of imprisonment imposed under this section shall be consecutive to the sentence of imprisonment for any other offense. “(c) AFFIRMATIVE Defense. — It is an affirmative defense to a prosecution under this section that uncontrollable circumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist.” App. 58-63. United States v. Mieres-Borges, 919 F. 2d 652 (CA11 1990), cert. denied, 499 U. S. 980 (1991). The difference in dispositions is explained by a post-arrest statement admitted against only one defendant, 919 F. 2d., at 660-661, though the dissenting judge viewed the evidence as insufficient as to both appealing defendants, id., at 663-664. Petitioner represents that he is situated identically to the codefendant whose conviction was reversed, with nothing in the record that would support a distinction between their cases. The Government does not take issue with that representation, but maintains that the evidence is sufficient to support all three convictions. Brief for United States 28, n. 7. App. 10. Id., at 51-56. Id., at 57. This sequence of events makes petitioner’s ease somewhat unusual. Had the District Court denied petitioner’s motion for resentenc-ing, petitioner would have been barred by applicable time limits from appealing his initial sentence and judgment. Petitioner was able to file a timely appeal only because the District Court granted his motion to resen-tenee. Entry of the second sentence and judgment, from which petitioner noticed his appeal, is treated as the relevant “sentencing” for purposes of this opinion. We have no occasion here to comment on the propriety of either the District Court’s initial decision to sentence in absentia, or its subsequent decision to resentence. Id., at 70-71. The dissenting Justices in Eisler, noting that the ease was not rendered moot by Eisler’s escape, believed that the Court should have exercised its discretion to decide the merits in light of the importance of the issue presented. See 338 U. S., at 194 (Murphy, J., dissenting); id., at 195 (Jackson, J., dissenting). In United States v. Sharpe, 470 U. S. 675 (1985), despite the respondent’s fugitive status, the Court declined to remand the case to the Court of Appeals with directions to dismiss, and proceeded to decide the merits. Id., at 681, n. 2. See also id., at 688 (Blackmun, J., concurring); id., at 721-723 (Stevens, J., dissenting). For present purposes, the time of sentencing and the time of appeal may be treated together, as the two dates normally must occur within 10 days of one another. See Fed. Rule App. Proc. 4(b); see also n. 9, supra; Torres v. Oakland Scavenger Co., 487 U. S. 312, 314-315 (1988) (discussing mandatory nature of Rule 4 time limits). Cases in which a defendant flees during that 10-day interval will be resolved easily: If the defendant fails to file a timely appeal, his case concludes; if the defendant’s attorney files an appeal for him in his absence, the appeal will be subject to dismissal under straightforward application of Smith and Molinaro. Should a defendant flee after sentencing but return before appeal — in other words, should his period of fugitivity begin after sentencing and end less than 10 days later — then a timely filed appeal would be subject to the principles we apply today. The court reasoned that the right of appeal, purely a creature of statute, may be waived by failure to file a timely notice of appeal “or by abandonment through flight which may postpone filing a notice of appeal for years after conviction.” Holmes, 680 F. 2d, at 1373-1374. The court then explained: “Such untimeliness would make a meaningful appeal impossible in many cases. In case of a reversal, the government would obviously be prejudiced in locating witnesses and retrying the case.” Id,., at 1374. “We hold that a defendant who flees after conviction, but before sentencing, waives his right to appeal from the conviction unless he can establish that his absence was due to matters completely beyond his control. Such a defendant does not waive his right to appeal from any alleged errors connected to his sentencing." Id., at 1373 (emphasis added). The reasonableness standard of Thomas v. Arn, 474 U. S. 140 (1985), is not, however, the only reason we require some connection between the appellate process and an appellate sanction. As the dissent notes, post, at 254, n. 2, Federal Rule of Appellate Procedure 47, which authorizes the promulgation of rules by the courts of appeals, limits that authority to rules “governing [the] practice” before those courts. This case well illustrates the way in which preappeal flight may delay district court, but not appellate court, proceedings. Petitioner’s sentencing was scheduled for June 1989. Because he fled, however, and because the District Court resentenced him upon his return to custody, his final sentence was not entered until January 1991. Supra, at 237-238. Accordingly, petitioner’s 11-month period of fugitivity delayed culmination of the District Court proceedings by as much as 19 months. In the appellate court, on the other hand, the timing of proceedings was unaffected by petitioner’s flight. Had petitioner filed his notice of appeal before he fled, of course, then the Court of Appeals might have been required to reschedule an already docketed appeal, causing some delay 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_appbus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Ingridhutte Kurt WOKAN v. ALLADIN INTERNATIONAL, INC., Appellant. No. 72-2106. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12 (6) July 2, 1973. Resubmitted Under Third Circuit Rule 12(6) Sept.. 12, 1973. Decided Sept. 13, 1973. David S. Malis, Malis, Tolson & Malis, Marvin Krasny, Adelman & Lavine, Philadelphia, Pa., for appellant. Frederich H. Ehmann, Jr., Philadelphia, Pa., for appellee. Submitted Under Third Circuit Rule 12(6) July 2, 1973 Before GIBBONS and HUNTER, Circuit Judges. Resubmitted Under Third Circuit Rule 12(6) Sept. 4, 1973 Before GIBBONS, HUNTER and WEIS, Circuit Judges. OPINION OF THE COURT GIBBONS, Circuit Judge. In this diversity contract action, the defendant, Alladin International, Inc. (Alladin), appeals from the refusal of the district court to set aside a default judgment. The plaintiff, Ingridhutte Kurt Wokan (Ingridhutte), a West German glassware manufacturer, on April 20, 1972, filed a complaint in two counts. The first count sought $3,048.00, the price of goods actually delivered to Alladin. The second count sought $17,498.75 plus interest and storage charges, for goods ordered by Alladin, never delivered, but allegedly specially manufactured and not resalable. Process was served on Alladin’s president on May 2, 1972. Alladin did not respond in any manner, and a default judgment in the amount of $23,495.26 was entered on July 21, 1972. Thereafter, Ingridhutte issued execution attaching Alladin’s bank account at Fidelity Bank. Judgment was entered against the garnishee bank on August 17, 1972, in the amount of $9,796.36. This left an unsatisfied balance on the judgment of $13,698.90. Counsel for Alladin (who is also an officer of the corporation) learned on August 14, 1972, that the account at Fidelity Bank had been attached. That day he called Ingridhutte’s attorney, advising that the funds attached represented money which had been advanced to Alladin by two of his acquaintances for the purpose of permitting Alladin to make a 20% settlement offer to its creditors, and that such a settlement offer had been made to and accepted by Alladin’s creditors other than Ingridhutte. On August 22, Alladin filed a motion pursuant to Fed.R.Civ.P. 55(c) and 60(b) to set aside the default judgment. The first ground asserted for setting aside the default judgment was that it had been entered without notice to Alladin’s counsel, in violation of Rule 55(b) (2). This ground is entirely without merit. From the time the complaint was filed until August 14, 1972, there was no word from, never mind appear^ anee, on behalf of Alladin. See Port-Wide Container Co. v. Interstate Maintenance Corp., 440 F.2d 1195 (3d Cir. 1971). The second ground for setting aside the default judgment was that it resulted from “mistake, inadvertence, surprise, or excusable neglect.” Fed.R. Civ.P. 60(b)(1). Alladin’s moving papers did not dispute that it owed the $3,048.00 referred to in the first count. On a motion to set aside a default or a default judgment, the moving party-must show that he has a meritorious defense. 6 J. Moore, Federal Practice ¶ 55.10[1], at 55-233 (2d ed. 1972). The district court, therefore, properly declined to reopen the judgment on the first count. It did, however, on September 28, 1972, order that the default judgment be opened on the second count, conditioned upon Alladin posting a bond for $14,500.00 to secure the $13,698.90 unsatisfied portion of the judgment, with interest, should Ingridhutte prevail on the merits. Financially embarrassed, Alladin was unable to post any such bond. On October 17, 1972, it moved to set aside the September 28, 1972 order and to set aside the default judgment unconditionally. The district court denied this motion on October 18, 1972, and this appeal followed. We have been advised by counsel that thereafter on November 13, 1972, Alladin filed a petition under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 701 et seq., for an arrangement with its creditors. So far as we know, the Chapter XI proceeding has not resulted in an adjudication in bankruptcy. We are advised that no steps have been taken with respect to the judgment pursuant to Section 67(a) of the Bankruptcy Act, 11 U.S.C. § 107(a). A motion pursuant to Rule 60(b)(1) for relief from a judgment is addressed to the sound discretion of the district court, and we may not disturb that court’s action in the absence of an abuse of discretion. Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir. 1951); Orange Theatre Corp. v. Rayherstz Amusement Corp., 130 F.2d 185, 187 (3d Cir. 1942), cert. denied, 322 U.S. 740, 64 S.Ct. 1057, 88 L.Ed. 1573 (1943). Here the facts relied upon to establish such “mistake, inadvertence, surprise, or excusable neglect” are, to say the least, weak. But the district court held them to be sufficient, and Ingridhutte has not urged by cross appeal that this holding was an abuse of discretion. The sole substantial issue on the appeal is the propriety of the condition to reopening. Rule 60(b) gives the district court explicit authority to impose terms upon the opening of a default judgment. Rarely, however, have the federal courts had occasion to discuss what those terms may be. The few cases which have dealt with the problem are collected in Annot., Propriety of Conditions Imposed in Granting Relief From Judgment Under Rule of Civil Procedure 60(b), 3 A.L.R.Fed. 956 (1970). The condition most commonly imposed is the payment of costs or attorneys fees. E.g., Hendricks v. Alcoa Steamship Co., 32 F.R.D. 169 (E.D.Pa.1963). The imposition of a condition that a bond be posted to secure any judgment is discussed in Thorpe v. Thorpe, 124 U.S.App.D.C. 299, 364 F.2d 692 (D.C.Cir.1966); there the district court entered an order vacating a default on condition that the defendant deposit in a joint savings account for himself and the plaintiff the amount demanded in the complaint, which actually exceeded the amount of the default judgment. The defendant, unable to make such a deposit, appealed. Judge Leventhal wrote: “It may also be appropriate, in some cases, for defendant to be required to post bond to secure the amount of the default judgment pending trial on the merits. However, the condition imposed in this case — that appellant place in a joint bank account, in escrow, not only the amount of the default judgment, but the maximum amount demanded by appellee in her complaint — is unusual, indeed, so far as we can ascertain, unprecedented. It goes beyond placing the parties in the position they were in before the default; it seeks, rather, to place them in the position they were in prior to the action that preceded, and precipitated, the litigation. Assuming, without deciding, that restoring the parties to the status quo ante the alleged wrong is appropriate in some cases, there is no showing of any justification for doing so in this ease. -x- *x- -x- When such an extraordinary condition is approved it must be accompanied by supporting findings to show that it represents a reasonable exercise of discretion. If appellant’s claim that he simply is unable to comply with the condition imposed is true, serious questions are raised, questions having an aura of denial of due process of law. See Societe Internationale, etc. v. Rogers, 357 U.S. 197, 209-210, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958), where the Supreme Court stated, in another context, that imposition of an ‘impossible’ condition of a litigant’s right to a trial on the merits raises constitutional difficulties.” Id. at 694-95. Judge Leventhal’s opinion in Thorpe v. Thorpe, supra, is as close as we have found to an authority in point. The order here, of course, is somewhat different in that it requires security only for the unsatisfied part of the judgment rather than for an amount in excess thereof equal to the original demand. The $9,796.36 obtained from Fidelity Bank was not affected by the order. As to that sum, apparently, it was intended that Alladin run the risk of not getting back any excess over the amount due on the first count if its defense on the second count should prevail. The security required was for the unpaid part of the judgment. We have the same difficulty with this condition to vacating the default as did Judge Leventhal with the condition imposed in Thorpe. We think it perfectly proper for a district court in an appropriate case to impose the condition to vacating a default judgment that the judgment holder not be deprived of any payment or security he has obtained as a result of the judgment. But it is difficult to imagine what set of circumstances would justify the imposition of a condition that the now disputed claim be made more secure than it was prior to the court’s action on the Rule 60(b) motion. There may be such circumstances, but they do not appear in this record. In Thorpe v. Thorpe, supra, the District of Columbia Circuit remanded for findings which might support the unusual condition imposed, and for consideration of other less drastic conditions. Possibly in that domestic dispute circumstances justifying a requirement of pre-judgment security could at a hearing appear. We do not think any such circumstances could appear in this commercial lawsuit. Nevertheless, because the district court’s action under Rule 60(b) is discretionary, we believe a remand is appropriate. As we said earlier, Alladin’s factual showing of “mistake, inadvertence, surprise, or excusable neglect” was rather thin. Quite possibly the court was led to the exercise of discretionary power to reopen in part because of a mistaken belief that the condition of pre-judgment security for the full amount of Ingridhutte’s claim could be imposed on this record. Since we hold otherwise, the district court should have an opportunity to reconsider the motion to vacate the default judgment on the second count. Nothing in this opinion shall be construed as a ruling upon the effect on the default judgment or the garnishment of Fidelity Bank of the Chapter XI proceeding. The case will be remanded to the district court for further proceedings consistent with this opinion. . Although the record is not clear, apparently there were no supersedeas of the garnish-ment judgment and the amount was paid over. . The record does not disclose, and the parties have not advised, whether this appeal is prosecuted by a debtor in possession pursuant to Section 342 of the Bankruptcy Act, 11 U.S.C. § 742, or by a receiver pursuant to Sections 343 and 2(a) (3) of the Act, 11 U.S.C. §§ 743,11 (a) (3). 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_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). FARMERS’ AND MERCHANTS’ BANK, a corporation, Appellant, v. UNITED STATES of America, Appellee. No. 72-1883. United States Court of Appeals, Fourth Circuit. Argued Jan. 8, 1973. Decided April 6, 1973. Thomas N. Chambers, Charleston, W. Va. (Benjamin G. Reeder, Morgantown, W. Va., Louis S. Southworth, II, Charleston, W. Va., Reeder & Shuman, Morgantown, W. Va., and Jackson, Kelly, Holt & O’Farrell, Charleston, W. Va., on brief), for appellant. Charles R. Burnett, Atty., Tax Div., U. S. Dept, of Justice (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Bennet N. Hollander, Attys., Tax Div., U. S. Dept, of Justice, Paul C. Camilletti, U. S. Atty., and James F. Companion, Asst. U. S. Atty., on brief), for appellee. Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and WIDENER, Circuit Judge. ALBERT V. BRYAN, Senior Circuit Judge: A refund of 1964 Federal income taxes was sued for by the Farmers’ and Merchants’ Bank of Morgantown, West Virginia in April 1972, but the District Court sustained the Government in denying the tax benefit on which the bank’s claim rested.- The bank appeals. Its claim, amounting to $36,410.20 plus interest, arose in the computation of the bad debt deduction allowed for income tax purposes. 26 U.S.C. § 166 (Internal Revenue Code of 1954.) Since 1948, with the permission of the Secretary of the Treasury, the bank had utilized the uniform ratio method of calculating its reserve for bad debts, pursuant to 26 U.S.C. § 166(c). The formula for establishing the annual addition to this reserve, it was stipulated, “involved the application of an average loss experience factor for the determination of the ratio of losses to outstanding loans for the taxable year”. For 1964 this factor when based upon the ratio of outstanding loans thought by the bank to be eligible produced for appellant bank $61,066.91, and this sum was therefore deducted from its taxable income. The bank here contends that under a mistaken belief of their ineligibility, loans known as “Federal funds sold”, explained in stipulation 8, infra, amounting to $1,200,000 were omitted from the aggregate outstanding loans in computing its 1964 bad debt reserve; that if this amount had been included, the reserve would have been $133,909.31 instead of $61,066.91, a difference of $72,842.40; and the bank would have then been assessable with $36,410.20 less in taxes — the amount now in suit. The point of this appeal is that the Government in 1964 let some other banks include Federal funds sold as outstanding loans in calculating their bad debt reserve, but without reason denied this privilege to the appellant. It does so by a 1968 Internal Revenue ruling, infra, that allows the benefit of such an inclusion only to a bank which claimed it in its return for a taxable year prior to November 1968. Thus, it refused appellant this privilege because it was not asserted in its 1964 return but, rather, by way of a timely claim for refund filed in 1966. The facts of the case were agreed by the parties and, essentially, the bank’s claim evolved from the following provisions of the stipulation: “8. In March, 1964, officials of Mellon National Bank and Trust Company outlined a procedure to officials of plaintiff known in banking circles as ‘Federal funds sold.’ ‘Federal funds sold’ is a term used to describe a loan from one bank to another which is collaterally secured by United States Government securities owned by the borrower. The loans are normally of short duration, from one to three days in most cases. The purpose of the transaction, in the case of the borrower, usually is to meet reserve requirements and, in the ease of the lender, is to loan excess reserve funds. . “10. The first transaction in ‘Federal funds sold’ by plaintiff occurred in April, 1964. The amount of Federal funds loaned to Mellon during 1964 ranged from a low of $0 to a high of $2,000,000 on October 6, 1964. On December 31, 1964, the bank had outstanding a ‘Federal funds sold’ loan to Mellon in the amount of $1,200,000. “11. ... It was the plaintiff’s intention to add to its bad debt reserve for 1964, and to deduct in arriving at its taxable income for such year the maximum amount allowable under the method or formula prescribed by [the Government formula to establish the reserve]. “16. If this Court should determine that the plaintiff is entitled to include the aforesaid ‘Federal funds sold’ loan of $1,200,000 to Mellon among its eligible loans outstanding for purposes of the formula computation, the plaintiff’s maximum addition to its reserve for bad debts for 1964, is $133,909.31, or a sum of $72,842.40 larger than the maximum addition as computed in its 1964 income tax return. “19. On or about April 9, 1966, the plaintiff filed with the District Director of Internal Revenue for the District of West Virginia, Parkersburg, West Virginia, a claim for refund of 1964 income taxes. . “20. By letter dated January 27, 1969, the District Director of Internal Revenue, Parkersburg, West Virginia, transmitted to plaintiff a copy of an examination report respecting plaintiff’s 1964 and 1965 Federal income tax returns. . . . Said examination report denies plaintiff’s claim for refund of 1964 Federal income taxes in the amount of $36,421.20. The reason given for disallowance of the claim was stated . . . to be that ‘Recently the National Office [of the Internal Revenue Service] ruled that the claim for refund, is not allowable based on Revenue Ruling 68-630.’ .” (Accent added.) The inequity of the Government’s position appears on a reading of Revenue Ruling 68-630. It is said to “clarify” the bad debt reserve computation. The ruling, in effect, declares that the course pursued by the appellant in not including ‘Federal funds sold’ was always the correct course. Nevertheless, the clarification indulges the “incorrect” banks to retain their gains while declining on a procedural point to accord the appellant enjoyment of the same indulgence. The unfairness is compounded by the stipulated fact that 68-630 was promulgated more than two and one-half years after the refund claim was filed — the rules of the game were changed at the end of the contest. Revenue Ruling 68-630 in its apt parts provides as follows: “SECTION 1. PURPOSE. The purpose of this Revenue Ruling is to clarify certain questions regarding the eligibility of items for inclusion in the loan base by banks using the uniform. reserve ratio method of computing annual additions to reserves for bad debts. “SECTION 8. MONEY MARKET INVESTMENTS. Accordingly, it is held that banks using the uniform reserve ratio method .. . must exclude from the loan base upon which annual additions to a reserve are calculated the following money market obligations: (1) ‘Sales’ or ‘loans’ of Federal funds irrespective of the purchaser or borrower. . “SECTION 10. EXTENT OF APPLICATION WITHOUT RETROACTIVE EFFECT. The position stated in this Revenue Ruling clarifies certain questions that have arisen concerning computation of the loan base but does not represent a change in a previously published position of the Internal Revenue Service. It would, therefore, normally be applied to all open taxable years. However, in view of the nature of the deduction for additions to a reserve for bad debts, over-all tax deductions to taxpayers here involved would not be significantly affected by the timing of the application of this Revenue Ruling. Therefore, under the authority of section 7805(b) of the Code, the position stated herein will not be applied by the Service to deductions claimed for taxable years ending on or before November SO, 1968, to the extent that such deductions were based on inclusion of the following items in the loan base (accent added): (4) ‘Sales’ or ‘loans’ of Federal funds. . “The amount of the deduction for an addition to the reserve for bad debts for a taxable year must be based upon the amount contemporaneously entered on the taxpayer’s books during the taxable year, or as soon as practicable after the close of the taxable year, and cannot be subsequently increased.” The Government attempts to salve its discrimination by embracing the discretion vested in the Secretary of Treasury by 26 U.S.C. § 7805 as follows: (b) Retroactivity of regulations or rulings. — The Secretary or his delegate may prescribe the extent, if any, to which any ruling or regulation, relating to the internal revenue laws, shall be applied without retroactive effect.” But here the Secretary abused his discretion, for “The Commissioner cannot tax one and not tax another without some rational basis for the difference”. Justice Frankfurter concurring in United States v. Kaiser, 363 U.S. 299, 308, 80 S.Ct. 1204, 1210, 4 L.Ed.2d 1233 (1960). No rational basis is found here for differentiating between the appellant and the other banks. Fortunately, such use of discretion is reviewable, Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 184, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957), and we decry it. The Government would excuse the arbitrary retroactivity of revenue Ruling 68-630 by saying that it was not a departure from prior rulings, since the Government had never given permission to any bank to use Federal funds sold in calculating a bad debt reserve. But this assertion dissolves on scrutiny. The Government had approved the very method of computing the bad debt reserve followed by the appellant and over the years had deliberately withheld disapproval of Federal funds sold as eligible loan-predicates for fixing bad debt reserves. It was quite aware of this practice and unequivocally tolerated it with full knowledge of its prevalence. That this acquiescence was accepted by the banks, as well as acknowledged by the Government, is evidenced by the need for clarification emphasized in the ruling and by the anointment of the practice for years prior to November 1968. Such a reversal of position, as applied to this taxpayer, is too inequitable to be permissible. Cf. Exchange Parts Company of Fort Worth v. United States, 279 F.2d 251, 254, 150 Ct.Cl. 538 (1960). Added argument against the appellant relies upon the last paragraph in Section 10 of Ruling 68-630, supra, providing that the reserve cannot be “subsequently increased” after the close of the taxable year. True, the appellant does endeavor to increase its 1964 reserve, but not by the injection of a later accrued sum. The addition is simply a correction of previous figures. Surely this is not the kind of increase forbidden in the ruling, for either the Government or the taxpayer may rectify an earlier erroneous return. This again demonstrates that the appellant’s claim was rejected because it was made in the form of a refund request instead of in an original deduction. Finally, the Government suggests that the instant claim should fail because the benefit accruing to the “incorrect” banks will be “washed out in* later years” and that all banks will then be on the same footing. But this is no ground for withholding from this taxpayer the asserted deduction, for the Government’s suggestion is no more than a prediction ■ — one that did not prove true between 1964 and 1968. Moreover, the argument totally ignores appellant’s right to equal treatment for the specific tax year involved. Our mandate will vacate the judgment at trial and direct the District Court to order the refund for which the Farmers’ and Merchants’ Bank of Morgantown sued. Vacated with directions. . See Mimeograph 6209, C.B. 1947-2, 26; modified Rev.Rul. 54-148. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
sc_certreason	K	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. MULLINS COAL CO., INC. OF VIRGINIA, et al. v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, et al. No. 86-327. Argued October 14, 1987 Decided December 14, 1987 Stevens, J., delivered the opinion of the Court, in which, Rehnquist, C. J., and White, Blackmun, O’Connor, and Scalia, JJ., joined. Marshall, J., filed a dissenting opinion, in’which Brennan, J., joined, post, p. 161. Mark E. Solomons argued the cause for petitioners. With him on the brief was John D. Maddox. Michael K. Kellogg argued the cause and filed briefs for the federal respondent in support of petitioners. On the briefs were Solicitor General Fried, Deputy Solicitor General Ayer, Richard G. Taranto, George R. Salem, Allen H. Feldman, and Barbara J. Johnson. David Allen Barnette filed a brief for Westmoreland Coal Co., respondent under this Court’s Rule 19.6, in support of petitioners. C. Randall Lowe argued the cause for respondents and filed a brief for respondent Ray. S. Strother Smith III filed a brief for respondent Stapleton. Grant Crandall, Michael H. Holland, and Patrick Nakamura filed a brief for the United Mine Workers of America as amicus curiae urging affirmance. Robert F. Stauffer filed a brief for the National Coal Association as amicus curiae. Justice Stevens delivered the opinion of the Court. In 1978 the Secretary of Labor promulgated “interim regulations” to govern the processing of claims for black lung benefits filed between July 1, 1973, and April 1, 1980. See 20 CFR pt. 727 (1987). Section 203 of those regulations prescribes five ways in which a claimant may prove that he is entitled to an “interim presumption” of eligibility. The question in this case concerns the burden of proof that the claimant must satisfy to invoke the presumption. The Court of Appeals held, Stapleton v. Westmoreland Coal Co., 785 F. 2d 424 (CA4 1986) (en banc), that a single item of qualifying evidence is always sufficient whereas the Secretary of Labor contends that his regulation requires the claimant to establish at least one of the five qualifying facts by a preponderance of the evidence. Because we are not persuaded that the Secretary has misread his own regulation, we reverse. I Although some aspects of the black lung benefits program are rather complex, its broad outlines and relevant statutory provisions can be briefly described. Prolonged exposure to coal dust has subjected hundreds of thousands of coal miners to pneumoconiosis — a serious and progressive pulmonary condition popularly known as “black lung.” The tragic consequences of this crippling illness prompted Congress to authorize a special program for the benefit of its victims in 1969. Because that program has been developed through several statutory enactments, different rules govern claims filed during different periods of time. Those filed prior to July 1, 1973, were processed by the Social Security Administration (SSA) pursuant to regulations promulgated by the Secretary of the Department of Health, Education, and Welfare (HEW); when allowed, these “Part B” claims were paid from federal funds. “Part C” claims are those filed on or after July 1, 1973; they are paid by private employers or by a fund to which the employers contribute, and they are administered by the Director of the Office of Workers’ Compensation Programs (the Director) pursuant to regulations promulgated by the Secretary of Labor (the Secretary). Part C of the program includes two subparts: claims filed after April 1, 1980, which are governed by “permanent criteria,” and those filed prior to April 1, 1980, which are governed by the “interim regulations” at issue in this case. Despite the “interim” designation, these regulations are extremely important because they apply to about 10,000 pending claims. There is no dispute about the Secretary’s authority to promulgate the interim regulations. Nor is there any suggestion that they violate any express statutory command. The statute does require the Secretary to establish criteria for eligibility that “shall not be more restrictive than” the criteria that the Secretary of HEW had established for the administration of the Part B program, but the Court of Appeals did not hold that § 203 violates this standard. The statute also requires that “all relevant evidence” shall be considered, but it is clear that the regulation is consistent with that requirement — the only dispute is over how much of the relevant evidence may be considered in determining whether the interim presumption shall be invoked. Thus, there is no need to parse statutory language to decide this case. The Court of Appeals’ holding rests, at bottom, on two propositions: (1) the regulation’s plain language mandates that the presumption be invoked on the basis of a single item of qualifying evidence; and (2) the Secretary’s reading is not faithful to the purposes of the program as reflected in its legislative history. We shall consider each of these propositions after reviewing the substance of the regulation and the facts of the one case that presents the legal question we must decide. II Disability benefits are payable to a miner if (a) he or she is totally disabled, (b) the disability was caused, at least in part, by pneumoconiosis, and (c) the disability arose out of coal mine employment. All three of these conditions of eligibility are presumed if the claimant was engaged in coal mine employment for at least 10 years and if the claimant meets one of four medical requirements: (1) a chest X ray establishes the presence of pneumoconiosis; (2) ventilatory studies establish the presence of a respiratory or pulmonary disease — not necessarily pneumoconiosis — of a specified severity; (3) blood gas studies demonstrate the presence of an impairment in the transfer of oxygen from the lungs to the blood; or (4) other medical evidence, including the documented opinion of a physician exercising reasonable medical judgment, establishes the presence of a totally disabling respiratory impairment. It is noteworthy that only the first of the four alternative methods of invoking the presumption requires proof that the claimant’s disease is in fact pneumoconiosis. None of the methods requires proof of causation, and only the fourth requires proof of total disability. The second paragraph in the regulation describes how the presumption may be rebutted. It first provides that in the adjudication of a claim, “all relevant medical evidence shall be considered. ” It then provides that the presumption is rebutted if the evidence establishes that the claimant is doing or is capable of doing his usual or comparable work, that his disability did not arise, even in part, out of coal mine employment, or that he does not have pneumoconiosis. Thus, in order to rebut the interim presumption the employer has the burden of proving that at least one of the three conditions of eligibility is not satisfied. Ill Respondent Ray filed a claim for disability benefits with the Secretary in 1976. At the hearing before the ALJ, he proved that he had 16 years of coal mine employment. The ALJ placed 47 exhibits from the Director’s file into evidence, and the employer introduced four additional exhibits. The record contained one qualifying X-ray interpretation, two qualifying ventilatory studies, and one qualifying physician’s opinion. The record, however, also included seven nonqualifying X-ray interpretations, four nonqualifying ventilatory studies, and five nonqualifying physicians’ opinions. After weighing the X-ray evidence, the ALJ concluded that it did not establish that Ray had pneumoconiosis, and after balancing all the ventilatory studies, he concluded that they did not establish the presence of a chronic respiratory or pulmonary disease. Additionally, the ALJ found that the other medical evidence, including documented physicians’ opinions, did not establish the presence of a totally disabling respiratory or pulmonary impairment. He therefore held that Ray was not entitled to the benefit of the interim presumption. The BRB affirmed the ALJ’s order denying benefits. It first noted that Ray’s “contention that subsection (a)(1) must be invoked where the record contains a single positive X-ray has previously been considered and rejected,” and it agreed with the ALJ’s evaluation of the X-ray evidence and ventilatory studies. Finally, while disagreeing with some of the ALJ’s reasoning, the Board reviewed and approved the ALJ’s weighing of the physicians’ opinions in the employer’s favor. The Court of Appeals remanded for further proceedings. It held that the interim presumption had been invoked under § (a)(2) by the two qualifying ventilatory studies and under § (a)(4) by the one qualifying physician’s opinion. The court did not rely on the positive X-ray interpretation because it was not sufficiently identified to satisfy the requirements for X-ray evidence under §718.102(c) of the Secretary’s regulation. The court reversed the Board’s denial of benefits and remanded for the ALJ to determine whether the presumption had been rebutted. We granted certiorari, 479 U. S. 1029 (1987), to resolve the question presented by this case: whether one item of qualifying evidence is always sufficient to invoke the interim presumption and thereby shift the burden of persuasion to the employer. IV The Court of Appeals held that “the interim presumption under § 727.203(a)(1), (2), or (3) is established when there is credible evidence that a qualifying X-ray indicates the presence of pneumoconiosis, a single qualifying set of ventilatory studies indicates, pursuant to the regulatory standard, a chronic respiratory or pulmonary disease, or a single qualifying set of blood gas studies indicates, pursuant to the regulatory standard, an impairment in the transfer of oxygen from the lungs to the blood.” 785 F. 2d, at 426. The principal basis for this holding was the court’s view that the plain language of the regulation makes it clear that a single positive X ray necessarily invokes the presumption. In advancing that view, however, the court did not pause to consider the significance of the word “establishes” in § (a)(1). It read § (a)(1) as though it merely required a chest X ray that constitutes evidence of the presence of pneumoconiosis rather than one that actually “establishes” the presence of the disease. The Secretary’s regulations, however, recognize the difference between an X ray that tends to prove the presence of pneumoconiosis and one that can be said to establish it. Thus, in contrast to the use of the word “establishes” throughout § 727.203(a), the regulation defining the suitable quality of X-ray evidence refers to an X ray that “shall constitute evidence of the presence or absence of pneumoconiosis.” The Court of Appeals read § 203(a)(1) as though it merely required an X ray that “constitutes evidence of the presence of pneumoconiosis.” Had that been the Secretary’s intent, presumably he would have used that language as he did elsewhere to explain that meaning. There is another reason why § (a)(1) cannot have been intended to refer to a single item of evidence. For the ordinary trier of fact — even an ALJ who has heard many black lung benefit cases — an X ray may well be meaningless unless it is interpreted by a qualified expert. What may be persuasive to the ALJ, then, is not just the X ray itself, but its interpretation by a specialist. And, of course, different experts may provide different readings of the same X ray. As Judge Posner has observed: “Under the regulation it is not the reading, but the X-ray, that establishes the presumption. If one doctor interprets an X-ray as positive for black-lung disease but 100 equally qualified doctors interpret the same X-ray as negative for the disease, nothing in the regulation requires the administrative law judge to disregard the negative readings.” Cook v. Director, Office of Workers’ Compensation Programs, 816 F. 2d 1182, 1185 (CA7 1987). Thus, it seems perfectly clear that it is not the X ray in isolation that “establishes” the presence of the disease; rather, the regulation must, at a minimum, have reference both to the X ray itself and to other evidence that sheds light on the meaning and significance of the X ray. Just as the ALJ must weigh conflicting interpretations of the same X ray in order to determine whether it tends to prove or disprove the existence of pneumoconiosis, there would seem to be no reason why he must ignore all X rays in a series except one. The Court of Appeals relied in large part on perceived internal inconsistencies in the Secretary’s interpretation. In the rebuttal section, the regulation provides that in “adjudicating a claim under this subpart, all relevant medical evidence shall be considered.” The Court of Appeals interpreted this statement as requiring all relevant evidence to be considered on rebuttal. Since the Secretary’s reading would make some evidence inadmissible for certain aspects of rebuttal, the Court of Appeals thought that reading violated the requirement that “all relevant medical evidence shall be considered.” We disagree, for two reasons. First, nothing in the Secretary’s position prevents “all relevant medical evidence” from being considered at some point during the proof process. To understand why this requirement was inserted at the beginning of the rebuttal section, it is important to understand its derivation. After the SSA adopted its interim presumption, its claims approval rate increased, in part due, it is thought, to factfinders failing to consider all of the employers’ relevant medical evidence. To assure that this problem would not infect adjudications under the new Labor interim presumption, the requirement of 30 U. S. C. § 923(b) that all relevant medical evidence be considered in adjudicating SSA claims was explicitly carried over into the Labor presumption’s rebuttal section. Thus, that the “all relevant medical evidence” requirement appears at the beginning of the rebuttal section reflects the genesis of the concern and does not indicate that the drafters intended a more limited evidentiary battle at the invocation stage. As long as relevant evidence will be considered at some point by the AL J, the demand that the decision be made on the complete record is satisfied. Second, the cited provision refers to “adjudicating a claim under this subpart,” and a “subpart” “may be used to group related sections in a part.” 1 CFR § 21.9(b) (1987). All of 20 CFR § 727.203 (1987), the interim presumption, is within subpart C of part 727. Thus, nothing in the regulation requires all relevant medical evidence to be considered at the rebuttal phase; such evidence must simply be admissible at some point during the proof process. The Court of Appeals was persuaded as well that some of the rebuttal provisions would be superfluous under the Secretary’s reading. For instance, if the claimant invokes the presumption by establishing the existence of pneumoconiosis under § (a)(1), the employer may not try to disprove pneumoconiosis under § (b)(4). This limitation on rebuttal, according to the Court of Appeals, renders the Secretary’s position internally inconsistent. Again, we are constrained to disagree. Nothing in the regulation requires each rebuttal subsection to be fully available in each case. As long as the employer can introduce, say, nonqualifying X rays at the invocation stage to oppose invocation under § (a)(1), it has been given the chance to show the nonexistence of pneumoconiosis. If the presumption is nonetheless invoked, the employer can still try to disprove total disability or causality. Finally, there is some concern that the Secretary’s position might permit a single negative X-ray interpretation to carry the day for the employer, in violation of the statute’s mandate that “no claim for benefits . . . shall be denied solely on the basis of the results of [an X ray].” § 923(b) (made applicable to Part C adjudications through § 902(f)(2)). The easy answer was provided by the dissent below: “a single negative X-ray may not... be drawn upon either as the sole basis for finding the invocation burden under (a)(1) not carried nor as the sole basis for finding the rebuttal burden under (b)(4) carried.” 785 F. 2d, at 445 (emphases added). Furthermore, in weighing conflicting X-ray readings ALJs will undoubtedly keep in mind the character of the black lung disease: “Since pneumoconiosis is a progressive and irreversible disease, early negative X-ray readings are not inconsistent with significantly later positive readings. . . . This proposition is not applicable where the factual pattern is reversed. In a situation . . . where the more recent X-ray evidence is negative and directly conflicting with earlier positive X-rays it may be weighed with less regard to timing in light of the recognized principle that negative X-ray readings are not a trustworthy indicator of the absence of the disease.” Elkins v. Beth-Elkhorn Corp., 2 BLR 1-683, 1-686 (Ben. Rev. Bd. 1979). In sum, we find the Secretary’s interpretation of his own regulation entirely consistent with its text. V The Court of Appeals’ holding that a single item of qualifying evidence always suffices to carry a claimant’s invocation burden was based in part on its understanding of the legislative history of the black lung benefits statutes. 785 F. 2d, at 457-461. This conclusion is based on the clear congressional mandate for interim presumptions to reduce the number of benefit denials by both the SSA and Labor. While we agree that Congress did intend to ensure fewer benefit denials, we are not persuaded either that that goal has been frustrated by the Secretary’s interpretation of the regulation, or that Congress intended more specifically to require invocation of the presumption based solely on one item of a claimant’s proof. In the early years of the benefits program, the SSA denied a high number of claims because of a perceived lack of proof of totally disabling pneumoconiosis due to coal mine employment. Congress mandated liberalized standards, and the SSA established an interim presumption to carry out this directive. § 410.490(b). In so doing, the SSA explained the problems with the prior scheme and the virtues of the new one: “In enacting the Black Lung Act of 1972, the Congress noted that adjudication of the large backlog of claims generated by the earlier law could not await the establishment of facilities and development of medical tests not presently available to evaluate disability due to pneumoconiosis, and that such claims must be handled under present circumstances in the light of limited medical resources and techniques. Accordingly, the Congress stated its expectancy that the Secretary would adopt such interim evidentiary rules and disability evaluation criteria as would permit prompt and vigorous processing of the large backlog of claims consistent with the language and intent of the 1972 amendments and that such rules and criteria would give full consideration to the combined employment handicap of disease and age and provide for the adjudication of claims on the basis of medical evidence other than physical performance tests when it is not feasible to provide such tests. The provisions of this section establish such interim evidentiary rules and criteria. They take full account of the congressional expectation that in many instances it is not feasible to require extensive pulmonary function testing to measure the total extent of an individual’s breathing impairment, and that an impairment in the transfer of oxygen from the lung alveoli to cellular level can exist in an individual even though his chest roentgenogram (X-ray) or ventilatory function tests are normal.” § 410.490(a). The SSA implemented this congressional desire to ease claimants’ proof burdens by promulgating the interim presumption that serves as the antecedent to the one at issue in this case. The presumption, applicable to claims filed with the SSA before July 1, 1973, provides that a miner is presumed to be totally disabled due to pneumoconiosis if two conditions are met: First, either “[a] chest . . . X-ray . . . establishes the existence of pneumoconiosis” or “[i]n the case of a miner employed for at least 15 years in underground or comparable coal mine employment, ventilatory studies establish the presence of a chronic respiratory or pulmonary disease. . . .” § 410.490(b)(1); second, “[t]he impairment established in accordance with [either of these medical requirements] arose out of coal mine employment.” § 410.490(b)(2). Additionally, “a miner who meets the [ventilatory studies] medical requirements . . . will be presumed to be totally disabled due to pneumoconiosis arising out of coal mine employment . . . if he has at least 10 years of the requisite coal mine employment.” § 410.490(b)(3). The SSA’s interim rules further provide that the presumption can be rebutted if either “[t]here is evidence that the individual is, in fact, doing his usual coal mine work or comparable and gainful work” or “[o]ther evidence, including physical performance tests . . . , establishes] that the individual is able to do his usual coal mine work or comparable and gainful work.” § 410.490(c). As the SSA’s claims approval rate increased, Labor’s remained low, in large part because of the absence of an interim presumption by which a claimant would only have to prove one predicate fact. The interim presumption at issue in this case, promulgated as a result of congressional dissatisfaction with Labor’s low claims approval rate, is substantially similar to the SSA interim presumption. It satisfies Congress’ demand that Labor’s criteria “shall not be more restrictive than the criteria applicable to a claim filed on June 30, 1973,” 30 U. S. C. § 902(f)(2), i. e., no more restrictive than the SSA’s interim presumption. Since Labor’s interim presumption derived so directly from the SSA’s, if the Court of Appeals’ conclusion regarding single-item invocation were correct, one would expect to find SSA AL J decisions permitting invocation in such a manner, and federal court opinions indicating approval. Instead, federal court decisions routinely referred to SSA AL J invocation weighings without objection, and often with explicit approval. Thus, the legislative history of the Labor interim presumption does not establish that invocation must occur on a single piece of qualifying evidence. VI Under either the Court of Appeals’ or the Secretary’s interpretation of the regulation, a single item of qualifying evidence may be sufficient to invoke the presumption. Indeed, the authors of the regulation apparently expected that the presumption would regularly be invoked on the basis of a single item of qualifying evidence. Reasoning from that expectation, the Court of Appeals concluded that the presumption must be invoked whenever the record contains a single item of qualifying evidence. But as we have demonstrated above, that conclusion is compelled by neither the text nor the history of the regulation. Nor is it compelled by the underlying basis for the presumption. For black lung benefits presumptions, no less than any presumption established or recognized in law, are the product of both factual understandings and policy concerns. As a matter of fact, Congress could reasonably have concluded that it is highly probable that a person who engaged in coal mine employment for over a decade is totally disabled as a result of pneumoconiosis arising from that employment if he or she can prove any of the medical requirements specified in the regulation. That degree of probability is not, however, present when the claimant is merely in a position to offer a single item of qualifying evidence that is overcome by more reliable conflicting evidence. As a matter of policy, Congress was aware that it is difficult for coal miners whose health has been impaired by the insidious effects of their work environment to prove that their diseases are totally disabling and coal mine related, or that those diseases are in fact pneumoconiosis. Rather than merely providing a benefit for those miners who could prove each of the relevant facts by a preponderance of the evidence, Congress intended that those long-term miners who can show that they are truly diseased should have to prove no more. But if a miner is not actually suffering from the type of ailment with which Congress was concerned, there is no justification for presuming that that miner is entitled to benefits. For not only does that miner fall outside the class of those who need the assistance of an interim presumption, but he also is unlikely to be totally disabled from coal mine employment. By requiring miners to show that they suffer from the sort of medical impairment that initially gave rise to congressional concern, and then by requiring employers to shoulder the remainder of the proof burden, the Secretary’s reading of the interim presumption’s invocation burden satisfies both the purposes of the statute and the need for a logical connection between the proven fact and the presumed conclusion. In the end, the Secretary’s view is not only eminently reasonable but also is strongly supported by the fact that Labor wrote the regulation. The agency’s interpretation, which is deserving of substantial deference “unless it is plainly erroneous or inconsistent with the regulation,” Bowles v. Seminole Rock & Sand Co., 325 U. S. 410, 414 (1945), has been, with one exception, consistently maintained through Board decisions. Likewise, prior to the Court of Appeals decision in this ease, the Courts of Appeals had routinely reviewed for substantial evidence the factfinder’s invocation determination under a preponderance-of-the-evidence standard. Accordingly, there is no reason to downgrade the normal deference accorded to an agency’s interpretation of its own regulation. Cf. Motor Vehicle Mfrs. Assn. of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U. S. 29 (1983). The judgment of the Court of Appeals is reversed, and the ease is remanded for further proceedings consistent with this opinion. It is so ordered. Title IV of the Federal Coal Mine Health and Safety Act of 1969, 83 Stat. 792, 30 U. S. C. § 801 et seq., was amended by the Black Lung Benefits Act of 1972, 86 Stat. 150, 30 U. S. C. §901 et seq., the Black Lung Benefits Revenue Act of 1977, 92 Stat. 11, the Black Lung Benefits Reform Act of 1977, 92 Stat. 95, the Black Lung Benefits Amendments of 1981, 95 Stat. 1643, the Black Lung Benefits Revenue Act of 1981, 95 Stat. 1635, and the Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. 99-272, § 13203(a)(d), 100 Stat. 312, 313. Part B of the Act is codified at 30 U. S. C. § 921 et seq. Part C is codified at 30 U. S. C. § 931 et seq. See 20 CFR pt. 718 and § 725.4(a) (1987). See 30 U. S. C. § 902(f)(1). As the Court of Appeals noted: “The statute... leaves to the Secretary how the presumption is to be triggered and rebutted and how the various burdens of persuasion and production are to be allocated between the claimant and the employer.” Stapleton v. Westmoreland Coal Co., 785 F. 2d 424, 433 (CA4 1986) (en banc). See 30 U. S. C. § 902(f)(2). The statute provides, in part: “In carrying out the provisions of this part, the Secretary shall to the maximum extent feasible (and consistent with the provisions of this part) utilize the personnel and procedures he uses in determining entitlement to disability insurance benefit payments under section 223 of the Social Security Act [42 U. S. C. §423], but no claim for benefits under this part shall be denied solely on the basis of the results of a chest roentgenogram [X ray]. In determining the validity of claims under this part, all relevant evidence shall be considered, including, where relevant, medical tests such as blood gas studies, X-ray examination, electrocardiogram, pulmonary function studies, or physical performance tests, and any medical history, evidence submitted by the claimant’s physician, or his wife’s affidavits, and in the case of a deceased miner, other appropriate affidavits of persons with knowledge of the miner’s physical condition, and other supportive materials.” § 923(b) (emphasis added). The Court of Appeals was of the view that the regulation itself requires all relevant evidence to be considered on rebuttal, and that the Secretary’s reading violated this requirement. See infra, at 149. To the extent that the presumption is made irrebuttable under the Secretary’s reading, see infra, at 149-150, and n. 26, the court thought the statutory requirement that “all relevant evidence” shall be considered violated as well. See 785 F. 2d, at 434. This conclusion is clearly incorrect, for the same reasons that the court’s conclusion regarding the regulation is incorrect. See infra, at 149-150. In short, the opportunity, under the Secretary’s reading, to present relevant evidence at the invocation stage, satisfies the statutory requirement that “all relevant evidence” shall be considered. The resolution of the legal question apparently will not affect two of the individual respondents. Even though the Administrative Law Judge (ALJ) concluded that respondent Gerald R. Stapleton had properly invoked the interim presumption, he also concluded that it had been rebutted. The Court of Appeals majority agreed with that analysis, and the dissent, adopting the Secretary’s approach, agreed with the result on the ground that the presumption should not have been invoked. For respondent Glenn Cornett, the ALJ found that the presumption had been properly invoked and that it had not been rebutted. Both the majority and the dissent agreed with those conclusions. With respect to respondent Luke R. Ray, however, the majority disagreed with the ALJ’s determination that the presumption had not been properly invoked, and remanded for a determination whether the presumption was rebutted. The dissent agreed with the ALJ, and would have affirmed the denial of benefits. We think it helpful at this point to add a note about the posture of the parties to this case. The petitioners, who filed a joint petition pursuant to this Court’s Rule 19.4, are Mullins Coal Co., the Old Republic Insurance Co., and Jewell Ridge Coal Corp. Mullins and Jewell Ridge employed, respectively, respondents Cornett and Ray, both of whom were victorious before the Court of Appeals, but only one of whom, Ray, has filed a brief in this Court. Old Republic is Mullins’ black lung benefits insurance carrier. In addition to Cornett and Ray, respondents are: the Director, Office of Workers’ Compensation Programs, who administers the Department of Labor’s (Labor) black lung benefits program and whose brief lays out the Secretary’s position challenging the Court of Appeals’ conclusion regarding a claimant’s invocation burden; Gerald R. Stapleton, whose benefits denial was affirmed by the Court of Appeals, see Stapleton v. Westmoreland Coal Co., supra, and who attacks that judgment as a respondent pursuant to Rule 19.6; and Westmoreland Coal Co., who employed Stapleton and is thus happy with the result below, but who is unhappy with the ramifications of the Court of Appeals’ decision and has accordingly filed a brief in support of petitioners, also pursuant to Rule 19.6. A fifth alternative, available in a death benefit claim, is not at issue in this case. See 20 CFR § 727.203(a)(5) (1987), quoted in n. 10, infra. The full text of § 727.203(a) reads as follows: “(a) Establishing interim presumption. A miner who engaged in coal mine employment for at least 10 years will be presumed to be totally disabled due to pneumoconiosis, or to have been totally disabled due to pneumoconiosis at the time of death, or death will be presumed to be due to pneumoconiosis, arising out of that employment, if one of the following medical requirements is met: “(1) A chest roentgenogram (X-ray), biopsy, or autopsy establishes the existence of pneumoconiosis (see §410.428 of this title); “(2) Ventilatory studies establish the presence of a chronic respiratory or pulmonary disease (which meets the requirements for duration in § 410.412(a)(2) of this title) as demonstrated by values which are equal to or less than the values specified in the following table: Equal to or less than— FEV MW 2.3 92 67" or less . 2.4 96 68"........... 2.4 96 69"........... 2.5 100 70"........... 2.6 104 71"........... 2.6 104 72"........... 2.7 108 73" or more “(3) Blood gas studies which demonstrate the presence of an impairment in the transfer of oxygen from the lung alveoli to the blood as indicated by values which are equal to or less than the values specified in the following table: Arterial pCOz equal to or less than (mm.Hg.) Arterial pO¡ 30 or below.................................................. 70 31............................................................... 69 32............................................................... 68 33............................................................... 67 34..... 66 35..... 65 36..... 64 37..... 63 38..... 62 39..... 61 40-45 60 Above 45 ..................................................... Any value. “(4) Other medical evidence, including the documented opinion of a physician exercising reasoned medical judgment, establishes the presence of a totally disabling respiratory or pulmonary impairment; “(5) In the case of a deceased miner where no medical evidence is available, the affidavit of the survivor of such miner or other persons with knowledge of the miner’s physical condition, demonstrates the presence of a totally disabling respiratory or pulmonary impairment.” The full text of § 727.203(b) reads as follows: “(b) Rebuttal of interim presumption. In adjudicating a claim under this subpart, all relevant medical evidence shall be considered. The presumption in paragraph (a) of this section shall be rebutted if: “(1) The evidence establishes that the individual is, in fact, doing his usual coal mine work or comparable and gainful work (see § 410.412(a)(1) of this title); or “(2) In light of all relevant evidence it is established that the individual is able to do his usual coal mine work or comparable and gainful work (see § 410.412(a)(1) of this title); or “(3) The evidence establishes that the total disability or death of the miner did not arise in whole or in part out of coal mine employment; or “(4) The evidence establishes that the miner does not, or did not, have pneumoconiosis.” Petitioners agree that the employer’s rebuttal burden is one of proof as well as production. The Secretary also takes the position that the presumption should be invoked in cases of “true doubt” — that is, if the claimant’s and employer’s invocation evidence is of equal weight. Brief for Federal Respondent 33, 39. This position ensures that the employer will win, on invocation or rebuttal, only when its evidence is stronger than the claimant’s. The Benefits Review Board (BRB) “has consistently upheld the principle that, where true doubt exists, that doubt shall be resolved in favor of the claimant.” Lessar v. C. F. & I. Steel Corp., 3 BLR 1-63, 1-68 (1981). Medical evidence is initially submitted to the Director by the claimant and the employer, and through examinations and tests ordered by the Director himself. See §§ 725.2(b) and 725.404 et seq. When a hearing is requested or ordered, all evidence previously submitted to the Director becomes part of the hearing record. See § 725.421(b)(4). The Court of Appeals used the term “qualifying” to refer to positive medical evidence that would suffice, absent contrary evidence of the same type, to invoke the presumption. For example, an X ray that disclosed pneumoconiosis (§ (a)(1)) or ventilatory studies that revealed a respiratory or pulmonary impairment of sufficient magnitude (§ ( Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:
songer_fedlaw	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. UNITED STATES of America, Appellee, v. Michael J. WYMAN, Appellant. No. 83-1551. United States Court of Appeals, Eighth Circuit. Submitted Nov. 15, 1988. Decided Jan. 10, 1984. Edward D. Hotz of Hotz, Kizer & Jahn, P.C., Omaha, Neb., for appellant. Ronald D. Lahners, U.S. Atty., D. Neb. and Bernard J. Glaser, Jr., Asst. U.S. Atty., D. Neb., Omaha, Neb., for appellee. Before LAY, Chief Judge, FAGG, Circuit Judge, and NICHOL, Senior District Judge. The Honorable Fred J. Nichol, Senior District Judge, District of South Dakota, sitting by designation. NICHOL, Senior District Judge. Appellant Wyman appeals from the judgment and sentence of the district court following his conviction by a jury on two counts of willful failure to file income tax returns in violation of 26 U.S.C. section 7203 and two counts of willfully supplying false and fraudulent withholding exemption certificates (W-M’s) in violation of 26 U.S.C. section 7205. The court sentenced Wyman to one year imprisonment with the sentence suspended on condition that he be incarcerated in a local jail for thirty days, followed by a three year probationary period. The court further ordered Wyman to pay the costs of prosecution. Prior to trial, the court granted Wyman’s motion to proceed in forma pauperis. At trial, Wyman proceeded pro se. At Wy-man’s request, the court appointed counsel prior to sentencing. Wyman appeals on the grounds that (1) the trial court erred in denying his request to subpoena witnesses under Fed.R.Crim.P. 17(b) and (2) that the trial court erred in taxing costs of prosecution under 26 U.S.C. section 7203 against a defendant who was proceeding in forma pauperis. We find Wyman’s arguments on this appeal to be without merit and, therefore, we affirm the trial court. I. The Denial of the Rule 17(b) Motion. Fed.R.Crim.P. 17 provides in part: (b) Defendants Unable to Pay. The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant 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. This court has dealt with the implementation of Rule 17(b) on many occasions. The trial court has wide discretion in deciding whether to grant or deny a Rule 17(b) motion. Reistroffer v. U.S., 258 F.2d 379 (8th Cir.1958), cert. denied, 358 U.S. 927, 79 S.Ct. 313, 3 L.Ed.2d 301 (1959), rehearing denied, 361 U.S. 856, 80 S.Ct. 42, 4 L.Ed.2d 96 (1959). Compulsory process under Fed. R.Crim.P. 17(b) is not an absolute right but, like many other trial decisions, is a matter committed to the sound discretion of the trial court. U.S. v. DeCoteau, 648 F.2d 1191 (8th Cir.1981); U.S. v. Gilliss, 645 F.2d 1269 (8th Cir.1981); Slawek v. U.S., 413 F.2d 957 (8th Cir.1969). The burden of proving the necessity of Rule 17(b) witnesses is clearly on the defendant seeking to subpoena them. Terlikowski v. U.S., 379 F.2d 501 (8th Cir.), cert. denied, 389 U.S. 1008, 88 S.Ct. 569, 19 L.Ed.2d 604 (1967). The standard on review is whether the trial court abused its discretion in the granting or denial of the motion. U.S. v. Bernard, 625 F.2d 854 (9th Cir.1980). The reviewing court should not reverse unless the exceptional circumstances of the case indicate that the defendant’s right to a complete, adequate and fair trial is jeopardized. Terlikowski v. U.S., supra; Reistroffer v. U.S., supra. In the instant case Wyman sought to subpoena nine witnesses: (1) four “expert” lecturers, seminar leaders and writers on the subject of tax avoidance; (2) two fellow employees who failed to file tax returns; and (3) three government officials, the U.S. Attorney, the U.S. Magistrate, and the Director of the Internal Revenue Service for the District of Nebraska. The court held an ex parte hearing following Wyman’s 17(b) application. The record reveals that the trial court questioned Wyman closely about the use of each witness in presenting his defense. Wyman asserted that he had a good faith misunderstanding of the tax law and that he therefore lacked the willful intent required by 26 U.S.C. sections 7203 and 7205. The group one witnesses were people who had lectured, conducted seminars or written materials on how to avoid paying income taxes. Wyman had attended their lectures, read their books, and even consulted by telephone with one or two of them. Wy-man claimed that these witnesses were necessary to establish his state of mind and misunderstanding of the law. The record shows that Wyman admitted at the Rule 17(b) hearing that none of these four witnesses had direct knowledge of his state of mind at the time he committed the offenses. He argued, however, that he had been so influenced by these individuals and so overwhelmed by their opinions that he himself lacked the willfulness required by the statute. He argued that the two fellow employees (group two) were necessary to show selective.prosecution. The third group for whom Wyman requested subpoenas were U.S. government officials. Wy-man stated at the ex parte hearing that through these individuals he would prove that the government was a perpetrator of fraud after the fact. He claimed that these officials knew that he had been “duped” and “conned” by the four tax “experts”, yet they continued to prosecute him. The trial court held that Wyman had not met the burden of proving the necessity of each witness to an adequate defense. With respect to the group one (“expert”) witnesses, the court stated: (T)he testimony of particular witnesses that they wrote or said certain statements does not tend to prove or to disprove the defendant’s own state of mind. See Fed.R.Evid. 401. It cannot be presumed that people believe and rely upon everything they read or hear. Thus, the statements of authors and commentators standing alone would not be probative of the defendant’s personally-held beliefs. ... If the defendant does elect to testify as to what he heard and read and to his own beliefs as a result thereof, the books themselves and the testimony of their authors or those who conducted seminars would be, at best, cumulative and could be confusing to the jury. Wyman did not establish that any of these witnesses had personal knowledge of his motive or intent. The trial court’s reasoning is correct. There is no requirement that a defendant be allowed to subpoena witnesses at public expense where witnesses would only provide cumulative testimony. U.S. v. Gilliss, 645 F.2d 1269 (8th Cir.1981); U.S. v. Gallagher, 620 F.2d 797 (10th Cir.1980), cert. denied, 449 U.S. 878, 101 S.Ct. 224, 66 L.Ed.2d 100 (1981); Feguer v. U.S., 302 F.2d 214 (8th Cir.), cert. denied, 371 U.S. 872, 83 S.Ct. 123, 9 L.Ed.2d 110 (1962). In considering the second group of witnesses (fellow employees), the court had previously ruled that Wyman had failed to make a prima facie case of selective prosecution. To succeed on a claim of selective prosecution, a defendant has the burden of establishing that others similarly situated have not been prosecuted and that the allegedly discriminatory prosecution of the defendant was based on an impermissible motive. U.S. v. Wilson, 639 F.2d 500 (9th Cir.1981). Without an additional showing, the testimony of these two witnesses would not be relevant. Finally, the court stated that in its opinion none of the group three (government officials) witnesses could provide any material evidence. Materiality of the evidence is a proper consideration under Rule 17(b). U.S. v. Schultz, 431 F.2d 907 (8th Cir.1970). “Rule 17(b) was not promulgated to afford an indigent defendant a right to subpoena witnesses at government expense whose testimony clearly would be lacking in materiality to the trial at hand.” Terlikow- ski v. U.S., 379 F.2d 501, 508 (8th Cir.), cert. denied, 389 U.S. 1008, 88 S.Ct. 569, 19 L.Ed.2d 604 (1967). It appears from the record that Wyman’s theory of the relationship of these individuals to the group one witnesses is speculative at best. These witnesses were not necessary for Wyman to establish a good faith mistake and state of mind defense. Admittedly, Wyman faced the dilemma of whether or not to take the stand in his own behalf. He chose not to testify. Therefore, the government’s evidence was uncontested at trial. The ruling of the trial court on the Rule 17(b) application, however, did not deprive Wyman of the opportunity to present a meaningful defense. We find no abuse of discretion here. II. Taxation of Costs Under 26 U.S.C. Section 7203 Against an Indigent Defendant. Appellant asserts the position that the costs of prosecution in this case should not have been taxed against him because he was proceeding in forma pauperis. He argues that the taxation of costs against an indigent criminal defendant may discourage future indigent defendants from asserting their constitutional rights. Wyman states the proposition too broadly. In the instant case, we consider only those criminal defendants prosecuted and convicted pursuant to 26 U.S.C. section 7203. The statute sets out in part: Any person ... (who willfully fails to file a return, supply information, or pay tax required by law) shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,-000, or imprisoned more than one year, or both, together with the costs of prosecution. (emphasis supplied) Initially, we must consider whether the statutory language of section 7203 is discretionary or mandatory. We adopt the rationale set out in U.S. v. Chavez, 627 F.2d 953 (9th Cir.1980), cert. denied, 450 U.S. 924, 101 S.Ct. 1376, 67 L.Ed.2d 353 (1981). Under our interpretation of the statute, the trial court has discretion to impose either a fine or imprisonment or both but the trial court does not have discretion to fail to award costs. “The plain meaning of the statute is clear. The grammatical structure of the statute and the use of the word ‘shall’ compel the conclusion that the provision is mandatory.” Id. at 954-955. Wyman argues further that if the language of the statute is construed as mandatory, there will be a chilling effect on an indigent defendant’s exercise of constitutional rights. We do not accept that argument. The Chavez court stated: The Congress may have had any number of constitutionally permissible purposes in requiring that a defendant convicted of a willful failure to file a return pay the costs of prosecution. The legitimate governmental ends would include the recovery of expenditures to compensate the government and the imposition of additional punishment.... It must be emphasized that not every assertion that a statutory scheme has chilled the exercise of a constitutional right results in a finding of unconstitutionality. Id. at 956. It is important to draw a distinction between those cases in which statutes were invalidated because they placed a penalty on the exercise of constitutional rights and statutes which do not necessarily subject a criminal defendant to greater punishment. See e.g. Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1972) (An indigent’s knowledge that he may be required to repay the costs of his legal services in no way affected his right to retain counsel). In the instant case there exists only a possibility that costs will be assessed against a criminal defendant. “A defendant prosecuted for willful failure to file a tax return is not subject to a substantial risk of greater punishment because of the existence of the costs of prosecution provision.” Chavez, supra, at 957. Appellant bases his argument on two cases which indicate only that a problem of constitutional dimensions might arise if costs were taxed against indigent criminal defendants. U.S. v. American Theatre Corporation, 526 F.2d 48 (8th Cir.1975), cert. denied, 430 U.S. 938, 97 S.Ct. 1569, 51 L.Ed.2d 786 (1977); U.S. v. Glover, 588 F.2d 876 (2nd Cir.1978). These cases are easily distinguished. Both American Theatre and Glover deal with taxation of costs under 28 U.S.C. section 1918(b), a discretionary statute. In both cases, defendants were exercising fundamental first amendment rights. Aside from the right to assistance of counsel, there is no concomitant right being exercised by Wyman in this case. There is no constitutional right to willfully fail to file tax returns. The taxation of costs under 26 U.S.C. section 7203 serves a legitimate governmental purpose. Further, we believe that a defendant who files in forma pauper-is for the purpose of trial should not necessarily be made judgment proof under this statute. In accordance with this opinion, the decisions of the trial court are affirmed. . The Honorable C. Arlen Beam, United States District Judge for the District of Nebraska. . The prosecution submitted a Bill of Costs totaling $3,470.45. Defendant objected. The trial court stated that it had been deprived of jurisdiction by this appeal and did not rule on the objection. The execution of judgment has been stayed pending this appeal. . We decline to adopt the narrower standard adopted in some circuits limiting the trial court’s discretion in granting or denying Rule 17(b) motions. See U.S. v. Sims, 637 F.2d 625 (9th Cir.1980); U.S. v. Hegwood, 562 F.2d 946 (5th Cir.1977), cert. denied, 434 U.S. 1079, 98 S.Ct. 1274, 55 L.Ed.2d 787 (1978); U.S. v. Barker, 553 F.2d 1013 (6th Cir.1977); Greenwell v. U.S., 317 F.2d 108 (D.C.Cir.1963). . Prior to trial, the district court granted defendant’s motion pursuant to 28 U.S.C. section 1915(c) to have defense witnesses subpoenaed at government expense. The court entered a clarifying order stating that the initial order pertained only to costs of service. The court further stated that if defendant sought to have costs of travel and witness fees paid by the government, he must make the requisite showings under Rule 17(b). .It does not appear from the record that Wy-man clearly understood the element of willfulness in connection with the Internal Revenue Code. “Willful” is generally held to mean a voluntary, intentional violation of a known legal duty. U.S. v. Barney, 674 F.2d 729 (8th Cir.), cert. denied, 457 U.S. 1139, 102 S.Ct. 2972, 73 L.Ed.2d 1359 (1982); U.S. v. Karsky, 610 F.2d 548 (8th Cir.1979), cert. denied, 444 U.S. 1092, 100 S.Ct. 1058, 62 L.Ed.2d 781 (1980); U.S. v. Pohlman, 522 F.2d 974 (8th Cir.1975) (en banc), cert. denied, 423 U.S. 1049, 96 S.Ct. 776, 46 L.Ed.2d 638 (1976). . According to the record, James Birkel and Herman Krepel were prosecuted in civil actions for failing to file tax returns. Wyman did not refer to any others similarly situated who had or had not been prosecuted. He made no attempt to show impermissible motive on the part of the government. . U.S. v. Wyman, Order, November 17, 1982. 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:
songer_r_fed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. WASHINGTON RY. & ELECTRIC CO. v. DISTRICT OF COLUMBIA. (Court of Appeals of District of Columbia. Submitted January 4, 1926. Decided February 1, 1926.) No. 4293. 1. Street railroads <@=73 — Car remodeled in 1905 held not compliance with statutory requirements respecting vestibule for motorman. Street car, provided in 1905 with glass and wood vestibule, open on each side of platform for passengers, which type was then as far as street car manufacture had advanced, held in 1924 not compliance with Act Cong. March 3, 1905, requiring a glass vestibule surrounding “as nearly as possible” the place where the motorman stands. 2. Statutes <@=47 — Statute relating to motorman’s vestibule held not void for indefiniteness and uncertainty. Act Cong. March 3, 1905, requiring street cars to be provided with “a glass vestibule, surrounding, as nearly as possible, the place where the motorman operating said car stands” held not void for indefiniteness and uncertainty. 3. Street railroads <@=73 — Statute relating to motorman’s vestibule held not impliedly repealed. Act Cong. March 3, 1905, requiring street cars to be provided with a glass vestibule surrounding motorman, held not impliedly repealed by Act Oong. May 28, 1908,. which by section 16 vested Interstate Commerce Commission with authority over equipment and service, or by Act March 4, 1913, which by section 8, par. 96, conferred authority on Public Utilities Commission. 4. Statutes <§=»!59 — General statutes, without negative words, do not repeal particular provisions, unless irreconcilable. Repeals by implication are not favored, and general statutes, without negative words, will not repeal particular provisions of a former statute, unless irreconcilably inconsistent. In Error to Police Court of the District of Columbia. The Washington Railway & Electric Company was convicted of violating the statute respecting motorman’s vestibule on street cars, and it brings error. Affirmed. S. R. Bowen and H. W. Kelly, both of Washington, D.'C., for plaintiff in error. P. H. Stephens, of Washington, D. C., for the District of Columbia. Before MARTIN, Chief Justice, VAN ORSDEL, Associate Justice, and GRAHAM, Presiding Judge of the United States Court of Customs Appeals. MARTIN, Chief Justice. This is an appeal from a judgment imposed upon the street railway company by the police court, upon an information and complaint charging it with the operation of a certain street car, to wit, No. 426, on March 31, 1924, and failing to provide the same with a glass vestibule surrounding as nearly as possible the place where the motorman operating the car stood, in violation of an Act of Congress approved March 3, 1905. 33 Stat. 1001. That aet provides: “That every person or corporation operating street cars in the .District of Columbia shall provide each of the same with a glass vestibule, surrounding, as nearly as possible, the place where the motorman operating said car stands, so that said motorman shall be protected from inclement weather,” subject to the proviso: “That the requirements of this act shall not apply to cars operated from the first day of April to the first day of November of each and every year.” A violation of the aet was made a misdemeanor punishable by a fine. For its defense the company contended that the act in question was no longer in force, for that it was repealed by the Act of Congress approved May 23, 1908, 35 Stat. 250, or that, if not repealed by that act, it was repealed by the Act of Congress approved March 4, 1913, 37 Stat. 938; and furthermore the company denied that it had violated any act of Congress as charged in. the information. It appears that prior to March 3, 1905, the company operated a large number of street ears which had no glass vestibules in front or at” the sides of the platform to protect the motorman from the weather. But immediately after that date the company remodeled all of its ears operated between November 1st and March 31st of each year, installing open end glass and wood vestibules. These ears contained a glass and wood vestibule in front of the motorman, but left each side of the platform open for passengers to be received and discharged. The ear now in question, to wit, No. 426, is one of those so remodeled. This type of construction was as far as the manufacture of street cars had advanced in the year 1905, but afterwards cars were manufactured with platforms surrounded in front and on one side by wood and glass vestibules, leaving the other side open for the entrance and exit of passengers, and still later ears were made with platforms completely surrounded by wood and glass vestibules. It appears that, whenever the company purchased new cars, it procured such as had the most advanced type of vestibule construction; and also that it expended large sums of money in remodeling many cars already owned by it, in order to equip them with approved vestibules. Nevertheless during rush hours in the winter the company continued to operate car No. 426, having a vestibule in front of the motorman, with both sides of the platform entirely open. We may say that in our opinion this could constitute a violation by the company of the provisions of the Act of March 3, 1905, if in force, notwithstanding the care and expense devoted by the company to the purchase or remodeling of its other cars. It cannot be maintained that in the year 1924 such a car would answer the requirements of the act for “a glass vestibule, surrounding as nearly as possible the place where the motorman operating said car stands, so that said motorman shall be protected from inclement weather.” Nor do we think that the act was void for indefiniteness and uncertainty, under the rule declared by this court in the “crowded car” case. United States v. Capital Traction Co., 34 App. D. C. 592, 19 Ann. Cas. 68. We come next to the question whether the Act of March 3, 1905, was repealed by the Act of May 23,1908. It is not claimed that the latter expressly repealed the former, but that it impliedly served .as a repeal or substitute for it. In the latter act (section 16) Congress invested the Interstate Commerce Commission with authority to compel 'every street railroad company operating a street railway in the District to supply and operate a sufficient number of cars, clean, sanitary, in good repair, with proper and safe power, equipment, appliances, and service, comfortable and convenient, and so operate the same as to give expeditious passage to all persons desiring the use of said cars. The Commission was empowered to make, alter, amend, and enforce all needful rules and regulations to secure the obedience of the companies and their employees to the orders and regulations of the Commission. This enactment was not inconsistent with or repugnant to the provisions of the Aet of March 3, 1905. The former aet dealt specifically and exclusively with the construction of vestibules for the protection of the company’s motormen; the latter, with the comfort, convenience, and safety of the passengers upon the ears; and the two acts were capable of concurrent enforcement. It is a well-established rule that repeals by implication are not favored, and that a general statute, without negative words, will not repeal the particular provisions of a former statute, unless, the two acts are irreconcilably inconsistent. United States v. Sampson, 19 App. D. C. 419; Wood v. United States, 16 Pet. 342, 10 L. Ed. 987; Henderson’s Tobacco, 11 Wall. (78 U. S.) 652, 657, 20 L. Ed. 235; Wilmot v. Mudge, 103 U. S. 217, 26 L. Ed. 536; Frost v. Wenie, 15 S. Ct. 532, 157 U. S. 46, 39 L. Ed. 614. We conclude accordingly that the earlier act-was not repealed by the Act of May 23, 1908. We are also of the opinion, for the same-reason, that it was not repealed by the Act of March 4,1913. The latter aet (paragraph 96 of section 8) conferred upon the Public Utilities Commission the authority theretofore- possessed by the Interstate Commerce Commission over "the street railroad companies of the District. This authority was at the same time enlarged and made more definite. But in paragraph 101 of the act it was provided that all statutes and regulations then in force, except as modified or changed by the aet, or until modified or changed under its provisions, should remain in full force and effect, until altered, amended, or repealed according to .law, and that all statutes and regulations inconsistent and repugnant to the provisions of the act were repealed, but only so far as inconsistent and repugnant thereto. The Act of March 3, 1905, was in full force at the time of the enactment of this aet, and was not inconsistent with or repugnant to it. Nor does it appear from the record that the Public Utilities Commission has at any time undertaken to abrogate it. A suggestion appears in the record that the Commission “acquiesced” in a partial departure by the company from its requirements. This, however, even if true, was not intended as a modification of the statute, for the record discloses that the Commission repeatedly referred to it as still in effeet. The police court was right in its judgment, which is hereby affirmed, with costs. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_usc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. Angelo MARSIGLIA, alias Anthony Marsiglia, Appellant, v. UNITED STATES of America, Appellee. No. 5600. Circuit Court of Appeals, Fifth Circuit. April 11, 1930. R. A. Dowling, of New Orleans, La., for appellant. Edmond E. Talbot, U. S. Atty., and P. M. Flanagan, Asst. U. S. Atty., both of New Orleans, La. Before BRYAN and FOSTER, Circuit Judges, and HOLMES, District Judge. Rehearing denied May 12, 1930. PER CURIAM. The judgment is affirmed. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_attyfee	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 attorneys' fees 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". GONZALEZ et al. v. HOBBY, Federal Security Administrator. No. 4780. United States Court of Appeals, First Circuit. May 11, 1954. Frank Torres, New York City, for appellants. Ruben Rodriguez Antongiorgi, U. S. Atty., San Juan, P. R., for appellee. Before MAGRUDER, Chief Judge, and MARIS and WOODBURY, Circuit Judges. MARIS, Circuit Judge. This is an appeal by the plaintiffs, Ernesto, Pascasio and Jose Manuel Gonzalez Malave, minors acting through their mother and natural guardian, Virginia Malave, from the denial by the United States District Court for the District of Puerto Rico of their motion for the determination of the fees due their counsel and for an order for the payment thereof. The plaintiffs had been declared the heirs of their father, Ernesto Gonzalez, by the insular district court for Guaya-ma. They had then made claim as his children for survivors’ insurance benefits under section 202(d) (3) of the Social Security Act which claim had been denied by the Federal Security Administrator. They thereupon filed a civil action in the court below for the review of the Administrator’s decision and were given leave to prosecute the action in forma pauperis. The court entered summary judgment setting aside the Administrator’s decision and granting the plaintiffs’ claims for children’s insurance benefits. D.C., 110 F.Supp. 893. Following the entry of judgment in their favor the plaintiffs filed the motion the denial of which is the subject of the appeal now before us. Section 206 of the Social Security Act expressly empowers the Administrator (now the Secretary of Health, Education and Welfare) to regulate and prescribe the maximum fees which may be charged for services performed in connection with any claim before the Administrator under Title II of the Act relating to federal old-age and survivors insurance benefits and prohibits any person from charging or collecting any fee in excess of the maximum so fixed. Pursuant to this statutory authority the Administrator issued Regulations No. 3, § 403.713(d) of which fixes a fee of not more than $10 for the services of an attorney in representing a claimant before the Administrator, unless upon petition of the attorney the Bureau of Old-Age and Survivors Insurance, a referee or the Appeals Council of the Administration (now the Department of Health, Education and Welfare), for good cause shown, authorizes the attorney to charge and receive a greater fee. The law and regulations thus contemplate that claimants before the Administration (now the Department) may have the benefit of compensated counsel. Under these regulations the counsel for the present plaintiffs may doubtless still make application for the fixing of an appropriate fee in to the proper officials of the Department excess of $10 for so much of his services to the plaintiffs as involved his representation of them before the Administrator. Section 205(g) of the Social Security Act expressly confers the right upon any individual whose claim is denied by a final decision of the Administrator (now the Secretary) to secure a judicial review of the decision through a civil action brought in the United States district court for the district of his residence, as was done by the plaintiffs in this case. The Act is silent, however, as to counsel fees for services rendered in such an action. But the payment and receipt of such fees is not prohibited by the Act. We think that here, as Justice Holmes said in Dickinson v. Stiles, 1918, 246 U.S. 631, 632, 38 S.Ct. 415, 416, 62 L.Ed. 908, “Congress cannot have contemplated that the claims to which its action gave rise or power would be paid in all cases without litigation, or that suits would be tried by lawyers for nothing, yet it did not regulate attorney’s fees.” Certainly counsel who prosecute such actions to review adverse decisions under the Social Security Act are entitled to receive reasonable fees for their services and the claimants for whom the services are performed should pay for them. In the case of an adult claimant this ordinarily presents no problem to the courts. For such a claimant can contract for legal services and obligate herself to pay for them. But it may be different in the case of a minor claimant who cannot contract for himself and whose mother and natural guardian may not be empowered to agree to counsel fees on his behalf or to pay them out of his funds without a court’s approval. Such a case might present a situation in which the mother and natural guardian or the attorney might have to make application to the state or commonwealth court having jurisdiction of the minors and their guardian for an order fixing the fees and directing their payment out of the minors’ funds. But since no application is here made for an allowance to be paid by the United States and the statute does not authorize such an allowance in any event, the district court was not concerned with the counsel fees here sought and the motion for their determination was properly denied. The order of the district court will be affirmed. . 42 U.S.C.A. f 402(d) (3). . 42 U.S.C.A. § 408. . 1953 Reorganization Plan No. 1, § 5, 18 F.R. 2053, 67 Stat. 632, 42 U.S.C.A. § 406 note. . 12 F.R. 595, 20 C.F.R. § 403.713(d). . 42 U.S.C.A. § 405(g). . Compare Ryan v. Philadelphia & Reading Coal & Iron Co., C.C.E.D.N.Y.1911, 189 F. 253; U. S. v. Equitable Trust Co., 1931, 283 U.S. 738, 51 S.Ct. 639, 75 L.Ed. 1379. Question: Did the court's ruling on attorneys' fees favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_respondent	019	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them. Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. HOUSTON LAWYERS’ ASSOCIATION et al. v. ATTORNEY GENERAL OF TEXAS et al. No. 90-813. Argued April 22, 1991 Decided June 20, 1991 Julius LeVonne Chambers argued the cause for petitioners in both cases. With him on the briefs for petitioners in No. 90-813 was Charles Stephen Ralston. Susan Finkel-stein, Edward B. Cloutman III, E. Brice Cunningham, William L. Garrett, Rolando L. Rios, and David Hall filed a brief for petitioners in No. 90-974. Renea Hicks, Special Assistant Attorney General of Texas, argued the cause for respondents in both cases. With him on the brief for state respondents were Dan Morales, Attorney General, Will Pryor, First Assistant Attorney General, Mary F. Keller, Deputy Attorney General, and Javier P. Guajardo, Special Assistant Attorney General. J. Eugene Clements filed a brief for respondent Wood. Robert H. Mow, Jr., David C. Godbey, and Bobby M. Rubarts filed a brief for respondent Entz. Together with No. 90-974, League of United Latin American Citizens et al. v. Attorney General of Texas et al., also on certiorari to the same court. Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Starr, Assistant Attorney General Dunne, Deputy So licitor General Roberts, Deputy Assistant Attorney General Clegg, Paul J. Larkin, Jr., Jessica Dunsay Silver, and Mark L. Gross; and for the Lawyers’ Committee for Civil Rights Under Law by Frank R. Parker, Robert B. McDuff, Brenda Wright, Robert F. Mullen, David S. Tatel, Norman Redlich, Samuel Rabinove, Richard T. Foltin, Antonia Hernandez, Judith Sanders-Castro, Laughlin McDonald, Neil Bradley, Kathleen L. Wilde, and Mary Wyckoff. Briefs of amici curiae urging affirmance were filed for the State of Georgia by Michael J. Bowers, Attorney General, Carol Atha Cosgrove, Senior Assistant Attorney General, and David F. Walbert; for the State of Tennessee et al. by Charles W. Burson, Attorney General of Tennessee, John Knox Walkup, Solicitor General, and Michael W. Catalano, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Jimmy Evans of Alabama, Winston Bryant of Arkansas, Robert A. Butterworth of Florida, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, William L. Webster of Missouri, Marc Racicot of Montana, Lacy H. Thornburg of North Carolina, Nicholas Spaeth of North Dakota, Robert H. Henry of Oklahoma, Ernest D. Preate, Jr., of Pennsylvania, and Ken Eikenberry of Washington; for the Florida Conference of Circuit Judges et al. by John F. Harkness, Jr., William F. Blews, Ronald A. Labasky, James Fox Miller, Benjamin H. Hill III, and Barry S. Richard; and for the Pacific Legal Foundation by Ronald A. Zumbrun and Anthony T. Caso. Edwin F. Hendricks filed a brief for the American Judicature Society as amicus curiae. Justice Stevens delivered the opinion of the Court. In Chisom v. Roemer, ante, p. 380, we held that judicial elections, and, more specifically, elections of justices of the Supreme Court of Louisiana, are covered by § 2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended in 1982, 42 U. S. C. § 1973. In these cases we consider whether the statute also applies to the election of trial judges in Texas. We hold that it does. I Petitioners in No. 90-974 are local chapters of the League of United Latin American Citizens, a statewide organization composed of both Mexican-American and African-American residents of the State of Texas, and various individuals. They brought this action against the attorney general of Texas and other officials (respondents) to challenge the existing at-large, countywide method of electing state district judges. Although the original challenge encompassed the entire State and relied on both constitutional and statutory grounds, the issues were later narrowed to include only a statutory challenge to the voting methods in just 10 counties. Petitioners in No. 90-813 are the Houston Lawyers’ Association, an organization of African-American attorneys who are registered voters in Harris County, and certain individuals; they are intervenors, supporting the position of the original plaintiffs. Because all of the petitioners have the same interest in the threshold issue of statutory construction that is now before us, we shall refer to them collectively as “petitioners.” Texas district courts are the State’s trial courts of general jurisdiction. Electoral districts for Texas district judges consist of one or more entire counties. Eight of the districts included in these cases include a single county; the other district includes two counties. The number of district judges in each district at issue varies from the 59 that sit in the Harris County district to the 3 that sit in the Midland County district. Each judge is elected by the voters in the district in which he or she sits pursuant to an at-large, district-wide electoral scheme, and must be a resident of that district. Although several judicial candidates in the same district may be running in the same election, each runs for a separately numbered position. Thus, for example, if there are 25 vacancies in the Harris County district in a particular year, there are 25 district-wide races for 25 separately numbered positions. In the primary elections, the winner must receive a majority of votes, but in the general election, the candidate with the highest number of votes for a particular numbered position is elected. Petitioners challenged the at-large, district-wide electoral scheme as diluting the voting strength of African-American and Hispanic voters. They cited the example of Harris County, which has a population that is 20% African-American but has only 3 of 59 district judges that are African-American. The petitioners alleged that alternative electoral schemes using electoral subdistricts or modified at-large structures could remedy the dilution of minority votes in district judge elections. Following a 1-week trial, the District Court ruled in favor of petitioners on their statutory vote dilution claim. It concluded that petitioners had sustained their burden of proving that under the totality of the circumstances “as a result of the challenged at large system [they] do not have an equal opportunity to participate in the political processes and to elect candidates of their choice,” App. to Pet. for Cert. 290a-291a (footnote omitted); id., at 300a-301a. Although the District Court made no findings about the appropriate remedy for the proven violation, it urged the state legislature to select and approve an alternative district judge election scheme. The District Court also announced that it would entertain motions to enjoin future district judge elections pending the remedy phase of the litigation, should the legislature fail to adopt an alternative election scheme. When the state legislature failed to act, the District Court granted interim relief (to be used solely for the 1990 election of district judges in the nine districts) that included the creation of electoral subdistricts and a prohibition against the use of partisan elections for district judges. Respondents appealed. A three-judge panel of the Fifth Circuit reversed the judgment of the District Court, 902 F. 2d 293 (1990), and petitioners’ motion for rehearing en banc was granted, 902 F. 2d 322 (1990). The en banc majority held that the results test in § 2 of the Voting Rights Act of 1965, as amended in 1982, is inapplicable to judicial elections. See 914 F. 2d 620 (1990). In essence, the majority concluded that Congress’ reference to the voters’ opportunity to elect “representatives” of their choice evidenced a deliberate decision to exclude the election of judges from scrutiny under the newly enacted test. For reasons stated in our opinion in Chisom, ante, at 391-403, we reject that conclusion. In a separate opinion, portions of which were joined by other judges, Judge Higginbotham expressed his disagreement with the majority’s conclusion that judges are not “representatives” within the meaning of the Act, but concurred in the judgment of reversal. His opinion relied on a distinction between state appellate judges and trial judges. Whereas the justices of the Louisiana Supreme Court have statewide jurisdiction, even though they are elected by voters in separate districts, and act as members of a collegial body, the Texas trial judge has jurisdiction that is coextensive with the geographic area from which he or she is elected and has the sole authority to render final decisions. Judge Higgin-botham’s opinion characterized trial judges “as single-office holders instead of members of a multi-member body,” 914 F. 2d, at 649 (opinion concurring in judgment), because each exercises his or her authority independently of the other judges serving in the same area or on the same court. Given the State’s “compelling interest in linking jurisdiction and elective base for judges acting alone,” id., at 651, and the risk that “attempting to break the linkage of jurisdiction and elective base . . . may well lessen minority influence instead of increase it,” id., at 649, by making only a few district court judges principally accountable to the minority electorate rather than making all of the district’s judges partly accountable to minority voters, he concluded that elections for single-member offices, including elections for Texas district court judgeships, are exempt from vote dilution challenges under § 2. Chief Judge Clark, while agreeing with the judgment of reversal on grounds “expressly limited to the facts of the present case,” id., at 631 (opinion concurring specially), disagreed with the analysis in both the majority and the opinion concurring in the judgment. He expressed the opinion that “it is equally wrong to say that section 2 covers all judicial elections as it is to say it covers none,” id., at 633 (emphasis in original). Characterizing Judge Higginbotham’s “function-of-the-office analysis” as “identical in concept to the majority view,” ibid., Chief Judge Clark would have held that whenever an officeholder’s jurisdiction and the area of residence of his or her electorate coincide, no vote dilution claims may be brought against at-large schemes for electing the officeholder, regardless of whether the “function” of the officeholder is to act alone or as a member of a collegial body. In a dissenting opinion, Judge Johnson argued that the Act applies to all judicial elections: “Several truths are self-evident from the clear language of the statute that had heretofore opened the electoral process to people of all colors. The Voting Rights Act focuses on the voter, not the elected official. The Act was intended to prohibit racial discrimination in all voting, the sole inquiry being whether the political processes are equally open to all persons, no matter their race or color. The Act is concerned only with the intent of persons of ‘race or color’ in casting a ballot; it has no interest in the function of the person holding the office.” Id., at 652 (emphasis in original). I — i I — i We granted certiorari in these cases, 498 U. S. 1060 (1991), and in Chisom v. Roemer, ante, p. 380, for the limited purpose of considering the scope of the coverage of § 2. As we have held in Chisom, the Act does not categorically exclude judicial elections from its coverage. The term “representatives” is not a word of limitation. Nor can the protection of minority voters’ unitary right to an equal opportunity “to participate in the political process and to elect representatives of their choice” be bifurcated into two kinds of claims in judicial elections, one covered and the other beyond the reach of the Act. Ante, at 398. It is equally clear, in our opinion, that the coverage of the Act encompasses the election of executive officers and trial judges whose responsibilities are exercised independently in an area coextensive with the districts from which they are elected. If a State decides to elect its trial judges, as Texas did in 1861, those elections must be conducted in compliance with the Voting Rights Act. We deliberately avoid any evaluation of the merits of the concerns expressed in Judge Higginbotham’s opinion concurring in the judgment because we believe they are matters that are relevant either to an analysis of the totality of the circumstances that must be considered in an application of the results test embodied in § 2, as amended, or to a consideration of possible remedies in the event a violation is proved, but not to the threshold question of the Act’s coverage. Even if we assume, arguendo, that the State’s interest in electing judges on a district-wide basis may preclude a remedy that involves redrawing boundaries or subdividing districts, or may even preclude a finding that vote dilution has occurred under the “totality of the circumstances” in a particular case, that interest does not justify excluding elections for single-member offices from the coverage of the § 2 results test. Rather, such a state interest is a factor to be considered by the court in evaluating whether the evidence in a particular case supports a finding of a vote dilution violation in an election for a single-member office. Thus we disagree with respondents that the “single-member office” theory automatically exempts certain elections from the coverage of § 2. Rather, we believe that the State’s interest in maintaining an electoral system — in these cases, Texas’ interest in maintaining the link between a district judge’s jurisdiction and the area of residency of his or her voters — is a legitimate factor to be considered by courts among the “totality of circumstances” in determining whether a § 2 violation has occurred. A State’s justification for its electoral system is a proper factor for the courts to assess in a racial vote dilution inquiry, and the Fifth Circuit has expressly approved the use of this particular factor in the balance of considerations. See Zimmer v. McKeithen, 485 F. 2d 1297, 1305 (1973), aff’d sub nom. East Carroll Parish School Bd. v. Marshall, 424 U. S. 636 (1976). Because the State’s interest in maintaining an at-large, district-wide electoral scheme for single-member offices is merely one factor to be considered in evaluating the “totality of circumstances,” that interest does not automatically, and in every case, outweigh proof of racial vote dilution. Two examples will explain why the “single-member office” theory, even if accepted, cannot suffice to place an election for a single-member-office holder entirely beyond the coverage of § 2 of the Act. First, if a particular practice or procedure, such as closing the polls at noon, results in an abridgment of a racial minority’s opportunity to vote and to elect representatives of their choice, the Act would unquestionably apply to restrict such practices, regardless of whether the election was for a single-member-office holder or not. Exempting elections for single-member offices from the reach of § 2 altogether can therefore not be supported. As we stated earlier, this statute does not separate vote dilution challenges from other challenges brought under the amended § 2. See supra, at 425-426. Second, if the boundaries of the electoral district — and perhaps of its neighboring district as well — were shaped in “an uncouth twenty-eight-sided figure” such as that found in Gomillion v. Lightfoot, 364 U. S. 339, 340 (1960), and if the effect of the configuration were to produce an unnatural distribution of the voting power of different racial groups, an inquiry into the totality of circumstances would at least arguably be required to determine whether or not the results test was violated. Placing elections for single-member offices entirely beyond the scope of coverage of § 2 would preclude such an inquiry, even if the State’s interest in maintaining the “uncouth” electoral system was trivial or illusory and even if any resulting impairment of a minority group’s voting strength could be remedied without significantly impairing the State’s interest in electing judges on a district-wide basis. Because the results test in §2 of the Voting Rights Act applies to claims of vote dilution in judicial elections, see Chisom, ante, at 404, and because the concerns expressed by Judge Higginbotham in distinguishing elections of Texas district court judges from elections of supreme court justices relate to the question whether a vote dilution violation may be found or remedied rather than whether such a challenge may be brought, we reverse the judgment of the Court of Appeals and remand these cases for further proceedings consistent with this opinion. It is so ordered. The counties at issue are: Harris, Dallas, Tarrant, Bexar, Travis, Jefferson, Lubbock, Crosby, Ector, and Midland. Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
sc_issuearea	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. KASTIGAR et al. v. UNITED STATES No. 70-117. Argued January 11, 1972 Decided May 22, 1972 Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, and Blackmun, JJ., joined. Douglas, J., post, p. 462, and Marshall, J., post, p. 467, filed dissenting opinions. Brennan and Rehnquist, JJ., took no part in the consideration or decision of the case. Hugh R. Manes argued the cause and filed briefs for petitioners. Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Wilson, Assistant Attorney General Rehnquist, Jerome M. Feit, and Sidney M. Glaser. Briefs of amici curiae urging reversal were filed by Melvin L. Wulf, Fred Okrand, A. L. Wirin, and Laurence R. Sperber for the American Civil Liberties Union et al. ; by Benjamin Dreyfus for the National Lawyers Guild; and by Morton Stavis and Arthur Kinoy for the Center for Constitutional Rights. Mr. Justice Powell delivered the opinion of the Court. This case presents the question whether the United States Government may compel testimony from an unwilling witness, who invokes the Fifth Amendment privilege against compulsory self-incrimination, by conferring on the witness immunity from use of the compelled testimony in subsequent criminal proceedings, as well as immunity from use of evidence derived from the testimony. Petitioners were subpoenaed to appear before a United States grand jury in the Central District of California on February 4, 1971. The Government believed that petitioners were likely to assert their Fifth Amendment privilege. Prior to the scheduled appearances, the Government applied to the District Court for an order directing petitioners to answer questions and produce evidence before the grand jury under a grant of immunity conferred pursuant to 18 U. S. C. §§ 6002-6003. Petitioners opposed issuance of the order, contending primarily that the scope of the immunity provided by the statute was not coextensive with the scope of the privilege against self-incrimination, and therefore was not sufficient to supplant the privilege and compel their testimony. The District Court rejected this contention, and ordered petitioners to appear before the grand jury and answer its questions under the grant of immunity. Petitioners appeared but refused to answer questions, asserting their privilege against compulsory self-incrimination. They were brought before the District Court, and each persisted in his refusal to answer the grand jury’s questions, notwithstanding the grant of immunity. The court found both in contempt, and committed them to the custody of the Attorney General until either they answered the grand jury’s questions or the term of the grand jury expired. The Court of Appeals for the Ninth Circuit affirmed. Stewart v. United States, 440 F. 2d 954 (CA9 1971). This Court granted certiorari to resolve the important question whether testimony may be compelled by granting immunity from the use of compelled testimony and evidence derived therefrom (“use and derivative use” immunity), or whether it is necessary to grant immunity from prosecution for offenses to which compelled testimony relates (“transactional” immunity). 402 U. S. 971 (1971). I The power of government to compel persons to testify in court or before grand juries and other governmental agencies is firmly established in Anglo-American jurisprudence. The power with respect to courts was established by statute in England as early as 1562, and Lord Bacon observed in 1612 that all subjects owed the King their “knowledge and discovery.” While it is not clear when grand juries first resorted to compulsory process to secure, the attendance and testimony of witnesses, the general common-law principle that “the public has a right to every man’s evidence” was considered an “indubitable certainty” that “cannot be denied” by 1742. The power to compel testimony, and the corresponding duty to testify, are recognized in the Sixth Amendment requirements that an accused be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his favor. The first Congress recognized the testimonial duty in the Judiciary Act of 1789, which provided for compulsory attendance of witnesses in the federal courts. Mr. Justice White noted the importance of this essential power of government in his concurring opinion in Murphy v. Waterfront Comm’n, 378 U. S. 52, 93-94 (1964): “Among the necessary and most important of the powers of the States as well as the Federal Government to assure the effective functioning of government in an ordered society is the broad power to compel residents to testify in court or before grand juries or agencies. See Blair v. United States, 250 U. S. 273. Such testimony constitutes one of the Government’s primary sources of information.” But the power to compel testimony is not absolute. There are a number of exemptions from the testimonial duty, the most important of which is the Fifth Amendment privilege against compulsory self-incrimination. The privilege reflects a complex of our fundamental values and aspirations, and marks an important advance in the development of our liberty. It can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. This Court has been zealous to safeguard the values that underlie the privilege. Immunity statutes, which have historical roots deep in Anglo-American jurisprudence, are not incompatible with these values. Rather, they seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify. The existence of these statutes reflects the importance of testimony, and the fact that many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime. Indeed, their origins were in the context of such offenses, and their primary use has been to investigate such offenses. Congress included immunity statutes in many of the regulatory measures adopted in the first half of this century. Indeed, prior to the enactment of the statute under consideration in this case, there were in force over 50 federal immunity statutes. In addition, every State in the Union, as well as the District of Columbia and Puerto Rico, has one or more such statutes. The commentators, and this Court on several occasions, have characterized immunity statutes as essential to the effective enforcement of various criminal statutes. As Mr. Justice Frankfurter observed, speaking for the Court in Ullmann v. United States, 350 U. S. 422 (1956), such statutes have “become part of our constitutional fabric.” Id., at 438. II Petitioners contend, first, that the Fifth Amendment's privilege against compulsory self-incrimination, which is that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself," deprives Congress of power to enact laws that compel self-incrimination, even if complete immunity from prosecution is granted prior to the compulsion of the incriminatory testimony. In other words, petitioners assert that no immunity statute, however drawn, can afford a lawful basis for compelling incriminatory testimony. They ask us to reconsider and overrule Brown v. Walker, 161 U. S. 591 (1896), and Ullmann v. United States, supra, decisions that uphold the constitutionality of immunity statutes. We find no merit to this contention and reaffirm the decisions in Brown and Ullmann. III Petitioners' second contention is that the scope of immunity provided by the federal witness immunity statute, 18 U. S. C. § 6002, is not coextensive with the scope of the Fifth Amendment privilege against compulsory self-incrimination, and therefore is not sufficient to supplant the privilege and compel testimony over a claim of the privilege. The statute provides that when a witness is compelled by district court order to testify over a claim of the privilege: “the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.” 18 U. S. C. § 6002. The constitutional inquiry, rooted in logic and history, as well as in the decisions of this Court, is whether the immunity granted under this statute is coextensive with the scope of the privilege. If so, petitioners’ refusals to answer based on the privilege were unjustified, and the judgments of contempt were proper, for the grant of immunity has removed the dangers against which the privilege protects. Brown v. Walker, supra. If, on the other hand, the immunity granted is not as comprehensive as the protection afforded by the privilege, petitioners were justified in refusing to answer, and the judgments of contempt must be vacated. McCarthy v. Arndstein, 266 U. S. 34, 42 (1924). Petitioners draw a distinction between statutes that provide transactional immunity and those that provide, as does the statute before us, immunity from use and derivative use. They contend that a statute must at a minimum grant full transactional immunity in order to be coextensive with the scope of the privilege. In support of this contention, they rely on Counselman v. Hitchcock, 142 U. S. 547 (1892), the first case in which this Court considered a constitutional challenge to an immunity statute. The statute, a re-enactment of the Immunity Act of 1868, provided that no “evidence obtained from a party or witness by means of a judicial proceeding . . . shall be given in evidence, or in any manner used against him ... in any court of the United States . . . .” Notwithstanding a grant of immunity and order to testify under the revised 1868 Act, the witness, asserting his privilege against compulsory self-incrimination, refused to testify before a federal grand jury. He was consequently adjudged in contempt of court. On appeal, this Court construed the statute as affording a witness protection only against the use of the specific testimony compelled from him under the grant of immunity. This construction meant that the statute “could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him.” Since the revised 1868 Act, as construed by the Court, would permit the use against the immunized witness of evidence derived from his compelled testimony, it did not protect the witness to the same extent that a claim of the privilege would protect him. Accordingly, under the principle that a grant of immunity cannot supplant the privilege, and is not sufficient to compel testimony over a claim of the privilege, unless the scope of the grant of immunity is coextensive with the scope of the privilege, the witness’ refusal to testify was held proper. In the course of its opinion, the Court made the following statement, on which petitioners heavily rely: “We are clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the Constitution of the United States. [The immunity statute under consideration] does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that prohibition. In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offence to which the question relates.” 142 U. S., at 585-586. Sixteen days after the Counselman decision, a new immunity bill was introduced by Senator Cullom, who urged that enforcement of the Interstate Commerce Act would be impossible in the absence of an effective immunity statute. The bill, which became the Compulsory Testimony Act of 1893, was drafted specifically to meet the broad language in Counselman set forth above. The new Act removed the privilege against self-incrimination in hearings before the Interstate Commerce Commission and provided that: “no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise -” Act of Feb. 11, 1893, 27 Stat. 444. This transactional immunity statute became the basic form for the numerous federal immunity statutes until 1970, when, after re-examining applicable constitutional principles and the adequacy of existing law, Congress enacted the statute here under consideration. The new statute, which does not “afford [the] absolute immunity against future prosecution” referred to in Counselman, was drafted to meet what Congress judged to be the conceptual basis of Counselman, as elaborated in subsequent decisions of the Court, namely, that immunity from the use of compelled testimony and evidence derived therefrom is coextensive with the scope of the privilege. The statute’s explicit proscription of the use in any criminal case of “testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information)” is consonant with Fifth Amendment standards. We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being “forced to give testimony leading to the infliction of 'penalties affixed to . . . criminal acts.’ ” Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness. Our holding is consistent with the conceptual basis of Counselman. The Counselman statute, as construed by the Court, was plainly deficient in its 'failure to prohibit the use against the immunized witness of evidence derived from his compelled testimony. The Court repeatedly emphasized this deficiency, noting that the statute: “could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him or his property, in a criminal proceeding . . 142 U. S., at 564; that it: “could not prevent the obtaining and the use of witnesses and evidence which should be attributable directly to the testimony he might give under compulsion, and on which he might be convicted, when otherwise, and if he had refused to answer, he could not possibly have been convicted,” ibid.; and that it: “affords no protection against that use of compelled testimony which consists in gaining therefrom a knowledge of the details of a crime, and of sources of information which may supply other means of convicting the witness or party.” 142 U. S., at 586. The basis of the Court's decision was recognized in Ullmann v. United States, 350 U. S. 422 (1956), in which the Court reiterated that the Counselman statute was insufficient: “because the immunity granted was incomplete, in that it merely forbade the use of the testimony given and failed to protect a witness from future prosecution based on knowledge and sources of information obtained from the compelled testimony Id., at 437. (Emphasis supplied.) See also Arndstein v. McCarthy, 254 U. S. 71, 73 (1920). The broad language in Counselman relied upon by petitioners was unnecessary to the Court’s decision, and cannot be considered binding authority. In Murphy v. Waterfront Comm’n, 378 U. S. 52 (1964), the Court carefully considered immunity from use of compelled testimony and evidence derived therefrom. The Murphy petitioners were subpoenaed to testify at a hearing conducted by the Waterfront Commission of New York Harbor. After refusing to answer certain questions on the ground that the answers might tend to incriminate them, petitioners were granted immunity from prosecution under the laws of New Jersey and New York. They continued to refuse to testify, however, on the ground that their answers might tend to incriminate them under federal law, to which the immunity did not purport to extend. They were adjudged in civil contempt, and that judgment was affirmed by the New Jersey Supreme Court. The issue before the Court in Murphy was whether New Jersey and New York could compel the witnesses, whom these States had immunized from prosecution under their laws, to give testimony that might then be used to convict them of a federal crime. Since New Jersey and New York had not purported to confer immunity from federal prosecution, the Court was faced with the question what limitations the Fifth Amendment privilege imposed on the prosecutorial powers of the Federal Government, a nonimmunizing sovereign. After undertaking an examination of the policies and purposes of the privilege, the Court overturned the rule that one jurisdiction within our federal structure may compel a witness to give testimony which could be used to convict him of a crime in another jurisdiction. The Court held that the privilege protects state witnesses against incrimination under federal as well as state law, and federal witnesses against incrimination under state as well as federal law. Applying this principle to the state immunity legislation before it, the Court held the constitutional rule to be that: “[A] state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him. We conclude, moreover, that in order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in investigating and prosecuting crime, the Federal Government must be prohibited from making any such use of compelled testimony and its fruits.” 378 U. S., at 79. The Court emphasized that this rule left the state witness and the Federal Government, against which the witness had immunity only from the me of the compelled testimony and evidence derived therefrom, “in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity.” Ibid. It is true that in Murphy the Court was not presented with the precise question presented by this case, whether a jurisdiction seeking to compel testimony may do so by granting only use and derivative-use immunity, for New Jersey and New York had granted petitioners transactional immunity. The Court heretofore has not squarely confronted this question, because post-Coun-selman immunity statutes reaching the Court either have followed the pattern of the 1893 Act in providing transactional immunity, or have been found deficient for failure to prohibit the use of all evidence derived from compelled testimony. But both the reasoning of the Court in Murphy and the result reached compel the conclusion that use and derivative-use immunity is constitutionally sufficient to compel testimony over a claim of the privilege. Since the privilege is fully applicable and its scope is the same whether invoked in a state or in a federal jurisdiction, the Murphy conclusion that a prohibition on use and derivative use secures a witness’ Fifth Amendment privilege against infringement by the Federal Government demonstrates that immunity from use and derivative use is coextensive with the scope of the privilege. As the Murphy Court noted, immunity from use and derivative use “leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege” in the absence of a grant of immunity. The Murphy Court was concerned solely with the danger of incrimination under federal law, and held that immunity from use and derivative use was sufficient to displace the danger. This protection coextensive with the privilege is the degree of protection that the Constitution requires, and is all that the Constitution requires even against the jurisdiction compelling testimony by granting immunity. IV Although an analysis of prior decisions and the purpose of the Fifth Amendment privilege indicates that use and derivative-use immunity is coextensive with the privilege, we must consider additional arguments advanced by petitioners against the sufficiency of such immunity. We start from the premise, repeatedly affirmed by this Court, that an appropriately broad immunity grant is compatible with the Constitution. Petitioners argue that use and derivative-use immunity will not adequately protect a witness from various possible incriminating uses of the compelled testimony: for example, the prosecutor or other law enforcement officials may obtain leads, names of witnesses, or other information not otherwise available that might result in a prosecution. It will be difficult and perhaps impossible, the argument goes, to identify, by testimony or cross-examination, the subtle ways in which the compelled testimony may disadvantage a witness, especially in the jurisdiction granting the immunity. This argument presupposes that the statute’s prohibition will prove impossible to enforce. The statute provides a sweeping proscription of any use, direct or indirect, of the compelled testimony and any information derived therefrom: “[N]o testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case . . . 18 U. S. C. § 6002. This total prohibition on use provides a comprehensive safeguard, barring the use of compelled testimony as an “investigatory lead,” and also barring the use of any evidence obtained by focusing investigation on a witness as a result of his compelled disclosures. A person accorded this immunity under 18 U. S. C. § 6002, and subsequently prosecuted, is not dependent for the preservation of his rights upon the integrity and good faith of the prosecuting authorities. As stated in Murphy: “Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.” 378 U. S., at 79 n. 18. This burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony. This is very substantial protection, commensurate with that resulting from invoking the privilege itself. The privilege assures that a citizen is not compelled to incriminate himself by his own testimony. It usually operates to allow a citizen to remain silent when asked a question requiring an incriminatory answer. This statute, which operates after a witness has given incriminatory testimony, affords the same protection by assuring that the compelled testimony can in no way lead to the infliction of criminal penalties. The statute, like the Fifth Amendment, grants neither pardon nor amnesty. Both the statute and the Fifth Amendment allow the government to prosecute using evidence from legitimate independent sources. The statutory proscription is analogous to the Fifth Amendment requirement in cases of coerced confessions. A coerced confession, as revealing of leads as testimony given in exchange for immunity, is inadmissible in a criminal trial, but it does not bar prosecution. Moreover, a defendant against whom incriminating evidence has been obtained through a grant of immunity may be in a stronger position at trial than a defendant who asserts a Fifth Amendment coerced-confession claim. One raising a claim under this statute need only show that he testified under a grant of immunity in order to shift to the government the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources. On the other hand, a defendant raising a eoerced-confession claim under the Fifth Amendment must first prevail in a voluntariness hearing before his confession and evidence derived from it become inadmissible. There can be no justification in reason or policy for holding that the Constitution requires an amnesty grant where, acting pursuant to statute and accompanying safeguards, testimony is compelled in exchange for immunity from use and derivative use when no such amnesty is required where the government, acting without colorable right, coerces a defendant into incriminating himself. We conclude that the immunity provided by 18 U. S. C. § 6002 leaves the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege. The immunity therefore is coextensive with the privilege and suffices to supplant it. The judgment of the Court of Appeals for the Ninth Circuit accordingly is Affirmed. Mr. Justice Brennan and Mr. Justice Rehnquist took no part in the consideration or decision of this case. The contempt order was issued pursuant to 28 U. S. C. § 1826. For a concise history of testimonial compulsion prior to the adoption of our Constitution, see 8 J. Wigmore, Evidence § 2190 (J. McNaughton rev. 1961). See Ullmann v. United States, 350 U. S. 422, 439 n. 15 (1956); Blair v. United States, 250 U. S. 273 (1919). Statute of Elizabeth, 5 Eliz. 1, c. 9, § 12 (1562). Countess of Shrewsbury’s Case, 2 How. St. Tr. 769, 778 (1612). See the parliamentary debate on the Bill to Indemnify Evidence, particularly the remarks of the Duke of Argyle and Lord Chancellor Hardwicke, reported in 12 T. Hansard, Parliamentary History of England 675, 693 (1812). See also Piemonte v. United States, 367 U. S. 556, 559 n. 2 (1961); Ullmann v. United States, supra, at 439 n. 15; Brown v. Walker, 161 U. S. 591, 600 (1896). 1 Stat. 73, 88-89. See Blair v. United States, supra, at 281; 8 Wigmore, supra, n. 2, §§ 2192, 2197. See Murphy v. Waterfront Comm’n, 378 U. S. 52, 55 (1964). See Ullmann v. United States, 350 U. S., at 426; E. Griswold, The Fifth Amendment Today 7 (1955). Murphy v. Waterfront Comm’n, supra, at 94 (White, J., concurring); McCarthy v. Arndstein, 266 U. S. 34, 40 (1924); United States v. Saline Bank, 1 Pet. 100 (1828); cf. Gardner v. Broderick, 392 U. S. 273 (1968). Hoffman v. United States, 341 U. S. 479, 486 (1951); Blau v. United States, 340 U. S. 159 (1950); Mason v. United States, 244 U. S. 362, 365 (1917). See, e. g., Miranda v. Arizona, 384 U. S. 436, 443-444 (1966); Boyd v. United States, 116 U. S. 616, 635 (1886). Soon after the privilege against compulsory self-incrimination became firmly established in law, it was recognized that the privilege did not apply when immunity, or “indemnity,” in the English usage, had been granted. See L. Levy, Origins of the Fifth Amendment 328, 495 (1968). Parliament enacted an immunity statute in 1710 directed against illegal gambling, 9 Anne, c. 14, §§ 3-4, which became the model for an identical immunity statute enacted in 1774 by the Colonial Legislature of New York. Law of Mar. 9, 1774, c. 1651, 5 Colonial Laws of New York 621, 623 (1894). These statutes provided that the loser could sue the winner, who was compelled to answer the loser’s charges. After the winner responded and returned his ill-gotten gains, he was “acquitted, indemnified [immunized] and discharged from any further or other Punishment, Forfeiture or Penalty, which he . . . may have incurred by the playing for, and winning such Money . . . .” 9 Anne, c. 14, § 4 (1710); Law of Mar. 9, 1774, c. 1651, 5 Colonial Laws of New York, at 623. Another notable instance of the early use of immunity legislation is the 1725 impeachment trial of Lord Chancellor Macclesfield. The Lord Chancellor was accused by the House of Commons of the sale of public offices and appointments. In order to compel the testimony of Masters in Chancery who had allegedly purchased their offices from the Lord Chancellor, and who could incriminate themselves by so testifying, Parliament enacted a statute granting immunity to persons then holding office as Masters in Chancery. Lord Chancellor Macclesfield’s Trial, 16 How. St. Tr. 767, 1147 (1725). See 8 Wigmore, supra, n. 2, § 2281, at 492. See also Bishop Atter-bury’s Trial, 16 How. St. Tr. 323, 604-605 (1723). The legislatures in colonial Pennsylvania and New York enacted immunity legislation in the 18th century. See, e. g., Resolution of Jan. 6, 1758, in Votes and Proceedings of the House of Representatives of the Province of Pennsylvania (1682-1776), 6 Pennsylvania Archives (8th series) 4679 (C. Hoban ed. 1935); Law of Mar. 24, 1772, c. 1542, 5 Colonial Laws of New York 351, 353-354; Law of Mar. 9, 1774, c. 1651, id., at 621, 623; Law of Mar. 9, 1774, c. 1655, id., at 639, 641-642. See generally L. Levy, Origins of the Fifth Amendment 359, 384-385, 389, 402-403 (1968). Federal immunity statutes have existed since 1857. Act of Jan. 24, 1857, 11 Stat. 155. For a history of the various federal immunity statutes, see Comment, The Federal Witness Immunity Acts in Theory and Practice: Treading the Constitutional Tightrope, 72 Yale L. J. 1568 (1963); Wendel, Compulsory Immunity Legislation and the Fifth Amendment Privilege: New Developments and New Confusion, 10 St. Louis U. L. Rev. 327 (1966); and National Commission on Reform of Federal Criminal Laws, Working Papers, 1406-1411 (1970). See, e. g., Resolution of Jan. 6, 1758, n. 13, supra, 6 Pennsylvania Archives (8th series) 4679 (C. Hoban ed. 1935); Law of Mar. 24, 1772, c. 1542, 5 Colonial Laws of New York 351, 354; Law of Mar. 9, 1774, c. 1655, id., at 639, 642. Bishop Atter-bury’s Trial, supra, for which the House of Commons passed immunity legislation, was a prosecution for treasonable conspiracy. See id., at 604-605; 8 Wigmore, supra, n. 2, §2281, at 492 n. 2. Lord Chancellor Macclesfield’s Trial, supra, for which Parliament passed immunity legislation, was a prosecution for political bribery involving the sale of public offices and appointments. See id., at 1147. The first federal immunity statute was enacted to facilitate an investigation of charges of corruption and vote buying in the House of Representatives. See Comment, n. 13, supra, 72 Yale L. J., at 1571. See 8 Wigmore, supra, n. 2, § 2281, at 492. Mr. Justice White noted in his concurring opinion in Murphy v. Waterfront Comm’n, 378 U. S., at 92, that immunity statutes “have for more than a century been resorted to for the investigation of many offenses, chiefly those whose proof and punishment were otherwise impracticable, such as political bribery, extortion, gambling, consumer frauds, liquor violations, commercial larceny, and various forms of racketeering.” Id., at 94-95. See n. 14, supra. See Comment, n. 13, supra, 72 Yale L. J., at 1576. For a listing of these statutes, see National Commission on Reform of Federal Criminal Laws, Working Papers, 1444-1445 (1970). For a listing of these statutes, see 8 Wigmore, supra, n. 2, § 2281, at 495 n. 11. See, e. g., 8 J. Wigmore, Evidence § 2281, at 501 (3d ed. 1940); 8 Wigmore, supra, n. 2, § 2281, at 496. See Hale v. Henkel, 201 U. S. 43, 70 (1906); Brown v. Walker, 161 U. S., at 610. This statement was made with specific reference to the Compulsory Testimony Act of 1893, 27 Stat. 443, the model for almost all federal immunity statutes prior to the enactment of the statute under consideration in this case. See Murphy v. Waterfront Comm’n, 378 U. S., at 95 (White, J., concurring). Accord, Gardner v. Broderick, 392 U. S., at 276; Murphy v. Waterfront Comm’n, supra; McCarthy v. Arndstein, 266 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_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 AMERICAN RY. EXPRESS CO. v. ROWE et al. (Circuit Court of Appeals, First Circuit. August 17, 1926.) No. 1939. 1. Courts <©=>376 — Evidence <©=>317(18) — Attorney’s testimony as to statements made 3y deceased while in hospital after injury held admissible under statutes (G. L. Mass. o. 233, § 65; Rev. St. U. S. § 721 [U. S. Comp. St § 1538]). In action of tort to recover damages for conscious suffering and death of plaintiff’s testator, testimony of attorney as to statements made by deceased while in hospital after injury held admissible under 6. L. Mass. c. 233, § 65. and Rev. St. U. S. § 721 (U. S. Comp. St. § 1538). 2. Courts <S=>337. Rev. St. § 721, requiring state laws, except where Constitution, treaties, or statutes of United States otherwise require, shall be rules of decision in federal courts, does not apply to criminal eases (Comp. St. § 1538). 3. Courts <©=>376 — Evidence <©=>317(18) — That deceased’s deposition might have been taken held not to affect admissibility under statute of testimony as to statements made by him (G. L. Mass. c. 233, § 65; Rev. St. U. S. § 721 [U. S. Comp. St. § 1538]). In action for conscious suffering and death of plaintiff’s decedent, that deceased’s deposition might have been taken held not to affect admissibility, under G. L. Mass. e. 233, § 65, and Rev. St. U. S. § 721 (U. S. Comp. St. § 1538), of attorney’s testimony as to statements made by him after injury. Johnson, Circuit Judge, dissenting. In Error to the District Court of the United States for the District of Massachusetts; Elisha H. Brewster, Judge. Action by Bert Rowe and another, executors of the estate of George Rowe, against the American Railway Express Company. Judgment for plaintiffs, and defendant brings error. Affirmed. Austin M. Pinkham, of Boston, Mass., for plaintiff in error. John H. Casey, of Boston, Mass. (Ernest Foss, of Newburyport, Mass., on the brief), for defendants in error. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. ANDERSON, Circuit Judge. This is an action of tort, brought by the executors of the estate of George Rowe, late of Seabrook, N. H. The declaration contains two counts; one to recover damages for conscious suffering and pain, and the other for the death of their testator, alleged to have been caused by the negligence of the defendant in operating a baggage truck on the platform of a railroad station in Newburyport, Mass., on October 27,1923. The deceased was 92 years of age, and by reason of collision with the truck sustained a fracture of one of his thighs. He was taken to a hospital in Newburyport, and later to his home in New Hampshire, where he died about 3 weeks later. No living witness saw the truek strike the deceased. The deceased was visited at the hospital, 3 or 4 days after the accident, by an attorney employed by his son, who was afterwards appointed one of the executors, and in response to questions of the attorney gave answers which covered what he knew in regard to how the accident took place. This statement was not introduced in evidence, but the lawyer who visited the deceased at the hospital was permitted, over the objection of the defendant, to testify, after refreshing his recollection from the written statement which had been prepared and signed by- the deceased, as to questions asked and the answers given. If this evidence was competent, we think the judgment below must be affirmed, for from all the evidence the jury would be warranted in finding: That the plaintiff’s intestate, a man 92 years of age, on the afternoon in question, was at the Boston & Maine station in Newburyport, Mass., for the purpose of taking a train for his home in Seabrook, N. H.; that shortly before the arrival of his train he left the men’s waiting room by the door leading to the platform, and turned towards the right, going in a northeasterly direction, with the view of entering the smoking car when the train arrived; that after proceeding a short distance on the platform, and when within 2 or 3 feet of the place occupied by the newspaper stand in the summer time, he was struck in the back by the defendant’s truck, knocked down, and received the injuries complained of; that at the time he came out of the station he did not observe the truek, and knew nothing about its approach until he was struck and knocked down; that the truck was some 9 feet long, 5 feet wide, and weighed 500 pounds, and at the time was being drawn by an express messenger, who was at its front end, having hold of the tongue or handle with his left hand, steering the truck, and having hold of the truck with his right hand, near the right comer, pulling it; that the truck had been taken from the express office at the southwesterly or Boston end of the station, and drawn northeasterly towards the Portsmouth or Seabrook end of the station, past the ladies’ entrance, the ticket office, and the gentlemen’s entrance; that the ticket office portion of the station extended out into the platform some 5 feet or more beyond the vestibules to the- gentlemen’s and ladies’ entrances; that the messenger, in his northeasterly course from the express office, had proceeded with the truek at a distance of some 4 feet from the station building, swerving out as he passed the ticket office, and swerving in again as he passed the gentlemen’s entrance; that as he passed the gentlemen’s entrance he gave no heed as to whether people were going in or out there, but did observe, as he passed the ticket office and the gentlemen’s entrance, people standing opposite thereto and midway of the platform near posts that were about 15 feet out from the entrance, and which supported the shed or canopy of the station; that he at no time observed the deceased, though he could, had he looked ; and that the accident was due to his failure to exercise due care in this particular. The crucial question is whether, under General Eaws of Massachusetts, e. 233,' § 65, the declarations made by the deceased in answer to the questions of the attorney were admissible in evidence. Section 65 is as follows : “A declaration of a deceased person shall not be inadmissible in evidence as hearsay if the court finds that it was made in good faith before the commencement of the action and upon the personal knowledge of the declarant.” The Massachusetts statute is an extension of the exceptions to the anti-hearsay rule. Brooks v. Holden, 175 Mass. 137, 140, 55 N. E. 802; Hall v. Reinherz, 192 Mass. 52, 77 N. E. 880. We hold that the evidence was admissible under R. S. § 721 (Comp. St. [1916] § 1538): “The laws of the several States, except where the Constitution, treaties, or statutes of the United States oherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in eases where they apply.” This section originated in section 34 of the Judiciary Act of 1789 (1 Stat. 92). It has been uniformly construed to cover state statutes changing the rules of evidence, except when thus direct conflict with a federal statute would result. A case exactly in point is Conn. M. L. Ins. Co. v. Union Trust Co., 112 U. S. 250, 5 S. Ct. 119, 28 L. Ed. 708, in which it was held that the provision in the New York Civil Code excluding evidence of a doctor, obtained in a professional capacity, was binding on the courts of the United States sitting within that state in trials at common law, under R. S. § 721, that the laws of the several states, except where the Constitution, treaties, and statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States. In the opinion Mr. Justice Harlan says, citing R. S. § 721: “This has been uniformly construed as requiring the courts of the Union, in the trial of all civil cases at common law, not within the exceptions named, to observe, as rules of decision, the rules of evidence prescribed by the laws of the states in which such courts are held,” — citing Potter v. National Bank, 102 U. S. 163, 26 L. Ed. 111; Vance v. Campbell, 1 Black, 427, 17 L. Ed. 168; Wright v. Bales, 2 Black, 535, 17 L. Ed. 264; McNiel v. Holbrook, 12 Pet. 84, 9 L. Ed. 1009; Sims v. Hundley, 6 How. 1, 12 L. Ed. 319. (Italics supplied.) The exceptions to the rule also illustrate the proper application of the rule. In Whitford v. Clark County, 119 U. S. 522, 7 S. Ct. 306, 30 L. Ed. 500, a deposition was admitted, although the witness was actually in court, contrary to the provision of R. S. § 865. This was held wrong, the court saying (page 525 [7 S. Ct. 308]): “When the statutes of the United States make special provisions as to the competency or admissibility of testimony, they must be followed in the courts of the United States, and not the laws or the practice of the state in which the court is held when they are different.” Ex parte Fisk, 113 U. S. 713, 5 S. Ct. 724, 28 L. Ed. 1117, relied upon by the express company, was habeas corpus to release Fisk, who had been committed for contempt for failure to give his deposition before trial under the New York Code, which authorized the taking of deposition in a manner inconsistent with the deposition provisions of the Federal Code. Fisk was ordered set free. But Justice Miller in his opinion says, referring to R. S. § 720: “It has been often decided in this court that in actions at law in the courts of the United States, the rules of evidence and the law of evidence generally of the states prevail in those courts. * * * The New York statute would, if in force, repeal or supersede the act of Congress.” (Page 725 [5 S. Ct. 729].) All that was really decided in the Fisk Case was that the New York statutory provisions as to depositions could not be substituted for the federal statutory provisions as to depositions. The general rule still obtains that, unless there be conflict with a federal statute, the state rule as to evidence prevails. In Potter v. National Bank, 102 U. S. 163, 26 L. Ed, 111, R. S. § 858, was applied in a federal court sitting in Illinois, although the Illinois statute made the testimony of the executor incompetent. Section 858 provides (page 163): “In the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried: Provided, that in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court. In all other respects the laws of the state in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at common law and in equity and admiralty.” But on page 165, the court (Harlan, J.) refers to R. S. § 721, as applicable, except where there is an express contrary inconsistent federal provision. In Sims v. Hundley, 6 How. 1, 6 (12 L. Ed. 319), a notary’s certificate of protest, made admissible under the statute of Mississippi, was held admissible in the federal court sitting in Mississippi; Taney, C. J., saying: “The rules of evidence prescribed by the statute of a state are always followed by the courts of the United States, when sitting in the state, in commercial eases as well as in others.” In McNiel v. Holbrook, 12 Pet. 84, 88, 9 L. Ed. 1009, Taney, C. J., held a statute of Georgia, making certain written instruments competent without proof of the handwriting, applicable in the federal court under what is now R. S. § 721. In Wright v. Bales, 2 Black, 535, 17 L. Ed. 264, the headnote accurately states the decision: “The statutory enactments of the States of the Union, in respect to evidence in cases at common law, are obligatory upon judges of the courts of the United States, who are bound to apply them as rules of decision.” The federal Circuit-Court (which was the trial court) had refused to apply the Ohio statute removing disqualifications because of-interest. The ease was sent back for a new trial. Vance v. Campbell, 1 Black, 427, 430, 17 L. Ed. 168, is to the same effect. In American Ag. Chem. Co. v. Hogan, 213 F. 416, 130 C. C. A. 52, this court held that the Massachusetts rule, allowing former testimony of a witness to he introduced for the purpose of impeaching his subsequent testimony without his attention having first been called to the former testimony, will be followed by the federal court sitting in this state. The opinion was by Brown, J., who says (page 420 [130 C. C. A. 56]): “Ordinarily the rules of evidence and the law of evidence of the state prevail in the federal court sitting within the limits of the state.” R. S. § 721, does not apply to criminal cases. See Logan v. United States, 144 U. S. 263, 299, 12 S. Ct. 617, 36 L. Ed. 429 et seq., where there is an instructive review of the statutes and earlier cases by Mr. Justice Gray. Compare United States v. Gwynne, 209 F. 993, 994. In Nelson v. First National Bank, 69 F. 798, 16 C. C. A. 425, Judge Sanborn states the rule as follows in dealing with the application of a staté statute to the certificate of protest of a promissory note, page 801, 16 C. C. A. 428: “And the rules of evidence prescribed by the statute of a state are declared by act of Congress to he ‘rules of decision in trials at common law in the courts of the United States,’ ‘except where the Constitution, treaties, or statutes of the United States otherwise require or provide.’ ” Compare 2 Foster’s Fed. Prac. (4th Ed.) § 372, and G. & C. Merriam Co. v. Syndicate Pub. Co. (C. C. A.) 207 F. 515, where Judge Hand sustained an exception to the hearsay rule (page 518) and his opinion was adopted by the Court of Appeals. Compare Wig-more, Ev. § § 1420, 1421, et seq.; 22 C. J. 216 et seq., notes and cases. Compare, also, 25 C. J. 817, and notes; Id. p. 828. In our opinion, the'authorities show that the court below was entirely right in applying the Massachusetts statute. The fact that Rowe’s deposition might perhaps have been taken does not bring the ease within the principles laid down in the Eisk Case and other similar cases. In fact, he died without his deposition being taken. The executors were not, therefore, offering a deposition taken in a manner other than that provided in the federal statutes, in the Eisk Case held applicable before the Act of March 9,1892 (27 Stat. 7 [Comp. St. § 1476]), changed the law. The Massachusetts statute is in no way inconsistent with any federal .statute. In Fourth Nat. Bank v. Albaugh, 188 U. S. 734, 737, 23 S. Ct. 450, 451, 47 L. Ed. 673, the court said: “In these days, when the whole tendency of decisions and legislation is to enlarge the admissibility of hearsay, where hearsay must be admitted or a failure of justice occur, we are not inclined to narrow the lines.” Cf. Mattox v. United States, 156 U. S. 237, 243, 244, 13 S. Ct. 50, 36 L. Ed. 917. Commonwealth v. Trefethen, 157 Mass. 180, 31 N. E. 961, 24 L. R. A. 235. The judgment of the District Court is affirmed, with costs to the defendants in error. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_r_fed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Frank ALTOBELLA and James Moxley, Defendants-Appellants. Nos. 18254, 18255. United States Court of Appeals, Seventh Circuit. April 8, 1971. Rehearing Denied May 26, 1971. Thomas D. Decker, Ronald P. Alwin, Federal Defender Program, Chicago, Ill., for defendants-appellants. Craig M. Bradley, Atty., Dept, of Justice, Criminal Div., Washington, D. C., William J. Bauer, U. S. Atty., Chicago, Ill., for plaintiff-appellee. Before SWYGERT, Chief Circuit Judge, KNOCH, Senior Circuit Judge, and STEVENS, Circuit Judge. STEVENS, Circuit Judge. The squalid facts of this ease give rise to a serious question of federal jurisdiction. The record discloses a plain violation of the Illinois statute prohibiting extortion. The issue for us to decide is whether defendants are also guilty of violating either the federal conspiracy statute, 18 U.S.C. § 371, or the federal statute enacted in 1961 “to prohibit travel or transportation in commerce in aid of racketeering enterprises,” 75 Stat. 498, 18 U.S.C. § 1952. Although the “Travel Act” can be read to cover this case, we have concluded that this prosecution is beyond the limits of the criminal jurisdiction which Congress intend- ■ ed to confer on the federal courts. I The jury found both appellants guilty on both counts. To clarify the federal question, we shall first- summarize the evidence disclosing a violation of Illinois law. The participants in the extortion were appellants Altobella and Moxley and a young entertainer named Joan Patterson. Patterson’s testimony described the plan. She agreed to help Altobella and Moxley “to make a fast buck.” She was to pick up a businessman, preferably one who was married and had a family, in one of the hotel bars in the loop area. “After I met him I was supposed to lead him to believe that he was a Don Juan, and then take him- to an apartment and * * * get him into a compromising position so that pictures could be taken.” In early October Patterson made the acquaintance of a Philadelphia businessman in the Essex Motel bar. Before they parted he told her that he would be returning to Chicago in about ten days, and requested her to call him at the Sherman House. Promptly thereafter Patterson reported to Altobella that she had “found just the type of guy we were looking for.” They then agreed upon the procedure for taking pictures. On Thursday, October 19, Patterson reached her victim at the Sherman House and made a date for that evening. During dinner she excused herself, telephoned the defendants, and then led the badger into the trap. In due course the flashbulbs went off, Altobella accompanied by Moxley came into the bedroom with a gun, and Patterson departed with the camera and film. Except for receiving $50 from Altobella the next day, Patterson had no further contact with the extortion. She destroyed the camera and film on Saturday, after learning that Altobella had been arrested. The victim testified that after Patterson departed, Altobella made a demand for $5,000 for the return of the negatives. He responded that “Under no circumstances would I ever be able to get that kind of money * * * then they reduced the amount to * * * $2500, which I said was just as ridiculous * * * and after about an hour and a half or so, I told them that the best thing that I could do under any circumstances was to give them maybe $500 or $600. They wanted me to go down to the hotel and get it from friends. I told them that I couldn’t do that, but that I would give them $100 now, plus the money that I had on the table, which was about $50 or $60, and they took $50 of it and left me with the $15. I told them I would go down to the hotel and write a cheek and give them $100.” Moxley told him that he would be contacted at home and would have to bring the rest of the money to Chicago; Al-tobella and Moxley stated that they would tell him when and where the meeting would take place. They did not state whether the contact would be by phone or letter. Altobella then drove the victim to the Sherman House and waited outside for 10 or 15 minutes while he went to his hotel room, obtained his checkbook and wrote a cheek, which he cashed at the desk. He then delivered $100 to Altobel-la who was waiting about a block from the hotel. Appellants concede that the foregoing facts established a violation of the Illinois Criminal Code. They dispute the sufficiency of the following additional facts as a basis for federal jurisdiction. Appellants knew their victim was from Philadelphia. They knew he intended to obtain the $100 by cashing a personal check. The check was drawn on a Philadelphia bank. After being cleared through two Chicago banks, it was forwarded to Philadelphia by mail on October 24. Altobella accepted the $100 proceeds and thereafter distributed $50 to Patterson. II. Both counts of the indictment focus on the use of the mails to carry on an unlawful activity, to wit, extortion in violation of Illinois law. Both counts charge that the unlawful activity continued after the use of the mails. It is the government’s theory that the mails were used on October 20, 1967, when appellants caused their victim to cash a $100 cheek which was then irrevocably started on its way to Philadelphia. The defendants contend that the mails were not used until October 24, 1967, when the Federal Reserve Bank in Chicago forwarded the item to Philadelphia. Both parties agree that the charges in the indictment required proof that appellants’ unlawful activity was carried on after the “use” of the mails within the meaning of 18 U.S.C. § 1952. The requirement of unlawful activity “thereafter” is satisfied, according to the government, by Altobella’s acceptance of $100 and his delivery of part of those proceeds to Patterson. Theoretically, the conspiracy charge and the substantive charge could raise different issues. On the peculiar facts of this ease, however, both counts present us with the question whether a violation of the Travel Act has been established. There is no evidence in the record of any actual or intended use of the mails by appellants with the single exception of their acceptance of their victim’s offer to cash a check for $100 at his hotel. For the purpose of decision, we find it unnecessary to decide whether the use of the mails occurred on October 20 or October 24, 1967, within the meaning of 18 U.S.C. § 1952. We assume with the government that causing the check to be cashed on October 20 established the time when appellants’ use of the mails occurred. We do not agree, however, that that one act, plus what happened “thereafter,” was sufficient to invoke the federal statute. III. The relevant statutory language reads as follows: “§ 1952. Interstate and foreign travel or transportation in aid of racketeering enterprises. “(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to— “(1) distribute the proceeds of any unlawful activity; or “(2) commit any crime of violence to further any unlawful activity ; or “(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.” In general, the purpose of the Travel Act was to attack criminal activities extending beyond the borders of one state by providing federal assistance in situations in which local law enforcement was ineffective. United States v. Nardello, 393 U.S. 286, 290-292, 89 S.Ct. 534, 21 L.Ed.2d 487. Two principal ingredients of the offense were specified: the kind of unlawful activity characteristically pursued by organized crime; and the use of interstate facilities in aid of the criminal enterprise. That Congress did not intend to exercise its full constitutional powers in the area of local law enforcement is demonstrated by the wording of the Act and specifically by the use of the word “thereafter.” As the Senate report on S.1653 states: “ * * * to come within the provisions of the bill some activity in furtherance of a racketeering enterprise, subsequent to the performance of the travel, must take place * * * accordingly the gravamen of the offense will be travel and a further overt act to aid the enterprise.” S.Rep.No.644, 87th Cong., 1st Sess.1961, p. 2. To warrant federal intervention we believe the statute requires a more significant use of a facility of interstate commerce in aid of the defendants’ unlawful activity than is reflected on this record. Cf., United States v. Hawthorne, 356 F.2d 740 (4th Cir. 1966), cert. denied 384 U.S. 908, 86 S.Ct. 1344, 16 L.Ed.2d 360. Thus, a gambling operation conducted on an interstate carrier, United States v. Brennan, 394 F.2d 151 (2nd Cir. 1968), cert denied 393 U.S. 839, 89 S.Ct. 117, 21 L.Ed.2d 110, or by regularly traveling across a state line to obtain essential supplies, United States v. Puntillo, 440 F.2d 540 (7th Cir. 1971); the employment of out-of-state specialists in aid of the criminal enterprise, United States v. Roselli, et al., 432 F.2d 879 (9th Cir. 1970), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828; the use of interstate “credit cards” and mailing lists to attract out-of-state patrons, United States v. Rizzo, 418 F.2d 71 (7th Cir. 1969); and the use of a Western Union ticker tape recording information received from out of state as a regular and continuous element of the illegal enterprise, United States v. Miller, 379 F.2d 483 (7th Cir. 1967); all provide examples in which federal assistance to local law enforcement is entirely appropriate and clearly contemplated by the history and language of the Travel Act. But there is nothing about the appellants’ enterprise, as disclosed by the evidence, which suggests any reason why state police powers need to be supplemented by the federal government. The use of the mails by the bank through which appellants’ victim’s check was cleared, a few days after it had been cashed at the Sherman House, was purely incidental to appellants’ sordid scheme. Their purpose would have been achieved equally well if the victim had borrowed $100 from associates at the hotel or written a check on a local bank. Moreover, the unlawful activity which followed the cashing of the cheek was merely the payment of $50 to Patterson. Unquestionably, the distribution of proceeds of criminal activity may satisfy the “thereafter” requirement of the statute in a proper case. But when both the use of the interstate facility and the subsequent act are as minimal and incidental as in this case, we do not believe a federal crime has been committed. Unquestionably appellants’ unsuccessful attempt “to make a fast buck” is punishable as a crime. We merely hold that the State of Illinois is the appropriate sovereign to prosecute their offense. We do not believe Congress intended to authorize federal intervention in local law enforcement in a marginal case such as this. We are guided by the Supreme Court’s admonition “that in ascertaining the scope of congressional legislation a due regard for a proper adjustment of the local and national interests in our federal scheme must always be in the background, * * * ” Federal Trade Commission v. Bunte Brothers, Inc., 312 U.S. 349, 351, 61 S.Ct. 580, 582, 85 L.Ed. 881. The judgment is reversed. . Ill.Rev.Stat., Ch. 38, § 16-1 (1969). . Patterson was separately indicted; after the conviction of Altobella and Moxley, the charges against her were dismissed. . In the ensuing several days Altobella showed her an apartment he had rented (lie paid tlie weekly rent of $30 in advance on September 27, October 5, and October 12). He explained liow the pictures would be taken, and pointed out that a telephone had been installed to enable her to call before she brought the badger to the apartment. In general, Al-tobella reported that the project was going “pretty good except we need some money for photographic equipment.” . The witness testified that he assumed the contact would be by telephone, but that assumption was stricken. . Count One of the indictment charged a violation of 18 TJ.S.C. § 371. It charged that appellants engaged in a conspiracy with Patterson beginning on or about October 1, 1967, and continuing until October 20, 1967, to use “facilities in interstate commerce, to wit, the United States Mail,” to carry on “an unlawful activity, to wit, extortion, in violation of the laws of the State of Illinois,” and thereafter to “perform acts of promotion, management, establishment and carrying- on of the said unlawful activity, in violation of Title 18, United States Code, Section 1952.” Count Two charged that on October 20, 1967, appellants and Patterson did use and cause to be used the United States Mail to carry on an unlawful activity, “and thereafter, on or about October 20, 1967,” they did perform acts facilitating the carrying on of said unlawful activity-in violation of 18 U.S.C. § 1952. . Except for the evidence tending to prove the substantive violation, the record contains no evidence tending to prove the conspiracy charged in the indictment. The government argues that the indictment may be read to contemplate future mailings in aid of the criminal enterprise. But if that reading is warranted, it is unsupported by proof. . “Testimony produced at the hearings clearly demonstrated the interstate network of criminals engaged in such unlawful activities. It further demonstrated the need for the assistance of the Federal Government in view of the fact that law enforcement authorities are limited and hindered by the interstate nature of these activities.” H.R.Rep.No.966, 87th Cong., 1st Sess., 1961 p. 3. In a letter dated April 6, 1961 (reprinted in H.R.Rep.X'o.966, supra, at p. 4), addressed to the Speaker of the House of Representatives, Attorney General Kennedy stated, in part: “Over the years an ever-increasing portion of our national resources has been diverted into illicit channels. Because many rackets are conducted by highly organized syndicates whose influence extends over State and National borders, the Federal Government should come to the aid of local law enforcement authorities in an effort to stem such activity. “The bill which I submit to the Congress would impose criminal sanctions upon the person whose work takes him across State or National boundaries in aid of certain ‘unlawful activities.’ »!> ^ “The effect of this legislation would be to impede the clandestine flow of profits from criminal ventures and to bring about a serious disruption in the far-flung organization and management of co-ordinated criminal enterprises. It would thus be of material assistance to the States in combatting pernicious undertakings which cross State lines.” . “The Attorney General testified before the committee on May 17, 1961, in support of the bill. In this testimony he cited numerous instances of the use of the facilities of interstate commerce by racketeers and hoodlums to promote the illegal enterprise, to distribute the proceeds among the syndicate members of illegal gambling, liquor, narcotics, and prostitution business and the use of the facilities for the commission of crimes of violence in furtherance of the unlawful activities.” H.R.Rep.No.966, supra at p. 2. See S.Rep.No.644, 87th Cong., 1st Sess. 1961; Pollner, “Attorney General Robert F. Kennedy’s Legislative Program to Curb Organized Crime and Racketeering,” 28 Brooklyn L.Rev. 37 (1961); Miller, “The ‘Travel Act,’ a New Statutory Approach to Organized Crime in the United States,” 1 Duquesne L.Rev. 181 (1963). . The conference report accompanying the final version of S.1653, which is now 18 U.S.C. § 1952, makes it clear that adoption of the House proposal, which combined the two sections of the Senate draft and eliminated the words “after such travel” as superfluous, did not change the bill substantively. H.R. Conference Report No. 1161, 87th Cong., 1st Sess. 1961, p. 4. The government has not argued that the scope of the Act is broader when use of the mails is charged. The Senate report explains the Keating amendment to S.1653 extending the coverage of the statute to use of the mails. There is no suggestion in the report that the scope of the Act is intended to be broader when the mails or other facilities of interstate, rather than travel, are involved. See S-Rep. No.644, supra, at p. 2. . The following excerpts from the Attorney General’s testimony at the Senate hearings on June 6, 1961, are quoted in the Senate report accompanying S.1653: “Let me say from the outset that we do not seek or intend to impede the travel of anyone except persons engaged in illegal businesses as spelled out in the bill. * * * * * “The target clearly is organized crime. The travel that would be banned is travel ‘in furtherance of a business enterprise’ which involves gambling, liquor, narcotics, and prostitution offenses or extortion or bribery. Obviously, we are not trying to curtail the sporadic, casual involvement in these offenses, but rather a continuous course of conduct sufficient for it to be termed a business entex'pi’ise. “When the tightly wx-itten px-ovisions of this bill are set against the tx'e-mendous area of interstate commex-ce which involves traveling by individuals, I believe it is clear that we have carefully delineated an area of law enforcement which will disrupt the organized criminal syndicates without intei’fei’ing with general travel. “Our investigations also have made it quite clear that only the Federal Government can shut off the funds which pex-mit the top men of organized crime to live far from the scene and, therefore, remain immune from the local officials. So we believe that the Federal Government has a definite responsibility to move against these people and limit their use of interstate commerce.” S. Eep.No.644, supra, at p. 3. In summarizing the bill on the floor of the Senate, Senator Eastland stated, in part: “The Committee has received testimony that the complex operations of today’s ox’ganized ei'iminal syndicate x-ecognize no state bouxxdai'ies. S.1653 is intended to disxaxpt the intexxstate operation of these criminal organizations by making it impossible for organized gambling and other illegal activities to opex-ate on an intei-state scale beyond the reach of • local law enforcement agencies. j¡; :¡: * í¡; :¡í “The Committee has tightened the bill to require that the individual doing the traveling for an illegal purpose must, after his travel, perforan or attempt to perfox-m one of the acts fox’bidden by the bill.” 107 Cong.Rec., Part 10, p. 13943. . We have no occasion to consider the constitutional limits of federal power over local crimes because it is clear that Congress did not intend to exercise its full power over cx-iminal activities that merely affect interstate commerce. It was primarily concerned with the interstate activity itself. Compare Federal Trade Commission v. Bunte Brothers, Inc., 312 U.S. 349, 351, 61 S.Ct. 580, 85 L.Ed. 881, with United States v. Frankfort Distilleries, Inc., 324 U.S. 293, 298, 65 S.Ct. 661, 89 L.Ed. 951. See also, Marshall v. United States, 355 F.2d 999, 1004 (9th Cir. 1966). . The government also suggests that the application of the statute is warranted by the fact that appellants’ victim was from out of state. That theory, however, is not set forth in the indictment and there was no evidence of a plan to lure out-of-state victims to Chicago, or even that the conspirators intended to select an out-of-town victim. Moreover, the application of the statute on a comparable theory has just been squarely rejected by the Supreme Court. Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (decided April 5, 1971). . It is clear that Congress did not intend to preempt state prosecutions in this area. H.R.Rep.No.966, supra, at p. 3. 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_issue_9	12	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. WESTERN PACIFIC RAILROAD CO. et al. No. 18. Argued October 15, 1956. Decided December 3, 1956. Morton Hollander argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Doub, Ralph S. Spritzer and Melvin Richter. Frederick Bernays Wiener argued the cause for respondents. With him on the brief was Lawrence Cake. Mr. Justice Harlan delivered the opinion of the Court. The three respondent railroads each sued in the Court of Claims to recover from the United States as shipper the difference between the tariff rates actually paid and those allegedly due on 211 Army shipments of steel aerial bomb cases filled with napalm gel. Approximately 200 of the shipments were made over the lines of respondents Bangor and Seaboard in 1944; the remainder were carried by respondent Western Pacific in 1948 and 1950. Napalm gel is gasoline .which has been thickened by the addition of aluminum soap powder. The mixture is inflammable but not self-igniting. In a completed incendiary bomb the napalm gel is ignited by white phosphorus contained in a burster charge, which in turn is fired by a fuse. These shipments, however, involved only the steel casings and the napalm gel; burster and fuse had not yet been added. The carriers billed the Government at the high first-class rates established in Item 1820 of Consolidated Freight Classification No. 17 for “incendiary bombs.” Pursuant to § 322 of the Transportation Act of 1940, the Government paid the bills of the Bangor and the Seaboard as presented; on post-audit, however, the General Accounting Office made deductions against these respondents’ subsequent bills on other shipments, on the ground that the shipments in question should have been carried at the lower, fifth-class, rate applicable to gasoline in steel drums. The bills of the Western Pacific were initially paid at the lower rate. Respondents thereupon brought the present suits to recover the difference between the bills as rendered and as paid in the case of the Western Pacific, and the amount of the deductions in the other two cases. The Government defended on three grounds: (1) that Item 1820 was inapplicable because absence of burster and fuse deprived these bombs of the essential characteristics of “incendiary bombs,” and hence no additional sums were due; (2) that if this tariff item was held to govern, the tariff would be unreasonable as applied to these shipments, and that as to this issue the court proceedings should be suspended and the matter referred to the Interstate Commerce Commission; and (3) that in any event the Bangor and Seaboard were estopped from charging the “1820” rate. The Court of Claims, relying on its earlier decision in Union Pacific R. Co. v. United States, 125 Ct. Cl. 390, 111 F. Supp. 266, entered summary judgment for respondents, two judges dissenting. It held that the shipments in question were “incendiary bombs” within the meaning of Item 1820 of the tariff and thus entitled to the higher rate. In addition, while seemingly recognizing the Government's right to have the defense of unreasonableness determined by the Interstate Commerce Commission, the court ruled that the running of the two-year period of limitations provided by § 16 (3) of the Interstate Commerce Act cut off the right of referral to the Commission. Lastly, the court overruled the defense of estoppel as to the respondents Bangor and Seaboard. Because of the importance of these questions in the administration of the Interstate Commerce Act, and alleged conflict among the lower courts on the issue of limitations, we granted certiorari. 350 U. S. 953. I. We are met at the outset with the question of whether the Court of Claims properly applied the doctrine of primary jurisdiction in this case; that is, whether it correctly allocated the issues in the suit between the jurisdiction of the Interstate Commerce Commission and that of the court. In the view of the court below, the case presented two entirely separate questions. One was the question of the construction of the tariff — whether Item 1820 was applicable to these shipments. The second was the question of the reasonableness of that tariff, if so applied. The Court of Claims assumed, as it had in the Union Pacific case, supra, that the first of these — whether the “1820” rate applied — was a matter simply of tariff construction and thus properly within the initial cognizance of the court. The second — the reasonableness of the tariff as applied to these shipments — it seemed to regard as being within the initial competence of the Interstate Commerce Commission. Before this Court neither side has questioned the validity of the lower court’s views in these respects. Nevertheless, because we regard the maintenance of a proper relationship between the courts and the Commission in matters affecting transportation policy to be of continuing public concern, we have been constrained to inquire into this aspect of the decision. We have concluded that in the circumstances here presented the question of tariff construction, as well as that of the reasonableness of the tariff as applied, was within the exclusive primary jurisdiction of the Interstate Commerce Commission. The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. “Exhaustion” applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course. “Primary jurisdiction,” on the other hand, applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views. General American Tank Car Corp. v. El Dorado Terminal Co., 308 U. S. 422, 433. No fixed formula exists for applying the doctrine of primary jurisdiction. In every case the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation. These reasons and purposes have often been given expression by this Court. In the earlier cases emphasis was laid on the desirable uniformity which would obtain if initially a specialized agency passed on certain types of administrative questions. See Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426. More recently the expert and specialized knowledge of the agencies involved has been particularly stressed. See Far East Conference v. United States, 342 U. S. 570. The two factors are part of the same principle, “now firmly established, that in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.” Id., at 574-575. The doctrine of primary jurisdiction thus does “more than prescribe the mere procedural time table of the lawsuit. It is a doctrine allocating the law-making power over certain aspects” of commercial relations. “It transfers from court to agency the power to determine” some of the incidents of such relations. Thus the first question presented is whether effectuation of the statutory purposes of the Interstate Commerce Act requires that the Interstate Commerce Commission should first pass on the construction of the tariff in dispute here; this, in turn, depends on whether the question raises issues of transportation policy which ought to be considered by the Commission in the interests of a uniform and expert administration of the regulatory scheme laid down by that Act. Decision is governed by two earlier cases in this Court. In Texas & Pacific R. Co. v. American Tie & Timber Co., 234 U. S. 138, a shipper attempted to ship oak railroad ties under a tariff for “lumber.” . The carrier rejected them, urging that such ties were not lumber. In a damage action expert testimony was received on the question. This Court, however, held that the Interstate Commerce Commission alone could resolve the question. The effect of the holding is clear: the courts must not only refrain from making tariffs, but, under certain circumstances, must decline to construe them as well. A particularization of such circumstances emerged in Great Northern R. Co. v. Merchants Elevator Co., 259 U. S. 285. There the Court held that where the question is simply one of construction the courts may pass on it as an issue “solely of law.” But where words in a tariff are used in a peculiar or technical sense, and where extrinsic evidence is necessary to determine their meaning or proper application, so that “the enquiry is essentially one of fact and of discretion in technical matters,” then the issue of tariff application must first go to the Commission. The reason is plainly set forth: such a “determination is reached ordinarily upon voluminous and conflicting evidence, for the adequate appreciation of which acquaintance with many intricate facts of transportation is indispensable; and such acquaintance is commonly to be found only in a body of experts.” Id., at 291. We must therefore decide whether a determination of the meaning of the term “incendiary bomb” in Item 1820 involves factors “the adequate appreciation of which” presupposes an “acquaintance with many intricate facts of transportation.” We conclude that it does. A tariff is not an abstraction. It embodies an analysis of the costs incurred in the transportation of a certain article and a decision as to how much should, therefore, be charged for the carriage of that article in order to produce a fair and reasonable return. Complex and technical cost-allocation and accounting problems must be solved in setting the tariff initially. In the case of “incendiary bombs,” since it is expensive to take the elaborate safety precautions necessary to carry such items in safety, evidently there must have been calculation of the costs of handling, supervising and insuring an inherently dangerous cargo. In other words, there were obviously commercial reasons why a higher tariff was set for incendiary bombs than for, say, lumber. It therefore follows that the decision whether a certain item was intended to be covered by the tariff for incendiary bombs involves an intimate knowledge of these very reasons themselves. Whether steel casings filled with napalm gel are incendiary bombs is, in this context, more than simply a question of reading the tariff language or applying abstract “rules” of construction. For the basic issue is how far the reasons justifying a high rate for the carriage of extra-hazardous objects were applicable to the instant shipment. Do the factors which make for high costs and therefore high rates on incendiary bombs also call for a high rate on steel casings filled with napalm gel? To answer that question there must be close familiarity with these factors. Such familiarity is possessed not by the courts but by the agency which had the exclusive power to pass on the rate in the first instance. And, on the other hand, to decide the question of the scope of this tariff without consideration of the factors and purposes underlying the terminology employed would make the process of adjudication little more than an exercise in semantics. The main thrust of the Government’s argument on the construction question went to the fact that the shipments here involved were not as hazardous as contemplated by the term “incendiary bomb” as used in the tariff, and that therefore the tariff should not be construed to cover them. Similarly, the dissenting judges below emphasized the absence from the shipments of the commercial factors which call for a high rate on incendiary bombs: “If the reason for the high freight rate is the incendiary quality of the freight, and if the freight does not have the incendiary quality, the reason for the high rate vanishes and the rate should vanish with it.” 132 Ct. Cl., at 118, 131 F. Supp., at 921. The difficulty with this line of argument is that we do not know whether the “incendiary quality of the freight” was in fact the reason for the high rate, still less whether that was the only reason and how much weight should be assigned to it. Courts which do not make rates cannot know with exactitude the factors which go into the rate-making process. And for the court here to undertake to fix the limits of the tariff’s application without knowledge of such factors, and the extent to which they are present or absent in the particular case, is tantamount to engaging in judicial guesswork. It was the Commission and not the court which originally determined why incendiaries should be transported at a high rate. It is thus the Commission which should determine whether shipments of napalm gel bombs, minus bursters and fuses, meet those requirements; that is, whether the factors making for certain costs and thus a certain rate on incendiaries are present in the carriage of such incompleted bombs. This conclusion is fortified by the artificiality of the distinction between the issues of tariff construction and of the reasonableness of the tariff as applied, the latter being recognized by all to be one for the Interstate Commerce Commission. For the Government’s thesis on the issue of reasonableness is not that the rate on incendiary bombs is, in general, too high. It argues only that the rate “as applied” to these particular shipments is too high — i. e., that since the expenses which have to be met in shipping incendiaries have not been incurred in this case, the carriers will be making an unreasonable profit on these shipments. This seems to us to be but another way of saying that the wrong tariff was applied. In both instances the issue is whether the factors which call for a high rate on incendiary bomb shipments are present in a shipment of bomb casings full of napalm gel but lacking bursters and fuses. And the mere fact that the issue is phrased in one instance as a matter of tariff construction and in the other as a matter of reasonableness should not be determinative on the jurisdictional issue. To hold otherwise would make the doctrine of primary jurisdiction an abstraction to be called into operation at the whim of the pleader. By no means do we imply that matters of tariff construction are never cognizable in the courts. We adhere to the distinctions laid down in Great Northern R. Co. v. Merchants Elevator Co., supra, which call for decision based on the particular facts of each case. Certainly there would be no need to refer the matter of construction to the Commission if that body, in prior releases or opinions, has already construed the particular tariff at issue or has clarified the factors underlying it. See Crancer v. Lowden, 315 U. S. 631. And in many instances construing the tariff does not call for examination of the underlying cost-allocation which went into the making of the tariff in the first instance. We say merely that where, as here, the problem of cost-allocation is relevant, and where therefore the questions of construction and reasonableness are so intertwined that the same factors are determinative on both issues, then it is the Commission which must first pass on them. We hold, therefore, that both the issues of tariff construction and the reasonableness of the tariff as applied were initially matters for the Commission’s determination. II. We come then to the question of whether referral of these issues to the Commission was barred by the two-year period of limitation contained in § 16 (3) of the Interstate Commerce Act. We hold that it was not. Section 16 (3) (a) provides that "all actions at law by carriers subject to this chapter for recovery of their charges . . . shall be begun within two years from the time the cause of action accrues, and not after.” This provision makes it clear that where a carrier sues a private shipper the action must be brought within two years. However, the Tucker Act, 28 U. S. C. § 2501, provides that “every claim of which the Court of Claims has jurisdiction shall be barred unless the petition thereon is filed . . . within six years after such claim first accrues.” Relying on the broad language of the latter act, the Court of Claims has, since 1926, consistently held that § 16 (3) does not apply to suits by carriers to recover alleged undercharges from the United States as shipper. Southern Pac. Co. v. United States, 62 Ct. Cl. 391; Seaboard Air Line R. Co. v. United States, 113 Ct. Cl. 437, 83 F. Supp. 1012; Union Pacific R. Co. v. United States, 114 Ct. Cl. 714, 86 F. Supp. 907. The present suits were thus held timely brought, even though more than two years had elapsed since the accrual of the cause of action. However, the Court of Claims held that the two-year limitation of § 16 (3) did bar the Government from obtaining a reference of its defense of unreasonableness to the Interstate Commerce Commission. Presumably it would have ruled likewise as to the issue of tariff construction had it regarded that question as lying initially within the competence of the Commission. In other words, the holding below was that the United States can be sued for six years but can raise certain defenses only if the suit is brought in the first two of those years. We may assume, without deciding, that the Government would have been barred by § 16 (3) from filing an affirmative suit before the Commission to recover overcharges from a carrier. Nevertheless we do not think that the statute operates to bar reference to the Commission of questions raised by way of defense in suits which are themselves timely brought. Respondents in effect ask us to hold that a suit may be brought for six years but that certain defenses thereto may be raised only for two years. Only the clearest congressional language could force us to a result which would allow a carrier to recover unreasonable charges with impunity merely by waiting two years before filing suit. Section 16 (3) does not deal with referral of questions to the Commission incident to judicial proceedings. On its face it has to do only with the commencement of actions or reparation proceedings before the Commission. There is therefore no language which militates against the conclusion that the statute does not apply to referrals. More important, the basic policy behind statutes of limitations has no relevance to the situation here. The purpose of such statutes is to keep stale litigation out of the courts. They are aimed at lawsuits, not at the consideration of particular issues in lawsuits. Here the action was already in court and held to have been brought in time. To use the statute of limitations to cut off the consideration of a particular defense in the case is quite foreign to the policy of preventing the commencement of stale litigation. We think it would be incongruous to hold that once a lawsuit is properly before the court, decision must be made without consideration of all the issues in the case and without the benefit of all the applicable law. If this litigation is not stale, then no issue in it can be deemed stale. It is argued that this Court has construed § 16 (3) as “jurisdictional” and that the Commission is therefore barred absolutely from hearing questions as to the reasonableness of rates arising in suits brought after two years, whether such questions come to the Commission by way of referral or in an original suit. Reliance is placed upon A. J. Phillips Co. v. Grand Trunk R. Co., 236 U. S. 662; William Danzer & Co. v. Gulf & S. I. R. Co., 268 U. S. 633; Midstate Co. v. Pennsylvania R. Co., 320 U. S. 356. But these cases all dealt with affirmative claims for the recovery of transportation charges, and not with referrals incident to suits which were originally brought in time. The teaching of the Midstate case, for instance, is that the running of the statute destroys the right to affirmative recovery as well as the remedy, so that the period of limitations cannot be waived by the parties. But here the Government is not asserting a right to affirmative recovery. It is seeking only to have adjudicated questions raised by way of defense. It is therefore irrelevant whether the statute of limitations is “jurisdictional” or not; the question would still remain whether Congress intended it to apply to referrals as well as to affirmative suits. Nor does Morrisdale Coal Co. v. Pennsylvania R. Co., 230 U. S. 304, help the respondents. There again the statute of limitations was invoked against a plaintiff in order to bar an affirmative claim which was untimely filed. A coal shipper had sued a carrier for damages arising out of the alleged discriminatory allotment of railroad cars for its use. Stating that the propriety of the carrier’s method of allotment, even though incident to a damage action, was cognizable only by the Commission, and that redress there was governed by the two-year statute of limitations, the Court held that the statute could not be evaded by filing suit in the District Court, rather than before the Commission, and then having the barred claim adjudicated by referral to the latter. In effect the holding was that the plaintiff had invoked the wrong tribunal, and that since limitations barred suit before the correct tribunal no referral could be made to the latter. Morrisdale must be limited to its peculiar facts, and we shall not extend it to bar the referral of defenses in actions properly and timely brought, as the Court of Claims has held this one was. We are told that the Government can protect itself, when it believes it has been charged an unreasonable rate, by filing an affirmative claim for reparations with the Commission within the two-year period provided by § 16 (3). But Congress has relieved the Government from filing such anticipatory suits by expressly authorizing the General Accounting Office to deduct overpay-ments from subsequent bills of the carrier if, on post-audit, it finds that the United States has been overcharged. This right was thought to be a necessary measure to protect the Government, since carriers’ bills must be paid on presentation and before audit. On respondents’ theory the Government could invoke this right only at the peril of losing its defenses in a later suit by the carrier. Evidently this was not tire purpose of Congress in authorizing unilateral set-off. We hold, therefore, that the limitation of § 16 (3) does not bar a reference to the Interstate Commerce Commission of questions raised by way of defense and within the Commission’s primary jurisdiction, as were these questions relating to the applicable tariff. III. There remains the question of whether the Court of Claims properly dismissed the Government’s defense of estoppel as to the respondents Bangor and Seaboard. We deal with it now because that defense would be reached should the further proceedings below, which must follow in consequence of what we have already said, result in adherence to the view that Item 1820 applies to these shipments. The Government’s claim is that the Bangor and Seaboard were estopped from charging the “1820” rate because of the Army’s reliance on a ruling of the Official Classification Committee, a railroad tariff agency to which these two respondents belonged, that this type of napalm gel bomb shipment would be carried at a lower rate. The Court of Claims rejected this defense because (1) the ruling was later withdrawn by the Committee; (2) the Government had shown no detrimental reliance on the ruling; (3) it had paid the high rate billed for all shipments; and (4) neither carrier had acquiesced in the Committee’s ruling. We think that the Court of Claims erred in disposing of this defense by summary judgment. It appears to be undisputed that the ruling in question was not rescinded until after all of these shipments had been made. The Government’s affidavits in opposition to the motion for summary judgment were, in our opinion, sufficient to entitle it to an opportunity to prove reliance and detriment. The fact that the Government paid the carrier’s bills as rendered is without significance in light of § 322 of the Transportation Act, supra, requiring payment “upon presentation” of such bills and postponing final settlement until audit. And the question whether the Official Classification Committee had authority to bind these two carriers to acceptance of a lower rate presents issues of fact which must be tried. Nor, unlike the case of a private shipper, do we think that the defense of estoppel is unavailable to the Government. See 49 U. S. C. § 22. Cf. Oregon-Wash. R. & N. Co. v. United States, 255 U. S. 339; Western Pac. R. Co. v. United States, 255 U. S. 349. We conclude that the Government should have an opportunity to prove estoppel, without any intimation, of course, as to whether it will be able to establish the defense. The judgment below must be reversed and the case remanded to the Court of Claims for further proceedings not inconsistent with this opinion. It is so ordered. The suits were brought under the Tucker Act, 28 U. S. C. § 1491. 54 Stat. 955, 49 U. S. C. § 66. This section provides: “Payment for transportation of the United States mail and of persons or property for or on behalf of the United States by any common carrier subject to the Interstate Commerce Act, as amended, or the Civil Aeronautics Act of 1938, shall be made upon presentation of bills therefor, prior to audit or settlement by the General Accounting Office, but the right is hereby reserved to the United States Government to deduct the amount of any overpayment to any such carrier from any amount subsequently found to be due such carrier.” It is not entirely clear from the record just what rate the Government believes is applicable to these shipments. It seems to concede that Item 1895 of Consolidated Freight Classification No. 17, covering “Empty Aerial Bombs,” does not apply, although this was the original classification assigned to such shipments by the Official Classification Committee, a railroad tariff agency. The essence of the Government’s position seems to be that these shipments, being nonincendiary, were a mere combination of gasoline, napalm thickener, and steel casings. Since these three items, standing alone, are all carried at the fifth-class rate, the Government urges that the “combination rule” should apply and the articles be carried at the same fifth-class rate under Rule 18 of Consolidated Freight Classification No. 17. In that case the Court of Claims held Item 1820 applicable to shipments similar to those involved here. The Government did not seek review of that decision. 132 Ct. Cl. 115, 131 F. Supp. 919. The dissenters were Judge Madden and Chief Judge Jones. 24 Stat. 384, as amended, 49 U. S. C. § 16 (3). The Court of Claims stated in the Union Pacific case, 125 Ct. Cl., at 393, 111 F. Supp., at 268: “At the outset, it should be noted that while this court has no rate-making functions . . . the construction and application of published rates and classifications are proper matters for the courts as well as for the Interstate Commerce Commission.” Jaffe, Primary Jurisdiction Reconsidered, 102 Univ. Pa. L. Rev. 577, 583-584 (1954). In response to the motion for summary judgment the Government presented affidavits by chemical engineers stating that napalm gel is not incendiary. But these affidavits become meaningful only if the court knows the precise relevance of the incendiary quality of the shipments to the setting of the rate. The artificiality of trying to separate the issue of “construction” from that of “reasonableness as applied” is illustrated by the Court of Claims’ holding in the Union Pacific case, supra. There, after holding that the absence of bursters and fuses did “not affect the identity of the articles” as incendiary bombs, the court went on to say that “it may well be that a lower tariff rate should apply to the carriage of the less hazardous incendiary bomb [one without burster and fuse]. This question is not within our jurisdiction, however, as the question of the reasonableness of rates is a matter entrusted by Congress solely to the Interstate Commerce Commission.” 125 Ct. Cl., at 393, 394, 111 F. Supp., at 268. Similarly, the Government here concedes that the question of hazard “goes to the issue of reasonableness,” although arguing that it is “also relevant to the question of tariff interpretation, for, like any other instrument, a tariff is to be read in the light of its known purposes and in a manner which avoids unnecessary and gross unfairness.” 24 Stat. 384, as amended, 49 U. S. C. § 16 (3) (a). The suits were instituted in 1954. In the Western Pacific case the carrier's claims accrued in 1948 and 1950, when the United States paid the lower rate instead of the “1820” rate for which it was billed. As to the Bangor and Seaboard cases, where the United States initially paid the “1820” rate as billed (presumably in 1944 when the shipments were made), and subsequently readjusted that rate on post-audit, it is impossible to say when the claims accrued as the record is silent as to when the post-audit readjustment was made. Although questioning the soundness of this ruling which subjects carriers’ claims against the United States as shipper to a more lenient statute of limitations than that applicable to their claims against other shippers, the Government has not challenged it here. We therefore do not pass on it. The opinion of the Court of Claims does not expressly refer to the two-year period of § 16 (3). The cases cited by the court, however, make it clear that it had in mind that provision, probably § 16 (3) (c), which reads: “For recovery of overcharges action at law shall be begun or complaint filed with the commission against carriers subject to this chapter within two years from the time the cause of action accrues, and not after . . . .” The fact that in this instance the issues of tariff “construction” and “reasonableness” were both referrable to the Commission does not, of course, bring the ease within Morrisdale. Both of these questions were issues only by reason of the Government’s defense; neither was part of the carrier’s affirmative case. In other words, had the applicability of this tariff not been challenged by the Government, the carrier’s own ease would have presented nothing which was referrable to the Commission. See n. 2, supra. Statistics furnished by the Comptroller General show that since 1948 the General Accounting Office has post-audited 17,220,783 bills presented by carriers. In the same period post-audit revealed overpayment in 1,102,654 cases. The magnitude of these figures underscores the impossibility of requiring the Government to file anticipatory suits before the I. C. C. in every case where it thinks the carrier might later sue to recover the amount set off by the Government. The estoppel defense is not asserted against the Western Pacific, so that this case must in any event go to the Commission. Hence adjudication of the estoppel defense as to the Bangor and Seaboard would no doubt await the Commission's determination as to whether the “1820” tariff was applicable to these shipments, and reasonable if so applied. The ruling was made in 1943 and was confirmed in 1945. The Bangor and Seaboard shipments were made in 1944. A private shipper may not invoke the defense of estoppel to prevent a carrier from collecting a higher applicable tariff rate than that which may have been actually quoted by the carrier. This results from § 6 (7) of the Interstate Commerce Act, 24 Stat. 380, as amended, 49 U. S. C. §6(7), forbidding departures from the published tariff. See Pittsburgh, Cincinnati, Chicago & St. Louis R. Co. v. Fink, 250 U. S. 577, 583. The same considerations do not obtain when the Government is the shipper, in view of § 22 of the Act, 24 Stat. 387, as amended, 49 U. S. C. § 22, providing that “nothing in this chapter shall prevent the carriage, storage, or handling of property free or at reduced rates for the United States.” Question: What is the issue of the decision? 01. comity: civil rights 02. comity: criminal procedure 03. comity: First Amendment 04. comity: habeas corpus 05. comity: military 06. comity: obscenity 07. comity: privacy 08. comity: miscellaneous 09. comity primarily removal cases, civil procedure (cf. comity, criminal and First Amendment); deference to foreign judicial tribunals 10. assessment of costs or damages: as part of a court order 11. Federal Rules of Civil Procedure including Supreme Court Rules, application of the Federal Rules of Evidence, Federal Rules of Appellate Procedure in civil litigation, Circuit Court Rules, and state rules and admiralty rules 12. judicial review of administrative agency's or administrative official's actions and procedures 13. mootness (cf. standing to sue: live dispute) 14. venue 15. no merits: writ improvidently granted 16. no merits: dismissed or affirmed for want of a substantial or properly presented federal question, or a nonsuit 17. no merits: dismissed or affirmed for want of jurisdiction (cf. judicial administration: Supreme Court jurisdiction or authority on appeal from federal district courts or courts of appeals) 18. no merits: adequate non-federal grounds for decision 19. no merits: remand to determine basis of state or federal court decision (cf. judicial administration: state law) 20. no merits: miscellaneous 21. standing to sue: adversary parties 22. standing to sue: direct injury 23. standing to sue: legal injury 24. standing to sue: personal injury 25. standing to sue: justiciable question 26. standing to sue: live dispute 27. standing to sue: parens patriae standing 28. standing to sue: statutory standing 29. standing to sue: private or implied cause of action 30. standing to sue: taxpayer's suit 31. standing to sue: miscellaneous 32. judicial administration: jurisdiction or authority of federal district courts or territorial courts 33. judicial administration: jurisdiction or authority of federal courts of appeals 34. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from federal district courts or courts of appeals (cf. 753) 35. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from highest state court 36. judicial administration: jurisdiction or authority of the Court of Claims 37. judicial administration: Supreme Court's original jurisdiction 38. judicial administration: review of non-final order 39. judicial administration: change in state law (cf. no merits: remand to determine basis of state court decision) 40. judicial administration: federal question (cf. no merits: dismissed for want of a substantial or properly presented federal question) 41. judicial administration: ancillary or pendent jurisdiction 42. judicial administration: extraordinary relief (e.g., mandamus, injunction) 43. judicial administration: certification (cf. objection to reason for denial of certiorari or appeal) 44. judicial administration: resolution of circuit conflict, or conflict between or among other courts 45. judicial administration: objection to reason for denial of certiorari or appeal 46. judicial administration: collateral estoppel or res judicata 47. judicial administration: interpleader 48. judicial administration: untimely filing 49. judicial administration: Act of State doctrine 50. judicial administration: miscellaneous 51. Supreme Court's certiorari, writ of error, or appeals jurisdiction 52. miscellaneous judicial power, especially diversity jurisdiction Answer:
songer_circuit	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DALE INDUSTRIES, INC., and Wyoming Service Company, Respondents. No. 16286. United States Court of Appeals Sixth Circuit. Feb. 4, 1966. Peter Giesey, Atty., National Labor Relations Board, Washington, D. C., for petitioner, Arnold Ordman, Gen. Counsel, Dominick L. Manolí, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Gary Green, Atty., National Labor Relations Board, Washington, D. C., on the brief. David M. Fried, Detroit, Mich., for respondents, Lampert & Fried, Detroit, Mich., of counsel. Before CELEBREZZE, Circuit Judge, McALLISTER, Senior Circuit Judge, and KENT, District Judge W. Wallace Kent, Chief Judge, United States District Court, W.D., Michigan, sitting by designation. CELEBREZZE, Circuit Judge The National Labor Relations Board seeks enforcement of its orders against Respondents, Dale Industries, Inc. and Wyoming Service Company, here regarded as a single employer and hereinafter referred to as Respondents. The Board found that Respondents violated Section 8(a) (1) of the National Labor Relations Act by threatening reprisals against employees for joining the United Industrial Workers of America, Local 286, and by interrogating employees concerning the extent of Union organization in the Respondents’ plant. The Board also found that Respondents violated Section 8(a) (3) and (1) of the Act by discriminatorily reducing the hours of work of four Union adherents , and later by discharging two of these employees . 29 U.S.C., Section 158(a) (1), and (a) (3). The Board’s decision and orders are reported at 145 N.L.R.B., No. 108. Respondents are Michigan corporations located in Detroit. Respondent Dale Industries, Inc., manufactures and sells metal moldings, gutters, roofing, edges, and related building products. Respondent Wyoming Service, Inc., supplies Dale Industries with manpower. In mid December, 1962, two Union organizers regularly came to the Respondents’ plant and solicited membership of all the employees of Respondents. This solicitation occurred outside the plant and was observed by the Respondents. With several exceptions, all twenty employees of the Respondents signed Union cards during this December solicitation. In January, 1963, two employees, Frai-land and Brostean, asked Albert Fruman, President of Dale Industries, Inc., if they had to join a Union. Fruman answered, “no, you don’t have to join a Union if you don’t want to.” A third employee, Fisher, asked President Fruman if he would lose his job if he signed up with the Union, and Fruman answered, “no, go on back to work”. In mid January, 1963, employee Manee was asked if he signed a Union card. Manee was later told by his supervisor that he would “lease his trucks out” if the Union came in, and the “Union shop would be run by the books”. This conversation took place when his supervisor called Manee to his office to talk about Mance’s work attitude. Oh January 28, 1963, employee Landers asked President Fruman for a ten dollar loan. Fruman objected to lending Landers any money and then told Landers that he was one of the ringleaders of the Union and that he should go to his “Union buddies” for the loan. Fruman then asked employee Ingram to loan ten dollars to Landers. Ingram refused, saying Landers’ credit was no good. No statements concerning the Union were made to employees Ford or Ingram. On the basis of these statements, the Board found that the Respondents violated Section 8(a) (1) of the Act. The National Labor Relations Act specifically provides that the expression of any views shall not be evidence of an unfair labor practice if such expressions contain no threat of reprisal or force or promise of benefit. 29 U.S.C., Section 158(c). Interrogation regarding Union activity does not in and of itself violate the Act. There must be an over-all pattern to restrain or coerce. National Labor Relations Board v. Tennessee Coach Co., 191 F.2d 546 (C.A.6, 1951); Lincoln Bearing Co. v. National Labor Relations Board, 311 F.2d 48 (C.A.6, 1962). Considering the entire record, we are of the opinion that the above comments were made in the exercise of free speech, and that any illegal purpose was so minimal that Section 8(a) (1) of the Act was not violated. On January 28, 1963, the work week of employees Landers, Ford, Ingram and Manee was reduced to three days a week. While Landers worked in several departments, his principal job was working in the gutter department. Prior to his partial lay-off, he had been told his work on the slitting machine was not satisfactory. Ford worked in the valley department. Ingram worked in the slitter, unloaded trucks, and swept the floors. His principal job was as a porter, sweeping floors. Manee was a truck driver, operated the hi-lo and worked in the gutter room. Manee came late to work at least once a week during the several months prior to his partial lay-off. In the first week of January he damaged a hi-lo machine. In December, 1962, shipping had fallen off 25i/2 % over the previous five months, and in January, 1963, shipping had fallen off 53% over the previous five months. Also, a year’s stockpile of “valleys” was on hand. It was for these reasons, Respondents maintain, that the work week of Landers, Ford, Ingram and Manee was reduced. Respondents’ plant was not run on a seniority basis. There were other men whose work week was not reduced who had less seniority than the above four whose work week was reduced. After the reduction, other employees were hired. After two weeks, the new employees were laid off and then, after one week of lay-off, were recalled. While the record is in conflict, it appears the new employees performed jobs which were substantially different from the jobs of the four laid off. Several months later, Ingram and Manee again worked full time. In early February, Landers and Ford were discharged after an argument. Landers and Ford were operating the slitting machine. Landers fed the pipe into the machine and Ford took it up. The pipe was jamming the machine. John Bykaylo was called to fix the machine. This happened several times. The second time Bykaylo and Landers began arguing and calling each other names. Bykaylo left and started to go home. President Fruman was told by Bykaylo that Landers threatened to kill him with a hammer. Fruman talked to Landers and Ford, and both denied that Landers threatened Bykaylo with a hammer. Fruman then asked all three to take lie detector tests. Landers and Ford at first agreed, and then said they would not do so unless a Union man was present. Fruman then discharged Landers and Ford. The Board found the Respondents had violated Section 8(a) (3) and (1) of the Act when they reduced the work week of Landers, Ford, Ingram and Manee, and discharged Landers and Ford. In National Labor Relations Board v. Lassing, 284 F.2d 781 (C.A.6, 1960), this Court held that an employer may curtail operations, with a resulting loss of employment on certain employees, as long as the changes in operations are not illegally motivated. Only discrimination which encourages or discourages membership in a labor organization is prohibited by the Act. Curtailment or suspension of operations, motivated by economic reasons, is not an unfair labor practice under the Act. See National Labor Relations Board v. Adkins Transfer Co., 226 F.2d 324 (C.A.6, 1955); Plasti-Line, Inc. v. National Labor Relations Board, 278 F.2d 482 (C.A.6, 1960). The findings of the Board with respect to questions of fact, if supported by substantial evidence on the record considered as a whole shall be conclusive. National Labor Relations Act, as amended, Sections 10(e) (f), 29 U.S.C., Section 160 (e) (f). Considering the entire record, we conclude there is not substantial evidence of an illegal motive to support the Board’s finding that the partial lay-offs and the discharges violated Section 8(a) (3) and (1) of the Act. There is substantial evidence that the Respondents’ conduct relating to the partial lay-off of the four employees was reasonably adopted to achieve legitimate business ends. By January, 1963, shipping had fallen off 53% over the previous five months. Respondents produced and had on hand a year’s stock of valleys. The reasonable conclusion is that the employees most affected by these adverse economic conditions had their work week reduced. The evidence is likewise substantial that Landers and Ford were discharged because of the argument with Bykaylo, and not because of Union animus on the part of the Respondents. The record does not disclose a prior history of Union animus on the part of the Respondents. The enforcement of the Board’s orders is denied. . Bruce Landers, Robert Ford, Emmett Ingram and John Manee. . Landers and Ford. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
songer_constit	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 constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant. MOBAY CHEMICAL CORPORATION, Appellant in 81-2190 and 81-2191 v. Anne M. GORSUCH, Administrator Environmental Protection Agency, Appellee. PENNWALT CORPORATION, Appellant in 81-2469 v. Anne M. GORSUCH, Administrator Environmental Protection Agency, Appellee. Nos. 81-2190, 81-2191 and 81-2469. United States Court of Appeals, Third Circuit. Argued April 28, 1982. Decided June 22, 1982. Certiorari Denied Nov. 8,1982. See 103 S.Ct. 343. Daniel M. Dibble (argued), C. David Barrier, Lathrop, Koontz, Righter, Clagett & Norquist, Kansas City, Mo., Cloyd R. Mellott, John W. Ubinger, Jr., Eckert, Seamans, Cherin & Mellott, Pittsburgh, Pa., for appellant Mobay Chemical Corp. Aaron C. F. Finkbiner, III (argued), Bradford F. Whitman, Jonathan L. Braff, Dechert, Price & Rhoads, Philadelphia, Pa., for appellant Pennwalt Corp. Marcia E. Mulkey (argued), Carol E. Dinkins, Asst. Atty. Gen., Donald W. Stever, Jr., Anne Almy, Patrick J. Cafferty, Jr., Attys., Dept. of Justice, Washington, D. C., Robert S. McLaughlin, Environmental Protection Agency, Washington, D. C., for appellee. Before ALDISERT, WEIS and BECKER, Circuit Judges. OPINION OF THE COURT WEIS, Circuit Judge. In this appeal, two pesticide manufacturers contend that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) permits an uncompensated taking of their proprietary data. In addition, one manufacturer asserts that certain regulations promulgated by the Environmental Protection Agency are inconsistent with the statute and were adopted without proper observance of the Administrative Procedure Act. We reject the constitutional challenges but, finding lack of compliance with the APA, grant the EPA six months to adopt regulations in the appropriate manner. Three cases have been consolidated here. In the suit brought in the Eastern District of Pennsylvania, Pennwalt Corporation challenged the constitutionality of the 1978 amendments to FIFRA, 7 U.S.C. § 136 et seq., but the district court granted summary judgment in favor of the EPA. Mobay Chemical Corporation mounted a similar attack in the Western District of Pennsylvania, and questioned certain implementing regulations promulgated in 1979 by the EPA. After trial, the district court upheld the statute and regulations. Mobay Chemical Corp. v. Costle, 517 F.Supp. 254 (W.D.Pa.1981). In a separate action, the court modified an injunction against the EPA entered in Mobay Chemical Corp. v. Costle, 447 F.Supp. 811 (W.D.Mo.1978), before the 1978 amendments were enacted and before the case had been transferred to Pennsylvania. Because the 1978 legislation authorized what the Missouri court had enjoined, the injunction was modified to reflect the statutory changes. Mobay Chemical Corporation v. Costle, 517 F.Supp. 252 (W.D.Pa.1981). I FIFRA was enacted originally in 1947. Ch. 125, 61 Stat. 163 (1947). It makes the EPA responsible for regulating pesticides by “registering” only those products whose use will not harm the environment. 7 U.S.C. § 136a. As part of the licensing process, applicants must submit test data to the EPA demonstrating the safety and efficacy of their products. The development of new pesticides requires a great deal of time, money and skill, and consequently the test data represent a substantial investment by applicants. As amended by the Federal Environmental Pesticide Control Act of 1972, FIFRA permitted applicants to designate portions of their data as trade secrets and prohibited the EPA from disclosing this information. Section 10(a) & (b), Pub.L.No.92-516, 86 Stat. 973 (1972). In addition, the statute was changed so that data submitted in support of an application could not be considered by the agency in support of a subsequent application, unless two conditions were met. First, the later applicant had to compensate the original submitter for use of the data, and second, the original submitter did not designate the data as trade secrets. § 3(c)(1)(D). The 1975 amendments to this section further limited the protection against use of information to data submitted on or after January 1, 1970. Act of Nov. 28, 1975, Pub.L.No. 94-140, 89 Stat. 755 (1975). The Federal Pesticide Act of 1978 removed the trade secret protection over test data provided by § 10(b) of the earlier legislation. Pub.L.No.95-396, 92 Stat. 819 (1978). Applicants were granted a 10-year period of exclusive use for information about new chemicals contained in pesticides registered after September 30, 1978. Section 3(c)(1)(D)(i), 7 U.S.C. § 136a(c)(1)(D)(i). But the EPA may, without the permission of the original applicant, use data presented after December 31, 1969, which is not entitled to exclusive use, in support of another application for 15 years following the original submission. In this event, the later applicant must offer to compensate the original submitter. Section 3(c)(1)(D)(ii), 7 U.S.C. § 136a(c)(1)(D)(ii). If the parties cannot agree on the amount of compensation, either may initiate binding arbitration proceedings. Id. No limitation exists on the EPA’s use of data that does not qualify for either the 10-year period of exclusive use or the 15-year period of compensation. Section 3(c)(1)(D)(iii), 7 U.S.C. § 136a(c)(1)(D)(iii). The 1978 amendments also provide for broader disclosure of test data. The EPA may make available to the public any information about the safety and efficacy of pesticides. Section 10(d), 7 U.S.C. § 136h(d). See also, § 3(c)(2)(A), 7 U.S.C. § 136a(e)(2)(A). If necessary, the agency also may disclose trade secret data to contractors with the United States, so long as adequate security measures are taken. Section 10(e), 7 U.S.C. § 136h(e). The EPA may not, however, disclose data to foreign or multinational pesticide producers, unless the original submitter consents. Section 10(g), 7 U.S.C. § 136h(g). Both Pennwalt and Mobay contend that the test data are trade secrets and, as such, constitute intellectual property of “incalculable value.” In their view, the FIFRA provisions allowing the EPA to use and disclose the information amount to a taking without just compensation. The companies also argue that the provision for binding arbitration denies them the right to a judicial determination of just compensation. We have reviewed the statutory amendments only briefly because the challenges made to the constitutionality of the use provisions mirror the contentions advanced in Chevron Chemical Co. v. Costle, 641 F.2d 104 (3d Cir.), cert. denied, 452 U.S. 961, 101 S.Ct. 3110, 69 L.Ed.2d 972 (1981). There, we reviewed at length the legislative history of the amendments and their predecessors, and analyzed the claims of property deprivation. We rejected the constitutional challenges, concluding that, in the “use” context, applicants do not have a property interest in data submitted to the EPA beyond that conferred by FIFRA itself. As a panel, we are bound by Chevron. United States Court of Appeals for the Third Circuit, Internal Operating Procedures Ch. VIIIC (1980). Moreover, the arguments advanced in this appeal fail to convince us that Chevron should be reconsidered by the court en banc. We therefore reiterate that an applicant does not have a property interest in data submitted to the EPA that would prevent the agency from using the information in considering other requests for registration. Since there is no protected property interest as against use of the data, we also reject the contention, as we did in Chevron, that the compulsory arbitration provision deprives the original submitters of the right to a judicial determination of just compensation. For the same reason, we will also uphold the action of the court for the Western District of Pennsylvania modifying the injunction against the EPA to reflect the changes made to FIFRA’s use provisions by the 1978 amendments. Pennwalt and Mobay attempt to place FIFRA’s disclosure provision beyond the Chevron holding. Although that case did not decide whether the EPA’s disclosure of data constitutes a taking, the same rationale applies to this issue with equal force. As we said in Chevron, an applicant has no “continuing property interest, beyond that provided by federal law, applicable to material furnished to a federal agency as a precondition to selling a product in interstate commerce.” 641 F.2d at 116. An applicant may retain his property rights in data by not disclosing it to anyone. But no taking occurs if the applicant chooses to present the information to the government in exchange for a registration with substantial commercial value. In another case, we rejected a similar constitutional claim where an agency’s disclosure of a company’s proprietary information was challenged as an uncompensated taking, saying: “[a] voluntary submission of information by an applicant seeking the economic advantages of a license can hardly be called a taking.” Westinghouse Electric Corp. v. United States, 555 F.2d 82, 95 (3d Cir. 1977). FIFRA’s disclosure provision is not a blanket authorization for the EPA to release confidential information. It limits public disclosure of test data to such matters as the effects of pesticides on human, animal and plant life. Information disclosing manufacturing or quality control processes, details of methods for testing inert ingredients deliberately added to pesticides, and the identity or quantity of such inert ingredients, may not be made public unless necessary for safety purposes. In this circumstance, a mandatory 30-day notification period allows the data submitter to institute an action in a district court to challenge the proposed disclosure. The principle of limited disclosure that Congress applied in § 10 is neither startling nor new. Pesticides serve a useful and important function, but they also may present significant hazards. The public has a very real interest in their use and abuse and may justifiably assert a need to have sufficient information for protection. Congress balanced the understandable desire of the manufacturers to keep their experimental results confidential against the public interest in protecting the health of the community. Both positions were pressed vigorously before Congress, and it adopted a middle ground by providing for limited disclosure. This legislative action was well within constitutional boundaries and we sustain it here. In Corn Products Refining Co. v. Eddy, 249 U.S. 427, 39 S.Ct. 325, 63 L.Ed. 689 (1919), the Supreme Court had no difficulty in rejecting a taking challenge to a statute requiring disclosure of the confidential formula of a food product. After observing that the purpose of the law was to prevent adulteration and misbranding that might mislead purchasers as to the wholesomeness of the product, the Court said: “[I]t is too plain for argument that a manufacturer or vendor has no constitutional right to sell goods without giving to the purchaser fair information of what it is that is being sold. The right of a manufacturer to maintain secrecy as to his compounds and processes must be held subject to the right of the State, in the exercise of its police power and in promotion of fair dealing, to require that the nature of the product be fairly set forth.” 249 U.S. at 431-32, 39 S.Ct. at 327. See also National Fertilizer Association v. Bradley, 301 U.S. 178, 57 S.Ct. 748, 81 L.Ed. 990 (1937). The same principle requires us to reject Pennwalt’s and Mobay’s attacks on FIFRA’s disclosure provision as well. Mobay’s final constitutional challenge is that FIFRA § 3(g), 7 U.S.C. § 136a(g), which directs the EPA to re-register all pesticides “in the most expeditious manner practicable,” deprives the company of its right to compensation for data that other applicants relied on in obtaining twenty-three previous registrations. In Mobay Chemical Corp. v. Costle, 447 F.Supp. 811 (W.D.Mo.1978), the Missouri district court decided that the EPA violated the data compensation requirements of the 1972 amendments by failing to require other companies to compensate Mobay for the use of its data. The court refused to declare the registrations invalid, however, because Mobay would be compensated upon re-registration. At the time the Missouri court decided the case, the statute provided that re-registration was to be completed by October 21, 1977. The 1978 amendments removed this deadline, and Mobay asserts that this change is an uncompensated taking. The district court for Western Pennsylvania held that the delay caused by the 1978 amendment does not amount to a constitutional violation. We agree, and note that the Missouri court did not rely on a set date for the completion of re-registration. On the contrary, that court knew that the process was behind schedule, observing that the statutory deadline had already passed. 447 F.Supp. at 823 n.18. II In addition to the constitutional challenges to FIFRA made by both appellants, Mobay attacks certain regulations adopted by the EPA. This assault has two phases— lack of conformity to the enabling statute, and failure to observe the rulemaking requirements set out in the Administrative Procedure Act. As part of its program to implement the 1978 amendments, the EPA adopted a policy of generally granting only “conditional registrations” under FIFRA § 3(c)(7), 7 U.S.C. § 136a(c)(7). 40 C.F.R. § 162.7(d) and (e). The agency wanted to use a new approach, known as the “generic standards system,” in considering registration and reregistration. 44 Fed.Reg. 76311-12 (Dec. 26, 1979). Under this system, the EPA intends to develop standards for each group of pesticide products containing the same active ingredient. Completion of the generic standards process is expected to take at least 10 years. In the meantime, only conditional registrations will be granted. Mobay contends that FIFRA compels the EPA to review its data after receipt of an application and, as expeditiously as possible, either unconditionally register the pesticide, or deny the registration. Section 3(c)(3), (5), and (6), 7 U.S.C. § 136a(c)(3), (5), and (6). The district court held, however, that the EPA’s conditional registration policy does not contravene the statute. Most of Mobay’s fire is directed at the agency’s “cite all”, or data compensation, regulations. These require that, even if he has presented his own data, an applicant must rely on all information in the EPA files which are pertinent to an evaluation of his product and must compensate each data submitter individually. 40 C.F.R. 162.9-4, -5. Mobay contends that the “cite all” regulations violate FIFRA because the statute allows an applicant a choice of three alternate methods of support. Section 3(c)(1)(D), 7 U.S.C. § 136a(c)(l)(D). He may (1) proffer his own test data, “or alternatively” (2) cite that appearing in the public literature, or (3) rely on information previously submitted to the EPA. Since Mobay believes that its own data is adequate to support its applications, it would not choose to cite that of, and pay compensation to, other manufacturers. At one stage of the proceedings in the district court, the EPA conceded that it shared Mobay’s interpretation of the statute. At other times in the district court, however, and on appeal, the agency has taken the position that the “cite all” regulations are consistent with FIFRA. On these occasions, the EPA views the phrase “if requested by the Administrator” that appears in the subsection as authorizing it to demand cumulative rather than alternative methods of support. The district judge agreed that the regulations are supported by this reading of the statute. Mobay also complained that an EPA data compensation regulation misconstrues the “formulator’s exemption” created by the Act. Section 3(c)(2)(D), 7 U.S.C. § 136a(c)(2)(D). This provision applies to an applicant who seeks to register an end-use product that incorporates a previously registered pesticide purchased from another manufacturer. The end-use applicant is not required to submit or cite data for the incorporated pesticide, nor to offer to pay compensation for the use of previously submitted data. The EPA regulation exempts an end-use formulator from paying any firm for data bearing on the incorporated pesticide. 40 C.F.R. § 162.9-7. Mobay asserts that the exemption should apply only to the manufacturer from whom the formulator purchased the pesticide, since presumably it has included a proportionate share of the testing expense in the price. On the other hand, says Mobay, every other manufacturer who has registered the pesticide is entitled to compensation. The district court disagreed and held that the regulation was consistent with the statute. We need not decide whether the conditional registration and “cite all” regulations are an unreasonable interpretation of FIFRA because we accept Mobay’s contention that the regulations were promulgated in violation of the notice-and-comment and effective date requirements of the Administrative Procedure Act. 5 U.S.C. § 553(b) and (d), and § 706(2)(D). Congress enacted the 1978 FIFRA amendments on September 30, 1978. The EPA published proposed data compensation rules on June 20, 1977, based on the provisions of the then-current statute and on the agency’s then-current policies. 42 Fed.Reg. 31284. As the agency admits, however, the 1978 amendments “drastically altered” the compensation portions of the Act. 44 Fed. Reg. 27945 (May 11, 1979). On July 25, 1978, the EPA published an Advance Notice of Interim Final and Proposed Rulemaking (ANPR) for the conditional registration program, and solicited comments. It included a suggestion that commenters might also wish to address compensation for the use of data. 43 Fed. Reg. 32154-55. On October 6, 1978, the EPA circulated working drafts of the conditional registration and data compensation regulations to over 2500 interested groups, agencies, and organizations. See 44 Fed. Reg. 27932-33. Then, on October 10, 1978, the agency published a notice of open public meetings to be held in Washington, D. C. during the next month to solicit comments on the conditional registration of pesticides as well as on data review and compensation. 43 Fed.Reg. 46555. On May 11, 1979, the EPA promulgated the present conditional registration regulations as interim final rules, and the data compensation regulations as final rules. 44 Fed.Reg. 27932, 27945. Both sets of regulations were made effective immediately. The EPA recognized that the data compensation regulations “differ significantly” from those proposed in June 1977. 44 Fed. Reg. 27950-51. Nevertheless, it invoked the “good cause” exception to the APA’s notice-and-comment requirements on the grounds that reproposal would be “contrary to the public interest” because of the long delay it would cause in resuming the registration program. 5 U.S.C. § 553(b)(B). The EPA justified its action by noting that a working draft was circulated in October and public meetings were held in November 1978, and said it would revise the regulations to the extent appropriate, as judged by its experience and by comments received. Finally, the agency found that these same reasons constituted “good cause” for making the regulations effective immediately, instead of observing the 30-day period between publication and effective date that is otherwise required. 5 U.S.C. § 553(d)(3). The EPA decided not to publish the conditional registration regulations in proposed form because the ANPR, the circulated working draft, and the public meetings had already provided “considerable opportunity for public comment.” 44 Fed.Reg. 27933. Publication of a general notice of proposed rule making is not necessary when the “persons subject thereto . .. otherwise have actual notice....” 5 U.S.C. § 553(b). The agency again asserted a compelling public interest in resuming the registration program as quickly as possible as a reason for making the regulations effective immediately. The district court found that the June 1977 publication of the proposed data compensation regulations was insufficient notice, since it occurred more than one year before the relevant portion of FIFRA was significantly changed. Moreover, circulation of the working draft in October 1978 was an inadequate substitute for the notice- and-comment procedure because many pesticide companies received their copies too late for review and submission of comments. The court concluded, however, that the EPA had good cause not to re-propose the data compensation regulations because of the need to resume the registration process quickly. As for the conditional registration regulations, the court found that the July 25, 1978 ANPR provided the public with sufficient notice and opportunity to comment. Finally, the court held that the same reasons that justified noncompliance with the notice-and-comment procedure for the data compensation regulations also constituted good cause for making both sets of regulations effective immediately. In considering whether there was good cause for the agency to adopt the data compensation regulations without prior notice-and-comment, we are guided by the principle that the exception is to be narrowly construed. American Iron & Steel Institute v. EPA, 568 F.2d 284, 292 (3d Cir. 1977). Adherence to this principle led us twice before to strike down final regulations published by this agency. Sharon Steel Corp. v. EPA, 597 F.2d 377 (3d Cir. 1979); American Iron & Steel Institute v. EPA, 568 F.2d at 291-92. In Sharon Steel, as here, the EPA asserted an urgent need for action as grounds for disregarding the notice-and-comment procedure. The court rejected this contention, even though it was based on a statutory deadline, and also held that a period for comments after promulgation of a rule cannot substitute for the prior notice and comment required by the APA. 597 F.2d at 381. Cf. Philadelphia Citizens In Action v. Schweiker, 669 F.2d 877 (3d Cir. 1982) (agency’s invocation of good cause exception upheld). We still adhere to this view of the matter today, and hold that the agency did not establish good cause to excuse compliance with the APA. As we said in Sharon Steel, “[provision of prior notice and comment allows effective participation in the rule-making process while the decisionmaker is still receptive to information and argument.” 597 F.2d at 381. Suggestions from informed sources are especially valuable when, as here, the agency must implement a complex and technical statute. The record here demonstrates the wisdom of the notice-and-comment procedure. The EPA seems to find FIFRA’s mandate confusing because, as mentioned earlier, at trial it admitted that the statute gives applicants a choice of methods for supporting applications, whereas the agency’s “cite all” regulations foreclose these alternatives. Understandably, those subject to the regulations profess confusion as well. The EPA's difficult task would have been facilitated had it scrupulously observed the notice-and-comment procedure, since it “enables the agency promulgating the rule to educate itself before establishing rules and procedures which have a substantial impact on those regulated.” Texaco, Inc. v. FPG, 412 F.2d 740, 744 (3d Cir. 1969). Procedural regularity would also help to inspire public confidence in the agency’s workings. In evaluating whether the July 25, 1978 ANPR gave sufficient actual notice for the EPA to dispense with the usual APA procedures, “the adequacy of the notice must be tested by determining whether it would fairly apprise interested persons of the ‘subjects and issues’ before the Agency.” American Iron & Steel Institute v. EPA, 568 F.2d at 293. Inspection of the ANPR shows that it falls short of this standard. It states that “[t]he regulations will address the registration of pesticide products on a conditional basis, that is, contingent upon the later submission of certain data normally required prior to registration,” and adds that “[t]he regulations will specifically discuss ... the procedures and conditions under which conditional registrations will be granted.” 43 Fed.Reg. 32155. Plainly, these generalities are insufficient to alert interested parties to the full extent of the “conditional only” program actually envisioned by the EPA. Consequently, we do not agree with the district court’s conclusion that good cause for waiver of the APA has been demonstrated. We are persuaded that the EPA’s failure to observe the proper notice-and-comment procedure is directly responsible for many of the problems caused by the regulations. We therefore reject the agency’s contention that its violation of the APA is only “harmless error.” Nevertheless, we are convinced that to strike down the regulations immediately would generate confusion in the administrative process and unduly delay effective implementation of FIFRA’s registration provisions. In reviewing administrative actions, a court of appeals may exercise equitable powers in the choice of a remedy, as long as the court confines itself to the terms of the statute and does not improperly intrude on the agency’s powers. Sharon Steel Corp. v. EPA, 597 F.2d at 381. Although appellants are entitled to relief, we should not fashion a remedy so broad as to endanger the Congressional plan for the control of pesticides. Id. To accommodate the conflicting interests at stake here, we shall delay for a period of six months the issuance of a mandate invalidating the regulations. During that time, the EPA shall take all necessary steps to promulgate appropriate regulations in accordance with the Administrative Procedure Act. The judgment of the District Court for the Eastern District of Pennsylvania, our docket No. 81-2469, will be affirmed. The judgment of the Western District of Pennsylvania in No. 81-2190 will be affirmed insofar as it rejected the constitutional challenge of the appellants, but will be vacated as to the EPA regulations which the district court sustained. The judgment of .the Western District of Pennsylvania in No. 81 — 2191 will also be affirmed. . Mobay agrees that its two appeals from the Western District of Pennsylvania stand or fall together on the use issue. . Mobay submitted a set of requests for admissions to the EPA which we reproduce here along with the answers: “42. Section 3(c)(1)(D) of the Act provides three distinct methods by which an applicant may satisfy the Act’s requirements for data ■to support his application. Answer: Admit. 43. The option to support an application by any of the methods provided in Section 3(c)(1)(D) of the Act lies with the applicant. Answer: Admit.” Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant? A. Issue not discussed B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant D. The resolution of the issue had mixed results for the appellant and respondent Answer:
songer_majvotes	3	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes. CELLULAR SALES, INC. and John Webb, Appellees, v. Rick MACKAY, d/b/a Cellular Sales North, Appellant. No. 90-2473. United States Court of Appeals, Eighth Circuit. Submitted April 11, 1991. Decided Aug. 13, 1991. Steve Leben, argued (Thomas McGraw, III, on brief), Overland Park, Kan., for appellant. Gary Long, Kansas City, Kan., for appel-lees. Before WOLLMAN, Circuit Judge, and ROSS and HENLEY, Senior Circuit Judges. ROSS, Senior Circuit Judge. Plaintiffs Cellular Sales, Inc. and John Webb filed this action charging that defendant Rick Mackay, by doing business as Cellular Sales North, is misappropriating plaintiffs’ trade name. The district court agreed and issued a preliminary injunction enjoining Mackay from using the name “Cellular Sales” in the future. Because we conclude that the name “Cellular Sales” is generic in nature and therefore not entitled to trade name protection, we reverse the decision of the district court. I. In October 1986, plaintiff John Webb became an agent for a company named Cellular One, a regional cellular telephone company that is licensed by the Federal Communications Commission to provide cellular telephone services. In May 1987, Mackay agreed to work with Webb as a salesman and installer of cellular phones. Both Webb and Mackay had salesmen working for them and each earned commissions on sales. Mackay alleges that the two operated in a joint venture, while Webb alleges that he operated as a sole proprietorship until February 1989 when he formed the corporation Cellular Sales, Inc., in which he was the only shareholder and officer. Webb assigned right to the name “Cellular Sales” to the corporation. On July 23,1987, Webb filed a “Registration of Fictitious Name” with the Missouri Secretary of State for the name, “Cellular Sales.” Missouri law requires the registration of any fictitious name under which someone is doing business in Missouri, but the law does not provide for any trade name protection as a result of such filings. Mo.Rev.Stat. §§ 417.200-417.230. In mid-1989, Mackay decided that there was a potential for development of cellular phone sales in North Kansas City, but Webb was not interested in opening a north office. In August 1989, Mackay eventually leased a north office location on his own. He obtained a phone for that location and immediately began using the name, “Cellular Sales North.” On October 10, 1990, an advertisement was placed in the Kansas City Times under the name “Cellular Sales,” listing telephone numbers for both the north office and the original office. In November 1989, Mackay began making arrangements to obtain his own agent’s contract with Cellular One, the regional cellular air carrier. Mackay eventually obtained his own agents’s contract with Cellular One effective December 1, 1989. On December 2, 1989, Webb and Mackay agreed to end their business relationship. Thereafter, Webb filed suit against Mackay alleging trade name infringement. The district court found that the name, “Cellular Sales,” has a unique significance and that the use of the name “Cellular Sales North” would likely mislead some members of the public into believing that Mackay was operating a branch or franchised office affiliated with Webb. The district court found that Mackay had not proven his joint venture theory and concluded that “defendant has a likelihood of success of no more than 40% or 45% in establishing equal rights to the name ‘Cellular Sales.’ ” The court also found that there was a threat of irreparable harm because confusion of the name could cause lost business which would be extraordinarily difficult to ascertain and evaluate. The lower court entered a preliminary injunction against any future use by Mackay of the business name “Cellular Sales” and Mackay was instructed to begin use of a clarifying name, such as “Cellular North,” in response to incoming calls. II. Whether a preliminary injunction should issue involves consideration of (1) the threat of irreparable harm to the movant; (2) whether the threatened injury outweighs damage to the opposing party; (3) the probability that the movant will succeed on the merits; and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir.1981) (en banc). In determining whether a trade name is entitled to protection, it must first be classified into one of four categories: (1) generic, (2) descriptive, (3) suggestive, or (4) arbitrary or fanciful. Vision Center v. Opticks, Inc., 596 F.2d 111, 115 (5th Cir. 1979), cert. denied, 444 U.S. 1016, 100 S.Ct. 668, 62 L.Ed.2d 646 (1980). A generic term is the name of a particular type, kind, genus or class of goods in which an individual article or service is but a member. Id. It is well established that generic terms are not entitled to trademark protection because such words are in “the public domain and available for all to use,” Hallmark Cards, Inc. v. Hallmark Dodge, Inc., 634 F.Supp. 990, 997 (W.D.Mo.1986), and because such terms “describ[e] not only a particular product or service but also a type or kind of product or service.” First Fed. Sav. & Loan Ass’n of Council Bluffs v. First Fed. Sav. & Loan Ass’n of Lincoln, 929 F.2d 382, 383 (8th Cir.1991). The standard of proof that must be met by the plaintiff in seeking injunctive relief varies depending upon the type of mark at issue. If the mark is the strongest possible mark — an arbitrary or fanciful mark — it is “entitled to maximum legal protection and do[es] not require proof of secondary meaning.” Hallmark Cards, supra, 634 F.Supp. at 998. If the mark is the weakest protectable mark — a descriptive trademark or trade name — the plaintiff must prove that the mark has an accepted “secondary meaning.” Secondary meaning refers to a mark that “has become distinctive of the applicant’s goods in commerce, i.e., to a mark that consumers associate with a producer or distributor rather than with the product itself.” Best Buy Warehouse v. Best Buy Co., 920 F.2d 536, 537 (8th Cir. 1990) (citations omitted), cert. denied, — U.S.-, 111 S.Ct. 2893, 115 L.Ed.2d 1058 (1991). As evidence that a mark has acquired secondary meaning, courts will accept direct evidence of customer confusion, or, because direct evidence may be difficult to find, evidence from consumer surveys showing likelihood of confusion. Id. “Cellular Sales” falls within the definition of a generic trade name. The terms “cellular” and “sales” individually are generic in nature. Moreover, even when combined, “cellular sales” does not describe a particular product, but instead describes the sale of cellular telephone equipment, which is a genus or class of products, and in no way describes the particular cellular phones sold by Webb. In fact, the record shows that there are eight unrelated firms, in addition to Cellular Sales and Cellular Sales North, listed in the Kansas City phone book that use the term “cellular” in their names. Further, Webb himself has listed Cellular Installation, Cellular Rental, Cellular Repair and Cellular Service in the white pages of the phone book, all of which are answered at Webb’s phone number. In First Federal, supra, 929 F.2d at 384, this court concluded that “First Federal” is not a generic phrase, reasoning that “First Federal” is not the same as savings and loan institutions generally. The court found that “First Federal” does not refer generically to banks and savings and loans as a group, but instead describes a “first-rate (or first in time in the area), federally chartered savings and loan.” Id. In contrast, there are a number of companies that sell cellular telephone equipment and access to a cellular telephone network; these companies are accurately described generically as “cellular sales” companies. The term “cellular sales” defines this category of companies selling cellular telephone equipment. Even if we were to find that “Cellular Sales” was entitled to some trade name protection, Webb has failed to carry his burden of establishing evidence of a secondary meaning acquired by “Cellular Sales.” The record shows that the only evidence presented by Webb of the secondary meaning is his own testimony and that of his employees that the public has associated “Cellular Sales” exclusively with “John Webb.” However, no survey or any other evidence has been shown to establish this connection. This court has held that “[m]ore is needed to establish the necessary consumer association than merely the self-serving testimony of the plaintiff that some of his customers were confused.” Co-Rect Prods., Inc. v. Marvy! Adv. Photography, Inc., 780 F.2d 1324, 1333 (8th Cir.1985). The evidence presented herein is insufficient to carry the burden of proof necessary to sustain a preliminary injunction. Finally, Webb has failed to establish that he will suffer irreparable injury absent the issuance of the preliminary injunction. Webb concedes that there were no sales records that would indicate that Mackay had caused any loss of sales to plaintiffs business. One of Webb’s employees stated that although there had been occasions when customers had mistaken the two businesses, most of Webb’s customers had been loyal enough to stay with him. Another employee stated that he was aware of one customer whose business had been lost to Mackay; however, he admitted the reason was because Mackay offered a lower price, not because of any confusion. Webb’s testimony about confusion between his business and Mackay’s related to suppliers, not to customers. Webb said he knew of two other customers he had lost to Mackay, one of whom was Mackay’s mother. It cannot be said that Webb lost Mac-kay’s mother’s business as a result of trade name confusion. It is true that a plaintiff may elect to prove that his losses are incapable of calculation, though still significant and therefore irreparable. However, Webb has made no such showing here. Webb offered no evidence that his losses were not subject to calculation. Further, Webb admitted that his business is growing, although he contends that the growth is less than it might otherwise be. We conclude that the district court erred in issuing a preliminary injunction in the present case as the plaintiff has failed to establish that “Cellular Sales” is entitled to trade name protection or that he will suffer irreparable harm if the injunction is not rendered. Based on the foregoing, the judgment of the district court is reversed. Question: What is the number of judges who voted in favor of the disposition favored by the majority? 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. UNITED STATES of America, Plaintiff-Appellee, v. The FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for MBank Houston, N.A. and The Deposit Insurance Bridge Bank, N.A., Intervenors-Appellees, v. Suzan E. TAYLOR, d/b/a Exploration Services, Defendant-Appellant. Nos. 89-2328, 89-2373. United States Court of Appeals, Fifth Circuit. Aug. 28, 1989. Hayden Burns, Houston, Tex., for defendant-appellant. Robert D. Daniel, Preston T. Towber, Hirsch & Westheimer, Houston, Tex., for FDIC & DIBB. Paula C. Offenhauser, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Houston, Tex., Margaret Hewing, Anthony J. Stein-meyer, U.S.D.J., Civ. Div., Federal Programs, Washington, D.C., for U.S. Blake Tartt, Fulbright & Jaworski, Houston, Tex., for FDIC. Jeff Joyce, Ann Ryan Robertson, Dallas, Tex., Blake Tartt, Tom Cunningham, Houston, Tex., for FDIC, Receiver and the Deposit Ins. Bridge Bank. Before CLARK, Chief Judge, JOHNSON and SMITH, Circuit Judges. CLARK, Chief Judge: The United States of America filed this action on behalf of the Office of the Comptroller of the Currency (OCC). The United States brought the action to enjoin Susan E. Taylor d/b/a Exploration Services (Taylor) from filing an abstract of a state court judgment which would create a lien on property owned by MBank Houston, N.A. (MBank). The district court granted a preliminary injunction and ordered Taylor to release an abstract of judgment previously filed. We affirm. I. On February 27, 1989 Taylor obtained a $9.6 million judgment against MBank in a Texas state district court. The state court denied MBank’s requests for an order prohibiting Taylor from filing an abstract of the judgment. On March 1, 1989, prior to exhaustion of the appellate process, Taylor filed an abstract of the judgment with the Harris County Clerk. Under Texas law, the recorded abstract of judgment created a lien on all the real property of MBank located in Harris County, Texas. Tex. Prop.Code Ann. § 52.001 (Vernon 1984). Also on March 1, 1989, the United States, on behalf of the OCC, filed this action in federal district court seeking a temporary restraining order and a preliminary injunction prohibiting Taylor from filing an abstract of judgment. The action was based on 12 U.S.C. § 91, which prohibits the issuance of an attachment, injunction, or execution against a national bank or its property prior to a final judgment. The district court signed a temporary restraining order, but not until nine minutes after Taylor had filed the abstract of her state court judgment. On March 21, 1989, the district court granted a preliminary injunction and ordered Taylor to withdraw the abstract of judgment previously filed. In response to the order, Taylor filed a notice in the Harris County property records announcing involuntary withdrawal of the abstract of judgment subject to appeal. On April 18, 1989, the district court ordered Taylor to completely release the abstract of judgment or be held in contempt. Taylor appeals the preliminary injunction and the order requiring release of the abstract of judgment. II. Taylor initially argues that the United States lacks standing to bring this action because it has not pled a sufficient governmental interest at stake. However, by pleading and affidavit, the United States has asserted that the OCC has a supervisory and regulatory interest in enforcing the safeguards mandated by 12 U.S.C. § 91. This interest stems from the OCC’s obligation to ensure the safety and soundness of the national banking system for the benefit of depositors and the general public. See 12 U.S.C. § 1 et seq. The OCC’s interest provides sufficient standing for the United States to bring this action. United States v. Lemaire, 826 F.2d 387, 388 n. 1, 390 (5th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1223, 99 L.Ed.2d 423 (1988). Taylor next argues that 12 U.S.C. § 91 does not prohibit the filing of an abstract of judgment. Section 91 reads as follows: All transfers of the notes, bonds, bills of exchange, or other evidences of debt owing to any national banking association, or of deposits to its credit; all assignments of mortgages, sureties on real estate, or of judgments or decrees in its favor; all deposits of money, bullion, or other valuable thing for its use, or for the use of any of its shareholders or creditors; and all payments of money to either, made after the commission of an act of insolvency, or in contemplation thereof, made with a view to prevent the application of its assets in the manner prescribed by this chapter, or with a view to the preference of one creditor to another, except in payment of its circulating notes, shall be utterly null and void; and no attachment, injunction, or execution, shall be issued against such association or its property before final judgment in any suit, action, or proceeding, in any State, county, or municipal court. 12 U.S.C. § 91. Taylor does not argue that her judgment is final. Prior to conclusion of the appellate process it is not. Lemaire, 826 F.2d at 390. Rather, Taylor asserts that section 91 applies only to seizures of assets and not to the perfection of a judgment lien by recording an abstract of judgment. Taylor relies on the fact that the last clause of section 91 expressly prohibits only attachments, injunctions, or executions, but does not mention abstracts of judgment. However, under Texas law an abstract of judgment is functionally equivalent to an attachment in that “[e]ach fixes a lien upon the title of the debtor subject to execution; which lien, in either event, is foreclosed through sale under execution.” Stewart v. Rockdale State Bank, 52 S.W.2d 915, 916 (Tex.Civ.App.1932), aff'd, 124 Tex. 431, 79 S.W.2d 116 (1935). See Tex.Civ.Prac. & Rem.Code Ann. § 61.061 (Vernon 1986) (attachment); Tex.Prop.Code Ann. § 52.001 (Vernon 1984) (abstract of judgment). An abstract of judgment is also similar to an injunction in that the lien created by an abstract of judgment prohibits a national bank from freely transferring its property. Third National Bank in Nashville v. Impac Ltd., Inc., 432 U.S. 312, 97 S.Ct. 2307, 2314 n. 18, 53 L.Ed.2d 368 (1977). Furthermore, the Supreme Court has ruled that section 91 is not to be given a completely literal meaning. See Impac Ltd., 97 S.Ct. at 2312. We have not limited section 91 to the prohibitions expressly mentioned and have construed the statute to prohibit garnishment of a national bank’s property prior to a final judgment. Lemaire, 826 F.2d 387. A non-restrictive reading of section 91 is necessary to effectuate the statutory purpose, which is to “prevent creditors from obtaining preferential treatment by court action, including the securing of a judgment at the trial court level.” Lemaire, 826 F.2d at 390. In this case, the district court correctly found that by filing an abstract of judgment and obtaining a lien on MBank’s property, Taylor would secure preferential treatment over the other general creditors of MBank. Such action prior to a final judgment would violate 12 U.S.C. § 91. Taylor asserts that if she is not allowed to file an abstract of judgment, other creditors with liens against MBank’s property will obtain a preference over her claims. However, 12 U.S.C. § 91 does not prohibit all liens against the property of a national bank, only those obtained prior to a final judgment. Even if the other creditor’s liens acquire precedence, that would not justify Taylor’s attempt to obtain preferential treatment for her lien prior to a final judgment — a form of preference prohibited by section 91. Taylor next argues that the district court erred in granting a preliminary injunction without balancing the competing claims of injury and considering the public interest. Generally, in order to secure a preliminary injunction, the movant must prove 1) a substantial likelihood of success on the merits; 2) a substantial threat of irreparable injury if the injunction is not issued; 3) the threatened injury to the mov-ant outweighs any damage the injunction might cause to the opponent; and 4) the injunction will not disserve the public interest. Enterprise Int’l v. Corporación Estatal Petrolera, 762 F.2d 464, 471 (5th Cir.1985). However, if a statutory violation is involved and the statute by necessary and inescapable inference requires in-junctive relief, the movant is not required to prove the injury and public interest factors. Amoco Production Co. v. Village of Gambell, Alaska, 480 U.S. 531, 107 S.Ct. 1396, 1402-03, 94 L.Ed.2d 542 (1987); United States v. Hayes International Corp., 415 F.2d 1038, 1045 (5th Cir.1969). In this case the district court correctly concluded that the purpose of section 91 — to prevent a creditor from obtaining preferential treatment prior to a final judgment — requires injunctive relief once a statutory violation is shown. Accordingly, the district court did not err in granting the preliminary injunction without requiring specific proof on the injury and public interest factors. Finally, Taylor argues that the district court erred in requiring Taylor to release her abstract of judgment. Taylor acknowledges that the district court has the equitable power to return the'parties to their last uncontested status. See Canal Authority v. Callaway, 489 F.2d 567, 576 (5th Cir.1974). Taylor argues, however, that the court erred in finding that the last uncontested status was the situation of the parties prior to the filing of Taylor’s abstract of judgment. The record shows that Taylor’s right to file an abstract of judgment was contested from the time the state court judgment was rendered. Taylor’s action in filing the abstract remains the core of the present controversy. The finding of the district court that the last uncontested status was prior to the act of filing is not clearly erroneous. The district court’s judgment and order are AFFIRMED. . MBank was declared insolvent on March 28, 1989, and the Federal Deposit Insurance Corporation, as receiver for MBank, has intervened in this case in support of the United States. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
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. CITIZEN PUBLISHING CO. et al. v. UNITED STATES. No. 243. Argued January 15, 1969. Decided March 10, 1969. Richard J. MacLaury argued the cause for appellants. With him on the briefs were Francis N. Marshall, Thomas J. Klitgaard, John L. Donahue, Jr., and George Read Oarlock. Daniel M. Friedman argued the cause for the United States. On the brief were Attorney General Clark, Solicitor General Griswold, Assistant Attorney General Zimmerman, Howard E. Shapiro, Charles D. Mahaffie, Jr., and Gerald A. Connell. Briefs of amici curiae urging reversal were filed by Arthur B. Hanson for the American Newspaper Publishers Assn., and by Robert L. Stern for a number of newspaper publishers. Mr. Justice Douglas delivered the opinion of the Court. Tucson, Arizona, has only two daily newspapers of general circulation, the Star and the Citizen. The Citizen is the oldest, having been founded before 1900, and is an evening paper published six times a week. The Star, slightly younger than the Citizen, has a Sunday as well as a daily issue. Prior to 1940 the two papers vigorously competed with each other. While their circulation was about equal, the Star sold 50% more advertising space than the Citizen and operated at a profit, while the Citizen sustained losses. Indeed the Star’s annual profits averaged about $25,825, while the Citizen’s annual losses averaged about $23,550. In 1936 the stock of the Citizen was purchased by one Small and one Johnson for $100,000 and they invested an additional $25,000 of working capital. They sought to interest others to invest in the Citizen but were not successful. Small increased his investment in the Citizen, moved from Chicago to Tucson, and was prepared to finance the Citizen’s losses for at least awhile from his own resources. It does not appear that Small and Johnson sought to sell the Citizen; nor was the Citizen about to go out of business. The owners did, however, negotiate a joint operating agreement between the two papers which was to run for 25 years from March 1940, a term that was extended in 1953 until 1990. By its terms the agreement may be canceled only by mutual consent of the parties. The agreement provided that each paper should retain its own news and editorial department, as well as its corporate identity. It provided for the formation of Tucson Newspapers, Inc. (TNI), which was to be owned in equal shares by the Star and Citizen and which was to manage all departments of their business except the news and editorial units. The production and distribution equipment of each paper was transferred to TNI. The latter had five directors — two named by the Star, two by the Citizen, and the fifth chosen by the Citizen out of three named by the Star. The purpose of the agreement was to end any business or commercial competition between the two papers and to that end three types of controls were imposed. First was price fixing. The newspapers were sold and distributed by the circulation department of TNI; commercial advertising placed in the papers was sold only by the advertising department of TNI; the subscription and advertising rates were set jointly. Second was profit pooling. All profits realized were pooled and distributed to the Star and the Citizen by TNI pursuant to an agreed ratio. Third was a market control. It was agreed that neither the Star nor the Citizen nor any of their stockholders, officers, and executives would engage in any other business in Pima County — the metropolitan area of Tucson — in conflict with the agreement. Thus competing publishing operations were foreclosed. All commercial rivalry between the papers ceased. Combined profits before taxes rose from $27,531 in 1940 to $1,727,217 in 1964. The Government’s complaint charged an unreasonable restraint of trade or commerce in violation of § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1, and a monopoly in violation of § 2, 15 U. S. C. § 2. The District Court, after finding that the joint operating agreement contained provisions which were unlawful per se under § 1, granted the Government’s motion for summary judgment. The case went to trial on the § 2 charge and also on a charge brought under § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. § 18. The latter charge arose out of the acquisition of the stock of the Star by the shareholders of the Citizen pursuant to an option in the joint operating agreement. Arden Publishing Company was formed as the vehicle of acquisition and it now publishes the Star. At the end of the trial the District Court found that the joint operating agreement in purpose and effect monopolized the only newspaper business in Tucson in violation of § 2 of the Sherman Act. As respects the Clayton Act charge the District Court found that in Pima County, the appropriate geographic market, the Citizen’s acquisition of the Star stock had the effect of continuing in a more permanent form a substantial lessening of competition in daily newspaper publishing that is condemned by § 7. The decree does not prevent all forms of joint operation. It requires, however, appellants to submit a plan for divestiture and re-establishment of the Star as an independent competitor and for modification of the joint operating agreement so as to eliminate the price-fixing, market control, and profit-pooling provisions. 280 F. Supp. 978. The case is here by way of appeal. Expediting Act, § 2, 32 Stat. 823, as amended, 15 U. S. C. § 29. We affirm the judgment. The § 1 violations are plain beyond peradventure. Price-fixing is illegal per se. United States v. Masonite Corp., 316 U. S. 265, 276. Pooling of profits pursuant to an inflexible ratio at least reduces incentives to compete for circulation and advertising revenues and runs afoul of the Sherman Act. Northern Securities Co. v. United States, 193 U. S. 197, 328. The agreement not to engage in any other publishing business in Pima County was a division of fields also banned by the Act. Timken Co. v. United States, 341 U. S. 593. The joint operating agreement exposed the restraints so clearly and unambiguously as to justify the rather rare use of a summary judgment in the antitrust field. See Northern Pac. R. Co. v. United States, 356 U. S. 1, 5. The only real defense of appellants was the “failing company” defense — a judicially created doctrine. The facts tendered were excluded on the § 1 charge but were admitted on the § 2 charge as well as on the § 7 charge under the Clayton Act. So whether or not the District Court/was correct in excluding the evidence under the § 1 charge, it is now before us; and a consideration of it makes plain that the requirements of the failing company jioctrine were not met. That defense was before the Court in International Shoe Co. v. FTC, 280 U. S. 291, where § 7 of the Clayton Act was in issue. The evidence showed that the resources of one company were so depleted and the prospect of rehabilitation so remote that “it faced the grave probability of a business failure.” 280 U. S., at 302. There was, moreover, “no other prospective purchaser.” Ibid. It was in that setting that the Court held that the acquisition of that company by another did not substantially lessen competition within the meaning of § 7. 280 U. S., at 302-303. In the present case the District Court found: “At the time Star Publishing and Citizen Publishing entered into the operating agreement, and at the time the agreement became effective, Citizen Publishing was not then on the verge of going out of business, nor was there a serious probability at that time that Citizen Publishing would terminate its business and liquidate its assets unless Star Publishing and Citizen Publishing entered into the operating agreement.” 280 F. Supp., at 980. The evidence sustains that finding. There is no indication that the owners of the Citizen were contemplating a liquidation. They never sought to sell the Citizen and there is no evidence that the joint operating agreement was the last straw at which the Citizen grasped. Indeed the Citizen continued to be a significant threat to the Star. How otherwise is one to explain the Star’s willingness to enter into an agreement to share its profits with the Citizen? Would that be true if as now claimed the Citizen was on the brink of collapse? The failing company doctrine plainly cannot be applied in a merger or in any other case unless it is established that the company that acquires the failing company or brings it under dominion is the only available purchaser. For if another person or group could be interested, a unit in the competitive system would be preserved and not lost to monopoly power. So even if we assume, arguendo, that in 1940 the then owners of the Citizen could not long keep the enterprise afloat, no effort was made to sell the Citizen; its properties and franchise were not put in the hands of a broker; and the record is silent on what the market, if any, for the Citizen might have been. Cf. United States v. Diebold, Inc., 369 U. S. 654, 655. Moreover, we know from the broad experience of the business community since 1930, the year when the International Shoe case was decided, that companies reorganized through receivership, or through Chapter X or Chapter XI of the Bankruptcy Act often emerged as strong competitive companies. The prospects of reorganization of the Citizen in 1940 would have had to be dim or nonexistent to make the failing company doctrine applicable to this case. The burden of proving that the conditions of the failing company doctrine have been satisfied is on those who seek refuge under it. That burden has not been satisfied in this case. We confine the failing company doctrine to its present narrow scope. The restraints imposed by these private arrangements have no support from the First Amendment as Associated Press v. United States, 326 U. S. 1, 20, teaches. Neither news gathering nor news dissemination is being regulated by the present decree. It deals only with restraints on certain business or commercial practices. The restraints on competition with which the present decree deals comport neither with the antitrust laws nor with the First Amendment. As we stated in the Associated Press case: “It would be strange indeed ... if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom. The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary. That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford nongovernmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests. The First Amendment affords not the slightest support for the contention that a combination to restrain trade in news and views has any constitutional immunity.” 326 U. S., at 20. The other points mentioned are too trivial for discussion. Divestiture of the Star seems to us quite proper. At least there is no showing of that abuse of discretion which authorizes us to recast the decree. See United States v. Crescent Amusement Co., 323 U. S. 173, 185. Affirmed. Mr. Justice Fortas took no part in the consideration or decision of this case. Section 7 provides in part: “[N]o corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital ... of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.” See Bok, Section 7 of the Clayton Act and the Merging of Law and Economics, 74 Harv. L. Rev. 226, 339 (1960); Hale & Hale, Failing Firms and the Merger Provisions of the Antitrust Laws, 52 Ky. L. J. 597, 607 (1964); Connor, Section 7 of the Clayton Act: The “Failing Company” Myth, 49 Geo. L. J. 84, 96 (1960). The failing company doctrine was held to justify mergers in United States v. Maryland & Virginia Milk Producers Assn., 167 F. Supp. 799, aff’d, 362 U. S. 458, and in Union Leader Corp. v. Newspapers of New England, 284 F. 2d 582. For cases where the failing company doctrine was not allowed as a defense see United States v. Diebold, Inc., 369 U. S. 654; United States v. El Paso Gas Co., 376 U. S. 651; United States v. Von’s Grocery Co., 384 U. S. 270; United States v. Philadelphia National Bank, 374 U. S. 321, 372, n. 46; United States v. Third National Bank, 390 U. S. 171. It should be noted that at the time the International Shoe Co. case was decided § 7 of the Clayton Act provided: “[N]o corporation . . . shall acquire . . . stock or other share capital of another corporation . . . where the effect of such acquisition may be to substantially lessen competition between the corporation whose stock is so acquired and the corporation making the acquisition ....’’ (Emphasis supplied.) Consequently, where the acquired company was “such as to necessitate liquidation,” and where “the prospect for future competition . . . was entirely eliminated,” it may have been reasonable to conclude that there was no more existing competition between the companies to be lessened by acquisition. 280 U. S., at 294. In 1950, however, § 7 was amended to make the measure of anticompetitive acquisitions the extent to which they lessened competition “in any line of commerce,” rather than the extent to which they lessened competition “between” the two companies. We have no occasion, however, to determine what changes, if any, that amendment had on the failing company doctrine. Bills-were introduced both in the 90th Congress (S. 1312 by Senator Hayden and H. R. 19123 by Mr. Edmondson) and in the 91st Congress (H. R. 279 by Mr. Matsunaga and H. R. 5199 by Mr. Johnson) to exempt from the antitrust laws joint operating agreements between newspapers because of economic distress. Extensive hearings were held in 1967 and 1968. See Hearings on S. 1312 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., pts. 1-6; Hearings on H. R. 19123 and Related Bills before the Antitrust Subcommittee of the House Committee on the Judiciary, 90th Cong., 2d Sess., ser. 25. The hearings reflect all shades of opinion. As stated by the House Subcommittee: “The antitrust laws embody concepts and principles which long have been considered to be the bedrock of our economic institutions. Piecemeal exemptions from the antitrust laws to cope with problems of particular industries have been given reluctantly and only after there has been a clear showing of overriding need.” Hearings, supra, ser. 25, p. 2. See Roberts, Antitrust Problems in the Newspaper Industry, 82 Harv. L. Rev. 319, 344-352 (1968); Flynn, Antitrust and the Newspapers, A Comment on S. 1312, 22 Vand. L. Rev. 103 (1968). As of this date Congress has taken no action on any of those bills. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_casetyp1_7-3-4	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 - bankruptcy, antitrust, securities". MARTIN et al. v. LUSTER. No. 5584. Circuit Court of Appeals, Seventh Circuit. July 17, 1936. As Amended on Rehearing Nov. 4, 1936. Charles S. Babcock, of Chicago, Ill., Roy P. Wilcox, of Eau Claire, Wis., and Alfred Beck, of Chicago, Ill., for appellants. John C. Slade and Charles J. Calderini, both of Chicago, Ill., A. W. MacLeod, of Eau Claire, Wis., and Wm. D. Tatlow, of Springfield, Mo., for appellees. Before EVANS, SPARKS, and ALSCHULER, Circuit Judges. EVANS, Circuit Judge. This appeal is from an order terminating a receivership of a $266,345 fund which it is alleged appellees’ decedent (Frank Llermann) held in trust for appellants. Heretofore appellees, as Hermann’s executors, were ordered to pay this sum to the receiver. The District Court, in the decree appealed from, ordered the return of the money, less expenses, to appellees. The determinative issue turns upon the nature of the relationship of Hermann, the underwriter of the reorganization, to the new corporation and to the stockholders of the old corporation. The plan of reorganization approved by the court and an underwriting agreement, which was indispensable to the plan, to a large degree establish Hermann’s status which in turn determines his liability and that of the executors of his will. Hermann undertook to deposit $315,000, which was the sum which it was estimated would be necessary to effectuate the plan. Either as consideration for this sum or as a means to procure it, he was issued 100,-000 shares (all) of the common stock and preferred stock of the par value of $50,000 of the new company. The plan and the underwriting agreement were both consummated and the deposit made. Creditors of the old company were given preferred stock in payment of their claims. They also had the right to sell such stock to Hermann for a certain percentage of cash, which cash came from the above-described fund. Nearly one hundred thousand dollars of this deposit was unused and returned to Hermann after the reorganization. He purchased a great,, many shares of preferred stock from creditors, as the agreement provided, and sold the preferred stock to the company at the same price at which he purchased it. The company later called in all the preferred stock. During the course of this litigation it has been the contention of appellants that Hermann occupied a trust relation to the old stockholders and to the corporation. As a necessary corollary it is argued (a) that he wrongfully resold the preferred stock to the company whereas he should have retired it gratis, or (b) that he was given the 100,000 shares of common stock, not outright, but as a means to raise the necessary money for reorganization, and the balance of the stock riot sold belonged to the company. The District Court made findings and conclusions, and also filed a carefully considered memorandum opinion holding no trust relation whatsoever existed. He reviewed the conflicting oral testimony and depositions and the varying pleadings and amendments, and concluded in favor of Hermann’s executors for the following reasons: (1) The amended complaint [which differs from the one on which the former appeal (C.C.A.) 58 F.(2d) 537, arose] makes the alleged trust agreement an incident of the plan of reorganisation (a former complaint made it incident to the underwriting agreement) from which it follows: (a) that such an important item would have been disclosed to the court, 'in the course of effecting the reorganization and certainly should have been so disclosed; (b) such an agreement would have been a material modification of the plan and if undisclosed to it would be in defiance of it; (c) it was four years .before any stockholder suggested that such an agreement existed. (2) Evidence of conversations necessary to establish an agreement with the decedent was not admissible. (3) Since all other agreements were in writing, it is significant that the alleged agreement was not. (4) It was Hermann who deposited the money, and it was he who was issued the stock, just as the written plan provided. (5) Execution of the plan by a special master and a commissioner, under directions of the court, shows the plan was a complete one. (6) Oral testimony given many (eight or nine) years after the event is not reliable. (7) Variance in the material allegations in the original, first and second amended bills; also if the trust in conjunction with the plan existed, it would probably have been alleged in the original bill. In more detail, the facts are as follows: The Gillette Rubber Company was in receivership and Hermann appointed one of two receivers in April, 1922. He subsequently became sole receiver. He was a director of the old company and was president (until September, 1929) of the new company, serving also as a director and manager. Mr. Kent, who was chairman of the reorganization committee, submitted an underwriting agreement to Hermann, April 20, 1924, which Hermann accepted the next day. Because of the importance of the terms of this agreement in determining the true facts, we set forth, in the margin, portions of the agreement verbatim. Pursuant to the terms of this agreement Hermann was to deposit $315,000 to effectuate the plan of reorganization, and he was to be issued all (100,000) shares of common stock of the new company and preferred stock of the par value of $50,000 (to cover $35,000, of the $315,000, for reorganization expenses). The plan of re^ organization was approved by the court. May 8, 1925. The plan contained no provision as to stockholders in the old company, but the underwriting agreement did. The plan provided that creditors holding preferred claims in the old company be paid 40% in cash and that general creditors be paid in preferred stock of the new company at the ratio of 300 par value to dollar of claim, and the preferred stock so received could be sold to Hermann at 500 on the dollar of par value (giving them in actuality 150 on the dollar for their claims). The new company issued a certificate for 100,000 shares of common stock, to Hermann. He immediately broke this lump holding into 49,000 shares to be sold to raise the sum underwritten and 51,000 shares to he placed in a voting trust (of which he evidently held 26,000 shares). Of the 49,000 shares he sold 34,775 shares to old stockholders for $178,927.80; 2,568 shares to others for $12,840, or a total of $191,767.80. The remaining 11,657 shares of the 49,000 block, he held himself and in February, 1929, sold, along with the shares he held in the voting trust block, to Gillette and Hutchens for $21 a share. The common stock (originally planned without par value) was of the par value of $5.40. Hermann made the deposit of $315,000, and this fund was used as follows: $71,-500.58 was used to pay preferred creditors 40% of their claims against the old corporation; $104,207.60 was paid to general creditors who turned in their preferred stock to Hermann; $35,000 went to the reorganization committee; $6,186.80 was given to non-depositing bondholders for preferred stock given them in payment of their claims. The total disbursements from the $315,000 fund were therefore $216,-894.98, which left an unexpended balance of $98,105.02. This sum was returned to Hermann upon order of court entered upon petition of the reorganization committee and signed by counsel for appellants. Hermann became very ill in 1929 and severed connections with the company. He disposed of his stock holdings, both common and preferred. The 26,459 shares of common stock (the 11,657 of the 49,000 block and 14,500 of the voting trust, and 302 shares from some other source) he sold to Gillette and Hutchens for $21 per share, a total of $555,639. The preferred stock he sold to the company at half of the $15 par value, or $7.50. Of the preferred stock, he held 17,377% shares, which at $7.50 (50% of par value) amounted to $130,331.25. The, total sales price of all stock interest was $685,970.25. If the transaction of Hermann be viewed as an entirety and the above figures be used in the calculation, it will be found that Hermann profited by approximately $660,843.-07 out of the reorganization of the company for which he was the receiver. In addition he received a salary of $25,000 per year and dividends were paid regularly (5 to 10%) on the common stock. In order to get a true picture of circumstances of this reorganization, we quote in the margin excerpts from various documents presented in evidence, including the circular letter of July 5, 1924, to stockholders and Hermann’s letter of April 28th. A case growing out of the same transaction which is illuminating arose in the eighth circuit wherein Gillette, Hutchens, and Gilruth sued Hermann and alleged that he agreed each should have one-fourth of the 51,000 shares in the voting trust and that he had given them only a total of 25,000 (leaving him in control). They, however, purchased the stock from him later, and the Court of Appeals held [Luster v. Gilruth, 60 F.(2d) 751] that the subsequent purchase negatived the charge that they were to share in all the stock he acquired. A previous appeal was taken to this court [58 F.(2d) 537] from the order appointing the receiver of the trust fund. On that appeal this court held the cause of action against Hermann survived his death and that the District Court in Wisconsin had jurisdiction of the alleged trust; that the stockholders’ cause of action was a class action; and that the allegations of the bill supported the appointment of a receiver. Pertinent portions of that opinion are set forth in the margin. Chronologically, the facts are: April, 1922 Hermann appointed one o£ two re- • ceivers for old company. Jan., 1924 Kent selected as chairman of committee on reorganization. April 20, 1924 Underwriting agreement submitted by Kent to Hermann and accepted by him, April 21. June 19, 1924 New company organized. June 20, 1924 Plan signed by new company. July 5, 1924 Circular letter to stockholders. March 25, 1925 Kent and committee petitioned court to approve plan. May 8, 1925 Plan of reorganization approved by court. August 1925 Certificate of 100,000 shares of common stock issued to Hermann. August, 1925 Voting trust of 51,000 shares created, Hermann having 26,000. Dec. 24, 1925 Before this time Hermann sold 14,-718 shares of preferred stock to company (findings say 15,778 in December and 1,599% afterwards). Dec. 29, 3925 Resolution of directorate of new company to purchase outstanding preferred stock as it was able. Dee. 30, 1925 Hermann discharged as receiver. Feb., 1929 New company had purchased 26,-836 preferred stock, leaving 19,241% outstanding. All shares of preferred stock called for redemption. Feb. 24, 1929 Hermann sold all common stock (26,-459 shares — 14,500 from voting trust) to Gillette and Hutchens at $21. March 18, 1929 Charter changed so only 200,000 shares of common stock. Sept., 1929 Hermann ceased being president of new corporation. Dec. 2, 1929 First complaint in equity filed on removal to District Court (Started in State court, Nov. 22, 1929). Jan. 14, 1930 Hermann died. July 17, 1931 Trust fund receivership set up. April 7, 1932 Opinion of this court on previous appeal, 58 F. (2d) 537. Nov. 30, 1932 Second amended bill filed. March 16, 1935 Order of District Court terminating receivership of trust fund. Hermann’s profits in the whole transaction from hindsight are: He deposited pursuant to underwriting agreement $315,000. for v,-Ilion lie received the following items: (a) 100,000 shares of common stock of par value $5.40 280,000 (b) Preferred stock of par value of $50,-000 • 35,000 Total $315,000 He was returned between Aug. 29, 1925 and Jan. 9, 192G, from this deposit by order of court after reorganization 98,105.02 $216,894.98 He sold out of the 100,000 shares of common stock 34,775 shares to old stockholders for $178,927.80 2,568 shares to others for 12,840 $191,767.80 191,767.80 The remainder which he did not receive by sale of common stock $ 25,127.18 * * * He later sold to Gillette and Hutchens 11,657 shares of common stock 244,797 (of the 49,000 portion) 14,802 shares of common stock 210,842 $555,639 He also later sold 17,377% shares preferred stock to company at $7.50 130,331.25 Total he received for stock held (not counting 400 shares turned in for son-in-law’s note) $685,970.25 25,127.18 Net profit, subtracting the balance above $660,843.07 These figures are approximately correct. . There seems to be some slight conflict in the record of the various stock holdings, and therefore the approximation. Much difficulty, as well as this prolonged litigation, might have been avoided had Hermann been denied the right to participate actively in the reorganization of the company for which he was acting as receiver. There may be instances when the condition of an embarrassed company and the unusual qualifications of the receiver justify an order by the court which permits the receiver to deal, as an adverse party, with the property for which he is a receiver. (See volume 23, Ruling Case Law, “Receivers,” Secs. 83 and 84.) We doubt it. The dual position in which a receiver finds himself, under such conditions, is intolerable. His interests conflict. Jackson v. Smith, 254 U.S. 586, 41 S.Ct. 200, 65 L.Ed. 418. As receiver he is the arm of the court. (Bogert on Trusts, vol. 1, § 14.) He has obtained inside information concerning the future possibilities of the company. As a receiver he represents all the stockholders and all the creditors. The court is entitled to his advice and should be free to rely upon it. Notwithstanding Hermann occupied such a position he was permitted to become a purchaser of the assets of the corporation and in no small way to direct the amount the creditors should be paid as well as the manner of payment. He held the fate of the stockholders in his hands. It was a case of Hermann, receiver, to protect stockholder, versus Hermann, who was making a purchase the profits from which depended upon the extent to which he could reduce the amount that he paid the stockholders. The query naturally arises, In what capacity did Hermann act? Was he the receiver when he arranged to organize a new company and acquire the stock thereof? Was he in a position to advise the court as a receiver respecting the fairness of the plan of reorganization wherein he individually was purchaser? We think not. It is true that an executor or a guardian or a trustee may at times further bids, if permitted to purchase a part or all of the estate for which he is a conservator. Unfortunately, however, there may be times when he will be the only bidder and at other times he may be interested in eliminating other bidders. Hence the rule which forbids such court official from purchasing at such sales. It is a wise and safe rule. Its wisdom has been demonstrated by experience. Bogert on Trusts, volume 3, § 484, p. 1514. Undoubtedly much of the litigation which has vexed the courts for the last eight or ten years growing out of this reorganization would have been avoided had Judge Luse lived. He apparently had great confidence in Hermann’s ability to conduct this rubber tire business. He, too, was anxious to avoid liquidation and equally desirous of continuing a business which was important to the people of Eau Claire. In the conduct of a receivership, courts are required to make administrative orders and seldom do the court files completely record all of the understandings and fact representations which are known to the court only. It is for this reason that we observed that much of the trouble would have been avoided had the presiding judge not been called by death. We must, however, take the situation as we find it. No appeal was taken from the order which allowed Hermann to purchase the assets of the old company and organize a new company. In fact, the court was encouraged to so proceed by those who are now crying the loudest. Out of this prolonged and bitter legal contest, the issue is over Hermann’s liability as an alleged trustee. Two basic questions are presented. One is a question of fact and the other, one of law. In truth, the issue of fact is largely one of conclusion, (a) Did Hermann receive the common stock with the understanding that he was to sell 49,000 shares of it to old stockholders and apply the proceeds thereof to the retirement of preferred slock which had been issued to creditors of the old companyt (b) Did the evidence of the agreement or understanding conflict with or violate the provisions of the underwriting agreement or plan of reorganization ? Obviously, if there were no such understanding or agreement, the second question becomes academic. However, in the consideration of the first question, it is perhaps a worthy argument to assert that parties interested in creating a trust fund would have done so in a manner which was valid and binding beyond dispute. Therefore, this second question somewhat affects the determination of the first ques-' tion. The District Court made a finding to the effect that no agreement creating a trust in 49,000 shares of stock of the new company existed. If this finding depended solely upon the oral testimony of certain witnesses spoken in open court, we would find ourselves compelled to accept it. A careful statement of the reasons why the District Court rejected the oral testimony of numerous witnesses upon which appellants largely depend as unreliable and untrue, would necessitate our applying the well-known rule that appellate courts must accept the findings of the District Court where there is evidence and reason to support them. Uihlein v. General Electric Co. (C.C.A.) 47 F.(2d) 997. We are, however, unable to explain or avoid the effect of certain documentary evidence. It seems to us that Hermann’s letter of April 28th established a case from which he cannot escape. We are satisfied that the plan of reorganization and the underwriting agreement should be construed together. Nor is there in either document anything which would preclude Hermann from accepting 49,000 shares of stock of the new company and validly binding himself to sell them to old stockholders at $5.40 per share and to devote the proceeds to the retirement of the preferred stock. Likewise, we are not much concerned about the form of the documents or the language used in creating this trust. (Bogert on Trusts, vol. 1, § 45, p. 197; In re Grigsby-Grunow (C.C.A.) 80 F.(2d) 478.) We are interested in the fact, not theories of counsel as set forth in different pleadings, briefs or letters. The underwriting agreement contemplated a more elaborate and detailed plan later on. Both plans left disposition of stock of the new company held by Hermann open to future action by Hermann. In his letter of April 28th, Hermann elaborated his understanding of the plan, particularly the disposition of the 100,000 shares of stock which were to be issued to him. He also explained his method of securing the cooperation of the old stockholders. He says he was “to use the proceeds from the sale of this stock toward retiring the preferred stock given to creditors.” When the plan was sent out for approval it was accompanied by a letter, the all-important paragraph of which reads as follows: “On April 21st, 1924, the bondholders and creditors committees submitted a plan of reorganization to Mr. Hermann which was accepted by him. Under that plan Mr. F. C. Hermann agreed to furnish all the cash requirements and in return was to be given all of the 100,000 shares of non-par common stock in the new company, and he has very generously offered to sell to the stockholders one-half or 50,000 shares at the agreed price of $5.40 per share. The money derived from this does not go to Mr. Hermann personally but is to be used in retiring as many of the unsecured debts as possible at fifteen cents on the dollar, and thus permitting the stockholders to become part owners with him.” If we ignore for the moment the oral testimony of Catlin, Wilcox, Lange or Kootz and view their sworn statements as entitled to no weight, as the District Judge did, it is still quite impossible, in view of these two letters, one from Hermann and one which the chairman of the stockholders’ committee set out, to conclude other than that Hermann offered to sell 50,000 shares of the common stock at the agreed prices of $5.40 per share and the money derived from the sale of this stock should go, not to Mr. Hermann personally, but was to be used in retiring preferred stock. (Later, the 50,000 sháres were reduced to 49,000 shares.) As corroboration, it is worthy of note that the creditors were to take part cash and some preferred stock; that the preferred stock was to be retired. There is further corroboration to be found in the action of Hermann. He did set aside a certain amount of stock to be sold the stockholders of the old company. He did offer most of it for sale to said old stockholders. He did use the proceeds thereof to buy preferred stock. He did not, however, retire the preferred stock. There is-, moreover, the further corroboration which appears in the testimony of Mr. Kootz. Assuming that prejudices influence witnesses to the extent of coloring their testimony, it is worthy of note that Kootz must be aligned on.the side of Hermann. Certainly he was not on the side of the stockholders or creditors of the old company. It was to him that Hermann went to borrow money, and Hermann agreed to pay him half of the profits of' the underwriting transaction. After the transaction was over, Kootz asked for an accounting, and Hermann stated that “the money which he got from the old stockholders in the old company was not his own.” “He accounted to me for profits which he made on the rest of the stock.” This testimony was given while Hermann was still living. We are unable to reconcile Hermann’s statement thus made to Kootz with any theory other than that the money derived from the sale of this new stock to old stockholders was to be used in retiring the preferred stock, as proposed by Hermann in his letter of April 28th and confirmed by the letter which was sent out to stockholders when the plan of reorganization was submitted to them. True, Kootz’s testimony was oral. No writing supports his statement. It is, however, undisputed. In view of the fact that it was given before Hermann died, the latter’s counsel was advised of the amounts paid to Kootz by Hermann as profits out of the underwriting deal. If the payments included the profits on this stock, the records would have shown it. Kootz’s testimony, therefore, while oral, was capable of refutation by documentary evidence. It was the statement of a third party aligned, if at all, with Hermann. It was testimony which, if untrue, could have been proved to be false. ' It was not disputed. It is argued for appellees that the agreement out of which the trust arose violated or conflicted with the underwriting agreement. We think not. The underwriting agreement provided: “Out of the common stock, the management (was) to make such arrangement as it wishes with the old stockholders to provide them with participation certificates to induce them to consent to the transfer of the property without .foreclosure.”, Likewise, another paragraph provided that the common stock was passed to Hermann and by him to be used to provide participation certificates for such stockholders of the present corporation as give their consent to the plan of reorganization. Undoubtedly the idea of participation certificates was eliminated because foreclosure took place and the good will and cooperation of the old stockholders were sought in another way. It was both a practical and a happy solution of the problem. It furnished Hermann with cash he sorely desired. Even with this money he used cash of the corporation to meet his obligation. It gave the old stockholders an opportunity to retain their interest in the enterprise. They could purchase common stock in the new company at a figure below that which it was hoped the stock would be fairly worth. Money used to retire preferred stock issued to creditors eliminated those prior lien securities which in turn gave greater value to the common stock. We find nothing in a plan which used the stock for the laudable purpose of acquiring the good will and friendly cooperation of old stockholders and creditors who had it in their power to obstruct, if not defeat, the reorganization, that was inconsistent with an underwriting agreement wherein the then receiver was to have the stock of the new company first issued to him. It is not necessary to discuss all the arguments advanced by appellees. It is sufficient to say that appellees’ anxiety lest creditors whose claims Hermann purchased might have been defrauded by the plan which contemplated the early retirement of the preferred stock, is unappreciated. Northern Pacific Railway Co. v. Boyd, 228 U.S. 482, 503, 33 S.Ct. 554, 57 L.Ed. 931. We are equally well satisfied that appellants were not guilty of laches. There was also corroboration of the appellants’ theory to be found in the plan itself. In other words, the utter unfairness of the plan as Hermann carried it out and in support of which appellees now argue, would have prevented the acceptance of such a plan by the stockholders had it been thus presented to them and too it would doubtless have been rejected by the court. Credibility of a witness may depend upon the reasonableness of his story. The facts speak for themselves. Hermann was and had been the receiver of the company for three and one-third years. He occupied a fiduciary position to the stockholders and creditors. He was familiar with the business of the company during the receivership. Its operation had been successful as evidenced by the average net earnings of $400,000 per year. As receiver he was under obligation to deal fairly with all and to take no advantage of stockholders or creditors. Jackson v. Smith, supra. It is also fair to assume that he desired to retain the confidence of the court that appointed him. Under the plan of reorganization the unsecured debts were to be reduced from $1,600,000 to approximately $240,000. Both the bonded indebtedness and the secured indebtedness were also reduced. In addition, according to appellees’ theory, Hermann was personally to receive without cost all the stock of the new company. In short, the receiver was to close up the receivership by becoming the sole owner of all the stock for which the existing stockholders were to receive nothing. The equity represented by 300,000 shares belonging to hundreds of stockholders for which they had paid ten dollars per share was to be wiped out, and new stock was to be issued, all of it, to Hermann. To accept this theory is to overtax one’s credulity., On the other hand, appellants’ version appeals. to us as reasonable. There were outstanding 300,000 shares of stock of the old company of $10 par value per share. They were widely distributed and the stockholders were purchasers of Gillette Rubber Company’s tires. Under the reorganization plan the stock issue was to be one-third that of the old company. Par value was changed from $10 to $5.40. The stockholders of the old company were permitted to purchase stock in the new company, up to 49,000 shares, at $5.40 per share. In view of the reduction of debt and in view of the earning showings, this was a worth while concession to the old stockholders. But if this stock was to be sold to old stockholders at $5.40 who.was to receive the proceeds,- — the company or this receiver? Appellants say the proceeds were to be used to further improve the condition of the company — to retire preferred stock issued to creditors at fifty cents on the dollar. If this plan had been carried out nearly all preferred stock would have been eliminated. • Such a plan would have appealed to the old stockholders who were asked to surrender their stock in the old company. This was the written proposal submitted to them by the chairman of their committee and doubtless resulted in their joining Hermann and others in asking the court to approve th-e plan. If this were not the understanding, why were 100,000 shares in the new company divided immediately upon their issuance, 51,000 going to Hermann’s voting trustees and hundreds of certificates issued to old stockholders who even at that earlier date h-ad subscribed for them? How did it happen that the price was $5.40 to them if there was no existing agreement on Hermann’s part to sell to old stockholders at this figure? The issuance of this stock was on the date the books of the new company were opened. Equally significant is the fact that the proceeds were used to acquire preferred stock issued to creditors under the option provision therein appearing. But the preference stock was not cancelled. It was not retired. Notwithstanding Hermann in his letter of April 28 used the word “retired” this stock thus purchased was held by Hermann as his own and he later offered it to the directors with the threat that if they did not buy it for the corporation he would sell it elsewhere for a higher price. Now, it is argued from the fact that the directors paid Hermann for this stock out of company funds there could have existed no obligation on Hermann’s part to retire the preferred stock from the proceeds of the sale of the common stock. An examination of the records of the company in respect to this transaction does not support any such deduction. Nor does the study add respect for Hermann’s methods. There were seven directors. Hermann was one. He was president of the company. At the time he offered this stock to the directors he held the stock control. Four of the directors were on salaries the continuation of which depended on Hermann. One of the four received a salary of $25,000, two received $12,000, and one, $9,000, per year. Moreover, another director had a secret agreement with Hermann to share in the profits from the transaction whereby Hermann acquired the stock of this company. Of the two remaining directors nothing is shown indicating limited or restricted capacity to act freely. One protested and stated that he understood the preferred stock purchased from funds • derived from the sale of 49,000 shares of common stock was to be retired. He was advised that the right to enforce this obligation on • Hermann’s part rested with the stockholders and not with the corporation, and that the directors should purchase the stock “for it was worth more.” This action, aside from the irregularity arising out of a president’s dealing with his own company where directors were under his influence, shows that there was an impression, to put it mildly, that these 49,000 shares were transferred to Hermann in trust. Had the claim .been asserted by the directors it would not have established the existence of a trust anymore than failure to so assert it negatived the existence of a trust. Its only significance lies in the fact that there, was an expressed belief by one of the directors that such a trust existed. He was silenced by an awesome statement that “the law” did not recognize the authority of the corporation to enforce the rights of stockholders. Transactions with the Deceased. While our conclusions are based largely if not entirely on Hermann’s letter of April 28 and the circular letter which was sent with the copy of the plan of reorganization, to all the stockholders including Hermann, there is strong support in favor of the existence of the trust to be found in the deposition of Kent and the oral testimony of one Doctor Runnels, which were excluded by the District Court on the ground that such statements violated section 325.16 of the Wisconsin Statutes. Kent was an officer of a Chicago bank which carried the old Gillette Rubber Company’s account. When that company became financially involved, Kent became chairman of a bondholders’ and also the creditors’ committee. He was not personally interested in either stocks or bonds or other claims against the Rubber Company. He actively participated on behalf of the creditors in the receivership proceedings, and also was active in the preparation of the underwriting agreement as well as in the plan of reorganization. Shortly after Hermann wrote the aforesaid letter of April 28 to Attorney Gilruth, who was attorney for this bondholders’ protective committee, Kent testified to Hermann’s seeing him in Chicago, in his bank in reference to the proposal contained in Hermann’s letter of April 28. It was this conversation which was excluded. That it was important and most persuasive can not be doubted. Kent said that in this conversation he suggested two or three modifications to Hermann’s proposal, appearing in the letter of April 28. He suggested that the per cent of stock of the new company to be sold to the old stockholders should be reduced from fifty to forty-nine per cent thereby giving absolute control to Hermann. He also stated that the dollar mentioned in said letter be eliminated; that the price fixed for the stock be $5.40 instead of $5, forty cents to be used to cover expenses, etc. And most important of all, he said Hermann confirmed his offer to sell forty-nine per cent of the stock to old stockholders and use the proceeds to retire preferred stock. The exclusion of this testimony was on the ground that the witness was not competent because (section 325.16, Wis. Statutes) he related a transaction with a deceased person. As we construe the decisions, the Wisconsin Supreme Court has ruled otherwise in Dilger v. Estate of McQuade, 158 Wis. 328, 148 N.W. 1085; Lowry v. Lowry, 2 Question: What is the specific issue in the case within the general category of "economic activity and regulation - bankruptcy, antitrust, securities"? A. bankruptcy - private individual (e.g., chapter 7) B. bankruptcy - business reorganization (e.g., chapter 11) C. other bankruptcy D. antitrust - brought by individual or private business (includes Clayton Act; Sherman Act; and Wright-Patman) E. antitrust - brought by government F. regulation of, or opposition to mergers on other than anti-trust grounds G. securities - conflicts between private parties (including corporations) H. government regulation of securities Answer:
songer_dissent	0	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting. SUPERSCOPE, INC., Plaintiff, Appellee, v. BROOKLINE CORP., etc., Defendant, Appellee. Robert E. Lockwood, Defendant, Appellant. No. 83-1129. United States Court of Appeals, First Circuit. Argued Aug. 3, 1983. Decided Aug. 31, 1983. George L. Bernstein, Boston, Mass., for defendant, appellant. Paul E. Heimberg, Brookline, with whom Julius Thannhauser, and Riemer & Braunstein, Boston, Mass., were on brief, for Superscope, Inc. Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and PEREZGIMENEZ, District Judge. Of the District of Puerto Rico, sitting by designation. LEVIN H. CAMPBELL, Chief Judge. Superscope, Inc., appellee, supplied Brookline Corp. with inventory for Brook-line’s chain of retail stores. Payment for the inventory was secured by a purchase money security interest. On November 14, 1980, appellant Lockwood, who was the president, treasurer, and clerk of Brookline, executed and delivered a personal guaranty to Superscope guaranteeing Brookline’s indebtedness in excess of $100,000. The guaranty provided that recourse to Lockwood would be had “simultaneous with proceeding against any security taken and held to satisfy all debt of [Brookline] to [Super-scope] and with exercising any other remedy available to [Superscope] against [Brook-line].” On April 8, 1981, Brookline filed a petition for relief under Chapter 11 of the United States Bankruptcy Code. On April 13, 1981, Superscope brought the present action against Brookline and Lockwood in the district court. On April 8, 1982, the Chapter 11 proceeding was converted into a Chapter 7 liquidation. After Superscope had moved for summary judgment in the instant case against both defendants, the parties stipulated that Brookline owed Superscope $176,814.19. Thereafter, the district court entered judgment in the amount of $76,814.19 against Lockwood, that being the portion of the stipulated amount owed by Brookline in excess of $100,000. From that judgment, Lockwood appealed to this court. We agree with the district court that Superscope established all the elements of its case and that no material factual dispute sufficient to defeat summary judgment was raised. Brookline’s underlying obligation is undisputed and fully liquidated. Lockwood does not deny the existence of the debt or his guaranty of a portion thereof. Brookline is clearly in default as the debt has been due and owing for over 30 days and it has filed for bankruptcy. The several letters sent by Superscope to Lockwood and Lockwood’s position in the corporation, as well as the filing of this suit, provided sufficient notice to Lockwood of Brookline’s default. Lastly, the furnishing of credit to Brookline on Lockwood’s promise is sufficient consideration; no benefit need pass directly to Lockwood. The sole question on appeal is whether Superscope complied with the condition that it proceed simultaneously against both the security and the guarantor. Appellants argue that by filing a claim as an unsecured creditor, Superscope abandoned its security and therefore lost its right to proceed against Lockwood on the guaranty. The district court held, and we agree, that Superscope did not abandon its security and took all required action precedent to realizing on the guaranty. Brookline’s petition for reorganization listed Superscope as a secured creditor. Under § 1111(a) of the Bankruptcy Code, a proof of claim is deemed filed under § 501 if that claim appears in the schedule filed by the debtor under § 521(1) so long as the claim is not scheduled as disputed, contingent or unliquidated. Thus, Superscope did not have to file a proof of claim for its secured interest because Lockwood had listed Superscope as a secured creditor in Brookline’s schedule. Superscope, to be sure, also filed a proof of claim as an unsecured creditor under § 501. But as the Committee notes to the Senate Report on § 501 explain, S.Rep. No. 989, 95th Cong., 2d Sess. 61, reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5847, a creditor who is only partially secured, as Superscope appears to have been, may file a proof of claim as an unsecured creditor. Given its listing elsewhere as a secured creditor, Superscope’s filing as an unsecured creditor did not operate to abandon the security but merely gave Superscope claims both as a secured and an unsecured creditor. Nothmg in § 1112 or elsewhere suggests that when the case was converted to Chapter 7 the proof of claim deemed filed under § 1111 disappeared. The only possible additional action that Superscope could have taken that it did not take was to seek relief from the automatic stay under § 362(d). Like the court below, we do not believe that the guaranty required Superscope to realize on its security before it could proceed against Lockwood. The condition merely required that it proceed simultaneously. The existence of a sufficient proof of claim as a secured creditor coupled with the filing of a proof of claim as an unsecured creditor and the bringing of this action meets this condition; thus, it was unnecessary for Superscope to seek relief from the stay. Affirmed. . Schedule A-2 entitled “Creditors Holding Security,” which was filed for Brookline by Lockwood himself, showed a debt to Superscope of $176,814.19; the schedule also showed that this amount was secured by $10,000 of inventory. It was explicitly stated in the schedule that the claim was not contingent, unliquidated or disputed. . Since Superscope was only partially secured, it properly filed a proof of claim as an unsecured creditor in hope of realizing more than the $10,000 value of its security. Question: What is the number of judges who dissented from the majority? 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. E. N. FUNKHOUSER and Estate of Nellie S. Funkhouser, Deceased, E. N. Funkhouser, Executor, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 10330. United States Court of Appeals Fourth Circuit. Argued May 5, 1966. Decided March 15, 1967. Lawrence A. Kaufman, Baltimore, Md. (John W. Cable, III, and John S. McDaniel, Jr., Baltimore, Md., on brief), for petitioners. Anthony Zell Roisman, Atty., Dept, of Justice (C. Moxley Featherston, Acting Asst. Atty. Gen., Lee A. Jackson and David O. Walter, Attys., Dept, of Justice, on brief), for respondent. Before SOBELOFF and BRYAN, Circuit Judges, and FIELD, District Judge. FIELD, District Judge: This petition for review of a decision of the Tax Court of the United States presents as its only issue whether two lump-sum distributions received by petitioner, E. N. Funkhouser, during the year 1959 from a pension trust were paid to him “on account of * * * separation from the service” within the meaning of Section 402(a) (2) of the Internal Revenue Code of 1954 and therefore entitled to capital gain treatment, or were properly taxable as ordinary income. The Tax Court resolved this issue in favor of respondent and we affirm. There is no dispute as to the facts and they were stipulated in their entirety before the Tax Court. Petitioner was a director and a principal executive officer of R. J. Funk-houser and Company, Incorporated, from January 2, 1929, the date of its incorporation under the laws of the State of Maryland, until October 31, 1958, when it ceased to exist by reason of its merger with The Funkhouser Company. He was also a director and a principal executive officer of The Funkhouser Company from October 6, 1927, the date of its incorporation under the laws of the State of Maryland, until January 5, 1959. The business of The Funkhouser Company consisted primarily of producing rock granules used in the manufacture of asphalt roofing and for other purposes, and the business of R. J. Funkhouser and Company, Incorporated, consisted principally of the sale of the products manufactured or produced by The Funkhouser Company. On October 1, 1958, the outstanding stock of both corporations was owned or controlled to a large degree by petitioner and R. J. Funkhouser together with members of their respective families. On October 3, 1958, these two corporations entered into an agreement with The Ruberoid Co., a New Jersey corporation, under which agreement Rub-eroid was to acquire all of the assets of The Funkhouser Company and R. J. Funkhouser and Company, Incorporated, in exchange for shares of stock of Rub-eroid, and assumption of liabilities together with a cash payment sufficient to satisfy certain tax liabilities of the Funkhouser corporations. As a first step in carrying out this agreement with Rub-eroid, • R. J. Funkhouser and Company, Incorporated, was merged into The Funk-houser Company on October 31, 1958. Thereafter the agreement with Ruberoid was amended to some degree with respect to the elimination of any cash payment by Ruberoid to The Funkhouser Company and for the retention by the latter corporation of sufficient cash to pay its estimated tax liabilities. On December 24, 1958, the Commissioner of Internal Revenue issued a ruling letter to the effect that the merger of the two Funkhouser corporations and the proposed transfer of assets of the surviving corporation to Ruberoid constituted tax-free reorganizations. The transfer of assets by The Funkhouser Company to Ruberoid as well as the assumption of the liabilities pursuant to the agreement occurred on January 5, 1959, and thereafter Ruberoid operated the business theretofore conducted by The Funkhouser Company. Pursuant to the agreement of October 3, 1958, The Funkhouser Company amended the certificate of incorporation on January 5, 1959, to change its corporate name to “E. N. Funkhouser & Co., Inc.” Also pursuant to the agreement, Ruberoid on or about February 15, 1959, issued 120,098 shares of its stock to E. N. Funkhouser & Co., Inc., in exchange for the assets transferred to it. One hundred and ninety-eight shares of this stock were sold and the proceeds used to defray certain expenses, and on March 9, 1959, the remaining 119,900 shares were distributed pro rata to the stockholders of E. N. Funkhouser & Co., Inc. Since the date of that distribution this corporation has been dormant and has not conducted any business although it has not been formally dissolved. During the time of their active corporate existence, on December 20, 1946, R. J. Funkhouser and Company, Incorporated, and The Funkhouser Company each entered into separate pension trust agreements which established a non-contributory pension plan and trust for the benefit of the full time salaried employees of the respective corporations. Each such pension trust agreement was amended from time to time, and as so amended satisfied the requirements of Section 165 (a) of the Internal Revenue Code of 1939 and Section 401(a) of the Internal Revenue Code of 1954, at all times material hereto. Benefits were payable to a participating employee or his beneficiary in the event of the employee’s death, retirement or other termination of employment with the “Corporation,” as that term is defined in the respective pension trust agreements, or upon termination of the plan. Petitioner was an eligible employee under each pension trust agreement and the Trustee obtained income continuation policies for the purpose of providing to petitioner the benefits to which he was entitled under the pension trust agreements. Petitioner became 65 years of age in 1956 and thereupon became entitled to retirement benefits under the provisions of the pension trust agreements. However, the benefits payable to him were postponed in accordance with the terms of the agreements, and no contributions were thereafter made in behalf of the petitioner by either “Corporation.” Each of the pension trust agreements provided that in the event the “Corporation” should be dissolved or merged into or with another corporation which did not assume the obligation of the pension trust, the pension trust would automatically terminate. By agreement dated October 31, 1958, between R. J. Funkhouser and Company, Incorporated, and The Funkhouser Company, it was provided that upon the merger of these corporations becoming effective the obligations of R. J. Funkhouser and Company, Incorporated, under its pension trust agreement would be assumed by The Funk-houser Company and such pension trust would be consolidated into and become a part of the pension trust of The Funk-houser Company. The Trustee under both such pension trust agreements consented thereto and agreed to be bound by its provisions. On December 19,1958, The Funkhouser Company and the Trustee executed amendments to the pension trust agreement of The Funkhouser Company, the purpose of which was to provide for the contemplated assumption by Ruberoid of the obligations of The Funkhouser Company under such pension trust agreement upon the transfer to Ruberoid of all of the assets of The Funkhouser Company. The amendments were, in part, as follows: “3 The preamble to such Pension Trust Agreement (being the paragraph entitled ‘Parties to the Agreement’) shall be amended by inserting in the first parenthetical phrase immediately following the word ‘Corporation’ the following words ‘which term shall also be construed to mean and include in substitution for The Funkhouser Company any corporation which shall have purchased all or substantially all of the assets of The Funkhouser Company and which shall have become the employer of substantially all of its employees and which shall assume the obligation of this Pension Trust.’ “4 Paragraph NINETEENTH shall be amended by adding at the end thereof the following sentence: “ ‘Notwithstanding anything to the contrary heretofore in the Paragraph NINETEENTH contained this Pension Trust shall not terminate and no distribution of its assets by the Trustee shall be made upon the dissolution, bankruptcy, insolvency or merger, as aforesaid, of The Funkhouser Company if prior to the occurrence of any of such events any other corporation shall have been substituted for The Funk-houser Company as the Corporation hereunder.’ ” Prior to October 3, 1958, Ruberoid had in effect a qualified contributory pension plan, providing for retirement benefits for its employees. In connection with the acquisition of the assets of The Funk-houser Company by Ruberoid, Ruberoid on or before January 5, 1959, (a) amended such existing qualified pension plan so as to make provisions for the former employees of The Funkhouser Company who became employed by it following the acquisition of such assets; (b) assumed the pension trust agreement of The Funk-houser Company, as amended to include the pension trust agreement of R. J. Funkhouser and Company, Incorporated, as well as the obligations thereunder and became the “Corporation” as that term was defined in said pension trust agreement as amended; and (c) placed all of the annuity contracts held by the Trustee under the pension trust agreement of The Funkhouser Company on a paid-up basis to be held for distribution to the employees upon termination of their employment. On March 9, 1959, the administrative committee of the retirement plan for employees of Ruberoid issued a direction that any Ruberoid employee who was formerly an employee of The Funkhouser Company and who, on December 31, 1958, was enrolled and participated in The Funkhouser Company pension trust agreement and who had attained the age of 60% years, but had not attained the age of 65 years, should be eligible to enroll as a contributing participant in the retirement plan of the employees of Rub-eroid. On August 26, 1959, the pension trust agreement originally made between The Funkhouser Company and the Trustee was further amended by agreement between Ruberoid and the Trustee to provide for the handling of dividends and refunds on the annuity contracts held thereunder and for the distribution of such contracts upon any termination of employment. On January 5, 1959,- there were 174 employees of The Funkhouser Company under the age of 65 for whose benefit annuity contracts were held under The Funkhouser Company pension trust agreement, as amended to include the pension trust agreement of R. J. Funk-houser and Company, Incorporated. In addition, annuity contracts were also held for the benefit of the petitioner and R. J. Funkhouser, both of whom were then over 65 years of age. There were no other employees of The Funkhouser Company, including former employees of R. J. Funkhouser and Company, Incorporated, who had attained the age of 65 years on January 5, 1959. Subsequent to January 5, 1959, a substantial number of former employees of The Funkhouser Company retired or otherwise ceased to be employed by Ruberoid and received a distribution of benefits under The Funkhouser Company pension plan. The Funkhouser Company pension trust agreement as assumed by Ruberoid continued in effect and existence, and as of October 30, 1964, the Trustee thereunder held annuity contracts for the benefit, of the 70 former employees of The Funk-houser Company who were still employed by Ruberoid at that time. Petitioner became employed by Rub-eroid as a director and consultant as of the effective date of the acquisition by Ruberoid of the assets of The Funk-houser Company, and continued to be so employed during the calendar years 1959, 1960 and 1961, receiving compensation from Ruberoid for his services at the rate of $15,000 per year. Subsequent to 1961, the petitioner served Ruberoid' only in the capacity of a director receiving only director’s fees in connection therewith. Since petitioner was over 65-years of age on January 1, 1959, he was not eligible to participate in the Ruberoid pension plan and, accordingly, was never covered by that plan. Subsequent to April 10, 1959, and prior-to June 4, 1959, petitioner requested the-Trustee under the former Funkhouser pension trust agreement to surrender one of the policies carried for petitioner’s benefit thereunder for cash, and on August 19, 1959, he made a similar request of the Trustee with respect to the second policy carried for his benefit under the agreement. Pursuant to these requests the Trustee surrendered the policies and on or about June 4, 1959, delivered to petitioner a check in the amount of $16,-854.30, and on or about October 15, 1959, the Trustee delivered to petitioner a second check in the amount of $39,906.83. The aggregate amount of $56,761.13 so received by petitioner was reported on his 1959 joint return as a long-term capital gain. Respondent determined a deficiency against the taxpayers for that year, proposing that the distributions were taxable as ordinary income which resulted in a disputed tax item of $27,-.374.35. As heretofore stated, the parties stipulated that the pension trust agreements of both Funkhouser corporations were ■qualified under Section 165(a) of the Internal Revenue Code of 1939 and Section 401(a) of the Internal Revenue Code of 1954, at all times material hereto, so that all pension trust distributions would be taxable at ordinary income rates under Section 402(a) (1) of the 1954 Code, except as provided in Section 402(a) (2) .as follows: “§ 402. Taxability of beneficiary of employees’ trust “(a) Taxability of beneficiary of exempt trust. — • * * -x- * * * “(2) Capital gains treatment for certain distributions. — In the case of an employees’ trust described in section 401(a), which is exempt from tax under section 501(a), if the total distributions payable with respect to any employee are paid to the distributee within 1 taxable year of the distributee on account of the employee’s death or other separation from the service, * * * the amount of such distribution, to the extent exceeding the amounts contributed by the employee * * * shall be considered a gain from the sale or exchange of a capital asset held for more than 6 months. * * *» The legislative background and the history of the somewhat controversial interpretation of this Section have been set forth in United States v. Johnson, 331 F.2d 943 (5 Cir. 1964) and need not be reviewed by us in the disposition of the present case. Petitioner relies to a large degree on the cases of Mary Miller, 22 T.C. 293 (1954), aff’d 226 F.2d 618 (6 Cir. 1955) and Lester B. Martin, 26 T.C. 100 (1956), but we agree with the Tax Court that the principle of those cases does not support petitioner’s position on the facts presented here. The rationale of those" decisions was succinctly stated in Thomas E. Judkins, 31 T.C. 1022 (1959) at 1028: “Both this Court and the Internal Revenue Service have recognized the plight of employee-participants in retirement plans that have been terminated due to a bona fide change in the ownership of the business and have found a ‘separation from the service’ within the meaning of this Code provision even though the employees in fact continued in their same jobs with the new owners.” While it is true that in the present case there was a bona fide change in the ownership of the business, it is clear that the corporate principals carefully and specifically took the contractual steps necessary to continue the Funkhouser pension trust in existence under Ruberoid, and by virtue thereof on or before January 5, 1959, Ruberoid became the “Corporation” under the terms of the Funkhouser pension trust agreement. The trust was in nowise terminated incident to the change of business ownership, and petitioner continued in the employ of Ruberoid in fact as well as in respect of the pension trust. Under these circumstances petitioner falls well within the pattern of those eases in which Section 402(a) (2) has been held inapplicable. See Rybacki v. Conley, 340 F.2d 944 (2 Cir. 1965); Clarence F. Buckley, 29 T.C. 455 (1957); Edward Joseph Glin-ske, 17 T.C. 562 (1951). Additionally, assuming, arguendo, that the petitioner was separated from the service of The Funkhouser Company, we agree with the Tax Court that he has failed to carry his burden of proving that the distributions in question were made to him “on account of” such separation. As pointed out in the stipulated facts, petitioner had attained the requisite retirement age of 65 in the year 1956, and was entitled to his full retirement benefits under the agreements at that time. The payment of such benefits was postponed pursuant to section “Eleventh” of the agreements merely because it was the desire of the petitioner to continue in the active employment of the corporation. At any time after 1956, petitioner could have obtained his full retirement benefits under the pension trust by terminating his active employment, an election that rested solely in him both before and after the Ruberoid transaction. The fact that for some unexplained reason the Trustee complied with petitioner’s requests and made the distributions to him while he was still an active employee of Ruberoid and while the pension trust was still in existence indicates to us that the distributions were made “on account of” something other than his “separation from the service.” Cf. Estate of Frank Fry, 19 T.C. 461, aff’d. 205 F.2d 517 (3 Cir. 1953). In any event, it is clear that section 402(a) (2) does not apply to the distributions here in question. Affirmed. . Petitioner and his wife, Nellie S. Funk-houser, filed joint returns with the district director at Baltimore. The wife has since died, and the petitioner appeared before the Tax Court both in his own right and as executor of his wife’s estate. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_genapel2	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. ISGRIG et al. v. UNITED STATES. No. 4535. Circuit Court of Appeals, Fourth Circuit. Jan. 8, 1940. Edward H. Coulter, of Little Rock, Ark., for appellants. T. Barton Harrington, Asst. U. S. Atty., of Baltimore, Md. (Bernard J. Flynn, U. S. Atty., of Baltimore, Md., on the brief), for appellee. Before PARKER and SOPER, Circuit Judges, and DOBIE, District Judge. PARKER, Circuit Judge. This is an appeal from an order refusing to remit the forfeiture of an appearance bond in a criminal case. One Robert E. LaVine was indicted in the District of Maryland and gave bond in the sum of $5,000 for his appearance at the September term, 1937, of that court, with appellants Isgrig and Cole as sureties. He failed to appear and judgment was entered against his sureties for the amount of the bond. He was subsequently captured, and in February 1938 was sentenced to fine and imprisonment. The bondsmen, in October 1938, filed petition under 18 U.S.C.A. § 601 asking.that the forfeiture be remitted, on the ground that the default of the prisoner was not wilful and that he had subsequently been apprehended and punished. Answer to this petition alleged that the default of the prisoner was wilful. A hearing was had on the petition in October 1938; and, on June 23, 1939, the judge below filed an opinion holding that, as no evidence had been introduced showing that the default was not wilful, he was without power to remit the forfeiture. On July 13, 1939, order was signed denying the petition; and the bondsmen immediately gave notice of appeal to this court and within forty days docketed the record here as required by the rule. On September 15, 1939 they filed in the court below a petition for a rehearing on the ground of newly discovered evidence and at the same time filed a petition with this court that the cause be remanded to the court below to pass on that motion. Three questions arise for our consideration: (1) whether appeal lies from the order denying the remission of the forfeiture; (2) whether the cause should be remanded for the court below to pass on the motion for rehearing; and (3) whether the order appealed from was proper. On the first question, contention is made that the order appealed from is not a final order. It is said that the order of forfeiture does not become absolute until the bondsmen are brought into court by writ of scire facias and given opportunity to make defense, and that, consequently, an order refusing to vacate the order of forfeiture prior to the issuance of scire fa-cias is interlocutory in character and not appealable. For this position, the decision in McLennan v. United States, 9 Cir., 12 F.2d 507, and the cases therein cited are relied upon. The rule laid down in the Mc-Lennan case is unquestionably sound in those jurisdictions where a judgment forfeiting the bond does not become final until hearing is had upon a writ of scire facias; but it does not apply in Maryland, for the reason that scire facias need not be issued there as prerequisite to the entry of a valid final judgment upon a forfeited appearance bond. In that state, in which no distinction is apparently made between a bail bond and a recognizance, a statute gives finality to a judgment entered upon a defaulted recognizance by authorizing writ of execution, to issue thereon. Bagby’s Annotated Code of Maryland of 1924, Art. 75, Sec. 22. “A recognizance is an obligation of record, and when forfeiture is declared and entered by the Court, it becomes a judgment. It is then, like an ordinary judgment, enforceable by execution.” Schultze v. State, 43 Md. 295; Backus v. State, 118 Md. 536, 85 A. 501; Albrecht v. State, 132 Md. 150, 103 A. 443; Hochheimer, Law of Crimes and Crim. Procedure, 1904 ed., 98. There is no federal statute governing the practice in this matter; and since the proceeding- to enforce the bond is civil in nature, the sufficiency of the procedure adopted, prior to the effective date of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, is to be determined, under the Conformity Act, 28 U.S.C.A. § 724, by the applicable state law. United States v. Davenport, D.C., 266 F. 425, 427. The Maryland practice is thus set forth by Judge Chesnut in United States v. Clatterbuck, D.C., 26 F.Supp. 297, 300, a case involving forfeiture of bail in the federal court, viz.: “The procedure for bail forfeiture in this district has from time immemorial been summary. Upon call of the defendant and his sureties, and the default in appearance of the defendant, after due notice to appear, the clerk enters judgment of forfeiture upon the order of the court. Ordinarily a judgment may not be vacated on petition filed after the term except for fraud, accident or mistake. But on examining the decided cases, it is found that in this Circuit it was long ago held that the procedure under this particular statute [18 U.S.C.A. § 601] was not within this general rule, and therefore the petition for remission could properly be entertained although filed after the term.” A final judgment entered against a bondsman on forfeiture of the bond cannot be said to be lacking in due process for lack of notice to the bondsman; for the bondsman makes himself a party to the cause by filing the bond as a part of the record therein, and it is a fiction of the common law that the surety is personally in attendance upon the court whenever the accused, by order of the court, is bound to appear personally. Kirk v. United States, C.C., 131 F. 331, 335. And see Pease v. Rathbun-Jones Engineering Co., 243 U.S. 273, 278, 37 S.Ct. 283, 61 L.Ed. 715, Ann.Cas.1918C, 1147, and Brame v. Keystone Credit Corp., 4 Cir., 76 F.2d 328, 330, for cases where the entry of summary judgment upon bond, without notice to sureties, was approved. In this case the question of notice to the bondsmen is immaterial, however, for they actually intervened by petition and a full hearing was accorded them. The order refusing to remit the forfeiture was in effect, therefore, a final judgment of forfeiture upon notice, since the judgment which the court refused to vacate by remission of forfeiture was in form a final judgment. The order was made after intervention, which supplied the place of notice by scire facias if such notice was necessary, it disposed of the petition to remit the forfeiture and it left in effect a judgment absolute upon which execution could be issued. It is conceded that an order allowing a petition for rémission of a forfeiture is a final judgment from which the government may appeal. United States v. Nordenholz, 4 Cir., 95 F.2d 756. We think it equally clear that an order denying the petition is a final judgment from which appeal may be taken where, as here, it disposes of petitioner’s right to remission of the forfeiture and no further proceedings with regard thereto can be had. Appellants, by filing a petition for rehearing in the court below on the ground of newly discovered evidence and then moving in this court that-the cause be remanded for the court to pass upon that motion, followed the proper procedure. A motion for new trial on the ground of newly discovered evidence may be made within the time allowed for appeal. Rule 59(b) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c. If appeal has been taken in the meantime, the case is in the appellate court; and the appropriate procedure is motion in that court to remand the case to the lower court so that the motion for new trial may be passed on. The case will be remanded, however, only if showing is made to the appellate court that the lower court would be justified in granting the new trial. Cf. Home v. United States, 4 Cir., 51 F.2d 66, 67. No such showing has been made here. The newly discovered evidence is a statement of the prisoner to the effect that he was present in court on the day when the bond was forfeited and left town because advised by counsel that his case would not be called until the following January. Passing by the flimsy character of this testimony and the improbability that such a statement would be accepted in view of the other testimony in the case, we think that no such showing of due diligence to obtain the testimony has been made as would warrant any court in granting a new trial. While it is stated that an unsuccessful effort was made to interview the prisoner prior to the hearing in October 1938, no effort is shown to have been made following that hearing until after the entry of the order of July 13, 1939; and no showing is made of any effort, even to this date, to interview the attorney who represented the prisoner and is said to have given him the false information which caused him to absent himself from court. On the third question, there can be no question as to the correctness of the court’s action. In the absence of a showing that the default of the prisoner was not wilful, the court was without power to remit the forfeiture. United States v. Nordenholz, 4 Cir., 95 F.2d 756; United States v. Robinson, 4 Cir., 158 F. 410; United States v. Kelleher, 2 Cir., 57 F.2d 684, 84 A.L.R. 14. We see nothing in United States v. Mack, 295 U.S. 480, 55 S.Ct. 813, 79 L.Ed. 1559, to indicate that the prior decisions of the Circuit Courts of Appeals on this point are disapproved. Until the Supreme Court indicates that our decisions in the Robinson and Nordenholz cases are wrong, we feel that we must follow them. 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_weightev	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". GREAT AMERICAN INDEMNITY COMPANY and Townsend Transportation Company, Plaintiffs-Appellants, v. Raymond F. BELAIR, Deputy Commissioner, First Compensation District, under the Longshoremen’s and Harbor Workers’ Compensation Act, Defendant-Appellee. No. 216, Docket 24884. United Slates Court of Appeals Second Circuit. Argued March 10,1958. Decided April 7, 1958. Bradley B. Bates, Hartford, Conn. (William E. Glynn, Charles W. Page, and Day, Berry & Howard, Hartford, Conn., on the brief), for plaintiffs-appellants. Herbert E. Morris, Atty., Dept. of Justice, Washington, D. C. (George Cochran Doub, Asst. Atty. Gen., Samuel D. Slade, Atty., Dept. of Justice, Washington, D. C., and Simon S. Cohen, U. S. Atty., D. Conn., Hartford, Conn., on the brief), for defendant-appellee. Before CLARK, Chief Judge, HINCKS, Circuit Judge, and BRENNAN, District Judge. PER CURIAM. On this award of compensation under the Longshoremen’s and Harbor Workers’ Compensation Act to the widow of John Thomas Horn, a deceased longshoreman, the only issue is whether there was substantial evidence to support the deputy commissioner’s finding that Mrs. Horn at his death was a surviving wife living apart from her husband by reason of his desertion of her within the meaning of 33 U.S.C. § 902(16). The evidence (mainly from Mrs. Horn) showed that some three years before his death Horn left the family domicile in South Carolina because of legal difficulties arising from his purloining and selling a car; that he contributed little to her support and did not tell her where he was; that she saw him only for two brief visits home, the latter of which was over eight months prior to his death; that during the last eight months she had no word from him or knowledge of his address; and that at his death he was employed on a barge at Noank, Connecticut. In his memorandum of decision Judge Smith carefully analyzed the evidence, and ruled that even though a legal desertion, as defined in the Connecticut or common law of family relations and divorce, may not have been shown, yet the evidence supported the federal requirement and the award as made. We agree and affirm on the decision below. D.C.Conn., 160 F.Supp. 784 Affirmed. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_genapel1	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 first listed appellant. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GOTHAM INDUSTRIES, INC., and Crawford Plastics Corp., Respondents. No. 7160. United States Court of Appeals First Circuit. Jan. 14, 1969. Warren M. Davison, Washington, D. C., attorney, with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Corinna Lothar Metcalf, Washington, D. C., attorney, were on brief, for petitioner. Jerome Medalie, Boston, Mass., with whom David I. Riemer, Julius Thannhauser and Cohn, Riemer & Pollack, Boston, Mass., were on brief, for respondents. Before ALDRICH, Chief Judge, STALEY, Senior Circuit Judge, and McENTEE, Circuit Judge. Of the Third Circuit, sitting by designation. ALDRICH, Chief Judge. This is a petition for enforcement of an order of the National Labor Relations Board based upon certain conduct in connection with a promise of a wage increase in alleged violation of section 8(a) (1) of the Act. 29 U.S.C. § 158(a) (1). The facts are somewhat complex and, in their totality, unusual. At Fitchburg, Massachusetts, in a single building, respondents operate two different but related businesses, Gotham Industries, Inc. and Crawford Plastics Corp., which for present purposes constitute a single enterprise. In July 1963 a union began organizing Gotham’s employees and an election was held that November. The union received less than 20% of the votes. The regional director set the election aside because of misconduct by Gotham, and directed that a new election be held “at a date and time to be determined.” In January 1964 the union filed unfair labor practice charges, which were sustained by a trial examiner and by the Board. Gotham Indus., 1964, 150 N.L.R.B. 63. Gotham’s nonacceptance required review by this court. At the hearing before us Gotham pressed only the alleged overbreadth of the order. Since in this particular it had failed to protect its rights, in May 1966 we directed, without a reported opinion, that the order be enforced. Gotham apparently complied with the order, including the 60-day posting requirement, on or before August 30, 1966, as on that date it was sent the customary compliance letter. With this background we turn to the facts upon which the present findings of violation are based. In early August 1966 some of the older employees in Crawford’s molding room held a meeting of the day shift to demand a wage increase. At their invitation plant superintendent Stauble attended and agreed to discuss their demands with Robert Gottsegen, general manager of both companies. So informed, Gottsegen investigated, and before the end of the month told certain Crawford employees that a wage increase would be made in December. Formal notification of the increase was received by the Gotham and Crawford employees on September 14 and 22, respectively. On September 23 the regional director informed Gottsegen that a “rerun” election would be scheduled shortly. After he designated the date the union filed an unfair labor practice charge predicated essentially upon the promised wage increase, and the regional director promptly cancelled the designation. Thereafter, on October 17, in response to a request by employee Arsenault for a 20 cent raise, Stauble informed her that he could not comply because “the union has stepped in and taken away the 10 cent raise.” On October 27, Gottsegen, in response to further inquiries about the fate of the promised raise, distributed a notice to all employees which stated, inter alia, “As you know, the Retail Wholesale Department Store Union has filed with the National Labor Relations Board unfair labor practice charges alleging that this pay increase was an unfair labor practice. The Company thinks this charge is absurd and is doing everything in its power to prevent the union from denying our employees this very much needed and very much deserved increase. We are unable to understand why the union, who says they are interested in our employees’ welfare, is trying to interfere with our giving you higher pay. Our lawyers are now presenting our views regarding this pay increase to the National Labor Relations Board and we hope to have further information on this in about ten (10) days. You need this pay increase, you deserve this pay increase, and we intend to give it to you.” And, finally, on December 1, the wage increase was instituted. General Counsel’s complaint, filed January 10, added to the charge concerning the promise of a wage increase, charges that from and after September 22 respondents’ officers and agents, particularly Stauble, threatened the employees with retracting the promise of a wage increase if the employees continued to adhere to the union, and that on October 27 they posted a notice that the union was seeking to prevent the wage increase. The charge of threatening to take away the wage increase was contradicted by the notice itself, and was not established. Certain other charges made in the complaint were also not supported, and need not detain us. After hearing, the trial examiner concluded, as an ultimate finding, that in August respondents “knew that subsequent to the expiration of the 60-day posting period, required by the Board’s order * * * a rerun election would be scheduled * * * and that it was for reasons closely related to the impending employees’ election that * * * the announcement of a year-end pay increase was made.” He also found that the statements of Stauble and the October 27 notice regarding the union’s intentions were misrepresentations seriously prejudicial to the union and to a free election, and thus supported a conclusion that the initial promise of wage increases was improperly motivated. He recommended that a section 8(a) (1) order be made as to both of these matters. The Board affirmed. Gotham Indus., 1967, 167 N.L.R.B. No. 91. We deal first with the promise of a wage increase. Board counsel conclude, “The record in this case amply warrants the Board’s finding of unlawful motivation” for the wage increase, and thus satisfies the Supreme Court’s holding in NLRB v. Exchange Parts Co., 1964, 375 U.S. 405, 409, 84 S.Ct. 457, 460, 11 L.Ed.2d 435, that section 8(a) (1) “prohibits not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect.” We agree with the Board’s acceptance from the outset of the necessity of showing improper motivation for this 8(a) (1) violation. Having done so, and in light of the fact that the employer came forward with affirmative evidence of proper business justification, the ultimate burden was upon the Board to show that the promise was primarily motivated by an antiunion purpose. Jervis Corp., Bolivar Division v. NLRB, 6 Cir., 1967, 387 F.2d 107, 113 n. 4; NLRB v. Crosby Chem., Inc., 5 Cir., 1960, 274 F.2d 72, 74 n. 5; see also NLRB v. Billen Shoe Co., 1 Cir., 1968, 397 F.2d 801, 803. Passing the exceptional employer who may raise wages out of fraternal generosity, we suppose that most nonunion employers give raises for one or both of two reasons: to keep employees, old and new, in the plant, and to keep unions out. As to the latter it cannot be that every time it can be shown that an employer was seeking to stay one step ahead of unionization he was guilty of an unfair labor practice; the situation must have sufficiently crystallized so that some specific orientation exists. It would be a sorry consequence if the Labor Relations Act were to be construed as causing every nonunionized employer to think twice before initiating a wage increase lest some union should appear and claim that it had been frustrated. Cf. Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv.L.Rev. 38, 114 (1964). At a minimum it must be that to establish improper motivation requires a showing that an employer knows or has knowledge of facts reasonably indicating that a union is actively seeking to organize, or else that an election is, to use the Board’s word, impending. See Norfolk Livestock Sales Co., 1966, 158 N.L.R.B. 1595; Sigo Corp., 1964, 146 N.L.R.B. 1484, 1486; Imco Container Co. v. NLRB etc., 4 Cir., 1965, 346 F.2d 178, 180. Cf. NLRB v. Radcliffe, 9 Cir., 1954, 211 F.2d 309, 315, cert. denied Homedale Tractor & Equipment Co. v. NLRB, 343 U.S. 833, 75 S.Ct. 56, 99 L.Ed. 657. We are concerned here only with the latter alternative as there was no suggestion of any organizational activities, let alone activity that might have come to respondents’ attention. The examiner treated the issue of respondents’ knowledge one way; the Board, in its argument before us, in another. We consider first the examiner’s approach. He concluded that respondents “well knew that another representation election was in the offing.” There was no direct evidence, however, of such knowledge, and the conclusion was exclusively an inference. Indeed, all the affirmative evidence was to the contrary. The testimony was that, prior to September 23, no one had informed any representative of the respondents that an election was still possible. Respondents’ express denials of knowledge were unshaken on cross-examination. In addition, there was evidence that respondents had been informed by their counsel in May 1966, after our decision, that the likelihood of reappearance of the union, in' light' of its substantial defeat and the lengthy period of subsequent inactivity, was remote. Even more negative than inactivity, we would think that if in August the employees were interested in a union they would have exerted their efforts in that direction rather than in endeavoring to persuade the respondents on their own. The trial examiner gave certain facts as supporting his inference of knowledge that an election was impending. The first was that the order of election was still outstanding. This, of course, was true. Whether it meant that the union was still interested after what the examiner termed a “somewhat unique” delay, and interested at that particular moment, is another matter. The second was that the delay had been due to respondents’ fault. We agree as to the fault but, again, the relevancy of that to a presently active union interest seems less than inescapable. Finally, the trial examiner disbelieved respondents’ witnesses, saying that their denial that they were expecting an election “strains credulity.” Whether this disbelief was regarded by him as affirmative proof to the contrary we cannot be certain, but, if so, it was a violation of a fundamental principle. Janigan v. Taylor, 1 Cir., 1965, 344 F.2d 781, cert. denied 382 U.S. 879, 86 S.Ct. 163,15 L.Ed.2d 120. In any event, we find the examiner’s statement of reasons unimpressive, standing alone, and on the record as a whole even more so. Whether because Board counsel, too, were doubtful, or merely wanted another string to their bow, they have suggested other grounds, specifically, the Board’s “well known” practice not to hold rerun elections until the termination of the posting period even though this may effectuate a delay until a court of appeals order. Asked for a reference to this practice, counsel cite the Board’s Field Manual, and then concede that this manual was not available to the public until after the events in question. Next, they cite the practice of “blocking charges,” by which an election “may,” the word is the Board’s, be postponed. Surprenant Mfg. Co. v. Alpert, 1 Cir., 1963, 318 F.2d 396. No case has been cited for a blocking charge lasting two and a half years, and no impelling logic that, if so, the election will then be sought by the union. Finally, counsel supplement the lack of proof that such should have been anticipated by saying that if respondents had inquired of the regional director as to a coming election they would have had the answer. We must make the all too frequent response that if counsel want to establish something they should do so at the hearing, and the examiner should find it. But, more particularly, we must criticize a claim based on what, allegedly, would have been learned (in August) from the regional director. If the issue had been respondents’ negligence, the examiner, not counsel, might possibly have found it to be negligent to rely on their counsel without asking the regional director. However, the issue in wrongful motivation cases is “what the employer believed and not whether that belief was reasonable.” Raytheon Co. v. NLRB, 1 Cir., 1964, 326 F.2d 471, 475. Counsel’s assertion does not go beyond the latter. While we are far from persuaded of the validity of the examiner’s finding of respondents’ knowledge that an election was impending, we need not rest our decision on that. Assuming a proper finding of knowledge, which is a necessary ingredient, the Board was still faced with the burden of meeting respondents’ showing of a proper business purpose. See n. 5, supra. As to this the examiner, while admitting that “it is not for the Trial Examiner to sit in judgment on Respondents’ business acumen,” concluded that “no adequate business reason was advanced for the departure from the Respondents’ past practice of announcing general wage and fringe benefits at the end of the calendar year. * * * ” (Emphasis supplied.) It is true that respondents’ practice was to give wage increases and other benefits near the end of the year and to announce them about a month in advance. Respondents asserted, however, three business justifications for the earlier announcement: the employee meeting demanding a wage raise, an increasing tightening of the local labor market, and the impending passage of a higher minimum wage rate. The examiner found the first factually supported but unpersuasive as a motivating factor, the second factually unsupported, and the third factually supported as well as a motivating factor, but a very minimal one. We may accept the last conclusion, but not the others. We find both the first and second reasons to be factually proven, and highly persuasive. While agreeing that the trial examiner is the primary judge of credibility and recognizing that he may have some expertise by his experience in determining whether an employer was genuinely motivated by proffered reasons, we cannot accept his denigration of the significance of the August meeting of the employees. This meeting was, concededly, self-generated, and not an event trumped up by the respondents. Present were at least twenty-five employees (the minimum estimate was 75% of the shift, some employee witnesses put it higher) of the day shift of the major department. On the undisputed testimony, a number of employees threatened to leave if an increase was not granted. Two decided to quit without even waiting. Yet the trial examiner concluded: “In the light of the fact that at the time Respondents’ joint payroll was substantially in excess of 200 employees, it seems most unlikely that the meeting in question, involving as it did only part of one shift in one department, would cause the Respondents to accelerate the announcement of an across-the-board wage increase for over 200 employees that would not become effective until the following December.” Passing the fact that the first night shift was already working and could not attend without permission, we do not follow the logic that one shift would want better wages while others would not. And surely there should be some documentation for the implied assumption that the day shift, only, could be raised without producing discontent in the others. Such evidence as there was on this subject was directly to the contrary. It is very easy for the examiner to say there was no “adequate” reason for the early announcement of the wage increase. Even with his ex post facto view of the situation, however, he makes no suggestion of what respondents were to do short of offering such satisfaction to dissident employees. If an examiner is going to exercise business judgment, he should at least offer some business alternative. We might agree that if counsel for the General Counsel could have shown the employees’ demand to have been unreasonable, respondents’ motive in acquiescing might have been subject to scrutiny. No such proof was offered. On the undisputed testimony, respondents in the summer of 1966 were having serious difficulties maintaining a sufficient manpower level. Apparently in their business there was always considerable employee turnover. Respondents testified, however, that this had been causing increasing difficulties. The examiner disposed of this testimony in a single sentence. “Whereas her [respondents’ office manager’s] statistics on turnover indicated a high rate during 1966, on cross-examination she testified as to other data which established that turnover at the Fitchburg plant had been a continuing problem for several years and that, in fact, the rate had been even higher at Crawford in 1965 and at Gotham in 1964, than it was in 1966.” Apart from the misleading implication of the totally irrelevant last clause, it would have been more to the point to explain away respondents’ testimony that in the summer of 1966 absenteeism and turnover were higher, while at the same time business needs were increasing. Respondents testified that in 1964 and 1965 replacements were readily available, but in 1966 machine “downtime” due to unfilled positions cost them significant orders. To corroborate management’s belief in the tightening labor market in Fitchburg, respondents introduced proof of their increasing “Help Wanted” advertising costs — $9 in 1964, $96 in 1965, and $999 in 1966. If such testimony was untrue it should have been readily refutable. To dismiss it all because respondents always had turnover and absenteeism problems, and adding a reference to purely intramural fluctuations between Gotham and Crawford, is indicative of how difficult it was for the examiner to find tangible evidence favorable to the union. Two other answers are suggested. The first is respondents’ 1963 misconduct. Possible recidivism, however an unfortunate fact of life, is not, in our opinion, a substitute for proof that a particular act was primarily motivated by a purpose to interfere with employees’ rights to organize. Neither is the examiner’s reference to respondents’ October conduct. If what respondents did then was an unfair labor practice, a matter we will come to, that would be sufficient of itself. If it was not, all it did was show that respondents in October were anti-union. We agree that this warrants the belief that they were so oriented in August and September, but, again, a general anti-union animus, however important it may be in resolving doubtful questions, cf. NLRB v. Simplex Time Recorder Co., 1 Cir., 1968, 401 F.2d 547, 548, n. 1, is not of itself sufficient to overcome a demonstrated substantial business purpose for a particular act. We have said this before. See cases collected in NLRB v. Billen Shoe Co., supra. If the law is that every employer who shows a business need is nevertheless subject to the ipse dixit of some trial examiner simply because it does not like unions, we are reviewing roulette, not legitimate regulation. The finding of an unfair labor practice with respect to the promise of a wage increase cannot stand. With regard to the October 27 notice to the effect that the union was seeking to take away the wage increase, the examiner stated, without discussion or explanation, that this was an unfair labor practice because it “was a misrepresentation which seriously prejudiced the Union and interfered with the rights of the employees to have a free election.” Before reaching the fundaments of this ruling we pause to ask whether there was a misrepresentation at all. As the examiner pointed out, the union’s charge did not in terms request that the wage promise be rescinded. However, respondents sought to offer into evidence a “Notice to All Employees” form which the Board, prior to the bringing of the formal complaint, proposed as part of a settlement. This concluded, “WE WILL, should the above-named Union so request, rescind the wage increase granted employees effective December 2, 1966.” The examiner excluded this offer. Board counsel argue that he did so correctly, because settlement negotiations are wholly privileged. This overlooks the well-recognized exception regarding admissions of fact as distinguished from hypothetical or provisional concessions conditioned upon the settlement’s completion. See generally, Wigmore, Evidence, § 1061; Factor v. Commissioner, 9 Cir., 1960, 281 F.2d 100, 125, cert. denied 364 U.S. 933, 81 S.Ct. 380, 5 L.Ed.2d 365. If the proposed notice was what the Board wanted, presumably it was a statement of the union’s position, and admissible as such when the Board later says its position was different. Its exclusion was prejudicial error. The question remains whether we should order a new hearing to determine the truth of respondents’ view that the union was seeking, by its unfair labor practice charge, to revoke the wage increase obtained by the efforts of another group of employees until it could be the negotiator, or whether the Board’s position is untenable in any event. We believe the latter. The Board’s decision was reached without any apparent consideration of three important matters. First, with respect to its finding that the notice interfered with a free election, we ask what has become of the Board’s familiar rule that prejudice depends upon lack of opportunity to reply in time. Ralston Purina Co., 1964, 147 N.L.R.B. 506; Pepperell Mfg. Co. v. NLRB, 5 Cir., 1968, 403 F.2d 520. On October 27 no election was even scheduled. Next we ask what has become of the companion rule that prejudice depends upon the ability of the replying party effectively to rebut the substance of the misrepresentation. See Celanese Corp., 1958, 121 N.L.R.B. 303, 307, enforcement denied 7 Cir., 279 F.2d 204, vacated and remanded per curiam 365 U.S. 297, 81 S.Ct. 689, 5 L.Ed.2d 688, enforcement denied 291 F.2d 224, cert. denied 368 U.S. 925, 82 S.Ct. 360, 7 L.Ed.2d 189; United Steelworkers v. NLRB, D.C.Cir., 1968, 393 F.2d 661, 664; NLRB v. Trancoa Chem. Corp., 1 Cir., 1962, 303 F.2d 456, 3 A.L.R.2d 879. See, in general, Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv.L.Rev. 38, 82-91 (1964). We find it difficult to imagine a misrepresentation, if it was such, that could be more quickly, or more effectively, answered. All the union needed to d° was publish a statement that respondents had misdescribed its position and that it was not seeking to nullify the wage increase. It has been well said in such event, “[t]he remedy is for the union to answer them, not a cease and desist order.” NLRB v. TRW-Semiconductors, Inc., 9 Cir., 1967, 385 F.2d 753, 760. So far as we can discover, the Board has never held that a statement which was immediately and fully correctable, if it was untrue, was a significant interference with an election even when one was about to be conducted. We are extraordinarily surprised that it should do so here, entirely without discussion, when the election had already been indefinitely postponed. There is an even more serious difficulty. Section 8(c) of the Act, 29 U.S.C. § 158(c) provides as follows. “(c) The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.” The Board took no note of this statute. Yet it must be that the October notice was neither a promise ñor a threat. A threat must relate to something over which the speaker has at least partial control. NLRB v. Teamsters etc., Local 901, 1 Cir., 1963, 314 F.2d 792, 794. The October 27 notice was merely an assertion that the union had possible power to accomplish something unpleasant; respondents threatened nothing and promised nothing except, and unconditionally, to endeavor to do what the employees wanted. Cf. Peter J. Schweitzer, Inc. v. NLRB, 1944, 79 U.S.App.D.C. 178, 144 F.2d 520, where the promise was not unconditional. Nor, likewise, could the Board contend this was a threat to do anything to coerce employees from exercising their right to file unfair labor practice charges or to unionize. Cf. NLRB v. Agawam Food Mart, Inc., 1 Cir., 1967, 386 F.2d 192. In sum, the Board’s decision in this matter is as unsupportable as it is unprecedented. A decree will be entered setting aside the order of the Board. . Retail, Wholesale and Department Store Union AFL-CIO. . There were four separate complaints in the charge, but only the first is of any note here. It stated : “1. That the employer promised the workers benefits in a leaflet distributed to the workers within the past month. Such benefits include the promise of a wage increase of 10 cents per hour for the week starting December 1st, 1966. These promises were made by the employer to interfere with union organizational activity and to interfere with the employees rights under section 7 of the Act.” . With respect to what is presently in issue, the affirmance was without opinion. We in no way criticize this practice, but for convenience we will from time to time hereafter speak only in terms of the trial examiner. . See Perl, Granting of Benefits During a Representation Election: Validity of NLRB General Rule, 18 Labor L.J. 643, 647 (1967) ; cf. Christensen and Svanoe, Motive and Intent in the Commission of Unfair Labor Practices: The Supreme Court and the Fietive Formality, 77 Yale L.J. 1269, 1306 (1968). . This burden of proof is consistent with the latest Supreme Court rulings as to the proof of improper motivation in section 8(a) (3) violations in NLRB v. Great Dane Trailers, Inc., 1967, 388 U.S. 26, 33-34, 87 S.Ct. 1792, 18 L.Ed.2d 1027. Although improper motivation is not a required element in all 8(a) (1) violations as it usually is in 8(a) (3) violations, the Court’s rulings are applicable to the situation in this case where the Board has in effect made motivation an essential element to this 8(a) (1) violation. It seems appropriate that the grant of benefits should come within the second category established in the Great Dane case — conduct causing a comparatively slight harm to employee rights — and not the first category, of inherently destructive conduct. Thus, although the employer would have the .burden of coming forward with a substantial and legitimate business justification once the Board had shown a harmful effect, the burden would remain on the Board and “an affirmative showing of improper motivation must be made.” 388 U.S. at 34, 87 S.Ct. at 1798. This means an affirmative showing that it was not the business purpose that caused the employer’s action. NLRB v. Billen Shoe Co., supra. . Insofar as criticism was implied by the use of this phrase, we note that an across-the-board increase had been given to another department earlier in the year. We note, also, that attracting new employees, which was one of respondents’ problems, see infra, is not likely to be accomplished by a wage increase simply for senior employees. . The statement concerning the prior turnover rates of the two entities was irrelevant to the question whether other conditions existing in the summer of 1966 aggravated respondents’ admittedly proven chronic turnover problems. It was even more than irrelevant to use separate statistics for Gotham and Crawford, which were a single business entity in everything but corporate structure and treated as such by the Board, when the combined statistics for the two clearly showed a constantly increasing turnover. . Like the examiner, we do not deal separately with Stauble’s October 17 statement to employee Arsenault. If this could be thought of as different in import from the October 27 notice not only was it an isolated incident, but any difference was shortly corrected by management’s notice. Cf. NLRB v. Garland Corp., 1 Cir., 1968, 396 F.2d 707. . As a simple example, if a party says the defendant broke his arm and he would settle for so many dollars, the dollar amount would be inadmissible, but the assertion he broke his arm would be admissible if he later claimed it was his leg. Cf. Nau v. Commissioner, 6 Cir., 1958, 261 F.2d 362, 364-365. . Because of the lack of clarity of the trial examiner’s opinion, we refuse to take this opportunity to pass upon the Board’s apparent attempt to undercut the established dichotomous treatment of pre-election misrepresentations, depending upon the remedy. See Christensen, Free Speech, Propaganda and the National Labor Relations Act, 38 N.Y.U.L.Rev. 243, 275-78 (1963), an article we are pleased to cite although it greatly overstates what we held in NLRB v. Trancoa Chem. Corp., supra. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_treat	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. Robert H. NORTHINGTON, Trustee and the First National Bank of Midland, Texas, Plaintiffs-Appellants, v. The UNITED STATES of America et al., Defendants-Appellees. No. 72-2702. United States Court of Appeals, Fifth Circuit. March 26, 1973. Reagan H. Legg, Midland, Tex., for Northington. Wm. Monroe Kerr, Midland, Tex., for First Nat’l Bank. Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Gary R. Allen, Park T. Zimmerman, Gray Allen, Attys., Tax Div., Dept, of Justice, Washington, D. C., William S. Sessions, U. S. Atty., San Antonio, Tex., for defendants-appellees. Before BELL and THORNBERRY, Circuit Judges, and GROOMS, District Judge. BELL, Circuit Judge: Section 6324(a)(1) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 6324(a)(1), imposes a pre-assessment tax lien on the gross estate of any decedent whose property is subject to estate tax. The lien attaches at death. This appeal presents questions concerning the circumstances in which property, otherwise subject to the lien of § 6324(a)(1), may be divested of the lien prior to the assessment and payment of estate tax. The decedent died testate on October 31, 1964. His will was admitted to probate in Midland County, Texas, and letters testamentary were issued to his son, who was named in the will as the independent executor of the estate, pursuant to § 145 of the Texas Probate Code. 17A Vernon’s Texas Civil Stat.Ann. § 145. Under the Texas system of independent administration an executor may proceed with the administration of an estate, without seeking court approval of specific dispositions, once the will has been probated and the inventory, appraisement, and list of claims of the estate have been approved by the court. 17A Vernon’s Texas Civil Stat.Ann. § 145. In the present case the executor proceeded in this fashion. On August 24, 1965, he sold, to himself, a building which was formerly owned by his father and now was in his father’s gross estate. The sale price was $50,000.00. To finance the purchase, he borrowed $50,000.00 from the First Savings and Loan Association of Midland. This loan was secured by his personal note and by a deed of trust. As executor, he received a net consideration from the closing agent of $49,100.92 and this was deposited in the bank account of the decedent’s estate on August 26,1965. The executor filed a federal estate tax return on January 24, 1966. The return reflected a tax liability of $392,347.81. The executor elected to discharge this liability in ten annual installments pursuant to § 6166 of the Code. After receiving partial payment, the Service assessed a small deficiency on May 19, 1967. Additional partial payments followed. At the time this action was brought, $205,445.48 remained unpaid, and payment was due. On July 16, 1971, the son conveyed the property which he had purchased from the estate to Robert H. Northington, trustee. The consideration given by Northington was, in part, the assumption by him of the note and deed of trust which the son had given to the First Savings and Loan Association. The note and deed of trust were then renewed and purchased by the First National Bank of Midland. At that point the Service took steps to insure the payment of the unpaid tax. On September 21, 1971, a revenue officer served Northington with notice of a levy on the property which Northington, as stated, had purchased from the son. Northington and the First National Bank of Midland then brought this action to enjoin the levy. Because the property did not belong to the estate at the time the estate tax return was filed, the government could not rely with assurance on the general tax lien that attached against property in the estate at the time the executor failed to pay the tax, after it was assessed and due. See 26 U.S.C.A. § 6321. Thus the suit to enjoin the levy presented the question: Was the contested property subject to the special estate tax lien, which under § 6324(a)(1) attached to all property in the gross estate at the time of the decedent's death? The district court held that the special estate tax lien did attach to the property levied upon here; that the property has not been divested of the lien; and that the lien continues in force. We agree. The appellants contend that the lien has been divested by operation of law. They rely on the express language of § 6324(a)(1): Unless the estate tax imposed by chapter 11 is sooner paid in full, or becomes unenforceable by reason of lapse of time, it shall be a lien upon the gross estate of the decedent for 10 years from the date of death, except that such part of the gross estate as is used for the payment of charges against the estate and expenses of its administration, allowed by any court having jurisdiction thereof, shall be divested of such lien. (Emphasis added) The appellants argue that their property was divested of the lien because it was used by the executor for the payment of “charges against the estate”, within the meaning of § 6324(a) (1). We must reject this argument. The district court held that the property had not been divested of the lien because it found that the proceeds of the sale of the property were not used to discharge any obligation of the estate. We cannot say, on our reading of the record, that this finding was clearly erroneous. The proceeds of the sale were paid to an account maintained for the benefit of the estate. Two days later the executor drew a check upon that account in the amount of $50,000.00. This amount was equivalent to the amount of the proceeds of the sale. The check was paid to the Jones Exploration Company, an individual proprietorship operated by the executor, but formerly a partnership operated by decedent and his son, the executor. The estate was under no net obligation to the Jones Exploration Company, and the payment to the Company was not itself in satisfaction of an obligation of the estate. The fact was that the estate was indebted to Jones Exploration Company but, on the other hand, Jones Exploration owed a larger amount to the estate. But the appellants contend, nevertheless, that the company was simply a conduit through which other debts and obligations of the estate were ultimately discharged. They contend that all of the $50,000.00 was in fact used by the company for that purpose. This may well have been true but the record does not so reflect. The showing they made in this regard in the district court fell short of the careful tracing which is necessary to persuade a court that the proceeds of a sale of estate property were actually used to satisfy the obligations of an estate. Cf. United States v. Security-First National Bank, 30 F.Supp. 113 (S.D.Cal., 1939), appeal dismissed, 113 F.2d 491 (9th Cir., 1940). The sole justification for divestment of a tax lien under § -6324(a)(1) is the purpose for which the divested property is used; namely, the payment of the charges against the estate and the expenses of administration. The appellants have not shown that this justification is present in this case. Affirmed. . Because we decide the case on this ground, we find it unnecessary to determine (1) whether the obligations which were allegedly satisfied by the proceeds of the sale were in themselves “charges against the estate” within the meaning of § 6324 (a)(1), or (2) whether the obligations which were allegedly satisfied by the proceeds of the sale were, in the context of the Texas system of independent administration, “allowed by any court having jurisdiction thereof” within the meaning of § 6324(a)(1). 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_numresp	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of 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. SCANDINAVIAN AIRLINES SYSTEM, Plaintiff-Appellant, v. UNITED AIRCRAFT CORPORATION, Defendant-Appellee. No. 76-1765. United States Court of Appeals, Ninth Circuit. July 24, 1979. George N. Tompkins, Jr., Condon & For-syth, New York City (argued), Adams Du-que & Hazeltine, Los Angeles, Cal., for plaintiff-appellant. Jacques Soiret, Los Angeles, Cal. (argued), Kirtland & Packard, Los Angeles, Cal., for defendant-appellee. Keith Gerrard, John D. Dillow, Richard C. Coyle of Perkins, Coie, Stone, Olsen & Williams, amici curiae, for The Boeing Co., Lockheed Aircraft Corp., McDonnell Douglas Corp. Before ANDERSON and HUG, Circuit Judges, and SOLOMON , Senior District Judge. The Honorable Gus J. Solomon, Senior United States District Judge for the District of Oregon, sitting by designation. HUG, Circuit Judge: The central issue of this action is whether strict liability under California law is applicable when a large airline sues a manufacturer of an aircraft engine for a defect in the product that caused property damage to the engine itself and to the aircraft on which it was installed. Scandinavian Airlines System brought this diversity action to recover for property damage resulting from the failure of two separate jet aircraft engines on two different occasions. The failure of these jet engines on each occasion caused damage to the engines' themselves and to the two DC-9 aircraft on which they were installed. Both engines were manufactured by United Aircraft Corporation. One engine, No. 181, was purchased by SAS directly from United. The other engine, No. 168, was installed on a DC-9 which was purchased from McDonnell Douglas Corporation by SAS. This action was brought against both McDonnell Douglas and United. A summary judgment was entered for McDonnell Douglas on the claims against it which was initially appealed by SAS, but subsequently dismissed on motion of SAS. The complaint stated claims against United on theories of negligence, breach of express and implied warranties and on strict liability. On United’s motion for summary judgment on all claims, the trial court granted a partial summary judgment on the claims for relief based upon warranty and strict liability, but denied the motion as to the claim for relief based upon negligence. SAS has appealed this partial summary judgment pursuant to 28 U.S.C. § 1292(b), permission having been granted by this court. SAS does not contest the judgment on the warranty theory, but confines the argument on appeal to the judgment on the strict liability theory. FACTS SAS is a large, international air carrier which owns and operates a fleet of sophisticated jet aircraft. A part of that fleet consists of McDonnell Douglas DC-9 jets. The jet engines used to power SAS’s DC-9’s are manufactured by United. Extensive negotiations were conducted between SAS and McDonnell Douglas with respect to the purchase of the DC-9’s. The specifications that were negotiated included those relating to the thrust output of the United engines. One engine, the thrust output of which was increased as a result of the negotiations between SAS and McDonnell Douglas, was a United JT8D-11, serial number 676168 (No. 168), that was sold to McDonnell Douglas for installation on a DC-9 which was subsequently sold to SAS. The engine was later removed by SAS from the aircraft on which it was originally installed, ultimately being reinstalled on another SAS DC-9. On September 8, 1971, that DC-9 was in the process of takeoff at Rheim/Main Airport near Frankfurt, Germany, when, during its initial takeoff roll, engine No. 168 experienced a failure of a first-stage fan blade, resulting in damage to the engine itself and to the aircraft fuselage. There were no injuries to any persons. SAS purchased another JT8D-11 engine, serial number 676181 (No. 181), with the same specifications, directly from United, and routinely installed it on another DC-9. On June 30, 1972, at Arlanda Airport near Arlanda, Sweden, that engine also suffered a first-stage fan blade failure during a takeoff run, resulting in damage to the engine itself and to the aircraft fuselage. Again, there were no personal injuries. The contracts between United and SAS and United and McDonnell Douglas each provided for certain limited warranties and each contained an exculpatory clause as follows: The foregoing warranties are exclusive and are given and accepted in lieu of any and all other warranties, express or implied, including without limitation the implied warranty of merchantibility. The remedies of buyer for any breach of warranty shall be limited to those provided herein to the exclusion of any and all other remedies including, without limitation, incidental or consequential damages. No agreement varying or extending the foregoing warranties, remedies or this limitation will be binding upon UAI [Seller] unless in writing, signed by a duly authorized officer of UAI [Seller]. The trial judge found that the exculpatory clause precluded United’s liability based on the breach of an express or implied warranty, but did not preclude the claim based upon negligence. The summary judgment in favor of United, which precluded the strict liability claim for relief, was not based, however, upon any of the exculpatory provisions of the contracts. Rather, the trial judge found that the policy reasons for invoking the strict liability doctrine did not apply in this case. DISCUSSION Initially, we note that this case was brought as a diversity action; and, as such, the trial judge was required to look to state law for the appropriate rule of decision. Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The applicable substantive law is that of California. Since there is no definitive adjudication by the California Supreme Court on a factually similar case, we seek to reach the resolution of the issue which that court would probably reach under the same facts. C. R. Fedrick, Inc. v. Borg-Warner Corp., 552 F.2d 852, 856 (9th Cir. 1977). When the California Supreme Court has not spoken, California Courts of Appeal decisions are data for determining how the highest California court would rule. West v. A. T. & T. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 85 L.Ed. 139 (1940). The analysis by the district judge of the law of the state in which he sits is entitled to great weight and his determination will be accepted on review, unless shown to be clearly wrong. C. R. Fedrick, Inc., 552 F.2d at 856. Since we are reviewing a Rule 56 summary judgment, we are mindful that the granting of “[s]ummary judgment . is proper only where there is no genuine issue of any material fact or where reviewing the evidence and the inferences which may be drawn therefrom in the light most favorable to the adverse party, the movant is clearly entitled to prevail as a matter of law”. Stansifer v. Chrysler Motors Corp., 487 F.2d 59, 63 (9th Cir. 1973); Radobenko v. Automated Equip. Corp., 520 F.2d 540, 543 (9th Cir. 1975). There is no question of fact involved in this summary judgment. We are concerned strictly with a question of law. In holding that SAS could not proceed against United on the theory of strict liability, the trial judge stated: We also hold that United Aircraft is not liable to SAS on a theory of strict liability in tort, not because of the exculpatory clause, but because of the lack of public policy for such a position. As mentioned above, public policy is designed to protect the small consumer and to allocate the risk of loss to the person most able to bear it, in that case, the manufacturer. Here, where there are two large companies contracting, it is only a question of who between two equals should be made to bear the risk of loss. We see no reason why the manufacturer should be made to bear the risk of loss without fault as between it and a large corporate buyer. It should be noted, again, that there has been no injury here. In determining whether the California Supreme Court would reach the same result, it is necessary “to examine the foundational reasons underlying the creation of strict products liability in California to ascertain whether the purposes of the doctrine would be defeated or diluted . .” by affirming the trial judge’s decision. Daly v. General Motors Corp., 20 Cal.3d 725, 736, 144 Cal.Rptr. 380, 386, 575 P.2d 1162, 1168 (1978). A reading of California Supreme Court decisions indicates that a number of policies, of varying importance, underlie the doctrine. The first California case to adopt strict tort liability was Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1963). There the court stated: The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves. Id. 59 Cal.2d 63-64, 27 Cal.Rptr. at 701, 377 P.2d at 901. The risk distribution principle was again relied upon in Seely v. White Motors Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (1965), where the court stated that the rationale behind the doctrine rests ... on the proposition that “[the] cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business”. Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 462, 150 P.2d 436 (concurring opinion). Id. 63 Cal.2d at 18-19, 45 Cal.Rptr. at 23, 403 P.2d at 151. In Price v. Shell Oil Co., 2 Cal.3d 245, 85 Cal.Rptr. 178, 466 P.2d 722 (1970), the court concluded that the risk distribution principle was the fundamental policy behind the doctrine, stating: Essentially, the paramount policy to be promoted by the rule is the protection of otherwise defenseless victims of manufacturing defects and the spreading throughout society of the cost of compensating them. Id. 2 Cal.3d at 251, 85 Cal.Rptr. at 181-182, 466 P.2d at 725-726. The trial judge’s decision does not conflict with the risk distribution rationale in California products liability law. SAS and United are financial equals. Further, both are business entities who sell a product or perform a service which is ultimately paid for by SAS’s customers. As a result, “[w]hether the loss is thrust initially upon the manufacturer (United) or consumer (SAS), it is ultimately passed on as a cost of doing business included in the price of the products of one or the other and thus spread over a broad commercial stream”. Kaiser Steel Corp. v. Westinghouse Elec. Corp., 55 Cal.App.3d 737, 748, 127 Cal.Rptr. 838, 845 (1976). Unlike the consumers in Greenman, Seely and Price, SAS can allocate its risk of loss equally as well as United. Therefore, the societal interest in loss shifting present in those cases is absent here. Although of less significance than the risk spreading rationale, several other policies have been identified as underlying the doctrine of strict products liability in California. The consumer’s difficulty in inspecting for defects has impliedly been stated as a reason for its application. Halliday v. Greene, 244 Cal.App.2d 482, 53 Cal.Rptr. 267 (1966). Another policy concerns the difficulty a consumer faces in trying to prove negligence. Cronin v. JBE Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153, 1162 (1972). In Daly, 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162, the court stated: We imposed strict liability against the manufacturers and in favor of the user or consumer in order to relieve injured consumers “from problems of proof inherent in pursuing negligence . . and warranty . remedies, . . .” (citations omitted) Id. 20 Cal.3d at 736, 144 Cal.Rptr. at 386, 575 P.2d at 1168. Finally, “[t]he rule of products liability is further rationalized as an inducement to manufacturers to design and produce a safe product . . . , and as a means to avoid the artificial conditions to recovery in warranty created by the rules of privity”. Kaiser Steel Corp., 55 Cal.App.3d at 747, 127 Cal.Rptr. at 844. Here, SAS had the expertise and personnel to inspect the engines for defects. SAS does not have the lack of technical knowledge and expertise which would burden members of the general public in proving negligence in designing or manufacturing the engines. SAS does not face problems of privity as an artificial barrier which the doctrine of strict liability seeks to avoid. Finally, the fact that United will still be liable to airline passengers for any injuries they receive as the result of defective United products will serve as a significant deterrent from manufacturing unsafe products. The trial judge’s decision finds strong support in Kaiser Steel Corp. v. Westinghouse Elec. Corp., 55 Cal.App.3d 737, 127 Cal.Rptr. 838. There the California Court of Appeal stated: . •. . [T]he doctrine of products liability does not apply as between parties who: (1) deal in a commercial setting; (2) from positions of relatively equal economic strength; (3) bargain the specifications of the product; and (4) negotiate concerning the risk of loss from defects in it. Southwest Forest Indus. v. Westinghouse Elec. Corp. (9th Cir. 1970), 422 F.2d 1013, cert. denied 400 U.S. 902, 91 S.Ct. 138, 27 L.Ed.2d 138. Id. at 748, 127 Cal.Rptr. at 845. Interpreting these four requirements as the court did in Kaiser leads us to the conclusion that SAS does not have a claim in strict tort liability against United. SAS, United and McDonnell Douglas dealt in a commercial setting from positions of relatively equal economic strength. The specifications of the engines were negotiated by the parties. Finally, McDonnell Douglas, United and SAS all negotiated the risk of loss for defects in the engines. We find, therefore, that the trial judge was correct in his interpretation of California law and that the doctrine of strict liability is not available to SAS in this case. Affirmed. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_r_bus	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 "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. In re TENNESSEE PUB. CO. TENNESSEE PUB. CO. v. AMERICAN NAT. BANK et al. CARPENTER v. TENNESSEE PUB. CO. Nos. 7266, 7267. Circuit Court of Appeals, Sixth Circuit. Feb. 13, 1936. ALLEN, Circuit Judge, dissenting in part. Lewis S. Pope and Albert Roberts, both of Nashville, Tenn. (Lewis S. Pope, White & Howard, and Roberts & Roberts, all of Nashville, Tenn., on the brief), for Tennessee Pub. Co. Cecil Sims, of Nashville, Tenn. (Bass, Berry & Sims, of Nashville, Tenn., on the brief), for American Nat. Bank and Paul M. Davis. H. G. Fowler, of Knoxville, Tenn. (J. A. Fowler and S. F. Fowler, both of Knoxville, Tenn., on the brief), for receiver C. O. Carpenter. Charles C. Trabue and Thomas H. Malone, both of Nashville, Tenn., for M. & O. Paper Co. Pitts, McConnico, Hatcher & Waller, of Nashville, Tenn., for Ingram and Bradford. W. E. Norvell, of Nashville, Tenn., for American Union Bank and others. Before MOORMAN, STMONS, and ALLEN, Circuit Judges. SIMONS, Circuit Judge. The main appeal is from a final order and decree dismissing the debtor’s petition and plan for corporate reorganization under the provisions of section 7713 of the Bankruptcy Act, as amended (11 U.S.C.A. § 207). The appeal was allowed by the District Judge, but the debtor later, conceiving the appeal to be governed by section 24b, as amended (11 U.S.C.A. § 47 (b), filed a petition with this court for leave. It appearing that the petition was timely, we treat the appeal as having been allowed, and an order to that effect may be entered. The cross-appeal is from a final order incorporated in the decree overruling a motion to dismiss the debtor’s petition on the ground that it was not filed in good faith as provided by the statute. The cross-appeal was likewise allowed by the District Judge, but no petition, timely or otherwise, for its allowance here was presented. A motion to dismiss the cross-appeal is before us. Regarding the main appeal as properly allowed under section 24b, Vitagraph, Inc., v. St. Louis Properties Corp., 77 F.(2d) 590 (C.C.A.8); Credit Alliance Corp. v. Atlantic, Pacific & Gulf Refining Co., 77 F.(2d) 595 (C.C.A.8); Campbell v. Alleghany Corp., 75 F.(2d) 947, 955 (C.C.A.4); Humber v. Bankers’ Trust Co., 70 F.(2d) 265 (C.C.A.6), and regarding it also, as will later appear, as raising, the question generally of the validity of the decree, whether based upon valid or invalid grounds, we give no consideration to the cross-appeal, and it may be dismissed. The Tennessee Publishing Company, designated as the debtor, according to the statute, had for many years published both a morning and an evening newspaper in Nashville, Tenn. On March 3, 1933, by general creditors’ bill, its affairs were placed in charge of a receiver appointed by the District Court. The proceedings were filed by appellee Carpenter, receiver ofoa closed bank, which held $28,-000 of the debtor’s bonds, which were part of an issue of $750,000 dated November 1, 1928. The rate of interest borne by the bonds and their maturity dates nowhere appear, but they were secured by a deed of trust executed by the debt- or, which provided that upon default in the payment of interest or principal the security might be foreclosed and sold at public auction, either through proceedings in equity or by advertisement. The equity bill averred operating losses sustained by the debtor during the years 1929 to 1932. Losses continued during the receivership, but at a reduced rate. The usual reference to a master for consideration of claims followed, with the result that claims were filed in the total amount - of approximately $1,500,000. A final hearing was set for June 6, 1935, and it was then the reasonable expectation of all parties m interest that a sale of assets would be ordered and the receivership terminated. On June 5, 1935, Carfnack, son of a former editor of the debtor’s papers, acquired from the Leas, then its owners, all of the debtor’s common stock. He immediately had himself elected president, and instituted the debtor proceedings here involved under section 77B. His first reorganization plan being objected to by the various classes of creditors, a second and a third plan of reorganization with modifications thereof followed. All were vigorously opposed by each interest concerned save for approval by a relatively small number of unsecured creditors. Not any of the bondholders gave assent to the plans proposed, and about 50 per cent, of the unsecured creditors have affirmatively opposed all reorganization plans. Section 77B provides for a scheme of corporate reorganization similar in many of its aspects to that provided for the reorganization of railroads engaged in interstate commerce by section 77 (11 U.S.C.A. § .205), discussed and held constitutionally valid in general scope and application in Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & Pacific Railway Co., 294 U.S. 648, 55 S.Ct. 595, 79 L.Ed. 1110. It provides that .upon the filing of a petition for reorganization the court shall enter an order approving its filing if satisfied that the petition complies with the section and has been filed in good faith. The plan of reorganization shall- include provisions modifying or altering the rights of creditors generally, or any class of them, either through the issuance of new securities or otherwise. Subsection (e), of section 77B, 11 U.S.C.A. § 207 (c), in so far as pertinent, is as follows: “A plan of reorganization shall not be confirmed until it has been accepted in writing, * * * and such acceptance shall have been filed in the proceeding by or on behalf of creditors holding two thirds in amount of the claims of each class whose claims have been allowed and would be affected by the plan: * * * Provided, however, That such acceptance shall not be requisite to the confirmation of the plan by any creditor or class of creditors (a) whose claims are not affected by the plan, or (b) if the plan makes provision for the payment of their claims in cash in full, or (c) if provision is made in the plan for the protection of the interests, claims, or liens of such creditor or class of creditors in the manner provided, in subdivision (b), clause (5), of this section.” In so far as the reorganization permitted by section 77B requires approval by two-thirds of the creditors of each class and in so far as such approval is not requisite to confirmation from creditors whose claims are not affected or for the payment of which cash is provided, 77B follows substantially the provisions of section 77. It departs from that section in clause (c) of the proviso, which makes approval of creditors unnecessary “if provision is made in the plan for the protection of the interests, claims, or liens of such creditor or class of creditors in the manner provided in subdivision (b), clause (5), of this section.” 11 U.S.C.A. § 207 (e) (1) (c). It therefore becomes necessary to consider subsection (b), clause (5), 11 U.S.C.A. § 207 (b) (5), which provides that the plan of reorganization “shall provide in respect of each class of creditors of which less than two thirds in amount shall accept such plan (unless the claims of such class of creditors will not be affected by the plan, or the plan makes provision for the payment of their claims in cash in full), provide adequate protection for the realization by them of the value of their interests, claims, or liens, if the property affected by such interests, claims, or liens is dealt with by the plan, either as provided in the plan (a) by the transfer or sale of such property subject to such interests, claims, or liens, or by the retention of such property by the debtor subject to such interests, claims, or liens, or (b) by a sale free of such interests, claims, or liens at not less than a fair upset price and the transfer of such interests, claims, or liens to the proceeds of such sale; or (c) by appraisal and payment either in cash of the value either of such interests, claims, or liens, or, at the objecting creditors’ election, of the securities allotted to such interests, claims, or liens under the plan, if any shall be so allotted; or (d) by such method as will in the opinion of the judge, under and consistent with the circumstances of the particular case, equitably and fairly provide such protection.” It will be observed that section 77B, unlike section 77, furnishes a method by which a reorganization plan may be put into effect in the event that the debtor is unable to secure consent to its plan of two-thirds of each class of creditors to be affected thereby, not only without their approval, but, by necessary implication, despite their opposition. The plan may provide under subsection (b) (S) for the sale of the property subject to lien, for its sale free of liens and the transfer of the liens to the proceeds, or for the method recited in clauses (c) and (d). With the first two of the methods incorporated in the subsection, we are not concerned, because - the debtor does not desire to have the property sold either free from or subject to liens. It wishes to secure possession of the property and to resume its operation. We are concerned, therefore, only with the methods provided by which the debtor may regain its property without consent of creditors, have it appraised, and then relieve itself of obligation by paying each of them in cash, either (1) of the value of their interests, claims, or liens; or (2) at the creditors’ election (of the value) of the securities allotted to such interests, claims, or liens, if any shall be so allotted; or (3) by such method as will in the opinion of the judge equitably and fairly provide such protection. The present debtor’s several plans of reorganization, particularly the third, arc in recognition of the futility under existing circumstances of securing the consent of two-thirds of its creditors of each class. It proceeds upon the assumption that such consent is not necessary by framing its reorganization plans under the alternative method provided by subsection (b) (5). We assume it to be unnecessary to give detailed consideration to the first or second plan, for, faced with a contention that neither is feasible, and that each would invade vested constitutional rights, it presented its third plan and modifications thereof, and we may assume that this represents up to the time of the decree its ultimate effort to repel attack upon the feasibility of reorganization, and upon asserted invalidity in the application of the statute. We confess our inability to understand the debtor’s proposed reorganization plan in all of its phases, even after diligent study, effort to separate argument from concrete proposals, and an earnest attempt to reconcile apparently conflicting clauses. This much, however, seems reasonably clear: The debtor desires to have all the property which for two years has been in the possession of the equity receiver, including unmortgaged property, returned to it, subject to such liens as the court shall determine. It proposes that the bondholders shall have their securities scaled down to 80 per cent, of their face value, and that the court shall fix a reasonable rate of interest in place of the agreed interest. Nonassenting bondholders are to have the value of their securities fixed by the court, and to have a lien on the mortgaged property for such value, though it is also proposed to pay non-assenting' bondholders such ascertained value in cash.. The debtor proposes to pay for the unmortgaged property in the hands of the receiver the sum of $40,000 in cash at a time to be fixed by the court. For the further purpose of protecting bondholders, the debtor proposes to deposit $10,-000 to pay interest in advance upon the bonds for a three months’ period, but nothing is provided in the plan with respect to the defaulted interest upon the bonds during the two years that the debt- or’s properties have been in the hands of the receiver. Then follow provisions for a bond issue and for class A and class B preferred stock, out of the proceeds of which present unsecured creditors and preferred stockhdders are to be compensated. We make no effort to state them, for they are wholly incomprehensible. The court is also asked to reascertain the present holders of the debtor s mortgage bonds, and the amount due each bondholder although a judicial determination as to these matters has already been had m the equity proceedings by a master, with his report presumably confirmed by the court without objection thereto by the debtor, though a party to the receivership proceedings. From the argument, interwoven with the proposals of the submitted plan, it appears that the debtor is informed that 1 , .. . ,, ,, . some of the present bondholders have paid , . , j . , A . for their bonds an amount less than their , . , ., . , . „ face value, and it appears, mferentially . , . A' ’. at least, that the debtor desires the court , „ , ^ , i, ,, , to fix the amount due bondholders who , r . ., , have paid for their holdings since the be- ■ . , ?. . ginmng of the receivership an amount f , , 1 .1 •. less than their face value,- the amount ., , ^ , , so paid, and then have such amount scaled j ! on ^ „ ur down to 80 cents upon the dollar. We .,,, ^ . . are pointed to-no provision of the stat-t , • 1 ^ , . . ute which permits this to be done, and . , . . . - £ -1 , ,. , ’ mdependent inquiry fails to disclose any. 1 ^ J J The reorganization plan is opposed on the ground that it is not presented in good faith, and that any scaling down of secured indebtedness or of agreed interest or denial of the right of lienholders to have the mortgaged property sold at public sale in accordance with the terms of the trust deed, is taking the property of the bondholders without due process in violation of the Fifth Amendment to the Constitution of the United States. While the court found the plan to have been presented in good faith, it is urged that the court erroneously applied the law; that good faith is not a question of honest motive or intention, but is to be determined by the feasibility of the plan and a reasonable expectation that it will be successful, in reliance upon Manati Sugar Company v. Mock et al., 75 F.(2d) 284 (C.C.A.2), and In re 235 West 46th Street Company, Inc., 74 F.(2d) 700 (C.C.A.2). The District Judge rejected the contention as to absence of good faith, but declared subsection (b) (5), in so far as it permits adjustment of liens without the consent of creditors, Constitutionally invalid, and dismissed the petition, We have first t0 consider whether the tion of the debtor,s d faith in submitti its proposed plan of organization is j before this court the ma¡n L This involves a con_ sideration as t0 whether the decision be_ low that question involves ^ issue of Iaw izable n al under sec_ üon 24b_ It ig dear from tbe court>s memoranda that in decidi the issue of d faith it was gu¡ded mainl b a con_ sideration of the honesty of purpose on ^ of the debtor in submitting its ^ Section 77B does not undertake t0 define d faitbL We think it clea bowever5 in agreement with the Second drcuit that something more than sincerity , . . • , j j intention was intended. The purpose f ...... ... A f, , of the statute is to relieve distressed debt- ,- , . . < ., or corporations and to provide the me- , . ¿ , chames for reorganization where reason- ,, , .. , ,. , , , able expectation of continued useful ex- . . 1.^-1 . •. • , rr,, . istence may be fairly entertained. This , . J . . , being so, something more must be demon- . ® , (. ,, , , . 1. strated by the debtor than mere honesty r, x TJ. , ,, or sincerity of purpose. If not, then the . . ., way is open to the exploitation of every - . r . . -. , J involved corporation by visionaries whose , ...... - ,- illusory and optimistic imaginations out- . 1 . , .a , ., . run their business judgments, and the 111- . , r , J... . ’ ... . , terest of every legitimate creditor is at the mercy of debtors whose sole hope of financial salvation is an abiding faith in miracles. If we are right in this, there was erroneous application of the law in the finding of good faith, and the decree dismissing the petition should upon familiar principles governing appeals in equity be affirmed if right, however erroneous may be any given conclusion of law. It appears from the record that the total assets of the debtor upon fair appraisal are worth less than $300,000. The bonded indebtedness exceeds $900,000, and the unsecured indebtedness is more than $300,000. To this must now be added the cost and expenses of the receivership. Moreover, the receiver has been operating at a loss, and the debtor concedes that it also will for a time operate at a loss; its most optimistic undertaking being, if the property is restored to it, to reduce current losses 25 per cent. When these figures are considered together with the vagueness of detail in the proposed plan, the doubt that exists as to whether under section 77B there may now be a reopening of the adjudication of the claims against the debtor in the equity proceeding, it seems clear to us that the proposed plan is not a workable plan, offers no reasonable prospect for successful rehabilitation of the debtor, and is in consequence not, in the sense the phrase is used in the section, presented in good faith. Having concluded that the plan fails to meet the statutory test, it may appear that discussion should end here with mandate for affirmance of the decree, and that upon familiar principles no holding as to constitutionality of the assailed subsection is required. As was said by the Supreme Court in Howat v. Kansas, 258 U.S. 181, 184, 42 S.Ct. 277, 279, 66 L.Ed. 550, “Obviously we should not pass upon the constitutional validity of an act * * * unless the case before us requires it,” and in Euclid v. Ambler Realty Co., 272 U.S. 365, 397, 47 S.Ct. 114, 121, 71 L.Ed. 303, 54 A.L.R. 1016, “In the realm of constitutional law, especially, this court has perceived the embarrassment which is likely to result from an attempt to formulate rules or decide questions beyond the necessities of the immediate issue.” With profound deference to the canons of self-restraint to which courts subordinate their high power to inquire into the constitutional validity of acts of Congress, we have carefully explored the possibility of avoiding the constitutional question here presented. We are confronted with difficulty. Faced with attack upon the feasibility of its plan of reorganization, the debt- or has repeatedly presented alternatives and modifications. This is its right, not only by virtue of the liberal spirit of the statute, but by the express language of subsection (f) (7) of section 77B (11 U.S.C.A. § 207 (f) (7), which provides that before or after a plan is confirmed changes -and modifications may be proposed therein by any party in interest. The debtor, having finally received approval of the court upon the good faith of its latest plan, proceeded no further in its efforts to comply with the statutory requirement in that respect. Were we now to rest - decision solely upon lack of good faith, it would seem appropriate to permit further proposals, for the debt- or, having been misled by the court, should not be precluded from further effort to meet statutory requirements. Moreover, we see no legal impediment to submission by the debtor, or at least by a group of friendly creditors, of an entirely new plan of reorganization not heretofore considered and adjudicated. In either event the constitutional question would remain open for ultimate decision upon perhaps no better presentation than at present, and the submission of amendments to more fully demonstrate good faith, purely academic and fruitless. In the meanwhile the property of the debtor and the security of the lienholders will be further depleted by operating losses of the receiver. We see no escape therefore from present decision upon the validity of subsection (b) (5). The constitutionality of section 77B in its general scope and application is not here assailed, and, in view of the decision in Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & Pac. Railway, supra, is perhaps not open to successful assault. That case, however, goes no farther in its consideration of the due process clause of the Fifth- Amendment than to hold that statutory provisions permitting delay in the enforcement of contracts affect only the remedy, and deals with a statute which does not permit adjustments of liens without lienholders’ consent. Such delay in the application of remedies impairs no vested right, and this was also the rationale of the decision in Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413, 89 A.L.R. 1481, in consideration of the due process clause of the Fourteenth Amendment. We are here concerned only with the validity of a clause which provides for adjustment of debts without the consent of creditors. It has long been settled that provisions in bankruptcy statutes authorizing compositions have never been held to invalidate them. This is because a composition is a matter of agreement between the bankrupt and his creditors as a class, with the will of the majority imposed upon the minority. In re Lane (D.C.) 125 F. 772, 773; Cumberland Glass Mfg. Co. v. DeWitt, 237 U.S. 447, 452, 35 S.Ct. 636, 59 L.Ed. 1042. We confine ourselves to the provisions of subsection (b) (5), which outline a method for adjustment of claims of nonassenting creditors, and inquire as to their validity in the light of the due process clause. Upon this issue we view' the decision of the Supreme Court in Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593, 97 A.L.R. 1106, controlling. Here, under Tennessee law, as there under Kentucky law, the lien holders had the .right under their contract to retain the lien until the indebtedness secured was paid, the right to realize upon the security by a judicial public sale, the right to determine when such sale should be held, subject' only to the discretion of the court, the right to protect their interest in the property by bidding at such sale, the right to have the mortgaged property devoted primarily to the satisfaction of the debt; and the right to control the property meanwhile during the period of default, subject only to the discretion of the court, and to have the rents and profits during such period applied to the satisfaction of the debt. These rights are substantive property rights, and any invasion of them under the authority of the present statute is as clearly violative of the due process clause of the Fifth Amendment as it was in the Radford Case. We have no occasion to renew our excursion into the history of bankruptcy legislation or to again undertake that realistic approach to the problem that we ventured upon in the Rad-ford Case when ito was considered by us (74 F.(2d) 576). That manner of approach was rejected by the Supreme Court as an aid to solution, and so must we now reject it when it is again urged upon us. We hold subsection (b) (5) of section 77B (11 U.S.C.A. § 207 (b) (5) of the Bankruptcy Act unconstitutional and invalid in the respects indicated. Stripped of invalidity, the section is still an operable statute, and as to validity in its general scope and application there is no occasion for comment other than has been indicated. The decree below is affirmed. ALLEN, Circuit Judge (concurring). I concur in the conclusion and in that part of the decision which relates to the unconstitutionality of the statute. The decision in Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593, 97 A.L.R. 1106, compels this result. I dissent, however, from that part of. the opinion which defines “good faith” as requiring’ feasibility of the plan proposed. Congress, in enacting the statute, required simply that the District Judge should be satisfied of “good faith.” In so doing, it doubtless bore in mind the fact that in innumerable cases covering every kind of legal situation, the courts of this country, from the highest to the lowest, have defined good faith as meaning honesty of purpose. It is an unfortunate circumstance that integrity and business acumen are not always united. In this statute the Congress required integrity, and the District Judge correctly found that good faith was shown in the submission of this plan. 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_weightev	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America, Appellee, v. Laurence M. ANDERSON, Appellant. UNITED STATES of America, Appellee, v. Adrian VOLK, Appellant. UNITED STATES of America, Appellee, v. Robert Lee JOHNSON, Appellant. Nos. 80-1848, 80-1869 and 80-1870. United States Court of Appeals, Eighth Circuit. Submitted Feb. 13, 1981. Decided Aug. 3, 1981. Rehearing and Rehearing En Banc Denied Sept. 16, 1981. Irvin B. Nodland (argued), Lundberg, Conmy, Nodland, Lucas & Schulz, P. C., Bismarck, N. D., for appellant Anderson. Robert Vogel, Grand Forks, N. D., for appellant Volk. Brian W. Nelson, Fargo, N. D., for defendant Johnson. Gary Annear, Asst. U. S. Atty., Fargo, N. D., for appellee. Before ROSS, HENLEY and McMILLIAN, Circuit Judges. McMILLIAN, Circuit Judge. Laurence M. Anderson, Adrian Volk and Robert Lee Johnson were three of seven persons charged in a three-count indictment with distributing a Schedule I controlled substance in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and conspiracy to possess and distribute a Schedule I controlled substance in violation of 21 U.S.C. § 846. Each appeals his respective conviction and sentence. For the reasons set out individually below, we affirm. Briefly, count I of the indictment charged a sale of 1,044 units of lysergic acid diethylamide (LSD) on March 8, 1979. Count II charged a sale of 5,020 units of LSD on April 30, 1979. Count III detailed a conspiracy to distribute LSD from November 1, 1978, through May 31, 1979. Five witnesses appeared at the trial on behalf of the government. One was a Chicago chemist who testified only as to the chemical properties of exhibits 1 and 2, the LSD described in counts I and II respectively. Two witnesses were admitted coconspirators or accomplices. Gregory Mannie testified about his relationship to the defendants as far. back as February of 1978 and detailed their activities involving marijuana, cocaine and amphetamines as well as LSD. John Otheim’s testimony was basically the same as Mannie’s but concerned only the events of March 1 through March 20, 1979. The other two witnesses were undercover agents. Drug Enforcement Administration (DEA) agents Lee and Nicks testified about their meetings with Johnson, about observing Volk’s car at the site of an alleged meeting between Volk and Mannie, and about mailing exhibits 1 and 2 to the regional laboratory in Chicago. At the conclusion of this trial, Anderson was convicted of counts I and III, and sentenced to five years for the substantive offense and two consecutive years for conspiracy. Volk was convicted of counts I and III, and sentenced to five years for the substantive offense and two consecutive years for conspiracy. Johnson was convicted of all three counts, and sentenced to five years for each substantive count to run concurrently and two consecutive years for conspiracy. I. Anderson A. Chain of Custody Anderson contends that the district court erred in admitting exhibits 1 and 2 which had been purchased by the undercover agents. These exhibits were objected to on the ground that there had been no showing what happened to them between chemical analysis and the trial. The principles governing chain of custody challenges were outlined in United States v. Lane, 591 F.2d 961 (D.C.Cir.1979), as follows: Tangible evidence of crime is admissible when shown to be “in substantially the same condition as when the crime was committed.” And it is to be presumed that the integrity of evidence routinely handled by governmental officials was suitably preserved “[unless the accused makes] a minimal showing of ill will, bad faith, evil motivation, or some evidence of tampering.” If, however, that condition is met, the Government must establish that acceptable precautions were taken to maintain the evidence in its original state. The undertaking on that score need not rale out every conceivable chance that somehow the identity or character of the evidence underwent change. “[T]he possibility of misidentification and adulteration must be eliminated,” we have said, “not absolutely, but as a matter of reasonable probability.” So long as the court is persuaded that as a matter of normal likelihood the evidence has been adequately safeguarded, the jury should be permitted to consider and assess it in the light of surrounding circumstances. Id. at 962 (footnotes omitted). See also United States v. Brown, 482 F.2d 1226, 1228 (8th Cir. 1973); Brewer v. United States, 353 F.2d 260, 262-63 (8th Cir. 1965). In the ease at bar, agent Lee testified that, after purchasing the perforated paper which constituted exhibit 1, he took it to his office, heat sealed it in a plastic bag, and marked it for identification. Agent Nicks witnessed these actions and also initialed the seal. Then agent Lee placed the exhibit in the narcotics evidence vault overnight. The next day he mailed it via registered mail to the regional laboratory in Chicago, where evidence technician Charles Stubbs signed for it. Likewise, agent Nicks testified that, after purchasing the blue blotter paper which constituted exhibit 2, he took it to his office and field tested it. Then he heat sealed it, marked it for identification, and mailed it to the regional laboratory in Chicago, where it was signed for by Charles Stubbs. Thomas Janovsky, a forensic chemist with the Drug Enforcement Agency in Chicago, testified that he received each exhibit at the vault in the laboratory from Stubbs. Janovsky signed out each exhibit and then placed it in his personal locked box. To begin his analysis, he removed the bottom seal, initialed it, dated it and replaced it inside the evidence. He testified as to the method of analysis. In court, he stated that the resealed exhibits were in essentially the same form as when he had received them. This is a case where the evidence was handled according to established procedures and suitably preserved. The governmental officials are entitled to the presumption of integrity. Anderson has not made even a minimal showing of improper motivation or tampering. Therefore, this contention fails. B. Sufficiency of Evidence Anderson contends that the evidence was insufficient to convict him because it consisted of the uncorroborated testimony of an accomplice and a coconspirator. Witness Greg Mannie was not named in the indictment; he had cooperated in the investigation. Witness John Otheim was named in the indictment but pled guilty to one count, testified against the others and received a thirty-day sentence. The DEA agents referred to “Laurrie,” Anderson’s nickname, in their testimonies but only when repeating statements by Mannie and Otheim. Neither agent had ever met Anderson. Instruction No. 29, the conspiracy instruction, listed the seven persons named in the indictment as coconspirators Mannie, who was not indicted, is not in the list. Instruction No. 35, the cautionary instruction on accomplice testimony stated: An accomplice is one who unites with another person in the commission of a crime, voluntarily and with common intent. An accomplice does not become incompetent as a witness because of participation in the crime charged. On the contrary, the testimony of one who asserts by his testimony that he is an accomplice, may be received in evidence and considered by the jury, even though not corroborated by other evidence, and given such weight as the jury feels it should have. The jury, however, should keep in mind that such testimony is always to be received with caution and considered with great care. As the instruction states, accomplice testimony does not require corroboration and may by itself sustain a conviction. United States v. Fitts, 635 F.2d 664, 667 (8th Cir. 1980); United States v. Knight, 547 F.2d 75, 76 (8th Cir. 1976); Williams v. United States, 328 F.2d 256, 259 (8th Cir.), cert. denied, 377 U.S. 969, 84 S.Ct. 1651, 12 L.Ed.2d 739 (1964). Basically, then, Anderson’s contention is that the jury was not told by Instruction No. 29 that Mannie, the star witness, was an accomplice whose testimony Instruction No. 35 required them to accept with great caution. None of the four defense counsels objected to those instructions. Failure to object to a jury charge in a timely and specific manner results in a waiver of such objection on appeal. United States v. Sorenson, 611 F.2d 701 (8th Cir. 1979). Where no objection to the instructions is made, they may be reviewed only for plain error. United States v. Gambina, 564 F.2d 22, 24 (8th Cir. 1977). “Plain error” means that the trial court’s action affected the defendant's substantial rights resulting in a miscarriage of justice. West v. United States, 359 F.2d 50, 53 (8th Cir.), cert. denied, 385 U.S. 867, 87 S.Ct. 131, 17 L.Ed.2d 94 (1966). When a portion of the jury instructions is assigned as error, the reviewing court must look to the instructions as a whole. United States v. Williams, 604 F.2d 1102, 1120 (8th Cir. 1979); United States v. Matthews, 603 F.2d 48, 50 (8th Cir. 1979), cert. denied, 444 U.S. 1019, 100 S.Ct. 674, 62 L.Ed.2d 650 (1980). Having reviewed these instructions as a whole, we find that they are not plainly erroneous. Although Mannie was not listed as a “coconspirator” in Instruction No. 29, it was clear from his own testimony that he was an “accomplice” in the transactions about which he testified. Instruction No. 35 was sufficient to put the jurors on notice that his testimony was to be received with caution. Any error in this regard was harmless. C. Double Punishment Anderson contends that consecutive punishment for counts I and III constitutes double punishment because the sale alleged in count I is necessarily included in the conspiracy alleged in count III. Anderson cites Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), for the proposition that, if offenses were committed at the same time and were part of a continuous criminal act and inspired by the same criminal intent, they are susceptible of only one punishment. Bell is, however, inapposite. Bell involved simultaneous transportation of two women in violation of the Mann Act. The Supreme Court held only that, where the penal statute is ambiguous, doubts should be resolved against imposition of a harsher sentence. Id. at 83, 75 S.Ct. at 622. In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), which dealt with the crime of stealing an automobile and the lesser included offense of operating the same vehicle without the owner’s consent, the Supreme Court stated: The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied -to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.. .. Id. at 166, 97 S.Ct. at 2225, citing Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). The Supreme Court held that the Double Jeopardy Clause forbids cumulative punishment because the latter offense required no proof beyond that required for the former. Count I charged a sale of 1,044 units of LSD on March 8, 1979, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count III charged that, from November 1, 1978, through May 31, 1979, the defendants conspired with one another, in violation of 21 U.S.C. § 846, to distribute LSD. The fourteen overt acts in furtherance of the conspiracy detailed, not sales of LSD, but transfers of LSD among the coconspirators, which demonstrated their interaction and cooperation. It is clear that each offense required proof of at least one fact which the other did not. See United States v. Taylor, 603 F.2d 732, 734 (8th Cir.), cert. denied, 444 U.S. 982, 100 S.Ct. 487, 62 L.Ed.2d 487 (1979). Counts I and III charged two separate crimes, and the penalty provisions of each allow separate and distinct sentences. II. Volk Volk raises only one issue which is cognizable on appeal. He contends that there were two errors in the admission of evidence. The first, chain of custody of the controlled substance exhibits, was identical to Anderson’s contention discussed above. Second, he contends that there was no adequate foundation for identification of the car seen at the site of a meeting a3 his. Mannie had informed agents Lee and Nicks that Volk was at a meeting at the Econ-o-tel Motel. Lee and Nicks went there to set up surveillance. Lee saw Volk’s Volkswagen at the motel and asked Nicks to make a radio check on the license plate, which he did. The check showed that the car was registered to Volk. At trial both Mannie and Otheim testified to the meeting with Volk at the Econ-o-tel Motel. Lee and Nicks testified about the radio check on the license plate. No objection was made by Volk’s defense attorney to any of this testimony. Failure to object to admission of evidence waives that objection on appeal, in the absence of plain error. United States v. Price, 464 F.2d 1217 (8th Cir. 1972). There could be no plain error in this regard because the agents’ testimonies were merely corroborative of the accomplices’ testimonies, which were sufficient in themselves and required no corroboration. United States v. Taylor, 599 F.2d 832, 838 (8th Cir. 1979). III. Johnson A. Insufficient Evidence Johnson contends that the evidence adduced at trial was insufficient as a matter of law to sustain his conviction on any of the three counts. As to count I, he says that the only evidence connecting him with the first sale was Mannie’s testimony that Volk told him by phone that Johnson had brought the LSD from Oregon to Bismarck, North Dakota. Mannie further testified, however, that he had been present when Volk and Anderson discussed the sale of LSD with Johnson. After Volk’s call, Mannie and Otheim traveled to Volk’s apartment in Bismarck where they met with Volk, Anderson and some others to discuss the 40,000 units of LSD. Subsequently, Mannie picked up 5,000 units of LSD from Anderson at Anderson’s apartment. Anderson said that he wanted the 5,000 units sold within a week. Mannie and Otheim then returned to Grand Forks where they sold 1,000 units of LSD to agent Lee. As to count II, Johnson makes a similar argument; he says that the only evidence connecting him with the second sale was a conversation after the sale. Agent Lee testified that Johnson said that he understood Lee and Nicks were not satisfied with the last purchase of LSD. Johnson said that the quality of the LSD was good but that he would pass on the complaint to his source. In addition, however, Mannie testified that he had been dealing with Johnson’s brother concerning the sale of drugs to agent Lee and that the brother had been in touch with Johnson about that sale. A conviction can properly rest on the uncorroborated testimony of an accomplice. United States v. Knight, supra, 547 F.2d at 76. Statements of a coconspirator identifying a fellow coconspirator as his source of controlled substances is in furtherance of the conspiracy and therefore admissible. United States v. Fitts, supra, 635 F.2d at 666, citing United States v. Carlson, 547 F.2d 1346, 1362 (8th Cir. 1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977). Where there is sufficient evidence to implicate a defendant as a participant in each transaction, that defendant need not be present on the occasions when controlled substances are actually purchased by an undercover agent, in order to be convicted on charges of distribution. United States v. Martinez, 573 F.2d 529, 532 (8th Cir. 1978). Johnson was identified by Mannie as the source of LSD for both sales. Such evidence of participation in each sale, without evidence of physical presence at either transaction, was legally sufficient to sustain his convictions. Moreover, Johnson’s own statements to agents Lee and Nicks revealed that he was an active, knowledgeable participant in the second sale. As to count III, apparently, Johnson is arguing that out-of-court statements by coconspirators were not admissible to prove the conspiracy because the court did not rule on the admissibility of hearsay evidence at the close of the defendant’s case, but rather waited until after all evidence had been presented. Without such hearsay in the record, he asserts, the court should have directed a verdict of acquittal. United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978), held prospectively that the court must make an on-the-record determination of the admissibility of coconspirator’s statements under Fed.R.Evid. 801(d)(2)(E). Its guidelines state that such a statement will be admitted conditionally and “that at the conclusion of all evidence the court will make an explicit determination for the record regarding the admissibility of the statement.” Id. at 1045 (emphasis added). There was no error in this regard. B. Alibi Instruction Johnson contends that the district court erred in refusing to give his requested alibi instruction because he proved that he was not present at the times or places of the two sales. This contention fails for much the same reason as the previous contention. It is correct that a defendant is entitled to have the jury consider any theory of the case which is supported by law and has some foundation in the evidence, even though the evidence is weak. United States v. Shewfelt, 455 F.2d 836, 838 (9th Cir.), cert. denied, 406 U.S. 944, 92 S.Ct. 2042, 32 L.Ed.2d 331 (1972). Johnson relies on United States v. Megna, 450 F.2d 511 (5th Cir. 1971), which held that it was reversible error for the district court to refuse to give a requested alibi instruction. Although that indictment was for burglary, it was unclear whether the jury convicted on a theory of personal participation or merely aiding and abetting. Therefore, the defendant was entitled to have the jury instructed on his theory of defense to the substantive defense. Id. at 513. United States v. Megna is not on point here, however, because it did not involve a conspiracy. Once the existence of a conspiracy is shown, a defendant’s personal participation in overt acts by his coconspirators is not necessary to sustain his conviction on the conspiracy charge. United States v. Lee, 483 F.2d 968 (5th Cir. 1973). Furthermore, as previously stated, the acts of his coconspirators are attributable to him and he becomes equally liable for them. United States v. Overshon, 494 F.2d 894, 896 (8th Cir.), cert. denied, 419 U.S. 853, 95 S.Ct. 96, 42 L.Ed.2d 85 (1974). He need not be present at the drug sales to be convicted on the substantive charges. United States v. Martinez, supra, 573 F.2d at 532. Because it was unnecessary for the government to prove Johnson’s presence at the sales, the alibi defense was not supported by the law, and no instruction concerning it was required. C. Cruel and Unusual Punishment Johnson also requests this court to reduce his sentence as being harsh and severe. He points out that he had no past criminal record. Suffice it to say, “. . . a sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review.” United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). The sentence Johnson received on each count was within statutory limits and, therefore, was not unfairly harsh and did not constitute cruel and unusual punishment. IV. Other Claims Numerous other claims, including claims of ineffective assistance of counsel, have been raised by the appellants. We have considered the record and find that they are without merit. Accordingly, the judgment of the district court is affirmed in full. . One coconspirator pled guilty to one count, testified against the others and received a thirty-day sentence. Of the four arraigned together, one was sentenced under the Youth Corrections Act, 18 U.S.C. § 5010(b), and did not join in this appeal. . The Honorable Paul Benson, Chief Judge, United States District Court for the District of North Dakota. . The first two trials ended in mistrials. The first mistrial was declared because it was discovered during the trial that one of the jurors was closely acquainted with a witness. The second mistrial was due to the prosecuting attorney’s improper closing comment about a defendant’s failure to take the witness stand. . Notwithstanding the government’s citations, United States v. Lee is inapposite to the issue of an alibi instruction on the substantive offenses. That court declined to reach the issue on the basis of the concurrent sentence doctrine. Here, the sentences are consecutive. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_genresp2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. WESTERN INDUSTRIES, INC., Plaintiff-Appellee, v. NEWCOR CANADA LIMITED, Defendant-Appellant. No. 83-1657. United States Court of Appeals, Seventh Circuit. Submitted May 24, 1983. Decided June 13, 1983. Stephen T. Jacobs and Jeffrey P. Clark, Reinhart, Boemer, Van Deuren, Norris & Rieselbach, S.C., Milwaukee, Wis., for defendant-appellant. John S. Skilton and David A. Baker, Foley & Lardner, Milwaukee, Wis., for plaintiff-appellee. Before BAUER, WOOD and POSNER, Circuit Judges. PER CURIAM. This motion to dismiss the defendant’s appeal raises the recurrent — one might almost say incessant — problem of distinguishing between motions under Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure. See A.D. Weiss Lithograph Co. v. Illinois Adhesive Products Co., 705 F.2d 249 (7th Cir.1983) (per curiam). The district court entered a final judgment on April 4, 1983, awarding the plaintiff damages on its claim and the defendant a smaller sum as damages on its counterclaim. The defendant filed a notice of appeal to this court on April 8. On April 13 the plaintiff moved the district court, pursuant to Rule 59(e), for an order amending its judgment to provide that the award to the defendant on the counterclaim “be set off and satisfied by a portion of the recovery of” the plaintiff on its claim. The plaintiff asks us to dismiss the defendant’s appeal on the ground that the filing of the Rule 59(e) motion divested us of jurisdiction of the appeal. The defendant concedes the general principle, on which see, e.g., Inryco, Inc. v. Metropolitan Engineering Co., 708 F.2d 1225, 1232 (7th Cir.1983), but argues that the plaintiff’s Rule 59(e) motion is really a Rule 60(b) motion, and therefore that the motion to dismiss the appeal should be denied, since the filing of a Rule 60(b) motion does not affect the appeal. Post-judgment motions filed within 10 days should where possible be construed as Rule 59(e) motions to avoid otherwise endless hassles over proper characterization. The possibilities of abusive use of post-judgment motions to delay appeal are slight since 10 days is a short time and cannot be extended, see Rule 6(b). Of course there are some limitations on construing a post-judgment motion as a Rule 59(e) motion; in particular, a motion for an extension of time in which to file a motion to alter or amend the judgment may not be construed as a Rule 59(e) motion, see A.D. Weiss, supra, 705 F.2d at 250, lest Rule 6(b) be circumvented; but that is not a problem here. The plaintiff wanted the district judge to provide in the judgment for a set-off. This was a request to alter the judgment and was therefore a proper request to make in a Rule 59(e) motion. The only peculiarity of this case is that the Rule 59(e) motion was filed after the defendant had filed its notice of appeal. The defendant argues vigorously that the motion was filed purely to delay the appeal. However, if a party that wants to appeal a district court judgment files his notice of appeal within 10 days of entry of judgment, as the defendant did here, he runs the risk that our jurisdiction over his appeal will be divested by the other party’s filing a Rule 59(e) motion, as he is entitled to do, within the same 10-day period. The immediate filing of a notice of appeal cannot be allowed to defeat the appellee’s rights under Rule 59(e). It is unusual for the appellee— the winner below — to be filing a Rule 59(e) motion, but by no means unheard of. A prevailing plaintiff may, for example, want the judge to increase the amount of the judgment, as happened in Western Transport Co. v. E.I. Du Pont de Nemours & Co., 682 F.2d 1233 (7th Cir.1982). Or both parties may as in this case be winners and losers in the district court. We therefore caution parties that do not want .to run the risk of having their appeals dismissed as premature to wait 10 days before filing the notice of appeal. The appeal is Dismissed. Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_treat	E	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. WARK v. ERVIN PRESS CORPORATION. No. 4492. Circuit Court of Appeals, Seventh Circuit. March 20, 1931. Irving Breakstone, of Chicago, Ill., for appellant. J. Robert Cohler and Samuel E. Hirsch, both of Chicago, Ill., for appellee. Before ALSCHULER, EVANS, and SPARKS, Circuit Judges. ALSCHULER, Circuit Judge. In this ease bill and answer were filed, and, on motion of plaintiff for a decree pro eonfesso, decree was entered accordingly. The bill charged that the plaintiff had established a business of creating, manufacturing, and selling an advertising service for those engaged in the business of dry cleaning; that plaintiff had customers and business in all parts of the country; that in December, 1927, appellant, Wark, entered plaintiff’s employ as a traveling sales manager at $85 a week, remaining in such capacity until March, 1929, when the employment ended; that after about six months he re-entered plaintiff’s employ as its special sales executive, under written agreement for service from September 1, 1929, to December 31, 1930, at $150 a week. The sixth paragraph of the agreement (set out in the margin) provides, in substance, that if, with or without cause, the agreement shall terminate, Wark will not thereafter reveal any of the employer’s trade secrets, nor enter into nor be connected with any other business which sells or supplies advertising material for dry cleaners, and that he will not, for a period of five years from cessation of the employment, engage in the dry cleaning business or be employed in any capacity by any person or corporation engaged in the dry cleaning business, except in the states of New Mexico, Arizona, Montana, North and South Dakota, and Delaware. The bill further charges that Wark, through his employment and contact with the trade, became acquainted with the plaintiff’s business methods and customers in various parts of the United States through personal calls upon the customers and through meeting them at conventions of the dry cleaning industry, and that on or about January 30, 1930, Wark left plaintiff’s employ, and in February entered the service of C. E. Falls Service Company, another corporation likewise engaged in creating and selling advertising service to dry cleaners; that Wark thereupon availed himself of his knowledge of plaintiff’s business and its business secrets, and of plaintiff’s lists of customers and prospective customers, employing all this knowledge for the benefit of his new employer, and soliciting plaintiff’s customers by personal calls and by correspondence, whereby plaintiff has been and will be greatly damaged; and that such conduct was contrary to Wark’s undertaking in and by 'said agreement. The bill asks for temporary and permanent injunction restraining Wark from disclosing any of the business methods or secrets of plaintiff, from remaining in the service of his new employer, or from being connected with any such business'for such period of five years in the territory above specified, and from using, or enabling others to use, lists of plaintiff’s customers or prospective customers. A temporary injunction was granted restraining Wark from disclosing to his then employer, or to any other person, any of the secret business methods or other secrets of the plaintiff, and from soliciting customers or prospective customers of plaintiff whose names were obtained or made known to said Wark while in plaintiff’s employ, and from in any manner using names or lists of names of customers or prospective customers of plaintiff obtained by him while in plaintiff’s employ. Answer to the bill was filed, in which it was admitted that plaintiff was engaged in the business described in the bill, and that’ plaintiff solicits practically all the leading dry cleaning establishments in the United States. The answer admits the execution of the written agreement, but denies that plaintiff disclosed to Wark any trade or business secrets and lists of customers and prospective customers, but stated that Wark made his own contacts and solicited those engaged in the dry cleaning business wholly from names obtained from trade journals and financial reports. It denies that plaintiff possessed any trade secrets or secret methods of doing business, but stated that its method of designing and producing its products was well known to all those engaged in similar business. The answer further states that on January 30, 1930, Wark was discharged by plaintiff without cause, and that thereby he was relieved from the obligations of the contract; that he thereafter entered into the service of his then employer as sales manager, and that said employer was and is a competitor of plaintiff and likewise engaged in selling advertising service to dry cleaners, but that its service is in a far broader field, and is not confined exclusively to dry cleaners, as is that of plaintiff; that approximately only half of said employer’s business is devoted to the dry cleaning trade; that Wark does not in any manner participate in designing the advertising service of his employer, nor ip creating and manufacturing it; that said employer solicits the entire dry cleaning trade from its own catalogs and lists of customers, which are compiled as the result of its own efforts, and entirely independent of plaintiff or of any compilation on'the subject by the plaintiff; that said employer was familiar with the entire advertising service and business methods and distribution to the trade of such product long before the time of plaintiff’s employment of Wark; that Wark’s services to plaintiff were not extraordinary or unique; that he has not, since employed by said employer, made use of any trade secrets or methods of plaintiff, or solicited any of plaintiff’s former customers or prospective customers; and that he has not circularized any lists of customers or prospective customers of the plaintiff, or personally solicited any of them. But the answer admits that Wark has sent announcements to personal friends in the trade, advising them of his new connection and employment. The answer further alleges that Wark’s duties with plaintiff were such that they could be satisfactorily performed, and are being performed, by others, without any difficulty to plaintiff in engaging a successor equally capable, and denies that plaintiff has suffered any damage as a result of Wark’s change in employer. The answer further alleges that paragraph 6 of the agreement is unilateral, unreasonable, unconscionable, and lacking in mutuality, both as to obligation and remedy, and therefore void. The final decree made permanent the preliminary injunction, and further restrained the defendant, for five years from January 20, 1930, from being associated or employed by or from participating in the business of his then employer, and from being connected with, or entering or engaging in, within the United States, except the above named six states, any business of selling or "supplying •advertising or display service in any form to dry cleaners, and from being engaged or employed in any capacity by any association of dry cleaners. - Coneededly the plaintiff was not entitled to any relief concerning any allegations of the bill which were sufficiently denied by the answer. The answer sufficiently denied that the plaintiff in its business possessed any trade secrets or secret methods of doing business, and that Wark had imparted to the Falls Service Company any secret information of plaintiff’s business, or had given that employer any list of plaintiff’s customers or information respecting plaintiff’s business, and denied that plaintiff sustained any damage by reason of any of defendant’s alleged acts or doings. The preliminary injunction was limited to restraining defendant from disclosing to his new employer, or any other person in the dry-cleaning industry, plaintiff’s business secrets and secret business methods, and from soliciting customers or prospective customers of plaintiff whose names became known to defendant while in plaintiff’s employ. Since the answer sufficiently denies that plaintiff had any trade secrets or secret methods of transacting its business whereof Wark became possessed, so much of the final decree •as makes permanent that part of the preliminary injunction against making such revelations is unwarranted, and, to that extent, the final decree should in any event be modified. The answer, while denying generally the solicitation of plaintiff’s customers, does not specifically deny the writing of letters, one of which the bill sets forth, or the allegation that other letters of similar nature were written by Wark to customers of the plaintiff, with whom Wark had, while in plaintiff’s employ, come in business contact. The letter which the bill sets forth plainly indicates direct solicitation of this customer of plaintiff for the new employer. As to the writing of such letters, the answer admits that Wark sent announcements to personal friends of the trade, advising them of his new connection. It does not deny that such personal friends in the trade were also plaintiff’s customers in the dry cleaning business as alleged, nor that the letters were, to all intents and purposes, a bid for business relations on behalf of the new employer. The answer also admits that the new employer was engaged in the business of supplying advertising matter for dry cleaners, although alleging it was advertising of a different kind. Nevertheless in its relation to dry cleaners it was in direct competition with plaintiff’s advertising business. To the extent, therefore, that the answer admits, or does not deny, material allegations of the bill, so much of the decree as is predicated upon the allegations so admitted, or not denied, must stand, if the matters are such as, if proved, would entitle plaintiff to the decree. The answer alleges that there was nothing extraordinary or unique about Wark’s services, and that he could be replaced without injury to his former employer, and that therefore the negative or restraining covenants of paragraph 6 of the contract are not enforceable. The trend of modem authorities is that such covenants, when reasonably limited as to time and place, and when reasonably calculated to protect the lawful business of the employer, will be enforced, even though the service is not of that unique and special nature as has often been the subject of judicial consideration. Erikson v. Hawley, 56 App. D. C. 268,12 F.(2d) 491; Eureka Laundry Co. v. Long, 146 Wis. 205,131 N. W. 412, 35 L. R. A. (N. S.) 119; Walker Coal & Ice Co. v. Westerman, 263 Mass. 235, 160 N. E. 801; 32 C. J. 220. The circumstances here presented tend to indicate that Wark was considered by plaintiff to be, and he was in fact, a particularly useful and valuable employee. His experience with such business began with his first employment by plaintiff. His salary was comparatively large, but for some reason the employment ceased after somewhat over a year, and then the new contract was made at an initial salary nearly double what it had been. The mere statement of the fact would indicate that in the course of such employment the good will of plaintiff’s business was, in considerable degree, in the hands of this employee, and it was to protect the good will of the business that paragraph 6 was made a part of the agreement. It is true that the territorial limit of his restriction is large — all of the United States save six of the less important states — but plaintiff’s trade, as well as that of the competitor, extended all over the United States, and so presumably did the business contacts of Wark, made during his employment with plaintiff. Under the circumstances, we cannot say that the territorial limit of the covenant, nor its tíme limit, were more tfian sufficient reasonably to protect plaintiff’s business and good will. Harrison v. Glucose Sugar Refining Co., 116 F. 304, 58 L. R. A. 915 (C. C. A. 7th); Davis et al. v. A. Booth & Co., 131 F. 31 (C. C. A. 6th). It is contended that the agreement is unilateral because there was no agreement to give Wark employment for any specified time, but would be effective in case from any cause, .or without cause, the employment ceased. We do not think this is essential to the lawfulness of such covenant.. If such a covenant were made in bad faith, with intent on the part of the employer that the employment would be only long enough to bind the employee to the covenant, and with a view only of preventing him from working elsewhere, a different situation would be presented. The facts disclosed by the pleadings do not raise a suspicion of the bona tides of the contract; and, made as it was in the view of Wark’s previous employment with plaintiff, and his knowledge of its business, we can reach no other conclusion than that there was consideration for Wark’s promise, and that paragraph 6 is valid and enforceable. Meurer Steel Barrell Co., Inc. v. Martin, 1 F.(2d) 687 (C. C. A. 3d); Hunt v. Stimson, 23 F.(2d) 447 (C. C. A. 6th). The denial in the answer that Wark voluntarily quit the employment, and his allegation that without cause he was discharged by plaintiff, will not affect the merits of the controversy, unless possibly, as above suggested, the discharge was in pursuance of a fraudulent purpose on the part of the employer not to give employment to Wark, but only to prevent him from being employed by others. Under such a covenant it is not important whether the employee was discharged or voluntarily left the employment. Cali v. National Linen Service Corp., 38 F.(2d) 35 (C. C. A. 5th); New York Linen Supply Co. v. Schachter, 125 Misc. Rep. 805, 212 N. Y. S. 72. We are of opinion that the decree should be limited to enjoining Wark for the five-year period from retaining employment with C. B. Falls Service Company, and from soliciting on behalf of said C. B. Falls Service Company, or any other person or persons directly or indirectly engaged in the business of supplying advertising service to dry cleaners, the names of any customers of plaintiff who, to Wark’s knowledge, were such during the time of his employment with plaintiff, and from directly or indirectly soliciting any such customers on behalf of any person engaged in supplying'advertising service to dry cleaners dpring the period or within the territory as specified and/or in the decree. The decree is directed to be thus modified, and thereupon to be affirmed. Bach party shall pay one-half of the costs of this appeal. “Sixth: Upon the termination of this agreement or of any modification, renewal or extension thereof. whether such termination takes place in accordance with the provisions of this agreement or for any reason whatsoever, whether with or without cause, the Employee agrees that he will not thereafter reveal the business methods of the Employer or any of the business secrets of the Employer to any one at any time and that he will not practice or make use of them himself, nor will he enter into, engage in, or be connected with any business selling, leasing or supplying advertising, advertising materials or advertising or display services in any form to dry cleaners or men’s or women’s wearing apparel stores, or to any one connected with the dry cleaning industry or with men’s or women’s wearing apparel stores, either directly or indirectly, in his own behalf or for any person, persons, firm or corporation; and the Employee further agrees that he will not go into, or engage in, the dry cleaning business or be employed in any capacity by any person, persons, firm or corporation; and the Employee further agrees that he will not go into, or engage in, the dry cleaning business or be employed in any capacity by any person, firm or corporation engaged in the dry cleaning business, or by any association of dry cleaners, for a period of five years from the date of such termination, any where in the United States, except that he may work for dry cleaners or men’s or women's wearing apparel stores and may sell advertising, advertising materials or advertising service to dry cleaners or men’s or women’s wearing apparel stores, in the States of New Mexico, Arizona, Montana, North Dakota, South Dakota and Delaware.” 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_state	33	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". UNITED STATES of America, Appellee, v. Paul CAMPO, Defendant-Appellant. No. 1155, Docket 85-1096. United States Court of Appeals, Second Circuit. Argued June 10, 1985. Decided Oct. 4, 1985. Arthur J. Yiviani, Higgins & Viviani, New York City, for defendant-appellant. Martin J. Auerbach, Asst. U.S. Atty., Southern Dist. of New York, New York City (Rudolph W. Giuliani, U.S. Atty. for the Southern Dist. of New York, Stuart E. Abrams, Asst. U.S. Atty., New York City, of counsel), for appellee. Before FRIENDLY, OAKES and WINTER, Circuit Judges. WINTER, Circuit Judge: Paul Campo appeals from a judgment of conviction entered on March 12, 1985, 605 F.Supp. 886, following a jury trial before Judge Haight in the Southern District of New York. In this, his second trial, Campo was convicted on two counts of extorting and conspiring to extort “under color of official right” in violation of the Hobbs Act, 18 U.S.C. §§ 1951, 1952 (1982). Cam-po does not dispute his receipt of improper payments while a New York City policeman. Rather, he claims there was insufficient evidence to prove that he induced the payments, and thus misused his official office. Because we find that there was sufficient evidence that Campo made a “request, demand, or solicitation” for the payments in his capacity as a police officer, we affirm. BACKGROUND Campo was a patrolman in the New York City Police Department’s Tenth Precinct, in the Chelsea section of Manhattan’s West Side. He and his partner Raphael Commis-so were permanently assigned to patrol sector “A” of the precinct between September, 1979, and October, 1981. They also worked intermittently with other patrolmen or in other sectors. The Funhouse Disco opened in early 1979 at 526 West 26th Street, in sector “D” of the Tenth Precinct. Catering to a young crowd, the disco was open for business two nights a week, on Saturday mornings until about 6 a.m. and on Sunday mornings until about 8 a.m. The Funhouse attracted large and often unruly crowds, and the disco employed a number of “bouncers,” headed by a man named Angelo. In addition, a number of assaults occurred in the vicinity, and many cars parked illegally near the disco. According to the testimony of Patrolman Thomas Peteroy, in May or June of 1979 Angelo entered into a “contract” with two Tenth Precinct patrolmen. The contract provided that the police assigned to sector “D” would remain in front of the disco as much as possible on weekend nights, and in return would receive $50 a night. Pursuant to the contract, Angelo regularly paid the two policemen assigned to the sector to park in front of the Funhouse, to ticket the double-parked cars, and to keep watch on the vandalism and unruliness that accompanied the late-night revelry. Angelo regularly delivered $50 cash, later raised to $75 for the Saturday-Sunday shift, to the two officers before they went off duty at 8 a.m. During the course of the contract, Officer Peteroy was regularly assigned to sector “D” on weekend nights. Peteroy testified that on these nights he parked his radio car in front of the Funhouse, left the disco only when ordered to other duty by a radio call, and returned to the disco upon completion of the call. As a result, he failed in his duty to patrol the entire sector. Between fifteen and twenty officers shared at least one such shift with Peteroy. He testified that he split the night’s payments with each of those officers, except for three he didn’t trust. Commisso rode with Peteroy and split the payments on five to ten occasions. Campo never rode with Pet-eroy during the course of the contract. Campo did, however, patrol sector “D” on about eleven weekend nights with his regular partner Commisso. In 1979 Campo and Commisso asked Pet-eroy if they could have the “D” sector on an upcoming weekend night. Before the shift began, the two officers heard that Angelo wanted to talk with policemen assigned to the sector. When the officers went to 26th Street that night, Angelo waved them over. He told them he would appreciate their giving the block as much attention as they could because of recurring fights and double parking. Commisso testified that he answered: “[W]e would certainly patrol the street as much as we could, but we also had other duties to perform. We had to take care of the rest of our sector and we had to answer our jobs.” The street was busy that night, and Com-misso and Campo spent quite a bit of time there. Toward the end of the shift, shortly before 8 a.m., Angelo once again waved the police car over. He thanked the officers for being around and dropped $50 through the window of the car. Commisso testified that the officers were surprised and that he thought that it was “a lot of money.” After discussing whether to keep the money, the two decided to split it. After this incident, Commisso and Campo worked the same shift about ten more times, with a total take of no more than $250 each. The officers habitually spent a large portion of such shifts near the Fun-house, and Commisso testified that they anticipated getting paid by Angelo. Near the end of each tour, they would return to the Funhouse as the disco was closing up. Angelo would pay them at that time. On one night, other work kept the officers away from 26th Street, and Angelo declined to pay them when they came by in the early morning. Angelo resumed payment on subsequent occasions when the officers had been visible outside the disco. Peteroy further testified that Commisso and Campo discussed with him the fact that the Funhouse was staying open very late into Sunday morning. Thereafter, Pet-eroy talked with the officers who had originally set up the contract, and the payoff was soon raised to $75 for the Saturday-Sunday shift. Campo was convicted on both counts of the indictment on September 19, 1983. That conviction was reversed and remanded by this court in light of the en banc decision in United States v. O’Grady, 742 F.2d 682 (2d Cir.1984). United States v. Campo, 744 F.2d 944, 945 (2d Cir.1984) (per curiam). Campo’s retrial commenced on January 14, 1985, and concluded two days later, when the jury once again returned guilty verdicts on both counts. On March 12, 1985, Judge Haight sentenced Campo to 300 hours community service, and also to two years’ probation on each count, to run concurrently. DISCUSSION We recently examined en banc the definition of extortion under the Hobbs Act, 18 U.S.C. § 1951 (1982). United States v. O’Grady, 742 F.2d 682 (2d Cir.1984). One element of the crime, receipt of benefits in one’s capacity as a public official, id. at 687, is not contested by Campo. Also necessary for conviction, however, is proof that the public official induced the payments. The government therefore must offer evidence sufficient to allow “the jury to find that the public official did something, under color of his office, to cause the giving of benefits,” id. at 693, i.e., some misuse of office to obtain benefits, id. at 692-93. Campo claims that the government failed to produce such evidence. We disagree. In O’Grady, we reversed because of a jury charge that equated the mere acceptance of benefits by a public official with wrongful use of public office. See id. at 688. We recognized, however, that inducement can take subtle forms: “Proof of a request, demand or solicitation, no matter how subtle, will establish wrongful use of public office; proof of a quid pro quo would suffice as would other circumstantial evidence tending to show that the public official induced the benefits.” Id. at 691-92. A separate opinion, joined by eight of the thirteen participating judges, held that “the jury should be permitted to infer inducement by the defendant based upon a finding of repeated acceptances over a period of time of substantial benefits (i.e., benefits of a nature and magnitude which reasonably could affect public official’s exercise of his or her duties).” Id. at 694 (Pierce, J., concurring); accord id. (Newman, J., concurring). Because Campo’s conduct went well beyond mere acceptance of benefits, we need not decide whether the payoffs, less than $250 spread over a 25 month period, were “substantial” i.e. of a nature and magnitude that reasonably could affect the exercise of his duties. In fact, Campo repeatedly took specific action that had as its goal the receipt of payoffs. Specifically, Commisso and Campo returned to the Funhouse at the end of their shifts when the disco was closing up. There was sufficient evidence for the jury to find that the sole purpose of returning was to get the money from Angelo. This repeated, deliberate seeking of payment constitutes “a request, demand or solicitation,” id. at 691, well beyond the mere acceptance of benefits, and is more than sufficient to prove that Campo induced the payments. Moreover, Commisso and Campo knew from the occasion on which Angelo refused to pay them that they would be paid at the end of the shift only if they had spent sufficient time on 26th Street. This understanding is in the nature of a quid pro quo and is also sufficient to prove inducement. Id. at 691-92. Affirmed. . The Hobbs Act provides, in relevant part, that: (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. (b) As used in this section— (2) The term "extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. 18 U.S.C. § 1951 (1982). 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_genapel2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. SIMS v. RIVES. No. 6574. United States Court of Appeals for the District of Columbia. May 11, 1936. James J. Laughlin, of Washington, D. C., for appellant. Leslie C. Garnett, U. S. Atty., and Allen J. Krouse, Asst. U.S.Atty., for appellee. Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices. STEPHENS, Associate Justice. This is an appeal from a judgment in the Supreme Court of the District of Columbia discharging a writ of habeas corpus and dismissing the petition upon which the writ had been issued. The facts are as follows: On December 19, 1934, the appellant was convicted in the United States Police Court of the District of Columbia, on an information charging violation of the District of Columbia. Alcohol Beverage Control Act, approved and- effective January 24, 1934, 48 Stat. 319, as amended by the Act approved April 30, 1934, 48 Stat. 654. The petition for the writ asserted that the information charged “transportation of two cases of untaxed whisky.” It Was agreed by counsel at the bar and stipulated for the record that the actual offense involved was violation of subparagraph (c) of Section 17 of the Liquor Regulations prescribed under the Act referred to. The subparagraph provided: “(c) Whenever alcohol, spirits, or wines shall be transported in quantities in excess of 12 quarts, or beer in excess of 48 quarts, the person in charge of such transportation shall have in his possession a bill or memorandum from the seller to the purchaser, showing the names and addresses of the seller and of the purchaser, and the quantity and character o.f the beverage sold and transported, or a permit from the Board. Upon the demand of any police officer or duly authorized inspector of the Board, the person in charge of such transportation shall exhibit the bill, memorandum, or permit.” A sentence of four months’ imprisonment was imposed upon the appellant for violation of this regulation. This sentence has been executed, and the appellant raises no question herein concerning this conviction or the sentence thereunder. The general purpose of the District of Columbia Alcohol Beverage Control Act (hereinafter referred to as the Beverage Control Act) was, as indicated by the title, “To control the manufacture, transportation, possession, and sale of alcoholic beverages in the District of Columbia.” Under Section 4, the Alcohol Beverage Control Board was created, with members to be appointed by the Commissioners of the District of Columbia. By Section 7, the Commissioners were authorized to prescribe such rules and regulations not inconsistent with the Act as they might deem necessary to carry out the purposes thereof and to make rules and regulations for the issuance, transfer, and revocation of licenses, and to facilitate and insure the collection of taxes. By Section 23 it was provided that “There shall be levied and collected by the District of Columbia on all beverages, except beer, manufactured by a holder of a manufacturer’s license and on all beverages, except beer, purchased by the holder of a wholesaler’s or retailer’s license, except such beverages as may have been purchased from a licensee under this Act” certain taxes. At the outset the act provided: “That the National Prohibition Act, as amended and supplemented, insofar as it affects the manufacture, sale, and possession in the District of Columbia, and the transportation in, into, and from the District of Columbia, of alcoholic beverages, is hereby repealed, with the exception of title III, and section 4 of title II insofar as it affects denatured alcohol.” On January 11, 1934, there had been passed, and on the same date approved, effective, however, as to Title 1 on the day following and as to Title 2 thirty days thereafter, the “Liquor Taxing Act of 1934,” 48 Stat. 313. The main purpose of this Act, as indicated by its title, was “To raise revenue by taxing certain intoxicating liquors * * It was a general revenue statute stipulating the amount of tax on various types of intoxicating liquors and containing assessment and collection provisions. Section 201 of Title 2 (26 U.S.C.A. § 1152a) provided in part: “No person shall * * * transport, possess, buy, sell, or transfer any distilled spirits, unless the immediate container thereof has affixed thereto a stamp denoting the quantity of distilled spirits contained therein and evidencing payment of all internal-revenue taxes imposed on such spirits.” By section 207 of Title 2 (26 U.S.C.A. § 1152g) violators: “shall on conviction be punished by a fine not exceeding $1,000, or by imprisonment at hard labor not exceeding five years, or by both.” On August 15, 1934, appellant was indicted, under two indictments in the Supreme Court of the District of Columbia charging violation of the Liquor Taxing Act of 1934. The specific nature of the charge does not appear from the record, but it was again agreed by counsel at the bar and stipulated for the record that the offense was the transportation of liquor without having affixed to the container thereof the stamp required by Section 201, and that the transportation and the liquor in question were identical with those concerned in the conviction under the Beverage Control Act as above set forth. Under these two indictments, the appellant was convicted. Under one, he was on January 10, 1935, sentenced to a penitentiary for a period of not less than one nor more than three years, and under the other, on March 14, 1935, for a period of not less than one year nor more than fifteen months, the second sentence to run concurrently with the first. These sentences were imposed, however, not according to the terms of the Liquor Taxing Act of 1934, but under the Act of July IS, 1932, “To establish a Board of Indeterminate Sentence and Parole for the District of Columbia and to determine its functions, and for other purposes,” 47 Stat. 696, as amended by the Act of June S, 1934, 48 Stat. 880. This Act established in the District of Columbia “a board of Indeterminate Sentence and Parole for the penal institutions for said District,” whose duty it shall be: "“to examine into the physical, mental, and moral records of the prisoners committed to the penal institutions of the District; receive reports of wardens and other officials, including the psychiatrist; recommend the treatment which, in their opinion, is most conducive to the prisoners’ reformation; and provide for a system of determining the proper time of release and the rehabilitation of the ex-prisoner in the community.” Section 1. Subject to the approval of the Commissioners of the District -of Columbia, the Board was by the Act authorized to adopt rules and regulations for its procedure and to appoint parole officers. Section 3 provided, so far as here pertinent: . “That hereafter, in imposing sentence on a person convicted in the District of Columbia of a felony, the justice or judge of the court' imposing such sentence shall sentence the person for a maximum period, not exceeding the maximum fixed by law, and for a minimum period not exceeding one-fifth of the maximum period fixed by law, and any person so convicted and sentenced may be released on parole as herein provided at any time after having served the minimum sentence * * The Act further provided: “Sec. 4. That whenever, within the limitations of section 3 of this Act, it shall appear to the Board of Indeterminate Sentence and Parole, from the reports of the prisoner’s work and conduct which may be received in accordance with the rules and regulations prescribed, and from the study and examination made by the board itself, that any prisoner serving an indeterminate' sentence is fitted by his training for release, that there is a reasonable probability that such a prisoner will live and remain at liberty without violating the law, and in the opiaion of the board such release is not incompatible with the welfare of society, said Board of Indeterminate Sentence and Parole may, in its discretion, authorize the release of such prisoner on parole, and he shall be allowed to go on parole, outside of said prison, and in the discretion of the board to return to his home upon such terms and conditions, including personal reports from said paroled prisoner, as said Board of Indeterminate Sentence and Parole shall prescribe, and to remain, while on parole, in the legal custody and under the control of the superintendent of the institution from which the prisoner may have been paroled, until the expiration of the maximum of the term or terms specified in his sentence, less such good-time allowance as is, or may hereinafter be, provided by law; and the said board shall in every parole fix the limits of the residence of such person paroled, which limits, however, may be thereafter changed in the discretion of the board. “Sec. 5. If said Board of Indeterminate Sentence and Parole, or any member thereof, shall have reliable information that a prisoner has violated his parole, said board, or any member thereof, at any time within the term or terms of the prisoner’s sentence, may issue a warrant to any officer hereinafter authorized to execute the same for the ' retaking of such prisoner. Any officer of the penal institution from which such prisoner shall have been paroled or any Federal officer authorized to serve criminal process within the United States to whom such warrant shall be delivered is authorized and required to execute such warrant by taking such prisoner and returning him to said penal institution. “Sec. 9. Upon the appointment of the members of said board, the powers of the existing parole board [the Federal Parole Board] over prisoners confined in the penal institutions of the District of Columbia shall cease and determine and all the powcrs of said existing parole board under the authority of the Act of Congress approved June 25, 1910, entitled ‘An Act to parole United States prisoners, and for other purposes,’ as amended, over said prisoners confined in the penal institutions of the District of Columbia shall be transferred to and vested in said Board of Indeterminate Sentence and Parole * * Under the foregoing and by virtue of his assignment of errors, the appellant raises three points: I. That the Liquor Taxing Act of 1934 was repealed by the Beverage Control Act for the District of Columbia; II. That contrary to the Fifth Amendment of the Constitution, he has for the same offense between twice put in jeopardy; III. That his sentences under the Indeterminate Sentence Act are void because (a) that Act is not applicable to offenses against general laws of the United States and (b) if it is, it is unconstitutional as a deprivation of liberty without due process of law contrary to the Fifth Amendment, and also as violative of that clause of the Fourth Amendment providing that “no warrants shall issue, but upon probable cause, supported by oath or affirmation * * and also as delegating judicial power to the executive branch of the Government. I. Was the Liquor Taxing Act of 1934 repealed by the Beverage Control Act? The foundation of the appellant’s argument on this point is the language above quoted in the Beverage Control Act, “That the National Prohibition Act, as amended and supplemented * * * is hereby repealed * * Appellant asserts that the Liquor Taxing Act is an amendment of or a supplement to the National Prohibition Act, and is therefore expressly repealed by the Beverage Control Act. This point we think is without merit. The Liquor Taxing Act is not, and indeed does not at all purport to be, either an amendment of or a supplement to the National 'Prohibition Act in any legal sense. It is a revenue law, not a prohibition law. That a law taxing liquor and a prohibition law are different has been recognized by the Supreme Court. United States v. Rizzo, 297 U.S. 530, 56 S.Ct. 580, 80 L.Ed. 844, decided March 9, 1936. Moreover, the Liquor Taxing Act can hardly be regarded as either an amendment of or a supplement to that which had itself at the time of the going into effect of the Liquor Taxing Act lost its constitutional foundation. The Twenty-First Amendment to the Constitution became effective after ratification by three-fourths of the states December 5, 1933; the Liquor Taxing Act, as above pointed out, not until January, 1934. The Beverage Control Act cannot be said to operate as an implied repeal of the Liquor Taxing Act because, as' appears from the statement of the two acts above, their purposes are different, the one being a revenue measure of a general nature, the other a regulatory statute' with such tax features as apply only within the District of Columbia. “It is * * * necessary to the implication of a repeal that the objects of the two statutes are the same, in the absence of any repealing clause. If they are not, both statutes will stand, though they may refer to the same subject.” United States v. Claflin, 97 U.S. 546, 552, 24 L.Ed. 1082. II. Has the appellant been twice put in jeopardy? In support of an affirmative answer to this question, the appellant relies on Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084, 11 Ann. Cas. 640, holding that a soldier in the United States Army, tried for homicide before a general court martial, could not, because of the double jeopardy provision of the Fifth Amendment, be also tried for the crime of assassination under the penal code of the Philippines in a court of the province of Iloilo, the facts underlying the two charges being the same, i. <?., in each instance the defendant was charged with the killing of the same two Filipinos. It was suggested, as against the plea of double jeopardy, that the defendant had committed two distinct offenses, one against military law and discipline, the other against the civil law, and that a trial for either offense .is no bar to a trial for the other. The Supreme Court held to the contrary, resting its decision: “upon the broad ground that the same acts constituting a crime against the United States cannot, after the acqttittal or conviction of the' accused in a court of competent jurisdiction, be made the basis of a second trial of the accused for that crime in the same or in another court, civil or military, of the same government.” [206 U.S. 333, at page 352, 27 S.Ct. 749, 754, 51 L.Ed. 1084, 11 Ann.Cas. 640.] This case is not determinative of the question here; it is distinguishable for the reason that identical evidence would have supported a conviction upon either of the charges. In Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 422, 55 L.Ed. 489, the defendant, who, under a Manila ordinance, had been convicted of behaving in a drunken and boisterous manner in a public place open to public view, was held not to have been put twice in jeopardy by a subsequent trial for outraging and insulting a public official by word of mouth and in his presence contrary to a provision of the penal code of the Philippine Islands penalizing such conduct, the acts and words of the accused being in each case the same. The Court said: “It is to be observed that the protection intended and specifically given [by the double jeopardy clause of the Fifth Amendment] is against second jeopardy for the same offense. The question, therefore, is, Are the offenses charged, and of which a conviction has been had in the municipal court and in the Court of First Instance, identical. An examination of the ordinance shows that the gist of the offense under it was behaving in an indecent manner in a public place, open to public view. It was not necessary to charge or prove under the municipal ordinance any outrage, insult, or threat to a public official or agent of the authorities. The charge contained in the record shows that under the municipal ordinance the plaintiff in error was charged with wilfully and unlawfully, in a public street car and in the presence of numerous persons, including ladies, conducting himself in a reckless, indecent and discourteous manner. “It is true that the acts and words of the accused set forth in both charges are the same; but in the second case it was charged, as was essential to conviction, that the misbehavior in deed and words was addressed to a public official. In this view we are of opinion that while the transaction charged is the same in each case, the offenses are different. This was the view taken in Morey v. Commonwealth, 108 Mass. 433, in which the Supreme Judicial Court of Massachusetts, speaking by Judge Gray, held: “ ‘ A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’ ” [220 U.S. 338, at page 341, 342, 31 S.Ct. 421, 422, 55 L.Ed. 489.] Again, in Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153, the defendant pleaded guilty to an indictment containing two counts, the first of which, under Section 192 of the 'penal code (18 U.S.C.A. § 315), charged the unlawful and forcible breaking into and entering a post office building with the intent to commit larceny, and the second of which charged under Section 190 (18 U.S.C.A. § 313) that the defendant at the same time and place unlawfully and knowingly stole, took and conveyed away money and property of the United States belonging to the post office department. Sentences were imposed under each count. The acts set forth in the second count were performed in the post office under the burglarious entry charged in the first count. It was asserted that the double jeopardy clause forbade confinement after the expiration of imprisonment under the first count. The Supreme Court rejected this point of view, saying: “this court has settled that the test of identity of offenses is whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make a single offense where two are defined by the statutes.” [237 U.S. 632, at page 641, 35 S.Ct 712, 715, 59 L.Ed. 1153.] These cases control the instant situation. The evidence required to support the conviction of the defendant under the Beverage Control Act is different from that required to support a conviction under the Liquor Taxing Act. Under the Beverage Control Act, i. e., under subparagraph (c) of Section 17 of the Liquor Regulations prescribed thereunder, it would be necessary to prove that the defendant transported the liquor in question without having in his possession a bill or memorandum from the seller to the purchaser, and also that the defendant was transporting in excess of 12 quarts of the liquor; but to support a conviction under the Liquor Taxing Act, it would not be necessary to make any showing as to the quantity of liquor, and it would be necessary to prove that there was not affixed to the container of the liquor the required revenue stamp. III. Are the sentences imposed upon' the appellant under the Indeterminate Sentence Act void? (a) Is that Act applicable to persons convicted in the District of Columbia of offenses defined in the general laws of the United States? Appellant asserts that it is applicable only to persons convicted of crimes defined in the District of Columbia Code. There can be no doubt that Congress intended the Act to be applicable to persons convicted in the District of Columbia of crimes against the general laws of the United States. As set forth above, Section 3 provides: “That hereafter, in imposing sentence on a person convicted in the District of Columbia of a felony, the justice or judge of the court imposing such sentence shall * * * ” impose the same in indeterminate form as further stipulated in the Section. This language is all inclusive, not restrictive. Moreover, if the appellant’s view is taken, those prisoners convicted in the District of Columbia of violating general criminal laws of the United States are left without parole privileges because, as above appears under Section 9 of the Indeterminate Sentence Act, all of the powers of the Federal Parole Board under the authority of the Act of Congress approved June 25, 1910, “over prisoners confined in the penal institutions of the District of Columbia shall cease and determine,” and are “transferred to and vested in” the Board of Indeterminate Sentence and Parole created by the Indeterminate Sentence Act. Even if theo statute were ambiguous, we could hardly hold that Congress intended such a hiatus. (b) Is the Indeterminate Sentence Act unconstitutional as a deprivation of liberty without due process of law contrary to the Fifth Amendment, and also as violative of that clause of the Fourth Amendment providing that “no warrants shall issue, but upon probable cause, supported by oath or affirmation * * and also as delegating judicial power to the executive branch of the Government? The Fifth Amendment: Congress has plenary and exclusive power to legislate for the District of Columbia. Clause 17 of Section 8 of Article 1 of the Constitution extends to Congress the power “to exercise exclusive legislation in all cases whatsoever over” the District of Columbia. The United States Supreme Court has in a number of instances recognized this power of Congress. Wight v. Davidson, 181 U.S. 371, 21 S.Ct. 616, 45 L.Ed. 900; Parsons v. District of Columbia, 170 U.S. 45, 18 S.Ct. 521, 524, 42 L.Ed. 943; Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170. In Parsons v. District of Columbia, wherein a local assessment statute was held valid, the Court said: “The legislation in question in the present case is that of the Congress of the United States, and must be considered in the light of the conclusion, so often announced by this court, that the United States possess complete jurisdiction, both of a political and municipal nature, over the District of Columbia.” [170 U.S. 45, at page 52, 18 S.Ct. 521, 42 L.Ed. 943.] In legislating for the District of Columbia, Congress acts with substantially the powers that a state legislature has in legislating for a state. Congress “has the entire control over the District of Columbia for every purpose of government, national or local. It may exercise within the District all legislative powers that the legislature of a State might exercise within the State * * * so long as it does not contravene any provision of the Constitution of the United States.” Capital Traction Company v. Hof, 174 U.S. 1, 5, 19 S.Ct. 580, 582, 43 L.Ed. 873. See .also District of Columbia v. Kraft, 35 App.D.C. 253, 30 L.R.A.(N.S.) 957. It thus follows that, apart from constitutional limitations later to be mentioned applicable to the legislation itself, it was within the power of Congress to pass the Indeterminate Sentence. Act, although it applies only to offenders against the Liquor Taxing Act who are convicted in the District of Columbia and not to offenders against such Act who are convicted outside of the District of Columbia. Within its plenary power to legislate for the District of Columbia, Congress is, of course, subject to all-of the constitutional limitations upon the exercise of Federal power, including the Fifth Amendment. This -is recognized in Capital Traction Company v. Hof, and District of Columbia v. Kraft, supra. The Fifth Amendment as applied to the District of Columbia implies equal protection of the laws. Lappin v. District of Columbia, 22 App.D.C. 68. But equal protection of the laws means merely that a law must deal alike with all of a given class within the jurisdiction to which the law is applicable. Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U.S. 150, 17 S.Ct. 255, 41 L.Ed. 666; Ohio ex rel. Lloyd v. Dollison, 194 U.S. 445, 24 S.Ct. 703, 48 L.Ed. 1062; Lappin v. District of Columbia, supra. The Indeterminate Sentence Act does deal alike with all of the class to which, within the District of Columbia, the law applies, to wit, persons convicted of a felony. The theory of the appellant seems to be that he, as one convicted of a felony in the District of Columbia, is entitled to be sentenced in the same manner as if he had been convicted of the same felony outside of the District of Columbia, that is to say, he points out that had he been convicted outside the District of Columbia of violating the Liquor Taxing Act, he would have received a straight sentence and not an indeterminate sentence. Even if — contrary to what has been said above — this were in the abstract a proper ground of complaint, the appellant in the instant situation has shown no concrete injury. As to the sentences themselves, the two concurrent sentences imposed as a result of the Indeterminate Sentence Act involved a maximum of three years and a minimum of one. What might have been imposed upon the appellant had the Indeterminate Sentence Act not been applicable to him, is a speculative question; but he could, according to the penalty provisions of the Liquor Taxing Act, have been subjected to a fine not exceeding $1,000 or to imprisonment at hard labor not exceeding five years, or to both. See Title 2, § 207 (26 U.S.C.A. § 1152g), supra. As to the appellant’s parole privileges, under the Indeterminate Sentence Act he is eligible for parole after serving the minimum sentence imposed, in this case one year. Indeterminate Sentence Act, § 3, supra. If sentenced under the Liquor Taxing Act, irrespective of the Indeterminate Sentence Act, the appellant would not have been eligible for parole until he had served one-third of the straight sentence imposed. See Act June 25, 1910, c. 387, § 1, 36 Stat. 819, as amended by Act of January 23, 1913, c. 9, 37 Stat. 650 (18 U.S.C.A. § 714). It is again speculative to say what this might have been. But had it been the maximum of five years, his parole privileges would not have arisen until twenty months had been served. It is suggested by the appellant that with respect to the lesser of the two concurrent sentences, the one for not less than one year nor more than fifteen months, he is prejudiced in his parole privileges compared with those to which he would have been eligible had he received a straight sentence of fifteen months; that is to say, appellant points out that under the sentence of one year to fifteen months, he is eligible for parole only at the expiration of the minimum of the one year, whereas, had he been sentenced under a straight sentence of fifteen months, he would have been eligible at the end of one-third thereof, or five months. This asserted injury is theoretical only. The lesser of the two sentences imposed has, because it is concurrent with the greater, no practical effect except under the contingency of the greater being void, and there is no contention here by the appellant that as between the two sentences the greater is void. As to the appellant’s good conduct rights, appellant asserts that under his sentences imposed by virtue of the Indeterminate Sentence Act, he will be deprived of good conduct deductions. These arise under the Act of March 3, 1875, c. 145, § 1, 18 Stat. 479, as amended by the Act of March 3, 1891, c. 529, § 8, 26 Stat. 840, as amended by the Act of June 21, 1902, c. 1140, § 1, 32 Stat. 397 (18 U.S.C.A. § 710), and under the Act of May 27, 1930, c. 340, § 8, 46 Stat. 392 (18 U.S.C.A. § 744h). It is not made apparent that anything in the Indeterminate Sentence Act forbids offenders upon whom sentences are imposed in indeterminate form to receive good conduct deductions. It is this Act which is under attack here, not the good conduct statutes. It may be proper to add, however, that it is not made apparent that anything in the good conduct deduction statutes themselves makes them inapplicable to offenders who have been subjected to sentences in indeterminate form. The Fourth Amendment: Appellant asserts that Section 5, supra, of the Indeterminate Sentence Act, providing for the issuance of warrants by the Parole Board or a member thereof for the retaking of prisoners who have violated parole is unconstitutional as violative of the provision of the Fourth Amendment that “no warrants shall issue but upon probable cause supported by oath or affirmation,” for lack of provision for oath or affirmation of probable cause for the retaking of the prisoner. Appellant is not in a position to raise this point. He has not been paroled and retaken on warrant. “Not a law alone, but a law and its incidence, are necessary to a justiciable right or injury.” Clark v. Kansas City, 176 U.S. 114, 118, 20 S.Ct. 284, 286, 44 L.Ed. 392. Delegation of judicial power to the executive branch of the Government: Appellant asserts that the powers of the Board of Indeterminate Sentence and Parole are judicial in nature and that no standards have been set up for their exercise. We think this point without merit. It is true that the Parole Board is given wide powers of discretion, but essentially. its function is administrative, not judicial. It has to do with the treatment of prisoners after sentence. In accordance with the foregoing, the judgment of the trial court discharging the writ of habeás corpus and dismissing the petition upon which the writ had been issued is Affirmed. Or later, if on or before twenty days the Secretary of the Treasury proclaimed it impracticable to put the Act into effect on the thirtieth day, and specified a later date. Section 3 of the Act further read: “Provided, however, That this Act shall not abrogate the power of the justice or judge to sentence a convicted prisoner to the death penalty as now or hereafter may be provided by law: Provided further, That where a justice or a judge of the Supreme Court of the District of Columbia has imposed a life sentence on the prisoner convicted in the District of Columbia, said prisoner serving such sentence shall be eligible to parole as herein provided at any time after having served fifteen years of his life’s sentence.” Section 9 of the Act further stated: “Provided, however, That'in the case of a prisoner convicted of felony committed prior to the effective date of this Act, and in the case of any prisoner convicted of misdemeanor when the aggregate sentence imposed is in excess of one year, said Board of Indeterminate Sentence and Parole may parole said prisoner, under the provisions of this Act, after said prisoner has served one-fifth of the sentence imposed.” The provision empowers Congress: “To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States * * 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_source	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. The Honorable Robert MANDEL, Appellant, v. The Honorable: Ralph J. ERICKSTAD; William J. Paulson; Vernon R. Pederson; Paul M. Sand and Gerald W. Vande Walle, all in their capacity as Justices of the North Dakota Supreme Court, Appellees. No. 80-1662. United States Court of Appeals, Eighth Circuit. Submitted April 15, 1981. Decided May 13, 1981. John 0. Holm, Dickinson, N. D., for appellant. Allen I. Olson, Atty. Gen., Rick D. Johnson, Sol. (argued), Murray G. Sagsveen, Sp. Asst. Atty. Gen., Bismarck, N. D., for appellees. Before LAY, Chief Judge, ROSS, Circuit Judge, and ROBINSON, Senior District Judge. Richard E. Robinson, Senior District Judge, District of Nebraska, sitting by designation. LAY, Chief Judge. Robert Mandel, a candidate for North Dakota district court judge, brought this action under section 1983 of title 42 challenging the validity of Administrative Rule 7-1980 promulgated by the North Dakota Supreme Court. Judge Mandel sought injunctive and declaratory relief against the individual justices- of the North Dakota Supreme Court and the North Dakota Secretary of State, Ben Meier. The district court, the Honorable Bruce M. Van Sickle presiding, dismissed the action holding that the justices promulgated Administrative Rule 7-1980 in their legislative capacity and, therefore, are immune from suit brought under section 1983. See Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980). As against the Secretary of State, the district court held that Judge Mandel’s allegation did not constitute a constitutional violation and furthermore, was factually in error. We find that Judge Mandel’s allegations do not allege any denial of a federal statutory or constitutional right and, therefore, we affirm the district court. On May 16, 1980, the North Dakota Supreme Court adopted Administrative Rule 7-1980 (Emergency) which changed the manner in which district court judges in the state’s seven judicial districts are elected to office. The rule creates specific judgeships within each judicial district for which persons seeking office must declare themselves candidates. Candidates run only against those individuals also seeking a particular judgeship. Prior to this rule change, all candidates for district judge within each district ran against all other candidates, with the top vote-getters taking office. No notice or opportunity to be heard was afforded anyone prior to adoption of the emergency rule. However, on May 16, 1980, the clerk of the North Dakota Supreme Court mailed notice of a hearing to be held on June 3 concerning permanent adoption of Administrative Rule 7-1980 (Emergency). A hearing was held on June 3 and interested persons, including Judge Mandel, were heard by the supreme court. The court permanently adopted Administrative Rule 7-1980 on June 4, 1980. On June 19,1980, Secretary of State Meier prepared and sent to all county auditors a notice of all offices to be represented on the ballot for the primary election which was held on September 2,1980. This notice was prepared pursuant to the requirements of Administrative Rule 7-1980. In passing this rule change, the North Dakota Supreme Court relied on sections 87 and 93 of the North Dakota Constitution as authority for its action. Section 87 provides: The supreme court shall have authority to promulgate rules of procedure, including appellate procedure, to be followed by all the courts of this state; and, unless otherwise provided by law, to promulgate rules and regulations for the admission to practice, conduct, disciplining, and disbarment of attorneys at law. The chief justice shall be the administrative head of the unified judicial system. He may assign judges, including retired judges, for temporary duty in any court or district under such rules and regulations as may be promulgated by the supreme court. The chief justice shall appoint a court administrator for the unified judicial system. Unless otherwise provided by law, the powers, duties, qualifications, and terms of office of the court administrator, and other court officials, shall be as provided by rules of the court. Section 93 provides: The state shall be divided into judicial districts by order of the supreme court. In each district, one or more judges, as provided by law, shall be chosen by the electors of the district. The term of office shall be six years, and a district judge shall hold office until his successor is duly qualified. The compensation of district judges shall be fixed by law, but the compensation of any district judge shall not be diminished during his term of office. To determine whether a complaint states a claim upon which relief can be granted, the pleadings must be viewed in the light most favorable to the plaintiff, resolving all doubts in favor of the sufficiency of the complaint. Where conclusory allegations are made, the court will measure the adequacy of the complaint only on the factual claims actually made. Wilson v. Lincoln Redevelopment Corp., 488 F.2d 339, 341 (8th Cir. 1973). Judge Mandel’s complaint makes several conclusory allegations of violations of the federal constitution. However, the thrust of the factual allegations in his complaint is that the North Dakota Supreme Court did not have the authority under the constitution or laws of North Dakota to promulgate Administrative Rule 7-1980. That question is one of state law. The final arbiter of North Dakota law is the Supreme Court of North Dakota and the federal courts are bound by its interpretation of state law even though it relates to the exercise of the court’s own powers. We find that Judge Mandel’s complaint fails to assert sufficient facts to make out a right to relief under the Constitution or laws of the United States. The judgment of the district court is affirmed. . The clerk stated by affidavit that notice was sent to the following individuals: 1. Executive Director and Board of Directors of the State Bar Association of North Dakota; 2. Presiding judges and other district court judges; 3. Chairmen of various standing committees of the North Dakota Supreme Court; 4. Director of the Legislative Council; 5. Associated Press; 6. Clerks of district courts; 7. Judges of county courts with increased jurisdiction; 8. Clerks of county courts with increased jurisdiction; 9. Attorney General; 10. Executive Committee of the North Dakota Trial Lawyers Association; and 11. President of the Court Reporters’ Association. Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:
sc_petitionerstate	06	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. CARLESON, DIRECTOR, DEPARTMENT OF SOCIAL WELFARE, et al. v. REMILLARD et al. No. 70-250. Argued April 10, 1972 Decided June 7, 1972 Douglas, J., delivered the opinion for a unanimous Court. Burger, C. J., filed a concurring opinion, post, p. 604. Jay S. Linderman, Deputy Attorney General of California, argued the cause for appellants. With him on the brief was Evelle J. Younger, Attorney General. Carmen L. Massey, by appointment of the Court, 405 U. S. 951, argued the cause and filed a brief for appellees pro hac vice. Solicitor General Griswold and Richard B. Stone filed a brief for the United States as amicus curiae urging reversal. Mr. Justice Douglas delivered the opinion of the Court. Appellees are mother and child. The husband enlisted in the United States Army and served in Vietnam. The mother applied for Aid to Families With Dependent Children (AFDC) benefits at a time when the amount of the monthly allotment she received by virtue of her husband's military service was less than her “need” as computed by the California agency and less than the monthly AFDC grant an adult with one child receives in California. She was denied relief. Although the Social Security Act, 42 U. S. C. §§ 301-1394, grants aid to families with “dependent children,” and includes in the term “dependent child” one “who has been deprived of parental support or care by reason of . . . continued absence from the home,” 42 U. S. C. § 606 (a), California construed “continued absence” as not including military absence. It is unquestioned that her child is in fact “needy.” When the husband's allotment check was stopped, ap-pellee again applied for AFDC benefits. She again was denied the benefits, this time because California had adopted a regulation which specifically prohibited the payment of AFDC benefits to needy families where the absence of a parent was due to military service. This action is a class action seeking a declaration of the invalidity of the regulation and an injunction restraining its enforcement on the ground that it conflicts with the Social Security Act and denies appellees the Fourteenth Amendment rights of due process and equal protection. “When one parent is physically absent from the home on a temporary basis. Examples are visits, trips made in connection with current or prospective employment, active duty in the Armed Services.” A three-judge District Court was convened and by a divided vote granted the relief sought. 325 F. Supp. 1272. The case is here by appeal. 28 U. S. C. §§ 1253, 2101 (b). We noted probable jurisdiction, 404 U. S. 1013. Section 402 (a) (10) of the Social Security Act, 42 U. S. C. § 602 (a) (10), places on each State participating in the AFDC program the requirement that “aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals.” “Eligibility,” so defined, must be measured by federal standards. King v. Smith, 392 U. S. 309. There, we were faced with an Alabama regulation which defined a mother’s paramour as a “parent” for § 606 (a)(1) purposes, thus permitting the State to deny AFDC benefits to needy dependent children on the theory that there was no parent who was continually absent from the home. We held that Congress had defined “parent” as a breadwinner who was legally obligated to support his children, and that Alabama was precluded from altering that federal standard. The importance of our holding was stressed in Townsend v. Swank, 404 U. S. 282, 286: “King v. Smith establishes that, at least in the absence of congressional authorization for the exclusion clearly evidenced from the Social Security Act or its legislative history, a state eligibility standard that excludes persons eligible for assistance under federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy Clause.” (Emphasis supplied.) In Townsend, we also expressly disapproved the Department of Health, Education, and Welfare (HEW) policy which permitted States to vary eligibility requirements from the federal standards without express or clearly implied congressional authorization. Ibid. Townsend involved § 406 (a) (2) (B) of the Act, 42 U. S. C. §606 (a)(2)(B), which includes in the definition of “dependent children” those “under the age of twenty-one and (as determined by the State in accordance with standards prescribed by the Secretary [of HEW]) a student regularly attending a school, college, or university, or regularly attending a course of vocational or technical training designed to fit him for gainful employment.” Illinois had defined AFDC eligible dependent children to include 18-20-year-old high school or vocational school children but not children of the same age group attending college. We held that § 606 (a) (2) (B) precluded that classification because it varied from the federal standard for needy dependent children. Involved in the present controversy is another eligibility criterion for federal matching funds set forth in the Act, namely the “continued absence” of a parent from the home. If California’s definition conflicts with the federal criterion then it, too, is invalid under the Supremacy Clause. HEW’s regulations for federal matching funds provide that: “Continued absence of the parent from the home constitutes the reason for deprivation of parental support or care when the parent is out of the home, the nature of the absence is such as either to interrupt or to terminate the parent’s functioning as a provider of maintenance, physical care, or guidance for the child, and the known or indefinite duration of the absence precludes counting on the parent’s performance of his function in planning for the present support or care of the child. If these conditions exist, the parent may be absent for any reason, and he may have left only recently or some time previously.” The Solicitor General advises us that although HEW reads the term “continued absence” to permit the payment of federal matching funds to families where the parental absence is due to military service, it has approved state plans under which families in this category are not eligible for AFDC benefits. HEW has included “service in the armed forces or other military service” as an example of a situation falling under the above definition of “continued absence.” HEW Handbook of Public Assistance Administration, pt. IV, § 3422.2. Our difficulty with that position is that “continued absence from the home” accurately describes a parent on active military duty. The House Report speaks of children “in families lacking a father’s support,” H. R. Rep. No. 615, 74th Cong., 1st Sess., 10, and the Senate Report refers to “children in families which have been deprived of a father’s support.” S. Rep. No. 628, 74th Cong., 1st Sess., 17. While the Senate Report noted that “[t]hese are principally families with female heads who are widowed, divorced, or deserted,” ibid., it was not stated or implied that eligibility by virtue of a parent’s “continued absence” was limited to cases of divorce or desertion. We agree that “continued absence” connotes, as HEW says, that “the parent may be absent for any reason.” We search the Act in vain, moreover, for any authority to make “continued absence” into an accordion-like concept, applicable to some parents because of “continued absence” but not to others. The presence in the home of the parent who has the legal obligation to support is the key to the AFDC program, King v. Smith, 392 U. S., at 327; Lewis v. Martin, 397 U. S. 552, 559. Congress looked to “work relief” programs and “the revival of private industry” to help the parent find the work needed to support the family. S. Rep. No. 628, supra, at 17, and the AFDC program was designed to meet a need unmet by depression-era programs aimed at providing work for breadwinners. King v. Smith, supra, at 328. That need was the protection of children in homes without such a breadwinner. Ibid. It is clear that “military orphans” are in this category, for, as stated by the Supreme Court of Washington, a man in the military service “has little control over his family's economic destiny. He has no labor union or other agency to look to as a means of persuading his employer to pay him a living wage. He is without access to collective bargaining or any negotiating forum or other means of economic persuasion, or even the informal but concerted support of his fellow employees. He cannot quit his job and seek a better paying one. . . . [TJhere is no action he could lawfully take to make his earnings adequate while putting in full time on his job. His was a kind of involuntary employment where legally he could do virtually nothing to improve the economic welfare of his family.” Kennedy v. Dept. of Public Assistance, 79 Wash. 2d 728, 732-733, 489 P. 2d 154, 157. Stoddard v. Fisher, 330 F. Supp. 566, held a Maine regulation invalid under the Supremacy Clause which denied AFDC aid where the father was continually absent because of his military service. Judge Coffin said: “We cannot help but note the irony of a result which would deny assistance to the family of a man who finds that family disqualified from receiving AFDC on the ground that he has removed himself from the possibility of receiving public work relief by voluntarily undertaking, for inadequate compensation, the defense of his country.” Id., at 571 n. 8. We cannot assume here, anymore than we could in King v. Smith, supra, that while Congress “intended to provide programs for the economic security and protection of all children,” it also “intended arbitrarily to leave one class of destitute children entirely without meaningful protection.” 392 U. S., at 330. We are especially confident Congress could not have designed an Act leaving uncared for an entire class who became “needy children” because their fathers were in the Armed Services defending their country. We hold that there is no congressional authorization for States to exclude these so-called military orphans from AFDC benefits. Accordingly we affirm the judgment of the three-judge court. Affirmed. Calif. Dept. Soc. Welfare Reg. EAS § 42-350.11 provides that “continued absence” does not exist: 45 CFR §233.90 (c)(1) (iii). The present record reveals that 22 States and the District of Columbia do furnish AFDC benefits to needy families of servicemen, while 19 States and Puerto Rico do not. 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:
songer_respond2_1_3	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. WHITLOCK & ASSOCIATES, INC., and L. E. Whitlock, Appellants, v. George AARON, Jack Miller, Houston B. Hill, J. D. Kennedy and Frank C. Ryburn, Appellees. No. 8688. United States Court of Appeals Tenth Circuit. Aug. 30, 1967. Rehearing Denied Oct. 18, 1967. Emmet A. Blaes, of Jochems, Sargent & Blaes, Wichita, Kan. (James A. Kilgore, of Kilgore & Kilgore, Dallas, Tex., and Bruce W. Zuercher, Wichita, Kan., with him on the brief), for appellants. Harold Hoffman, of Wynne, Jaffe & Tinsley, Dallas, Tex. (Robert C. Foulston and Malcolm Miller, of Foulston, Siefkin, Powers, Smith & Eberhardt, Wichita, Kan., and Morris I. Jaffe, Dallas, Tex., with him on the brief), for appellees. Before MURRAH, Chief Judge, and PICKETT and BREITENSTEIN, Circuit Judges. PICKETT, Circuit Judge. This action arose out of an alleged breach of a Texas contract wherein appellants agreed to purchase from the appellees 1513 acres of land known as the “Jenkins tract”, together with an option held by the sellers to acquire an additional 1320 acres referred to as the “Schenkel tract”, all located near and annexed to the city of Dallas, Texas. The property was principally suitable for the production of sand and gravel. Prior to the production of sand and gravel from the property, it was necessary that a permit from the city of Dallas be obtained, and the contract of purchase contained this provision : “That with respect to the respective tracts, Jenkins Tract Sellers and Schenkel Option Sellers agree to obtain the necessary governmental permits allowing licensing and permitting Purchasers to mine, develop and exploit the gravel, sand, dirt and other minerals in said tracts, it being expressly understood that Purchasers will need said permits at least 30 days prior to the closing of this transaction in order to obtain the financing for said purchase. In the event the obtaining of such permits is delayed for any reason, all parties hereto agree that the closing date of this transaction as hereinafter set forth shall be extended until such permits are obtained, but not beyond an extension of sixty (60) days.” The contract was executed on March 22, 1963, and by agreement the parties fixed July 21, 1963 as the closing date. The expiration date of the Schenkel option was midnight July 15, 1963. During the afternoon of July 15, Whitlock, who was President of appellant Whitlock & Associates, Inc., notified the sellers that the purchasers were rescinding the contract for the reason that the required mining permit had not been obtained. At approximately the same time on July 15, the Dallas City Council adopted a resolution directing the issuance of the permit, with certain limitations. The trial court held that the sellers had complied with the contract provisions and that the purchasers’ refusal to perform was a breach of the contract, which entitled sellers to a judgment for the full amount of their damages, although it was contended that the agreement contained a provision for liquidated damages. Judgment was entered accordingly. On appeal it is contended that the sellers had failed to comply with the contract in a number of respects, but the record discloses that the primary reason for the withdrawal was the failure to obtain a mining permit satisfactory to those who were to finance the purchasers. At no time prior to the purchasers’ withdrawal from the contract had any objection been made to the property title, and the evidence was without conflict that the sellers could have delivered a good and marketable title to the property. The written notices gave only the lack of an acceptable sand and gravel permit on the Sehenkel tract as reason for the abandonment of the contract. No question is raised as to compliance or non-compliance with the contract provisions insofar as they pertain to the Jenkins tract. Whitlock testified that “Even though the contract provided we should have the permit, if we could have arranged the proper financing, we would have gone ahead with the deal right up to the last day.” The trial developed an extensive record, but the facts relating to the application to the Dallas authorities for a mining permit on the Sehenkel tract are uncomplicated and not in material dispute. In 1962, after the sellers had acquired the Sehenkel option, an application was made to the Dallas City Council for a mining permit on a portion of that property. The council was favorably disposed to approve the application until objections were raised by residents of a nearby area. It was feared that the gravel removal would adversely affect the underground water supply of this area. After numerous meetings with residents of the area in question and with city authorities, it was indicated that the permit would be granted only upon a deposit with the city of $42,000 by the applicants, which was to be used to pay the cost of installing pipe lines for the delivery of city water to the complainants. Action on the application was delayed while unsuccessful attempts were made to avoid the cash deposit requirement. Whitlock was fully aware of this difficulty and testified that he had offered the services of his attorney to assist in arriving at a solution. On July 8, 1963, the City Council approved the application for a special permit and referred the matter to the City Attorney with instructions to prepare the necessary resolution. When the expiration date of the Sehenkel option was near, the sellers were concerned as to whether the purchasers intended to consummate the transaction. Whitlock, on numerous occasions, advised them that he had arranged for the financing and was ready to close prior to the expiration of the Sehenkel option. All the interested parties, including representatives of those who were to finance the purchasers, were in Dallas on July 15. All of them knew that the Schenkel option would expire at midnight on that date. All of them knew that the entire deal would collapse if the option were not exercised. The contract required the purchasers to “exercise their right of purchase of the Schenkel Tract under the option to so purchase. * * * ” Between 9 and 10 A.M. on July 15, the purchasers advised the sellers to notify Schenkel that the option would be exercised on that day. There was no indication that the purchasers did not intend to perform until mid-afternoon of that day, when notice of withdrawal was served on the sellers, giving as a reason the failure to obtain a satisfactory mining permit. The resolution which had been adopted by the Dallas City Council directed that upon the deposit of $42,-000.00 a 5-year permit be issued with the right of renewal in the discretion of the council. The resolution further provided : “Section 6. At the cessation of the mining operation or as soon thereafter as is reasonably practicable, the applicants agree that the excavations that shall have been made by reason of the mining operations will be refilled with 'sanitary fill' to conform with the standard specifications as certified by the Public Works Director of the City of Dallas. If for any reason the sanitary fill cannot be negotiated with the City, then the applicants or their assigns shall fill or cause to be filled the excavations with residual overburden, so as to restore the property as near as possible to its original status and condition.” The uncontradicted testimony is that the sellers were ready and able to pay the $42,000.00 deposit on July 15, 1963, and were prepared to furnish the required title insurance. The Connecticut Mutual Life Insurance Company had committed itself to finance the purchasers, provided that the production contract between the purchasers and Texas Industries, Inc. were executed. The record is clear that on the final day it was Texas Industries which became dissatisfied with the terms of the permit and determined not to enter into the production contract under a 5-year permit without the right to automatically renew it and without a separate contract for the City of Dallas to refill the excavations with sanitary fill. The contract did not provide that the permit should be for any particular time, or that sellers would acquire a contract with the City of Dallas to fill the excavations created by the removal of the gravel with sanitary fill, or that the permit would not require such excavations to be refilled by the permittee or its assigns. We agree with the trial court that the 5-year permit with the discretionary right of renewal is a governmental permit as contemplated by the contract. While the permit is for the purpose of mining only sand and gravel from the property, with no reference to “dirt or other minerals” as stated in the contract, there is no evidence that the permittee could not remove dirt and other minerals if any were found on the property. In any event, objection on this ground is raised for the first time on appeal, and comes too late. The purchasers attempted to establish that during negotiations to obtain the necessary financing after the execution of the contract, Aaron, one of the sellers, had stated that he could obtain a 10-year permit from the city and that the city would be desirous of giving the purchasers a sanitary fill contract for the Schenkel tract. Aaron denied making these statements. In any event, the contract contains no such requirements, and under Texas law “A contract must be interpreted according to the intention of the parties at the time it was made and not in the light of events occurring thereafter.” McCain v. Giersch, 5 Cir., 112 F. 2d 70, 72; see also Davidson v. Von Lingen, 113 U.S. 40, 5 S.Ct. 346, 28 L.Ed. 885; Portland Gasoline Co. v. Superior Marketing Co., 150 Tex. 533, 243 S.W. 2d 823; Burtis v. Butler Bros., Tex.Civ. App., 228 S.W.2d 938; Zephyr Oil Co. v. Cockburn, Tex.Civ.App., 215 S.W.2d 647; Gardner v. Smith, Tex.Civ.App., 168 S.W.2d 278. There was evidence that after the signing of the contract, the purchasers would have been satisfied with a 5-year permit, and it was not until Texas Industries, at the very last moment, concluded that it could not live with such a short period, that the 10-year provision was demanded. We agree with the trial court’s determination that the term “permit”, as used in the contract, should not be construed as requiring a permit term of not less than 10 years. Nor are the purchasers in a position seriously to assert as grounds for their withdrawal the contract provision relating to the need of a permit 30 days prior to the closing date. The trial court concluded, and we agree, that the purchasers, by representing their willingness to proceed with the deal until a few hours before the expiration of the option, waived any rights they may have had relative to the 30-day provision. The contract provided: “* * * Should the Purchasers fail to consummate this Contract as specified for any reason, except title defects, [or failure of the sellers to comply with the requirements herein stated,] Sellers shall have the right to retain the earnest money payments made to them as liquidated damages for the breach of this contract and may pursue their rights for specific performance, [it being understood that said Fifty Thousand Dollars ($50,000.00) would be a credit against any suit for specific performance of said contract.] The court awarded damages in the sum of $215,610.00. It is contended that the foregoing provision limited the recovery to the $50,000.00 earnest money payment in case of a breach by the purchasers. The trial court found that the $50,000.00 provision was not a reasonable forecast of the damages to be expected from a breach by the purchasers and was therefore not enforceable under Texas law. A contract provision for liquidated damages will be enforced in Texas only if there is a reasonable approximation between the stipulated sums and the actual loss. Stewart v. Basey, Tex.Civ.App., 241 S.W.2d 353, aff’d 150 Tex. 666, 245 S.W.2d 484; Kelly v. Cochran County, Tex.Civ.App., 50 S.W.2d 848, rev’d on other grounds, 125 Tex. 424, 82 S.W.2d 641; Kelsey v. Blackman, Tex.Civ.App., 293 S.W. 199. “Notwithstanding a sum mentioned in a contract be called liquidated damages, the courts will not so treat it, unless it bears such proportion to the actual damages that it may reasonably be presumed to have been arrived at upon a fair estimate by the parties of the compensation to be paid for the prospective loss.” Kelsey v. Blackman, supra at 202. In determining whether to enforce a contract provision for liquidated damages the courts are to consider “the nature of the contract, its terms, the consequences that would arise from its breach and the circumstances of the transaction.” Stewart v. Basey, supra, 241 S.W. 2d at 356. See also, Palestine Ice, Fuel & Gin Co. v. Walter Connally & Co., Tex. Civ.App., 148 S.W. 1109. The contract price for the Schenkel option was $354,-920.00. The court determined that it was essentially worthless at the time of the breach due to the short time remaining for the sellers to take advantage of. it. The contract price for the Jenkins tract was $1,286,050.00. The court determined that this property was worth $1,210,400.00 at the time of the breach. We cannot say that the court’s finding that as a result of the breach the sellers were damaged in the net sum of $164,-960.00 for loss of the Schenkel option, and $50,650.00 for the failure to purchase the Jenkins tract, is clearly erroneous ; nor can we say that under the circumstances the court’s finding that the $50,000.00 provision for stipulated damages was not a reasonable forecast of the actual damages suffered was clearly erroneous. Although the purchasers claim that the sellers were in default of other requirements of the contract which justified the rescission, the case was tried primarily on the issue of the sufficiency of the mining permit granted for the Schenkel tract. The trial court, in its “Conclusions of Fact and Law” stated: "IV. As a matter of fact and law, defendant Whitlock, in withdrawing from the contract, relied solely on his opinion that plaintiffs had not furnished a permit on the Schenkel Tract. Defendants waived all other possible justifications for withdrawing from the contract. And we note in passing that defendants with admirable candor do not seriously assert any other ground for withdrawing.” We have given consideration to these contentions and have found them to be without merit. Affirmed. . The appellants are referred to herein as “purchasers”; the appellees as “sellers.’ . The terms and provisions of such permits were not standard, but were ordinarily “tailored to the particular situation presented by the location of the property.” They were usually referred to in city proceedings as “Occupation Certificates.” . Referring to a telephone conversation he had with Whitlock on July 11, Hill, one of the sellers, testified: “Then I asked him, I said, ‘Now, Mr. Whitlock, I want to be sure that you are going to be able to close on that date because, you know, the option on the Sehenkel tract expires on midnight, July 15th 1963. And if you don’t go through with it we would have no way of protecting ourselves and no way of taking care of it and should I have anybody trying to stand by as a last resort? He said, ‘You need not be concerned about that. We have this all worked out. All you' have to do is just be down here for the closing.’ This was on July 11, approximately four days before the date that the option was due to expire. It was approximately ten days before the closing date as was extended in writing in the telegram that is an exhibit in this case. At that time Mr. Whitlock did not say anything to the effect that ‘you haven’t got us a gravel permit on the Schenkel tract within thirty days prior to closing and you are required to do that, so just forget about it, the deal is off.’ Prior to that conversation, I tentatively explored the possibilities of having someone stand by in case the Whitlocks didn’t go forward with this thing to the extent that we had inquired of Leonard Whit-lock and his Associates if they were going to be able to go through with it. They had assured us all the way that they already had their financing but that they were trying to get a cheaper financing on the acquisition of this money. It wasn’t a problem of getting the financing on it; it was a problem of getting cheaper financing. After that conversation on July 11, 1963, I did not make any effort to have anyone stand by to exercise the Schenkel Option in case this deal fell through. I was lulled into the feeling of security that everything was all right.” . In a letter written by an attorney for the purchasers on July 15, after relating objectionable features of the action taken by the City of Dallas in authorizing a mining permit on the Schenkel tract, it was stated: “These facts, which were discovered for the first time at approximately 10:30 A.M. today, so increased the burdens of the mining operation as to make it unattractive to Texas Industries, Inc., and they withdrew a proposed contract which would have been most favorable to Whitlock Associates.” Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_two_issues	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there are two issues in the case. By issue we mean 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. Herbert TRAPP, T. A. McGaughey, F. J. Kailer, J. A. Todd, and Vincent Bogart, as the Board of Trustees of the Firemen’s Pension Fund, and Ralph A. Klose, City Treasurer of the City of Wichita, Appellants, v. Peggy J. GOETZ, Appellee. No. 8402. United States Court of Appeals Tenth Circuit. July 29, 1966. Eugene Pirtle and H. Jay Setter, Wichita, Kan. (John Dekker, Wichita, Kan., with them on the brief), for appellants. Harry L. Hobson, Wichita, Kan. (J. Francis Hesse and Stephen M. Blaes, of Joehems, Sargent & Blaes, Wichita, Kan., with him on the brief), for appellee. Before BREITENSTEIN, HILL and SETH, Circuit Judges. SETH, Circuit Judge. Appellee commenced this action in the United States District Court for the District of Kansas by the filing of a complaint which asserted that she was the widow of a member of the Wichita Fire Department, that the Board of Trustees of the Firemen’s Pension Fund had denied her benefits under a Kansas statute relating to firemen’s pensions, and a money judgment was sought. Appellants, the trustees of the pension fund and the city treasurer, in their answer denied that the appellee was entitled to relief, and asserted that the federal court had no jurisdiction. The United States District Judge* who handled the pretrial proceedings overruled the appellants’ assertions as to lack of jurisdiction, found that diversity jurisdiction existed, and found it was not necessary to consider a due process argument of lack of notice and hearing which had been raised by the appellee. The judge further held that the plaintiff had asserted a claim for relief and that she at trial would have to establish the alleged contractual relationship arising under the statute providing for a pension and the breach thereof. The case was thereafter tried to a jury. The trial judge was different from the one who held the pretrial proceedings. He submitted the case to the jury upon two questions for a special verdict. The jury answered one of the questions, but did not answer the other. On the basis of the answer given the trial court entered judgment for the plaintiff. Some consideration of the proceedings which antedated the appellee’s complaint is necessary. The record shows that appellee’s husband, a Wichita fireman, was denied a pension by the appellants which he claimed was due him by reason of a heart condition incurred during the course of his duties. The fireman thereafter sought a writ of mandamus in the state district court, and an order directing payment of his pension. This procedure was followed since there is no express statutory provision for appeal from or review of the action of the board of trustees of the Wichita Firemen’s Pension Fund. The court upheld the action of the board, after a remand with a board rehearing, and from this ruling the fireman took an appeal to the Kansas Supreme Court. The Supreme Court affirmed the district court’s action on June 6, 1964. However, some five months before the Kansas Supreme Court acted on the case, the fireman died. On January 21, 1964, the appellee-widow of the fireman filed her claim with the pension board for a pension as a widow. Thus her claim was filed before the Kansas Supreme Court had acted upon the claim of her husband. The record shows that on March 4, 1964, the board met, and among other matters presented was the application of appellee for a pension. The board minutes recite that the board members had read her application prior to the meeting, but on motion made and seconded it was decided that no action be taken until the state Supreme Court had decided the appeal of appellee’s deceased husband. The appellee was advised by letter of the board’s resolution. The letter stated that the board was not in a position to hold a hearing upon the application, and that it was awaiting the decision of the Supreme Court on the claim of her deceased husband. The record thus shows that the administrative board made no decision on the merits of appellee’s claim. It received the claim, but the minutes of the meeting and the correspondence show that action was deferred until the state Supreme Court had acted. Thus there had been no final determination on the merits. Under this state of facts, a court could not interfere with the administrative proceedings. This action with which we are here concerned was filed in the federal district court before the Kansas Supreme Court had acted; and consequently, the pension board had no opportunity to proceed further. Where a court has the power and authority to consider action of administrative bodies, there must be a reviewable decision of the board, and here there is none. St. Germaine v. Alamo Motor Lines, 252 F.2d 10 (5th Cir.). A federal court cannot undertake functions which are properly those of an administrative agency. Converse v. Commonwealth of Massachusetts, 101 F.2d 48 (2d Cir.). Even if it be considered that there was final action taken by the board, as urged by the appellee, the United States District Court had no power to consider an appeal from the state administrative tribunal. Such a proceeding is not within its statutory jurisdiction. The appellee in her complaint asserted that her application for benefits was denied by the board, and that it continued to refuse to pay. The complaint so asserting denial of relief by the board was in reality an appeal from the board’s action. No such appeal lies to the United States District Court. This issue was considered by the United States Supreme Court in Chicago, R. I. & P. R. R. v. Stude, 346 U.S. 574, 74 S.Ct. 290, 98 L.Ed. 317, which arose in a different manner, but where the same principle was applied. There the Court held that a United States District Court could not review an appeal action taken either administratively or judicially in a state proceeding. The Court there cited Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424, an equitable action where the Court also held in substance that a United States District Court could not be changed into an appellate tribunal. See also General Inv. & Serv. Corp. v. Wichita Water Co., 236 F.2d 464 (10th Cir.). Thus the presence of diversity of citizenship and of the requisite amount in controversy is not always sufficient to provide jurisdiction to a United States District Court where the proceedings originate in the administrative or judicial acts of a state. An appeal from a state administrative board is not a “civil action” as required by 28 U.S.C.A. § 1331 or § 1332. The district courts are, of course, courts of limited jurisdiction and the jurisdictional statutes are closely construed. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194; F & S Construction Co. v. Jensen, 337 F.2d 160 (10th Cir.); Buell v. Sears, Roebuck and Co., 321 F.2d 468 (10th Cir.). If on the other hand the proceedings in the United States District Court were not an appeal, then they were an orginal action there commenced to obtain a pension. Appellee alleges a contractual right, and in oral argument such a right to bring an original action was indicated by appellee. There is however no showing that the Kansas state courts would have any jurisdiction to hear such an original proceeding and so to bypass the administrative agency. If the state court has no such authority the federal district court has none. We so held in Erwin v. Barrow, 217 F.2d 522 (10th Cir.), and Britton v. Dowell, Inc., 237 F.2d 630 (10th Cir.). There is no substance to the due process argument asserted by the appellee as the basis for jurisdiction of the trial court. The record clearly shows that no decision was made on the merits of her application, and all that was done by the board was to defer action. Thus there is no issue of a denial of benefits without notice and hearing because there was no denial. For the reasons hereinabove stated, the case is reversed with directions that the cause be dismissed. Question: Are there two issues in the case? A. no B. yes Answer:
songer_usc1	15	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. FIRST JERSEY SECURITIES, INC., a Corporation of the State of New Jersey, Robert E. Brennan, Joseph Galligan, Jack Mondel, Charles Oehlert, John Dell, Michael Zudonyi, and Anthony Nadino, Respondents, v. George J. BERGEN, Individually and in his official capacity, and National Association of Securities Dealers, Inc., a Corporation of the State of Delaware, Petitioners, and Honorable Vincent P. Biunno, Judge, United States District Court, Nominal Respondent. Nos. 79-1572, 79-1789. United States Court of Appeals, Third Circuit. Argued July 12, 1979. Decided Aug. 29, 1979. Jonathan L. Goldstein (argued), Hellring, Lindeman, Goldstein & Siegel, Newark, N. J., for petitioner George Bergen. Raymond M. Tierney, Jr. (argued), Shanley & Fisher, Newark, N. J., for petitioner National Association of Securities Dealers, Inc. Donald A. Robinson, Ronald J. Riccio (argued), John B. Livelli, Robinson, Wayne & Greenberg, Newark, N. J., for respondents. Before ADAMS, ROSENN, and HIGGIN-BOTHAM, Circuit Judges. OPINION OF THE COURT ROSENN, Circuit Judge. We are presented with a petition for a writ of mandamus, urging us to direct the district court to dismiss a suit for want of subject matter jurisdiction. The suit was filed in the United States District Court for the District of New Jersey, by First Jersey Securities, Inc., and some of its officers and personnel (“First Jersey”), seeking to enjoin the National Association of Securities Dealers, Inc., (NASD) and George J. Bergen, vice president of NASD and District Director for NASD District 12, from proceeding with a disciplinary hearing. The complaint also sought monetary relief. First Jersey requested a preliminary injunction while NASD moved for dismissal of the suit. The district judge denied both motions and retained jurisdiction over the suit. NASD then filed this petition. We stayed discovery in the action pending final disposition of the matter in this court. Because the district court is without jurisdiction to entertain this action which has resulted in unwarranted interference with the administrative process, we will grant the petition for a writ of mandamus and; direct the district court to dismiss the case. I. BACKGROUND NASD is a securities association registered with the Securities and Exchange Commission pursuant to the provisions of the Maloney Act, 15 U.S.C. § 78o-3 (1976). The purpose of the voluntary association is to provide self-regulation of the over-the-counter securities market. The Maloney Act authorizes the association to promulgate rules designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest . 15 U.S.C. § 78o-3(b)(6) (1976); see United States v. National Association of Securities Dealers, Inc., 422 U.S. 694, 700-01 n.6, 95 S.Ct. 2427, 45 L.Ed.2d 486 (1975); Todd & Co. v. SEC, 557 F.2d 1008, 1012 (3d Cir. 1977). Furthermore, the statute gives the association the power to discipline its members who fail to conform to the standard of conduct established by the organization. 15 U.S.C. § 78o -3(h) (1976). “The Act also authorizes the SEC to exercise a significant oversight function over the rules and activities of the registered associations.” United States v. National Association of Securities Dealers, Inc., supra, 422 U.S. at 700-01 n.6, 95 S.Ct. at 2434. The NASD is headed by a Board of Governors. Its certificate of incorporation and by-laws divide the organization into thirteen geographical districts, each headed by a District Committee. The District Committee is required to appoint a District Business Conduct Committee, which assumes primary responsibility for enforcing the NASD rules. See II L. Loss, Securities Regulation 1365-69 (2d ed. 1961). In November 1977, NASD staff examiners began investigating First Jersey Securities, Inc., a New Jersey corporation. First Jersey, a registered member of NASD, has fourteen offices located in four states and Puerto Rico employing approximately 350 people. NASD claims that its investigators uncovered “a pattern of market domination and price manipulation used to perpetrate a massive fraud on First Jersey’s public customers.” On February 1,1979, the Business Conduct Committee of District 12 began a disciplinary proceeding by issuing a complaint against First Jersey, Robert E. Brennan (its president), six branch managers, and the supervisor of the trading department. As of yet, no hearing has been held by the NASD on this matter. On April 17, 1979, First Jersey filed suit in the United States District Court for the District of New Jersey against NASD and George Bergen. The complaint sought damages, declaratory relief, and an injunction enjoining NASD from proceeding further with its disciplinary action against First Jersey. It alleged that Bergen had a long-standing bias against Brennan and that he influenced and corrupted the entire Business Conduct Committee to hold a similar bias, the effect of which was to deny First Jersey’s constitutional rights to a fair hearing before an impartial tribunal. The complaint further alleged that the NASD had violated or would violate the Administrative Procedure Act, the Maloney Act, and various internal rules, resulting in a gross abuse of power; that the Maloney Act is an unconstitutional delegation of legislative power to the NASD; and that Bergen had maliciously and willfully caused a deprivation of First Jersey’s constitutional rights and interfered with its contractual and business relations. First Jersey moved, and was granted, leave to take early depositions pursuant to Fed.R.Civ.P. 30(a). The district court refused a subsequent request by NASD for a stay of discovery. First Jersey requested a preliminary injunction, and at the same time, NASD moved for dismissal of the suit. On June 4, 1978, the district judge delivered an oral opinion denying both motions without prejudice. During the pendency of these motions, two developments occurred. First, the SEC instituted its own independent proceeding by issuing a complaint against First Jersey. Second, NASD decided to transfer its proceedings to District 8 headquarters in Chicago in order to vitiate the accusations of bias. The denial of the injunction was based on eight assumptions. The district court assumed, among other things, that the District 12 staff would disassociate itself with the proceedings in District 8 and that District 8 would not proceed until after the SEC hearings were completed. The court retained jurisdiction over the matter “in the event that the stated and implied assumptions may be frustrated.” NASD subsequently advised the district judge that it intended to use the District 12 staff attorney, who up to that point had not been involved in the First Jersey investigation, to present the case to the District 8 panel, and that the NASD proceeding would not necessarily await completion of the SEC hearings. NASD also moved for certification under 28 U.S.C. § 1292(b) (1976) of the denial of the motion to dismiss. This request was denied, prompting NASD to file the petition for a writ of mandamus requesting that this court command the district court to dismiss the suit. To succeed in obtaining a writ of mandamus, NASD must show that: 1) the district court lacks jurisdiction over First Jersey’s suit, and 2) mandamus is the appropriate remedy in this case. II. JURISDICTION IN THE DISTRICT COURT First Jersey contends that jurisdiction in the district court can be based on 15 U.S.C. § 78aa (1976) and 28 U.S.C. § 1331 (1976). 15 U.S.C. § 78aa provides in part: “The district courts . . . shall have exclusive jurisdiction of violations of this chapter or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder.” The primary purpose of this provision is to provide exclusive federal jurisdiction for suits brought by the SEC or private parties in response to substantive violations of the chapter. Although under certain circumstances section 78aa may confer jurisdiction on the district court to entertain suits against the NASD, cf., Bright v. Philadelphia-Baltimore-Washington Stock Exchange, 327 F.Supp. 495, 500 (E.D.Pa.1971), we reject the notion that this provision conclusively establishes jurisdiction in the district court in this case. The same can be said for 28 U.S.C. § 1331. This statute grants jurisdiction to the district court for cases arising under the Constitution or laws of the United States, but it does not mean that jurisdiction is not precluded by another statute or doctrine of judicial administration. NASD claims that the statutory review procedure establishes exclusive jurisdiction in the courts of appeals. Original jurisdiction over enforcing the NASD rules rests with the District Business Conduct Committee. The NASD Code of Procedure requires the District Business Conduct Committee to hold a hearing replete with procedural safeguards to determine whether sanctions should be imposed against an alleged violat- or of the rules. The written decision of the Committee is reviewable by a subcommittee of the NASD Board of Governors, which is in turn reviewed by the entire Board. The Board’s ruling can be appealed to the SEC for a de novo review. 15 U.S.C. § 78s(d)(2) (1976), Finally, a “person aggrieved by a final order of the Commission may obtain review of the order in the United States Court of Appeals” by filing a petition for review. 15 U.S.C. § 78y(a)(1) (1976). The statute further provides: “On the filing of the petition, the court has jurisdiction, which becomes exclusive on the filing of the record, to affirm or modify and enforce or to set aside the order in whole or in part.” 15 U.S.C. § 78y(a)(3) (1976). Thus, the statute, although establishing a comprehensive system of review, does not explicitly preclude an aggrieved party from seeking relief in a federal district court until the record is filed in the court of appeals. Yet the comprehensiveness of the review procedure suggests that the doctrine of exhaustion of remedies should be applied to prevent circumvention of the established procedures. A. The Doctrine of Exhaustion of Remedies In Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938), the Supreme Court stated that it is a “long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” (footnote omitted). The primary purpose of this well-established doctrine is “the avoidance of premature interruption of the administrative process,” McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969), a concern which confronts us here. Furthermore, the principle allows the administrative agency to utilize its discretion and apply its expertise; it gives the agency the opportunity to correct its own errors; and it minimizes piecemeal appeals of agency actions. Parisi v. Davidson, 405 U.S. 34, 37, 92 S.Ct. 815, 31 L.Ed.2d 17 (1972). “Finally, it is possible that frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures.” McKart v. United States, supra, 395 U.S. at 195, 89 S.Ct. at 1663; McGee v. United States, 402 U.S. 479, 484, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971); K. Davis, Administrative Law of the Seventies §§ 20.01-20.08 (1976). Courts have frequently required dissatisfied litigants to exhaust their administrative remedies before the SEC as well as other agencies before coming into federal district court. In Touche Ross & Co. v. SEC, No. 78-6095 (2d Cir. May 10, 1979), an accounting firm attempted to enjoin an SEC proceeding commenced to determine whether the firm had engaged in unethical or illegal conduct. The district court dismissed the suit and the Second Circuit affirmed, holding that a claim of agency bias will not preclude application of the exhaustion doctrine. We emphasize at the outset that normally we will not tolerate the interruption of the administrative process to hear piecemeal appeals of a litigant’s claims on the merits. This is exactly what the exhaustion doctrine [is] designed to prevent. Accordingly, we wish to make it clear that Touche Ross must exhaust their administrative remedies by submitting to the Rule 2(e) proceedings before we will consider any challenges which they may assert with respect to any disciplinary action that the Commission may determine is appropriate under. the circumstances. Id. at 2568 (slip opinion). Another case holding that judicial interference in an ongoing SEC proceeding was improper involved the allegation that one of the commission members participating in the proceeding should have been disqualified. Although preceding the decision in Touche Ross, the court also held: “The administrative proceedings cannot be stopped to allow for excursions in the courts with prolonged evidentiary hearings; the time for that in a proper case is when an aggrieved litigant seeks judicial review of agency action having preserved the point of claimed disqualification in the administrative hearing.” SEC v. R. A. Holman & Co., 116 U.S.App.D.C. 279, 282, 323 F.2d 284, 287 (D.C.Cir.), cert. denied, 375 U.S. 943, 84 S.Ct. 350, 11 L.Ed.2d 274 (1963). See also R. A. Holman & Co. v. SEC, 112 U.S.App.D.C. 43, 299 F.2d 127 (D.C.Cir. 1962), cert. denied, 370 U.S. 911, 82 S.Ct. 1257, 8 L.Ed.2d 404 (1963). We believe that the doctrine of exhaustion of administrative remedies applies with equal force to the disciplinary proceedings of the NASD. See II L. Loss, Securities Regulation 1376 n.73 (1961). The relevant statutes have established a comprehensive review procedure. The disciplinary proceeding begins with the District Business Conduct Committee and advances, if appealed, to the NASD Board of Governors, to the SEC, and finally to the United States Court of Appeals. This structure allows the agency to gather evidence, exercise its discretion, and apply its expertise at more than one level. It also gives the agency the opportunity to correct its own errors without resort to the courts and an opportunity for litigants 'to raise and preserve the issue of claimed bias. For administrative procedure to operate effectively, it is essential that courts refrain from interfering with the process unnecessarily. See Nader v. Volpe, 151 U.S.App.D.C. 90, 94-97, 466 F.2d 261, 265-68 (D.C.Cir. 1972). Ultimate review by the court of appeals ensures that constitutional or statutory errors will not go unremedied. B. The Exceptions Even when the exhaustion doctrine would normally apply, extraordinary circumstances, nevertheless, may compel a court to hear a case. See, e. g., McKart v. United States, 395 U.S. 185, 192-201, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). “[W]here ‘an immediate appeal is necessary to give realistic protection to the claimed right,’ a court may properly carve an exception to the doctrine. Only rarely, however, will ‘preliminary [or] procedural . agency action’ threaten so irreparable an injury as to justify interlocutory resort to corrective judicial process . . . .” Bristol-Myers Co. v. FTC, 469 F.2d 1116, 1118 (2d Cir. 1972). In this Circuit, we have recognized two situations in which the exhaustion requirement will not be adhered to: 1) when the administrative procedure is clearly shown to be inadequate to prevent irreparable injury; or 2) when there is a clear and unambiguous statutory or constitutional violation. Barnes v. Chatterton, 515 F.2d 916, 920 (3d Cir. 1975); American Federation of Government Employees, Local 1904 v. Resor, 442 F.2d 993, 994-95 (3d Cir. 1971). 1. Irreparable Injury First Jersey alleges that irreparable harm will result from requiring exhaustion of administrative remedies because an adverse ruling by the NASD “would in all probability be terminal to First Jersey.” Furthermore, such a ruling “would likely cause panic selling in securities in which First Jersey makes a market, thereby causing great harm to an unsuspecting public.” The sole evidence presented by First Jersey in support of these allegations is the affidavit of Robert Brennan, president of the company. In our view, these allegations are insufficient to bring this case within the narrow exception. First, NASD proceedings are kept confidential which should prevent damaging publicity to First Jersey or the specific securities involved. Second, if the NASD decides to impose sanctions, they would be subject to the statutorily prescribed review procedure, including review by the court of appeals. Finally, and most importantly, if this exception were to be applied in this case, it would likewise apply in every case where the NASD contemplated disciplinary proceedings. Any company threatened by an NASD hearing could run into district court claiming that the imposition of sanctions would result in irreparable injury. To allow such interruption would frustrate the self-regulatory scheme envisioned by Congress in passing the Maloney Act. Although we recognize the potential for harm that exists, we believe that the integrity of the administrative process requires us to reject this justification for intrusion. 2. Clear and Unambiguous Violation Under the second exception, a mere allegation of a constitutional deprivation is insufficient to entitle the plaintiff to relief. See Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 771-72, 67 S.Ct. 1493, 91 L.Ed. 1796 (1947); Montana Chapter of Association of Civilian Technicians, Inc. v. Young, 514 F.2d 1165, 1167 (9th Cir. 1975); Wallace v. Lynn, 165 U.S.App.D.C. 363, 507 F.2d 1186 (D.C.Cir. 1974). The plaintiff must present a clear and unambiguous constitutional violation by the agency. See Barnes v. Chatterton, supra, 515 F.2d at 920. First Jersey makes several allegations of unconstitutionality, none of which are sufficient to excuse the failure to exhaust administrative remedies. a. Unconstitutional Delegation First Jersey claims that the Maloney Act is an unconstitutional delegation of legislative power to a private institution. In Todd & Co. v. SEC, 557 F.2d 1008 (3d Cir. 1977), we found no merit to this argument, because the SEC (1) has the power, according to reasonably fixed statutory standards, to approve or disapprove the Association’s rules; (2) must make de novo findings aided by additional evidence if necessary, and (3) must make an independent decision on the violation and penalty .... Id. at 1012; see R. H. Johnson & Co. v. SEC, 198 F.2d 690 (2d Cir.), cert. denied, 344 U.S. 855, 73 S.Ct. 94, 97 L.Ed. 664 (1952). First Jersey points out, however, that the statute was amended in 1975 and the Todd court specifically refused to rule on the constitutionality of the amendment. See 557 F.2d at 1012 n.6. Prior to 1975, the review provision of the statute called for the SEC to render its decision “upon consideration of the record before the association and such other evidence as it may deem relevant . . . .” 15 U.S.C. § 78o -3(h)(1) (1970). The statute now provides that the SEC hearing “may consist solely of consideration of the record before the self-regulatory organization and opportunity for the presentation of supporting reasons to affirm, modify, or set aside the sanction . . . .” 15 U.S.C. § 78s(e)(1) (1976). We need not now decide whether this statutory change effects a significant alteration in the SEC’s power to review NASD disciplinary proceedings. It suffices to say that to the extent the amendment restricts the SEC’s ability to receive additional evidence not presented below, this does not alter our conclusion in Todd that there is no unconstitutional delegation of legislative authority. b. Bias The major thrust of First Jersey’s contentions of unconstitutionality deal with the alleged bias of NASD and its inability to conduct a fair hearing before an impartial tribunal. This attack is carried at two levels: 1) because the Business Conduct Committee is composed of members of the industry, any panel of judges, as competitors of First Jersey, will have a personal pecuniary interest in seeing sanctions imposed against First Jersey; and 2) specific allegations portray Bergen’s and the NASD staff’s long-standing bias against Brennan and First Jersey. (1.) Structural Bias The first, which amounts to an allegation of structural bias and was expounded for the first time in a supplemental brief requested by the Court at oral argument, relies primarily on the Supreme Court decision in Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973). In Gibson, the Alabama Board of Optometry intended to revoke the licenses which were required to practice of all optometrists employed by corporations, a group comprising about one-half of all the optometrists in the state. Members of the Board were drawn exclusively from the Alabama Optometric Association, whose membership was limited to independent practitioners. The district court found that the Board members, along with other private practitioners of optometry, would fall heir to the corporate practices if the licenses were revoked. The Supreme Court affirmed the district court’s conclusion that this amounted to a deprivation of due process, holding that “those with substantial pecuniary interest in legal proceedings should not adjudicate these disputes.” Id. at 579, 93 S.Ct. at 1698. See also Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160 (1936); Wall v. American Optometric Association, 379 F.Supp. 175 (N.D.Ga.), aff’d, 419 U.S. 888, 95 S.Ct. 166, 42 L.Ed.2d 134 (1974). Reliance on Gibson cannot provide First Jersey with a clear and unambiguous constitutional violation in this case. We believe that the NASD system of self-regulation is sufficiently dissimilar in crucial respects from the Alabama Board of Optometry’s method of regulation to render the former constitutionally sound. NASD is a voluntary association, not a state agency. Unlike the Alabama Board of Optometry, NASD approval is not required to practice the trade. Neither NASD nor the industry it regulates is divided into factions or identifiable groups in a manner comparable to the independent practitioners versus the optometrists employed by corporations in Gibson. Neither First Jersey nor firms like it are excluded from membership in the association and, unlike the optometrists in Alabama, they were not denied participation in the governance of their own profession. In Wall v. American Optometric Association, 379 F.Supp. 175, 189 (N.D.Ga.), aff’d, 419 U.S. 888, 95 S.Ct. 166, 42 L.Ed.2d 134 (1974), the court pointed out that “[ejvery member of the tribunal is a member of a group which opposes the continuation of the plaintiffs’ businesses.” That division is not present here. Furthermore, the NASD hearing has been transferred to District 8, meaning that members of the panel will be drawn from the Chicago area. First Jersey does not have any offices in that area, but if it believed that one or more members of the panel were direct competitors with a personal interest in the outcome, it could file a motion to have those members disqualified through the administrative process. In addition, the basis for the disciplinary proceeding is not a status violation, similar to Gibson or Wall, which could lead to the demise of a substantial block of the industry; it stems instead from specific allegations of misconduct applicable only to First Jersey. Finally, to uphold First Jersey’s contention would destroy the valuable congressional scheme for self-regulation in the securities area and the destruction could very well extend to other areas employing intramural controls. The Maloney Act expresses Congress’s thoughtful view that self-regulation is the best “first-line” defense against unethical or illegal securities practices. It allows the industry to set its own standards of proper conduct and permits their members to discipline themselves applying their own expertise and . experience. Although Congress preferred self-regulation by a private body over direct involvement of a governmental agency, it established safeguards to prevent abuse of the system. The Maloney Act requires specific procedural protections, some of which are drafted by the association. For example, the NASD Code of Procedure, unlike the proceedings before the Alabama Optometric Board in Gibson, requires the disqualification of any panel member who may have a personal interest in the outcome of the case. Further insurance against abuse is provided by the supervisory role of the SEC. The SEC is required to approve all the NASD rules and regulations, including those concerning discipline of NASD members. This oversight function also encompasses review of specific cases imposing sanctions. We believe that the intrinsic benefits of a system of self-regulation, insulated with extensive procedural and substantive protections and subject to judicial review, renders insignificant objections of bias to the system which inherently involves disciplining by potential competitors. We therefore reject First Jersey’s contention that the NASD scheme for self-regulation is unconstitutional. (2.) Specific Bias The second prong of First Jersey’s assault for bias against NASD deals with specific allegations of animosity on the part of Bergen and the NASD against First Jersey. The evidence of bias recited in First Jersey’s complaint includes among other things the allegations that Bergen has said that he is out to “get Brennan,” that he has called Brennan “slippery,” that he has “personally devote[d] his full concentration and energies to First Jersey and Brennan,” that NASD agents have referred to Brennan as a crook and have threatened uncooperative witnesses with reprisals. Regardless of the merit of First Jersey’s claim, we hold that absent a showing of irreparable harm, allegations of personal bias, are insufficient to excuse a plaintiff from the requirements of the exhaustion doctrine. In Touche Ross & Co. v. SEC, supra, the Second Circuit refused to allow an allegation of agency bias to excuse the failure to exhaust administrative remedies. If the claim of bias were the only basis for appellants’ demand for injunctive relief, it would be unnecessary for us to go further than to hold, with respect to that claim, that exhaustion of administrative remedies is required. As the Court of Appeals for the District of Columbia Circuit has held, allegations of agency bias or prejudgment based on ex parte communications are insufficient for injunctive relief and cannot be reviewed until the agency has made an adverse determination and an appeal has been taken raising these claims on the record as a whole. R. A. Holman & Co., v. SEC [112 U.S.App.D.C. 43, 45], 299 F.2d 127, 129 (D.C. Cir.), cert. denied, 370 U.S. 911 [82 S.Ct. 1257, 8 L.Ed.2d 404] (1962); National Lawyers Guild v. Brownell [96 U.S.App.D.C. 252, 255], 225 F.2d 552, 555 (D.C.Cir. 1955), cert. denied, 351 U.S. 927 [76 S.Ct. 778, 100 L.Ed. 1457] (1956). We agree. Until the Commission has acted and actual bias has been demonstrated, the orderly administrative procedures of the agency should not be interrupted by judicial intervention. Id. at 2568-69 (slip opinion); see supra at 694-695. The principles underlying the exhaustion doctrine are particularly apt when applied to a claim of bias. See United States v. Litton Industries, Inc., 462 F.2d 14, 17-18 (9th Cir. 1972). First, an allegation of bias is usually controverted; resolution of the dispute requires extensive discovery and evidentiary hearings before the district court. This results in substantial interference with the administrative process, which often, as in this case, cannot continue during the pendency of the suit. See SEC v. R. A. Holman & Co., supra, 116 U.S.App.D.C. at 282, 323 F.2d at 287. See also Maremont Corp. v. FTC, 431 F.2d 124, 128 (7th Cir. 1970). Furthermore, where the facts are in dispute, it is difficult for the plaintiff to assert a clear and unambiguous constitutional violation. See Sterling Drug, Inc. v. FTC, 146 U.S.App.D.C. 237, 239-40, 450 F.2d 698, 710-11 (D.C.Cir. 1971). Second, a claim of bias tendered during the course of an investigatory proceeding is unlikely to allege a constitutional violation that has already occurred. First Jersey claims that its due process rights have been infringed, but fails to point to any specific deprivation of liberty or property that has occurred at this time. Such a deprivation as a result of the alleged bias and investigative irregularities would only occur if and when sanctions are imposed by the NASD and upheld through all levels of review. See National Lawyers Guild v. Brownell, 96 U.S.App.D.C. 252, 255, 225 F.2d 552, 555 (D.C.Cir. 1955), cert. denied, 351 U.S. 927, 76 S.Ct. 778, 100 L.Ed. 1457 (1956). Finally, if exhaustion is required, the agency will often have the opportunity to correct or prevent an error as a result of bias. Most agencies provide for disqualification of members who may be biased. Other remedies may also be available. Here, for example, the transfer of the hearing to District 8 would appear to negate the effectiveness of Bergen’s alleged ability to influence the result against First Jersey. We conclude therefore that First Jersey’s failure to exhaust its administrative remedies rendered the district court without jurisdiction to entertain the suit. The proper response by the district court-would have been to grant NASD’s motion for dismissal. If and when sanctions are imposed on First Jersey, the company would have full and ample opportunity to present its due process and statutory claims to the court of appeals. III. THE REMEDY Having established that the district court lacks subject matter jurisdiction to entertain this suit, NASD faces the additional hurdle of showing that mandamus is the appropriate remedy. Section 1651(a) of 28 U.S.C. provides that “[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The writ of mandamus is a drastic remedy and its availability is closely circumscribed. “[T]he ‘traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’ ” Will v. Calvert Fire Insurance Co., 437 U.S. 655, 661, 98 S.Ct. 2552, 2557, 57 L.Ed.2d 504 (1978), quoting from Roche v. Evaporated Milk Association, 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943). In order to obtain issuance of the writ, a petitioner must show that there are no other adequate means of relief and the right to the writ is clear and indisputable. Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); United States v. Helstoski, 576 F.2d 511, 516 (3d Cir. 1978), aff’d, - U.S. -, 99 S.Ct. 2432, 61 L.Ed.2d 12 (1979). The Supreme Court has expressed two reasons for the reluctance to rely on the mandamus remedy: the “unfortunate consequence” of making the district court judge a litigant and “the interest of the fair and prompt administration of justice to discourage piecemeal litigation.” Kerr v. United States District Court, supra, 426 U.S. at 403, 96 S.Ct. at 2124. Courts have at times issued the writ to correct a clear abuse of discretion by the district court. See LaBuy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957); Texaco, Inc. v. Borda, 383 F.2d 607 (3d Cir. 1967). The Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_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. The KANSAS STATE BANK AND TRUST COMPANY, Conservator of the Estate of Leon Cornell Van Vessum, a minor, Plaintiff-Appellee, v. OLD AMERICAN INSURANCE COMPANY, Defendant-Appellant. No. 73-1401. United States Court of Appeals, Tenth Circuit. Argued and Submitted Nov. 12, 1973. Decided Feb. 5, 1974. Jack Peggs of Smith, Shay, Farmer & Wetta, Wichita, Kan., for plaintiff-appellee. J. L. Weigand, Jr., of Weigand, Curfman, Brainerd, Harris & Kaufman, Wichita, Kan., for defendant-appellant. Before SETH, ALDISERT , and DOYLE, Circuit Judges. Of the Third Circuit, sitting by designation. ALDISERT, Circuit Judge. Presented in this diversity action, controlled by principles of Kansas law, is the question of whether an insurance policy providing for loss by “being struck or run over by any automobile” covers a loss sustained by being struck by a motorcycle. Having acquired jurisdiction after removal from the state court at the behest of the insurance company, the district court, on stipulated facts, interpreted the policy, found coverage to exist and granted summary judgment in favor of plaintiff. The insurance company has appealed. We reverse. The adjudicative facts are set forth in the district court’s opinion: The insured Jean K. Hunt, was struck by a 1970 Yamaha 175 c.c. M/C motorcycle while attempting to cross the street in the 300 block, North Coast Highway, Laguna Beach, California, on July 24, 1970. As a result of head injuries sustained in the accident, she died shortly thereafter. Under the policy issued by the defendant, the insured was protected against losses caused by accidental bodily injuries sustained in the following manner: “1. While the Insured as a passenger or driver is riding in, entering, or alighting from, any private passenger automobile (whether or not owned by the Insured), or 2. While the Insured as a passenger ... is riding in, entering, or alighting from, any land, air, or water conveyance then engaged as a licensed common carrier of passengers for hire, or 3. By being struck or run over by any automobile or common carrier conveyance while the Insured is a pedestrian on any public street or highway. . . .” For the purposes of the policy, automobile is defined as a “land vehicle of the type commonly and ordinarily known and referred to as an ‘automobile,’ and private passenger automobile . . . [is defined as] a ‘private automobile designed primarily for transporting persons.’ ” On August 13, 1971, plaintiff formally filed claimant’s proof of accidental death and a certified copy of Jean K. Hunt’s death certificate in accordance with the proof of loss provisions of the policy. On August 19, 1971, the defend- and denied coverage on the ground that a motorcycle was not an automobile as that term was defined in the policy. The dispute between the parties is centered on whether the term “automobile” as it is defined in the policy clearly excludes motorcycles. The district court reasoned that the term “automobile” is broad enough- to include all forms of self-propelling vehicles; recognized that “[a] motorcycle is not customarily considered an automobile—the distinction being a motorcycle is a two-wheeled, as opposed to a four-wheeled vehicle”; and found that the “definition of ‘private passenger automobile’ describes what the Court feels an average person would described [sic] as an automobile, i. e., a four-wheeled vehicle designed primarily to carry passengers.” But the court was impressed with the policy’s distinction between “automobile” and “private passenger automobile,” and found that “automobile” describes “a more extensive class of vehicles.” To hold otherwise, it reasoned, “would render the term [‘private passenger automobile’] superfluous.” It concluded that the “primary risk contemplated by the provision clearly appears to be that of a pedestrian exposed to motor vehicle traffic” and that “any ordinary insured would consider himself protected under this provision against being struck by any motor vehicle likely to use the streets.” Each party has cited numerous Kansas cases as authority for supporting his position or negating that of his adversary. Unfortunately, none of these cases interprets the precise language at issue in these proceedings. As Justice Holmes once warned: “[E]very question of construction is unique, and an argument that would prevail in one case may be inadequate in another.” Thus, it is important to emphasize what is not before us. This is not a case where the policy contains no definition of the term “automobile”. Nor is the term defined as “the motor vehicle or trailer-described in this policy” as in Western Casualty & Surety Company v. Budig, supra. Here the policy contains a specific definition: “As used in this policy, automobile means a land vehicle of the type commonly and ordinarily known and referred to as an “automobile’ . . . . ” A review of the authorities discloses that the Kansas Supreme Court respects the generally accepted standards for interpreting insurance contracts. That court has accepted as a threshold determinant our expression in Thomas v. Continental Casualty Company, 225 F.2d 798, 801 (10th Cir. 1955) : All ambiguities will be resolved against the insurer, but the insured is charged with the plain ordinary meaning of inartistic words, and we will not torture words to import ambiguity where ordinary meaning leaves no room for such. * * * Words do not become ambiguous simply because lawyers or laymen contend for different meanings, or even though their construction becomes the subject matter of litigation. [Citation omitted.] Kansas Farm Bureau Insurance Company v. Cool, supra, 471 P.2d at 356; and has emphasized: If the language [of an insurance policy] when given its everyday commonly accepted meaning is clear and specific in presenting the subject matter at hand, the objective to be accomplished, the burdens assumed, and the benefits to be enjoyed or received, then the terms of the policy cannot be said to be doubtful of meaning or conflicting in terms. Under these circumstances, courts are not at liberty to indulge in a construction that would give an unnatural meaning to the language in order to accomplish results that could not be shown to have been in the minds of the parties. Ibid., 471 P.2d at 356-357, citing Ferguson v. Phoenix Insurance Company of New York, 189 Kan. 459, 370 P.2d 379 (1962). Thus, the polestar to guide our inquiry is one of the fundamentals urged by Wigmore: “the standard of the community, or popular standard, meaning the common and normal sense of words.” We have been taught by Holmes that “each party to a contract has notice that the other will understand his words according to the usage of the normal speaker of English under the circumstances, and therefore cannot complain if his words are taken in that sense,” and that “[y]ou cannot prove a mere private convention between the two parties to give language a different meaning from its common one. [A]n artificial construction cannot be given to plain words by express agreement. . . . ” Given this as the recognized standard of interpretation, it appears that we have a case of a fortiori proportions because this insurance policy commands us to limit our consideration to “a land vehicle of the type commonly and ordinarily known and referred to as an ‘automobile’.” Thus we not only have a standard of interpretation requiring common and ordinary meaning, but a contract defining the word in those terms. As a starting point we agree with the district court that a “motorcycle is not customarily considered an automobile—the distinction being a motorcycle is a two-wheeled, as opposed to a four-wheeled vehicle.” We must then determine whether there are expressions of art or special nuances in the insurance contract to permit an interpretation “outside the hard core of standard instances or settled meaning,” described by Professor Hart in his classic debate with Professor Fuller as the “problems of the penumbra.” The district court placed the term “automobile” within the penumbra by a process we find difficult to accept. It compared provision (3) of the policy, which is relevant to these proceedings, with provision (1) which is not. Provision (1) relates to losses occurring as a passenger or driver of a “private passenger automobile”; provision (3) relates to losses by being struck or run over by an “automobile” or “common carrier conveyance”. Provision (2) is distinct from (1) and (3) in that it relates to losses occurring as a passenger of “any land, air or water convenance then engaged as a licensed common carrier. . . . ” There is a rational explanation for the use of these various terms. To say, as did the district court, that the definition of “private passenger automobile” would be superfluous unless “automobile” in provision (3) is held to mean all motor vehicles is to tortur.e plain meaning. We think it obvious that coverage under (3) extends to any automobile, whether or not it is a “private passenger” automobile. Additionally, this provision extends to a “common carrier conveyance” such as a bus or trolley car. By its very terms, coverage under (1) is much more limited than coverage under (3). While “automobile” as used in (3) covers a more extensive class of automobiles than the “private passenger automobile” described in (1), we cannot agree with the district court that it covers “a more extensive class of [motor] vehicles.” When the meaning is plain— plain by the standard of the community and the ordinary reader—no deviation, without rational justification, is permitted. The most recent expression of the Kansas Supreme Court states: “Normally the word automobile when used in the popular sense would exclude motor vehicles such as motorcycles.” Western Casualty & Surety Company v. Budig, supra, 516 P.2d at 941. We find no difficulty with the ordinary meaning of the policy language. It therefore does not become necessary to invoke the time honored Kansas rule of construing ambiguous or conflicting provisions adversely to the draftsman, or to embark on a semantical excursion into the “problems of the penumbra.” We find the language to fall, in Hart’s phrase, within “a core of settled meaning.” It is difficult to disagree with Justice Noah Swayne’s remark a century ago: “If the language be clear it is conclusive. There can be no construction where there is nothing to construe.” As we said in Thomas v. Continental Casualty Company, supra, “we will not torture words to import ambiguity where ordinary meaning leaves no room for such.” The district court found, and properly so, that “[a] motorcycle is not customarily considered an automobile— the distinction being a motorcycle is a two-wheeled, as opposed to a four-wheeled vehicle.” It should have stopped there and entered summary judgment for the defendant. The judgment of the district court is reversed and the proceedings remanded with a direction to enter judgment in favor of appellant. . Western Casualty & Surety Company v. Budig, Kan., 516 P.2d 939 (1973) ; Kansas Farm Bureau Insurance Company v. Cool, 205 Kan. 567, 471 P.2d 352 (1970) ; Clark v. Prudential Insurance Company of America, 204 Kan. 487, 464 P.2d 253 (1970), and cases cited therein. . United States v. Jin Fuey Moy, 241 U.S. 394, 402, 36 S.Ct. 658, 659, 60 L.Ed. 1061 (1916). . The Kansas Supreme Court has explicitly recognized a distinction between cases where “automobile” is used as the broader generic term “motor vehicle” and those where “automobile” is more narrowly used. See, e. g., Western Casualty & Surety Company v. Budig, supra, 516 P.2d at 942: “The appellant cites cases from Arkansas, Pennsylvania, Tennessee and other states which hold that a motorcycle is not an automobile under the provisions of certain insurance policies. We have examined those cases and note that the word ‘automobile’ was- not defined in those policies by using the broader generic term ‘motor vehicle’.” . “[T]he possible standards fall roughly into four classes,—the standard of the community, or popular standard, meaning the common and normal sense of words; the local standard, including the special usages of a religious sect, a body of traders, an alien population, or a local dialect; the mutual standard, covering those senses which are peculiar to both or all the parties to a transaction, but shared in common by them; and the individual standard of one party to an act, as different from that of the other party or parties, if any.” IX Wigmore on Evidence, at 185-186 (1940). . Holmes, The Theory of Legal Interpretation, 12 Harv.L.Rev. 417, 419 (1899). (Citation omitted.) . Goode v. Riley, 153 Mass. 585, 28 N.E. 228 (1891) Holmes, J. . A factual predicate of the Hart-Fuller debate was the interpretation of the word “vehicle” : “A legal rule forbids you to take a vehicle into the public park. Plainly this forbids an automobile, but what about bicycles, roller skates, toy automobiles? What about airplanes? Are these, as we say, to be called ‘vehicles’ for the purpose of the rule or not? If we are to communicate with each other at all, and if, as in the most elementary form of law, we are to express our intentions that a certain type of behavior be regulated by rules, then the general words we use—like ‘vehicle’ in the case I consider—must have some standard instance in which no doubts are felt about its application. There must be a core of settled meaning, but there will be, as well, a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out.” n.L.A. Ilart, Positivism and the Separation of Law and Morals, 71 Harv.L.Rev. 593, 607 (1958). Professor Puller responded: “Even in situations where our interpretive difficulties seem to head up in a single word, Professor Hart’s analysis seems to me to give no real account of what does or should happen. In his illustration of the ‘vehicle,’ although he tells us this word has a core of meaning that in all contexts defines unequivocally a range of objects embraced by it, he never tells us what these objects might be. If the rule excluding vehicles from parks seems easy to apply in some cases, I submit this is because we can see clearly enough what the rule ‘is aiming at in general’ so that we know there is no need to worry about the difference between Fords and Cadillacs. If in some cases we seem to be able to apply the rule without asking what its purpose is, this is not because we can treat a directive arrangement as if it had no purpose. It is rather because, for example, whether the rule be intended to preserve quiet in the park, or to save carefree strollers from injury, we know, ‘without thinking,’ that a noisy automobile must be excluded. “What would Professor Hart say if some local patriots wanted to mount on a pedestal in the park a truck used in World War II, while other citizens, regarding the proposed memorial as an eyesore, support their stand by the ‘no vehicle’ rule? Does this truck, in perfect working order, fall within the core or the penumbra?” Fuller, Positivism and Fidelity to Law—A Reply to Professor Hart, 71 Harv.L.Rev. 630, 663 (1958). . United States v. Hartwell, 6 Wall. 385, 396, 18 L.Ed. 830 (1868). 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_opinstat	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. Robert G. VAN BEEK, Appellant, v. Emery E. JACQUES, Warden of the Branch State Prison at Marquette, Michigan, Appellee. No. 11593. United States Court of Appeals Sixth Circuit. Oct. 24, 1952. ■ Edward J. Hanlon, Jr., Cincinnati, Ohio, for appellant. Frank G. Millard, Perry A. Maynard, Lansing, Mich., for appellee. Before MARTIN, McALLISTER and MILLER, Circuit Judges. PER CURIAM. This cause came on to be heard' on the record and on the briefs and oral arguments of the Assistant Attorney General of Michigan and the attorney appointed by this court to represent appellant, and also on the separate brief filed by appellant in his own behalf; And it appearing that there is no merit in any point presented in behalf of appellant and that the judgment of the District Court is correct, for the reasons given by the district judge in denying appellant’s petition for certificate of probable cause; The judgment is accordingly affirmed.- Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:

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