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sc_casesourcestate	26	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed. PONTE, SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTION v. REAL No. 83-1329. Argued January 9, 1985 Decided May 20, 1985 Rehnquist, J., delivered the opinion of the Court, in which BURGER, C. J., and White and O’Connor, JJ., joined, and in all but the second paragraph of footnote 2 of which Blackmun and Stevens, JJ., joined. Stevens, J., filed an opinion concurring in part, in Part II of which Blackmun, J., joined, post, p. 501. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 504. Powell, J., took no part in the consideration or decision of the case. Martin E. Levin, Assistant Attorney General of Massachusetts, argued the cause pro hac vice for petitioner. With him on the briefs were Francis X. Bellotti, Attorney General, and Barbara A. H. Smith, Assistant Attorney General. Jonathan Shapiro argued the cause and filed a brief for respondent. Justice Rehnquist delivered the opinion of the Court. The Supreme Judicial Court of Massachusetts held that a prison disciplinary hearing which forfeited “good time” credits of respondent John Real was conducted in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution because there did not appear in the administrative record of that hearing a statement of reasons as to why the disciplinary board refused to allow respondent to call witnesses whom he had requested. Real v. Superintendent, Massachusetts Correctional Institution, Walpole, 390 Mass. 399, 456 N. E. 2d 1111 (1983). We granted certiorari, 469 U. S. 814 (1984), to review this judgment because it seemed to us to go further than our pronouncement on this subject in Wolff v. McDonnell, 418 U. S. 539 (1974). While we agree with the Supreme Judicial Court of Massachusetts that the Due Process Clause of the Fourteenth Amendment requires that prison officials at some point state their reason for refusing to call witnesses requested by an inmate at a disciplinary hearing, we disagree with that court that such reasons or support for reasons must be placed in writing or otherwise exist as a part of the administrative record at the disciplinary hearing. We vacate the judgment of the Supreme Judicial Court, and remand the case to that court. In 1981 respondent John Real was an inmate at the Massachusetts Correctional Institution at Walpole. In December of that year he was working in the prison metal shop and heard a commotion in an adjacent office. He entered the office and observed another prisoner fighting with a corrections officer. A second corrections officer attempted to break up the fight, and ordered respondent and other inmates who were watching to disperse immediately. Respondent did not depart, and another corrections officer escorted him to his cell. One week later respondent was charged with three violations of prison regulations as a result of this imbroglio. He notified prison officials, on a form provided for that purpose, that he wished to call four witnesses at the hearing which would be held upon these charges: two fellow inmates, the charging officer, and the officer who was involved in the fight. A hearing was held on the charges in February 1982. At this hearing the charging officer appeared and testified against respondent, but the board declined to call the other witnesses requested by respondent. Respondent was advised of no reason for the denial of his request to call the other witnesses, and apparently whatever record there may be of this disciplinary proceeding does not indicate the board’s reason for declining to call the witnesses. The board found respondent guilty as charged, and after an administrative appeal in which penalties were reduced, respondent received the sanction of 25 days in isolation and the loss of 150 days of good-time credits. Respondent challenged these sanctions by seeking a writ of habeas corpus in the Massachusetts trial court. That court sustained respondent’s claim that petitioner Joseph Ponte, a Superintendent of the M. C. I. at Walpole, had deprived him of that due process guaranteed by the Fourteenth Amendment to the United States Constitution because no reasons whatsoever were advanced by petitioner in court as to why respondent was not allowed to call the requested witnesses at the hearing. On appeal to the Supreme Judicial Court of Massachusetts, this judgment was affirmed but for different reasons. That court discussed our decision in Wolff v. McDonnell, supra, and noted that it “[l]eft unresolved . . . the question whether the Federal due process requirements impose a duty on the board to explain, in any fashion, at the hearing or later, why witnesses were not allowed to testify.” 390 Mass., at 405, 456 N. E. 2d, at 1115. The court concluded that there must be some support in the “administrative record” to justify a decision not to call witnesses, and that the administrative record in this case was barren of any such support. Because of its conclusion, the court declared that the Massachusetts regulations governing the presentation of proof in disciplinary hearings, Mass. Admin. Code, Tit. 103, §430.14 (1978) were unconstitutional as to this point, because those regulations did not require that the administrative record contain facts or reasons supporting the board’s denial of an inmate’s witness request. 390 Mass., at 405-407, 456 N. E. 2d, at 1116, citing Hayes v. Thompson, 637 F. 2d 483, 487-489 (CA7 1980). Petitioner does not dispute that respondent possessed a “liberty” interest, by reason of the provisions of Massachusetts state law, affording him “good time” credits, an interest which could not be taken from him in a prison disciplinary hearing without the minimal safeguards afforded by the Due Process Clause of the Fourteenth Amendment. The touchstone of due process is freedom from arbitrary governmental action, Wolff, 418 U. S., at 558, but “[pjrison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Id., at 556. Chief among the due process minima outlined in Wolff was the right of an inmate to call and present witnesses and documentary evidence in his defense before the disciplinary board. We noted in Wolff and repeated in Baxter v. Palmigiano, 425 U. S. 308 (1976), that ordinarily the right to present evidence is basic to a fair hearing, but the inmate’s right to present witnesses is necessarily circumscribed by the penological need to provide swift discipline in individual cases. This right is additionally circumscribed by the very real dangers in prison life which may result from violence or intimidation directed at either other inmates or staff. We described the right to call witnesses as subject to the “mutual accommodation between institutional needs and objectives and the provisions of the Constitution . . . .” Baxter, supra, at 321, citing Wolff, supra, at 556. Thus the prisoner’s right to call witnesses and present evidence in disciplinary hearings could be denied if granting the request would be “unduly hazardous to institutional safety or correctional goals.” Wolff, supra, at 566; Baxter, supra, at 321. See also Hughes v. Rowe, 449 U. S. 5, 9, and n. 6 (1980). As we stated in Wolff: “Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence. Although we do not prescribe it, it would be useful for the [disciplinary board] to state its reasons for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases.” 418 U. S., at 566. See Baxter, supra, at 321. Notwithstanding our suggestion that the board give reasons for denying an inmate’s witness request, nowhere in Wolff or Baxter did we require the disciplinary board to explain why it denied the prisoner’s request, nor did we require that those reasons otherwise appear in the administrative record. Eleven years of experience since our decision in Wolff does not indicate to us any need to now “prescribe” as constitutional doctrine that the disciplinary board must state in writing at the time of the hearing its reasons for refusing to call a witness. Nor can we conclude that the Due Process Clause of the Fourteenth Amendment may only be satisfied if the administrative record contains support or reasons for the board’s refusal. We therefore disagree with the reasoning of the Supreme Judicial Court of Massachusetts in this case. But we also disagree with petitioner’s intimation, Brief for Petitioner 53, that courts may only inquire into the reasons for denying witnesses when an inmate points to “substantial evidence” in the record that shows prison officials had ignored our requirements set forth in Wolff. We further disagree with petitioner’s contention that an inmate may not successfully challenge the board unless he can show a pattern or practice of refusing all witness requests. Nor do we agree with petitioner that “across-the-board” policies denying witness requests are invariably proper. Brief for Petitioner 53-55, n. 9. The question is exactly that posed by the Supreme Judicial Court in its opinion: “whether the Federal due process requirements impose a duty on the board to explain, in any fashion, at the hearing or later, why witnesses were not allowed to testify.” 390 Mass., at 405, 456 N. E. 2d, at 1115. We think the answer to that question is that prison officials may be required to explain, in a limited manner, the reason why witnesses were not allowed to testify, but that they may do so either by making the explanation a part of the “administrative record” in the disciplinary proceeding, or by presenting testimony in court if the deprivation of a “liberty” interest is challenged because of that claimed defect in the hearing. In other words, the prison officials may choose to explain their decision at the hearing, or they may choose to explain it “later.” Explaining the decision at the hearing will of course not immunize prison officials from a subsequent court challenge to their decision, but so long as the reasons are logically related to preventing undue hazards to “institutional safety or correctional goals,” the explanation should meet the due process requirements as outlined in Wolff. We have noted in Wolff, supra, and in Baxter, supra, that prison disciplinary hearings take place in tightly controlled environments peopled by those who have been unable to conduct themselves properly in a free society. Many of these persons have scant regard for property, life, or rules of order, Wolff, 418 U. S., at 561-562, and some might attempt to exploit the disciplinary process for their own ends. Id., at 563. The requirement that contemporaneous reasons for denying witnesses and evidence be given admittedly has some appeal, and it may commend itself to prison officials as a matter of choice: recollections of the event will be fresher at the moment, and it seems a more lawyerlike way to do things. But the primary business of prisons is the supervision of inmates, and it may well be that those charged with this responsibility feel that the additional administrative burdens which would be occasioned by such a requirement detract from the ability to perform the principal mission of the institution. While some might see an advantage in building up a sort of “common law of the prison” on this subject, others might prefer to deal with later court challenges on a case-by-case basis. We hold that the Constitution permits either approach. But to hold that the Due Process Clause confers a circumscribed right on the inmate to call witnesses at a disciplinary hearing, and then conclude that no explanation need ever be vouched for the denial of that right, either in the disciplinary proceeding itself or if that proceeding be later challenged in court, would change an admittedly circumscribed right into a privilege conferred in the unreviewable discretion of the disciplinary board. We think our holding in Wolff meant something more than that. We recognized there that the right to call witnesses was a limited one, available to the inmate “when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.” Id., at 566. We further observed that “[p]rison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit, access to other inmates to collect statements or to compile other documentary evidence.” Ibid. Given these significant limitations on an inmate’s right to call witnesses, and given our further observation in Wolff that “[w]e should not be too ready to exercise oversight and put aside the judgment of prison administrators,” ibid., it may be that a constitutional challenge to a disciplinary hearing such as respondent’s in this case will rarely, if ever, be successful. But the fact that success may be rare in such actions does not warrant adoption of petitioner’s position, which would in effect place the burden of proof on the inmate to show why the action of the prison officials in refusing to call witnesses was arbitrary or capricious. These reasons are almost by definition not available to the inmate; given the sort of prison conditions that may exist, there may be a sound basis for refusing to tell the inmate what the reasons for denying his witness request are. Indeed, if prison security or similar paramount interests appear to require it, a court should allow at least in the first instance a prison official’s justification for refusal to call witnesses to be presented to the court in camera. But there is no reason for going further, and adding another weight to an already heavily weighted scale by requiring an inmate to produce evidence of which he will rarely be in possession, and of which the superintendent will almost always be in possession. See United States v. New York, N. H. & H. R. Co., 355 U. S. 253, 256, n. 5 (1957); Campbell v. United States, 365 U. S. 85, 96 (1961); South Carolina v. Katzenbach, 383 U. S. 301, 332 (1966). Respondent contends that he is entitled to an affirmance even though we reject the Massachusetts Supreme Judicial Court’s holding that §340.14(6) is unconstitutional. Respondent argues that the Supreme Judicial Court affirmed the trial court on two independent grounds: (1) the trial court’s simple finding that petitioner’s failure to rebut the allegations in respondent’s complaint entitled respondent to relief; and (2) the unconstitutionality of §340.14(6) because due process requires administrative record support for denial of witnesses. We think that the Supreme Judicial Court affirmed only on the second ground, and that is the issue for which we granted certiorari. This Court’s Rule 21.1(a); see also Rule 15.1(a). Respondent is of course entitled to urge affirmance of the judgment of the Supreme Judicial Court on a ground not adopted by that court, but whether the Supreme Judicial Court would have affirmed the judgment of the trial court on the reasoning we set forth today is, we think, too problematical for us to decide. It is a question best left to that court. The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered. Justice Powell took no part in the decision of this case. Massachusetts Admin. Code, Tit. 103, § 430.14 (1978), provides in part: “(4) If the inmate requests the presence of the reporting officer . . . the reporting officer shall attend the hearing except when the chairman determines in writing that the reporting officer is unavailable for prolonged period of time [sic] as a result of illness or other good cause. . . . “(5) The inmate shall be allowed but shall not be compelled to make an oral statement or to present a written statement in his own defense or in mitigation of punishment. “(6) The inmate shall be allowed to question the reporting officer, to question other witnesses, to call witnesses in his defense, or to present other evidence, when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals. The factors that the chairman may consider when ruling on an inmate’s questioning of witnesses, offer of other evidence, or request to call witnesses shall include, but shall not be limited to, the following: “(a) Relevance “(b) Cumulative testimony “(c) Necessity “(d) Hazards presented by an individual case. “(7) the inmate shall be allowed to present relevant, non-cumulative documentary evidence in his defense.” Justice MARSHALL’S dissent maintains that a rule requiring contemporaneous reasons which are not made available to the prisoner is the only-one permitted by the United States Constitution. If indeed this rule is as beneficial to all concerned as the dissent claims, we may eventually see it universally adopted without the necessity of constitutionally commanding it. But we think that, as we indicate in this opinion, there are significant arguments in favor of allowing a State to follow either the approach advocated by the dissent or the approach described in this opinion. While the dissent seems to criticize our alternative as one which forces inmates to go to court to learn the basis for witness denials, it is difficult if not impossible to see how inmates under the dissent’s approach which requires contemporaneous reasons kept under seal would be able to get these reasons without the same sort of court proceeding. We think the dissent’s approach would very likely lead to an increasing need for lawyers attached to each prison in order to advise the correctional officials; words such as “irrelevant” or “cumulative,” offered by the dissent as possible bases for contemporary denials, post, at 517, are essentially lawyer’s words. We think that the process of preparing contemporary written reasons for exclusion of testimony is very likely to require more formality and structure than a practice which requires bringing in an attorney only when a lawsuit is filed. The former may be ideally suited to a heavily populated State of relatively small area such as Massachusetts, but the latter may be more desirable in a sparsely populated State of large area such as Nevada. We think the Constitution permits either alternative. The record in this case is exceedingly thin, and shows that some confusion existed at trial concerning respondent’s habeas petition seeking review of the February 1982 disciplinary hearing and another unrelated petition arising out of a 1980 disciplinary hearing. The trial court also apparently granted incomplete relief, which was only corrected 10 months later by another judge who then stayed the relief. Moreover, the Supreme Judicial Court did not just affirm the trial court, but remanded to permit petitioner, at his option, to conduct another disciplinary hearing. Given the state of this record, we think it wise to remand for further proceedings. Question: What is the state of the court whose decision the Supreme Court reviewed? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
songer_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. KTVY-TV, A DIVISION OF KNIGHT-RIDDER BROADCASTING, INC., an Oklahoma corporation, Plaintiff-Appellant, v. UNITED STATES of America; United States Postal Service, Defendants-Appellees. No. 89-6193. United States Court of Appeals, Tenth Circuit. Nov. 27, 1990. Clyde A. Muchmore, Richard C. Ford, Wesley C. Fredenburg of Crowe & Dun-levy, Oklahoma City, Okl., for plaintiff-appellant. Stuart E. Schiffer, Acting Asst. Atty. Gen., Washington, D.C., William S. Price, U.S. Atty., Oklahoma City, Okl., Leonard Schaitman and Robert M. Loeb, Attys., Appellate Staff, Civ. Div., Dept, of Justice, Washington, D.C., for defendants-appel-lees. Before MOORE, TACHA and BRORBY, Circuit Judges. PER CURIAM. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument. Plaintiff appeals from an order of the district court granting defendants’ motion for summary judgment after concluding the documents that plaintiff requested under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, are exempt from disclosure, see 5 U.S.C. § 552(b)(7)(C), (D). We affirm. On August 20, 1986, Patrick H. Sherrill, a United States Postal Service employee, entered the post office in Edmond, Oklahoma, armed with firearms. He shot and killed fourteen postal workers and wounded six others. Sherrill then killed himself. Thereafter, the United States Postal Service investigated the incident, compiling an approximately 4,700 page record. The record consisted of interview transcripts and memoranda, handwritten notes taken during interviews, the presentation letter of the United States Attorney, and various exhibits. Plaintiff requested that the documents from the completed investigation be disclosed. The Postal Service disclosed 2,145 pages of the documents, with some deletions. Defendants refused to release the remaining parts of the investigation file, specifically the identities of interviewees and their statements and information regarding an interview of Sherrill by his supervisor the day before the shootings, on the ground that they were exempt from disclosure. After exhausting administrative remedies, plaintiff filed an action in district court seeking disclosure of the undisclosed portions of the investigation file. Plaintiff maintained the public had a right to know the facts about the crime and defendants’ possible failure to prevent the crime. In granting summary judgment, the district court agreed with defendants’ refusal to turn over the undisclosed information. It held that the documents were exempt from disclosure, because disclosure could result in an invasion of privacy and any persons who spoke with the Postal Inspector did so with either an express or implied assurance of confidentiality. See 5 U.S.C. § 552(b)(7)(C), (D). On appeal, plaintiff argues the district court erred in granting summary judgment after overbroadly construing Exemptions 7(C) and (D). We review the granting of summary judgment de novo, applying the same legal standard used by the district court. Barnson v. United States, 816 F.2d 549, 552 (10th Cir.), cert. denied, 484 U.S. 896, 108 S.Ct. 229, 98 L.Ed.2d 188 (1987). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In applying this standard, we review the factual record and reasonable inferences in the record in the light most favorable to the party opposing summary judgment. Gray v. Phillips Petroleum Co., 858 F.2d 610, 618 (10th Cir.1988). The FOIA generally favors disclosure to permit “public access to information unnecessarily shielded from public view.” Johnson v. United States Dep’t of Justice, 739 F.2d 1514, 1516 (10th Cir.1984). Information must be made available on demand by any member of the public, unless the material is specifically exempted by a statutory provision to protect confidentiality or privacy interests. Alirez v. NLRB, 676 F.2d 423, 425 (10th Cir.1982). Statutory exemptions are narrowly construed. Id. A district court must make a de novo review of an administrative claim of exemption, with the agency bearing the burden of justifying the decision to withhold. 5 U.S.C. § 552(a)(4)(B). To satisfy its initial burden under [FOIA], the agency must provide a “detailed analysis” of the requested documents and the reasons for invoking a particular exemption. Johnson, 739 F.2d at 1516. The exemption provisions relied on by defendants in their motion and by the district court in granting summary judgment provide for nondisclosure of records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source ... and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation ... information furnished by a confidential source.... 5 U.S.C. § 552(b)(7). Investigatory Information The threshold question in determining whether either of the exemptions applies is whether the materials in question are investigatory records or information compiled for law enforcement purposes. See Hopkinson v. Shillinger, 866 F.2d 1185, 1222 (10th Cir.1989); Republic of New Afrika v. FBI, 656 F.Supp. 7, 10 (D.D. C.1985), aff'd, 821 F.2d 821 (D.C.Cir.1987) (table). The government has the burden of proving a compilation for these purposes. John Doe Agency v. John Doe Corp., — U.S.-, 110 S.Ct. 471, 475, 107 L.Ed.2d 462 (1989). The parties agree that the transcripts and notes of interviews are materials compiled for law enforcement purposes. They disagree as to whether the information regarding the interview of Sherrill conducted by his supervisor the day before the shootings is a record compiled for law enforcement purposes. Plaintiff argues that this is not such a record, because it took place before the investigation commenced and therefore was not gathered as part of an investigation. The FOIA does not require that records must have been originally compiled for a law enforcement investigation; the records merely must have been so compiled when the government invokes an exemption to the FOIA request. Id. at 476-77. Thus, the phrase “compiled for law enforcement purposes” covers “documents already collected by the Government originally for non-law-enforcement purposes.” Id. at 476. Information originally not compiled for law enforcement purposes may become exempt under Exemption 7 when it is recompiled for law enforcement purposes. See id. at 478. Accordingly, the interview information qualifies as “information compiled for law enforcement purposes.” Because all of the information at issue was compiled for law enforcement purposes, the next consideration is whether the requested information is exempt from disclosure under Exemptions 7(C) and (D). Exemption 7(C) Plaintiff argues that the district court inappropriately applied Exemption 7(C), because disclosure could not reasonably be expected to result in “an unwarranted invasion of personal privacy.” Plaintiff challenges as overbroad the district court’s refusal to disclose the names of interviewees and persons identified in their statements on the grounds that any further questioning of them could be harassing, embarrassing, and, consequently, an invasion of privacy. Instead, plaintiff maintains any possibility of harassment is not existent since Sherrill is dead and the shooting was an isolated incident. To determine whether Exemption 7(C) is applicable, courts must balance the individual’s privacy interest against the public’s interest in the release of information. United States Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 762, 109 S.Ct. 1468, 1476, 108 L.Ed.2d 774 (1989); Johnson, 739 F.2d at 1518. The preliminary question is whether the interest in nondisclosure is the type of privacy interest Exemption 7(C) is intended to protect. Reporters Committee, 489 U.S. at 762, 109 S.Ct. at 1476. The record establishes that the interviewees and persons mentioned by the interviewees in their interviews have a legitimate privacy interest in nondisclosure of their identities. See Halloran v. Veterans Admin., 874 F.2d 315, 321 (5th Cir.1989) (persons have a privacy interest in not having their names disclosed). Also, the record fully supports the district court’s determination that withholding their names and anything identifying them was necessary to avoid harassment and embarrassment. Although plaintiff argues the interviewees need not worry about Sherrill harassing or embarrassing them, the analysis does not end with Sherrill’s death. These persons still have a legitimate privacy interest in not being harassed or embarrassed by other persons. See Reporters Comm., 489 U.S. at 769, 109 S.Ct. at 1480 (recognizing privacy interest in keeping personal facts from public eye).. Because these persons have a legitimate privacy interest, this privacy interest must be balanced against the public’s interest in disclosure. Johnson, 739 F.2d at 1519. “[R]elevant factors are whether a substantial public interest will be advanced by the disclosure, and whether the likely public impact from disclosure will be significant.” Id. The identity of the requesting party has no bearing on the assessment of the public interest served by disclosure. Reporters Comm., 489 U.S. at 771, 109 S.Ct. at 1480. The public has an interest in being informed about what the government is doing. Id. at 773, 109 S.Ct. at 1481. Plaintiff argues the public interest at stake is the right of the public to know how the shootings occurred and whether they could have been avoided. As defendants argue, the identities of witnesses and third parties do not provide information about the conduct of the government. Id. at 774, 109 S.Ct. at 1482 (the FOIA’s purpose is not to permit disclosure of information about private citizens that is kept by the government, rather it is to ensure government activities are subject to public scrutiny). There is no proof disclosure of any of the interview information would establish that defendants could have prevented the incident. At most, plaintiff makes a broad, unsupported statement of possible neglect by defendants. Cf. Miller v. Bell, 661 F.2d 623, 630 (7th Cir.1981) (plaintiff’s broad, unsupported hints of government cover-up or undercover surveillance are contrary to substance of disclosed documents revealing case as one of consequence to one person), cert. denied, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 484 (1982). Furthermore, any slight interest the public may have in knowing the background and details of the shooting is outweighed by the reasonable likelihood of harassment and embarrassment of the witnesses and other persons. Because the disclosure of the information could reasonably be expected to constitute an' unwarranted invasion of privacy, the district court appropriately granted summary judgment for defendants on the Exemption 7(C) issue. Exemption 7(D) Plaintiff argues the district court erred in withholding the identities and statements of interviewees as confidential. Because the investigation has ended and this type of incident is not likely to occur again, plaintiff contends there is no need for confidentiality and these people will not again be sources of information for defendants. Exemption 7(D) focuses on whether confidential information is furnished by a confidential source. Johnson, 739 F.2d at 1517. Exemption 7(D) does not depend on the content of the requested documents, it depends instead on whether the information was provided to the government by a confidential source and was part of the record compiled as part of a criminal investigation. Brant Constr. Co. v. United States Environmental Protection Agency, 778 F.2d 1258, 1262 (7th Cir.1985). If the sources gave information in confidence, their names and other identifying information are exempt. L & C Marine Transport, Ltd. v. United States, 740 F.2d 919, 924-25 (11th Cir.1984). The government has the burden to prove that sources of information are confidential, Hopkinson, 866 F.2d at 1222, and that the information was acquired under an express assurance of confidentiality or that the circumstances were such that an assurance of confidentiality could be inferred. Brant Constr. Co., 778 F.2d at 1263; see Johnson, 739 F.2d at 1517-18. Unless the evidence in the record is to the contrary, there is implied confidentiality in interviews conducted as part of a criminal investigation. Johnson, 739 F.2d at 1517-18. Several interviewees received an express assurance of confidentiality. Nothing in the record suggests that any interviewee, who was not given an express assurance, was not given implied confidentiality or that defendants’ actions were inconsistent with an implied assurance of confidentiality. The indications of fears of harassment and embarrassment support an implied request for confidentiality for those not expressly assured of confidentiality. See Birch v. United States Postal Serv., 803 F.2d 1206, 1212 (D.C.Cir.1986); Brant Constr. Co., 778 F.2d at 1264. Even though the investigation may have concluded, exemption from disclosure is not extinguished because the statutory requirements of Exemption 7(D) are met. See Brant Constr. Co., 778 F.2d at 1265 n. 8. Thus, the district court did not err in refusing to compel disclosure and appropriately granted summary judgment on the Exemption 7(D) issue. We conclude that the district court correctly determined that all of the undisclosed information in this case is exempt under Exemptions 7(C) or (D). Accordingly, the judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED. . Private information is "‘intended for or restricted to the use of a particular person or group or class of persons: not freely available to the public.'" Reporters Comm., 489 U.S. at 763-64 and n. 16, 109 S.Ct. at 1476 and n. 16 (quoting Webster’s Third New International Dictionary 1804 (1976)). 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_r_fed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. David DORIN, Counter-Plaintiff-Appellee and Appellant, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Counter-Defendant-Appellant and Appellee. Nos. 15374, 15375. United States Court of Appeals Seventh Circuit. June 29, 1967. Barry L. Kroll, Chicago, Ill., for David Dorin, plaintiff-appellee, cross-appellant, Epstein, Manilow & Sachnoff, Chicago, Ill., of counsel. Miles G. Seeley, Wm. Bruce Hoff, Jr., Burton E. Glazov, Chicago, Ill., for The Equitable Life Assurance Society of the United States, Mayer, Friedlich, Spiess, Tierney, Brown & Platt, Chicago, Ill., of counsel. Before CASTLE, KILEY and FAIR-CHILD, Circuit Judges. FAIRCHILD, Circuit Judge. Cause of action for defamation asserted by counterclaim by David Dorin against his former employer, The Equitable Life Assurance Society of the United States (Equitable). The jury found for Dorin, assessing compensatory damages at $57,500 and punitive damages at $125,-000. The district court, however, ruled that unless Dorin filed a remittitur agreeing to reduce the awards to $17,500 and $7,500, respectively, Equitable’s motion for a new trial would be granted. Dorin filed the remittitur. On appeal, Equitable contends that (1) its motion for a directed verdict should have been granted because the communication was qualif iedly privileged and there was no evidence of malice, (2) its motion for a new trial should have been granted because the district court found “that the jury was inflamed by passion and prejudice in awarding the amount of damages,” and (3) that Dorin’s cross-appeal should be dismissed because by filing the remittitur he waived objection to the judgment. On cross-appeal, Dorin contends that the district court abused its discretion in requiring a remittitur as a condition of the denial of Equitable’s motion for a new trial. 1. Equitable’s motion for a directed verdict. This case is related to Jacobson v. Equitable Life Assurance Soc’y of the United States, 7 Cir., 381 F.2d 955, which was an action by named beneficiaries to recover on a life insurance policy issued by Equitable, Dorin having been the soliciting agent. Equitable denied liability on several grounds, one of which was that the insured concealed material facts relating to a change of health during the period between the time he answered questions in the medical portion of the application and the payment of the first premium, the date the insurance went into effect. During Equitable’s investigation of the Jacobson claim, it obtained information that when Dorin accepted the first premium, he had some degree of knowledge regarding the insured’s change of health and his plans to enter the hospital for corrective surgery and that when Dorin delivered the policies by mail to the insured, he had knowledge that the insured had just had a “long and complicated operation.” Dorin’s employment was terminated and he was joined as a third party defendant in the Jacobson Case, Equitable contending that if it was liable to the beneficiaries, Dorin was liable to it by reason of breaches of contractual and fiduciary duty. Dorin then filed the counterclaim for defamation that is involved here. The issues on the counterclaim were tried separately. After Dorin was terminated by Equitable, he sought employment, or applied for an agency, with Massachusetts Mutual Insurance Company. Massachusetts Mutual granted Dorin an agency contract. The Retail Credit Company was asked to make a routine investigation of Dorin. On May 25, or 26, 1963, the Retail Credit investigator interviewed Dorin’s former supervisor, Ernest C. Wentcher, a general agent for Equitable. The report emanating from that interview, and upon which this action is based, contained the following statements: “He was' employed by the Ernest C. Wentcher Agency of the Equitable Life Ins. Co., for 13 years, and was with the Equitable Life Ins. Co., with various ageancies [sic] since 1-18-37, and terminated on 4-12-63. He was an insurance agent selling life and casualty insurance. He was forced into retiring by the company and not eligible for rehire under andy [sic] circumstances. Applicant wrote a $100,-000.00 policy on a man whom he knew was going into hospital for a very serious operation. The man died on the operating table and survivors contended that the Equitable pay the indemnity. Subject denied at first knowing that the man was sick and going into hospital. One year later he changed his story and admitted that he knew man was sick and going to the hospital and wrote the policy anyway. Subject is now a party in a counter suit between Equitable and the survivors of the deceased. Source stated that they had trouble with him in the past in the fact that he would fail to mention important items in the application that would be important to the underwriter such as health, finances, etc. He it seems deliberately witheld [sic] this information from the company just so he could write the policy with no regard for the applicant and most of all with the employer. Stated to be a person who just wanted to sell insurance, no matter what it took to get the applications through. He was a big producer in the end and it was indicated that he made policy holders cash in older policies in order to pay for new policy, with the greater amounts which he was always trying to sell. Actually subject was fired, however record shows that he was forcefully retired. No salary information would be supplied.” When Massachusetts Mutual received the report, Dor in’s agency contract was cancelled. Both of the parties agree that the communication was qualifiedly privileged and the only question is whether there was sufficient evidence of malice to present the question to the jury. It is apparent that in several respects, Wentcher’s statements in the report were substantially exaggerated beyond the truth. In part they went beyond what Wentcher admitted was his information at the time, and in part went beyond what the jury could well have found was information he had when he made the statements. Wentcher said that Dorin wrote a $100,000 policy on a man he knew was going into the hospital for a “very serious” operation. But the evidence showed that when he accepted the first premium Dorin only knew that the insured had a pain in his leg caused by nerve pressure and that he was going into the hospital to have the pressure relieved. Wentcher stated in the report that the insured “died on the operating table.” In fact, the insured recovered completely from the operation, which was on June 30, 1961, and died several months later, on September 20, 1961, of a coronary occlusion and generalized arteriosclerosis. Wentcher’s report also stated that Dorin would fail to mention important items to the underwriters, such as the insured’s health and finances and that Dorin deliberately withheld information from the company. However, at the trial, Wentcher admitted that in making the statement, he only had in mind one incident where Dorin had attempted to sell a policy which the company would not issue after certain adverse facts came to light. Dorin introduced evidence that he hadn’t been aware of these adverse facts and that after another company issued a policy on the applicant’s life, Equitable issued one after all. The report stated that Dorin was a big producer in the end and that he made policyholders cash in older policies in order to pay for new policies. This would indicate to anyone acquainted with the insurance industry that Dorin was a “twister.” “Twisting” is a particularly opprobrious term in the industry and refers to inducing people to substitute a new policy for an existing one where the change does not serve the best interests of the insured. But Dorin testified that although he did recommend the cashing in of old policies, he only did so because Equitable recently came out with a particularly good policy, the executive policy, and that he only did so after he took “everything into consideration.” In Flannery v. Allyn the court said: “ ‘ * * * But it is not necessary to prove it [malice] by extrinsic evidence. It may be inferred from the relation of the parties, the circumstances attending the publication, and even from the terms of the publication itself.’ “ * * * to find that a communication is qualifiedly privileged means no more than that the occasion of making it rebuts the prima facie inference of malice arising from the publication, and places on the plaintiff the onus of proving malice in fact; but not proving it by extrinsic evidence only; he has still the right to require that the alleged libel itself be submitted to the jury to judge whether there is evidence of malice on the face of it.” The Restatement of Torts does not use the term “malice": § 599. General Principle. “One who publishes false and defamatory matter of another upon a conditionally privileged occasion is liable to the other if he abuses the occasion.” § 603. Purpose of Particular Privilege. “One who upon a conditionally privileged occasion publishes false and defamatory matter of another abuses the occasion if he does not act for the purpose of protecting the particular interest for the protection of which the privilege is given.” The trial court’s order denying Equitable’s motion for directed verdict must be sustained, if, viewing the evidence in the light most favorable to the plaintiff Dorin, there is any evidence which, if believed by the jury, would warrant a verdict against Equitable. The information Wentcher had, much of which has been substantiated on trial, would have justified a report somewhat unfavorable to Dorin, but the jury could find, indeed there is very persuasive evidence, that Wentcher so greatly colored and exaggerated the facts as he understood them that he must have intended to hurt Dorin more than he deserved. 2. Equitable’s motion for a new trial. In his order on Equitable’s motion for a new trial, the judge said: “ * * * The record is clear that Dorin’s annual earnings equaled, if they did not exceed, his earnings prior to the publication. The Court observed the counter-plaintiff on the witness stand and arrived at the conclusion that it would be difficult, if not impossible, to injure the feelings or sensitivity of a person so calloused in nature. His total ignorance, or disregard, of the fiduciary relationship that existed with his employer, The Equitable, is beyond comprehension. To me, it is quite obvious that the jury was inflamed by passion and prejudice in awarding the amount of damages above mentioned. Nevertheless, I have previously ruled, and I still feel, that the record contains sufficient evidence of malice to carry the case to the jury. On this state of the record an alternative should be offered to Dorin.” The judge then ruled that if Dorin filed a remittitur, agreeing to reduce the compensatory damages from $57,500 to $17,500 and the punitive damages from $125,000 to $7,500, Equitable’s motion for a new trial would be denied. Dorin filed the remittitur. If a verdict is the result of appeals to passion and prejudice, the trial court must unconditionally order a new trial and cannot give the plaintiff an option to accept a lesser amount. Equitable contends the rule is automatically applicable in this case because of the language used by the trial judge in his ruling on the motion for new trial. It is within the trial judge’s discretion to conditionally grant a motion for new trial on grounds of exeessiveness, and in the absence of a showing of abuse, his ruling must be affirmed. The trial court was of the opinion that even though the verdict was excessive, the record contained “sufficient evidence” of malice. We are of the opinion, after a careful examination of the record, that the evidence of malice was strong, and that whatever the cause of the jury’s making an excessive award of damages, the judge could properly conclude that such cause did not infect the jury’s finding on the existence of malice to the prejudice of Equitable. There was nothing in the record, other than the size of the award, to impeach the objectivity of the jury or the fairness of the proceedings, and we do not regard the judge’s use of the term “passion and prejudice” as carrying the broad meaning which Equitable would attribute to it. 3. Dorin’s cross appeal. In Casko v. Elgin, Joliet and Eastern Ry. Co. this court held that by consenting to the remittitur, the plaintiff “waived objection to the judgment entered.” While the writer of this opinion, speaking individually, would prefer a rule more liberal to the plaintiff, the Casko decision states the federal rule, followed in this and most circuits. Dorin, however, argues that the law of Illinois is applicable here under Erie R. Co. v. Tompkins. In the Illinois courts, Dorin would not be precluded from asserting that the amount of the verdict was proper because Equitable has appealed. Dorin cites Mooney v. Henderson Portion Pack Co. where, in virtually identical circumstances, the sixth circuit held that the state statute controlled. In Allstate Ins. Co. v. Charneski this court said: “The history of the Erie doctrine has been a continual retreat from conclusionary labels or mechanical solutions and an increasing emphasis has been placed on the consideration and accommodation of the basic state and federal policy goals involved. By this standard we must determine this case.” In Hanna v. Plumer the Supreme Court again considered the choice of law doctrine in diversity cases and stated, with reference to Guaranty Trust Co. v. York, the case enunciating the “outcome determination” test, at page 468: “The ‘outcome determination’ test therefore cannot be read without reference to the twin aims of the Erie rule: discouragement of forum shopping and avoidance of inequitable administration of the laws.” The two rules govern a problem of procedure in the determination of just damages for a wrong, which problem may not arise at all, and will arise, if it does, after completion of trial. Under the federal rule a plaintiff in Dorin’s situation has the choice of taking judgment at the figure set by the judge, or attempting the recovery of a greater amount by a new trial. In theory, if he is entitled to a favorable verdict in a greater amount he will get it from the second jury. Acceptance of the judge’s figure, however, does not protect him from reversal on the appeal of his opponent. Under the Illinois statute such plaintiff is given a “shot” at reinstating his damage verdict on appeal if the defendant appeals, and defendant’s appeal is unsuccessful. With all respect to the sixth circuit which, incidentally, decided Mooney before Hanna v. Plumer, we do not believe that under any “Erie” test this procedural stage in the federal process of adjudication should be governed by the state rule. Dorin’s cross appeal is dismissed, and on Equitable’s appeal the judgment is Affirmed. . Jurisdiction is based on diversity. . Lescher Bldg. Service, Inc. v. Local Union No. 133 of the Sheet Metal Workers Intern. Ass’n (7th Cir. 1962), 310 F.2d 331, 333. . Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v. Moquin (1931), 283 U.S. 520, 51 S.Ct. 501, 75 L.Ed. 1243. . Bucher v. Krause (7th Cir. 1952), 200 F.2d 576, 586, cert. den. 345 U.S. 997, 73 S.Ct. 1141, 97 L.Ed. 1404. . (7th Cir. 1966), 361 F.2d 748, 751. . Kennon v. Gilmer (1889), 131 U.S. 22, 9 S.Ct. 696, 33 L.Ed. 110; Lewis v. Wilson (1894), 151 U.S. 551, 555, 14 S.Ct. 419, 38 L.Ed. 267; Koenigsberger v. Richmond Silver Mining Co. (1895), 158 U.S. 41, 52, 15 S.Ct. 751, 39 L.Ed. 889; Woodworth v. Chesbrough (1917), 244 U. S. 79, 82, 37 S.Ct. 583, 61 L.Ed. 1005; Movible Offshore Co. v. Ousley (5th Cir. 1965), 346 F.2d 870, 875, and S. Birch & Sons v. Martin (9th Cir. 1957), 244 F.2d 556, 562, 17 Alaska 230. It appears that the fifth circuit does allow the plaintiff to appeal the judgment after he has accepted a remittitur. Compare Delta Engineering Corp. v. Scott (5th Cir. 1963), 322 F.2d 11, 15-16, cert. den. 377 U.S. 905, 84 S.Ct. 1164, 12 L.Ed.2d 176, and Steinberg v. Indemnity Ins. Co. of North America (5th Cir. 1966), 364 F. 2d 266, 268, with Movible Offshore Co. v. Ousley, supra. . (1938), 304 U.S. 64, 58 S.Ct. 817, 82 L. Ed. 1188. . 1965 Ill.Rev.Stat. Ch. 110, § 68.1(7). . (6th Cir. 1964), 334 F.2d 7. . (7th Cir. 1960), 286 F.2d 238, 243. . (1965), 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8. . (1945), 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079. . Supra, footnote 12. . (1966), 75 Ill.App.2d 365, 221 N.E.2d 89, 97. 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_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. DOUGLAS, DIRECTOR, CALIFORNIA DEPARTMENT OF HEALTH CARE SERVICES v. INDEPENDENT LIVING CENTER OF SOUTHERN CALIFORNIA, INC., et al. No. 09-958. Argued October 3, 2011 Decided February 22, 2012 Karin S. Schwartz, Supervising Deputy Attorney General of California, argued the cause for petitioner in all cases. With her on the briefs were Kamala D. Harris, Attorney General, Manuel M. Medeiros, State Solicitor General, David S. Chaney, Chief Assistant Attorney General, Douglas M. Press and Julie Weng-Gutierrez, Senior Assistant Attorneys General, Richard T. Waldow, Susan M. Carson, and Jennifer M. Kim, Supervising Deputy Attorneys General, Gregory D. Brown and Carmen Snuggs, Deputy Attorneys General, and Dan Schweitzer. Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Katyal, Acting Deputy Solicitor General Kruger, Deputy Assistant Attorney General Gershengorn, Melissa Arhus Sherry, and Mark B. Stern. Carter G. Phillips argued the cause for respondents in all cases. With him on the brief in No. 10-283 were Eric A. Shumsky, Quin M. Sorenson, Lowell J. Schiller, Michael S. Sorgen, and Dean L. Johnson. Lynn S. Carman and Stanley L. Friedman filed a brief for Independent Living Center of Southern California, Inc., et al., respondents in Nos. 09-958 and 09-1158. Deanne E. Maynard, Seth M. Galanter, Craig J. Cannizzo, and Lloyd A. Bookman filed a brief for intervenor respondents in No. 09-958 and for California Pharmacists, respondents in No. 09-1158. Stephen R Ber-zon, Scott A. Kronland, and Stacey M. Leyton filed a brief for the Dominguez respondents in No. 09-1158. Together with No. 09-1158, Douglas, Director, California Department of Health Care Services v. California Pharmacists Association et al., Douglas, Director, California Department of Health Care Services v. California Hospital Association et al. (see this Court’s Rule 12.4), Douglas, Director, California Department of Health Care Services v. Independent Living Center of Southern California, Inc., et al. (see this Court’s Rule 12.4), Douglas, Director, California Department of Health Care Services v. Dominguez, By and Through Her Mother and Next Friend Brown, et al. (see this Court’s Rule 12.4); and No. 10-283, Douglas, Director, California Department of Health Care Services v. Santa Rosa Memorial Hospital et al., also on certiorari to the same court. Briefs of amici curiae urging reversal in all cases were filed for the State of Michigan et al. by Bill Schuette, Attorney General of Michigan, John J. Bursch, Solicitor General, Raymond O. Howd, and William R. Morris and Joshua S. Smith, Assistant Attorneys General, by William H. Ryan, Jr., former Acting Attorney General of Pennsylvania, and by the Attorneys General for their respective States as follows: Luther Strange of Alabama, John J. Burns of Alaska, Thomas C. Horne of Arizona, Dustin McDaniel of Arkansas, John W. Suthers of Colorado, George Jepsen of Connecticut, Joseph R. Biden III of Delaware, Pamela Jo Bondi of Florida, David M. Louie of Hawaii, Lawrence G. Wasden of Idaho, Gregory F. Zoeller of Indiana, James D. “Buddy” Caldwell of Louisiana, William J. Schneider of Maine, Douglas F. Gansler of Maryland, Jim Hood of Mississippi, Catherine Cortez Masto of Nevada, Roy Cooper of North Carolina, E. Scott Pruitt of Oklahoma, John R. Kroger of Oregon, Peter Kilmartin of Rhode Island, Marty J. Jackley of South Dakota, Robert E. Cooper, Jr., of Tennessee, Greg Abbott of Texas, Mark L. Shurtlejf of Utah, William H. Sorrell of Vermont, Robert M. McKenna of Washington, Darrell V. McGraw, Jr., of West Virginia, J. B. Van Hollen of Wisconsin, and Gregory A. Phillips of Wyoming; and for the National Governors Association et al. by Michael W. McConnell. Briefs of amici curiae urging affirmance in all cases were filed for AARP et al. by Martha Jane Perkins, Stacy J. Canan, Michael R. Schus-ter, Barbara A. Jones, and Byron J. Gross; for the American Civil Liberties Union et al. by Paul R. Q. Wolfson, Shirley Cassin Woodward, John A. Payton, Joshua Civin, and Steven R. Shapiro; for the American Health Care Association et al. by Douglas Hallward-Driemeier, Charles A. Lu-band, Roger A. Schwartz, Tamara L. Seltzer, and Donna D. Fraiche; for the Chamber of Commerce of the United States of America by Alan Un-tereiner, Mark T. Standi, Robin S. Conrad, Kate Comerford Todd, and Sheldon Gilbert; for former HHS Officials by Stephen 1. Vladeck and Charles S. Sims; for Members of Congress by Paul M. Smith and Matthew S. Heilman; and for the National Association of Chain Drug Stores et al. by Frederick R. Ball, Nicholas Lynn, Erin M. Duffy, Donald L. Bell II, and Mary Ellen Kleiman. Briefs of amici curiae were filed in all cases for APA Watch by Lawrence J. Joseph; and for the American Medical Association et al. by Louis W. Bullock, Robert M. Blakemore, and James Eiseman, Jr. Justice Breyer delivered the opinion of the Court. We granted certiorari in these cases to decide whether Medicaid providers and recipients may maintain a cause of action under the Supremacy Clause to enforce a federal Medicaid law — a federal law that, in their view, conflicts with (and pre-empts) state Medicaid statutes that reduce payments to providers. Since we granted certiorari, however, the relevant circumstances have changed. The federal agency in charge of administering Medicaid, the Centers for Medicare & Medicaid Services (CMS), has now approved the state statutes as consistent with the federal law. In light of the changed circumstances, we believe that the question before us now is whether, once the agency has approved the state statutes, groups of Medicaid providers and beneficiaries may still maintain a Supremacy Clause action asserting that the state statutes are inconsistent with the federal Medicaid law. For the reasons set forth below, we vacate the Ninth Circuit’s judgments and remand these cases for proceedings consistent with this opinion. i-H A Medicaid is a cooperative federal-state program that provides medical care to needy individuals. To qualify for federal funds, States must submit to a federal agency (CMS, a division of the Department of Health and Human Services) a state Medicaid plan that details the nature and scope of the State’s Medicaid program. It must also submit any amendments to the plan that it may make from time to time. And it must receive the agency’s approval of the plan and any amendments. Before granting approval, the agency reviews the State’s plan and amendments to determine whether they comply with the statutory and regulatory requirements governing the Medicaid program. See 79 Stat. 419, 344, as amended, 42 U. S. C. §§ 1316(a)(1), (b), 1396a(a), (b); 42 CFR §430.10 et sea. (2010); Wilder v. Virginia Hospital Assn., 496 U. S. 498, 502 (1990). And the agency’s director has specified that the agency will not provide federal funds for any state plan amendment until the agency approves the amendment. See Letter from Timothy M. Westmoreland, Director, Center for Medicaid & State Operations, Health Care Financing Admin., U. S. Dept, of Health and Human Servs.,. to State Medicaid Director (Jan. 2, 2001), online at http:// www.cms.gov/SMDL/downloads/SMD010201.pdf (as visited Feb. 17, 2012, and available in Clerk of Court’s case file). The federal statutory provision relevant here says that a State’s Medicaid plan and amendments must: “provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan ... as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area” 42 U. S. C. § 1396a(a)(30)(A) (emphasis added). B In 2008 and 2009, the California Legislature passed three statutes changing that State’s Medicaid plan. The first statute, enacted in February 2008, reduced by 10% payments that the State makes to various Medicaid providers, such as physicians, pharmacies, and clinics. See 2007-2008 Cal. Sess. Laws, 3d Extraordinary Sess., ch. 3, §§14, 15. The second statute, enacted in September 2008, replaced the 10% rate reductions with a more modest set of cuts. See 2008 Cal. Sess. Laws ch. 758, §§45, 57. And the last statute, enacted in February 2009, placed a cap on the State’s maximum contribution to wages and benefits paid by counties to providers of in-home supportive services. See 2009-2010 Cal. Sess. Laws, 3d Extraordinary Sess., ch. 13, § 9. In September and December 2008, the State submitted to the federal agency a series of plan amendments designed to implement most of the reductions contained in these bills. Before the agency finished reviewing the amendments, however, groups of Medicaid providers and beneficiaries filed a series of lawsuits seeking to enjoin the rate reductions on the ground that they conflicted with, and therefore were preempted by, federal Medicaid law, in particular the statutory provision that we have just set forth. They argued that California’s Medicaid plan amendments were inconsistent with the federal provision because the State had failed to study whether the rate reductions would be consistent with the statutory factors of efficiency, economy, quality, and access to care. In effect, they argued that California had not shown that its Medicaid plan, as amended, would “enlist enough providers” to make Medicaid “care and services” sufficiently available. 42 U. S. C. § 1396a(a)(30)(A). The consolidated cases before us encompass five lawsuits brought by Medicaid providers and beneficiaries against state officials. Those cases produced seven decisions of the Court of Appeals for the Ninth Circuit. See 572 F. 3d 644 (2009); 342 Fed. Appx. 306 (2009); 596 F. 3d 1098 (2010); 563 F. 3d 847 (2009); 374 Fed. Appx. 690 (2010); 596 F. 3d 1087 (2010); and 380 Fed. Appx. 656 (2010). The decisions ultimately affirmed or ordered preliminary injunctions that prevented the State from implementing its statutes. They (1) held that the Medicaid providers and beneficiaries could directly bring an action based on the Supremacy Clause; (2) essentially accepted the claim that the State had not demonstrated that its Medicaid plan, as amended, would provide sufficient services; (3) held that the amendments consequently conflicted with the statutory provision we have quoted; and (4) held that, given the Constitution’s Supremacy Clause, the federal statute must prevail. That is to say, the federal statute pre-empted the State’s new laws. In the meantime, the federal agency was also reviewing the same state statutes to determine whether they satisfied the same federal statutory conditions. In November 2010, agency officials concluded that they did not satisfy those conditions, and the officials disapproved the amendments. California then exercised its right to further administrative review within the agency. The cases were in this posture when we granted certiorari to decide whether respondents could mount a Supremacy Clause challenge to the state statutes and obtain a court injunction preventing California from implementing its statutes. About a month after we heard oral argument, the federal agency reversed course and approved several of California’s statutory amendments to its plan. See Letter from Donald M. Berwick, Administrator, CMS, to Toby Douglas, Director, Cal. Dept, of Health Care Servs. (Oct. 27, 2011); Letter from Larry Reed, Director, Division of Pharmacy, Disabled and Elderly Health Programs Group, CMS, to Toby Douglas, Director, Cal. Dept, of Health Care Servs. (Oct. 27, 2011). In doing so, the agency also approved a limited retroactive implementation of some of the amendments’ rate reductions. The State, in turn, withdrew its requests for approval of the remaining amendments, in effect agreeing (with one exception) that it would not seek to implement any unapproved reduction. See Letter from Michael E. Kilpatrick, Assistant Chief Counsel, Cal. Dept, of Health Care Servs., to Benjamin R. Cohen, Director, Office of Hearings, CMS (Oct. 27, 2011). (The exception consists of one statute for which California has submitted no amendment and which, by its own terms, cannot take effect unless and until this litigation is complete, see 2010 Cal. Sess. Laws eh. 725, §25.) r-i ( — I All parties agree that the agency s approval of the enjoined rate reductions does not make these cases moot. For one thing, the providers and beneficiaries continue to believe that the reductions violate the federal provision, the agency’s view to the contrary notwithstanding. For another, federal-court injunctions remain in place, forbidding California to implement the agency-approved rate reductions. And, in light of the agency’s action, California may well ask the lower courts to set those injunctions aside. While the cases are not moot, they are now in a different posture. The federal agency charged with administering the Medicaid program has determined that the challenged rate reductions comply with federal law. That agency decision does not change the underlying substantive question, namely, whether California’s statutes are consistent with a specific federal statutory provision (requiring that reimbursement rates be “sufficient to enlist enough providers”). But it may change the answer. And it may require respondents now to proceed by seeking review of the agency determination under the Administrative Procedure Act (APA), 5 U. S. C. § 701 et seq., rather than in an action against California under the Supremacy Clause. For one thing, the APA would likely permit respondents to obtain an authoritative judicial determination of the merits of their legal claim. The Act provides for judicial review of final agency action. §704. It permits any person adversely affected or aggrieved by agency action to obtain judicial review of the lawfulness of that action. § 702. And it requires a reviewing court to set aside agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” § 706(2)(A). For another thing, respondents’ basic challenge now presents the kind of legal question that ordinarily calls for APA review. The Medicaid Act commits to the federal agency the power to administer a federal program. And here the agency has acted under this grant of authority. That decision carries weight. After - all, the agency is comparatively expert in the statute’s subject matter. And the language of the particular provision at issue here is broad and general, suggesting that the agency’s expertise is relevant in determining its application. Finally, to allow a Supremacy Clause action to proceed once the agency has reached a decision threatens potential inconsistency or confusion. In these cases, for example, the Ninth Circuit, in sustaining respondents’ challenges, declined to give weight to the Federal Government’s interpretation of the federal statutory language. (That view was expressed in an amicus curiae brief that the United States submitted in prior litigation.) See Independent Living Center of Southern Cal., Inc. v. Maxwell-Jolly, 572 F. 3d 644, 654 (CA9 2009) (referring to the United States’ certiorari-stage invitation brief in Belshe v. Orthopaedic Hospital, 522 U. S. 1044 (1998) (denying writ of certiorari)). And the District Court decisions that underlie injunctions that now forbid California to implement its laws may rest upon similar analysis. But ordinarily review of agency action requires courts to apply certain standards of deference to agency decision-making. See National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967 (2005) (describing deference reviewing courts must show); Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) (same). And the parties have not suggested reasons why courts should not now (in the changed posture of these cases) apply those ordinary standards of deference. Nor have the parties suggested reasons why, once the agency has taken final action, a court should reach a different result in a case like these, depending upon whether the case proceeds in a Supremacy Clause action rather than under the APA for review of an agency decision. Indeed, to permit a difference in result here would subject the States to conflicting interpretations of federal law by several different courts (and the agency), thereby threatening to defeat the uniformity that Congress intended by centralizing administration of the federal program in the agency and to make superfluous or to undermine traditional APA review. Cf. Astra USA, Inc. v. Santa Clara County, 563 U. S. 110, 114 (2011) (noting that the treatment of lawsuits that are “in substance one and the same” “must be the same, ‘[n]o matter the clothing in which [plaintiffs] dress their claims’ ” (quoting Tenet v. Doe, 544 U. S. 1, 8 (2005))). If the two kinds of actions should reach the same result, the Supremacy Clause challenge is at best redundant. And to permit the continuation of the action in that form would seem to be inefficient, for the agency is not a participant in the pending litigation below, litigation that will decide whether the agency-approved state rates violate the federal statute. I — l I — I hH In the present posture of these cases, we do not address whether the Ninth Circuit properly recognized a Supremacy Clause action to enforce this federal statute before the agency took final action. To decide whether these cases may proceed directly under the Supremacy Clause now that the agency has acted, it will be necessary to take account, in light of the proceedings that have already taken place, of at least the matters we have set forth above. It must be recognized, furthermore, that the parties have not fully argued this question. Thus, it may be that not all of the considerations that may bear upon the proper resolution of the issue have been presented in the briefs to this Court or in the arguments addressed to and considered by the Court of Appeals. Given the complexity of these cases, rather than ordering reargument, we vacate the Ninth Circuit’s judgments and remand the cases, thereby permitting the parties to argue the matter before that Circuit in the first instance. It is so ordered. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
sc_respondent	067	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. LAMAR, ARCHER & COFRIN, LLP, Petitioner v. R. Scott APPLING. No. 16-1215. Supreme Court of the United States Argued April 17, 2018. Decided June 4, 2018. Gregory G. Garre, Washington, DC, for Petitioner. Paul Hughes, Washington, DC, for Respondent. Jeffrey E. Sandberg, for the United States as amicus curiae, by special leave of the Court, supporting the respondent. Robert C. Lamar, David W. Davenport, Lamar, Archer & Cofrin, LLP, Atlanta, GA, Gregory G. Garre, Benjamin W. Snyder, Seung Wan (Andrew) Paik, Latham & Watkins LLP, Washington, DC, for Petitioner. Eugene R. Fidell, Yale Law School, Supreme Court Clinic, New Haven, CT, Paul W. Hughes, Michael B. Kimberly, Andrew J. Pincus, Charles A. Rothfeld, Jonathan Weinberg, Mayer Brown LLP, Washington, DC, for Respondent. Justice SOTOMAYOR delivered the opinion of the Court. The Bankruptcy Code prohibits debtors from discharging debts for money, property, services, or credit obtained by "false pretenses, a false representation, or actual fraud," 11 U.S.C. § 523(a)(2)(A), or, if made in writing, by a materially false "statement ... respecting the debtor's ... financial condition," § 523(a)(2)(B). This case is about what constitutes a "statement respecting the debtor's financial condition." Does a statement about a single asset qualify, or must the statement be about the debtor's overall financial status? The answer matters to the parties because the false statements at issue concerned a single asset and were made orally. So, if the single-asset statements here qualify as "respecting the debtor's financial condition," § 523(a)(2)(B) poses no bar to discharge because they were not made in writing. If, however, the statements fall into the more general category of "false pretenses, ... false representation, or actual fraud," § 523(a)(2)(A), for which there is no writing requirement, the associated debt will be deemed nondischargeable. The statutory language makes plain that a statement about a single asset can be a "statement respecting the debtor's financial condition." If that statement is not in writing, then, the associated debt may be discharged, even if the statement was false. I Respondent R. Scott Appling hired petitioner Lamar, Archer & Cofrin, LLP (Lamar), a law firm, to represent him in a business litigation. Appling fell behind on his legal bills, and by March 2005, he owed Lamar more than $60,000. Lamar informed Appling that if he did not pay the outstanding amount, the firm would withdraw from representation and place a lien on its work product until the bill was paid. The parties met in person that month, and Appling told his attorneys that he was expecting a tax refund of " 'approximately $100,000,' " enough to cover his owed and future legal fees. App. to Pet. for Cert. 3a. Lamar relied on this statement and continued to represent Appling without initiating collection of the overdue amount. When Appling and his wife filed their tax return, however, the refund they requested was of just $60,718, and they ultimately received $59,851 in October 2005. Rather than paying Lamar, they spent the money on their business. Appling and his attorneys met again in November 2005, and Appling told them that he had not yet received the refund. Lamar relied on that statement and agreed to complete the pending litigation and delay collection of the outstanding fees. In March 2006, Lamar sent Appling its final invoice. Five years later, Appling still had not paid, so Lamar filed suit in Georgia state court and obtained a judgment for $104,179.60. Shortly thereafter, Appling and his wife filed for Chapter 7 bankruptcy. Lamar initiated an adversary proceeding against Appling in Bankruptcy Court for the Middle District of Georgia. The firm argued that because Appling made fraudulent statements about his tax refund at the March and November 2005 meetings, his debt to Lamar was nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A), which governs debts arising from "false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's ... financial condition." Appling, in turn, moved to dismiss, contending that his alleged misrepresentations were "statement[s] ... respecting [his] financial condition" and were therefore governed by § 523(a)(2)(B), such that Lamar could not block discharge of the debt because the statements were not "in writing" as required for nondischargeability under that provision. The Bankruptcy Court held that a statement regarding a single asset is not a "statement respecting the debtor's financial condition" and denied Appling's motion to dismiss. 500 B.R. 246, 252 (Bkrtcy.M.D.Ga.2013). After a trial, the Bankruptcy Court found that Appling knowingly made two false representations on which Lamar justifiably relied and that Lamar incurred damages as a result. It thus concluded that Appling's debt to Lamar was nondischargeable under § 523(a)(2)(A). 527 B.R. 545, 550-556 (M.D.Ga.2015). The District Court affirmed. 2016 WL 1183128 (M.D.Ga., Mar. 28, 2016). The Court of Appeals for the Eleventh Circuit reversed. It held that " 'statement[s] respecting the debtor's ... financial condition' may include a statement about a single asset." In re Appling, 848 F.3d 953, 960 (2017). Because Appling's statements about his expected tax refund were not in writing, the Court of Appeals held that § 523(a)(2)(B) did not bar Appling from discharging his debt to Lamar. Id., at 961. The Court granted certiorari, 583 U.S. ----, 138 S.Ct. 734, 199 L.Ed.2d 601 (2018), to resolve a conflict among the Courts of Appeals as to whether a statement about a single asset can be a "statement respecting the debtor's financial condition." We agree with the Eleventh Circuit's conclusion and affirm. II A One of the "main purpose[s]" of the federal bankruptcy system is "to aid the unfortunate debtor by giving him a fresh start in life, free from debts, except of a certain character." Stellwagen v. Clum, 245 U.S. 605, 617, 38 S.Ct. 215, 62 L.Ed. 507 (1918). To that end, the Bankruptcy Code contains broad provisions for the discharge of debts, subject to exceptions. One such exception is found in 11 U.S.C. § 523(a)(2), which provides that a discharge under Chapter 7, 11, 12, or 13 of the Bankruptcy Code "does not discharge an individual debtor from any debt ... for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by" fraud. This exception is in keeping with the "basic policy animating the Code of affording relief only to an 'honest but unfortunate debtor.' " Cohen v. de la Cruz, 523 U.S. 213, 217, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998). More specifically, § 523(a)(2) excepts from discharge debts arising from various forms of fraud. Subparagraph (A) bars discharge of debts arising from "false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's ... financial condition." Subparagraph (B), in turn, bars discharge of debts arising from a materially false "statement ... respecting the debtor's ... financial condition" if that statement is "in writing." B 1 "Our interpretation of the Bankruptcy Code starts 'where all such inquiries must begin: with the language of the statute itself.' " Ransom v. FIA Card Services, N. A., 562 U.S. 61, 69, 131 S.Ct. 716, 178 L.Ed.2d 603 (2011). As noted, the relevant statutory text is the phrase "statement respecting the debtor's financial condition." Because the Bankruptcy Code does not define the words "statement," "financial condition," or "respecting," we look to their ordinary meanings. See ibid. There is no dispute as to the meaning of the first two terms. A "statement" is "the act or process of stating, reciting, or presenting orally or on paper; something stated as a report or narrative; a single declaration or remark." Webster's Third New International Dictionary 2229 (1976) (Webster's). As to "financial condition," the parties agree, as does the United States, that the term means one's overall financial status. See Brief for Petitioner 23; Brief for Respondent 25; Brief for United States as Amicus Curiae 12. For our purposes, then, the key word in the statutory phrase is the preposition "respecting," which joins together "statement" and "financial condition." As a matter of ordinary usage, "respecting" means "in view of: considering; with regard or relation to: regarding; concerning." Webster's 1934; see also American Heritage Dictionary 1107 (1969) ("[i]n relation to; concerning"); Random House Dictionary of the English Language 1221 (1966) ( "regarding; concerning"); Webster's New Twentieth Century Dictionary 1542 (2d ed. 1967) ("concerning; about; regarding; in regard to; relating to"). According to Lamar, these definitions reveal that " 'respecting' can be 'defined broadly,' " but that the word "isn't always used that way." Brief for Petitioner 27. The firm contends that " 'about,' " " 'concerning,' " " 'with reference to,' " and " 'as regards' " denote a more limited scope than " 'related to.' " Brief for Petitioner 3, 18, 27. When "respecting" is understood to have one of these more limited meanings, Lamar asserts, a "statement respecting the debtor's financial condition" is "a statement that is 'about,' or that makes 'reference to,' the debtor's overall financial state or well-being." Id., at 27-28. Under that formulation, a formal financial statement providing a detailed accounting of one's assets and liabilities would qualify, as would statements like " 'Don't worry, I am above water,' " and " 'I am in good financial shape.' " Id., at 19, 28. A statement about a single asset would not. The Court finds no basis to conclude, however, at least in this context, that "related to" has a materially different meaning than "about," "concerning," "with reference to," and "as regards." The definitions of these words are overlapping and circular, with each one pointing to another in the group. "Relate" means "to be in relationship: have reference," and, in the context of the phrase "in relation to," "reference, respect." Webster's 1916; see also id., at 18a (Explanatory Note 16.2). "About" means "with regard to," and is the equivalent of "concerning." Id., at 5. "Concerning" means "relating to," and is the equivalent of "regarding, respecting, about." Id., at 470. "Reference" means "the capability or character of alluding to or bearing on or directing attention to something," and is the equivalent of "relation" and "respect." Id., at 1907. And "regard" means "to have relation to or bearing upon: relate to," and is the equivalent of "relation" and "respect." Id., at 1911. The interconnected web formed by these words belies the clear distinction Lamar attempts to impose. Lamar also fails to put forth an example of a phrase in a legal context similar to the one at issue here in which toggling between "related to" and "about" has any pertinent significance. Use of the word "respecting" in a legal context generally has a broadening effect, ensuring that the scope of a provision covers not only its subject but also matters relating to that subject. Cf. Kleppe v. New Mexico, 426 U.S. 529, 539, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976) (explaining that the Property Clause, "in broad terms, gives Congress the power to determine what are 'needful' rules 'respecting' the public lands," and should receive an "expansive reading"). Indeed, when asked to interpret statutory language including the phrase "relating to," which is one of the meanings of "respecting," this Court has typically read the relevant text expansively. See, e.g., Coventry Health Care of Mo., Inc. v. Nevils, 581 U.S. ----, ----, 137 S.Ct. 1190, 1197, 197 L.Ed.2d 572 (2017) (describing " 'relate to' " as "expansive" and noting that "Congress characteristically employs the phrase to reach any subject that has 'a connection with, or reference to,' the topics the statute enumerates"); Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378-390, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (explaining that " 'relating to' " has a "broad" ordinary meaning and accordingly holding that the Airline Deregulation Act of 1978 provision prohibiting the States from enforcing any law " 'relating to rates, routes, or services' " of any air carrier pre-empted any fare advertising guidelines that "would have a significant impact upon the airlines' ability to market their product, and hence a significant impact upon the fares they charge"); Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990) (" 'A law "relates to" an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.' Under this 'broad common-sense meaning,' a state law may 'relate to' a benefit plan ... even if the law is not specifically designed to affect such plans, or the effect is only indirect" (citation omitted)). Advancing that same expansive approach here, Appling contends that a "statement respecting the debtor's financial condition" is "a statement that has a direct relation to, or impact on the balance of all of the debtor's assets and liabilities or the debtor's overall financial status." Brief for Respondent 17 (internal quotation marks and citations omitted). "A debtor's statement describing an individual asset or liability necessarily qualifies," Appling explains, because it "has a direct impact on the sum of his assets and liabilities." Ibid. "Put differently, a debtor's statement that describes the existence or value of a constituent element of the debtor's balance sheet or income statement qualifies as a 'statement respecting financial condition.' " Ibid. The United States as amicus curiae supporting Appling offers a slightly different formulation. In its view, a "statement respecting the debtor's financial condition" includes "a representation about a debtor's asset that is offered as evidence of ability to pay." Brief for United States as Amicus Curiae 11. Although Appling does not include "ability to pay" in his proffered definition, he and the United States agree that their respective formulations are functionally the same and lead to the same results. See Tr. of Oral Arg. 50-52, 58. That is so because to establish the requisite materiality and reliance, a creditor opposing discharge must explain why it viewed the debtor's false representation as relevant to the decision to extend money, property, services, or credit. If a given statement did not actually serve as evidence of ability to pay, the creditor's explanation will not suffice to bar discharge. But if the creditor proves materiality and reliance, it will be clear the statement was one "respecting the debtor's financial condition." Whether a statement about a single asset served as evidence of ability to pay thus ultimately always factors into the § 523(a)(2) inquiry at some point. We agree with both Appling and the United States that, given the ordinary meaning of "respecting," Lamar's preferred statutory construction-that a "statement respecting the debtor's financial condition" means only a statement that captures the debtor's overall financial status-must be rejected, for it reads "respecting" out of the statute. See TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) ("[A] statute ought ... to be so construed that ... no clause, sentence, or word shall be superfluous, void, or insignificant" (internal quotation marks omitted)). Had Congress intended § 523(a)(2)(B) to encompass only statements expressing the balance of a debtor's assets and liabilities, there are several ways in which it could have so specified, e.g., "statement disclosing the debtor's financial condition" or "statement of the debtor's financial condition." But Congress did not use such narrow language. We also agree that a statement is "respecting" a debtor's financial condition if it has a direct relation to or impact on the debtor's overall financial status. A single asset has a direct relation to and impact on aggregate financial condition, so a statement about a single asset bears on a debtor's overall financial condition and can help indicate whether a debtor is solvent or insolvent, able to repay a given debt or not. Naturally, then, a statement about a single asset can be a "statement respecting the debtor's financial condition." 2 Further supporting the Court's conclusion is that Lamar's interpretation would yield incoherent results. On Lamar's view, the following would obtain: A misrepresentation about a single asset made in the context of a formal financial statement or balance sheet would constitute a "statement respecting the debtor's financial condition" and trigger § 523(a)(2)(B)'s heightened nondischargeability requirements, but the exact same misrepresentation made on its own, or in the context of a list of some but not all of the debtor's assets and liabilities, would not. Lamar does not explain why Congress would draw such seemingly arbitrary distinctions, where the ability to discharge a debt turns on the superficial packaging of a statement rather than its substantive content 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_caseorigin	160	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. MILLS et al. v. LOUISIANA. No. 74. Argued April 22, 1959. Decided June 8, 1959 Eugene Stanley argued the cause for petitioners in No. 74. With him on the brief was Albert B. Koorie. Milo B. Williams argued the cause and filed a brief for petitioner in No. 75. Michael E. Culligan, Assistant Attorney General of Louisiana, and J. David McNeill argued the causes for respondent. With Mr. Culligan on the brief were Jack P. F. Gremillion', Attorney General of Louisiana, and Richard A. Dowling. Together with No. 75, Mills v. Louisiana, also on certiorari to the same Court. Per Curiam. The judgments are affirmed. Knapp v. Schweitzer, 357 U.S. 371. Mr. Justice Brennan joins the Court’s opinion, reiterating his belief, expressed in Knapp v. Schweitzer, 357 U. S. 371, 381, that reconsideration of the holding in Feldman v. United States, 322 U. S. 487, is inappropriate in this case. He also reiterates his belief that nothing in this decision forecloses reconsideration of the Feldman holding in a case presenting the issue presented by Feldman. Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:
songer_interven	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case. VERSLUIS et al. v. TOWN OF HASKELL, OKL. SAME v. UNION GRADED SCHOOL DIST. NO. 2 OF MUSKOGEE COUNTY, OKL. Nos. 3197, 3198. Circuit Court of Appeals, Tenth Circuit. March 25, 1946. L. W. Randolph, of Muskogee, Okl., for appellant Leonard Versluis. W. R. Banker, of Muskogee, Okl., for appellant William E. Johnston and W. R. Johnston & Co. Malcolm E. Rosser, of Muskogee, Okl., and N. E. Sharp, of Haskell, Okl., for appellee Town of Haskell, Okl. Richard Martin, of Muskogee, Okl., for appellee Union Graded School Dist. No. 2. Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges. MURRAH, Circuit Judge. The sole question presented by this appeal is whether two class actions brought by Leonard Versluis to collect unpaid paving assessments levied against property owned by the town of Haskell, Oklahoma and Union Graded School District No. 2 of Muskogee County, Oklahoma, are barred by the general statute of limitations. The cases were submitted to the trial court on the pleadings and an agreed statement of facts, and since the issues involved are identical the two cases have been consolidated here on appeal. Jurisdiction is based solely upon diversity of citizenship and requisite amount in controversy, which according to the unchallenged finding of the trial court is present. By appropriate statutory proceedings, Street Improvement District No. 1 of the town of Haskell, Oklahoma, was created for the purpose of paving and otherwise improving the streets located therein. Pursuant thereto, and on September 15, 1920, the town of Haskell issued its street improvement bonds in the aggregate amount of $262,000, consisting of 524 bonds in the principal sum of $500 each, bearing interest at the rate of 6% per annum from date until maturity on September 15, 1930, and 10% per annum thereafter. To provide a fund for the payment of the bonded indebtedness, assessments were levied against the lots in the paving district, to be paid in ten annual installments, with interest at the rate of 7% per annum on the unmatured portion and a penalty of 18% per annum after maturity. At the time the bonds were issued, and at all times since, the town of Haskell and Union Graded School District No. 2, each owned, used and occupied in their governmental capacity certain lots in the paving district, against which assessments were levied. No part of the assessments against the town of Haskell has been paid and only the assessments due for the years 1921 and 1922, were paid by the School District. Approximately fourteen years after the maturity date of the bonds plaintiff, as the holder of more than 100 bonds, brought these actions in the United States District Court for the Eastern District of Oklahoma, in his own behalf and in behalf of others similarly situated “for the amount of such unpaid assessments, together with interest, penalties and damages for failure to pay same when due”. By leave of court, W. R. Johnston & Company and William E. Johnston, as owners of certain of the bonds, filed petitions of intervention in both cases, adopting the allegations and prayers of appellant, Leonard Versluis. The town of Haskell answered admitting the issuance of the street improvement bonds, but denying the validity of the assessments against the property of the municipality, and pleading the statute of limitations. By its answer the School District set out the partial payment of the assessments levied against its property and also pleaded the statute of limitations. Adopting the agreed statement of facts, the trial court held that the cases stated causes of action which entitled appellants to the relief sought, but applied the three year statute of limitations as a bar to the maintenance of the suits. In so doing, the court noted that the question of whether a municipality or school district could invoke the statute of limitations in a suit for a personal judgment for the amount of the special assessments levied against its property had not been directly decided by the Supreme Court of Oklahoma, but in arriving at its conclusions the court followed by analogy other decisions of the Oklahoma court where the defense of laches or limitations had been sustained in cases involving paving assessments under the same or substantially similar paving laws. Appellants contend on appeal that since the special assessments created a statutory lien against the property coequal with the. lien of other taxes, to continue until paid, and there being no expressed intention that the action should he barred by limitations, they do not apply. It is argued that the cases relied upon by the trial court as analogous are clearly distinguishable and not controlling. In any event, it is said that the statute did not begin to run until the asserted causes of action were maintainable and that they were not maintainable until less than three years from the date they were commenced. As the learned trial court recognized, in cases of this type where the only basis of our jurisdiction rests upon diversity of citizenship, and Federal courts are made “another available forum”, it is the duty of the Federal courts to ascertain and follow the state law as declared by the latest expression of the state courts. Huddleston v. Dwyer, 322 U.S. 232, 64 S.Ct. 1015, 88 L.Ed. 1246. Concededly, the Supreme Court of Oklahoma has not passed upon the precise point presented. It has, however, had much to say concerning cognate questions which tend to point the way, and from which we must fashion our conclusions. Where as here, our judgment is but a forecast of what we think the state courts would determine the law to be, it would of course be more efficient to relegate the parties to the state forum for the adjudication of the issues, but we cannot decline to exercise the jurisdiction squarely conferred simply because of the difficulties of ascertaining the governing state law. Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9. When in 1920, the improvement bonds, involved here, were authorized and issued the 1910 Street Improvement Laws, (Article XII, c. 10, R.L.1910) were in force and pertinently provided that any property owned by the city or county, or any board of education or school district, should be treated and considered the same as the property of other owners, and the property of any city, school district or board of education within the district to be assessed should be liable and assessed for its proper share of the cost of such improvements. Sec. 618. And, the special assessments, authorized to he levied against the property, and each instalment with interest thereon were declared to be a lien against the lots and tracts so assessed, coequal with the lien of other taxes and pri- or and superior to all other liens against such lots or tracts, until fully paid. Sec. 634. Upon default of any installment and interest it became the statutory duty of the city clerk of the City or Town levying the assessments to promptly and on or before the l-5th day of September of each year after the maturity'date, to certify the delinquent installment and interest to the County Treasurer of the County in which the City or Town is located. Thereupon it became the statutory duty of the Treasurer to place the delinquent installment and interest upon the next delinquent tax list and to collect the same “as other delinquent taxes are collected” and to pay the proceeds to the City Treasurer for disbursement on account of the assessments levied. Secs. 642 and 643. But, when these bonds were issued it was against the public policy of the State to allow property belonging to a public corporation and used for public purposes, such as property belonging to a city or school district, to be sold to satisfy delinquent special assessments. Instead, the owner of improvement bonds or securities was allowed to maintain an action for personal judgment against the sovereign owner of the benefited public property for the amount of the delinquent special assessments levied against such public property for the payment of the bonds or securities, plus interest thereon. City of Drumright v. McCormick, 118 Okl. 140, 247 P. 25. See also Clark v. City of Weatherford, 143 Okl. 165, 288 P. 278, and Blythe v. City of Tulsa, 172 Okl. 586, 46 P.2d 310, 313. Insofar as we can ascertain there is nothing in the statutes or prevailing rules of decision to indicate that such action for personal judgment was a special proceedings or that it was not subject to the same statute of limitations governing any other civil action. Apparently relying upon the foregoing remedy certain holders of paving improvement bonds, in Independent School District v. Exchange National Company, 164 Okl. 176, 23 P.2d 210, 211, 95 A.L.R. 685, brought an action on December 19, 1930 (within three years from the date of maturity of the last bond on September 1, 1928) for a personal judgment against a school district to recover delinquent assessments against benefited property of the district which had been proportionately assessed to pay the improvement bonds. As in our case, the bonds were issued in pursuance of the 1910 Street Improvement Laws, supra. The trial court rendered judgment against the school district for the amount of the unpaid assessments, plus interest and penalties. The Supreme Court, however, reversed, holding that since the paving statute did not expressly authorize the recovery of a judgment against the school district for the delinquent installments, the asserted remedy was not available. The court pointed out that inasmuch as the board of education, as the owner of the benefited property within the district, was required as a ministerial duty to include an amount equal to each installment in the annual estimate for the purpose of paying the same “the remedy of mandamus was available to plaintiff and might be exercised for each and every year the governing boards failed to perform their respective duties”, and that such remedy was exclusive. The doctrine as announced in City of Drumright v. McCormick, supra, and approved in Clark v. City of Weatherford, supra, was expressly repudiated. At the time of this decision, and for some time thereafter, it was the prevailing view that the remedy of mandamus was not available to compel the levy of taxes in one fiscal year to pay the installments which matured in prior years, on the theory that the Constitution (Secs. 26 and 29, Article 10) prohibited the application of general funds of one specific fiscal year to the payment of the obligations of a prior year. See St. Louis-San Francisco R. Co. v. Choctaw County Excise Board, 173 Okl. 312, 48 P.2d 312. Thus, by force of these decisions mandamus, although available, was rendered virtually ineffectual. It is well settled in Oklahoma that the governing statutes, as construed by the Oklahoma courts at the time of the authorization and issuance of the improvement bonds enter into and become an essential part of the contract in such a way that the obligations they impose cannot be impaired by subsequent change in the law, and for the purposes of this rule, a change of decision after the rights are acquired is tantamount to an amendment of the law by legislative enactment; Hann v. City of Clinton, 10 Cir., 131 F.2d 978; McGrath v. Oklahoma City, 156 Okl. 34, 9 P.2d 711; Prince v. Ypsilanti Sav. Bank, 140 Okl. 131, 282 P. 282; Nelson v. Pitts, 126 Okl. 191, 259 P. 533, 53 A.L.R. 1137; and Perryman v. City Home Builders, 121 Okl. 150, 248 P. 605. But, it also seems well settled that the remedy for the enforcement of the vested right may be changed by legislation or judicial construction in the public interest, provided the new remedy afforded is substantially equivalent to the old. Sutton v. Kalka, 141 Okl. 233, 285 P. 1, quoting from Seibert v. United States, 122 U.S. 284, 7 S.Ct. 1190, 30 L.Ed. 1161; and Meyer v. City of Eufaula, 10 Cir., 132 F.2d 648; Wood v. Lovett, 313 U.S. 362, 61 S.Ct. 983, 85 L.Ed. 1404; Honeyman v. Jacobs, 306 U.S. 539, 59 S.Ct. 702, 83 L.Ed. 972; Richmond Mortgage & Loan Corp. v. Wachovia Bank & Trust Co., 300 U.S. 124, 57 S.Ct. 338, 81 L.Ed. 552, 108 A.L.R. 886; Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413, 88 A.L.R. 1481. In Board of Education of City of Duncan v. Johnston, 189 Okl. 172, 115 P.2d 132, 134, owners of paving bonds secured a writ of mandamus in the Oklahoma trial court to compel the Board of Education of the City of Duncan to include in its estimates for the fiscal years 1937, ’38 and ’39 tax levies to pay delinquent installments and interest on paving bonds for the fiscal years 1924, ’25 and ’26. The bonds were issued in 1922 in pursuance of the 1910 paving laws and matured either in 1931 or 1932. Although the Supreme Court of Oklahoma did not allude to the constitutional prohibition against levy of taxes in one fiscal year to pay the obligations of other and prior years, it reversed the trial court holding that “while a lien co-equal with that of taxes is created by statute * * * it may be extinguished by a mere lapse of time * * * within which under the provisions of civil procedure * * a civil action can be brought to liquidate the obligation”, and that since more than a decade had elapsed since it was the duty of the board of education to make the tax levies with which to pay the assessments the action was barred by laches. The court cited and quoted from Independent School District v. Exchange National Company, supra, to the effect that our system for collection of taxes was never intended to permit bondholders to sit for a period of 10 years without taking advantage of their right to enforce payment of the assessments, thereby allowing them to bear 18% penalties from due date. In the more recent case of Wilson v. City of Hollis, 193 Okl. 241, 142 P.2d 633, 637, 150 A.L.R. 1385, the bondholder sought a writ of mandamus to compel the. members of the Board of Education to provide in its annual budget for the fiscal year 1940-1941, funds to pay the 1929 delinquent installments, together with accrued interest and penalties on street improvement assessments levied against the Board’s property in pursuance of Sec. 20 of the 1923 law, 11 O.S.A. 100, which superseded the 1910 law, and to make similar provisions for the payment of remaining delinquent installments on the bonds which were issued in 1927 and matured in 1936. Among other defenses, the Board of Education pleaded the statute of limitations and laches as a bar to the mandamus action. The trial court issued the writ and the question of the application of limitations or laches was saved on appeal. The Supreme Court was of the opinion that when the Act was “studied and applied to the situation” before it, “limitation or laches is not a bar to plaintiff”. In reaching this conclusion the court apparently did not find it necessary to overrule or mention its previous pronouncements in Board of Education v. Johnston, 189 Okl. 172, 115 P.2d 132. The court went on to point out that since the law (Sec. 20 of the 1923 Act, 11 O.S.A. § 100, as did the 1910 law, see Independent School District v. Exchange National Co., supra) imposed a mandatory duty upon the proper officials to make annual levies to pay installments as. they mature, there was no authority to make levies in any one year for installments maturing in any prior year. In other words, if the officials neglected to perform their plain statutory duty in any one year the non-feasance could not be cured by levies in subsequent years to pay the delinquent installments. It was noted that although the special assessments and each installment thereof are declared to be a lien against the lots and tracts of land in the district, co-equal with the lien of other taxes, and the property of the city, county or school district is to be considered the same as the property of other owners, yet the obligation to pay the assessments was not made a “true lien against public property because of the lack of-a method of enforcement”. “If”, said the court “our previous holdings in their totality are correct, then it must be assumed that it was the legislative intention to render the collection of street improvement assessments ■against the property owned and used by the school district impracticable if not impossible * * . We must decline to ascribe any such intention to the legislature”. Contrary to the philosophy of prior decisions, the Supreme Court was of the view that there was nothing in the Constitution which forbade the levy of taxes In one fiscal year to pay those obligations which were fixed by statute and not voluntarily assumed in a prior year. The court specifically overruled such cases and expressly adopted the rule followed- in Smartt v. Board of Commissioners of Craig County, 67 Okl. 141, 169 P. 1101, L.R.A.1918C, 313. It also expressly overruled the philosophy of Independent School District v. Exchange National Co., 164 Okl. 176, 23 P.2d 210, 95 A.L.R. 685, to the effect that mandamus was the exclusive remedy afforded bondholders, and the long line of decisions which followed it, and reinstated the rule in City of Drum-right v. McCormick, supra. Thus, as we interpret the decision, the remedy of mandamus to compel a tax levy for the fiscal year 1940-1941 to pay special assessment installments delinquent since 1929, although not barred by laches or limitations, nor prohibited by constitutional limitations, was nevertheless unavailable as of right. That instead, an action for money judgment, as in Smartt v. Board of Commissioners of Craig County supra, was maim tainable and the case was reversed and remanded with directions “to take further proceedings in conformity with the views expressed herein”. The court did not, however, pass upon the question whether the statute of limitations applied to the action for a personal judgment. Indeed, it could not have done so because no such action was before it. We cannot attribute to the court an intention to deny the application of the statute of limitations to a suit for a personal judgment simply because it held such action maintainable, or because it refused to apply the statute of limitations or laches to the mandamus action, which it said was not maintainable. . In Johnston v. Board of Education, 194 Okl. 150, 148 P.2d 195, 197, it was held that although under Section 29 of the 1923 Act (11 O.S.A. § 107) a bondholder could foreclose his assessment lien for the amount of the delinquent installments (a right not granted by the 1910 Act), no such ■ proceeding could be maintained against public property, and that mandamus was the proper remedy to enforce levy of taxes for delinquent assessments, citing Independent School District v. Exchange National Co., supra. The mandamus action was commenced on August 7, 1942, to compel a levy for the fiscal year 1942 to pay the 1933 and 1934 installments for the payment of bonds maturing in August, 1934. Previously, and in 1939, a writ of mandamus’ had been granted compelling the Board of Education to make levies for the fiscal years 1939-40, 1940-41 and 1941-42 to pay delinquent installments for 1932, 1933, and 1934. The Board complied with the writ for the fiscal year 1939-40, but failed to comply for subsequent years. In these circumstances, the court was of the opinion that laches did not attach until the bonds matured in 1934. That, in any event, the question of laches was settled by the previous judgment of the trial court and since the suit was commenced not later than two years from the time the Board defaulted, the bondholders were not barred by laches. The case was accordingly reversed and remanded, not however with directions to grant the writ of mandamus but with directions to seek a money judgment in consonance with the pronouncements in the Wilson case, supra. In arriving at this conclusion the court expressly distinguished the facts before it from those in Board of Education of City of Duncan v. Johnston, 189 Okl. 172, 115 P.2d 132, pointing out that unlike the earlier case the bondholder in the case before it “was not guilty of undue delay in asserting his rights”. We do not understand that because the Oklahoma Court took the view that mandamus was not barred by laches it was likewise of the view that the statute of limitations would not apply to an action for personal judgment, which it held to be the available remedy. To do so would attribute to the opinion a decision on a point neither presented nor discussed. Our conception of the court’s views in that respect is strengthened by the later case of City of Bristow v. Groom, 194 Okl. 384, 151 P.2d 936. That case was an action by street improvement bondholders to foreclose their special assessment liens under Section 29 of the 1923 Act, 11 O.S.A. § 107. A separate cause of action was stated against each- owner of a lot or lots in the paving district. The suit was commenced on March 22, 1940, more than five years after the last installment of the assessment became delinquent and the bonds payable. The defendants, who were individual owners of the lots affected, pleaded the statute of limitations as a bar to the actions. Plaintiff contended that the suits were “special proceedings” to foreclose a lien which was “co-equal with the lien of other taxes” to continue until fully paid, and that the general statute of limitations was therefore not applicable. In holding that the statute applied to bar the actions, the court pointed to the comprehensive nature of the general statutes of limitations as applicable to all “civil actions”, and observed that unless otherwise specifically provided or unless a legislative intent is clearly manifest, no exception could be claimed in favor of particular persons or cases. Finding no specific provision or legislative intent to except the actions from the application of the general statute of limitations, the court concluded that the proceedings authorized by Section 29 was not a “special proceedings” but a “civil action”, subject to the general statute of limitations. Although the Groom case did not involve the enforcement of a special assessment lien against public property, it does, we think, clearly indicate the disposition of the Oklahoma court to apply the statute of limitations to any civil action brought for the enforcement of a special assessment lien, whether the same is a suit to foreclose private property under Section 29 of the 1923 Act, or a suit for a personal judgment against the owner of public property, as authorized in Wilson v. City of Hollis, supra; Johnston v. Board of Education, supra; Board of Education v. City of Chickasha, ex rel. Poole, 195 Okl. 127, 155 P.2d 723. The only difference between a civil action to foreclose under Section 29 and an action for personal judgment, recognized by the Oklahoma court, is the manner of collecting the judgment. In either case the lien is co-equal with the lien of other taxes and continues until fully paid. There is no material difference in the form of the action. Generally, statutes of limitations run in behalf of school districts and municipal corporations, as if they were individuals. Limitations of Action, vol.'34, Am.Jur. 397, 398. Oklahoma follows this rule. Fabric Fire Hose Co. v. Town of Afton, 95 Okl. 298, 219 P. 680. We conclude, as did the trial court, that the general statute of limitations is applicable to this action, as well as the suits to foreclose in City of Bristow v. Groom, supra. The trial court concluded that the asserted causes of action accrued and the statute of limitations commenced to run not later than twelve months after the last installment of the special assessment became delinquent. In so holding, it relied upon the ruling in City of Bristow v. Groom, supra, but that case involved foreclosure of delinquent installments under Section 29 of the 1923 Act, 11 O.S.A. § 107, which specifically provided inter alia that the right to foreclose the delinquent assessment lien accrued “at least” twelve months after the maturity of the last installment. But, no such provision controls our right of action, and we are therefore of the opinion that these causes of action accrued when on September 15, 1930, the bonds matured and the last installment became delinquent. The trial court also concluded that the three year statute was applicable, but was of the opinion that even if the five year statute applied the actions were nevertheless barred. Since the liability sought to be enforced is one “created by statute other than forfeiture or penalty” the three year statute of limitations undoubtedly applies as in City of Bristow v. Groom, supra. Subdivision 2, 12 O.S.A. § 95. The appellants take issue with this conclusion, contending that the causes of action for the personal judgment did not accrue so as to start the running of the statute of limitations until the actions were maintainable, and that they were not maintainable until made available as a remedy by the decision in Wilson v. City of Hollis, 193 Okl. 241, 142 P.2d 633, 150 A.L.R. 1385, finally decided on November 9, 1943. It is the rule, as contended, that the statute of limitations does not start to run on a cause of action until the plaintiff “could have first maintained the action to a successful result”. Skelly Oil Company v. Harrell, 192 Okl. 101, 134 P.2d 136; Harris v. Heron, 194 Okl. 226, 149 P.2d 94, and cases cited. But, as we have seen, when the bonds matured and the last installment became due on September 15, 1930, the appellants could have successfully maintained these asserted causes of action under the authority of City of Drumright v. McCormick, 118 Okl. 140, 247 P. 25, decided in June, 1926, and Clark v. City of Weatherford, 143 Okl. 165, 288 P. 278, decided in May, 1929. It follows that the three year statute of limitations commenced to run on that date, and 'operated to bar these actions on September 15, 1933, unless it was sooner interrupted or suspended by the decision in Independent School District v. Exchange National Co., 164 Okl. 176, 23 P.2d 210, 95 A.L.R. 685, decided June 6, 1933, which repudiated the decisions in City of Drumright v. McCormick, supra, and Clark v. City of Weather-ford, supra, and expressly cut off the right to maintain this form of action. “Statutes of limitations are now generally looked upon with favor as statutes of repose, and should be reasonably construed and applied”, City of Bristow v. Groom, supra [194 Okl. 384, 151 P.2d 940], and unless the statute provides an exception the courts are not warranted in making one, although its application in the particular circumstances may be inequitable or work a hardship or inconvenience on the suitor. See 34 Am.Jur. 186. However, it is a well recognized exception that “whenever a person is prevented from exercising his legal remedy by some paramount authority, the time during which he is thus prevented is not to be counted against him in determining whether the statute of limitations has barred his right”. Johnson v. Johnson, 182 Okl. 293, 77 P.2d 745. See also Amy v. Watertown, 130 U.S. 320, 9 S.Ct. 537, 32 L.Ed. 953; United States v. Wiley, 78 U.S. 508, 11 Wall. 508, 20 L.Ed. 211; Dillon v. Board of Pension Com’rs, 18 Cal.2d 427, 116 P.2d 37, 136 A.L.R. 800; Steele v. Bliss, 166 Mich. 593, 132 N.W. 345, 37 L.R.A.,N.S., 859, Ann.Cas.1912D, 1020; Bovay v. H. M. Byllesby & Co., Del.Ch., 29 A.2d 801; Knipple v. Lipke, 211 Minn. 238, 300 N.W. 620, 137 A.L.R. 783. It is said that the statutes of limitations “are enacted upon the presumption that one having a well founded claim will not delay enforcing it beyond a reasonable time, if he has the power to sue * * but the basis of the presumption is gone whenever the ability to resort to the courts has been taken away”. United States v. Wiley supra [78 U.S. 513, 11 Wall. 513, 20 L.Ed. 211], Recognizing and making application of the exception, the Oklahoma courts have held that the continuity of adverse possession of one seeking to establish title by prescription was interrupted to preclude the establishment of the title during the time in which the possession was under authority of the court order pending an unsuccessful appeal. Johnson v. Johnson, 182 Okl. 293, 77 P.2d 745. And, the statute of limitations was suspended on a cause of action upon a note payable to a Building and Loan Association during liquidation of the Association under supervision of the Bank Commissioner, on the theory that the assets of the corporation were “in custodia legis”. McGee v. Kirby, 189 Okl. 488, 118 P.2d 199. But, it has also held that the appointment of a receiver in a suit on a debt, will not operate to suspend the running of the statute of limitations in favor of a judgment creditor who fails to have execution issued on his judgment within five years from the rendition thereof. Skinner v. First Nat. Bank of Davis, 135 Okl. 61, 273 P. 893. We do not understand that a person is prevented from exercising his legal remedy merely because relevant decisions have obscured or rendered doubtful whether the action might be successfully maintained. In our case the appellants were not restrained by any superior power from instituting the suit — the courts were open. It is true that before the bar fell the Supreme Court denied the asserted right of another suitor to maintain an action of this kind on the grounds that it was not available, but that decision did not operate to prevent the institution of these suits. We know of no case holding that an adverse rule of decision operates as a “superior power” to prevent the successful maintenance of a suit; the trend is the other way. See 34 Am.Jur. § 188, p. 152. The only sure way to determine whether a suit can be maintained to a successful result is to try it. The application of the statute of limitations cannot be made to depend upon the constantly shifting state of the law, and a suitor cannot toll or suspend the running of the statutes by relying upon the uncertainties of controlling law. It is incumbent upon him to test his right and remedy in the available forums. These suits were not commenced until through the labor of others the way was made clear. We conclude that the statute of limitations is an effective bar to the maintenance of the suits, and the judgments of the trial court are affirmed. The installments of assessments for the years 1922 were paid as the result of a mandamus suit filed by Fred W. Martin, Trustee in 1936, on behalf of himself and others similarly situated. Sec. 618 of the 1910 Street Improvement Laws provides: “Any property which shall be owned by the city or county, or any board of education, or school district, shall be treated and considered the same as the property of other owners, and the property of any city, comity, school district, or board of education within the district to be assessed shall be liable and assessed for its proper share of the cost of such im- provements, in accordance with the provisions of this article”. Sec. 20 of the 1923 Act provides: “Any property which shall be owned by the city, town or county or any board of education or school district, shall be treated and considered the same as the-property of other owners, and such city,, town, county, school board or Board of Education within such district to be assessed, shall annually provide by the-levy of taxes in a sufficient sum to pay the maturing assessments and interest thereon”. The courts have' made no distinction in the interpretation of the two sections. Both have been construed as imposing a non-discretionary duty upon the taxing officials to provide the levy for payment of the maturing installments. First National Bank in Wichita v. Board of Education, 174 Okl. 164, 49 P.2d 1077, and cases cited therein; City of Shawnee v. Exchange National Co., 185 Okl. 451, 94 P.2d 250. Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case? A. no intervenor in case B. intervenor = appellant C. intervenor = respondent D. yes, both appellant & respondent E. not applicable Answer:
sc_casedisposition	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. KOTCH et al. v. BOARD OF RIVER PORT PILOT COMMISSIONERS FOR THE PORT OF NEW ORLEANS et al. No. 291. Argued February 5, 6, 1947. Decided March 31, 1947. M. A. Grace and Charles A. O’Niell, Jr. argued the cause and filed a brief for appellants. Arthur A. Moreno argued the cause for appellees. With him on the brief was Selim B. Lemle. Mr. Justice Black delivered the opinion of the Court. Louisiana statutes provide in general that all seagoing vessels moving between New Orleans and foreign ports must be navigated through the Mississippi River approaches to the port of New Orleans and within it exclusively by pilots who are State officers. New State pilots are appointed by the governor only upon certification of a State Board of River Pilot Commissioners, themselves pilots. Only those who have served a six-month apprenticeship under incumbent pilots and who possess other specific qualifications may be certified to the governor by the board. Appellants here have had at least fifteen years experience in the river, the port, and elsewhere, as pilots of vessels whose pilotage was not governed by the State law in question. Although they possess all the statutory qualifications except that they have not served the requisite six months apprenticeship under Louisiana officer pilots, they have been denied appointment as State pilots. Seeking relief in a Louisiana state court, they alleged that the incumbent pilots, having unfettered discretion under the law in the selection of apprentices, had selected, with occasional exception, only the relatives and friends of incumbents; that the selections were made by electing prospective apprentices into the pilots’ association, which the pilots have formed by authority of State law; that since “membership . . . has been closed ... to all except those having the favor of the pilots” the result is that only their relatives and friends have and can become State pilots. The Supreme Court of Louisiana has held that the pilotage law so administered does not violate the equal protection clause of the Fourteenth Amendment, 209 La. 737, 25 So. 2d 527. The case is here on appeal from that decision under 28 U. S. C. § 344 (a). The constitutional command for a state to afford “equal protection of the laws” sets a goal not attainable by the invention and application of a precise formula. This Court has never attempted that impossible task. A law which affects the activities of some groups differently from the way in which it affects the activities of other groups is not necessarily banned by the Fourteenth Amendment. See e. g., Tigner v. Texas, 310 U. S. 141, 147. Otherwise, effective regulation in the public interest could not be provided, however essential that regulation might be. For it is axiomatic that the consequence of regulating by setting apart a classified group is that those in it will be subject to some restrictions or receive certain advantages that do not apply to other groups or to all the public. Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96, 106. This selective application of a regulation is discrimination in the broad sense, but it may or may not deny equal protection of the laws. Clearly, it might offend that constitutional safeguard if it rested on grounds wholly irrelevant to achievement of the regulation’s objectives. An example would be a law applied to deny a person a right to earn a living or hold any job because of hostility to his particular race, religion, beliefs, or because of any other reason having no rational relation to the regulated activities. See American Sugar Rfg. Co. v. Louisiana, 179 U. S. 89, 92. The case of Yick Wo v. Hopkins, 118 U. S. 356, relied on by appellants, is an illustration of a type of discrimination which is incompatible with any fair conception of equal protection of the laws. Yick Wo was denied the right to engage in an occupation supposedly open to all who could conduct their business in accordance with the law’s requirements. He could meet these requirements, but was denied the right to do so solely because he was Chinese. And it made no difference that under the law as written Yick Wo would have enjoyed the same protection as all others. Its unequal application to Yick Wo was enough to condemn it. But Yick Wo’s case, as other cases have demonstrated, was tested by the language of the law there considered and the administration there shown. Cf. Crowley v. Christensen, 137 U. S. 86, 93, 94; Gundling v. Chicago, 177 U. S. 183; New York ex rel. Lieberman v. Van de Carr, 199 U. S. 552; Engel v. O’Malley, 219 U. S. 128, 137. So here, we must consider the relationship of the method of appointing pilots to the broad objectives of the entire Louisiana pilotage law. See Grainger v. Douglas Park Jockey Club, 148 F. 513, and cases there cited. In so doing we must view the appointment system in the context of the historical evolution of the laws and institution of pilotage in Louisiana and elsewhere. Cf. Otis Co. v. Ludlow Mfg. Co., 201 U. S. 140, 154; Jackman v. Rosenbaum, 260 U. S. 22, 31; Bayside Fish Flour Co. v. Gentry, 297 U. S. 422, 428-430. And an important factor in our consideration is that this case tests the right and power of a state to select its own agents and officers. Taylor v. Beckham, 178 U. S. 548; Snowden v. Hughes, 321 U. S. 1, 11-13. Studies of the long history of pilotage reveal that it is a unique institution and must be judged as such. In order to avoid invisible hazards, vessels approaching and leaving ports must be conducted from and to open waters by persons intimately familiar with the local waters. The pilot’s job generally requires that he go outside the harbor’s entrance in a small boat to meet incoming ships, board them and direct their course from open water to the port. The same service is performed for vessels leaving the port. Pilots are thus indispensable cogs in the transportation system of every maritime economy. Their work prevents traffic congestion and accidents which would impair navigation in and to the ports. It affects the safety of lives and cargo, the cost and time expended in port calls, and, in some measure, the competitive attractiveness of particular ports. Thus, for the same reasons that governments of most maritime communities have subsidized, regulated, or have themselves operated docks and other harbor facilities and sought to improve the approaches to their ports, they have closely regulated and often operated their ports’ pilotage systems. The history and practice of pilotage demonstrate that, although inextricably geared to a complex commercial economy, it is also a highly personalized calling. A pilot does not require a formalized technical education so much as a detailed and extremely intimate, almost intuitive, knowledge of the weather, waterways and conformation of the harbor or river which he serves. This seems to be particularly true of the approaches to New Orleans through the treacherous and shifting channel of the Mississippi River. Moreover, harbor entrances where pilots can most conveniently make their homes and still be close to places where they board incoming and leave outgoing ships are usually some distance from the port cities they serve. These “pilot towns” have begun, and generally exist today, as small communities of pilots, perhaps near but usually distinct from the port cities. In these communities young men have an opportunity to acquire special knowledge of the weather and water hazards of the locality and seem to grow up with ambitions to become pilots in the traditions of their fathers, relatives, and neighbors. We are asked, in effect, to say that Louisiana is without constitutional authority to conclude that apprenticeship under persons specially interested in a pilot’s future is the best way to fit him for duty as a pilot officer in the service of the State. The States have had full power to regulate pilotage of certain kinds of vessels since 1789 when the first Congress decided that then existing state pilot laws were satisfactory and made federal regulation unnecessary. 1 Stat. 53, 54 (1789), 46 U. S. C. § 211; Olseny. Smith, 195 U. S. 332, 341; Anderson v. Pacific Coast S. S. Co., 225 U. S. 187. Louisiana legislation has controlled the activities and appointment of pilots since 1805—even before the Territory was admitted as a State. The State pilotage system, as it has evolved since 1805, is typical of that which grew up in most seaboard states and in foreign countries. Since 1805 Louisiana pilots have been State officers whose work has been controlled by the State. That Act forbade all but a limited number of pilots appointed by the governor to serve in that capacity. The pilots so appointed were authorized to select their own deputies. But pilots, and through them, their deputies, were literally under the command of the master and the wardens of the port of New Orleans, appointed by the governor. The master and wardens were authorized to make rules governing the practices of pilots, specifically empowered to order pilots to their stations, and to fine them for disobedience to orders or rules. And the pilots were required to make official bond for faithful performance of their duty. Pilots’ fees were fixed; ships coming to the Mississippi were required to pay pilotage whether they took on pilots or not. The pilots were authorized to organize an association whose membership they controlled in order “to enforce the legal regulations, and add to the efficiency of the service required thereby.” Moreover, efficient and adequate service was sought to be insured by requiring the Board of Pilot Commissioners to report to the governor and authorizing him summarily to remove any pilot guilty of “neglect of duty, habitual intemperance, carelessness, incompetency, or any act or conduct . . . showing” that he “ought to be removed.” La. Act No. 113, § 20 (1857). These provisions have been carried over with some revision into the present comprehensive Louisiana pilotage law. 6 La. Gen. Stat., tit. 59, cc. 6, 8 (1939). Thus in Louisiana, as elsewhere, it seems to have been accepted at an early date that in pilotage, unlike other occupations, competition for appointment, for the opportunity to serve particular ships and for fees, adversely affects the public interest in pilotage. It is within the framework of this long-standing pilotage regulation system that the practice has apparently existed of permitting pilots, if they choose, to select their relatives and friends as the only ones ultimately eligible for appointment as pilots by the governor. Many other states have established pilotage systems which make the selection of pilots on this basis possible. Thus it was noted thirty years ago in a Department of Commerce study of pilotage that membership of pilot associations “is limited to persons agreeable to those already members, generally relatives and friends of the pilots. Probably in pilotage more than in any other occupation in the United States the male members of a family follow the same work from generation to generation.” The practice of nepotism in appointing public servants has been a subject of controversy in this country throughout our history. Some states have adopted constitutional amendments or statutes to prohibit it. These have reflected state policies to wipe out the practice. But Louisiana and most other states have adopted no such general policy. We can only assume that the Louisiana legislature weighed the obvious possibility of evil against whatever useful function a closely knit pilotage system may serve. Thus the advantages of early experience under friendly supervision in the locality of the pilot’s training, the benefits to morale and esprit de corps which family and neighborly tradition might contribute, the close association in which pilots must work and live in their pilot communities and on the water, and the discipline and regulation which is imposed to assure the State competent pilot service after appointment, might have prompted the legislature to permit Louisiana pilot officers to select those with whom they would serve. The number of people, as a practical matter, who can be pilots is very limited. No matter what system of selection is adopted, all but the few occasionally selected must of necessity be excluded. Cf. Olsen v. Smith, supra, 344, 345. We are aware of no decision of this Court holding that the Constitution requires a state governor, or subordinates responsible to him and removable by him for cause, to select state public servants by competitive tests or by any other particular method of selection. The object of the entire pilotage law, as we have pointed out, is to secure for the State and others interested the safest and most efficiently operated pilotage system practicable. We cannot say that the method adopted in Louisiana for the selection of pilots is unrelated to this objective. See Olsen v. Smith, supra; cf. Carmichael v. Southern Coal Co., 301 U. S. 495, 509-510. We do not need to consider hypothetical questions concerning any similar system of selection which might conceivably be practiced in other professions or businesses regulated or operated by state governments. It is enough here that considering the entirely unique institution of pilotage in the light of its history in Louisiana, we cannot say that the practice appellants attack is the kind of discrimination which violates the equal protection clause of the Fourteenth Amendment. Affirmed. A ship entering the Mississippi River from the Gulf of Mexico is piloted the twenty mile distance from the mouth of the river to “Pilot Town” by one of a group of pilots specially familiar with the “entrance” to the Mississippi through the so-called “passes.” La. Acts 1880, No. 99, § 2, La. Acts 1908, No. 55, § 1, La. Acts 1910, No. 26, § 1, 6 La. Gen. Stat. §§ 9141, 9163 (1939). Between Pilot Town and New Orleans, a distance of approximately ninety miles, ships are piloted exclusively by so-called river port pilots. La. Acts 1908, No. 54, § 1, 6 La. Gen. Stat., tit. 59, c. 8 (1939). By an amendment in 1942 the exclusive jurisdiction of the river port pilots was extended to the piloting of seagoing vessels within the port of New Orleans. La. Acts 1942, No. 134, 6 La. Gen. Stat. § 9155 (Supp. 1946). Appellants here sought appointment as river port pilots. Sections 2 and 3 of the Act of 1908 provided for the appointment and commissioning of twenty-eight pilots by the governor and prescribed that thereafter there should not be less than twenty. 6 La. Gen. Stat. §§ 9155, 9156 (1939). The statement of the Louisiana court in this case that pilots so appointed are considered State officers has long been the established State rule. Williams v. Payson, 14 La. Ann. Rep. 7, 8 (1859); Louisiana v. Follett, 33 La. Ann. Rep. 228, 230 (1881); Levine v. Michel, 35 La. Ann. Rep. 1121, 1124 (1883). From among the pilots the governor was required to appoint three River Port Pilot Commissioners. La. Acts 1908, No. 54, § 1, 6 La. Gen. Stat. § 9154 (1939). “Whenever there exists a necessity for more pilots . . . the . . . board of river port pilot commissioners shall hold examinations, under such rules and regulations, and with such requirements as they shall have provided, with the governor’s approval, provided that no applicant shall be considered by said board, unless he submits proper evidence of moral character and is a voter of this state, and shall have served six months’ apprenticeship in his proposed calling, and upon the certificate of the board to the governor that the applicant has complied with the provisions of this act, the governor may, in his discretion, appoint to existing vacancies.” La. Acts 1908, No. 54, § 4. 6 La. Gen. Stat. § 9157 (1939). Appellants were licensed to pilot coastwise vessels to and through the port under federal law which excludes states from controlling pilotage of coastal shipping. Rev. Stat. §§ 4401, 4444, 46 U. S. C. §§ 215, 364. Also prior to the passage of La. Acts 1942, No. 134, they had piloted all classes of vessels within the port of New Orleans. That Act deprived appellants of authority to pilot within the port and conferred it exclusively upon State river port pilots. Thus appellants allege they have been deprived of an opportunity to make a living unless they can obtain appointment as river port pilots under the pilotage law. While the Act does not specifically require that the apprenticeships be performed under incumbent officer pilots, the State Supreme Court has so construed it. La. Rev. Stat. § 2707 (1869), reenacted in § 4 of La. Acts 1928, No. 198, 6 La. Gen. Stat. § 9149 (1939). Appellants’ complaint was dismissed for failure to state a cause of action. Therefore we consider their allegations as facts for the purpose of this decision. Appellants’ prayer had sought an injunction against interference with their serving as pilots, and, in the alternative, sought mandamus to compel the Board to examine appellants as required by law and to certify them to the Governor. The Louisiana Supreme Court affirmed the trial court’s refusal to compel the board to examine appellants because they did not possess the qualifications required to take examinations—specifically, they had not served apprenticeships. See generally, Report of Departmental Committee on Pilotage (London, 1911); Pilotage in the United States, Special Agents Series, Department of Commerce (1917). See Cooley v. Board of Wardens, 12 How. 299, 308, 312, 316, 326; Ex parte McNiel, 13 Wall. 236, 238, 239. For an excellent description of a pilot’s life and duty, see Kane, Deep Delta Country, c. 10 (1944). See Kane, op. cit. supra, note 10. See also Hearings before House Committee on the Merchant Marine and Fisheries on H. R. 9678, 64th Cong., 1st Sess., 106, 214, 229, 279 (1916) (compulsory barge pilotage). See Giesecke, American Commercial Legislation before 1789 (1910) 118; Kane, op. cit. supra, note 10. See Kane, op. cit. supra, note 10. A Louisiana statute provides that “no license shall be granted any person to keep a tavern . . . at the Balize, South West Pass or any other station for pilots, nor within three miles of such station, unless the person applying for such license shall be recommended in writing by a majority of the branch pilots.” La. Rev. Stat. § 2704 (1869), 6 La. Gen. Stat. § 9166 (1939). See Kane op. cit. supra, note 10, 128; see also Pilotage in the United States, op. cit. supra, note 8, 8, 16. La. Acts (Territory of New Orleans) 1805, c. 24; see also Surrey, Commerce of Louisiana, 1699-1763, a. III (1916). Almost all the maritime states, some as colonies before the Revolution, adopted comprehensive pilotage laws which included unrestricted apprenticeship provisions. Mass. Laws, c. 13 (1783); Mass. Rev. Stat. c. 32, §§ 5-42 (1836); New York Laws, c. XVIII, §§ I, VII, X, XII (1819); Pa. Stats, at Large, c. 536, § VI (1767); N. J. Rev. Laws, tit. 37, c. 7, § 18 (1847); 1 Laws of Md. (Dorsey) c. 63, §§ 2, 20, 23 (1803); Code of Virginia, c. 92, §§ 4, 9 (1849); N. C. Rev. Stat. c. 88, §§ 1, 5, 14 (1837). See also Report of Departmental Committee on Pilotage, op. cit. supra, note 8, Part I. See note 2 supra. The 1805 Act required deputies to obtain a certificate from the master and wardens as a condition precedent to their appointment. But § 1 of La. Acts 1806, c. 26, gave pilots blanket authority to appoint their own deputies. Pilots were, however, made responsible for the neglect or misconduct of their deputies. La. Acts 1805, c. 24, § 20; La. Acts 1837, No. 106, § 9. La. Acts 1805, c. 24, § 17. Levine v. Michel, supra, at 1125; see also note 6 supra. See Kane, op. cit. supra, n. 10, at 126-128; all of the State and colonial statutes set out in note 10, supra, provided for limitation on the number of pilots and fixed the fees they might charge. This is generally true today. See n. 23 infra. The Department of Commerce Report, supra, n. 8, at 28 observed that: “The formation of pilots' associations was largely a result of the intense competition that formerly prevailed among the pilots, .... Little effort was made to maintain definite pilot stations. Instead, the desire to be the first to speak a ship frequently led the pilots to cruise great distances from the port. “One of the unfortunate results of the intense competition of pilots was the fact that frequently pilots could not be had when wanted, although they might be far out to sea in quest of business. Another drawback was that pilots unnecessarily exposed themselves to danger. And a third important disadvantage was that it made the earnings precarious; a pilot might earn a great deal this month and very little the next. . . . “The pilots themselves were the first to see the disadvantages of the free or competitive system and to take steps toward the organization of associations. These associations soon developed into strong working combinations that eliminated competition and placed on an amicable basis matters that formerly produced much sharp rivalry. “From the evidence at hand it would appear that the shipping interests as well as the insurance and commercial interests of the ports encouraged the pilots in the formation of these associations. The advantages of a well-organized pilotage system were as apparent to these interests as to the pilots themselves, for the commerce of the port was not only facilitated and expedited but made much safer by reason of the better organization of the pilotage system, which came with the elimination of competition. “Since associations have been formed along the present lines pilot-age grounds have been established . . . These grounds are well known to mariners, who may safely count on finding there at practically all times and in all conditions of weather a pilot boat with a sufficient number of pilots aboard to accommodate any reasonable number of vessels that may come. There is little chance nowadays that a vessel will fail to find a pilot when needed. . . . “Still another advantage of the present organization of pilotage systems is that it permits the maintenance of a central office which is in constant touch with the pilot boat and arranges for the rotation of pilots. The association generally employs an agent to look after the routine business of the office.” See N. J. Laws 1898, c. 31, N. J. Stat. Ann. Title 12, c. 8 (1939); Pa. P. L. 542 of 1803, Pa. Stats. Ann. (Purdon) Title 55, c. 2 (1930); Md. Ann. Code (Flack), Art. 74 (1939); Del. Rev. Code, c. 35 (1935); Va. Code, c. 142 (1942); Ala. Laws, 1931, p. 154, Ala. Code, Title 38, c. 2 (1940); Ore. Comp. Laws Ann., Title 105, c. 2 (1940). See also note 16, supra. Pilotage in the United States, supra, note 8, p. 8. See e. g., Mo. Const., Art. 14, § 13 (1924). See e. g., Idaho Sess. Laws, 1915, c. 10, Idaho Code Ann., § 57-701 (1932); Fla. Laws, 1933, c. 16088, Fla. Stats. Ann. §§ 116.10, 116.11 (1943); Neb. Laws 1919, c. 190, § 6, Neb. Rev. Stat. § 81-108 (1943); Tex. Acts 1909, p. 85, Tex. Penal Code (Vernon) Arts. 432-438 (1938). In Olsen v. Smith, the constitutionality of a Texas statute forbidding all but pilots appointed by the governor to serve was challenged by one who had not been appointed and had been enjoined from serving as a pilot. Yick Wo v. Hopkins, supra, was relied on as authority for a contention that he had been denied rights protected by the Fourteenth Amendment including equal protection of the laws. Id. 334. But this Court in sustaining the constitutionality of the statute, did not specifically discuss the question here raised. Therefore we do not depend upon Olsen v. Smith as a necessarily controlling authority for our decision here. Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:
sc_decisiontype	E	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. CITY OF SPRINGFIELD, MASSACHUSETTS v. KIBBE, ADMINISTRATRIX OF THE ESTATE OF THURSTON No. 85-1217. Argued November 4, 1986 Decided February 25, 1987 Edward M. Pikula argued the cause for petitioner. With him on the briefs were Richard T. Egan and Harry P. Carroll. Terry Scott Nagel argued the cause for respondent. With him on the brief were J. Levonne Chambers and Eric Schnapper. Benna Ruth Solomon and David 0. Stewart filed a brief for the U. S. Conference of Mayors as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Marjorie Heins, Jack D. Novik, Howard Friedman, Michael Avery, and David Rudovsky; and for the National Association for the Advancement of Colored People by Grover G. Hankins. Per Curiam. We granted certiorari to resolve the question whether consistently with our decision in Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), a municipality can be held liable under 42 U. S. C. § 1983 for inadequate training of its employees. 475 U. S. 1064 (1986). In addressing that issue, we anticipated that we would be able to reach the “fairly included” related question, see this Court’s Rule 21.1(a), whether more than negligence in training is required in order to establish such liability. The case having now been fully briefed and orally argued, we conclude that we cannot reach the negligence question. Although petitioner city of Springfield argues here that a heightened negligence standard does not suffice under Monell’s requirement of a municipal policy, it appears that in the District Court petitioner did not object to the jury instruction stating that gross negligence would suffice, App. 234-235, and indeed proposed its own instruction to the same effect. Id., at 28. Nor did it argue for a higher standard than gross negligence in the Court of Appeals. Brief for Defendant-Appellant and Reply Brief for Defendant-Appellant in No. 85-1078 (CA1). It has informed us of no special circumstances explaining its failure to preserve this question. We ordinarily will not decide questions not raised or litigated in the lower courts. See California v. Taylor, 353 U. S. 553, 556, n. 2 (1957). That rule has special force where the party seeking to argue the issue has failed to object to a jury instruction, since Rule 51 of the Federal Rules of Civil Procedure provides that “[n]o party may assign as error the giving . . . [of] an instruction unless he objects thereto before the jury retires to consider its verdict.” Here, our inability to reach the negligence issue makes this case an inappropriate vehicle for resolving the inadequate training question, because of the close interrelationship between the two matters, and the other questions presented are not of sufficient importance to warrant our review independently. The dissent argues that we need not concern ourselves about Springfield’s failure to preserve this issue, because it was passed on by the Court of Appeals below. Post, at 263-266. There is doubtless no jurisdictional bar to our reaching it, whether or not the Court of Appeals did so. See Carlson v. Green, 446 U. S. 14, 17, n. 2 (1980). We think, however, that there would be considerable prudential objection to reversing a judgment because of instructions that petitioner accepted, and indeed itself requested. That the Court of Appeals was fortunate enough to entertain the issue without reaching that outcome would not justify our running the same risk. In any event, we disagree with the dissent’s reading of the Court of Appeals’ opinion, and do not believe that it pursued the extraordinary course of considering this issue — which petitioner had not even raised in its arguments to that court — any more than we are inclined to do so. See 777 F. 2d 801, 804, 809-810 (CA1 1985). (We refrain from elaborating upon the latter point, since it is of no general application.) Unlike Oklahoma City v. Tuttle, 471 U. S. 808 (1985), this case does not present a proper occasion for us to exercise our discretion to decide an issue despite petitioner’s failure to preserve it. In Tuttle, the issue in question was explicitly-set forth in the petition for certiorari, id., at 814, n. 2, and was not objected to in respondent’s brief in opposition to cer-tiorari or in respondent’s merits brief. Id., at 815. In addition, the issue had been fully briefed and argued in the Court of Appeals. Ibid. Here, by contrast, respondent’s failure to object at the petition stage is unsurprising, because the petition did not explicitly present the negligence question, and it had not been addressed below. It would be unreasonable to require a respondent on pain of waiver to object at the cer-tiorari stage not only to the petitioner’s failure to preserve the questions actually presented, but also to his failure to preserve any questions fairly included within the questions presented but uncontested earlier. Respondent strenuously objected to petitioner’s raising this question at the first point that she was on notice that it was at issue in this case — in her response to petitioner’s brief on the merits in No. 85-1078. For these reasons, we have concluded that the writ should be dismissed as improvidently granted. See Belcher v. Stengel, 429 U. S. 118 (1976) (per curiam). It is so ordered. We also granted certiorari on two other questions: whether the “single incident” rule of Oklahoma City v. Tuttle, 471 U. S. 808 (1985), is limited in application to one act by one officer, and whether a policy of inadequate training may be inferred from the conduct of several police officers during a single incident absent evidence of prior misconduct in the department or a conscious decision by policymakers. Question: What type of decision did the court make? A. opinion of the court (orally argued) B. per curiam (no oral argument) C. decrees D. equally divided vote E. per curiam (orally argued) F. judgment of the Court (orally argued) G. seriatim Answer:
songer_crossapp	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case. Vernice DUBOSE, Susan Daigle, individually and on behalf of all others similarly situated, Plaintiffs, Connecticut Legal Services, Inc., San Fernando Valley Neighborhood Legal Services, Appellees-Cross-Appellants, v. Samuel R. PIERCE, Jr., individually and in his official capacity as Secretary of the U.S. Department of Housing and Urban Development; Windham Heights Associates, a limited partnership; Anthony Associates, a general partnership; and Simon Konover, individually and in his official capacity as a general partner in Windham Heights Associates and Anthony Associates, Defendants, Samuel R. Pierce, Jr., individually and in his official capacity as Secretary of the U.S. Department of Housing and Urban Development, Defendant-Appellant-Cross-Appellee. Claudia WALTER and Dominick Cortese, individually and on behalf of all other persons similarly situated, Plaintiffs, Connecticut Legal Services, Inc., San Fernando Valley Neighborhood Legal Services, Appellees-Cross-Appellants, v. Samuel R. PIERCE, Jr., individually and in his official capacity as Secretary of the U.S. Department of Housing and Urban Development; Carabetta Enterprises, Inc., a corporation organized and existing under the laws of the State of Connecticut, located in the Town of Meriden, County of New Haven, State of Connecticut, Defendants, Samuel R. Pierce, Jr., individually and in his official capacity as Secretary of the U.S. Department of Housing and Urban Development, Defendant-Appellant-Cross-Appellee. Janette LITTLE, individually and on behalf of all others similarly situated, Plaintiff, Connecticut Legal Services, Inc., San Fernando Valley Neighborhood Legal Services, Appellees-Cross-Appellants, v. Samuel R. PIERCE, Jr., individually and in his official capacity as Secretary of the U.S. Department of Housing and Urban Development; Richard Brown, individually and in his capacity as part-owner of East Hartford Estates; Oak Management Co., Inc., a Connecticut Corporation; Louis Brown, individually and in his capacity as part-owner of East Hartford Estates, Defendants, Samuel R. Pierce, Jr., individually and in his official capacity as Secretary of the U.S. Department of Housing and Urban Development, Defendant-Appellant-Cross-Appellee. May PLEASANT, individually and on behalf of others similarly situated, Plaintiff, Connecticut Legal Services, Inc., San Fernando Valley Neighborhood Legal Services, Appellees-Cross-Appellants, v. Samuel R. PIERCE, Jr., Secretary of the U.S. Department of Housing and Urban Development; Tuscan Brotherhood Homes, Inc., A Connecticut corporation, Defendants, Samuel R. Pierce, Jr., Secretary of the U.S. Department of Housing and Urban Development, Defendant-Appellant-Cross-Appellee. Pantaleon MORALES, Ylda Ladson and Margaret Williams, individually and on behalf of those similarly situated, Plaintiffs, Connecticut Legal Services, Inc., San Fernando Valley Neighborhood Legal Services, Appellees-Cross-Appellants, v. Samuel R. PIERCE, Jr., individually and in his capacity as Secretary of the U.S. Department of Housing and Urban Development; William H. Hernandez, Jr., individually and in his capacity as Manager for Connecticut for the U.S. Department of Housing and Urban Development; Canterbury Gardens Cooperative, Inc. and Ripps Realty, Inc., Defendants, Samuel R. Pierce, Jr., individually and in his capacity as Secretary of the U.S. Department of Housing and Urban Development; William H. Hernandez, Jr., individually and in his capacity as Manager for Connecticut for the U.S. Department of Housing and Urban Development, Defendants-Appellants-Cross-Appellees. Cathy ADAMS, Sheila Caqette, Barbara Littlejohn and Hazel French, individually and on behalf of all others similarly situated, Plaintiffs, Connecticut Legal Services, Inc., San Fernando Valley Neighborhood Legal Services, Appellees-Cross-Appellants, v. Samuel R. PIERCE, Jr., individually and in his official capacity as Secretary of the U.S. Department of Housing and Urban Development; Branford Manor Associates, Bay Management Corporation, Marvin S. Gold, Annette E.P. Gold, Milton A. Bernblum, John J. Groves, and Burton Levy, individually and as general partners in Branford Manor Associates, Defendants, Samuel R. Pierce, Jr., individually and in his official capacity as Secretary of the U.S. Department of Housing and Urban Development, Defendant-Appellant-Cross-Appellee. Merry Ellen GRUNDMAN, individually and on behalf of all others similarly situated, Plaintiff, Connecticut Legal Services, Inc., San Fernando Valley Neighborhood Legal Services, Appellees-Cross-Appellants, v. Samuel R. PIERCE, Jr., individually and in his capacity as Secretary of the U.S. Department of Housing and Urban Development; John Errichett, individually and in his capacity as owner of Highwood Apartments; Creative Management & Realty, a Connecticut Corporation, Defendants, Samuel R. Pierce, Jr., individually and in his capacity as Secretary of the U.S. Department of Housing and Urban Development, Defendant-Appellant-CrossAppellee. Joann JOHNSON and Frank Jackson, individually and on behalf of all others similarly situated, Plaintiffs, Connecticut Legal Services, Inc., San Fernando Valley Neighborhood Legal Services, Appellees-Cross-Appellants, v. Samuel R. PIERCE, Jr., individually and in his capacity as Secretary, U.S. Department of Housing and Urban Development; William H. Hernandez, Jr., individually and in his capacity as Manager for Connecticut for the U.S. Department of Housing and Urban Development and Ripps Realty, Inc., Defendants, Samuel R. Pierce, Jr., individually and in his capacity as Secretary, U.S. Department of Housing and Urban Development; William H. Hernandez, Jr., individually and in his capacity as Manager for Connecticut for the U.S. Department of Housing and Urban Development, Defendants-Appellants-Cross-Appellees. Nos. 581, 582, 583, Dockets 84-6145, 84-6169, 84-6171, 85-6017. United States Court of Appeals, Second Circuit. Argued Jan. 23, 1985. Decided May 14, 1985. John S. Koppel, Dept, of Justice, Civ. Div., Washington, D.C. (Richard K. Willard, Acting Asst. Atty. Gen., Robert S. Greenspan, Dept, of Justice, Washington, D.C., Alan H. Nevas, U.S. Atty., D. Connecticut, New Haven, Conn., of counsel), for appellants-cross-appellees. Dennis J. O’Brien, Connecticut Legal Services, Inc., Willimantic, Conn. (Douglas M. Crockett, Norman K. Janes, Connecticut Legal Services, Inc., Willimantic, Conn., of counsel), for appellees-cross-appellants Connecticut Legal Services, Inc. William H. Clendenen, New Haven, Conn. (Fred Altshuler, Lew Hollman, San Fernando Valley Neighborhood Legal Services, Inc., Pacoima, Cal., of counsel), for appel-lees-cross-appellants San Fernando Valley Neighborhood Legal Services, Inc. Before VAN GRAAFEILAND, MES-KILL and WINTER, Circuit Judges. Judge Winter having recused himself after oral argument, this decision is rendered solely by Judges van Graafeiland and Meskill, who are in agreement, pursuant to § 0.14(b) of the Rules of the United States Court of Appeals for the Second Circuit. MESKILL, Circuit Judge: This action is before us on appeal from a judgment entered in the United States District Court for the District of Connecticut, Blumenfeld, J, granting plaintiffs’ motion for attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (1982) (EAJA). The court held that the government’s position in litigation was not substantially justified so that a fee award to plaintiffs was proper. Because we disagree with the court’s conclusion, we reverse. We also dismiss plaintiffs’ cross-appeal concerning the amount and calculation of the award. I This case represents the final chapter in a lengthy series of actions concerning federal housing subsidies. Because the issue ■before us is a limited one — whether the district court’s award of fees was proper — a brief review of the facts will suffice. The complete factual and procedural history of the underlying actions has been exhaustively covered in a number of prior opinions. See Dubose v. Pierce, 579 F.Supp. 937, 941-46 (D.Conn.1984) (Dubose V); Dubose v. Harris, 82 F.R.D. 582, 583-85 (D.Conn.1979) (Dubose IV); Dubose v. Harris, 434 F.Supp. 227, 228-30 (D.Conn. 1977) (Dubose III)) Dubose v. Hills, 22 Fed.R.Serv.2d 476, 477 (D.Conn.1976) (Dubose II)) Dubose v. Hills, 405 F.Supp. 1277, 1280-82 (D.Conn.1975) (Dubose I), modified on other grounds, 420 F.Supp. 399 (D.Conn.1976). Section 236 of the National Housing Act, 12 U.S.C. § 1715z-1 (1982), provides for financial assistance to owners of low income housing projects. In 1974 Congress modified this program through passage of the Housing and Community Development Act of 1974 (HCDA), Pub.L. No. 93-383, 88 Stat. 633. Among the changes instituted by HCDA was the addition of § 1715z-1(f)(3)(A) (1976), repealed by Omnibus Budget Reconciliation Act of 1981, Pub.L. No. 97-35, § 322(f)(7), 95 Stat. 403. Section 1715z-l(f)(3)(A) amended HCDA’s operating subsidy program to allow the Secretary of Housing and Urban Development (HUD) to make “additional assistance payments to the project owner in an amount up to the amount by which the sum of the cost of utilities and local property taxes exceeds the initial operating expense level.” 12 U.S.C. § 1715z-1(f)(3)(A) (1976). These payments were intended to protect tenants in low income housing from rent boosts that would otherwise result from increases in property taxes and utility costs. This subsidy program was not implemented. Instead, HUD allowed owners to pass cost increases along to tenants as higher rents. The Secretary believed that implementation of the program was discretionary and that the agency could choose to use its funds in other ways. The underlying action followed. In 1975 Judge Blumenfeld granted the tenants’ motion for a preliminary injunction ordering the Secretary to implement the program. Dubose I, 405 F.Supp. at 1292-93. Rather than appealing that decision, HUD concentrated its opposition on projects other than those covered by the injunction. In May 1976, after additional suits were filed, the court certified a statewide class of project-plaintiffs and ordered HUD to pay subsidies to all projects in Connecticut. Dubose II, 22 Fed.R.Serv.2d at 477-79. In June 1976, the United States District Court for the District of Columbia issued a permanent injunction ordering HUD to pay the subsidies for nationwide housing projects. Underwood v. Hills, 414 F.Supp. 526, 532 (D.D.C.1976). That injunction was stayed by the Supreme Court pending appeal. 429 U.S. 892, 97 S.Ct. 250, 50 L.Ed.2d 175 (1976) (action of whole Court). In 1977 the Supreme Court granted certiorari in two related cases, Harris v. Abrams and Harris v. Ross, 431 U.S. 928, 97 S.Ct. 2630, 53 L.Ed.2d 243 (1977). See Abrams v. Hills, 547 F.2d 1062 (9th Cir.1976), vacated sub nom. Pierce v. Abrams, 455 U.S. 1010, 102 S.Ct. 1700, 72 L.Ed.2d 127 (1982), and Ross v. Community Services, Inc., 405 F.Supp. 831 (D.Md.1975), aff'd, 544 F.2d 514 (4th Cir.1976), vacated sub nom. Pierce v. Ross, 455 U.S. 1010, 102 S.Ct. 1700, 72 L.Ed.2d 127 (1982). Before those cases could be heard, the parties in the related actions agreed to a settlement. Under this agreement, HUD was to pay into the Underwood Court a settlement fund from which eligible tenants were to receive retroactive tax and utility cost subsidy payments. See Stipulation for Settlement, reprinted as Appendix to Dubose IV, 82 F.R.D. at 592-605 (Stipulation). The Stipulation also required that the underlying cases were to remain active until settlement administration was completed. Stipulation, 82 F.R.D. at 598 ¶ 17. This settlement was approved by the Connecticut district court. Dubose IV, 82 F.R.D. at 588-92. During the settlement administration process, the Equal Access to Justice Act, 28 U.S.C. § 2412 (1982) (EAJA), was passed. The relevant provision of EAJA states: [ejxcept as otherwise specifically provided by statute, a court shall award to a prevailing party ... fees and other expenses ... incurred by that party in any civil action ... brought by or against the United States ..., unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A) (emphasis added). The plaintiffs in both the Connecticut action and in certain California actions moved for fees pursuant to section 2412(d)(1)(A). Both courts ruled in favor of the plaintiffs, holding that the government had failed to establish either of the statutory defenses to the awarding of fees. Du-bose V, 579 F.Supp. at 948-52; Underwood v. Pierce, 547 F.Supp. 256, 261-64 (C.D.Cal. 1982), appeal pending No. 83-5773 (9th Cir.). In the instant case, Judge Blumenfeld held that HUD’s position was not “substantially justified” under EAJA. The court noted that the fact that the government was not ultimately successful would not lead ineluctably to the conclusion that HUD’s position was unjustified. Instead, the court evaluated the “reasonableness” of the agency’s litigation position. The court held that “HUD’s position was not merely unreasonable but had no justifiable basis,” Dubose V, 579 F.Supp. at 950, and that the government’s assertion that “special circumstances” made an award unjust, 28 U.S.C. § 2412(d)(1)(A), was similarly unavailing. HUD insisted that because the settlement agreement barred payment of attorneys’ fees from the fund, which was the only possible source of fees at the time, any award of fees was thereby barred. The court rejected this argument, holding that an award of fees was proper under EAJA despite the terms of the settlement agreement. II Because we believe that the government’s position was substantially justified, we reverse the judgment of the district court. We therefore need not consider the effect of the settlement agreement provision that barred the use of the fund for attorneys’ fees. The district court’s determination that HUD’s position was not plausible should be viewed as a conclusion of law, Spencer v. NLRB, 712 F.2d 539, 563 (D.C. Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984), and subject to de novo review. Boudin v. Thomas, 732 F.2d 1107, 1117 (2d Cir.1984). The definition of “position” under EAJA is settled in this Circuit. In Boudin we determined that the term refers to the government’s position in litigation rather than its actions during the underlying administrative proceedings. Boudin, 732 F.2d at 1115-16. Therefore, we may consider only HUD’s litigating posture in our examination of justification. The government bears the burden of proving that its action as a litigant was substantially justified. Environmental Defense Fund, Inc. v. Watt, 722 F.2d 1081, 1087 (2d Cir.1983); Spencer, 712 F.2d at 557; Ellis v. United States, 711 F.2d 1571, 1575 (Fed.Cir.1983); Dougherty v. Lehman, 711 F.2d 555, 561-62 (3d Cir.1983); H.R.Rep. No. 1418, 96th Cong., 2nd Sess. 10, reprinted in 1980 U.S.Code Cong. & Ad.News 4953, 4984, 4989. “The test of whether or not a Government action is substantially justified is essentially one of reasonableness. Where the Government can show that its case had a reasonable basis both in law and fact, no award will be made.” H.R.Rep. No. 1418 at 10, 1980 U.S.Code Cong. & Ad.News at 4989. See also Environmental Defense Fund, 722 F.2d at 1085; Tyler Business Services, Inc. v. NLRB, 695 F.2d 73, 76 (4th Cir.1982) (absence of rational explanation for gap in proof results in finding of absence of justification). Plaintiffs prevailed in the underlying action in the district court because the court rejected Secretary Hills’ claim that her refusal to implement the operating subsidy program was a valid exercise of discretion. Dubose I, 405 F.Supp. at 1288-92. HUD’s litigation position was premised on its belief that, under the National Housing Act, the agency had discretion to choose the ways in which it would implement national housing policy. In support of its position, HUD relied on Pennsylvania v. Lynn, 501 F.2d 848 (D.C.Cir.1974). In Lynn the D.C.Circuit held that Secretary Romney had discretion to terminate a number of housing programs and that he had not abused his discretion in so doing, because he believed that the legislative purposes were not served by these programs. Secretary Hills, defendant’s predecessor, argued before the district court that she had discretion as to the implementation of the operating subsidy program based on the language and legislative history of the Act and on Congress’ subsequent funding decisions. She also argued that her lawful discretion over the allocation of her contract authority permitted her to refuse to fund the operating subsidies. We are concerned not only with the substantive accuracy of this position as viewed by hindsight, but also with the agency’s legal justification for its actions throughout the litigation. We are convinced that HUD has borne its burden of proving that its litigation position, albeit ultimately unsuccessful, was not unreasonable. Our analysis of this “borderline” case is aided by our examination of the factors developed by the Spencer Court. United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481, 1486 n. 11 (10th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 105, 83 L.Ed.2d 49 (1984); Foley Construction Co. v. United States Army Corps of Engineers, 716 F.2d 1202, 1204 (8th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984). These factors are: the clarity of the governing law, the foreseeable length and complexity of the litigation and the consistency of the government’s position. Spencer, 712 F.2d at 559-61. 1. Clarity of the Governing Law The government’s position must be evaluated according to the legal justification for its posture throughout the litigation rather than by hindsight after later judicial interpretations of the issues involved. See Devine v. Sutermeister, 733 F.2d 892, 895 (Fed.Cir.1984). At the time the underlying action was filed, the D.C. Circuit’s conclusion in Lynn, the only judicial guidance available, offered no hint of the ultimate outcome of the subsequent cases. In preparing its litigation stance the government relied on arguments similar to those which had succeeded in Lynn. The district court admitted that it initially found Lynn to be relevant. Dubose V, 579 F.Supp. at 950-51. The district court’s reevaluation of its earlier view of the justification for the government’s position ignores the requirement that we consider HUD’s perspective as the agency developed its trial and appeal strategy. The factors that the court later found persuasive in distinguishing Lynn were not so obvious at that stage. The governing law, to the extent that it existed, did not mandate HUD’s surrender early in the litigation. Although HUD’s position became more questionable as adverse trial and appeal decisions accumulated, we cannot say that the tally ever became so one-sided as to render HUD’s position clearly unjustifiable. Thus, the first of the Spencer factors, the clarity of the governing law, tilts in favor of HUD. See Cornelia v. Schweiker, 741 F.2d 170, 172 (8th Cir.1984) (where all legal issues were questions of first impression in circuit, agency’s action in seeking clarification from courts was reasonable); Boudin, 732 F.2d at 1116 (law on issue in question was not clear at time of suit; government’s position was reasonable). Cf. Hoang Ha v. Schweiker, 707 F.2d 1104, 1106 (9th Cir.1983) (case previously decided, adverse to government’s position, is factor in assessing reasonableness, but cases from other circuits are not conclusive); Wyandotte Savings Bank v. NLRB, 682 F.2d 119, 120 (6th Cir.1982) (fact that government’s position was contrary to prior Sixth Circuit precedent did not mean that it was not substantially justified; fees denied). 2. Foreseeable Length and Complexity of Litigation The Spencer Court stated: Sensitivity to the central objective of the Act — reduction of the deterrents to challenges of unreasonable government conduct — thus suggests that, in categories of cases in which substantial investments of effort and money commonly are required to prosecute suits to their ultimate conclusions, the government should be obliged to make an especially strong showing that its persistence in litigation was justified. 712 F.2d at 560. This factor adds little to our analysis. While this litigation has certainly been long and complex, spanning some ten years and several circuits, we find no indication that the government’s behavior deterred aggrieved tenants from filing suits. Indeed, the government paid the subsidies that were ordered in the December 1975 and May 1976 injunctions until operation of the May 1976 injunction was stayed by this Court. See Dubose III, 434 F.Supp. at 230; see also 429 U.S. 1085, 97 S.Ct. 1092, 51 L.Ed.2d 531 (1977) (action by whole court refusing to vacate stay issued by Second Circuit). Moreover, simple reliance on the length of the litigation in this case is deceptive. The settlement negotiations and fee motions have been proceeding since 1977. Neither of these developments was foreseeable at the outset of the litigation. We find no reason to include this case in the category described by the Spencer Court. Hence we decline to impose on HUD the burden of making an “especially strong showing” of justification merely because the litigation has been long-lived. We conclude that, at most, this factor provides little benefit to either party. We note also that the foreseeable complexity of the litigation is closely tied to the first factor, the clarity of the governing law. Where, as here, the government’s position appeared at first to be supported by persuasive case law, the government should not be penalized for defending a suit which becomes long, complex and eventually unsuccessful. 3. Consistency of the Government’s Position The Spencer Court suggested that where the government acts to single out one private party as the victim of an inconsistent interpretation, the government’s unpredictability should be penalized. Spencer, 712 F.2d at 560-61. Here, by contrast, the plaintiffs cannot argue that they were “subjected to atypically harsh treatment.” Id. at 561. It has been clear throughout the history of this litigation that the Secretary had no intention of paying any operating subsidies unless those payments were made in response to court orders. This factor, then, clearly supports a denial of legal fees. In sum, the Spencer factors alone demonstrate that HUD’s litigation position was substantially justified. But we need not rely exclusively on those factors. Additional considerations lead to the same result. The district court also refused to credit either the stays issued by this Court and the Supreme Court, or the Supreme Court’s grant of certiorari in two related cases, suggesting that those events were “too opaque” to lend credence to a conclusion that HUD’s position was justified. As to the former, the court found no indication that the Supreme Court’s grant of a stay indicated any view as to the merits; our subsequent issuance of .a stay was dismissed with the suggestion that we “had little choice but to grant one.” Dubose V, 579 F.Supp. at 950. And as to the latter, the court suggested that the Supreme Court might have granted certiorari in those two cases, both of which had ruled against the government, in order to affirm the lower court’s rejection of HUD’s position. Id. We reject this reasoning. “A court in staying the action of a lower court ... must take into account factors such as irreparable harm and probability of success on the merits.” Coleman v. Paccar, Inc., 424 U.S. 1301, 1305, 96 S.Ct. 845, 847, 47 L.Ed.2d 67 (Rehnquist, Circuit Justice, 1976) (granting motion to vacate stay; citing O’Brien v. Brown, 409 U.S. 1, 3, 92 S.Ct. 2718, 2719, 34 L.Ed.2d 1 (1972) (per curiam)). In this Circuit, in addition to considering the harm to the parties and the public interest, a court must find that the movant has demonstrated “a substantial possibility, although less than a likelihood, of success.” Hayes v. City University of New York, 503 F.Supp. 946, 963 (S.D.N.Y.), aff'd on other grounds sub nom. Hayes v. Human Resources Administration, 648 F.2d 110 (2d Cir.1981). See also In re Turner, 309 F.2d 69, 72 (2d Cir.1962). We find it unlikely that these criteria were overlooked by this Court simply because the Supreme Court had already acted. We see both stays as indicative of the courts’ view that the government’s position was not unreasonable. The same is true of the Supreme Court’s grant of certiorari. Although the outcome of the Court’s examination of this situation was left forever in limbo by the settlement, we do not believe that the district court’s interpretation is the only plausible one. We believe that it is equally probable that the Court granted certiorari not to affirm but to reverse the lower court decisions. The district court cited its previous opinion as support for its conclusion that HUD’s conduct was “unreasonable [and] had no justifiable basis.” Dubose V, 579 F.Supp. at 950. However, the court’s prior opinion has little bearing on the instant determination because the first conclusion was not “made with an intent to resolve EAJA questions.” Cinciarelli v. Reagan, 729 F.2d 801, 806 (D.C.Cir.1984). Similarly, the district court's suggestion that the numerous adverse rulings in the lower courts should lead to a different result does not convince us to overlook the many factors supporting our conclusion, particularly in light of the stays and grant of certiorari discussed above. Nor does the court’s suggestion that the government’s participation in the settlement represented an admission that the litigation was unjustified merit much analysis. Speculation as to the agency’s intent in settling adds little to our analysis. A holding that an agency’s decision to settle an appeal on terms favorable to the claimant undercuts the agency’s justification of its litigation position would discourage future settlements, a factor we should not lightly disregard. A litigation position that was justified, for EAJA purposes, before a settlement should not later lose its justification as a result of the settlement. After all, policy reasons quite apart from the merits of the dispute may, in the last analysis, dictate a premature termination of the litigation. Ill For the reasons stated above, we vacate the judgment of the district court and hold that the government has carried its burden of proving that its litigation position was substantially justified. In view of this determination, we need not reach the issue of whether the settlement agreement provision barring an award of fees from the fund affects a fee award under EAJA. We also need not reach the plaintiffs’ cross-appeal concerning the amount and calculation of fees. The cross-appeal is dismissed. We remand to the district court for entry of an order dismissing the complaint. No costs on appeal. . In addition to the actions in the District of Connecticut, related suits were filed in other parts of the country, including the District of Columbia, Maryland and California. See Abrams v. Hills, 547 F.2d 1062 (9th Cir.1976), vacated sub nom. Pierce v. Abrams, 455 U.S. 1010, 102 S.Ct. 1700, 72 L.Ed.2d 127 (1982); Underwood v. Hills, 414 F.Supp. 526 (D.D.C. 1976); Ross v. Community Services, Inc., 405 F.Supp. 831 (D.Md.1975), aff'd, 544 F.2d 514 (4th Cir.1976), vacated sub nom. Pierce v. Ross, 455 U.S. 1010, 102 S.Ct. 1700, 72 L.Ed.2d 127 (1982). For other related cases, see Dubose v. Harris, 82 F.R.D. 582, 585 n. 12 (D.Conn. 1979). . Our stay was issued after that ordered by the Supreme Court, 429 U.S. 892, 97 S.Ct. 250, 50 L.Ed.2d 175 (1976) (action by whole Court), in Underwood v. Hills, 414 F.Supp. 526 (D.D.C. 1976). . The government argued before the district court that the actions were not "pending” on the effective date of the EAJA and that EAJA did not permit an award of fees for work performed prior to that date. These arguments have been abandoned on appeal. Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case? A. No B. Yes C. Not ascertained Answer:
songer_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. UNITED STATES of America, Plaintiff-Appellee, v. Jerome Alvin ZEMKE, Charles Joseph Canesi, Defendants-Appellants. Nos. 71-1199, 71-1200. United States Court of Appeals, Seventh Circuit. Feb. 7, 1972. Certiorari Denied May 22, 1972. See 92 S.Ct. 2051. Robert E. Poynter, Lafayette, Ind., for defendants-appellants. William C. Lee, U. S. Atty., John R. Wilks, Asst. U. S. Atty., Fort Wayne, Ind., for plaintiff-appellee. Before DUFFY, Senior Circuit Judge, KERNER and PELL, Circuit Judges. . Judge Kerner heard oral argument, but did not participate in the adoption of this opinion. PELL, Circuit Judge. Zemke and Canesi, defendants, have appealed from their jury trial conviction of violating 18 U.S.C. § 2312, interstate transportation of motor vehicles, in this ease motorcycles. The defendants raise search and seizure questions and challenge one instruction given by the district court. On June 17, 1970, while on routine patrol Indiana State Police Officer Stout observed the defendants and the motorcycles in question by bridge pillars on an interstate highway in northern Indiana. The officer stopped to determine if the defendants needed assistance. They responded negatively; however, Stout requested some identification such as a driver’s license. He noted that both had Minnesota operator licenses but the two motorcycles bore Massachusetts tags. At about this point Officer Stout glanced at the serial number of one of the vehicles and it appeared to him that at least one of the visible numbers had been altered. He then looked at the serial number of the other motorcycle and it also appeared to him to have been changed from that which the manufacturer had placed thereon. Officer Stout advised the cyclists that it was a violation of Indiana law to be in possession of a motor vehicle with an altered serial number. He also told them he “would like to look into it a little more carefully.” They “agreed- to proceed, approximately six miles or so down the road to a service station where we could be off the road in a little safer area.” Upon arrival at the station, the officer checked the manufacturer’s confidential number concealed under the crank case. By way of contrast, the number at which Stout had first looked while on the roadside was apparently clearly visible “just above the pedals a few inches on the left side of the vehicle.” Upon ascertaining the numbers on the two locations were not mutually consonant, Stout arrested both defendants for violation of the Indiana statute concerning possession of motor vehicles with altered serial numbers. Following the arrest, the officer looked into the saddle bag area and found a propane torch and solder. Stout testified that serial numbers could be altered temporarily by the use of a soldering process but that it could not be done with a soldering iron as a torch would be required to heat the entire area. Subsequently it was determined that the motorcycles in fact had been stolen in Tonawanda, New York and Zemke and Canesi were thereupon indicted for the federal offense upon which they were tried. The defendants now contend that their convictions should be reversed because viewing the facts from the position of the police officer on the scene, he did not have probable cause' to search their vehicles without their consent and he did not have probable cause to arrest them until he had conducted his allegedly unlawful search. However, the record is wholly devoid of any showing that this contention was brought to the attention of the district court by motion to suppress prior to the trial, objections to testimony or exhibits during trial, or by any post-conviction motion. Unless this argument of the defendants sets forth a plain error or defect affecting substantial rights we need give it no further attention. Rule 52(a), Fed.R.Crim.P. However, we need not reach a decision on this phase of the matter as we find that the contention would have been meritless even if it had been raised in the district court. In giving consideration to this matter we have difficulty discerning whether the challenge is directed at the visual observation of the serial number at the roadside, the more searching examination for the confidential number, the search of the saddle bag area following the arrest, or all three. Proceeding on the assumption that the defendants are willing to rely on any one which might be the basis of a reversal, we will look at all of the possibilities. Beginning with the premise of greater liberality of the applicable search and seizure law in the case of a vehicle because of its mobility, Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), we find nothing unreasonable nor any improper invasion of the defendants’ rights by virtue of the officer noting at the bridge situs that one of the numbers failed to carry a badge of apparent authenticity. We cannot conceive that when confronted with this plain and open evidence of a violation of the state law, whose enforcement was his duty, the officer pursued other than a proper course of action. Defendants place undue significance on the word “appeared” in the officer’s testimony. However, that which is visible to the perception of the viewer is that which appears to him. Even if the officer’s glance had brought merely the sug-. gestión of an alteration to his mind it should not in our opinion be a basis for him just to drop the matter there subject to checking through records back at the post while the cyclists proceeded merrily toward unknown destinations. While we do not consider the police activity at the roadside spot as being a search, to the extent, if any, that it might be called such it would bring into play the application of the “plain view” doctrine, “where a police officer is not searching for evidence . . . but nonetheless inadvertently comes across an incriminating object.” Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971). The officer having a legitimate ground for checking the serial number, United States v. Powers, 439 F.2d 373, 376 (4th Cir.), cert. denied, 402 U.S. 1011, 91 S.Ct. 2198, 29 L.Ed.2d 434 (1971), he could have proceeded to do so at that juncture with adequate probable cause. This, of course, would have involved the cross check with the hidden number which in turn would have brought about the arrest at the first point of contact. Rather than doing so along the edge of a busy interstate highway it was agreed to proceed to a safer place. This was consistent with the innocence of wrongdoing claimed by the defendants. In fact, Stout testified that Canesi seemed “quite surprised” when the matter of possible numerical alteration was brought to the attention of the defendants. We do not find an invasion of protected rights in the deferral to a place of safety of the cheek of the quasi-public identification numbers. Under the circumstances, proceeding down the highway to an appropriate place for the inspection was not an unlawful detention nor harassment of the cyclists. Since the completion of the inspection was permissible at the point of first contact it did not become less so when and where actually conducted. The third possible search and seizure did, of course, come closer to that status by the invasion of the saddle bag area, comparable to the glove compartment of an automobile, generally considered an area of increased privacy. See: United States v. Powers, supra, 439 F.2d at p. 375. Here, however, the search was incident to a lawful arrest and its scope was within proper limits. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Zemke and Canesi also complain, however, that their rights were violated in that they were not advised that they need not consent to a search and therefore their agreeing to accompany the officer to the service station area was compulsively induced. The theory here seems to be that Officer Stout at the roadside did not have any probable cause to go forward with his cheeking and therefore they were free to go their way unless they voluntarily agreed to accompany Stout after being informed of their rights not to do so. However, we do not treat this situation as one of waiver. Defendants claim that if they had been informed they need not consent nor accompany they would not have done so. If they had not, it appears equally clear to us that the completion of the cross check of the confidential number would have been consummated on the spot with the consequent arrest there rather than at the deferred situs. We cannot agree with the defendants that Officer Stout did not have a fully adequate basis for so doing when he first became aware of the appearance of alteration. Finally, the defendants on this appeal argue that the court’s instruction which permitted the jury to infer from the possession of recently stolen property that the defendants knew the property was stolen, unless satisfactorily explained, unconstitutionally, in violation of Fifth Amendment rights, burdened the defendants with the necessity of being witnesses against themselves. There is no reason for setting the instruction out in full in this opinion as the first three paragraphs were taken almost verbatim (and admittedly by the district court) from United States v. Vanover, 339 F.2d 987, 992 (7th Cir. 1965) , in which this court generally approved the instruction. The district court, however, changed the wording of the fourth paragraph to read as follows: “You will bear in mind that the law never imposes upon a defendant in a criminal ease the burden or duty of calling any witnesses or producing any evidence. However, possession may be satisfactorily explained by facts and circumstances in evidence, independent of any testimony or other evidence from a defendant. It is your duty to determine whether the facts and circumstances shown by the evidence warrant any inference which the law permits you to draw from possession of recently stolen property. If any possession a defendant may have had of recently stolen property is consistent with innocence, then you should acquit such defendant.” This instruction, or the inference which it enunciates, is no stranger to this court or to other circuits and has been consistently approved. United States v. Bennett, 356 F.2d 500 (7th Cir. 1966) , cert. den., 384 U.S. 975, 86 S.Ct. 1868, 16 L.Ed.2d 685; United States v. Meek, 388 F.2d 936 (7th Cir.), cert. denied, 391 U.S. 951, 88 S.Ct. 1855, 20 L.Ed.2d 866 (1968); United States v. Angel, 201 F.2d 531 (7th Cir. 1953). As this court stated in United States v. Teasley, 408 F.2d 1012, 1013 (7th Cir.), cert. denied, 396 U.S. 880, 90 S.Ct. 161, 24 L.Ed.2d 139 (1969): “It is well established, in this Circuit as in all the others, that the possession of a recently stolen vehicle gives rise to an inference of knowledge of its theft in the absence of a satisfactory explanation to the contrary.” We perhaps need give no further consideration to this claimed error since the defendants’ objection on trial does not appear to raise the Fifth Amendment contention, unless we find it buried in the general assertions that the instruction “puts the burden of proof of innocence on the Defendants.” This would questionably seem to meet the standard that “[n]o party may assign as error any portion of the charge or omission therefrom unless he objects thereto . stating distinctly the matter to which he objects and the grounds of his objection.” Rule 30, Fed.R.Crim.P. While we certainly should not seek constitutional issues where other grounds for disposition exist, see: United States v. Campos-Serrano, 404 U.S. 293, 92 S.Ct. 471, 30 L.Ed.2d 457, since the constitutional issue here is arguably before us and since the contention has apparently not been raised in the cited cases approving the inference, and the instruction based thereon, we deem it advisable to address ourselves to the matter, noting the apparent prevalence of use of this instruction. The rationale of defendants’ contention is that the existence of the inference is a constitutionally impermissible “chilling effect” on their Fifth Amendment right not to be compelled to testify since once the theft and possession are shown, they are in effect compelled to come forward and explain how it is that they had possession of recently stolen vehicles. However, the defendants in our opinion misread the challenged instruction. It does not compel them to come forward with exculpatory evidence any more than would any other derogatory evidence by the state. What the defendants actually seem to be arguing is that an inference is somehow qualitatively different from other evidence, either testimonial or demonstrative. We see no basis on this point for distinction. Thus the Government evidence disclosed several instances of lying on the part of the defendants to law enforcement officers concerning details of their claimed method of acquisition of the motorcycles. Carrying the contention of the defendants to its logical end would preclude such testimony as it would have the effect of compelling them to adduce explanatory or contradictory evidence. In fact both defendants did take the stand and admit to lies. A strong case by the prosecution whether founded upon an inference from fact or other types of evidence often will produce the feeling in the accused that he should take the stand but that per se does not make such evidence violative of Fifth Amendment rights. Further, the district court made the instruction even more clear as to lack of necessity for a defendant either to testify or adduce evidence than was the situation in Vanover, supra, by rephrasing the final paragraph as previously set forth herein. Also in addition to this, the district court gave the following instruction : “The burden is upon the Government to prove beyond a reasonable doubt the guilt, if any, of each defendant separately. This burden never shifts throughout the trial. The law does not require either defendant to prove his innocence or to produce any evidence in his defense. If the Government fails to prove a defendant guilty beyond a reasonable doubt, it will be your duty to acquit such defendant or defendants.” Instructions may be, and in complicated cases no doubt are, susceptible of misunderstanding by a lay jury but if they correctly set forth the applicable law the mere possibility of a strained and incorrect interpretation being put on a particular instruction should not preclude its use. For the reasons set forth herein the judgments of conviction are affirmed. Affirmed. . “§ 2312. Transportation of stolen vehicles Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,-000 or imprisoned not more than five years, or both.” Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_circuit	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. MORGAN v. UNITED STATES. HUST v. SAME. Circuit Court of Appeals, Seventh Circuit. January 25, 1929. Rehearing Denied April 12, 1929. Nos. 4045, 4046. Edwin L. Weisl, of Chicago, Ill., for appellant Morgan. Benj. P. Epstein, of Chicago, Ill., for appellant Hnst. Edward J. Hess, of Chicago, Ill., for the United States. Before PAGE and ANDERSON, Circuit Judges, and CARPENTER, District Judge. ANDERSON, Circuit Judge. The appellants were convicted upon an indictment which charged, in substance, that the South Side Trust & Savings Bank was a member of the Federal Reserve system, that one Peter Hein was an employee of said member hank, and that, while an employee thereof, with intent to injure and defraud it, on August 31, 1926, he unlawfully, willfully, and feloniously abstracted the sum of $7,200 from the bank; that said Hein, while so acting*as an employee of the bank, on said August 31, caused a cashier’s check to he issued by the bank to appellant Morgan, wherein and whereby the sum of $7,200 was ordered paid to said Morgan out of the moneys of the hank, for which Morgan did not, nor did any person on his behalf, pay, deposit, or give the bank any money or anything of value; that the cheek was delivered by Hein to Morgan, and in due course of banking business was paid by the South Side Trust & Savings Bank. The indictment further charged that the appellants, Morgan and Hust, on August 31, 1926, with intent to injure and defraud as alleged, did unlawfully, willfully, knowingly, and feloniously aid and abet said Hein to abstract the $7,200. The errors .relied upon as grounds for reversal are: (1) “There is no evidence to sustain the charge c s c that Hust and Morgan, aided and abetted Hein to abstract the sum of $7,200 by means of the cashier’s cheek of August 31, 1926.” (2) “There is no competent evidence that the South Side Trust & Savings Bank was a member of the Federal Reserve system or a member bank.” (3) “The court erred in failing to require the government to rebut the presumption of harmful error arising from the facts set forth in the affidavit of juror Boecker.” (4) “Government counsel, in argument, improperly referred to the failure of the defendants to take the stand in their own behalf.” 1. There was evidence before the jury sufficient to warrant it in finding the following facts: That the South Side Trust & Savings Bank was a member of the Federal Reserve system (this will be further discussed under error No. 2). That Peter Hein was a teller of said member bank, and was at the time of the alleged offense 22 years of age, receiving from the bank for his services $47.50 a week, and that he had no other resources and owned no property whatever, except a Chevrolet ear. That the appellants, Morgan and Hust, were bookmakers — horserace gamblers.. That Morgan was past 60 years of age, and was the employee of Hust in the bookmaking business, receiving as his wages $50 a week for that service. That Hein first stole money from the bank by “holding out” deposit tickets, then by adding sums to withdrawal slips, and in the months of May, June, July, and August, 1926, he abstracted money by use of cashier’s checks. That during these months he delivered to Morgan four other cashier’s cheeks, which, With the one for $7,200, aggregated $35,482. That he lost in his dealings with appellants about $250,000, and that his winnings amounted to about $100,000. That Hein lost in gambling with appellants all the money which he stole from the bank. (After describing his numerous thefts from the bank and his procuring and delivering to Morgan, in payment of his gambling debts, the cashier’s checks above mentioned, Hedn testified: “As to what I did with this money that I testified to having withdrawn and kept from that bank, I gambled it. I gave it to William Morgan.”) That on the date alleged, August 31,1926, Hein procured, in some way, the cashier’s cheek for $7,200 and delivered it to Morgan on a street comer in the city of Chicago, away from the bank. That in Hein’s early gambling transactions with Morgan he both paid to and received from him money at the bank. That Hein told Morgan it might cause suspicion for him to continue to come to the bank so frequently, and arranged to meet him at other places, at various street corners in the city of Chicago. That all the cashier’s checks above mentioned were delivered to Morgan at various street comers in the city of Chicago, under arrangement with Hust by telephone, Hust telling Hein how much he owed on his- gambling transactions, and Hein asking that Hust have Morgan meet him (Hein) at particular places, which Morgan did, and at which times Hein delivered to him the checks in question. That the cheek of August 31, 1926, for $7,200 was made payable to the order of appellant William Morgan, was indorsed by him to appellant Henry Hust, and by Hust indorsed and deposited for credit to his account in the Stock Yards Trust & Savings •Bank, and by the latter bank collected from the South Side Trust & Savings Bank. The evidence not only warrants the finding of the above facts, but it is uneontradieted. From these facts it appears that Hein abstracted the $7,200 from the bank, and that this was accomplished'by the use of the cashier’s cheek for $7,200 as alleged; that Morgan received the cheek and indorsed it to Hust, and that Hust indorsed it and put it into his bank, collected the $7,200, and caused it to be withdrawn from the South Side Trust & Savings Bank, thus establishing not only that Hein abstracted the $7,200, but also that appellants Morgan and Hust aided and abetted him in such abstraction. The only possible question that could be raised upon these facts is whether or not appellants had the guilty intent to injure and defraud the bank. That they materially aided and assisted Hein in abstracting the $7,-200 cannot be seriously questioned, and that they rendered this aid and assistance with the intent to injure and defraud the bank — that is, get from it, through the unlawful abstractions of' Hein, $7,200 — is equally plain. .Morgan, a -professional gambler, three times the age of Hein, knowing that he was a teller in a bank, obviously upon a modest salary, received from him in money and through cashier’s checks more than $150,000 (Hein testifying that in his transactions with Morgan he lost $250,000 and that his winnings amounted to about $100,000). The inference that Morgan aided and abetted Hein in abstracting the $7,200 from the bank, with the intent charged, is fully warranted by the evidence. The evidence does not show Hust and Hein to have been together, as it shows Morgan and Hein to have been, but it does show that the cashier’s cheeks were delivered to Morgan at places agreed upon between Hust and Hein, on street comers away from the bank, for gambling debts which Hein owed Hust; that Hein was paying to Hust the large sums of money represented by these cashier’s checks for his gambling debts to Hust, and, to prevent suspicion at the bank, was paying them at places and in ways agreed upon between Hein and Hust. Though the evidence as to Hust’s guilty participation is not so voluminous as that as to Morgan, it clearly shows, or at least is sufficient to warrant the jury in finding, that Hust actively and consciously participated — that is, aided and abetted Hein — in the unlawful abstraction of the $7,200. 2. The second ground for reversal is that there is no competent evidence that the South Side Trust & Savings Bank was a member of the Federal Reserve system or a member bank. Appellants’ counsel confuse the competency of evidence with its probative force or effect. We will treat this, however^ as an assertion that there is no evidence to support the averment that the South Side Trust & Savings Bank was a member of the Federal Reserve system. The vice president of the South Side Trust & Savings Bank was put upon the stand by the government and testified that he was and had been for six months vice president of that bank, that prior to that time he had been assistant cashier for eight years, and that the corporate name of the institution was the South Side Trust & Savings Bank of Chicago. He also was asked, “Now, since 1924 and down to date, what, if any, transactions has the South Side Trust & Savings Bank had with the Federal Reserve Bank of Chicago ?” to which he replied, “Well, we have maintained an account there, which is a requirement of the Federal Reserve Bank, and from time to time we have rediscounted our rather — yes, rediscounted notes and things of that sort; borrowed money from the Federal Reserve also.” The government then offered, and there was received in evidence, a certificate issued by the Federal Reserve Bank to the South Side Trust & Savings Bank for 600 shares of the stock of the Federal Reserve Bank. Thereafter the government produced as a witness the auditor óf the Federal Reserve Bank of Chicago, who testified that he had been auditor of that bank since 1916, that he knew the signatures of the officers attached to the certificate, and that they were genuine. This authorized the admission of the certificate in evidence. In answer to a question, “Do you know whether or not the South Side Trust & Savings Bank of Chicago was a member of the Federal Reserve Bank of Chicago —the Federal Reserve system — in 1926 ?” he answered, “Yes; I do know that they were a member in 1926 of the Federal Reserve Bank of Chicago.” We perceive no reason, and none is suggested, why the auditor of the bank could not testify of his own knowledge that the South Side Trust & Savings Bank was a member of the bank of which he was the auditor. The argument made that his testimony and the certificate are not the best evidence is without merit. They are sufficient to warrant the finding that the South Side Trust & Savings Bank was a member of the Federal Reserve Bank. 3. The record shows that, upon the return of the verdict of guilty, appellants, by their respective counsel, moved for a new trial. The motion was oral; the record shows no reasons for it, and we have no way of ascertaining what the grounds of the motion were. It appears from the record that thereafter, on March 10, 1928, the motion came on for hearing, and that appellants, in pursuance of leave of court thereunto had and obtained, filed an affidavit of Theodore F. Boeeker, one of the jurors in said cause. This affidavit.sets forth that after the jury retired to consider of its verdict, and while it was still deliberating, Boeeker requested from the bailiff in charge of the jury permission to Attend the ceremony of the mass at a Catholic church; that the bailiff informed him that such proceeding would not be permitted; that thereupon affiant inquired of the bailiff whether he, the juror, could have a priest visit him at the quarters then and there occupied by the jurors for the purpose of obtaining communion from the priest; that the bailiff acceded to the request, and thereupon affiant, in the presence and with the consent of the bailiff, over the telephone had a conversation with a priest of the Catholic church; and that thereafter a priest appeared at the quarters occupied by the jury, and met affiant in the presence of the other jurors, whereupon affiant and the priest went into the room of the bailiff, and in that room affiant and the priest were the only persons present, and while the door of the room was shut, and out of the presence of any of the other jurors and the bailiff, the priest gave the affiant communion as desired. Thereupon the motion for a new trial was overruled by the court, to which ruling appellants excepted. It is insisted that “the court erred in failing to require the government to rebut the presumption of harmful error arising from the fact set forth in the affidavit of juror Boeeker.” To support this contention Mattox v. United States, 146 U. S. 140, 13 S. Ct. 50, 36 L. Ed. 917, is cited. In the Mattox Case it was decided that the court erred in refusing to hear and consider affidavits setting up communications made to the jury during their deliberations. The court held that, while the granting or denying of the motion for a new trial was discretionary with the trial court, it was error to refuse to permit the filing and to consider the affidavits. In that case the affidavits contained matters which were highly prejudicial to a fair consideration of the ease. The most that the affidavit in the instant case shows is that the priest administered the sacrament of communion to the juror. While the action of the bailiff in permitting this to be done was reprehensible, a violation of Ms oath as bailiff, and cannot be too severely condemned, we are not able to see how it in any way influenced the jury in their deliberations or affected the verdict returned. 4. It is complained under this alleged error that government counsel in Ms argument improperly referred to the failure of the defendants to take the witness stand in their own behalf. The statute (28 USCA § 632) provides that a defendant in a criminal charge “shall, at his own request, but not otherwise, he a competent witness. And Ms failure to make such request shall not create any presumption against him.” The matter complained of, as shown by. the record, is this: Counsel for the government in Ms elosrng argument said: “What is it counsel wants the government to produce in his criticism of me in the presentation of this ease ? What does he want me to do? Does he want me to call Hust and Morgan to the stand before you gentlemen and have them tell you what ? No; the criminal laws don’t permit it.” Whereupon counsel for appellants said, “I object to counsel’s last remarks.” Government’s counsel then said, “It is strictly legitimate.” The court then said: “Counsel has no right to refer to putting the defendants on the stand. The jury are instructed not to consider that at all.” Counsel for appellants then said, “Exception.” It does not appear in the record what the criticism was that government’s counsel referred to in Ms remarks. It may have been something said by counsel for appellants which fully warranted the remarks, but beyond that the district attorney said nothing whatever about the defendants’ not having availed themselves of their privilege to testify. The question, “Does he want me to call Hust and Morgan to the stand before you gentlemen and ask them what?” can hardly be construed into an observation that they did not see fit to take the stand and testify. The remark of government counsel, “No; the criminal laws don’t permit it,” would suggest that he was answering a criticism for not calling them to the stand, wMeh is a very different thing from commenting upon their failure to avail themselves of the privilege of taking the stand in their own behalf. But, even if these remarks were not proper, the court took out all possibility of injury to appellants by instructing the jury not to consider them at all. The judgments are affirmed. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
songer_geniss	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". Ellene Z. ROSENSTEEL, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 8204. Circuit Court of Appeals, Third Circuit. Argued March 16, 1943. Decided March 22, 1943. Norman D. Keller, of Pittsburgh, Pa. (W. A. Seifert, of Pittsburgh, Pa., A. Lloyd Adams, of Johnstown, Pa. and Reed, Smith, Shaw & McClay, of Pittsburgh, Pa., on the brief), for petitioner. Ray A. Brown, of Washington, D. C. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key añd J. Louis Monarch, Sp. Assts. to Atty. Gen., on the brief), for respondent. Before BIGGS, MARIS, and JONES, Circuit Judges. PER CURIAM. The decision of the United States Board of Tax Appeals is affirmed for the reasons stated in its opinion, 46 B.T.A. 1184. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_timely	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Markita JONES, Plaintiff-Appellant, v. AIRCO CARBIDE CHEMICAL COMPANY, Defendant-Appellee. No. 81-5306. United States Court of Appeals, Sixth Circuit. Argued Aug. 5, 1982. Decided Oct. 28, 1982. Isaac Lorean Conley, Jr., Lester, Richmond & Conley, Louisville, Ky., for plaintiff-appellant. Hubert Willis, Matthew Westfall, Middleton & Reutlinger, Charles Laurence Woods, III, Louisville, Ky., for defendant-appellee. Before MERRITT and CONTIE, Circuit Judges, and NEESE, District Judge. The Honorable C. G. Neese, Judge, United States District Court for the Eastern District of Tennessee, sitting by designation. CONTIE, Circuit Judge. This is an appeal by the plaintiff Jones of the dismissal of her complaint alleging racial discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. The district court dismissed the plaintiff’s complaint on the basis that she failed to timely file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). The court held that under Section 706(e), as amended, 42 U.S.C. § 2000e-5(e), a charge of discrimination must be filed with the EEOC within 180 days of the alleged unlawful conduct. The district court also held that the plaintiff failed to timely file a charge of discrimination with the Kentucky Commission on Human Rights (KCHR), which has a 180-day limitation period under state law. Ky.Rev.Stat. § 344.200. The district court held, therefore, that inasmuch as the plaintiff failed to timely file with an appropriate state agency, the 300-day extension of Section 706(e), 42 U.S.C. § 2000e-5(e), is not applicable. The plaintiff was discharged from her employment with the defendant on January 4,1980. On August 19, 1980, 228 days after her discharge, Jones filed a charge of racially discriminatory discharge with the EEOC. On August 22, 1980, in accord with Section 706(c), 42 U.S.C. § 2000e-5(c), the EEOC referred the charge to the KCHR. On September 8, 1980, the KCHR terminated its proceedings and referred the charge back to the EEOC. The EEOC subsequently terminated its involvement and issued plaintiff a right-to-sue letter. Ms. Jones filed this suit on January 9, 1981. Section 706(e), 42 U.S.C. § 2000e-5(e), provides in part: A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in the case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a state or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the state or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency. Applying this provision to the facts of this case, the parties agree that the general rule requiring the filing of charge of discrimination with the EEOC within 180 days is not applicable. Kentucky is a “deferral” state so that the 300-day filing limitation is applicable if the aggrieved person initially institutes proceedings with the appropriate state agency. At the time that the EEOC referred the plaintiff’s charge to the KCHR, 231 days after the alleged unlawful conduct, the EEOC acted on behalf of the plaintiff in initially instituting state proceedings in compliance with the requirements of 42 U.S.C. § 2000e-5(c) and (e). The plaintiff’s charge was lodged with the EEOC on August 19,1980, but could not have been filed with the EEOC until either 60 days after the institution of state proceedings or after such proceedings have been terminated, whichever is earlier. See Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980). Thus, the plaintiff initially instituted proceedings with the KCHR. Love v. Pullman, 404 U.S. 522, 525, 92 S.Ct. 616, 618, 30 L.Ed.2d 679 (1972). Further, the KCHR referred the charge back to the EEOC well within the 300-day period, so that the charge was filed with the EEOC within the time limitations of 42 U.S.C. § 2000e-5(e). In deferral states, a plaintiff has 300 days to file a charge of discrimination with the EEOC regardless of whether or not a charge has been filed within 180 days with the appropriate state agency. Mohasco Corp. v. Silver, 447 U.S. 807, 814 n. 16, 100 S.Ct. 2486, 2490-2491 n. 16, 65 L.Ed.2d 532. In Mohasco, the plaintiff filed with the appropriate state agency on the 291st day after the alleged unlawful conduct. The court found that the plaintiff did initiate state proceedings even though the plaintiff failed to file with the EEOC within the 300 day period. This Circuit, as well as the First Circuit, interpreting similar language in the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 626(d), held that a deferral state plaintiff must file a charge within 180 days with either the state agency or the EEOC or the 300-day period would not be applicable. The Supreme Court, however, granted certiorari and remanded both cases for reconsideration in light of Mohasco, supra. Ewald v. Great Atlantic and Pacific Tea Co., Inc., 620 F.2d 1183 (6th Cir.), rev’d and remanded, 449 U.S. 914, 101 S.Ct. 311, 66 L.Ed.2d 143 (1980); Ciccone v. Textron, Inc., 616 F.2d 1216 (1st Cir.), rev’d and remanded, 449 U.S. 914, 101 S.Ct. 311, 66 L.Ed.2d 143 (1980). This Circuit remanded the case back to the district court for further consideration. Ewald v. Great Atlantic and Pacific Tea Co., Inc., 644 F.2d 884 (6th Cir. 1981). The First Circuit held that 300 days is to be allowed for federal filings in deferral states even if no charge has been filed with the state agency within 180 days. Ciccone v. Textron, Inc., 651 F.2d 1 (1st Cir.), cert. denied, 452 U.S. 917, 101 S.Ct. 3052, 69 L.Ed.2d 420 (1981). See also, Aronson v. Crown Zellerbach, 662 F.2d 584 (9th Cir. 1981); Owens v. Ramsey Corp., 656 F.2d 340 (8th Cir. 1981); Wiltshire v. Standard Oil Co. of Cal, 652 F.2d 837 (9th Cir. 1981), cert. denied, 455 U.S. 1034, 102 S.Ct. 1737, 72 L.Ed.2d 153 (1982); Goodman v. Heublein, Inc., 645 F.2d 127 (2d Cir. 1981); Davis v. Calgon Corp., 627 F.2d 674 (3d Cir. 1980), cert. denied, 449 U.S. 1101, 101 S.Ct. 897, 66 L.Ed.2d 827 (1981). Since the plaintiff was not required to file with the KCHR within 180 days, the only issue remaining in this case is whether or not the plaintiffs federal action is barred because she failed to initiate proceedings before the KCHR prior to the expiration of the state’s statute of limitations. Section 706(e), 42 U.S.C. § 2000e-5(e), does not state that resort to state proceedings must be within time limits specified by the state. Section 706(e), 42 U.S.C. § 2000e-5(e), only provides that a 300-day limitation period is applicable for a timely federal filing with the EEOC under Section 706(b), 42 U.S.C. § 2000e-5(b), when proceedings are initially instituted with an appropriate state agency. Section 706(c), 42 U.S.C. § 2000e-5(c), however, states that when an unlawful employment practice occurs within a deferral state, a charge may not be filed with the EEOC until after “the expiration of sixty days after proceedings have been commenced under the state or local law, unless such proceedings have been earlier terminated.” (emphasis added). The application of the 300-day limitation period within Section 706(e), 42 U.S.C. § 2000e-5(e), applies only to deferral states where proceedings must first be instituted with an appropriate state agency under Section 706(c), 42 U.S.C. § 2000e-5(c). Section 706(c), 42 U.S.C. § 2000e-5(c), requires only that the grievant commence state proceedings. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979). Nothing whatever in the section requires the respondent to commence those proceedings within the allotted time under state law to preserve a right of action under Section 706(f), 42 U.S.C. § 2000e-5(f). In Oscar Mayer, supra, the Supreme Court construed Section 14(b) of the Age Discrimination in Employment Act of 1967 (ADEA) in a manner consistent with the provisions of Section 706(c), 42 U.S.C. § 2000e-5(e), in holding that there is no requirement that, in order to commence state proceedings and thereby preserve federal rights, the grievant must file with the state within whatever time limits are specified by state law. Id. at 759, 99 S.Ct. at 2073. The court stated: Individuals should not be penalized if states decline, for whatever reason, to take advantage of these opportunities. Congress did not intend to foreclose federal relief simply because state relief was also foreclosed. The structure of the ADEA reinforces the conclusion that state procedural defaults cannot foreclose federal relief and that state limitations periods cannot govern the efficacy of the federal remedy. The ADEA’s limitations periods are set forth in explicit terms in 29 U.S.C. §§ 626(d) and (e), not § 14(b), 29 U.S.C. § 633(b). Sections 626(d) and (e) adequately protect defendants against stale claims. Id. at 761-62, 99 S.Ct. at 2074-2075 (citations omitted). Several cases have held that the conclusion drawn from Oscar Mayer is that compliance with state time limitations must be deemed irrelevant for purposes of determining whether a complainant has 180 or 300 days to file notice to sue with the EEOC. Aronsen v. Crown Zellerbach, 662 F.2d 584 (9th Cir. 1982); Goodman v. Heublein, Inc., 645 F.2d 127 (2d Cir. 1981); Davis v. Calgon Corp., 627 F.2d 674 (3d Cir. 1980), cert. denied, 449 U.S. 1101, 101 S.Ct. 897, 66 L.Ed.2d 827 (1981); Bean v. Crocker Nat’l Bank, 600 F.2d 754 (9th Cir. 1979). In Citicorp Person-To-Person Financial Corporation v. Brazell, 658 F.2d 232 (4th Cir. 1981), the Court stated: In Oscar Mayer, the Supreme Court held that a somewhat comparable requirement of exhaustion of state remedies under the [ADEA] could be met by an untimely filing of a charge with the state agency, for the federal statute did not provide that the prerequisite state charge must be filed within the time limitations prescribed by state law. Oscar Mayer requires that we give § 706(c) of Title VII a similar construction. Id. at 234 (citations omitted). Oscar Mayer holds that in commencing an action under either Section 14(b) of ADEA or Section 706(c) of Title VII a timely filing under state law is not necessary in order to properly file with the EEOC. An untimely filed state proceeding is “commenced” within the meaning of both Section 14(b) of the ADEA and Section 706(c) of Title VII so as to make available the 300-day filing period with the EEOC. To read a requirement into the provisions of Section 706(e), 42 U.S.C. § 2000e-5(e), that timely filing under state law is necessary in order to obtain the 300-day filing period, would be inconsistent with the Supreme Court’s holding in Oscar Mayer as well as with the purpose of Title VII. We therefore find that plaintiff Jones’ action is not barred for failure to commence proceedings with the KCHR in a timely fashion under state law. Further, we find that the plaintiff timely filed with the EEOC within 300 days of the alleged unlawful conduct pursuant to Section 706(e), 42 U.S.C. § 2000e-5(e). Accordingly, judgment and order of the district court is REVERSED and REMANDED for consideration upon the merits of plaintiff’s complaint. . In dictum, the Supreme Court recognized that the language of Section 706(e), 42 U.S.C. § 2000e-5(e), has been interpreted to require that a complainant file his charge initially with the appropriate state agency within 180 days (which is the time a complainant must file with the EEOC in a non-deferral state) in order to preserve rights under Title VII and obtain the 300-day filing period with the EEOC. See Olson v. Rembrandt Printing Co., 511 F.2d 1228 (8th Cir. 1975). The Court rejected this approach, however, stating that “we do not believe that a court should read in a time limitation provision that Congress has not seen fit to include.” Mohasco Corp. v. Silver, 447 U.S. at 816 n. 19, 100 S.Ct. at 2491-2492 n. 19. . Because of similarity of purpose and structure, we refer to cases arising under both the ADEA and Title VII concerning the filing requirements with the EEOC and appropriate state agencies. Both Title VII and the ADEA share a common purpose, i.e., elimination of discrimination in employment, both statutory schemes are similar and both statutes have almost identical filing requirements and statutes of limitation. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979); Zipes v. Transworld Airlines, Inc., 455 U.S. 385, 395, 102 S.Ct. 1127, 1133 n. 11, 71 L.Ed.2d 234 (1982); Coke v. General Adjustment Bureau, Inc., 640 F.2d 584 (5th Cir. 1981). . One issue not raised by the parties is whether the construction given to 42 U.S.C. § 2000e-5(e) by the Court in Mohasco has retroactive application. In Hall v. Ledex, Inc., 669 F.2d 397, 399 (6th Cir. 1982), the Sixth Circuit adopted the approach of Wiltshire v. Standard Oil of Cal., 652 F.2d 837 (9th Cir. 1981), that Mohasco should not be applied retroactively. In Wiltshire, the Ninth Circuit held that the rule of Mohasco should be applied only to those claims submitted to the EEOC after June 23, 1980 (the date of announcement of Mohasco ). In the present case plaintiffs charge was first submitted to the EEOC on August 22, 1980, so that the Mohasco case does apply. . There are two differences between the statute of limitations of the ADEA, 29 U.S.C. § 626(d), and the statute of limitations of Title VII, 42 U.S.C. § 2000e-5(e). First, Section 626(d) explicitly refers to Section 633(b) (requiring the filing of a charge of discrimination within a deferral state with the appropriate state agency first) whereas Section 2000e-5(e) does not specifically refer to Section 2000e-5(c) (same requirement as Section 633(b) of the ADEA). Section 2000e-5(e), however, provides that the 300-day filing period is applicable when state proceedings are initially instituted. We find that the language of Section 2000e-5(e) implicitly refers to Section 2000e-5(c) in the same way that Section 626(d) of the ADEA makes the reference explicitly. Second, Section 626(d) states that no civil action may be filed unless a charge is filed with the Secretary whereas Section 2000e-5(e) only provides when a filing with the EEOC is timely without reference to whether or not a civil action may be commenced. We find this, however, not to be a significant difference inasmuch as both sections are respectively interpreted as statutes of limitations in the bringing of federal civil actions. . The Supreme Court held in Oscar Mayer that in order to determine if a state’s statute of limitations will bar a federal action, the proper inquiry is to determine whether Congress mandated that resort to state proceedings must be within time limits specified by the state. In reviewing the language of Section 14(b) of the ADEA, which was modeled after Section 706(c) of Title VII, the court found no implication that the state limitations apply. Indeed, the Court found that the following language expresses Congress’ intent explicitly that there is no requirement that commencing state proceedings must be timely under state law. The last sentence of Section 14(b) provides: If any requirement for the commencement of such proceedings is imposed by a state authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate state authority. 29 U.S.C. § 633(b). Section 706(c) of Title VII, 42 U.S.C. § 2000e-5(c) contains exactly the same express declaration of Congress’ intent that a state proceeding is deemed commenced upon filing a complaint regardless of whether or not such filing was timely under state law. Question: Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_appel2_2_2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "private organization or association". Your task is to determine what category of private associations best describes this litigant. CONTRACTORS ASSOCIATION OF EASTERN PENNSYLVANIA, INC., General Building Contractors Association, Inc., Associated Master Painters & Decorators of Philadelphia, Inc., Employing Brick Layers Association of Delaware Valley, Inc., Interior Finish Contractors Association, Inc., Mechanical Contractors Association of Eastern Pennsylvania, Inc., Roofing and Sheet Metal Contractors Association, Inc., Sub-Contractors Association of Delaware Valley, Inc., National Electrical Contractors Association, Inc. v. CITY OF PHILADELPHIA, Elizabeth Reveal, as Director of Finance for the City of Philadelphia, Curtis Jones, Jr., as Director of the Minority Business Enterprise Council, United Minority Enterprise Associates, Inc., Intervening Defendant, The City of Philadelphia, Appellant at No. 90-1295, United Minority Enterprise Associates, Inc., Appellant at No. 90-1296. Nos. 90-1295, 90-1296. United States Court of Appeals, Third Circuit. Argued Nov. 16, 1990. Decided Sept. 30, 1991. Charles W. Bowser (argued), James P. Cousounis, Bowser, Weaver & Cousounis, P.C., and Charisse Lillie, City Sol., Philadelphia, Pa., for City of Philadelphia. Robert T. Vance, Jr. (argued), Brown, Vance, Jackson & Smith, Philadelphia, Pa., for United Minority Enterprise Associates, Inc. John J. McAleese, Jr. (argued), Thomas J. McGoldrick, John H. Widman, McAleese, McGoldrick & Susanin, P.C., King of Prussia, Pa., for appellees. Before GREENBERG, HUTCHINSON and HIGGINBOTHAM, Circuit Judges. At the time of argument, Judge Higginbotham was Chief Judge but has since assumed Senior status. OPINION OF THE COURT HUTCHINSON, Circuit Judge. The City of Philadelphia (City) and United Minority Enterprise Associates, Incorporated (Minority Associates) appeal an order of the United States District Court for the Eastern District of Pennsylvania granting appellee Contractors Association of Eastern Pennsylvania, Incorporated, and other trade associations with members that do business in the construction industry in the Philadelphia metropolitan region (collectively “Contractors”), summary judgment on Contractors’ claim that Chapter 17-500 of the Philadelphia Code (Ordinance), Philadelphia’s public contract set-aside law, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. See Contractors Ass’n of E. Pa., Inc. v. City of Phila., 735 F.Supp. 1274 (E.D.Pa.1990). Among other contentions, Minority Associates argues that the district court erred by granting the Contractors’ motion without giving Minority Associates a chance to pursue additional discovery on the existence of discrimination in the Philadelphia construction market that could justify the various set-asides in the Ordinance. Minority Associates’ opposition to Contractors’ motion for summary judgment was accompanied by a Federal Rule of Civil Procedure 56(f) affidavit. The affidavit stated that Minority Associates needed time to undertake further discovery. We think Minority Associates should have been given a reasonable opportunity for further discovery and will therefore vacate the district court’s order granting Contractors’ summary judgment and remand for further proceedings consistent with this opinion. I. This appeal concerns claims Contractors made in an amended complaint dated May 19, 1989 that was filed in the district court in their suit to strike down Chapter 17-500 of the Philadelphia City Code and the regulations promulgated under that Ordinance as contrary to the United States and Pennsylvania Constitutions and federal and state statutes guaranteeing them, inter alia, equal protection of the laws. The City filed an answer as did Minority Associates, an intervening defendant. On October 11, 1989, the City moved for judgment on the pleadings or, alternately, summary judgment on the grounds that Contractors lacked standing to sue and did not state a cause of action under the Equal Protection Clause, 42 U.S.C.A. § 1983 (West 1981) and 42 U.S.C.A. § 1981 (West 1981). The City also moved for judgment on the pleadings on the state law claims alleging that if the federal claims were dismissed the court would lack pendent jurisdiction. The Contractors replied and filed a cross-motion for summary judgment on its Equal Protection Clause and section 1983 claims. The City opposed Contractors’ cross-motion for summary judgment arguing mainly that genuine issues of fact remained to be resolved. Minority Associates joined the City’s opposition and asked for a continuance so that discovery could be completed before the Contractors’ motion was ruled on. On April 5, 1990, the district court granted Contractors’ cross-motion, denied the City’s motion, declared the minority-, female- and handicapped-owned business enterprise set-aside programs set forth in the Ordinance and the implementing regulations unconstitutional and permanently enjoined the City from enforcing or implementing the Ordinance or the regulations. The City filed its notice of appeal on April 10, 1990, and Minority Associates filed its notice of appeal on April 12, 1990. II. The district court had subject matter jurisdiction over the section 1983 claim that the Ordinance violated Contractors’ right to equal protection under 28 U.S.C.A. § 1331 (West Supp.1991) and 28 U.S.C.A. § 1343(a)(3) & (4) (West Supp.1991). We have appellate jurisdiction over the City’s and Minority Associates’ appeals from the district court’s final order under 28 U.S.C.A. § 1291 (West Supp.1991). Our review of the district court’s order denying the City’s motion for summary judgment on standing and its order granting Contractors’ motion for summary judgment on the merits is plenary. See Country Floors, Inc. v. A Partnership Composed of Gepner & Ford, 930 F.2d 1056, 1060 (3d Cir.1991). We review the district court’s refusal to postpone action on the Contractors’ motion pending further discovery by Minority Associates for abuse of discretion. See Lunderstadt v. Colafella, 885 F.2d 66, 71-72 (3d Cir.1989). If information concerning the facts to be discovered is solely in the possession of the movant, however, “a motion for continuance of a motion for summary judgment for purposes of discovery should [then] ordinarily be granted almost as a matter of course.” Ward v. United States, 471 F.2d 667, 670 (3d Cir.1973) (citations omitted). The Ward rationale would not seem to apply, however, when the party seeking discovery has the information it seeks in its own possession or can get it from a source other than the movant. III. The Ordinance in question is entitled “Goals For The Participation Of Minority, Female And Handicapped Owned Businesses In City Contracts.” II Appendix (App.) at 310. Through various means, the Ordinance seeks to increase the number of “Disadvantaged Business Enterprises” owned by minorities, women or handicapped persons who are awarded city contracts. A Disadvantaged Business Enterprise is any small business “which is at least 51 percent (51%) owned by one or more socially and economically disadvantaged individuals.” Id. at 311. The Ordinance creates an agency called the Minority Business Enterprise Council (the agency). The agency is charged with the administration of the Ordinance, which authorizes the agency to presume that all minorities, women and handicapped persons are socially and economically disadvantaged persons. Once a Disadvantaged Business Enterprise receives contract work of more than $5,000,000.00 from the City under the Ordinance, that business is rebuttably presumed not to be disadvantaged. The Ordinance sets “goals” of fifteen-percent participation in city contracts for minority-owned businesses, ten percent for female-owned businesses and two percent for handicapped-owned businesses. Finally, the Ordinance contains provisions that allow the agency to waive its set-aside requirements in certain situations. A. We first address the City’s standing claim because it goes to the subject matter jurisdiction of the district court. See Metropolitan Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., — U.S. -, 111 S.Ct. 2298, 2306 & n. 13, 115 L.Ed.2d 236 (1991) (Court first addressed standing and ripeness claims that could impair the Court’s power to hear the case). The City contends that the Contractors lack standing for two reasons. First, the City says the Contractors did not establish that they suffered an injury-in-fact. Second, the City maintains that the Contractors cannot claim organizational standing because of conflicts of interest among the members of the organizations. We reject both challenges. The Supreme Court of the United States has stated: The Art. Ill judicial power exists only to redress or otherwise to protect against injury to the complaining party.... A federal court’s jurisdiction therefore can be invoked only when the plaintiff himself has suffered “some threatened or actual injury resulting from the putatively illegal action....” Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) (citations omitted) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973)). An association can have standing on the basis of direct injury against itself as an association. See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40, 96 S.Ct. 1917, 1925, 48 L.Ed.2d 450 (1976). Under certain circumstances, an association can also have standing on the basis of injury to its members. [A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). The district court determined that Contractors met Hunt’s requirements. Contractors Ass’n, 735 F.Supp. at 1281-87. We agree with its analysis. The City’s second argument on standing merits more discussion. Because an association represents many individuals, the potential for conflict of interest exists among its members. The City notes that some of the Contractors’ members qualify as disadvantaged businesses and actually oppose the litigation, and thus a conflict of interest exists that denies Contractors standing. In considering whether a target corporation had standing to assert the interests of its shareholders in the case of a hostile takeover, we stated that “associational standing has never been granted in the presence of serious conflicts of interest either among the members of an association or between an association and its members.” Polaroid Corp. v. Disney,-862 F.2d 987, 999 (3d Cir.1988). We explained the rationale for denying standing to the corporation in that case as follows: [A] potential conflict [exists] between those shareholders who view litigation to enjoin a tender offer as adversely affecting their opportunity to collect on the tender offer premium and those shareholders who are cut out of the tender offer and thus may want to see it defeated. Even though some shareholders are disadvantaged by their exclusion from the tender offer, a great majority of shareholders will often benefit from the offer. A corporation is thus an uncertain representative for the interests of the disadvantaged shareholders, as it may have an eye to protecting the interests of the majority. This undermines the basis for jus tertii standing — that the jus ter-tii advocate will vigorously assert the interests of the right-holder. See Craig v. Boren, 429 U.S. 190, 194, 97 S.Ct. 451, 455, 50 L.Ed.2d 397 (1976); Singleton v. Wulff, 428 U.S. 106, 114, 96 S.Ct. 2868, 2874, 49 L.Ed.2d 826 (1976) (plurality opinion). Indeed, one basis for the constitutional requirement that a litigant have a personal stake in a litigation is “to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult ... questions.” Simon v. Eastern Kentucky Welfare Right [sic] Organization, 426 U.S. 26, 38 n. 16, 96 S.Ct. 1917, 1924 n. 16, 48 L.Ed.2d 450 (1976) (quoting Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)). Id. (emphasis in original). In Polaroid, we noted two possible conflicts that could prevent a target corporation from seeking standing on behalf of its shareholders. The first is between management, who would seek to defeat the takeover to remain in control, and the shareholders, who could profit from the tender offer. The second conflict is between the shareholders who will profit from the tender offer, normally the majority of shareholders, and the target corporation when the target corporation sides with the shareholders who will not profit from the tender offer, normally the minority of shareholders. The conflict in our case is of the second type. In the matter at hand, however, the City and Minority Associates do not argue that Contractors are not representing the interests of a majority of their membership. Only twenty-nine of Contractors’ 535 members are registered Minority, Female or Handicapped Business Enterprises. Contractors Ass’n, 735 F.Supp. at 1286. There is little chance that the conflict between the majority and minority of the Contractors’ members will affect the adequacy of representation or present a likelihood of a collusive suit that would deprive the court of vigorous advocacy on all sides of this dispute. When an association has not violated its members’ rights by ignoring the association’s by-laws before bringing an action on a matter of concern to the membership, it is primarily concern over the absence of strong advocacy on both sides of a controversy that has motivated courts to hold that a conflict of interest among its members deprives an association of associational standing. See National Collegiate Athletic Ass’n v. Califano, 622 F.2d 1382, 1391-92 (10th Cir.1980) (an association cannot have associational standing if more members oppose the association’s position than support it); Associated Gen. Contractors of Conn., Inc. v. City of New Haven, 130 F.R.D. 4,10 (D.Conn.1990) (“[a]s long as the [law] suit is not in contravention of [the association’s] purposes nor its by-laws ... it has [associational] standing”); Mountain States Legal Found, v. Dole, 655 F.Supp. 1424, 1426 (D.Utah 1987) (“Because associations typically consist of many members with potentially conflicting interests and views on any particular dispute, a danger exists that certain members of the association will be sympathetic to the adverse party. In such a case, there could be no legitimate controversy.”). The Contractors’ position in this litigation is not contrary to the interests of a majority of their members, and there is nothing on this record indicating that they failed to follow their own internal rules before joining this litigation. Therefore, the City’s argument fails, and we hold that Contractors have associational standing to maintain the present action. B. On the merits, Minority Associates contends that the district court erred in granting summary judgment to the Contractors since Minority Associates did not have enough time to discover evidence it believed was in the possession of the Contractors which would show the existence of past and present discrimination by Contractors against entities that would qualify as Disadvantaged Business Enterprises and so preclude the entry of summary judgment for Contractors under the teaching of City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). Accordingly, it argues that the district court should have delayed ruling on the Contractors’ motion for summary judgment until it and the City completed discovery. Minority Associates formally advised the district court of its need for further discovery in accord with Federal Rule of Civil Procedure 56(f). Rule 56(f) states: Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. Fed.R.Civ.P. 56(f). Whether such a motion should be granted depends, in part, on “what particular information is sought; how, if uncovered, it would preclude summary judgment; and why it has not previously been obtained.” Lunderstadt, 885 F.2d at 71 (quoting Dowling v. City of Phila., 855 F.2d 136, 140 (3d Cir.1988)). In order to examine the first consideration specified in Lunderstadt, what information is sought, we must look to the affidavit filed with the Rule 56(f) motion. It seeks information from Contractors concerning “past and current practices and/or instances of discrimination by plaintiffs and their members in both the public and private construction industries.” II App. at 305. The affidavit also states that Minority Associates plans to seek this information from Contractors through testimony on depositions, interrogatories, and requests for production of documents served on Contractors. Knowing what information Minority Associates seeks, we turn to the next part of Lunderstadt’s inquiry — whether the information sought, if uncovered, could preclude summary judgment. See Lunderstadt, 885 F.2d at 71. This inquiry into the substantive law on the constitutionality of minority set-asides is controlled by the Supreme Court’s decision in Croson. From the opinions in that case, we must determine whether the information Minority Associates seeks could create a genuine dispute of material fact and so defeat Contractors’ motion for summary judgment. In Croson, a majority of the Supreme Court held that the City of Richmond had not demonstrated a compelling governmental interest that would justify its racially-based set-aside ordinance. Croson, 109 S.Ct. at 723-28. A plurality of the Court also held that the set-aside program violated the Equal Protection Clause of the Fourteenth Amendment because the City of Richmond had not demonstrated that the ordinance was necessary to remedy past discrimination. Id. at 730 (plurality opinion). The lack of record evidence concerning past “discrimination in the local construction industry” was fatal to the ordinance. Id. at 726; see id. at 723 & 727. The plurality says that this evidence is necessary to the constitutionality of a minority set-aside ordinance. See id. at 729-30 (plurality opinion). We conclude that the evidence of past discrimination Minority Associates seeks could preclude summary judgment if the City Council’s purpose in creating the various set-asides was to remedy such discrimination. Application of the last Lunderstadt factor requires an inquiry into why the party seeking more time has not previously obtained the information. In its Rule 56(f) affidavit, Minority Associates stated that Contractors had not yet answered many of the City’s interrogatories seeking information Minority Associates needs to formulate its own interrogatories and depositions. Minority Associates also noted that the City’s depositions of some of Contractors’ members, in which Minority Associates would participate, had been noticed but not taken when the district court granted Contractors’ motion for summary judgment. Minority Associates attributes this delay to the Contractors’ desire for a protective order and its intent to move for such an order. These reasons are sufficient to explain why the information has not been previously obtained. Since Minority Associates’ request for more time to engage in discovery was for the purpose of seeking information that could defeat a summary judgment motion, which it could not have previously obtained, under Lunderstadt, its Rule 56(f) affidavit authorized the district court to delay action on the Contractors’ motion for a reasonable time. This conclusion does not, however, end our inquiry. A district court has discretion in acting on Rule 56(f) motions. See Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3d Cir.1986). The Lunderstadt factors simply offer a guide for a district court to follow in exercising its discretion under Rule 56(f). In this case, however, the breadth of the district court’s discretion is affected by Contractors’ possession of records that contain the information Minority Associates seeks. As we said earlier, this limits the district court’s discretion to deny a request for delay when a proper Rule 56(f) affidavit is filed. In such a case, a district court should grant a Rule 56(f) motion almost as a matter of course unless the information is otherwise available to the non-movant. See Ward, 471 F.2d at 670. Here, Minority Associates’ Rule 56(f) affidavit avers the information it seeks from Contractors is not otherwise available. Thus, the record before us shows the Lunderstadt factors are present. See Lunderstadt, 885 F.2d at 71. It also demonstrates no undue delay. Cf. id. Unanswered interrogatories and notices to take depositions directed to Contractors were outstanding when the district court ruled on Contractors’ motion for summary judgment, a practice this Court has disapproved. See Sames v. Gable, 732 F.2d 49, 51 (3d Cir.1984). Accordingly, we conclude that the district court abused its discretion when it refused Minority Associates the delay it sought pursuant to Rule 56(f). On remand, Minority Associates should be given a reasonable opportunity to discover evidence that relates to a pattern of discriminatory practices or instances of discrimination in the Philadelphia-area construction industry that occurred over time before passage of the Ordinance. We are confident that the district court will require the Contractors to move promptly for any protective orders they desire and thereafter impose reasonable limits on the scope and time for completion of the discovery Minority Associates seeks. IV. The district court abused its discretion in not allowing a continuance before ruling on the pending motions for summary judgment. Consequently, our opinion takes no view on any of the other issues presented in this appeal with the exception that we agree with the district court’s holding that the Contractors’ have standing. Beyond that, we will vacate the order of the district court and remand for further proceedings consistent with this opinion. Each party to bear its own costs. . The collective term "Contractors” means Contractors Association of Eastern Pennsylvania, Incorporated; General Building Contractors Association, Incorporated; Employing Bricklayers Association of Delaware Valley, Incorporated; and Subcontractors Association of Delaware Valley, Incorporated. These four are those plaintiffs the district court held met the standing requirements of Article III of the United States Constitution. See Contractors Ass’n of E. Pa., Inc. v. City of Phila., 735 F.Supp. at 1283-84 & n. 3. . After oral argument, this Court received supplemental briefing from the parties in April and May of 1991. . The class of “socially and economically disadvantaged individuals” is defined as follows: (11) Socially and Economically Disadvantaged Individuals shall mean those individuals who have either been subjected to racial, sexual or ethnic prejudice because of their identity as a member of a group or differential treatment because of their handicap without regard to their individual qualities, and whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same business area who are not socially disadvantaged. (a) In determining who are socially and economically disadvantaged individuals, the Minority Business Enterprise Council may make a reputable presumption that all minority persons, all women and all handicapped persons shall be so classified. (b) The Minority Business Enterprise Council, in making said determination, shall also consider, among other things the extent of the liquid assets and net worth of such socially disadvantaged individuals. Id. . In Rocks v. City of Philadelphia, 868 F.2d 644, 648 (3d Cir.1989), this Court held that municipal taxpayers did not have standing to challenge Chapter 17-500 absent a showing that they had "sustained a proximate, individual and addressable injury, based solely on their status as municipal residents and taxpayers,” but in dicta, stated that: "Contemplating the appellants’ allegation, we think that an article III injury to contractors and bidders at large has been made out.” This supports, but does not compel, our result. . The United States Court of Appeals for the District of Columbia Circuit has rejected the theory that an internal conflict of interest may deprive an organization of standing. See Humane Society of the United States v. Hodel, 840 F.2d 45, 59-60 n. 25 (D.C.Cir.1988); National Maritime Union v. Commander, Military Sealift Command, 824 F.2d 1228, 1234 (D.C.Cir.1987). . The reader is reminded that the term "Contractors" as used in this opinion encompasses all the trade associations that joined in bringing this action who were found to have met Article Ill’s requirements for standing by the district court. See supra note 1. . Though Minority Associates may also compile and submit evidence of instances of discrimination that pre-date the passage of the Ordinance, we note that the questions of whether evidence of past discrimination not known to City Council when it passed the Ordinance is proof material to the legislative purpose of correcting such discrimination that Croson requires, or whether anecdotal evidence of discrimination is suffi-dent to show the compelling interest Croson requires are not now before us. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private organization or association". What category of private associations best describes this litigant? A. business, trade, professional, or union (BTPU) B. other Answer:
sc_lcdispositiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations LICHTER et al., doing business as SOUTHERN FIREPROOFING CO., v. UNITED STATES. NO. 105. Argued November 20-21, 1947. Decided June 14, 1948. Paul W. Steer argued the cause and filed a brief for petitioners in No. 105. Leo R. Friedman argued the cause for petitioners in No. 74. With him on the brief was Jos. I. McMullen. Edward C. Park argued the cause and filed a brief for petitioner in No. 95. Solicitor General Perlman argued the cause for the United States. With him on the brief were Herbert A. Bergson, Newell A. Clapp, Paul A. Sweeney, Oscar H. Davis and Ellis Lyons.- O. R. McGuire and Julius C. Smith filed a brief for the Spindale Mills, Inc., as amicus curiae, in Nos. 74 and 95, urging reversal. Mr. Justice Burton delivered the opinion of the Court. The Renegotiation Act, in time of crisis, presented to this nation a new legislative solution of a major phase of the problem of national defense against world-wide aggression. Through its contribution to our production program it sought to enable us to take the leading part in winning World War II on an unprecedented scale of total global warfare without abandoning our traditional faith in and reliance upon private enterprise and individual initiative devoted to the public welfare. In each of the three cases before us the principal issue is the constitutionality, on its face, of the Renegotiation Act insofar as it is authority for the recovery of the excessive profits sought to be recovered by the United States from the respective petitioners. In each case the secondary issue is whether the failure of the respective petitioners to petition the Tax Court for a redetermination of the amount, if any, of their excessive profits excludes from consideration here the coverage of the Act, the amount of the profits and other comparable issues which could have been presented to the Tax Court. In each of these cases the District Court has held that the Act was constitutional and that, by failure to petition the Tax Court for their redetermination, the existing orders have become final as claimed by the Government. Each Circuit Court of Appeals has affirmed, unanimously, the judgment appealed to it. We agree with the courts below. In each of these cases the United States obtained a judgment for a sum alleged to be owed to it pursuant to a determination of excessive profits under the Renegotiation Act. The determinations of excessive profits in the respective cases were made by the Under Secretary of War or by the War Contracts Price Adjustment Board after the Revenue Act of 1943 had been approved, February 25, 1944. That Act contained, in its Title VII, the so-called Second Renegotiation Act which included provisions for the filing with the Tax Court of petitions for the redeterminations of excess profits. None of these petitioners, however, filed such a petition with the Tax Court. On the other hand, the respective petitioners have relied upon their claims that, as a matter of law, the Renegotiation Act is unconstitutional on its face insofar as it purports to authorize the judgments which have been taken against the respective petitioners. The petitioners contend also that their failures to file petitions with the Tax Court have not foreclosed their respective rights to contest here the coverage of the Act, the amount of the excess profits found against them and other comparable issues which they might have presented to the Tax Court. NO. 105 (THE LICHTER CASE). In May, 1945, the United States filed its complaint in the District Court of the United States for the Southern District of Ohio against the petitioners, Jacob Lichter and Jennie L. Lichter, engaged in the construction business in Cincinnati, Ohio, under the name of the Southern Fireproofing Company, a copartnership. The complaint was founded upon the determination by the Under Secretary of War, dated October 20, 1944, that $70,000 of the profits realized by petitioners during the calendar year 1942- from nine subcontracts, executed in 1942 for a total price of $710,224.16, were, under the Renegotiation Act, excessive profits. The complaint showed that the petitioners were entitled to a tax credit of $42,980.61 against such excessive profits. It alleged, moreover, that the petitioners had not, within the required period, petitioned the Tax Court for a redetermination of the order in question and had not paid or otherwise eliminated the amount of $27,019.39 thus due to the United States. The petitioners admitted that the Under Secretary had made the determination as alleged; that if his order were valid the petitioners were entitled to the tax credit specified; and that they had not paid the sum demanded nor had they filed a petition with the Tax Court for a rede-termination of the excessive profits, if any. They put in issue, on specifically stated grounds, the constitutionality of the Renegotiation Act insofar as it might be authority for the recovery of the profits sought to be recovered, and they put in issue the applicability to them of any requirement that they seek in the Tax Court a redetermination of the profits which they had been ordered to repay to the United States. They alleged also that: of the nine subcontracts which were made the basis of renegotiation, all were executed during the calendar year 1942; four were executed before April 28, 1942, the date of the original Renegotiation Act; none contained clauses permitting or requiring their renegotiation; only two of them were for amounts in excess of $100,000 each; these two were among those which had been executed before April 28, 1942; and no excessive profits had been in fact earned by the petitioners during 1942. Finally they alleged that the several contracts referred to were subcontracts entered into under prime contracts which had been awarded by a department of the Government as the result of competitive bidding for the construction of buildings and facilities and the subcontracts themselves had been obtained by petitioners after further competitive bidding. For these and other reasons stated in the answer the contracts were claimed to be exempt from renegotiation. The United States moved for judgment on the pleadings and, in the alternative, for summary judgment. Affidavits were filed in' support of those motions. These included particularly the comprehensive affidavits of Robert P. Patterson, then Under Secretary of War, and of H. Struve Hensel, then Assistant Secretary of the Navy. These affidavits set forth the general background of the Renegotiation Act and the basis for- claiming that the renegotiation of war contracts was necessary in order to sustain this nation’s share of the burden of winning World War II. Counterparts of these two affidavits were filed in each of the other cases before us. The petitioners, on the other hand, moved to dismiss the complaint on the grounds that it failed to state a claim upon which relief could be granted and that the profits in question were exempt from the Act. The District Court made findings of fact substantially as stated in the complaint and admitted in the answer. It concluded that there was no genuine issue as to any material fact and that the United States was entitled to judgment as a matter of law for $27,019.39, with interest at six percent per annum from November 6,1944. 68 F. Supp. 19. The Circuit Court of Appeals for the Sixth Circuit affirmed the judgment. It held expressly that the Renegotiation Act was valid on its face and that the petitioners, by reason of their failure to petition the Tax Court for a redetermination of the amount of the excessive profits, if any, were barred from making their other attacks on the Secretary’s determination of such excessive profits. 160 F. 2d 329. Because of the basic significance of the constitutional questions involved we granted certiorari. 331 U. S. 802. NO. 74 (THE POWNALL CASE). In September, 1945, the United States filed its complaint in the District Court of the United States for the Southern District of California against the petitioners, A. V. Pownall, Grace M. Pownall, and Henes-Morgan Machinery Company, Limited, a California corporation, all three doing business in Los Angeles, California, as co-partners under the name of General Products Company. The record indicates that they were there engaged in the production of precision parts, machinery and tools for use by war contractors. The complaint was founded upon a determination made by the Under Secretary of War, on behalf of the War Contracts Price Adjustment Board, dated December 27, 1944, to the effect that $628,373.14 of the profits realized by petitioners during the calendar year 1943 on their contracts and subcontracts, subject to renegotiation pursuant to the Renegotiation Act, were excessive profits. The complaint showed that the petitioners were entitled to a tax credit of $514,663.95 against such profits. It alleged, moreover, that the petitioners had not, within the required period, petitioned the Tax Court for a redetermination of the order in question and had not paid the sum of $113,709.19 thus claimed by the United States. The petitioners admitted that the Under Secretary had made the determination as alleged; that the Board had adopted his order; that the appropriate tax credit was as alleged; that no petition for redetermination had been filed with the Tax Court; that the time for filing had expired; and that no payment of the amount claimed had been made. The petitioners alleged, however, that the Renegotiation Act was invalid on its face on numerous specifically stated constitutional grounds; that the Under Secretary’s order was invalid in that it was based on undisclosed data and contained no findings; and that no single contract under consideration exceeded in amount the sum of $99,000. The United States moved for judgment on the pleadings and, in the alternative, for summary judgment. The petitioners did the same. Under the stipulations of the parties there were no disputed issues of fact and the only questions left for decision were those as to the constitutional validity of the Act and as to its interpretation if found to be valid. The District Court denied the motions of both parties. However, ruling on the merits of the cause thus before it, it found the facts to be substantially as alleged in the complaint and as stipulated. It held the Act to be valid on its face and held the unappealed determination of excessive profits to be final. It rendered judgment for the United States for $121,043.39, evidently representing $113,709.19, with interest at six percent per annum from March 13, 1945. 65 F. Supp. 147, and see findings of fact, conclusions of law and judgment of the court. The Circuit Court of Appeals for the Ninth Circuit affirmed the judgment. It followed its earlier decision in Spaulding v. Douglas Aircraft Co., 154 F. 2d 419, in upholding the constitutionality of the Act and expressly holding that the petitioners, by not having petitioned the Tax Court for relief, had failed to exhaust their administrative remedies. Accordingly, it held that the District Court was without jurisdiction to consider the petitioners’ contentions as to the coverage of the Act. 159 F. 2d 73. We granted certiorari. 331 U. S. 802. NO. 9 5 (THE ALEXANDER CASE). In August, 1945, the United States filed its complaint in the District Court of the United States for the District of Massachusetts against the petitioner, Alexander Wool Combing Company, a Massachusetts corporation doing business at Lowell, Massachusetts, and there engaged in the business of scouring wool and combing it into tops and noils for commissions paid to it by the owners of the wool. The complaint was founded upon two determinations by the Under Secretary of War, both dated September 6, 1944. One determined that $22,500 of the profits realized by the petitioner during its fiscal year ended June 30, 1942, and the other that $45,000 of the profits realized by the petitioner during its fiscal year ended June 30, 1943, under its contracts and subcontracts which were alleged to be subject to the provisions of the Renegotiation Act, were excessive. The complaint showed that the petitioner was entitled to a tax credit of $15,020.80 against such excessive profits for the fiscal year ended June 30, 1942, and of $36,596.42 against those for the fiscal year ended June 30, 1943. The complaint alleged, moreover, that the petitioner had not, within the required periods, petitioned the Tax Court for a redeter-mination of either of the orders in question; that the respective periods for filing such petitions had expired; and that the petitioner had not paid, or otherwise eliminated, the amount of $15,882.78 thus due to the United States. The petitioner admitted the factual allegations of the complaint but denied that any amount was owing to the United States. It claimed that the determinations made by the Under Secretary were void because made without due process of law and were unenforcible as to the petitioner because, as applied to it, they were unconstitutional for several specifically stated reasons. The United States moved for judgment on the pleadings or, in the alternative, for summary judgment. In support of these motions the above-mentioned affidavits of Robert P. Patterson, Under Secretary of War, and of H. Struve Hensel, Assistant Secretary of the Navy, and several others were filed. Evidence both oral and in affidavit form was submitted in opposition. The District Court stated in its opinion, 66 F. Supp. 389, 391, that the petitioner “had no direct contracts with any department or agency of the United States. It combed wool for different private companies. It knew that some of the wool it combed for the companies was destined for use in government contracts, but it was and is ignorant as to the destination of other wool.” That court, nevertheless, rendered judgment in favor of the United States, for $15,882.78, with interest at six percent per annum from September 6, 1944. It held that the war powers of Congress were sufficient to enable it to authorize the recapture of excessive profits such as these; that the standard of “excessive profits” was sufficient to satisfy the constitutional limitations on the power of Congress to delegate authority; that any defects in the departmental proceedings were immaterial in view of the opportunity afforded the petitioner for a trial de novo and for a redetermination of excessive profits, if any, in the Tax Court; and that petitioner’s defenses on the ground of lack of coverage or of retroactivity of the application of the Renegotiation Act to the petitioner were lost to it by its failure to seek relief from the Tax Court. The Circuit Court of Appeals for the First Circuit said, per curiam: “We think the court below adequately covered all the issues in this case and we affirm its judgment upon the grounds and for the reasons set forth in its opinion . . . .” 160 F. 2d 103. We granted certiorari. 331U. S.802. THE BACKGROUND. We have two main issues before us: (1) the constitutionality of the Renegotiation Act on its face and (2) the finality of the determination of the excessive profits made under it in the absence of a petition, filed with the Tax Court within the required time, seeking a redetermination of those profits. In the Lichter case we have issues as to profits made in the calendar year 1942, in the Pownall case as to profits made in the calendar year 1943, and in the Alexander case as to certain profits made in the fiscal year ended June 30, 1942, and as to other profits made in the fiscal year ended June 30, 1943. In each case we uphold the constitutionality of the Act as providing the necessary authorization for the judgments rendered. We also accept the finality given by the courts below to the administrative determinations made of the excessive profits, although the statutory situation as a basis for the finality of such determinations is not precisely the same in each case. By reason of the finality thus attached to the determinations made as to excessive profits in these cases, we do not pass upon the issues attempted to be raised here as to the coverage of the Act, the amount of the profits, or other matters which the petitioners might have presented to the Tax Court but did not. In procedure which affects property rights as directly and substantially as that authorized by the Renegotiation Act, the governmental action authorized, although resting on valid constitutional grounds, is capable of gross abuse. The very finality of the administrative determinations here upheld emphasizes the seriousness of the injustices which can result from the abuse of the large powers vested in the administrative officials. We do not minimize the seriousness of complaints which thus may be cut off without relief in the name of the necessities of war and for the sake of the defense of the nation when its survival is at stake. We re-emphasize that, under these conditions, there is great need both for adequate channels of procedural due process and for careful conformity to those channels. In total war it is necessary that a civilian make sacrifices of his property and profits with at least the same fortitude as that with which a drafted soldier makes his traditional sacrifices of comfort, security and life itself. Within procedure thus authorized by the Constitution, the Congress and the Administration, and here affirmed, resulting injustices can and should be carefully examined and as far as possible relieved. In war both the raising and the support of the armed forces are essential. Both require mobilization and control under the authority of Congress. Both are entitled also to such postwar relief as may be authorized by Congress. The Renegotiation Act was developed as a major wartime policy of Congress comparable to that of the Selective Service Act. The authority of Congress to authorize each of them sprang from its war powers. Each was a part of a national policy adopted in time of crisis in the conduct of total global warfare by a nation dedicated to the preservation, practice and development of the maximum measure of individual freedom consistent with the unity of effort essential to success. With the advent of such warfare, mobilized property in the form of equipment and supplies became as essential as mobilized manpower. Mobilization of effort extended not only to the uniformed armed services but to the entire population. Both Acts were a form of mobilization. The language of the Constitution authorizing such measures is broad rather than restrictive. It says “The Congress shall have Power ... To raise and support Armies, but no appropriation of Money to that Use shall be for a longer Term than two Years; . . . Art. I, § 8, Cl. 12. This places emphasis upon the supporting as well as upon the raising of armies. The power of Congress as to both is inescapably express, not merely implied. The conscription of manpower is a more vital interference with the life, liberty and property of the individual than is the conscription of his property or his profits or any substitute for such conscription of them. For his hazardous, full-time service in the armed forces a soldier is paid whatever the Government deems to be a fair but modest compensation. Comparatively speaking, the manufacturer of war goods undergoes no such hazard to his personal safety as does a front-line soldier and yet the Renegotiation Act gives him far better assurance of a reasonable return for his wartime services than the Selective Service Act and all its related legislation give to the men in the armed forces. The constitutionality of the conscription of manpower for military service is beyond question. The constitutional power of Congress to support the armed forces with equipment and supplies is no less clear and sweeping. It is valid, a fortiori. In view of this power “To raise and support Armies, ...” and the power granted in the same Article of the Constitution “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, . . .” the only question remaining is whether the Renegotiation Act was a law “necessary and proper for carrying into Execution” the war powers of Congress and especially its power to support armies. It is impossible here to picture adequately all that might have been “necessary and proper” in 1942-1944 to meet the unprecedented responsibility facing Congress in this field. We do, however, catch a glimpse of it in authoritative, contemporaneous descriptions of the situation. Accordingly, we have set forth in the margin excerpts from the message of the President to the Congress upon the State of the Union, January 6, 1942, from a report of the Special Committee of the Senate Investigating the National Defense Program under the chairmanship of Senator Harry S. Truman, of Missouri, March 30, 1943, and from the affidavit of Robert P. Patterson, Under Secretary of War, dated August 3, 1945, in the form filed in each of the three cases before us. The above-mentioned excerpts describe a demand for production of war supplies in proportions previously unimagined. They call for production in a volume never before approximated and at an undreamed of speed. The results amply demonstrated the infinite value of that production in winning the war. It proved to be a sine qua non condition of the survival of the nation. Not only was it “necessary and proper” for Congress to provide for such production in the successful conduct of the war, but it was well within the outer limits of the constitutional discretion of Congress and the President to do so under the terms of the Renegotiation Act. Accordingly, the question before us as to the constitutionality of the Renegotiation Act is not that of the power of the government to renegotiate and recapture war profits. The only questions are whether the particular method of renegotiation and the administrative procedure prescribed conformed to the constitutional limitations under which Congress was permitted to exercise its basic powers. Our first question relates to the method of adjusting net compensation for war services through the compulsory “renegotiation” of profits under existing contracts between private parties, including recourse to unilateral orders for payments into the Treasury of the United States of such portions of those profits as were determined by the administrative officials of that Government to be “excessive profits.” There were added the limitations that the contracts were for war goods in time of war, the ultimate payment for which -was, in any event, to come from the Government and that, at the time of this impingement of the Renegotiation Act upon them, the contracts must not have been completed to the extent that final payments had been made on them. One approach to the question of the constitutional power of Congress over the profits on these contracts is to recognize that Congress, in time of war, unquestionably has the fundamental power, previously discussed, to conscript men and to requisition the properties necessary and proper to enable it to raise and support its Armies. Congress furthermore has a primary obligation to bring about whatever production of war equipment and supplies shall be necessary to win a war. Given this mission, Congress then had to choose between possible alternatives for its performance. In the light of the compelling necessity for the immediate production of vast quantities of war goods, the first alternative, all too clearly evident to the world, was that which Congress did not choose, namely, that of mobilizing the productive capacity of the nation into a governmental unit on the totalitarian model. This would have meant the conscription of property and of workmen. It would have meant the raising of supplies for the Armies in much the same manner as that in which Congress raised the manpower for such Armies. Already the nation had some units of production of military supplies in the form of arsenals, navy yards, and in the increasing number of governmentally owned, if not operated, war material plants. The production of the atomic bombs was one example of a war industry owned and operated exclusively by the Government. Faced with this ironical alternative of converting the nation in effect into a totalitarian state in order to preserve itself from totalitarian domination, that alternative was steadfastly rejected. The plan for Renegotiation of Profits which was chosen in its place by Congress appears in its true light as the very symbol of a free people united in reaching unequalled productive capacity and yet retaining the maximum of individual freedom consistent with a general mobilization of effort. Somewhat crude in its initial statutory simplicity, the Renegotiation Act developed rapidly as the demand for war production increased beyond precedent. First approved April 28, 1942, less than five months after our declaration of war, the Act was adjusted and strengthened in its effectiveness and fairness by the numerous amendments made to it. The nation previously had experienced different, but fundamentally comparable, federal regulation of civilian liberty and property in proportion to the increasing demands of modern warfare. The demands for war equipment and supplies were so great in volume, were for such new types of products, were subject to so many changes in specifications and were subject to such pressing demands for delivery that accurate advance estimates of cost were out of the question. Laying aside as undesirable the complete governmental ownership and operation of the production of war goods of all kinds, many alternative solutions were attempted. Often these called for capital expenditures by the Government in building new plant facilities. Adhering, however, to the policy of private operation of these facilities, Congress and the Administration sought to promote a policy of wide distribution of prime contracts and subcontracts, even to comparatively high cost marginal producers of unfamiliar products. Congress sought to do everything possible to retain and encourage individual initiative in the world-wide race for the largest and quickest production of the best equipment and supplies. It clung to its faith in private enterprise. The problem was to find a fair means of compensation for the services rendered and the goods purchased. Contracts were awarded by negotiation wherever competitive bidding no longer was practicable. Contracts were let at cost-plus-a-fixed-fee. Escalator clauses were inserted. Price ceilings were established. A flat percentage limit on the profits in certain lines of production was tried. Excess profits taxes were imposed. Appeals were made for voluntary refunds of excessive profits. However, experience with these alternatives convinced the Government that contracts at fixed initial prices still provided the best incentive to production. On February 16, 1942, this Court in United States v. Bethlehem Steel Corp., 315 U. S. 289, pointed to the possibility of legislative relief. It said (p. 309): “The problem of war profits is not new. In this country, every war we have engaged in has provided opportunities for profiteering and they have been too often scandalously seized. See Hearings before the House Committee on Military Affairs on H. R. 3 and H. R. 5293, 74th Cong., 1st Sess., 590-598. To meet this recurrent evil, Congress has at times taken various measures. It has authorized price fixing. It has placed a fixed limit on profits, or has recaptured high profits through taxation. It has expressly reserved for the Government the right to cancel contracts after they have been made. Pursuant to Congressional authority, the Government has requisitioned existing production facilities or itself built and operated new ones to provide needed war materials. It may be that one or some or all of these measures should be utilized more comprehensively, or that still other measures must be devised. But if the Executive is in need of additional laws by which to protect the nation against war profiteering, the Constitution has given to Congress, not to this Court, the power to make them.” Finally the compulsory renegotiation of contracts was authorized. The procedure outlined in the Original Renegotiation Act, April 28, 1942, was rapidly perfected. As it developed it required advance consents to such renegotiation to be written into the respective contracts and subcontracts for war goods prior to their award and finally it made express provision for a redetermination of the excessive profits, in a proceeding de novo before the Tax Court, wherever a war goods contractor or subcontractor was aggrieved by the administrative order. Throughout these developments extended congressional and public consideration was given to the issues presented. The plan proved itself readily adaptable to the needs of the time. It called for initial contract estimates based upon the best available information at the time of entering into the contracts. Production proceeded at once on the basis of those estimates. Many factors were incapable of exact advance determination. The final net compensation, however, resulted from a renegotiation made after both parties had had the benefit of actual experience under the contract. This determination of the allowable profit was guided by many relevant factors. A list of commonly relevant factors was presented in an early administrative directive. Later such a list was enacted into the statute. Each administrative determination was made subject to a redetermination in a proceeding de novo in the Tax Court provided a timely petition for it was filed by the aggrieved contractor or subcontractor. The Act always has been limited in duration to a period during and shortly following the war. In most instances the Act has resulted in a disposition of cases by agreements reached between the parties. The controversies which have survived to this day are, in large measure, not those dealing with the constitutionality of the general effect of the plan or even with the finality of redetermination under the prescribed administrative procedure, but are those arising out of an alleged abuse of discretion in its administration. THE RENEGOTIATION ACT. While there have been six legislative steps in the development of the Renegotiation Act, the portions of it that are especially material here consist of certain language in the so-called Original Renegotiation Act contained in § 403 of the Sixth Supplemental Defense Appropriations Act, approved April 28, 1942; in the amendments made by the Revenue Act of 1942, October 21, 1942; and its further amendment and substantial expansion by § 701 (b) of the Revenue Act of 1943, February 25, 1944. In that form it is sometimes called the Second Renegotiation Act, but the entire § 403, both in its original and amended forms may be properly cited as the “Renegotiation Act.” In the proceedings leading up to the enactment of the Original Renegotiation Act, an alternative in the form of a rigid limitation of profits was rejected in favor of the more flexible definition embodied in the term “excessive profits.” The War Department Directive of August 10, 1942, entitled “Principles, Policy and Procedure to be Followed in Renegotiation” promptly stated the factors to be stressed in determining excessive profits. This directive was introduced in the hearings held by the Finance Committee of the Senate in September and thus was before the Senate at the time of thé passage of the above-mentioned Revenue Act of 1942, October 21, 1942, which made important amendments in the Renegotiation Act. The “Joint Statement by the War, Navy, and Treasury Departments and the Maritime Commission — Purposes, Principles, Policies, and Interpretations” dealing with the Renegotiation Act was issued March 31, 1943. This was considered at the Hearings before the House Committee on Naval Affairs, 78th Cong., 1st Sess., Vol. 2, pp. 469, et seq., 1025-1039, especially 1028-1029 (1943). Finally the above-mentioned Revenue Act of 1943, 58 Stat. 21, on February 25, 1944, largely incorporated these views in § 403 (a) (4) (A), thus indicating congressional approval of this administrative practice and further assuring continuity of it during the balance of the life of the Act. DELEGATION OP AUTHORITY UNDER THE RENEGOTIATION ACT. The petitioners contend that the Renegotiation Act unconstitutionally attempted to delegate legislative power to administrative officials. The United States does not contest the right of the courts to decide the issues as to the validity of the Act on its face in the present cases, each of which was instituted after the petitioners’ respective rights to a Tax Court redetermination had been forfeited. We find no reason for not reaching here the constitutionality of the Act. Cf. Aircraft & Diesel Corp. v. Hirsch, 331 U. S. 752; Wade v. Stimson, 331 U. S. 793; Macauley v. Waterman S. S. Corp., 327 U. S. 540; Yakus v. United States, 321 U. S. 414. The constitutional argument is based upon the claim that the delegation of authority contained in the Act carried with it too slight a definition of legislative policy and standards. Accordingly, it is contended that the resulting determination of excessive profits which were claimed by the United States amounted to an unconstitutional exercise of legislative power by an administrative official instead of a mere exercise of administrative discretion under valid legislative authority. We hold that the authorization was constitutional. Certainly as spelled out in § 403 (a) (4) (A) of the Second Renegotiation Act with respect to fiscal years ending after June 30, 1943, there can be no objection on this ground. This question, therefore, relates to the delegation of authority as made by the Act before the effective date of the Second Renegotiation Act. The argument on this question is limited to the Lichter and Alexander cases, inasmuch as the excessive profits determined to exist in the Pownall case were so found by the War Contracts Price Adjustment Board under the Second Renegotiation Act. 1. The Statutory Language. The Original Renegotiation Act, approved April 28, 1942, provided in § 403 (b), (c), (d) and (e) for the renegotiation of all contracts and subcontracts thereafter made and also of all contracts and subcontracts theretofore made by the War Department, the Navy Department or the Maritime Commission, whether or not such contracts or subcontracts contained a renegotiation or recapture clause, provided the final payment pursuant thereto had not been made prior to April 28,1942. The renegotiation was to be done by the Secretary of the Department concerned. For this purpose the Chairman of the Maritime Commission was included in the term “Secretary.” The services of the Bureau of Internal Revenue were made available upon the request of each Secretary, subject to the consent of the Secretary of the Treasury, for the purposes of making examinations and determinations with respect to profits under the Section. The Secretary of each Department was authorized and directed, whenever in his opinion excessive profits had been realized or were likely to be realized from any contract with such Department or from any subcontract thereunder, to require the contractor or subcontractor to renegotiate the contract price. In case any amount of the contract price was found as a result of such renegotiation to represent “excessive profits” which had been paid to the contractor or subcontractor, the Secretary was authorized to recover them. There was no express definition of the term “excessive profits” in the Original Renegotiation Act. However, in its § 403 (b), there was a relevant statement in connection with the renegotiation Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
sc_authoritydecision	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. CITY OF MOBILE, ALABAMA, et al. v. BOLDEN et al. No. 77-1844. Argued March 19, 1979 Reargued October 29, 1979— Decided April 22, 1980 Stewart, J., announced the Court’s judgment and delivered an opinion, in which Burgee, C. J., and Powell and RehNquist, JJ., joined. Blacic-muN, J., filed an opinion concurring in the result, post, p. 80. SteveNS, J., filed an opinion concurring in the judgment, post, p. 83. BreNNAN, J., post, p. 94, White, J., post, p. 94, and Marshall, J., post, p. 103, ■filed dissenting opinions. Charles S. Rhyne reargued the cause for appellants. With him on the brief on reargument were C. B. Arendall, Jr., William C. Tidwell III, Fred G. Collins, and William S. Rhyne. With him on the briefs on the original argument were Messrs. Arendall, Collins, and Rhyne, Donald A. Carr, and Martin W. Matzen. J. U. Blacksher reargued the cause for appellees. With him on the briefs were Larry Menefee, Jack Greenberg, and Eric Schnapper. Deputy Assistant Attorney General Turner reargued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General McCree, Assistant Attorney General Days, Deputy Solicitor General Wallace, Elinor Hadley Stillman, Brian K. Landsberg, Jessica Dunsay Silver, Dennis J. Dimsey, and Miriam R. Eisenstein. Charles A. Bane, Thomas D. Barr, Norman Redlich, Frank R. Parker, and Robert A. Murphy filed a brief for the Lawyers’ Committee for Civil Rights Under Law as amicus curiae urging affirmance. Mr. Justice Stewart announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Mr. Justice Powell, and Mr. Justice Rehnquist joined. The city of Mobile, Ala., has since 1911 been governed by a City Commission consisting of three members elected by the voters of the city at large. The question in this case is whether this at-large system of municipal elections violates the rights of Mobile’s Negro voters in contravention of federal statutory or constitutional law. The appellees brought this suit in the Federal District Court for the Southern District of Alabama as a class action on behalf of all Negro citizens of Mobile. Named as defendants were the city and its three incumbent Commissioners, who are the appellants before this Court. The complaint alleged that the practice of electing the City Commissioners at large unfairly diluted the voting strength of Negroes in violation of § 2 of the Voting Rights Act of 1965, of the Fourteenth Amendment, and of the Fifteenth Amendment. Following a bench trial, the District Court found that the constitutional rights of the appellees had been violated, entered a judgment in their favor, and ordered that the City Commission be disestablished and replaced by a municipal government consisting of a Mayor and a City Council with members elected from single-member districts. 423 F. Supp. 384. The Court of Appeals affirmed the judgment in its entirety, 571 F. 2d 238, agreeing that Mobile’s at-large elections operated to discriminate against Negroes in violation of- the Fourteenth and Fifteenth Amendments, id., at 245, and finding that the remedy formulated by the District Court was appropriate. An appeal was taken to this Court, and we noted probable jurisdiction, 439 U. S. 815. The case was originally argued in the 1978 Term, and was reargued in the present Term. I In Alabama, the form of municipal government a city may adopt is governed by state law. Until 1911, cities not covered by specific legislation were limited to governing themselves through a mayor and city council. In that year, the Alabama Legislature authorized every large municipality to adopt a commission form of government. Mobile established its City Commission in the same year, and has maintained that basic system of municipal government ever since. The three Commissioners jointly exercise all legislative, executive, and administrative power in the municipality. They are required after election to designate one of their number as Mayor, a largely ceremonial office, but no formal provision is made for allocating specific executive or administrative duties among the three. As required by the state law enacted in 1911, each candidate for the Mobile City Commission runs for election in the city at large for a term of four years in one of three numbered posts, and may be elected only by a majority of the total vote. This is the same basic electoral system that is followed by literally thousands of municipalities and other local governmental units throughout the Nation. II Although required by general principles of judicial administration to do so, Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 105; Ashwander v. TVA, 297 U. S. 288, 347 (Brandéis, J., concurring), neither the District Court nor the Court of Appeals addressed the complaint’s statutory claim— that the Mobile electoral system violates § 2 of the Voting Rights Act of 1965. Even a cursory examination of that claim, however, clearly discloses that it adds nothing to the appellees’ complaint. Section 2 of the Voting Rights Act provides: “No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.” 79 Stat. 437, as amended, 42 U. S. C. § 1973. Assuming, for present purposes, that there exists a private right of action to enforce this statutory provision, it is apparent that the language of § 2 no more than elaborates upon that of the Fifteenth Amendment, and the sparse legislative history of § 2 makes clear that it was intended to have an effect no different from that of the Fifteenth Amendment itself. Section 2 was an uncontroversial provision in proposed legislation whose other provisions engendered protracted dispute. The House Report on the bill simply recited that § 2 “grants ... a right to be free from enactment or enforcement of voting qualifications ... or practices which deny or abridge the right to vote on account of race or color.” H. R. Rep. No. 439, 89th Cong., 1st Sess., 23 (1965). See also S. Rep. No. 162, 89th Cong., 1st Sess., pt. 3, pp. 19-20 (1965). The view that this section simply restated the prohibitions already contained in the Fifteenth Amendment was expressed without contradiction during the Senate hearings. Senator Dirksen indicated at one point that all States, whether or not covered by the preclearance provisions of § 5 of the proposed legislation, were prohibited from discriminating against Negro voters by § 2, which he termed “almost a rephrasing of the 15th [A]mendment.” Attorney General Katzenbach agreed. See Voting Rights: Hearings on S. 1564 .before the Senate Committee on the Judiciary, 89th Cong., 1st Sess., pt. 1, p. 208 (1965). In view of the section’s language and its sparse but clear legislative history, it is evident that this statutory provision adds nothing to the appellees’ Fifteenth Amendment claim. We turn, therefore, to a consideration of the validity of the judgment of the Court of Appeals with respect to the Fifteenth Amendment. Ill The Court’s early decisions under the Fifteenth Amendment established that it imposes but one limitation on the powers of the States. It forbids them to discriminate against Negroes in matters having to do with voting. See Ex parte Yarbrough, 110 U. S. 651, 665; Neal v. Delaware, 103 U. S. 370, 389-390; United States v. Cruikshank, 92 U. S. 542, 555-556; United States v. Reese, 92 U. S. 214. The Amendment’s command and effect are wholly negative. “The Fifteenth Amendment does not confer the right of suffrage upon any one,” but has “invested the citizens of the United States with a new constitutional right which is within the protecting power of Congress. That right is exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude.” Id., at 217-218. Our decisions, moreover, have made clear that action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose. In Guinn v. United States, 238 U. S. 347, this Court struck down a “grandfather” clause in a state constitution exempting from the requirement that voters be literate any person or the descendants of any person who had been entitled to vote before January 1,1866. It was asserted by way of defense that the provision was immune from successful challenge, since a law could not be found unconstitutional either “by attributing to the legislative authority an occult motive,” or “because of conclusions concerning its operation in practical execution and resulting discrimination arising . . . from inequalities naturally inhering in those who must come within the standard in order to enjoy the right to vote.” Id., at 359. Despite this argument, the Court did not hesitate to hold the grandfather clause unconstitutional, because it was not “possible to discover any basis in reason for the standard thus fixed other than the purpose” to circumvent the Fifteenth Amendment. Id., at 365. The Court’s more recent decisions confirm the principle that racially discriminatory motivation is a necessary ingredient of a Fifteenth Amendment violation. In Gomillion v. Lightfoot, 364 U. S. 339, the Court held that allegations of a racially motivated gerrymander of municipal boundaries stated a claim under the Fifteenth Amendment. The constitutional infirmity of the state law in that ease, according to the allegations of the complaint, was that in drawing the municipal boundaries the legislature was “solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their pre-existing municipal vote.” Id., at 341. The Court made clear that in the absence of such an invidious purpose, a State is constitutionally free to redraw political boundaries in any manner it chooses. Id., at 347. In Wright v. Rockefeller, 376 U. S. 52, the Court upheld by like reasoning a state congressional reapportionment statute against claims that district lines had been racially gerrymandered, because the plaintiffs failed to prove that the legislature “was either motivated by racial considerations or in fact drew the districts on racial .lines”; or that the statute “was the product of a state contrivance to segregate on the basis of race or place of origin.” Id., at 56, 58. See also Lassiter v. Northampton Election Bd., 360 U. S. 45; Lane v. Wilson, 307 U. S. 268, 275-277. While other of the Court’s Fifteenth Amendment decisions have dealt with different issues, none has questioned the necessity of showing purposeful discrimination in order to show a Fifteenth Amendment violation. The cases of Smith v. Allwright, 321 U. S. 649, and Terry v. Adams, 345 U. S. 461, for example, dealt with the question whether a State was so involved with racially discriminatory voting practices as to invoke the Amendment’s protection. Although their facts differed somewhat, the question in both cases was whether the State was sufficiently implicated in the conduct of racially exclusionary primary elections to make that discrimination an abridgment of the right to vote by a State. Since the Texas Democratic Party primary in Smith v. Allwright was regulated by statute, and only party nominees chosen in a primary were placed on the ballot for the general election, the Court concluded that the state Democratic Party had become the agency of the State, and that the State thereby had “endorse [d], adopt[ed] and enforce[d] the discrimination against Negroes, practiced by a party.” 321 U. S., at 664. Terry v. Adams, supra, posed a more difficult question of state involvement. The primary election challenged in that case was conducted by a county political organization, the Jaybird Association, that was neither authorized nor regulated under state law. The candidates chosen in the Jaybird primary, however, invariably won in the subsequent Democratic primary and in the general election, and the Court found that the Fifteenth Amendment had been violated. Although the several supporting opinions differed in their formulation of this conclusion, there was agreement that the State was involved in the purposeful exclusion of Negroes from participation in the election process. The appellees have argued in this Court that Smith v. Allwright and Terry v. Adams support the conclusion that the at-large system of elections in Mobile is unconstitutional, reasoning that the effect of racially polarized voting in Mobile is the same as that of a racially exclusionary primary. The only characteristic, however, of the exclusionary primaries that offended the Fifteenth Amendment was that Negroes were not permitted to vote in them. The difficult question was whether the “State ha[d] had a hand in” the patent discrimination practiced by a nominally private organization. Terry v. Adams, supra, at 473 (opinion of Frankfurter, J.). The answer to the appellees’ argument is that, as the District Court expressly found, their freedom to vote has not been denied or abridged by anyone. The Fifteenth Amendment does not entail the right to have Negro candidates elected, and neither Smith v. Allwright nor Terry v. Adams contains any implication to the contrary. That Amendment prohibits only purposefully discriminatory denial or abridgment by government of the freedom to vote “on account of race, color, or previous condition of servitude.” Having found that Negroes in Mobile “register and vote without hindrance,’’¿the District Court and Court of Appeals were in error in believing that the appellants invaded the protection of that Amendment in the present case. IV The Court of Appeals also agreed with the District Court that Mobile’s at-large electoral system violates the Equal Protection Clause of the Fourteenth Amendment. There remains for consideration, therefore, the validity of its judgment on that score. A The claim that at-large electoral schemes unconstitutionally deny to some persons the equal protection of the laws has been advanced in numerous cases before this Court. That contention has been raised most often with regard to multi-member constituencies within a state legislative apportionment system. The constitutional objection to multimember districts is not and cannot be that, as such, they depart from apportionment on a population basis in violation of Reynolds v. Sims, 377 U. S. 533; and its progeny. Rather the focus in such cases has been on the lack of representation multimem-ber districts afford various elements of the voting population in a system of representative legislative democracy. “Criticism [of multimember districts] is rooted in their winner-take-all aspects, their tendency to submerge minorities . . . , a general preference for legislatures reflecting community interests as closely as possible and disenchantment with political parties and elections as devices to settle policy differences between contending interests.” Whitcomb v. Chavis, 403 U. S. 124, 158-159. Despite repeated constitutional attacks upon multimember legislative districts, the Court has consistently held that they are not unconstitutional per se, e. g., White v. Regester, 412 U. S. 755; Whitcomb v. Chavis, supra; Kilgarlin v. Hill, 386 U. S. 120; Burns v. Richardson, 384 U. S. 73; Fortson v. Dorsey, 379 U. S. 433. We have recognized, however, that such legislative apportionments could violate the Fourteenth Amendment if their purpose were invidiously to minimize or cancel out the voting potential of racial or ethnic minorities. See White v. Regester, supra; Whitcomb v. Chavis, supra; Burns v. Richardson, supra; Fortson v. Dorsey, supra. To prove such a purpose it is not enough to show that the group allegedly discriminated against has not elected representatives in proportion to its numbers. White v. Regester, supra, at 765-766; Whitcomb v. Chavis, 403 U. S., at 149-150. A plaintiff must prove that the disputed plan was “conceived or operated as [a] purposeful devic[e] to further racial... discrimination,” id., at 149. This burden of proof is simply one aspect of the basic principle that only if there is purposeful discrimination can there be a violation of the Equal Protection Clause of the Fourteenth Amendment. See Washington v. Davis, 426 U. S. 229; Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252; Personnel Administrator of Mass. v. Feeney, 442 U. S. 256. The Court explicitly indicated in Washington v. Davis that this principle applies to claims of racial discrimination affecting voting just as it does to other claims of racial discrimination. Indeed, the Court’s opinion in that case viewed Wright v. Rockefeller, 376 U. S. 52, as an apt illustration of the principle that an illicit purpose must be proved before a constitutional violation can be found. The Court said: “The rule is the same in other contexts. Wright v. Rockefeller, 376 U. S. 52 (1964), upheld a New York congressional apportionment statute against claims that district lines had been' racially gerrymandered. The challenged districts were made up predominantly of whites or of minority races, and their boundaries were irregularly drawn. The challengers did not prevail because they failed to prove that the New York Legislature 'was either motivated by racial considerations or in fact drew the districts on racial lines’; the plaintiffs had not shown that the statute 'was the product of a state contrivance to segregate on the basis of race or place of origin.’ Id., at 56, 58. The dissenters were in agreement that the issue was whether the 'boundaries . . . were purposefully drawn on racial lines.’ Id., at 67.” Washington v. Davis, supra, at 240. More recently, in Arlington Heights v. Metropolitan Housing Dev. Corp., supra, the Court again relied on Wright v. Rockefeller to illustrate the principle that “‘[pjroof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” 429 U. S., at 265. Although dicta may be drawn from a few of the Court’s earlier opinions suggesting that disproportionate effects alone may establish a claim of unconstitutional racial vote dilution, the fact is that such a view is not supported by any decision of this Court. More importantly, such a view is not consistent with the meaning of the Equal Protection Clause as it has been understood in a variety of other contexts involving alleged racial discrimination. Washington v. Davis, supra (employment); Arlington Heights v. Metropolitan Housing Dev. Corp., supra (zoning); Keyes v. School District No. 1, Denver, Colo., 413 U. S. 189, 208 (public schools); Akins v. Texas, 325 U. S. 398, 403-404 (jury selection). In only one case has the Court sustained a claim that multi-member legislative districts unconstitutionally diluted the voting strength of a discrete group. That case was White v. Regester. There the Court upheld a constitutional challenge by Negroes and Mexiean-Americans to parts of a legislative reapportionment plan adopted by the State of Texas. The plaintiffs alleged that the multimember districts for the two counties in which they resided minimized the effect of their votes in violation of the Fourteenth Amendment, and the Court held that the plaintiffs had been able to “produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group [s] in question.” 412 U. S., at 766, 767. In so holding, the Court relied upon evidence in the record that included a long history of official discrimination against minorities as well as indifference to their needs and interests on the part of white elected officials. The Court also found in each county additional factors that restricted the access of minority groups to the political process. In one county, Negroes effectively were excluded from the process of slating candidates for the Democratic Party, while the plaintiffs in the other county were Mexican-Americans who “suffer[ed] a cultural and language barrier” that made “participation in community processes extremely difficult, particularly . . . with respect to the political life” of the county. Id., at 768 (footnote omitted). White v. Regester is thus consistent with “the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose,” Washington v. Davis, 426 U. S., at 240. The Court stated the constitutional question in White to be whether the “multimember districts [were] being used invidiously to cancel out or minimize the voting strength of racial groups,” 412 U. S., at 765 (emphasis added), strongly indicating that only a purposeful dilution of the plaintiffs’ vote would offend the Equal Protection Clause. Moreover, much of the evidence on which the Court relied in that case was relevant only for the reason that “official action will not be held unconstitutional solely because it results in a racially disproportionate impact.” Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S., at 264-265. Of course, “[t]he impact of the official action— whether it ‘bears more heavily on one race than another,’ Washington v. Davis, supra, at 242 — may provide an important starting point.” Arlington Heights v. Metropolitan Housing Dev. Corp., supra, at 266. But where the character of a law is readily explainable on grounds apart from race, as would nearly always be true where, as here, an entire system of local governance is brought into question, disproportionate impact alone cannot be decisive, and courts must look to other evidence to support a finding of discriminatory purpose. See ibid.; Washington v. Davis, supra, at 242. We may assume, for present purposes, that an at-large election of city officials with all the legislative, executive, and administrative power of the municipal government is constitutionally indistinguishable from the election of a few members of a state legislative body in multimember districts — although this may be a rash assumption. But even making this assumption, it is clear that the evidence in the present case fell far short of showing that the appellants “conceived or operated [a]' purposeful devic[e] to further racial . . . discrimination.” Whitcomb v. Chavis, 403 U. S., at 149. The District Court assessed the appellees’ claims in light of the standard that had been articulated by the Court of Appeals for the Fifth Circuit in Zimmer v. McKeithen, 485 F. 2d 1297. That case, coming before Washington v. Davis, 426 U. S. 229, was quite evidently decided upon the misunderstanding that it is not necessary to show a discriminatory purpose in order to prove a violation of the Equal Protection Clause — that proof of a discriminatory effect is sufficient. See 485 F. 2d, at 1304-1305, and n. 16. In light of the criteria identified in Zimmer, the District Court based its conclusion of unconstitutionality primarily on the fact that no Negro had ever been elected to the City Commission, apparently because of the pervasiveness of racially polarized voting in Mobile. The trial court also found that city officials had not been as responsive to the interests of Negroes as to those of white persons. On the basis of these findings, the court concluded that the political processes in Mobile were not equally open to Negroes, despite its seemingly inconsistent findings that there were no inhibitions against Negroes becoming candidates, and that in fact Negroes had registered and voted without hindrance. 423 F. Supp., at 387. Finally, with little additional discussion, the District Court held that Mobile’s at-large electoral system was invidiously discriminating against Negroes in violation of the Equal Protection Clause. In affirming the District Court, the Court of Appeals acknowledged that the Equal Protection Clause of the Fourteenth Amendment reaches only purposeful discrimination, but held that one way a plaintiff may establish this illicit purpose is by adducing evidence that satisfies the criteria of its decision in Zimmer v. McKeithen, supra. Thus, because the appellees had proved an “aggregate” of the Zimmer factors, the Court of Appeals concluded that a discriminatory purpose had been proved. That approach, however, is inconsistent with our decisions in Washington v. Davis, supra, and Arlington Heights, supra. Although the presence of the indicia relied on in Zimmer may afford some evidence of a discriminatory purpose, satisfaction of those criteria is not of itself sufficient proof of such a purpose. The so-called Zimmer criteria upon which the District Court and the Court of Appeals relied were most assuredly insufficient to prove an unconstitutionally discriminatory purpose in the present case. First, the two courts found it highly significant that no Negro had been elected to the Mobile City Commission. From this fact they concluded that the processes leading to nomination and election were not open equally to Negroes. But the District Court’s findings of fact, unquestioned on appeal, make clear that Negroes register and vote in Mobile “without hindrance,” and that there are no official obstacles in the way of Negroes who wish to become candidates for election to the Commission. Indeed, it was undisputed that the only active “slating” organization in the city is comprised of Negroes. It may be that Negro candidates have been defeated, but that fact alone does not work a constitutional deprivation. Whitcomb v. Chavis, 403 U. S., at 160; see Arlington Heights, 429 U. S., at 266, and n. 15. Second, the District Court relied in part on its finding that the persons who were elected to the Commission discriminated against Negroes in municipal employment and in dispensing public services. If that is the case, those discriminated against may be entitled to relief under the Constitution, albeit of a sort quite different from that sought in the present case. The Equal Protection Clause proscribes purposeful discrimination because of race by any unit of state government, whatever the method of its election. But evidence of discrimination by white officials in Mobile is relevant only as the most tenuous and circumstantial evidence of the constitutional invalidity of the electoral system under which they attained their offices. Third, the District Court and the Court of Appeals supported their conclusion by drawing upon the substantial history of official racial discrimination in Alabama. But past discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful. The ultimate question remains whether a discriminatory intent has been proved in a given case. More distant instances of official discrimination in other cases are of limited help in resolving that question. Finally, the District Court and the Court of Appeals pointed to the mechanics of the at-large electoral system itself as proof that the votes of Negroes were being invidiously canceled out. But those features of that electoral system, such as the majority vote requirement, tend naturally to disadvantage any voting minority, as we noted in White v. Regester, 412 U. S. 755. They are far from proof that the at-large electoral scheme represents purposeful discrimination against Negro voters. B We turn finally to the arguments advanced in Part I of Mr. Justice Marshall’s dissenting opinion. The theory of this dissenting opinion — a theory much more extreme than that espoused by the District Court or the Court of Appeals— appears to be that every “political group/’ or at least every such group that is in the minority, has a federal constitutional right to elect candidates in proportion to its numbers. Moreover, a political group’s “right” to have its candidates elected is said to be a “fundamental interest,” the infringement of which may be established without proof that a State has acted with the purpose of impairing anybody’s access to the political process. This dissenting opinion finds the “right” infringed in the present case because no Negro has been elected to the Mobile City Commission. Whatever appeal the dissenting opinion’s view may have as a matter of political theory, it is not the law. The Equal Protection Clause of the Fourteenth Amendment does not require proportional representation as an imperative of political organization. The entitlement that the dissenting opinion assumes to exist simply is not to be found in the Constitution of the United States. It is of course true that a law that impinges upon a fundamental right explicitly or implicitly secured by the Constitution is presumptively unconstitutional. See Shapiro v. Thompson, 394 U. S. 618, 634, 638; id., at 642-644 (concurring opinion). See also San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 17, 30-32. But plainly “[i]t is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws,” id., at 33. See Lindsey v. Normet, 405 U. S. 56, 74; Dandridge v. Williams, 397 U. S. 471, 485. Accordingly, where a state law does not impair a right or liberty protected by the Constitution, there is no occasion to depart from “the settled mode of constitutional analysis of legis-lat[ion] . . . involving questions of economic and social policy,” San Antonio Independent School Dist. v. Rodriguez, supra, at 33. Mr. Justice Marshall’s dissenting opinion would discard these fixed principles in favor of a judicial inventiveness that would go “far toward making this Court a ‘super-legislature.’ ” Shapiro v. Thompson, supra, at 655, 661 (Harlan, J., dissenting). We are not free to do so. More than 100 years ago the Court unanimously held that “the Constitution of the United States does not confer the right of suffrage upon any one. . . .” Minor v. Happersett, 21 Wall. 162, 178. See Lassiter v. Northampton Election Bd., 360 U. S., at 50-51. It is for the States “to determine the conditions under which the right of suffrage may be exercised . . . , absent of course the discrimination which the Constitution condemns,” ibid. It is true, as the dissenting opinion states, that the Equal Protection Clause confers a substantive right to participate in elections on an equal basis with other qualified voters. See Dunn v. Blumstein, 405 U. S. 330, 336; Reynolds v. Sims, 377 U. S., at 576. But this right to equal participation in the electoral process does not protect any “political group,” however defined, from electoral defeat. The dissenting opinion erroneously discovers the asserted entitlement to group representation within the “one person, one vote” principle of Reynolds v. Sims, supra, and its progeny. Those cases established that the Equal Protection Clause guarantees the right of each voter to “have his vote weighted equally with those of all other citizens.” 377 U. S., at 576. The Court recognized that a voter’s right to “have an equally effective voice” in the election of representatives is impaired where representation is not apportioned substantially on a population basis. In such cases, the votes of persons in more populous districts carry less weight than do those of persons in smaller districts. There can be, of course, no claim that the “one person, one vote” principle has been .violated in this case, because the city of Mobile is a unitary electoral district and the Commission elections are conducted at large. It is therefore obvious that nobody’s vote has been “diluted” in the sense in which that word was used in the Reynolds case. The dissenting opinion places an extraordinary interpretation on these decisions, an interpretation not justified by Reynolds v. Sims itself or by any other decision of this Court. It is, of course, true that the right of a person to vote on an equal basis with other voters draws much of its significance from the political associations that its exercise reflects, but it is an altogether different matter to conclude that political groups themselves have an independent constitutional claim to representation. And the Court’s decisions hold squarely that they do not. See United Jewish Organizations v. Carey, 430 U. S. 144, 166-167; id., at 179-180 (opinion concurring in judgment); White v. Regester, 412 U. S., at 765-766; Whitcomb v. Chavis, 403 U. S., at 149-150, 153-154, 156-157. The fact is that the Court has sternly set its face against the claim, however phrased, that the Constitution somehow guarantees proportional representation. In Whitcomb v. Chavis, supra, the trial court had found that a multimember state legislative district had invidiously deprived Negroes and poor persons of rights guaranteed them by the Constitution, notwithstanding the absence of any evidence whatever of discrimination against them. Reversing the trial court, this Court said: “The District Court’s holding, although on the facts of this case limited to guaranteeing one racial group representation, is not easily contained. It is expressive of the more general proposition that any group with distinctive interests must be represented in legislative halls if it is numerous enough to command at least one seat and represents a majority living in an area sufficiently compact to constitute a single-member district. This approach would make it difficult to reject claims of Democrats, Republicans, or members of any political organization in Marion County who live in what would be safe districts in a single-member district system but who in one year or another, or year after year, are submerged in a one-sided multi-member district vote. There are also union oriented workers, the university community, religious or ethnic groups occupying identifiable areas of our heterogeneous cities and urban areas. Indeed, it would be difficult for a great many 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_r_natpr	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 "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. DISTRICT OF COLUMBIA, Appellant, v. MERIT SYSTEMS PROTECTION BOARD, et al. No. 84-5426. United States Court of Appeals, District of Columbia Circuit. Argued March 29, 1985. Decided May 21, 1985. William J. Earl, Asst. Corp. Counsel for the District of Columbia, Washington, D.C., with whom John H. Suda, Principal Deputy Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel for the District of Columbia, Washington, D.C., were on the brief, for appellant. Edward E. Schwab, Washington, D.C., entered an appearance for appellant. Philip G. Sunderland, Washington D.C., with whom James M. Hecker, Washington D.C., was on the brief, for appellee Lee A. Lendt. Joseph J. Ellis, Atty., Merit Systems Protection Bd., of the Bar of the Supreme Court of Virginia, pro hac vice by special leave of the Court, Washington, D.C., with whom Evangeline W. Swift, Gen. Counsel, and Mary J. Jennings, Associate Gen. Counsel, Merit Systems Protection Bd., Washington, D.C., were on the brief, for appellee Merit Systems Protection Bd. Before WALD, MIKVA and STARR, Circuit Judges. Opinion PER CURIAM. PER CURIAM: This appeal arises out of an apparent gap in the various statutes and agreements transferring District of Columbia employment matters from the federal personnel system to a newly created local system. In 1973, Congress directed the District to establish a local personnel system within five years that would replace the existing framework under which District employees were governed by the federal system. See District of Columbia Self-Government and Governmental Reorganization (Home Rule) Act, Pub.L. No. 93-198 § 422(3), 87 Stat. 774, 791 (1973). In 1978, the District enacted the Comprehensive Merit Personnel Act, D.C.Code § 1-601.1 et seq., which created the general framework for a local personnel system. The Personnel Act provides for appeal of local personnel actions to the District’s Office of Employee Appeals (OEA), see id. § l-606.3(a), and allows any employee or local agency to seek review of OEA decisions in the Superior Court of the District of Columbia, see id. at § 1-606.-3(d). The District was unable to implement the OEA system until December 4, 1980. See generally id. § 1-637.1(f) (delaying the effective date of the OEA framework until the enactment of employee appeal regulations). In order to provide for administrative appeals of local personnel decisions in the interim between the enactment and the full implementation of the Personnel Act, the District contracted with the Merit Systems Protection Board (MSPB) to adjudicate local employee appeals from January 1, 1980 until the OEA became operational. See Agreement Between the District of Columbia and the Merit Systems Protection Board 1-2, Record Excerpts (“RE”) at 1-2 (Dec. 20,1979); see generally 31 U.S.C. § 1537(a)(1) (authorizing the District to delegate local functions to federal agencies under appropriate circumstances). The agreement provided that “[t]he final decision of the Merit Systems Protection Board in any appeal heard under the authority of this agreement shall constitute the final administrative decision of the District of Columbia government.” Agreement if 2, RE at 1-2. On December 1, 1980, before the District implemented its OEA, Lee Lendt was terminated from his position in the District’s Department of Human Resources. Pursuant to the procedure specified in his separation notice, Lendt appealed his termination to the MSPB and, in the course of the MSPB proceeding, the District conceded error and rescinded his separation. Lendt then moved for, and received, an award of attorneys’ fees from the MSPB. See Lendt v. District of Columbia, 15 M.S.P.B. 779, slip op. at 2-5, RE at 11-14 (1983) (looking to the Back Pay Act, 5 U.S.C. § 5596, as authority for the fee award). The District then petitioned for review of the fee award in Superior Court under D.C.Code § 1-606.-3(d), the local law provision governing judicial review of OEA decisions. The District named the MSPB as the sole respondent, and the MSPB thereupon removed the action to federal district court. See 28 U.S.C. § 1442(a)(1). In federal court, the MSPB moved to dismiss the District’s action on the ground that it was barred by sovereign immunity. Lendt moved to intervene as a defendant and submitted a separate motion to dismiss. He argued that the local law provision governing review of OEA decisions could not create local court jurisdiction for the District’s suit because the local statute did not become effective until after the employment action that gave rise to this dispute and because that statute provides judicial review for OEA, not MSPB, decisions. The district court granted both Lendt’s unopposed motion to intervene and the MSPB’s motion to dismiss. See District of Columbia v. MSPB, Civ. No. 83-2483 (D.D.C. Jan. 31, 1984). After ruling that sovereign immunity prevented the District from naming the MSPB as a respondent, the district court dismissed the entire action. See id., mem. op. at 5. The District then petitioned the district court to amend its dismissal order by reinstating the review proceeding against intervenor-defendant Lendt and remanding the action to Superior Court. Without explanation, the district court declined to do so. See District of Columbia v. MSPB, Civ. No. 83-2483 (D.D.C. June 4, 1984) (Order). The District now appeals only the district court’s refusal to reinstate and remand to Superior Court a review proceeding naming Lendt as the respondent. See District’s Brief at 17; District’s Reply Brief at 2. We therefore have no occasion to review the district court’s conclusion that the District’s suit against the MSPB was barred by sovereign immunity and we express no view on that ruling. The dispute underlying this appeal raises thorny questions concerning the District’s ability to seek judicial review of MSPB decisions made pursuant to the transitional agreement between the District and the MSPB. We need not and do not decide any of those questions today. Instead, the only issue in this appeal is whether the district court should have remanded the District’s proceeding against Lendt to Superior Court once it determined that the District could not name the MSPB as a respondent in an action to secure judicial review of the fee award. We conclude that the district court should have done so. Lendt sought intervention in this case under Rule 24 of the Federal Rules of Civil Procedure which provides intervention of right for any interested person “so situated that the disposition of the action may, as a practical matter, impair or impede [her] ability to protect [her interest in the underlying dispute] unless the applicant’s interest is adequately represented by existing parties.” Fed.R.Civ.P. 24(a)(2). Intervenors under Rule 24(a)(2) assume the status of full participants in a lawsuit and are normally treated as if they were original parties once intervention is granted. See, e.g., United States v. Oregon, 657 F.2d 1009, 1014 (8th Cir.1981); Marcaida v. Briscoe, 569 F.2d 828, 831 (5th Cir.1978); 7A C. Wright & A. Miller, Federal Practice and Procedure § 1920 (1972 & Supp.1984); 3B Moore’s Federal Practice U 24.16[6] (2d ed. 1985). By successfully intervening, a party makes herself “vulnerable to complete adjudication by the federal court of the issues in litigation between the intervenor and the adverse party.” 3B Moore’s Federal Practice § 24.16[6], at 181; cf. Wheeler v. American Home Prods. Corp., 582 F.2d 891, 896 (5th Cir.1977). We see no reason to depart from the general rule here. Lendt intervened as a defendant in order to make additional arguments in support of dismissal, arguments that he would have presumably raised in Superior Court as well. He filed a substantial motion to dismiss and assumed an active role in defending his interests in the underlying controversy which, he asserted, were substantially different from those of the MSPB. See Memorandum in Support of Motion to Intervene As a Defendant at 4-5, RE at 33-34 (Oct. 12, 1983). The “price” of such intervention, we believe, is the possibility that the plaintiff will be able to obtain relief against the intervenor-defendant even if the original defendant is eliminated from the lawsuit. Because Lendt assumed the status of an original party upon intervention, the district court was obliged to dispose of the District’s review action against Lendt once it determined that the MSPB could not be named as a respondent in this dispute. In its motion to remand, the District argued that its attempt to secure judicial review of Lendt’s fee award presented a question of local law properly resolved in Superior Court. The dismissal of the District’s claim against the MSPB, in other words, eliminated the sole basis for removal jurisdiction and left the district court with a local law claim for judicial review in local court over which it could not have exercised original jurisdiction. Under these circumstances, we believe that the district court should have remanded the District’s remaining claim against Lendt to Superior Court. When federal parties remove an action under section 1442(a)(1), the federal court assumes jurisdiction over all the claims and parties in the case regardless of whether the federal court could have assumed original jurisdiction over the suit. See, e.g., 1A Moore’s Federal Practice 110.164[1], at 385-87. If the federal party is eliminated from the suit after removal under this provision, the district court does not lose its ancillary or pendent-party jurisdiction over the state law claims against the remaining non-federal parties. See, e.g., IMFC Professional Servs., Inc. v. Latin Am. Home Health, Inc., 676 F.2d 152, 158-59 (5th Cir.1982); Watkins v. Grover, 508 F.2d 920, 921 (9th Cir.1975); Peroff v. Manuel, 421 F.Supp. 570, 576 (D.D.C.1976). Instead, the district court retains the power either to adjudicate the underlying state law claims or to remand the case to state court. See, e.g., IMFC, 676 F.2d at 160; Peroff, 421 F.Supp. at 576-77; 14A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3727, at 462; 1A Moore’s Federal Practice 110.164[1], at 387-89; cf. 28 U.S.C. § 1441(c) (providing discretion to remand or to adjudicate pendent state law claims when removal is premised on the existence of federal claims). In this case, Lendt raised a substantial argument that the District cannot obtain judicial review of his fee award in Superior Court under local law, an argument that the district court did not address. See supra p. 131. Although the district court never actually determined whether to remand or to entertain this challenge to local court jurisdiction, we believe that a remand to Superior Court is the appropriate course of action under the circumstances of this ease. Lendt’s jurisdictional challenge presents a complex question of purely local law: whether the Personnel Act can be interpreted to provide for judicial review of employee appeals decided under the District’s transitional agreement with the MSPB. Moreover, the federal party was eliminated from this case well before any proceedings concerning either Lendt’s separate jurisdictional challenge or the merits, so that judicial economy or fairness to the parties will not be sacrificed by a remand to local court. In this context, federal courts in this circuit and elsewhere regularly remand cases removed under section 1442(a)(1) once the federal party is eliminated. See, e.g., District of Columbia v. Moxley, 471 F.Supp. 777, 784 (D.D.C.1979); Peroff, 421 F.Supp. at 576; Givoh Assocs. v. American Druggists Ins. Co., 562 F.Supp. 1346 (S.D.N.Y.1983); Boyer v. Regli, 510 F.Supp. 1078, 1080 (E.D.Pa.1982); see also IMFC, 676 F.2d at 160 (suggesting that failure to remand under these circumstances may constitute an abuse of discretion); cf. United Mine Workers v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 1139-40, 16 L.Ed.2d 218 (1966) (counselling against the assertion of pendent claim jurisdiction over difficult state law questions when federal claims are dismissed well before trial). Because the federal party was eliminated shortly after removal and because the District’s action against Lendt implicates complex local law questions, we believe that a prompt remand to local court will best serve the interests of comity, fairness and judicial economy here. Cf. Noxell Corp. v. Firehouse No. 1 Bar-B-Que Restaurant, 760 F.2d 312, 317 (D.C.Cir.1985) (ordering dismissal for improper venue rather than remanding for a district court determination of whether dismissal or transfer was appropriate). We therefore reverse the district court’s dismissal order as applied to Lendt and remand to the district court with instructions to remand the District’s remaining action against Lendt to Superior Court. So Ordered. . In its petition for review of the MSPB decision in Superior Court, the District argued that the MSPB lacked the authority to award attorneys’ fees against the District because the Personnel Act made the federal Back Pay Act inapplicable to District employees and no other provision in local law authorized attorneys’ fees in employment actions. See Sup.Ct.R. Item 1; see generally D.C.Code § l-633.2(a)(5)(G) (superseding 5 U.S.C. § 5596 for District employees). . Section 1442(a)(1) provides that "[a]ny officer of the United States or any agency thereof, or person acting under him” can remove a state court action to federal court. 28 U.S.C. § 1442(a)(1). Although this removal provision arguably refers only to individual federal officers, courts have generally interpreted the statute broadly to allow federal agencies to remove when sued in state courts. See, e.g., IMFC Professional Servs., Inc. v. Latin Am. Home Health, Inc., 676 F.2d 152 (5th Cir.1982); James River Apartments, Inc. v. Federal Housing Administration, 136 F.Supp. 24 (D.Md.1955); cf. Willingham v. Morgan, 395 U.S. 402, 407, 89 S.Ct. 1813, 1816, 23 L.Ed.2d 396 (1969) (dicta). . Section 1-606.3 provides in relevant part that: Any employee or agency may appeal the decision of the [OEA] to the Superior Court of the District of Columbia for a review of the record and such Court may affirm, reverse, remove or modify such decisions, or take any other appropriate action as the Court may deem necessary. D.C.Code § l-606.3(d). . We do not believe that the district court's summary denial of the District’s motion to reinstate and remand its action against Lendt can be read as an implicit substantive ruling that local courts in fact lack this jurisdiction under local law. Instead, it seems clear that the district court (erroneously) assumed that the entire action must be dismissed once it determined that the District could not sue the MSPB in order to obtain judicial review of Lendt’s fee award. . Lendt also argues that the MSPB is an "indispensable party” under Rule 19(b) of the Federal Rules of Civil Procedure to any action in local court challenging the propriety of his fee award. Under this view, the District’s remaining review action against Lendt must be dismissed given the district court’s ruling that the MSPB cannot be named as a respondent in this case. Whether the MSPB is an indispensable party to a local court review proceeding, however, presents a question of local law properly resolved after remand in Superior Court. See generally D.C. Super.Ct.R.Civ.P. 19 (describing joinder of the persons needed for just adjudication); Flack v. Lasher, 417 A.2d 393 (D.C.1980) (interpreting the indispensable party requirement in local law). Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. 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". DERMAN v. STOR-AID, Inc., et al. STOR-AID OF NEW JERSEY v. DECORATIVE CABINET CORPORATION et al. STOR-AID OF ILLINOIS, Inc., v. SAME. Nos. 292-294. Circuit Court of Appeals, Second Circuit. March 23, 1944. W. Lee Helms, of New York City, for appellants. Aaron L. Danzig, of New York City, for appellees. ' Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges. L. HAND, Circuit Judge. The defendant appeals from one, and the plaintiffs appeal from two judgments of the District Court. The first was in an action for patent infringement and held valid and infringed, claims eleven, thirteen and fourteen of Patent No. 1,933,099, issued to the plaintiff, Harry Derman, on October 31, 1933; and dismissed a counterclaim for unfair competition because of his abuse of the patent in suit and ten other patents issued to him. The other two judgments were in actions brought by subsidiaries of defendant in the first action—Stor-Aid, Inc.-—against companies controlled by Derman, and dismissed complaints for unfair competition, similar to the counterclaim in the first action. The principal issue in the litigation is the validity of the claims in suit of Derman’s patent. Its specifications disclose a collapsible box or case which can be used as a chest—or, when stood on end, as a wardrobe—made of cardboard or the like, cheap, easily set up and made as follows. A rectangular strip of the specified material, longer than its width, is scored across its shorter axis at three different places and then folded upon the scored lines so as to form the bottom, front and back walls and cover of the chest, making, when the cover is closed, a parallelogram with open ends. The ends are closed by two square pieces of the same material, to the inside surface of which along all four edges is glued or otherwise fastened a wooden' frame. This frame has slots on three of its lengths, into which fit the edges of the bottom and front and back walls of the chest, and which hold them in place by glue, upholstery tacks, or the like. This makes a solid box with a cover, hinged upon the third fold, having a flap, frictionally held by the upper edge of the front wall. Derman shipped this chest or wardrobe in a collapsed state so as to be easily transported, and sold it at wholesale for about a dollar. Sales began early in 1933, and immediately began to grow with enormous rapidity : during the following eight years twenty-five or thirty million units have been sold. Blechman, one of the defendants, at first took out a license under the patent for a company of which he was president, and which continued to manufacture under the license for nearly ten years, paying Derman over $175,000 in royalties. But in August, 1941, Blechman apparently concluded that the patent was invalid, resigned from the company which had taken the license, and formed another, the defendant, StorAid, Inc., which thereupon began frankly to infringe the claims in suit. Thus, the only question as to the complaint in the first action is of validity. Many years before Derman’s filing date —January 13, 1933—the art had been familiar with boxes made of three pieces of cardboard, pasteboard, or the like: one piece, folded along two or three scored lines, so as to form a box, open at the ends, and two square pieces to close the openings. The earliest of these are Manneck, No. 111,463, which issued January 31, 1871. The bottom, front and back walls were made of a single piece of pasteboard folded in only two places, for it had no cover; the square ends were of the same material with flanges turned in on three sides, which slipped inside the bottom and front and back walls—instead of embracing them like Derman’s—and which were held in place by metallic clamps. Green, in 1896, No. 573,782, disclosed a similar construction except that the end pieces were framed with wood, and that the box had a cover with a flap like Derman’s. We need not discuss any other references except Hofman, No. 1,270,294, issued June 25, 1918; and Friedel, No. 1,523,639, issued January 20, 1925. The first of these was for a cardboard “shipping box” whose bottom, front and back walls, and cover (a double flap), were of a single piece of cardboard scored in four lines, along which it was bent to form a parallelogram. The end pieces did not, it is true, have any frames into whose grooves the edges of the bottom and front and back walls fitted; but the edges of the end walls were bent into flanges at right angles, and then doubled back on themselves through 180 degrees, thus making channels or grooves, and into these the bottom and front and back walls slipped. Thus, the end pieces embraced the edges of the bottom and front and back walls by means similar in function to the slots in Derman’s “frames.” The result of this construction was that the surfaces of the end pieces were set a little inside the main body of the box, instead of being flush as in Derman. Friedel’s disclosure was of a wardrobe proper, which stood on its end. The three upright sides, and two “stiles” for a door, were made of a single piece of scored and folded cardboard, or the like. The end pieces—top and bottom—were of the same material, and flanged; the flanges at the bottom being turned down, and those at the top, turned up. These flanges fitted into grooves in .. wooden frames which ran around the edges of the end pieces, and were secured in them. In setting up this wardrobe, the edges of the upright sides were fitted into the same grooves alongside of the flanges of the end pieces; and from this it resulted that, as in Hofman, the end pieces w-ere set a little inside the edges of the bottom and front and back walls. Friedel’s door was a very complicated affair, with “stiles,” a lintel, a sill; it was altogether unlike Derman’s. Friedel also provided a number of reinforcing pieces of wood inside and around his wardrobe, making an expensive, cumbersome and inconvenient construction as a whole, although it went upon the market and had a limited success. It will have been observed, however, that the frames embraced the edges of the bottom and front and back walls, like Derman’s “frames,” though they were not fastened to the inner surfaces of the end walls along their edges. Of the claims in suit claim eleven is for a box, case, chest or wardrobe made of cardboard or the like in which the bottom and front and back walls are in one piece, so hinged that they can be' collapsed ; and in which the two end walls are “provided with peripheral means” which “engage” the edges of the bottom and front and back walls. “Peripheral,” although nowhere defined in the specifications, can only mean that the end walls embrace the edges of the bottom and front and back walls, unlike Manneck and Green, in which the end walls slip within them. Claim thirteen is in the same words as claim eleven, but adds the “frames” as part of the “peripheral means,” and the cover hinged to the back wall at its scored edge and carrying the flap which the front wall holds frictionally when the cover is closed. Claim fourteen is the same as thirteen, except that it adds a member running along the inside of the top edge of the front wall to cooperate with the cover to hold it shut. It was one of those trivial variants which for some inexplicable reason it seems impossible for an examiner to resist, but which add nothing to the claim. For this reason we shall disregard it, and confine our discussion to claims eleven and thirteen. Claim eleven reads upon Friedel and Hofman without exception. Since “frames” are added in claims thirteen and fourteen, and indeed in other claims, this claim must be read to exclude them. Both Hofman and Friedel have “peripheral means”; i.e. the end walls embrace the bottom and front and back walls; Hofman, by means of the channels made by twice folding the edges of the end walls; Friedel, by the slots in the “frames.” It is true that, as we have said, the end walls in each are set a little within the edges of the bottom and front and back walls, unlike Derman where the end walls are flush; but the claims contain no such limitation, and it would not be a patentable variation anyway. The plaintiff seeks to distinguish Hofman as in a “non-analogous art”; but plainly that is not true. Derman’s disclosure was for any kind of “container,” made up according to his directions; a wardrobe was merely one form. He speaks of “boxes,” “cases” and “chests” interchangeably with “wardrobes,” and the claims in suit apply to all equally. To confine them to wardrobes would be to reissue the claims, and that too without the slightest warrant in the specification. Hence, any prior disclosure of a box or “shipping case,” like Hofman, is a good reference. Hofman is not, however, a good reference against claim thirteen for two reasons; because it had no “frames,” and because Hofman’s flaps were not, strictly speaking, a single cover and because neither carried a tab at the end to hold it down. Friedel on the other hand had “frames,” but his cover—door—was altogether different. Also, Friedel’s “frames” were, as we have said, not fastened to the inside surface of the end walls, although, as in the case of claim eleven, that is not important. Any “frames” which are “peripheral” infringe. Moreover, as to the frictional tab on the end of the cover, Green is a complete anticipation, provided any anticipation is necessary for such a trifle. Thus the case comes down to whether it required invention to combine Friedel’s “frames” with Green’s cover, or Hofman’s double flaps, abandoning Friedel’s door. Derman, as is usual in such cases, points to the long interval between the appearance of Friedel’s and his patent, to Friedel’s very modest sales, and to his own extraordinary and outstanding success. That reasoning has won many an action; nevertheless, it cannot be safely used without careful analysis, for it must always be remembered that the monopoly resides in the claims and the claims depend upon the combination of elements which they prescribe. An article may have an extraordinary success and may indeed be an invention of high merit, and yet that success and that invention may have nothing whatever to do with the combination described in the claims, but may depend upon elements, which, though added to those of the prior art, the patentee did not introduce in his claims, and perhaps could not have introduced. Although there is no better test than history, when used with proper circumspection, it is never safe to accept success alone as the measure of invention. What Derman really did, and what he owed his success to, was to reorganize Friedel’s wardrobe generally. We do not mean that he did this deliberately; but it would have made no difference if he had, for his work must be judged as though it had been before him. All that can be credited to him is making over Friedel by throwing away the inner reinforcing struts or supports and other unnecessary complications, by fastening the “frames” to the inside of the end walls, and by substituting Green’s or Hofman’s cover for Friedel’s door with its ancillary parts. So far as he improved upon Friedel in any other way than by the last of these, he dedicated whatever he did to the public, for he did not get it into his claims. Conceding that he made a cheap, durable wardrobe, easily knocked down, shipped, and set up, in place of Friedel’s cumbersome, expensive wardrobe, hard to take down, to ship, and to set up: that is all irrelevant, if Friedel’s wardrobe already disclosed, hampered by no matter how much unnecessary complication, all the elements of the only claims that Derman succeeded in securing; always provided that Friedel’s embodiment of the patented combination was practicable, as in fact it was. There remains the fact that claim thirteen does specify Green’s cover, and that Derman is to be credited with whatever ingenuity was necessary to think of substituting it for Friedel’s door. On its face, when one was engaged in simplifying and cheapening Friedel’s disclosure, that substitution would seem to have been an obvious expedient. To suppose that the art waited for the eight years which elapsed between the issue of Friedel’s patent and the filing of Derman’s application for this happy thought would be romance. If Derman had merely substituted Green’s door upon Friedel’s disclosure as it stood, no one will maintain that it would have caught the public fancy, as it did, it would have remained what it was, heavy, expensive, awkward to set up, hard to knock down, cumbersome to ship. It was not the door that made it a success, but the general organization of the whole article; and we may concede for argument, that it took insight out of the common to see what could be stripped away and leave the substance of the invention unimpaired. But that does not change the fact that Friedel had all along embodied all but one of the elements of the claims. We hold claims eleven, thirteen and fourteen invalid for lack of invention, and dismiss the complaint in action 17-347. The counterclaim in that action charged that Derman “knowingly brought” suit against the defendants “without basis and for the purpose of damaging” their business, and that he and the Decorative Cabinet Corporation—one of the defendants in the two other actions—“furthered” this unlawful purpose “by oral representations to the trade that defendants infringed patents controlled by Harry Derman and that members of the trade * * * would be subject to suit,” and “by written representations * * * that suit had been brought * * * against the defendant Stor-Aid, Inc.” The evidence in support of this is two- advertisements broadcast to the trade, and the fact that Derman originally sued on eleven patents, by amendment reduced these to five—of which he abandoned one—and finally failed to-recover on three of the remaining four. He is a citizen of New York; Stor-Aid, Inc. is a New York corporation; Blechman’,s citizenship does not appear; hence the district court had no jurisdiction, based upon diversity of citizenship;' nor did the cause of action arise out of any law of the United States. If the court had any jurisdiction whatever, it was under the doctrine of Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148. We have very recently discussed this question in an appeal closely similar to that now before us (Zalkind v. Scheinman, 139 F.2d 895), and we can see no valid distinction between that case and this. In each the alleged liability arose from unlawful dealing with an alleged invention: in that case, by unconscionably delaying the prosecution of an application for a patent; in this, by threatening suit upon patents known to be invalid. For the reasons stated at length in that opinion, we dismiss the counterclaim in action 17-347, because it was not within the jurisdiction of the district court. The other two actions (17-450 and 18-52), were brought by two foreign corporations—organized in New Jersey and Illinois respectively—against two New York corporations, and the district court therefore had jurisdiction because of the diversity of citizenship. The complaints are the same: i.e. that Derman was the president of both the defendant companies and directed their “policies and management” ; that he had licensed them under the eleven patents sued upon in the first complaint; that the defendants had employed salesmen who acted under his direction; that these salesmen, with Derman’s knowledge that the plaintiff’s wardrobes “were free from infringement of said patent of Harry Derman,” made oral representations to the trade that the plaintiff’s products infringed the aforesaid patents; and that in making these representations the salesmen “were acting within the scojie of their employment by the defendant corporations and with the knowledge of the President of each corporation, and under his direction or consent.” We can find no evidence connecting the two New York corporations with any assertion of the patents against the plaintiffs; or with -the offending advertisements. Derman did swear that he supervised and directed the salesmen’s activities, but he denied that he told them what to say to the trade. Besides, there is no evidence of what the salesmen did in fact say, and the advertisements relied upon (Exhibit L and Exhibit O) both spoke in the name of Derman, although the names of the two New York companies appeared as licensees on the bottom of Exhibit L. The companies were not liable merely because, Derman was their president, and in general control of them; the plaintiffs were bound at least to prove that he undertook to act for them. Maybe he did, but that nowhere appears. The judgments in action 17-450 and action T8-52 will be affirmed. In action 17-347 the judgment will be reversed in toto: judgment will be entered dismissing the complaint upon the merits, and dismissing the counterclaim for lack of jurisdiction in the district court. Costs to the defendants. In action 17-450 and action 18-52 the judgments will be affirmed with costs. 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_usc2	18	What follows is an opinion from a United States Court of Appeals. The most frequently cited title of the U.S. Code in the headnotes to this case is 18. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times. Harold G. HOOVER, Appellant, v. J. C. TAYLOR, Warden, United States Penitentiary, Leavenworth, Kansas, et al., Appellee. No. 7681. United States Court of Appeals Tenth Circuit. June 29, 1964. Robert B. Milsten, Oklahoma City, Okl., for appellant. Benjamin E. Franklin, Asst. U. S. Atty. (Newell A. George, U. S. Atty., on the brief), for appellee. Before PICKETT, LEWIS and SETH, Circuit Judges. PER CURIAM. This is an appeal from an order denying petitioner’s application for a writ of habeas corpus. After conviction upon two counts of Dyer Act violation petitioner was sentenced to consecutive terms of five and three years. With 1056 days yet unserved upon an aggregate eight-year senténce, petitioner was released upon mandatory release. After a brief period of liberty, petitioner violated the terms of his release and was returned to restraint and transferred to the United States Penitentiary, Leavenworth, Kansas. His good-time allowance was revoked in its entirety. Although conceding that allowance for good time should be computed upon the aggregate of consecutive sentences, 18 U.S.C.A. § 4161, petitioner asserts that the burden of forfeited good time, 18 U.S.C.A. § 4165, cannot be similarly imposed and that where, as here, one of several consecutive sentences has been completely served in time before forfeiture the sentence can no longer be considered in the aggregate for such' purpose. We find no merit to the contention and hold that the consecutive sentences should be aggregated both for computation of good time and for its forfeiture. Grant v. Hunter, 10 Cir., 166 F.2d 673; Gibson v. Looney, 10 Cir., 258 F.2d 879; United States ex rel. Klein v. Kenton, 2 Cir., 327 F.2d 229. The appeal being otherwise without merit, the judgment is affirmed. Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 18. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number. 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 HAMMETT v. TEXAS No. 79-5050. Decided July 2, 1980 Per Curiam. William Jack Hammett, the petitioner in this case, has been convicted of murder and sentenced to death. The conviction and sentence were affirmed by the Texas Court of Criminal Appeals, 578 S. W. ~2d 699 (1979). The petitioner states, and his attorney does not deny, that he informed his counsel that he did not wish to pursue any further appeals in his case. Nevertheless, counsel filed a petition requesting review by this Court. Petitioner now moves for dismissal of the petition, stating under oath that he “made this decision voluntarily and with full knowledge of the consequences, only after due consideration of all facts and circumstances regarding the case.” Affidavit of June 3, 1980. Under Rule 60 of the Rules of the Supreme Court (1970), a petitioner or appellant may withdraw a petition or appeal. In response to this motion, petitioner’s counsel does not question petitioner’s competence. The State of Texas does not oppose petitioner’s motion. In the absence of any issue as-to petitioner’s competence to withdraw the petition filed against his will, there is no basis under Rule 60 for denying this motion. See Gilmore v. Utah, 429 U. S. 1012, 1014 (1976) (Burger, C. J., concurring). Moreover, withdrawal of the petition will not foreclose an appropriate application for collateral relief. Accordingly, the motion to withdraw the petition is granted. It is so ordered. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_direct1	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for assertion of broadest interpretation of First Amendment protection. 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. LAL, Amrit, Appellant, v. CBS, INC. No. 83-1103. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) Jan. 12, 1984. Decided Jan. 19, 1984. Rehearing and Rehearing En Banc Feb. 17, 1984. Eugene A. Steger, Jr., Steger & Howell, Ltd., Kennett Square, Pa., for appellant. James D. Crawford, Kenneth A. Jacob-sen, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellee. Before ALDISERT, HIGGINBOTHAM and SLOVITER, Circuit Judges. OPINION OF THE COURT SLOVITER, Circuit Judge. This is an appeal in a diversity action for defamation (Count I) and trespass (Count II), arising out of the production and publication of a news report aired by the defendant, CBS, Inc. (CBS), through WCAU-TV, a station operated by CBS in Philadelphia. The district court granted CBS’ motion for summary judgment as to Count II and, at the close of all the evidence, directed a verdict for CBS as to Count I. Plaintiff appeals from both orders of the district court, as well as from the court’s denial of plaintiff’s motion to compel production of the notes and tapes of the reporter who prepared the broadcast. ' I. Plaintiff, Amrit Lai, a professor of political science at Cheyney State College, owns several houses in West Chester, Pennsylvania. The house located at 217 East Nield Street (Nield Street house) was leased in March 1980 to five students attending West Chester State College. About March 9, 1980 Lai learned that Ellen Sands, editor of the Quad, the student newspaper at West Chester State College, was preparing to publish a story in the March 18 issue about conditions at properties Lai owned in West Chester. On March 17, 1980 Lai filed suit in the Court of Common Pleas of Chester County against Sands, West Chester State College, and others, seeking, among other things, to enjoin publication of the article until he had an opportunity to review and respond to it. At a hearing on March 21, 1980, which lasted only a few minutes, the court granted Lai’s request to withdraw his petition for an injunction as moot because the Quad article had been published as scheduled on March 18, three days earlier. Roseanne Cerra, a news reporter for WCAU-TV,-and a WCAU-TV sound technician and photographer were present at the hearing. At its conclusion, they conducted videotaped interviews of Lai, Sands, and the president of West Chester State College concerning the Quad article and Lai’s suit seeking prior restraint of its publication. In preparing the story, Cerra also visited the Nield Street house. After receiving permission from tenant Amy Wertz to inspect and film the interior of the house, Cerra and her crew filmed certain areas. Finally, Cerra and her two colleagues visited the offices of the: Quad at West Chester State College and filmed the staff at work there. That evening, Cerra’s report was aired during the 5:30 p.m. edition of WCAU-TV’s news telecast. The report included a statement, attributed to the tenants, that “their many complaints of leaking roofs, faulty wiring and other eyesores were never answered.” The video portion of the report shown simultaneously with this statement contained views of the house, in particular, a water-stained first-floor ceiling, an unshaded electric light bulb suspended from the ceiling, and exposed insulation on the back porch of the house. In Count I of his complaint Lai contends that the broadcast was false and known by CBS to be false, and that the purpose and effect of the broadcast was to portray him as a slumlord. In particular, Lai maintains that the house had neither a leaking roof nor faulty wiring on the date of the broadcast. CBS replies that its broadcast came within the “fair report” privilege, a recognized common law privilege, accepted as well by the Pennsylvania courts, for reports on judicial proceedings and other official action. Under this privilege, the news media may publish accounts of judicial proceedings even when the report contains defamatory matter. CBS concedes that the fair report privilege is not absolute, however, and may be lost if the story is not fair and accurate or the defamatory material is published solely to cause harm to the person defamed. CBS argues it was entitled to the privilege because the news report fairly and accurately summarized the proceedings held on Lai’s petition for preliminary injunction. Lai, on the other hand, argues that CBS exceeded the scope of the privilege by including in the news report matter that was extraneous to the judicial proceedings, especially the videotapes of the house. Lai maintains that the privilege is lost because the juxtaposition of the videotapes with Cerra’s oral summary of the judicial proceeding destroyed the objectivity of the broadcast. In Count II Lai contends that the entry by Cerra and the two other WCAU-TV employees into the Nield Street house was unauthorized and constitutes a trespass. CBS does not dispute that Lai’s permission to enter the property was never obtained. However, the district court found that Cer-ra and her crew entered with the permission of the tenant in possession of the property, and granted CBS’ motion for summary judgment on the trespass count. Lal v. CBS, Inc., 551 F.Supp. 356 (E.D.Pa.1982). Finally, Lai contests the district court’s denial of his motion to compel discovery pursuant to Fed.R.Civ.P. 37 of Cerra’s notes and tapes related to the March 21, H)80 news report on the ground that the material sought was privileged under Pennsylvania’s shield statute, 42 Pa.Cons.Stat.Ann. § 5942 (Purdon 1982). Lal v. CBS, Inc., 551 F.Supp. 364 (E.D.Pa.1982). II. A. We look to Pennsylvania law to determine if CBS’ broadcast fell within the scope of the common law “fair report” privilege as a report of a judicial proceeding. The Pennsylvania Supreme Court has recognized that “[i]f the ... account is fair, accurate and complete, and not published solely for the purpose of causing harm to the person defamed, it is privileged and no responsibility attaches, even though information contained therein is false or inaccurate.” Sciandra v. Lynett, 409 Pa. 595, 600, 187 A.2d 586, 588-89 (1963); see also Binder v. Triangle Publications, Inc., 442 Pa. 319, 324, 275 A.2d 53, 56 (1971). Lai argues that the use of the videotape rendered the news story unfair or inaccurate. However, television is a visual medium and the mere fact that the report of a judicial proceeding is accompanied by videotape to illustrate that report does not constitute abuse of the privilege. There are circumstances under which the nature of the videotape material could constitute an abuse. See, e.g., Purcell v. Westinghouse, 411 Pa. 167, 191 A.2d 662 (1963) (distortion of court proceeding and inclusion of extraneous material in “documentary” constituted abuse). For that reason the trial judge in this case denied CBS’ motion for summary judgment on the fair report privilege issue, as he later said “out of an abundance of caution”, App. at 262a, and gave plaintiff an opportunity to show that there was deliberate distortion and sensationalism connected with the videotape. At. the conclusion of plaintiff’s case, the district court directed a verdict for defendant, finding that there was no evidence on which the jury could- conclude that the video report of conditions at the house presented a distorted ficture or caused a loss of the objectivity of the telecast. App. at 262a-69a. The burden of proving abuse of the privilege rests with the plaintiff. Sciandra v. Lynett, 409 Pa. at 601,187 A.2d at 589. The relevant inquiry, therefore, is whether the use of the videotape rendered the news story unfair or inaccurate. See Medico v. Time, Inc., 643 F.2d 134, 146 (3d Cir.), cert, denied, 454 U.S. 836, 102 S.Ct. 139, 70 L.Ed.2d 116 (1981). Williams v. WCAU-TV, 555 F.Supp. 198 (E.D.Pa.1983). Viewing all the evidence in the light most favorable to the plaintiff, we agree with the district court that a jury could not reasonably find that CBS’ account of the court proceedings was unfair or inaccurate. The inclusion of the videotape of the interi- or of the Nield Street house in the. broadcast merely provided a visual representation to accompany the verbal description of the conditions that were the underlying subject of the dispute. There is no evidence that the addition of the filmed material to the verbal description so exaggerated and sensationalized the news account as to render it neither “fair” nor “accurate.” B. The district court found that Lai’s trespass claim against CBS had no merit. Under Pennsylvania law the lessor of improved land who is out of possession of the property cannot maintain an action for trespass absent some injury to the lessor’s reversionary interest. See, e.g., Clark v. Smith, 25 Pa. 137, 140 (1855); Potts Run Coal Co. v. Benjamin Coal Co., 285 Pa.Super. 128, 135, 426 A.2d 1175, 1178 (1981). Moreover, the consent of the person in possession of the property to the entry onto the premises is a complete defense to a trespass action. See F.A. North & Co. v. Williams, 120 Pa. 109, 13 A. 723 (1888). It is undisputed here that the tenant in possession gave permission for Cerra and her crew to enter the premises and that there was no damage to the property as a result of the entry. It follows that no claim for trespass can be maintained by Lai. Lai claims that in a written lease, the tenants agreed not to admit members of the news media to the Nield Street house. No such lease was submitted in opposition to the motion for summary judgment. Furthermore, even had the tenant given permission to enter in violation of an undertaking not to do so, there would still be no basis on which Lai, who was not in possession, could maintain a trespass action against CBS. C. Finally, Lai argues that the district court erred as a matter of law in concluding that Cerra’s notes and tapes were privileged under Pennsylvania’s shield statute, 42 Pa. Cons.Stat.Ann.- § 5942. In a diversity case we are bound to follow Pennsylvania law as construed by Pennsylvania’s highest court. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78-80, 58 S.Ct. 817, 822-823, 82 L.Ed. 1188 (1938); Becker v. Interstate Properties, 569 F.2d 1203, 1205-06 (3d Cir.1977), cert, denied, 436 U.S. 906, 98 S.Ct. 2237, 56 L.Ed.2d 404 (1978). As the district court noted, although the statute on its face protects only against compelled disclosure of the “source of ... information,” the Pennsylvania Supreme Court has read an earlier version of the statute, virtually identical to the present law, to include “documents, inanimate objects and all sources of information.” In re Taylor, 412 Pa. 32, 40,193 A.2d 181, 185 (1963) (emphasis in original). Thus, in Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264 (3d Cir.1980), we applied the reasoning of Taylor and found that the statute protected secondary sources as well as primary sources of a reporter’s information. Id. at 277-79. Since this precedent provides an adequate non-constitutional basis to support the denial of the requested discovery of Cerra’s notes and tapes because of the possibility they could lead to the disclosure of a secondary source of information, we will not reach CBS’ First Amendment argument. For the foregoing reasons, we will affirm the judgment of the district court. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_method	I	What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc. UNION MARINE & GENERAL INS. CO., Limited, v. KULJIS. No. 7287. Circuit Court of Appeals, Ninth Circuit. April 12, 1934. S. Hasket Derby, of San Francisco, Cal., and Howard G. Cosgrove of Seattle, Wash. (Derby, Sharp, Quinby & Tweedt, of San Francisco, Cal., and Cosgrove & Terhune, of Seattle, Wash, of counsel), for appellant. Sather & Livesey, of Bellingham, Wash., for appellee. Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges. SAWTELLE, Circuit Judge. June 30, 1932, appellant, defendant below, through its duly authorized agent, D. A. Duryee & Co., at Everett, Wash., issued to ap-pellee a marine insurance poliey insuring ap-pellee’s gas boat, the Tiger, against loss by fire. September 14, 1932, the boat was destroyed by fixe, and appellee successfully prosecuted in the District Court this suit to recover the amount of the poliey. Appellant contended in the trial court and contends on this appeal that the poliey ■ was voluntarily canceled by appellee prior to the loss. The trial court’s finding on this issue, assailed by appellant as unsupported by the evidence, is as follows: “That prior to the fire the plaintiff had requested the cancellation of said poliey, but some correspondence arose between the defendant and the plaintiff with relation thereto, and the policy was not can-celled prior to the said fire or at any time.” The poliey contains the following cancellation clause: “Either party may cancel this policy by giving 10 days’ notice in writing. If cancelled at request of underwriters pro rata daily rates to be made. If cancelled at request of assured, returns to be made on basis of standard short rate scale.” Prior to the loss, appellee had not paid the premium on the poliey. August 20, 1932, about two weeks before the boat was destroyed, .appellee wrote to Duryee & Co., appellant’s agent, as follows:' “Regarding my insurance policy for the boat Tiger, I inquired at all the Company’s buyers and I am unable to find the poliey. “I wish to cancel this poliey because I find I am unable to carry it any longer as the fishing season is very poor this year. I will renew this policy next year if I find I can carry it again. I am very sorry to have to cancel this poliey.” August 30 Duryee & Co. replied thereto, as follows: “In reply to your letter of August 29 in reference to Union Marine and General policy No. 1898, we are unable to understand where this poliey could have gone as it was mailed to you some time ago. However, we will be glad to send you a copy of the pol-iey if you so desire. “In reference to cancellation of this policy, we wish to advise that there is a 3 per cent, guaranteed premium on the policy. This is true of all marine policies covering boats in Puget Sound this year. There is a total premium of $464.10. If the poliey is cancelled at this time, you will receive a refund of $249.90. You ean continue this poliey until the end of the fishing season at no additional cost to you. In other words, if you cancelled this policy after the 5th of November you will receive back as much money as you would if you cancelled it at this time. The reason for this is because of the 3 per cent, guaranteed premium. “It is our suggestion that you continue the poliey at least until the end of the fishing season. Kindly advise your wishes in this matter.” September 1 the insured again wrote Dvr-yes & Co., as follows: “Regarding my letter of the 29th, I wish to cancel my poliey from that day on. “But I do not understand why I have to pay so much money for a poliey which I carried for less than two months. Here in Bel-lingham people cancel their policies and they pay for only the length of time they carry it, and I intend to do the same. “I believe there is enough refund from the last year’s poliey to pay for these two months I carried the policy. , “The reason I have to cancel this poliey is because I just made enough money to pay for my board and fuel, so I just ean not carry it any longer as I can not pay for it. “I am sorry I have to cancel this policy but it is the only way out. The next time I take out a poliey I shall take it out from your company as I was very much satisfied with it. “Hoping to hear from you soon.” September 6 Duryee & Co. wrote the insured : “In reply to your letter of September 1, we believe you are wrong in your statement that in Bellingham people cancel their policies and pay for only the length of time they carry the insurance. This is not true, however, under marine policies, and if you will ask any marine agent in Bellingham, they will inform you that the guaranteed premium must apply. This is true of all boats owned by individuals. “However, we are taking this matter up with the company and will advise as soon as we hear from them.” September 6 Duryee & Co. also wrote to J. A. Graessner Company, appellant’s agent at Seattle, Wash,, inclosing copies of the cor' responderme with appellee regarding the cancellation o£ his insurance policy, and asking that Graessner Company “look into this matter and advise in order that we may give him an answer to his letter of September 1.” September 9 Graessner Company replied thereto as follows: “We duly received your letter of September 6 and wish to advise that if the premium on this vessel has been paid to you, we are required to demand a guaranteed premium of 3 per cent, under the terms and conditions of the Motor Vessel Agreement. “If you have been unable to collect the premium, it will be in order to cancel the policy on a pro rata basis for nonpayment of premium, In which event, please return the policy to us immediately or a Lost Policy Receipt. We might advise however, if it is necessary' to cancel on account of non payment of premium, our company will prohibit us from writing insurance for this owner again, and we therefore sincerely trust this action will be unnecessary. “We note this owner states certain policies issued in Bellingham have allowed owners pro rata cancellation, which undoubtedly means that the Bellingham agent has intentionally cancelled certain policies for non payment of premium. “As you know, all boats coming within the terms of the Motor Vessel Agreement carry a guaranteed premium of 3 per cenb for Puget Sound operations. “Trusting you will advise us final disposition of this ease, at your early convenience, we are.” Thereafter, by letter dated September 12, two days before the loss, Duryee & Co. wrote the insured that they had picked up the policy in question “at the Mshermen’s Packing Corporation and have sent it back to the company for cancellation,” and “Will advise you the amount of the earned premium under this policy as soon as we hear from the company.” The foregoing correspondence constitutes all the material evidence on the issue of cancellation, and we agree with appellant that this evidence is insufficient to support the finding of the court that the policy -was not in fact canceled. The policy contains a provision that it may be canceled by either party upon ten days’ written notice. The insured’s letters to Duryee & Co., dated more than ten days pri- or to the loss, contain unmistakable language evidencing his determination to cancel the insurance. In his first letter the insured said, “I wish to cancel this policy because I find I am unable to carry it any longer;” and on September 1 he reiterated his emphatic and unequivocal request for cancellation of the policy, “Regarding my letter of the 29th, I wish to cancel my policy from that day on.” In 32 C. J. 1260, it is said: “If by statute or contract insured has the privilege of cancelling the policy at his pleasure, the company’s consent is not a prerequisite to cancellation.” That appellant’s agents considered the policy canceled is shown by their action in taking possession of the policy on September 12 and sending it to the company for cancellation and adjustment of the premium, after having unsuccessfully attempted to persuade appellee to continue the policy in force until November 5 by paying the minimum 3 per cent, guaranteed premium. In Parsons & Arbaugh v. Northwestern Nat. Ins. Co., 133 Iowa, 532, 110 N. W. 907, the policy contained a provision that it might be canceled at any time at the request of the insured. The court there said: “The policy of insurance was surrendered to the company for cancellation by the insured several days before ,the fire and by it accepted for that purpose, but the unearned premium had not been returned [as requested by the insured]. The insured had done all he could to effect the cancellation of the policy prior to the loss and so had the company, save that the unearned premium had not been actually paid to the insured. Though the assent of two is required to make a contract, one can terminate it. To facilitate doing so is the object of provisions concerning cancellation contained in insurance policies for these are not needed where parties ean mutually agree. * * * The insured having so requested, cancellation necessarily followed. He could do no more save surrender the policy. Having done so, the contract was canceled — was at an end. * * * The request is all that is essential to a cancellation, but the policy must be surrendered to secure the return of the unearned premium. The design of the paragraph was to enable one party to the contract to cancel it without the consent of the other, and, to this end, precisely what was necessary to accomplish this result was prescribed.” See, also, Crown Point Iron Co. v. Ætna Ins. Co., 127 N. Y. 608, 28 N. E. 653, 14 L. R. A. 147; Gately-Haire Co. v. Niagara Fire Ins. Co., 221 N. Y. 162, 116 N. E. 1015, Ann. Cas. 1918C, 115; Johnson & Stroud v. Rhode Island Ins. Co., 174 N. C. 201, 93 S. E. 735. The authorities relied upon by appellee are distinguishable from the case at bar. In American Trust Co. v. Life Ins. Co., 173 N. C. 558, 92 S. E. 706, 707, the policy contained no provision authorizing its rescissioor cancellation at the option of one of the parties. In Artificial Ice Co. v. Reciprocal Exchange, 192 Iowa, 1133, 184 N. W. 756, the cancellation relied upon by the insurance company was held insufficient because not in the form prescribed by the cancellation clause of the poliey. In Home Ins. Co. v. Chattachoochee Lumber Co., 126 Ga. 334, 55 S. E. 11, the loss occurred before the expiration of the five days’ notice of cancellation to the insured required by the poliey, and there was no agreement of the parties for immediate cancellation. In Barbour v. St. Paul Fire & Marine Ins. Co., 101 Wash. 46, 171 P. 1030, 1031, the question was whether the poliey had been canceled by mutual consent prior to the loss, and the court held that the evidence was insufficient to prove such cancellation, saying: “It is plain that she [the insured] intended to cancel the poliey, and that the insurance company was willing to do so. But before the insurance company would actually cancel the policy, it required that a receipt be signed. This reeeipt -was not signed, and, as nothing further was done, the poliey remained in full force and effect.” In that ease it does not appear whether the insured had in fact a right to eaneel the pol-iey, “Assuming, but not deciding,” said the court (page 50 of 101 Wash., 171 P. 1030, 1031) “that Mrs. Barbour [the insured] had authority to order a cancellation of the policy, we do not think the poliey was actually canceled.” In the ease at bar, the right of the insured to cancel the poliey is unquestioned. The cancellation clause of the policy provides that, if cancellation be at the request of the assured, the premium shall be computed on the basis of standard short rate scale. Appellee contends that his letter of September 1 discloses that it was his intention to cancel the policy on a pro rata basis, but that the company did not consent thereto, but insisted on payment of the 3 per cent, guaranteed premium, which would continue the poliey in force until November 5. “It thus appears,” contends appellee, “that before the ten day period had elapsed following August 29th, plaintiff and defendant were negotiating for a satisfactory basis of terminating the poliey and that they had not reached a basis satisfactory to both sides at the time the boat was destroyed by fire on September 14.” Accordingly, argues appellee, the rule to be applied is this: “Where cancellation is attempted in a method different from that specifically authorized by the poliey of insurance or by statute, such cancellation will not be effective unless the minds of both parties to the agreement have met. It was on this basis that the trial judge decided in favor of the plaintiff.” In other words, it is the contention of the insured that his request for cancellation of the poliey was conditioned upon acceptance by the company of a pro rata cancellation. Eor all that appears ip -the record, appellee’s poliey may have been canceled on a pro rata basis. Graessner Company’s letter of September 9 to Duryee & Co. discloses that it is customary to cancel on a pro rata basis in cases where it is impossible to collect the premium. However, the rate or basis of cancellation is entirely immaterial to the question before us, namely, whether the contract was in fact canceled by the insured. By his letters, the insured clearly and unequivocally requested cancellation of the poliey. His-request for cancellation was in no wise conditional. See Ellis v. Hartford Fire Ins. Co. (Tex. Civ. App.) 21 S.W.(2d) 88, 91; Crown Point Iron Co. v. Ætna Ins. Co., supra, 127 N. Y. 608, 28 N. E. 653, 14 L. R. A. 147. The court erred therefore in refusing to find for appellant. Reversed. Question: What is the nature of the proceeding in the court of appeals for this case? A. decided by panel for first time (no indication of re-hearing or remand) B. decided by panel after re-hearing (second time this case has been heard by this same panel) C. decided by panel after remand from Supreme Court D. decided by court en banc, after single panel decision E. decided by court en banc, after multiple panel decisions F. decided by court en banc, no prior panel decisions G. decided by panel after remand to lower court H. other I. not ascertained Answer:
songer_appbus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. George M. MASON, Appellant, v. UNITED STATES of America, Appellee. No. 5639. United States Court of Appeals Tenth Circuit. Dec. 18, 1957. Walter L. Budge, Salt Lake City, Utah, for appellant. C. Nelson Day, Asst. U. S. Atty., Salt Lake City, Utah (A. Pratt Kesler, U. S. Atty., Salt Lake City, Utah, on the brief), for appellee. Before HUXMAN, HURRAH and BREITENSTEIN, Circuit Judges. HUXMAN, Circuit Judge. Appellant, George M. Mason, was duly tried and convicted by a jury on an eight count information in the United States District Court for the District of Utah. Count one and two charged him with wilfully and knowingly failing to make and file an income tax return for the years 1952 and 1953, respectively. Counts three through eight charged him with wilfully and knowingly failing to file employment tax returns for the periods set out in the various counts. Trial was had to a jury and it found appellant guilty on all counts. He was sentenced to serve six months and one day on each of counts one, two, three and four, the sentences being made to run concurrently. Sentence on counts five, six, seven and eight was suspended and as to those counts he was placed on probation for two years. One general assignment of error is urged for reversal. It is that “Trial of appellant in the court below was not conducted in a manner ‘fair’ as guaranteed by the Constitution of the United States of America.” The gist of this is to say that the trial resulted in a denial of due process. This general assignment is broken down into three parts. It is urged that the court violated appellant’s constitutional rights by requiring trial by jury. Appellant sought to waive trial by jury and requested a court trial. Over appellant’s objection, the court submitted the case to a jury for trial. Trial by jury is guaranteed to an accused by the Sixth Amendment to the Constitution and by Article 3, Section 2 of the United States Constitution. It is argued that trial by jury is a privilege accorded to the accused which he may waive and when waived by him and a trial by the court is requested the request must be granted. In most cases where this question has been considered the accused had waived the right to a jury trial and the question then arose whether there was a valid constitutional waiver of such right. No cases are cited and our search has failed to reveal one in which the precise question of an accused’s right to waive a jury trial and demand trial by the court was in issue. We, however, feel that the philosophy of the law is well established that the trial court is vested with a sound discretion in determining whether a jury trial should or should not be had, notwithstanding the accused’s, request that he be tried to the court. Such is the sense of Rule 23(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., which provides that “Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.” Under this rule, the right to waive a jury and be tried to the court is not an. absolute one; it requires the approval of the court and the consent of the government. Such we think is also the philosophy of the law as declared by the Supreme Court in Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 263, 74 L.Ed. 854, where the Court <said: “In affirming the power of the defendant in any criminal case to waive a trial by a constitutional jury and submit to trial by a jury of less than twelve persons, or by the court, we do not mean to hold that the waiver must be put into effect' at all events. That perhaps sufficiently appears already. Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses. In such cases the value and appropriateness of jury trial have been established by long experience, and are not now to be denied. Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact-finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.” Appellant’s contention that the trial court violated due process in refusing to accept appellant’s offer to plead nolo contendere is not well taken. Rule 11 of the Federal Rules of Criminal Procedure provides that “A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere * * * ”. It is not necessary to decide whether a refusal to accept a plea of nolo contendere under certain circumstances may constitute an abuse of discretion. All the cases hold that the trial court is vested with a broad discretion in determining whether a plea of nolo contendere shall be accepted. The record is devoid of any suggestion that the court abused its discretion in refusing to accept the plea. Finally, it is contended that such grave errors were committed throughout the trial in the admission and rejection of evidence as to result in the denial of due process. We have examined the lengthy record of 375 pages. It contains a great amount of detailed evidence relating to receipt of money by appellant, not only in the years in question but in other years as well, with respect to his failure to file income tax returns in a number of years other than the ones in question. There was also a great deal of detailed evidence of questionable probative value, cumulative evidence, and matters of that kind. It may be conceded that much of this evidence might well have been eliminated. It is sufficient, however, to say that there was little objection to the receipt of any evidence. The trial court gave clear, full and correct instructions on all material issues. Assuming without deciding that evidence was erroneously received and that some was also excluded, none of it was of such a nature as to be offensive to the concept of a fair and impartial trial as contemplated by what is meant by due process. In other words, the record is devoid of any suggestion showing that the trial was not carried on in a wholesome manner having due regard to the protection of every right afforded appellant by the law of the ^nd. Affirmed. . Reaffirmed in Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 87 L.Ed. 268. . United States v. Standard Ultramarine & Color Co., D.C., 137 F.Supp. 167; A.B. Dick Co. v. Marr, D.C., 95 F.Supp. 83; United States v. Jones, D.C., 119 F.Supp. 288; United States v. Safeway Stores, D.C., 20 F.R.D. 451. 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_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. In the Matter of Athen Carlton GARLAND et al., Bankrupts, Appellants. No. 7476. United States Court of Appeals, First Circuit. July 8, 1970. Paula W. Gold, Boston, Mass., with whom' Richard Seid, Richard A. Glickstein, Boston, Mass., and Henry W. Schaeffer were on brief, for appellants. Daniel Joseph, Attorney, Department of Justice, with whom William D. Ruckelshaus, Asst. Atty. Gen., Herbert F. Travers, Jr., U. S. Atty., and Alan S. Rosenthal, Attorney, Department of Justice, were on brief, for appellee. Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Juges. ALDRICH, Chief Judge. Petitioners, husband and wife, appeal from an order of the district court affirming the action of a referee in bankruptcy refusing them discharges because of failure to pay the $50 filing fees. More exactly, the district court declined to review the referee’s denial of motions to vacate an order requiring the payment of the fees and, correspondingly, denying petitioners leave to proceed in forma pauperis. Because constitutional questions were raised, the government was notified and allowed to intervene, and in effect is the appellee. Following petitioners’ appeal, the government’s first undertaking was to move to dismiss the appeal because less than $500 was involved and no certificate had been obtained pursuant to 11 U.S.C. § 47. This motion was denied. Possibly the government thought itself duty-bound to make the motion, but it was not invited to intervene to cause the disappearance of the issue. Petitioners, in an extensive brief, make two, possibly three points. They contend that the Bankruptcy Act, 11 U. S.C. § 1 et seq., does not in terms require the payment of fees by indigents, or at least does not require payment with such specificity that, under the rule of construction we adopted in Pasquarella v. Santos, 1 Cir. 1969, 416 F.2d 436, the relief afforded by 28 U.S.C. § 1915(a) is not to be read into it. Alternatively, they contend that if an indigent cannot obtain a discharge without payment of fees, he has been denied due process. Putting this in terms most favorable to petitioners, we will consider this as a claim of lack of equal protection. We find no merit in either portion of petitioners’ first contention. In 1946 the former, or fee, method of compensating referees, by awarding them all fees received, was abolished and there was established the principle of a self-supporting system. The individual referees are paid salaries commensurate with their duties from district to district, 11 U.S.C. § 68(a), rather than by the inequitable contingencies of fees received, and the fees charged are to be regulated so that the system as a whole will produce sufficient revenue to meet all costs. 11 U.S.C. § 68(c) (2). At the same time, pauper petitions, requiring no fee from certain voluntary bankrupts, authorized by section 51(2) of the 1898 Act, 30 Stat. 558-559, were abolished. Whether Congress thought that there was no need, or no obligation, to open the bankruptcy court to persons unable to pay the fee, or whether it thought that termination of the referee’s personal incentive to collect fees from many reluctant bankrupts who were, in fact, able to pay them, would be so detrimental to the operation of the new system that an occasional suitor truly destitute should be disregarded for the good of the whole, cannot be told. S.Rep.No. 959, 79th Cong., 2d Sess. p. 7. The significant matter is the disappearance of the former pauper provision, and the substitution of a requirement that a bankrupt who asserts contemporaneously with the filing of his petition that he cannot pay the fee, may pay in installments, but must pay ultimately as a condition precedent to discharge. 11 U.S.C. §§ 32(b), (c) (8), 68(c) (1), 95(g); General Order in Bankruptcy 35(4) (c), 331 U.S. 873, 877. In this positive framework there is no room to apply a broad interpretation of 28 U.S.C. § 1915(a) as we did in Pasquarella v. Santos, ante. That section provides in general terms for the waiver of prepayment of court fees in case of indigency. Where the Bankruptcy Act already has a special provision for postponement of fees in case of indigency, we cannot read into it a different provision of a general statute not made specifically applicable. In Santos we merely filled a void. Of more basic importance, section 1915(a) provides for waiver of prepayment only, not for forgiveness. See section 1915(e). It cannot be read to eliminate a requirement of ultimate payment phrased as a condition precedent. We turn, accordingly, to petitioners’ assertion of lack of due process. Their analysis is over-simplistic, both with respect to the nature of the relief rendered by the bankruptcy court and to the nature of the obligation to pay for it, and, possibly, to the concept of indigency. For reasons that we will deal with in the balance of the opinion, this is not a case like Boddie v. State of Connecticut, D.Conn., 1968, 286 F.Supp. 968, appeal pending, October Term 1970, where a person of little means alleged inability to pay the fee required to seek a divorce, and claimed lack of due process. To begin with the degree of poverty required to be termed indigent in ordinary in forma pauperis situations, petitioners state, “[D]estitution is not required to file other civil actions in the federal courts in forma pauperis,” citing Adkins v. E. I. DuPont de Nemours & Co., 1948, 335 U.S. 331, 339-340, 69 S.Ct. 85, 93 L.Ed. 43. If, by this, petitioners mean there should be as generous an interpretation of indigency in a bankruptcy case as in a civil case, they misunderstand the fundamentals. A bankrupt is legally obligated to surrender his assets and to leave himself precisely “destitute,” with the exception of assets specifically exempt. 11 U.S.C. § 24. If the bankrupt has any other assets, no matter how small, they must be given up, as a consideration for a discharge. An immediate question, not necessarily relevant to petitioners, but important to a general examination of the question they raise, is whether exempt assets are to be looked to in connection with the payment of the fee. This had been the practice from the beginning. In fact it was said that the bankrupt could not qualify as a pauper unless he was not only without assets, but without available credit. In re Collier, W.D.Tenn., 1899, 93 F. 191; In re Bean, D.Vt., 1900, 100 F. 262; In re Hines, S.D.W.Va., 1902, 117 F. 790; In re Medearis, W.D.Tex., 1923, 291 F. 709; In re Stuck, W.D.Mo., 1926, 13 F.2d 266. A contrary dictum was confined to the “humiliation” involved in requiring the bankrupt to borrow. Sellers v. Bell, 5 Cir., 1899, 94 F. 801, 817. All but one of the above cases, however, postdated that complaint. At least to the extent of requiring the application of exempt assets, the principle is fully established. 2 Collier,. Bankruptcy (14th ed. 1969) ¶51.04. The reason given for this rigidity, and one reason we would give for distinguishing this case from ordinary litigation, is that the “statutory fees * * * are primarily for services for the benefit of the bankrupt.” In re Bean, ante, 100 F. at 263. Although bankruptcy is administered in a “court” it is in most particulars a very unusual court. “The core of bankruptcy is administrative.” St. Regis Paper Co. v. Jackson, 5 Cir., 1966, 369 F.2d 136, 141. Referees are primarily administrators who, together with trustees, render financial services. A bankruptcy is not litigation in the normal understanding of the term, but merely a process under which the bankrupt files a petition, turns over his assets, if any, and awaits the receipt of a discharge. Before we determine that he is constitutionally entitled to such service, and to the ultimate discharge, without payment, it is appropriate to consider the alternative, both to him and to the government. The primary question must be why an individual admitting no assets has need for a discharge. If he has nothing, or if whatever he has is exempt under 11 U.S.C. § 24, it would seem that his creditors would find it pointless to pursue him. If they should pursue, one would wonder what the debtor could have to be concerned about. We can think of only two classes of seemingly assetless persons who might want, a discharge: those who in fact have assets, but hope to conceal them, and those who have none, but, as present petitioners claim for themselves, expect future assets, and wish to be rid of their creditors first. The first category deserves, of course, no consideration. We do not think the claim of the second so compelling that they must be constitutionally entitled to a free discharge. Perhaps, basically, the question is one of expense. Petitioners estimate that a substantial proportion of so-called no-asset cases would come under their proposed principle. They place this figure at 60,000 cases annually, or one third of all filings, a loss to the system of $3,-000,000. Whatever the proper figure, were such rule to be adopted a major problem would be the determination whether in fact the proposed bankrupt does not have, or will not have over a period of six months, sufficient funds to pay the filing fee. It is easy for him to deny, and difficult to prove otherwise. We have no doubt that the adoption of petitioners’ rule would mean that a very substantial number of persons who could in fact pay, will avoid doing so. If there were substantial injury involved, this financial loss might have to be suffered. We do not find such injury. A bankruptcy discharge is not a fundamental right. Congress can, and has, concluded that it is desirable under certain circumstances that an individual be able to get clear of his debts and start afresh. It must have the right, however, to attach reasonable conditions to this privilege. We do not think it unreasonable for Congress to conclude that if future assets are to be cleared of incurred encumbrances, a fee be paid, if not available elsewhere, out of those assets when they are received. Finally, while, as we have said, this may basically be a question of meeting the expense of operating the system, we do not think it inappropriate for Congress to determine, from a social point of view, that one who is receiving the privilege of avoiding his past, and by hypothesis, legitimate debts, should experience some slight burden in return. Nor is the present system discriminatory. Bankrupts who have assets give up what they have. Bankrupts in the position of the petitioners, should they prevail in this case, will never have given up anything. We do not feel obliged to rule that the present statute is an unconstitutional imposition. Rather, it seems to us that the Congressional requirement of the payment of a $50. fee before receiving a discharge does not arbitrarily discriminate, but bears a rational relation to the service offered and to the bankrupt’s need for that service. Affirmed. Tlie fees initially set proved to be more than sufficient, and the system developed a sizable surplus. In recent years increasing costs, and most notably, increased remuneration to the referees, set a marked trend in the other direction. This has caused the Judicial Conference of the United States to recommend, in the interest of keeping fees within manageable size, that the self-supporting principle be abolished. Report of the Proceedings of the Judicial Conference for March 13-14, 1969, pp. 23-24, same for March 16-17, 1970, p. 25. However, the law has not yet been amended. 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_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". R. E. OLSEN et al., Appellants, v. POTLATCH FORESTS, Inc., et al., Appellees. No. 13155. United States Court of Appeals Ninth Circuit. Jan. 6, 1953. William S. Hawkins and E. L. Miller, Coeur d’Alene, Idaho, for appellants. Clarence J. Young and Frank C. Mc-Colloch, Portland, Or., Elder, Elder & Smith, R. N. Elder, Coeur d’Alene, Idaho, William A. Babcock, Jr., Portland, Or., for appellees. Before MATHEWS, HEALY and POPE, Circuit Judges. PER CURIAM. On the grounds and for the reasons stated in its opinion Potlatch Forests, Inc., v. International Woodworkers of America, D. C.Idaho, 108 F.Supp. 906, the judgment of the District Court is affirmed. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_weightev	B	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". HOWELL TURPENTINE CO. v. COMMISSIONER OF INTERNAL REVENUE. No. 11845. Circuit Court of Appeals, Fifth Circuit. June 4, 1947. Robt. R. Milam, of Jacksonville, Fla., for petitioner. Newton K. Fox and Lee A. Jackson, Sp. Assts. to Atty. Gen., Sewall Key, Acting Asst. Atty. Gen., and J. P. Wenchel, Chief Counsel, Bureau of Internal Revenue, and C. R. Marshall, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., for respondent. Before SIBLEY, HUTCHESON, and LEE, Circuit Judges. SIBLEY, Circuit Judge. The question for decision is whether the 'Ox Court’s holding that a sale in 1940 of 53,488 acres of land in Baker and Union Counties. Florida, to National Turpentine and Pulpwood Corporation was made by Howell Turpentine Company and resulted in realizing a taxable gain to it, is according to law. The case is reported 6 T. C. 364. On this question the court divided, the majority opinion arguing for several legal theories, mistaking as we think some principles of law, and culminating in a disregard of the unimpeached testimony presented both by the taxpayer and the Commissioner. The minority opinion we regard as correct and unanswerable. As factfinders the minority judges ordinarily would be controlled by the majority, and this reviewing court need not regard their views; but here they say there is no substantial evidence to support the majority conclusion and that the evidence is all to the contrary, thus raising a question proper for our consideration. The evidence consists of documents and the testimony of D. F. Howell presented by the taxpayer and of Harry W. Rein-stein presented by • the Commissioner. There is no contradiction or attempt at impeachment. The questions are as to the effect of the documents and whether they and the testimony are overridden by the circumstances. In brief outline the facts are these. Howell Turpentine Company was incorporated in Florida in 1926 with a capital of $100,000 and thereafter conducted on pine lands which it owned the business of making turpentine and rosin at a distillery in Baker County and another in Union County. Besides the 5000 acres thus used the Company acquired about 45,500 acres of cutover lands which were unproductive, but on which it was conducting reforestation by the process of nature and by artificial planting of trees. The Company was not making money and in 1937, in 1939, and in 1940 it granted successively options to different prospective buyers for the purchase of all its lands, at a reduced price each year. The last option was to Rayon-ier, Inc., and it expired Aug.- 9, 1940. No document and no testimony purports to show any effort thereafter on the part of the Company to sell. D. F. Howell, who had been president of the Company from the beginning and who owned 85 per cent of its stock, his two sons each owning 5 per cent and a former employee, Long, owning 5 per cent, testifies that shortly after August 9, 1940, he conferred with his sons, the three being the directors, and reached a decision not to permit the corporation again to try to sell the lands, but to liquidate it. Thereafter on August 25, Howell, having approached National Turpentine and Pulpwood Corporation offering to sell the land at a price lower than any before offered, met its president and its attorney Rein- , stein with his own attorney Milam, and an agreement was reached, and Reinstein was asked to draw the papers, Milam cooperating. Both Howell and Reinstein testified positively that it was understood that the title was in Howell Turpentine Company but that a liquidation was in process, and the contract was to be made with the individual stockholders on the basis that the liquidation would be accomplished by the time fixed for the conveyance of title. Reinstein, the Commissioner’s witness, was asked, “You had no negotiations with the corporation as such?” and he answered, “No, the understanding was that they wanted to sell as individuals and were liquidating the corporation, and the entire conferences were with that understanding, as stated in the contract.” The contract, not executed till September 6, clearly and explicitly so states and is signed by the three Howells individually. Pending the preparation of this contract, on Sept. 4, Howell sent a telegram and a letter to a public accountant who acted as auditor for the Turpentine Company, stating that the buyer’s president had assured Howell that he would buy all the stock of the Turpentine Company instead of the laud if it would save Howell income taxes, and Howell wished the auditor to come down and assist him in working out a proper method of selling the stock. Nothing came of this however; the stock was not sold, the contract was made as first agreed on. On Sept. 6 the younger Howells acquired from Long his 5 percent of the stock and had it transferred into their names. Howell testified that Long’s stock was pledged as collateral for its purchase price, and Long had previously said he would sell it for the debt, he having left the Company. On this date the three Howells, now owning all the stock, in formal stockholders meeting resolved that the Turpentine Company should dissolve and wind up its affairs and collect its assets and discharge its obligations and completely liquidate, and if the liquid assets should be insufficient to pay the mortgage on the physical properties, such property should be distributed subject to the mortgage, and that all assets be distributed in kind to the stockholders in full payment and exchange for their stock. Actual dissolution was directed to be withheld till distribution should be accomplished. Also on September 6, at a later hour, the three Howells met with Reinstein at his office and duly executed the written contract which on August 25 had been agreed on and directed to be prepared. Some special provisions of this contract will be adverted to later. It concluded with a provision that if the Howells were unable to convey fee simple title to 80 per cent of the lands, the contract should terminate. On October 3, 1940, the Commissioner was advised pursuant to Internal Revenue Code, § 148(d), 26 U.S.C.A. Int.Rev.Code § 148(d), of the proposed liquidation of the Turpentine Company and a copy of the stockholders’ resolution was annexed. Turpentine and Rosin Factors, Inc., of Jacksonville, which handled the products of the Turpentine Company and also acted as banker for it and D. F. Howell, held the mortgage on the lands, on which $249,-745 was owing, but subject to a credit on account of $114,303, leaving a balance of $139,442. D. F. Howell owed the Turpentine Company a sum of $120,502. An additional sum of $27,056 interest was then supposed to be due but was held not to be owing in Howell v. Commissioner, 5 Cir., 162 F.2d 316. On December 26, 1940, he gave Factors, Inc., his personal note for $180,500 and was given credit for that amount. He thereupon gave the Turpentine Company a draft on Factors, Inc., for $170,198, which was indorsed over by Turpentine Company to Factors, Inc. The mortgage and all other indebtedness of the Company was thereby discharged and was cancelled. Also on December 26, 1940, the Turpentine Company by formal corporate action conveyed to the three Howells in proportion to their respective stock holdings, 53,448 acres of land in Baker and Union Counties. By a separate conveyance and bill of sale it conveyed all the remaining assets to them. On the next day their stock certificates, which had been surrendered, were marked cancelled. On that day, too, the three Howells, joined by their respective wives, conveyed the 53,448 acres of land to the Pulpwood Corporation, which made payment according to its contract, the cash part of which payment was applied by D. F. Plowell on his $180,500 note given to Factors, Inc. The following day, December 28, 1940, the Turpentine Company formally declared its affairs completely liquidated, and resolved that the corporation be dissolved, and the directors were instructed to do all things necessary to dissolve it and surrender the charter. The Secretary of State declared it dissolved October 14, 1941. The income tax return of the Turpentine Comp'any did not report any gain to it from the sale of the land. The Howells reported capital gains on their stock’ arising from the dividend in liquidation. The Commissioner charged to the corporation a gain in the sale of $207,-261, and assessed additional taxes accordingly. The Tax Court sustained the assessment substantially. We address ourselves first to some misconceptions pf law. 1. It was not necessary to a contract of sale by the Howells as stockholders that they should by a prior action have agreed to a dissolution of the corporation and thereby have become “equitable owners” of the lands. A stockholder as such has no title, legal or equitable, to the corporation’s property. His interest in it is a pro rata part of the residuum on a liquidation, much like the interest of a partner in partnership property, which we discussed, citing the authorities, in Bahr v. Commissioner, 5 Cir., 119 F.2d 371. He can sell his interest by selling his stock, but he cannot effectively convey any particular property of the corporation prior to a liquidation. But he may validly contract to sell it before any steps are taken towards liquidation, if he has a reasonable prospect of obtaining title to it within the time fixed by the contract for the conveyance. This is true of stockholders as it is of people in general who have a prospect of obtaining title and are willing to assume a personal liability if they should fail. “It is not unusual for persons to agree to convey by a certain time notwithstanding they have no title to the land at the time of the contract, and the validity of such agreements is upheld. In such cases the vendor assumes the risk of acquiring the title and making the conveyance, or responding in damages for the vendee’s loss of his bargain. * * * Whenever one is so situated with reference to a tract of land that he can acquire the title thereto, either by the voluntary act of the parties holding the title, or by proceedings at law or in equity, he is in position to make a valid agreement for the sale thereof, without disclosing the nature of his title.” 55 Am.Jur., Vendor and Purchaser, § 12. The dissenting judges in this case quote 66 C. J., p. 511, Sect. 40, “A contract of sale may be valid and enforceable if made in good faith by the vendor notwithstanding the subject matter is realty to which the vendor at the time of entering the contract has no title, or a less interest than he agrees to convey, at least where he is so situated as to be able to convey at the proper, time.” They cite, too, the language of the Tax Court in Williams v. Commissioner, 3 T. C. 1002, as to the very case of a stockholder who as an individual contracts to sell property he expects soon to acquire by the liquidation of his corporation. Here D F. Howell alone, as owner of 85 percent of the stock, could prevent the corporation from selling out its lands, and he could force its liquidation and acquire title. The majority judges are further in error in supposing that because prior to September 6 Howell had not consulted long as a stockholder about a liquidation, but only his two sons, he was in no position as a stockholder, representing himself and his sons, to contract as he was proposing to do. Under the Florida law, Florida Stats, of 19-11, § 612.46, F.S.A., ten days notice to all stockholders and a two-thirds vote in stockholders meeting, or else unanimous written consent, was necessary to an actual dissolution, but the notice of a meeting could easily be given to Long and the Howells’ vote would carry the question over his objection. But Long in fact was glad to sell his stock for the payment of tlie debt to which it was pledged, and he did so. The Howells were always in position to acquire title to the land by a liquidation of the corporation, on providing in any way they chose for the payment of the corporation’s creditors. They did not have to act for the corporation in offering to sell the laud on August 25, or on September 6. All the documents state and all the testimony is that they did not, hut acted in their own names and for themselves. 2. The confessed fact that the Howells knew there was a latent gaiu in the land, and that it would be more heavily taxed if realized by a sale by the corporation than if realized by them, as stockholders after a liquidation in kind, is of no legal significance. From ¡he beginning of federal income taxation it has been established that taxable income in respect to such a gain does not exist tmíil hiere is a realization of it by a conversion of the property. The government has no right to tax it till it is realized. No gain in the value of if,:; lauds is taxable to a corporation unless realized by a sale by it white it owns the land. By settled law a distribution of its property in kind without sale ns a liquidating dividend is not taxed as a realization of gain by the corporation, but is taxed to each shareholder when the value of what he receives exceeds his investment in his stock. This corporation was not succeeding in its business. There was no legal obstacle to the stockholders deciding, formally or informally, to liquidate the corporation, provide for the payment of Its debts, and take over its prop.-¡ty in kind, instead of letting the corporation sell the land if it could, pay its debts from the proceeds and turn the balance or (>■• to them. The United States could not object to either course. The tax laws provided for taxing gains realized by either course, but left both open to the choice of the stockholders. That the choice was dictated by a purpose of tax saving is no objection to it. This was decided in respect to another form of federal taxation in United States v. Isham, 17 Wall. 496, 21 L.Ed. 728. In Gregory v. Helvering, 293 U.S. 165, 55 S.Ct. 266, 79 L.Ed. 596, 97 A.L.R. 1355, it was held, “The legal right oí a taxpayer to decrease the amount of what would otherwise be his taxes, or altogether to avoid them, by means which the law permits, cannot be doubted.” This general rule was admitted in Commissioner v. Tower, 327 U.S. 280, 288, 66 S.Ct. 532, 90 L.Ed. 670, 164- A.L.R. 1135. Here there was unquestionably a genuine and final liquidation ol the corporation. The contract of sale was the personal contract of the stockholders reciting the impending liquidation, which had in fact been formally ordered before the contract was signed. There was no previous negotiation between the purchaser and the corporation. The uncoutradicted testimony supports the writing. There was a (dear choice made as to how the liquidation should be carried out, and the means chosen were lawful. 3. The majority opinion makes much of the fact that I). F. Howell between August 25 and September 6 became impressed that a sale of all the stock was a simpler and better way to sell the land than to liquidate the corporation, and wrote the auditor that the president of the purchaser had signified a willingness to proceed to buy the laud that way. It seems to us, as it did to the dissenting judges, a mere irrelevancy. The idea was not carried out. The original plan of the stockholders selling as individuals was proceeded with. The suggested sale of the stock did not involve any participation by the corporation in the sale, and if carried out would have been the act of the stockholder:', alone. It did not tend to show' that the corporation was selling tlie land. 4. The majority opinion next argues that because on Sept. 6 the corporation first met and resolved to liquidate and dissolve, tlie resolution adding, “and the corporation is hereby declared to be in liquidation”; and because the three Howells afterwards on the same, day signed the individual contract of sale they must have acted for the corporation, for being directors they could not dispose of the title for their own benefit; and, (after discussing cases), it was concluded that they were trustees in liquidation necessarily acting for the corporation. We are referred in argument to Treasury Regulations 103, Sec. 19.22(a) 21; “Gross income of Corporation in Liquidation: When a corporation is dissolved, its affairs are usually wound up by a receiver o.r trustees in dissolution. The corporate existence is continued for the purpose of liquidating the assets and paying the debts and such receiver or trustees stand in the stead of the corporation for such purposes. Any sales of property by them are to be treated as if made by the corporation for the purpose of ascertaining gain or loss. No gain or loss is realized by a corporation from the mere distribution of its assets in kind in partial or complete liquidation, however they may have appreciated or depreciated in value since their acquisition.” A distinction exists between the liquidation of a corporation and its dissolution. The officers may liquidate it, as they did here, prior to dissolution, which was not voted till Dec. 28, when everything had been done except the surrender of the charter. The Florida law, Florida Stats, of 1941, § 612.48, F.S.A., provides that after dissolution has been certified by the Secretary of State the directors become trustees for three years to represent the corporation in final adjustments. Until dissolution the officers and directors continue to act as such. The first three sentences of the above quoted-Regulation apply by their terms to the situation after dissolution. They do not make the position of the Howells as directors and stockholders any different before December 28 from what they had always been.- It is the last sentence of the Regulation that applies to this case, confirming what we said in paragraph 2 above, that no gain is realized by a corporation from the distribution of its assets in kind in liquidation, irrespective of their appreciation in value since their acquisition. 5. The further statement of the majority that “The government had a statutory right to tax based upon any sale by the corporation, and the trustees (the directors) could not merely by acting as stockholders evade their trust relationship to the detriment of a creditor for which they were trustee,” merely begs the question. The government did not have any right to this tax unless the sale was made by the corporation. If it was not so made, the government had no right to the tax and was in no sense a creditor. 6. The majority also concluded that because the Howells’ stock certificates were not cancelled till December 27, the conveyances of December 26 could not have been in liquidation and in exchange for the stock, since the consideration had not been paid. This we think is not the law. ’ The stockholders had on September 6 all voted to receive the property in kind “in full payment and exchange for said stock; and that such distribution to stockholders be in complete cancellation and redemption of all its stock in accordance with this plan of liquidation.” When on December 26 they accepted conveyances of all the assets in kind the stock was in law paid off and redeemed, and surrender and cancellation of the certificates could have been compelled. It does not appear when they were surrendered, but only that they were marked cancelled on December 27. It would not affect the transaction if they had never been so marked. 7. The final question is whether there is any evidence which consistently with law can be taken to prove that the corporation and not the stockholders made this sale. The written contract is plainly one by the stockholders as individuals. All the corporate minutes show that the corporation was liquidating by a distribution of its property to the stockholders in kind. The deeds are to them as tenants in common in proportion to their stock holdings. The stockholders made title the next day to the purchaser who had dealt only with them as individuals. That this mode of lawful dealing knowingly saved taxes is not an argument that it was not so done, but a powerful argument that it was. That the cash proceeds from the sale went to repay the money which D. F. Howell had advanced the previous day to pay off the corporate debts was only right. The stockholders could arrange among themselves in anyway they chose to raise the money necessary to free the assets. The fact that in the written contract the Howells reserved from the sale a few acres, their old home place; that D. F. Howell still had some faith in the turpentine business and contracted for a turpentine lease on some of the land sold; and the right to cut crossties at 25 cts. each as before; and by some arrangement with his sons apparently kept some of the residential property not deeded to the Pulpwood Corporation; is no evidence that the Turpentine Company and not the Howells sold the land to that Corporation. On the contrary, these personal matters would have had no proper place in a sale by the Company. No issue was made and no testimony was taken as to the disposition the Howells made among themselves of the property they did not sell. The only plausible ground put forward for inferring the sale to have been made by the Company is that the property was owned by it and that D. F. Howell was its president and could appropriately have negotiated for the Company prior to Sept. 6. But it is equally true that he was the controlling stockholder and could as appropriately have negotiated for himself and did not have to own the land, under the circumstances, to do so. He testifies squarely that he negotiated only for himself and the other stockholders. Long had given him no direct authority, but Long promptly sold them his stock. If he had not sold it and had insisted on getting and retaining his pro rata of the land, the contract would not have been affected; since by a provision of the contract it stood if title to 80 percent of the land should be delivered, ar.d Long could have claimed only 5 percent of it. The only judge who saw and heard Howell testify is the writer of the dissenting opinion. But if we say Howell need not be believed because of his financial interest in the case, there is Reinstein who represented the Pulpwood Corporation in the negotiation and has no interest and is put forward by the Commissioner as a credible witness. Pie testifies positively that the negotiation was not with the Turpentine Company, but with the stockholders as prospective owners by liquidation understood to be then in progress, and that he drew the written contract accordingly. There is neither testimony nor circumstance inconsistent with this testimony of this witness who knows what happened. Inferences which might have been made if he had not testified may not lawfully he made to the contrary by fact-finders, whether jurors or judges or hoard members. In Southern R. Co. v. Walters, 284 U.S. 190, 52 S.Ct. 58, 76 L.Ed. 239, the sole issue was whether a train stopped and flagged at a crossing as required by ordinance. There was evidence as to speed at nearby crossings, and opinions as to the time required to get up such speed after a full stop, from which it could be inferred there was no full stop; but there were unimpeached witnesses at the particular crossing who testified positively that the train did stop and flag, and the Supreme Court reversed a verdict based on the contrary inference as unauthorized. In Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 341, 53 S.Ct. 391, 394, 77 L.Ed. 819, the principle was elaborated thus: “The desired inference is precluded for the further reason that respondent’s right of recovery depends upon the existence of a particular fact which must he inferred from proven facts, and this is not permissible in the face of the positive and otherwise uncontradicted testimony of unimpeached witnesses consistent with the facts actually proved, from which testimony it affirmatively appears that the fact sought to be inferred did not exist. This conclusion results from a consideration of many decisions, of which the following are examples. a The direction of a verdict was affirmed. We do not discuss the many cases, more or less like this, from this and other inferior courts. The one from the Supreme Court most relied on in argument by the Commissioner is Commissioner v. Court Holding Company, 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981. The facts broadly distinguishing that case from this are quoted from -324 U.S. at page 333, 65 S.Ct. at page 708, 89 L.Ed. 981. "Between October 1, 1937, and February, 1940, while the corporation still had legal title to the property, negotiations for its sale took place. These negotiations were between the corporation and the lessees of the property * * * An oral agreement was reached as to the terms and conditions of sale, and on Feb. 22, 1940, the parties met-to reduce the agreement to writing. The purchaser was then advised by the corporation’s attorney that the -sale could not be consummated,” for tax reasons. The next day the corporation declared a liquidating dividend which passed the property to the two stockholders, who then made a sale substantially the same as previously agreed on. It was held that the corporation could be found not to have abandoned its sale, but to have disguised it and carried it out. In the present case the corporation was never negotiated with, never agreed on any sale, and never carried out any. The sworn testimony precludes by a principle of law the inference to the contrary which the majority sought to draw. That inference we believe would not have been made at all but for the misconceptions of law to which we have adverted. Esteeming the judgment to be not in accordance with law we set it' aside, and direct such further proceedings in accordance with this opinion as may be proper to redetermine the taxes involved. Reversed. The letter is signed “Howell Turpéntine Co., ID. F. Howell.” but throughout it says “I” and “me,” and concludes, “I am yours truly.” It is a personal letter. Among the eases cited in Frazier v. Georgia Railroad & Banking Co., 108 Ga. 807, 33 S.E. 990, of regretful interest to the writer, for it marks tho burial of his first big damage suit. He had persuaded two juries tliat tho conductor, believing him to be a trespasser, had forced a small boy from the platform of a rapidly moving train to his death; but the trial judge and appellate court held the conductor’s testimony that he was trying to get the hoy into the coach must be accepted. 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	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. John M. RAY, Plaintiff-Appellant, v. Earl HUDDLESTON, John Sloan and Frank Summers, Defendants-Appellees. No. 15368. United States Court of Appeals Sixth Circuit. Jan. 14, 1964. Douglas E. Robertson, Bowling Green, Cancan & Allender, Bowling Green, Ky., on brief), for appellant. Paul R- Huddleston, Bowling Green, Ky. (Huddleston & Huddleston, Bowling Green, Ky., on brief), for appellees. Before O’SULLIVAN, Circuit Judge, and McALLISTER and MAGRUDER, Senior Circuit Judges. PER CURIAM. . „ . T M t> , n Appellant, John M. Ray, sued appellee a county judge of the county of Clinton, Yr x , . n , . , , Kentucky, had invaded Ray's civil rights- , . . . t> j? , , by imprisoning Ray for contempt of Justifies his nresenee in the Federal CQurtg b asserting that the Rights Statutes (§§ 1983, 1985, U.S.C.A. Title 42; § 1343, U.S.C.A. Title 28) permit him to come here. UPon tnal of the cause> a verdict was' directed in favor of defendant Huddleston, and judgment entered thereon. Ray . „ . . , asks for a new trial. Ray had been acting as the Administrator of the Clinton County War Memorial Hospital. By action of the Clinton County Fiscal Court, Ray’s position as such was to be terminated on February 2, 1962. He disputed the validity of such action. When Ray’s successor sought to take over the office and authority of administrator of the hospital, Ray resisted. His resistance was not limited to written or verbal protest. On the day his successor was to take over, Ray arrived at his previous post of duty ready to hold it against intrusion by his successor. He proceeded to do so. Confusion in the administration of the hospital ensued and its good order and the welfare of its patients were seriously impaired. Described events could, and probably did, amount to a breach of the peace. This condition continued for some days. Through official sources, reports of this situation came to Earl Huddleston, as judge of the County Court of Clinton County. Acting under § 25.150 of Kentucky Revised Statutes and under Section 32 of the Kentucky Code of Practice in Criminal Cases, Judge Huddleston, on February 7, 1962, convened a court of inquiry and summoned Ray to appear. Ray appeared with counsel and, on this appeal, it is not disputed that, by demeanor and words, he publicly displayed his contempt for the authority and person of Judge Huddleston. Ray was summarily committed to jail for six hours. On this appeal, appellant’s attack on the action of the county judge is his contention that the judge was without jurisdiction to conduct the court of inquiry and, therefore, was without authority to punish Ray for contempt. We are of the opinion that the county judge had authority to convene and conduct the court of inquiry and, incident thereto, to impose punishment for contemptuous conduct committed in his presence. Bryant v. Crossland (Ky. 1918), 182 Ky. 556, 206 S.W. 791. Cf. Johnson v. MacCoy, 278 F.2d 37 (CA 9, 1960). A more detailed discussion of the facts and issues involved in the case before us will be found in the opinion of District Judge Mac Swinford denying Ray’s motion for new trial. The opinion is reported as Ray v. Huddleston, 212 F.Supp. 343. (W.D.Ky.1963) We agree, also, with that opinion’s holding that judicial immunity foreclosed a judgment of liability against appellee Huddleston for his conduct of the proceedings of the court of inquiry. Judgment affirmed. . KRS 25.150 provides: “The county judge is a conservator of the peace within his county, may administer oaths and may exercise all the power of a justice in penal and criminal proceedings, and singly hold a court of inquiry in such proceedings.” . Criminal Code § 32 provides: “A magistrate, if satisfied that any public offense has been committed,- shall have power to summon before him any person he may think proper for examination on oath concerning it, to enable him to ascertain the offender, and to issue a warrant for his ' arrest.” Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_respondent	144	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. CAREY, WARDEN v. SAFFOLD No. 01-301. Argued February 27, 2002 Decided June 17, 2002 Breyer, J., delivered the opinion of the Court, in which Stevens, O’Connor, Souter, and Ginsburg, JJ., joined. Kennedy, J., filed a dissenting opinion, in whieh Rehnquist, C. J., and Scalia and Thomas, JJ., joined, post, p. 227. Stanley A. Cross, Supervising Deputy Attorney General of California, argued the cause for petitioner. With him on the brief were Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, and Jo Graves and Arnold 0. Overoye, Senior Assistant Attorneys General. David W. Ogden argued the cause for respondent. With him on the brief were Mary Katherine McComb, by appointment of the Court, 534 U. S. 1053, and Seth P. Waxman. Briefs of amici curiae urging reversal were filed for the State of North Carolina et al. by Roy A Cooper III, Attorney General of North Carolina, Amy C. Kunstling, Assistant Attorney General, and Dan Schweitzer, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Janet Napolitano of Arizona, Ken Salazar of Colorado, M. Jane Brady of Delaware, Earl I. Anzai of Hawaii, James E. Ryan of Illinois, Carla J. Stovall of Kansas, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Jeremiah TV (Jay) Nixon of Missouri, Mike McGrath of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, John J. Farmer, Jr., of New Jersey, Betty D. Montgomery of Ohio, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Randolph A Beales of Virginia, Christine 0. Gregoire of Washington, and Hoke MacMillan of Wyoming; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger. David M. Porter and Peter Goldberger filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging affirmance. Justice Breyer delivered the opinion of the Court. The federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a state prisoner seeking a federal habeas corpus remedy to file his federal petition within one year after his state conviction has become “final.” 28 U. S. C. § 2244(d)(1)(A). The statute adds, however, that the 1-year period does not include the time during which an application for state collateral review is “pending” in the state courts. § 2244(d)(2). This case raises three questions related to the statutory word “pending”: (1) Does that word cover the time between a lower state court’s decision and the filing of a notice of appeal to a higher state court? (2) If so, does it apply similarly to California’s unique state collateral review system — a system that does not involve a notice of appeal, but rather the filing (within a reasonable time) of a further original state habeas petition in a higher court? (3) If so, was the petition at issue here (filed in the California Supreme Court 4V2 months after the lower state court reached its decision) pending during that period, or was it no longer pending because it failed to comply with state timeliness rules? We answer the first two questions affirmatively, while remanding the case to the Court of Appeals for its further consideration of the third. I In 1990 Tony Saffold, the respondent, was convicted and sentenced in California state court for murder, assault with a firearm, and robbery. His conviction became final on direct review in April 1992. Because Saffold’s conviction became final before AEDPA took effect, the federal limitations period began running on AEDPA’s effective date, April 24, 1996, giving Saffold one year from that date (in the absence of tolling) to file a federal habeas petition. A week before the federal deadline, Saffold filed a state habeas petition in the state trial court. The state trial court denied the petition. Five days later Saffold filed a further petition in the State Court of Appeal. That court denied his petition. And 4Vz months later Saffold filed a further petition in the California Supreme Court. That court also denied Saffold’s petition, stating in a single sentence that it did so “on the merits and for lack of diligence.” App. G to Pet. for Cert. 1. Approximately one week later, in early June 1998, Saffold filed a petition for habeas corpus in the Federal District Court. The District Court noted that AEDPA required Saf-fold to have filed his petition by April 24, 1997. It recognized that the statute gave Saffold extra time by tolling its limitations period while Saffold’s application for state collateral review was “pending” in the state courts. But the District Court decided that Saffold’s petition was “pending” only while the state courts were actively considering it, and that period did not include the intervals between the time a lower state court had denied Saffold’s petition and the time he had filed a further petition in a higher state court. In Saffold’s case those intervals amounted to five days (between the trial court and intermediate court) plus 4A months (between the intermediate court and Supreme Court), and those intervals made a critical difference. Without counting the intervals as part of the time Saffold’s application for state collateral review was “pending,” the tolling period was not long enough to make Saffold’s federal habeas petition timely. Hence the District Court dismissed the petition. The Ninth Circuit reversed. It included in the “pending” period, and hence in the tolling period, the intervals between what was, in effect, consideration of a petition by a lower state court and further consideration by a higher state court — at least assuming a petitioner’s request for that further higher court consideration was timely. Saffold v. Newland, 250 F. 3d 1262, 1266 (2001). It added that Saffold’s petition to the California Supreme Court was timely despite the 4V4 months that had elapsed since the California Court of Appeal decision. That is because the California Supreme Court had denied Saffold’s petition, not only because of “lack of diligence” but also “on the merits,” a circumstance that showed the California Supreme Court had “applied its untimeliness bar only after considering to some degree the underlying federal constitutional questions raised.” Id., at 1267. We granted certiorari. We now vacate the judgment and remand the case. II In most States, relevant state law sets forth some version of the following collateral review procedures. First, the prisoner files a petition in a state court of first instance, typically a trial court. Second, a petitioner seeking to appeal from the trial court’s judgment must file a notice of appeal within, say, 30 or 45 days after entry of the trial court’s judgment. See, e. g., Ala. Rule App. Proc. 4 (2001); Colo. App. Rule 4(b)(1) (2001); Ky. Rule Crim. Proc. 12.04(3) (2002). Third, a petitioner seeking further review of an appellate court’s judgment must file a further notice of appeal to the state supreme court (or seek that court’s discretionary review) within a short period of time, say, 20 or 30 days, after entry of the court of appeals judgment. See, e. g., Ala. Rule App. Proc. 5 (2001); Colo. Rev. Stat. § 13-4-108 (2001); Conn. Rule App. Proc. 80-1 (2002); Ky. Rule Civ. Proc. 76.20(2)(b) (2002). California argues here for a “uniform national rule” to the effect that an application for state collateral review is not “pending” in the state courts during the interval between a lower court’s entry of judgment and the timely filing of a notice of appeal (or petition for review) in the next court. Brief for Petitioner 36. Its rationale is that, during this period of time, the petition is not under court consideration. California’s reading of the word “pending,” however, is not consistent with that word’s ordinary meaning. The dictionary defines “pending” (when used as an adjective) as “in continuance” or “not yet decided.” Webster’s Third New International Dictionary 1669 (1993). It similarly defines the term (when used as a preposition) as “through the period of continuance . . . of,” “until the . . . completion of.” Ibid. That definition, applied in the present context, means that an application is pending as long as the ordinary state collateral review process is “in continuance” — i. e., “until the completion of” that process. In other words, until the application has achieved final resolution through the State’s post-conviction procedures, by definition it remains “pending.” California’s reading would also produce a serious statutory anomaly. A federal habeas petitioner must exhaust state remedies before he can obtain federal habeas relief. The statute makes clear that a federal petitioner has not exhausted those remedies as long as he maintains “the right under the law of the State to raise” in that State, “by any available procedure, the question presented.” 28 U. S. C. § 2254(c). We have interpreted this latter provision to require the federal habeas petitioner to “invok[e] one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U. S. 888, 845 (1999). The exhaustion requirement serves AEDPA’s goal of promoting “comity, finality, and federalism,” Williams v. Taylor, 529 U. S. 420, 436 (2000), by giving state courts “the first opportunity to review [the] claim,” and to “correct” any “constitutional violation in the first instance.” Boerckel, supra, at 844-845. And AEDPA’s limitations period — with its accompanying tolling provision — ensures the achievement of this goal because it “promotes the exhaustion of state remedies while respecting the interest in the finality of state court judgments.” Duncan v. Walker, 533 U. S. 167, 178 (2001). California’s interpretation violates these principles by encouraging state prisoners to file federal habeas petitions before the State completes a full round of collateral review. This would lead to great uncertainty in the federal courts, requiring them to contend with habeas petitions that are in one sense unlawful (because the claims have not been exhausted) but in another sense required by law (because they would otherwise be barred by the 1-year statute of limitations). It is therefore not surprising that no circuit court has interpreted the word “pending” in the manner proposed by California. Every Court of Appeals to consider the argument has rejected it. Melancon v. Kaylo, 259 F. 3d 401, 406 (CA5 2001); Payton v. Brigano, 256 F. 3d 405, 408 (CA6 2001); Hizbullahankhamon v. Walker, 255 F. 3d 65, 72 (CA2 2001); Nyland v. Moore, 216 F. 3d 1264, 1267 (CA11 2000); Swartz v. Meyers, 204 F. 3d 417, 421-422 (CA3 2000); Taylor v. Lee, 186 F. 3d 557, 560-561 (CA4 1999); Nino v. Galaza, 183 F. 3d 1003, 1005 (CA9 1999); Barnett v. LeMaster, 167 F. 3d 1321, 1323 (CA10 1999). Like these courts, we answer the first question in the affirmative. III Having answered the necessarily predicate question of how the tolling provision ordinarily treats applications for state collateral review in typical “appeal” States, we turn to the question whether this rule applies in California. California’s collateral review system differs from that of other States in that it does not require, technically speaking, appellate review of a lower court determination. Instead it contemplates that a prisoner will file a new “original” habeas petition. And it determines the timeliness of each filing according to a “reasonableness” standard. These differences, it is argued, require treating California differently from “appeal” States, in particular by not counting a petition as “pending” during the interval between a lower court’s determination and filing of another petition in a higher court. See, e. g., Brief for Criminal Justice Legal Foundation as Amicus Curiae 5-18. California’s “original writ” system, however, is not as special in practice as its terminology might suggest. As interpreted by the courts, California’s habeas rules lead a prisoner ordinarily to file a petition in a lower court first. In re Ramirez, 89 Cal. App. 4th 1312, 1316, 108 Cal. Rptr. 2d 229, 232 (2001) (appellate court “has discretion to refuse to issue the writ ... on the ground that application has not [first] been made ... in a lower court”); Harris v. Superior Court of Cal, 500 F. 2d 1124, 1126 (CAS 1974) (same); 6 B. Witkin & N. Epstein, California Criminal Law § 20, p. 540 (3d ed. 2000) (describing general policy that reviewing court will require application to have been made first in lower court). And a prisoner who files a subsequent and similar petition in another lower court (say, another trial court) will likely find consideration of that petition barred as successive. See, e. g., In re Clark, 5 Cal. 4th 750, 767-771, 855 P. 2d 729, 740-744 (1993). At the same time, a prisoner who files that same petition in a higher, reviewing court will find that he can obtain the basic appellate review that he seeks, even though it is dubbed an “original” petition. See In re Resendiz, 25 Cal. 4th 230, 250, 19 P. 3d 1171, 1184 (2001) (reviewing court grants substantial deference to lower court’s factual findings). Thus, typically a prisoner will seek habeas review in a lower court and later seek appellate review in a higher court — just as occurred in this case. The upshot is that California’s collateral review process functions very much like that of other States, but for the fact that its timeliness rule is indeterminate. Other States (with the exception of North Carolina, see Allen v. Mitchell, 276 F. 3d 183, 186 (CA4 2001)), specify precise time limits, such as 30 or 45 days, within which an appeal must be taken, while California applies a general “reasonableness” standard. Still, we do not see how that feature of California law could make a critical difference. As mentioned, AEDPA’s tolling rule is designed to protect the principles of “comity, finality, and federalism,” by promoting “the exhaustion of state remedies while respecting the interest in the finality of state court judgments.” Duncan, supra, at 178 (internal quotation marks omitted). It modifies the 1-year filing rule (a rule that prevents prisoners from delaying their federal filing) in order to give States the opportunity to complete one full round of review, free of federal interference. Inclusion of California’s “reasonableness” periods carries out that purpose in the same way, and to the same degree, as does inelusion of the more specific appellate filing periods prevalent in other States. And exclusion of those periods in California would undermine AEDPA’s statutory goals just as it would in those States. See Part II, supra. The fact that California’s timeliness standard is general rather than precise may make it more difficult for federal courts to determine just when a review application (i. e., a filing in a higher court) comes too late. But it is the State’s interests that the tolling provision seeks to protect, and the State, through its supreme court decisions or legislation, can explicate timing requirements more precisely should that prove necessary. Ordinarily, for purposes of applying a federal statute that interacts with state procedural rules, we look to how a state procedure functions, rather than the particular name that it bears. See Richfield Oil Corp. v. State Bd. of Equalization, 329 U. S. 69,72 (1946) (looking to function rather than “designation” that state law gives a state-court judgment for purposes of determining federal jurisdiction); Department of Banking of Neb. v. Pink, 317 U. S. 264, 268 (1942) (per cu-riam) (same). We find that California’s system functions in ways sufficiently like other state systems of collateral review to bring intervals between a lower court decision and a filing of a new petition in a higher court within the scope of the statutory word “pending.” The dissent contends that this application of the federal tolling provision to California’s “original writ” system “will disrupt the sound operation of the federal limitations period in at least 36 States.” Post, at 227 (opinion of Kennedy, J.). This is so, the dissent believes, because the prisoner is given two choices when his petition has been denied by the intermediate court: He can file a “petition for hearing” in the supreme court within 10 days, or he can file a “new petition” in the supreme court. In re Reed, 33 Cal. 3d 914, 918, and n. 2, 663 P. 2d 216, 217, and n. 2 (1983). Why is California different, the dissent asks, from “appeal” States that also give their supreme courts the power to entertain original habeas petitions? Won’t our interpretation of the federal tolling rule, as it applies to California, apply equally to those other States, meaning that even after the statutory time to appeal to the supreme court has expired, the federal limitations period may still be tolled because a prisoner might, at any time, file an original petition? The answer to this question is “no.” In “appeal” systems, the original writ plays a different role. As the Supreme Court of Idaho (one of the States cited by the dissent) explains: “The Supreme Court, having jurisdiction to review on appeal decisions of the district courts in habeas corpus proceedings . . . will not exercise its power ... to grant an original writ of habeas corpus, except in extraordinary cases.” In re Barlow, 48 Idaho 309, 282 P. 380 (1929). See also, e. g., Commonwealth v. Salzinger, 40 Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_origin	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. M. SWIFT & SONS, Inc., v. W. H. COE MFG. CO. No. 3394. Circuit Court of Appeals, First Circuit. March 2, 1939. Nathaniel Frucht, of Providence, R. I. (Max Schwartz, of Providence, R. I., on the brief), for appellant. Henry J. Lucke, of New York City (Herbert B. Barlow, of Providence, R. I., on the brief), for appellee. Before BINGHAM and WILSON, Circuit Judges, and PETERS, District Judge. WILSON, Circuit Judge. This is an appeal from a final decree of the District Court for the District of Rhode Island dismissing the plaintiff’s bill in equity alleging infringement of Patent No. 1,974,883 issued to Donald D. Swift on September 25, 1934, on an application filed June 29, 1933, and assigned by Donald D. Swift to the plaintiff by assignment duly recorded in the United States Patent Office. The M. Swift & Sons, Inc., is a Connecticut corporation, and the W. H. Coe Manufacturing Company is a Rhode Island corporation. These corporations will be hereinafter referred to as plaintiff and defendant respectively. The subject matter of the patent in suit relates to the manufacture of gold or other metallic media for the imprinting of letters on and the ornamentation of leather articles, book backs and sides, cloth and other like surfaces. The imprinting art has from time to time developed new materials, both natural and synthetic, suitable for book covers, bill folds and note books, but many of these new materials could not be successfully imprinted with genuine gold leaf because of the nature of the material. This increase in new material for such uses created new problems, which the prior practice did not solve, and which the patentee Swift claims his invention provided a simple and effective solution. The art of beating gold into leaf form is very old, but the imprints of gold leaf on certain materials, as leather, cloth and other materials, has increased with the modern development of the industry. The application of genuine gold leaf to new materials has resulted in many new problems. Owing to the thinness of the gold leaf when drawn out for imprinting, pinholes or punctures develop in the leaf, due to the metal being worked beyond its elastic limit. Another defect would sometimes appear, known as “foxy gold”, which shows a reddish tinge and appeared like a stain on the surface of the leaf. Prior to 1891, when Patent No. 461,-861 was issued to Mr. Coe, the founder of the defendant corporation, the process used by the gold leaf industry had the disadvantages of loss' of time, and needless consumption of gold leaf for each operation. The Coe patent was the first major step for overcoming these disadvantages. This patent covered a machine for applying gold leaf by cutting the leaf into strips and imprinting the gold leaf strips under a heated die upon sized material. The Coe reissue patent No. 11,510, based on the original patent and issued in 1893, laid the basis for gold leaf strips in “roll form” that was suitable for ordinary commercial uses, but difficulty was still experienced when applying the gold leaf to smooth or uneven surfaces. Coe recognized these difficulties when he applied for his patent No. 548,113, in which he states in his application: “I have found in practice that such a roll is not adapted for use in applying the film to the surface of glass upon which a comparatively weak water sizing must be employed, rendering the withdrawal of the film from the strip and its proper adhesion to the glass very uncertain and also that the said roll is not adapted for applying the film to uneven surfaces, for the reason that the film will only be attached to the higher points of the said surface.” The next important step in advance in the art was made in 1915, when one Davis obtained a patent which forms the basis for the present day metallic strips. It provided for a paper carrier, yellow beeswax on the carrier, gold leaf next to the yellow beeswax and a clear varnish sizing applied on the outside of the gold leaf. Between 1915 and the application by Donald D. Swift for his patent on June 29, 1933, the use of imprinted gold leaf had increased, and various types of imitation leathers and cloths came into use as materials on which to imprint gilt letters, figures and ornamental designs. It was difficult and sometimes impossible to imprint on the new imitation leathers and some of the better synthetic leathers, and even genuine leather, if the surface were rough and pebbly, which caused the very thin gold leaf to break and separate. This expansion of the art created an incidental and companion art, which involved the use of low cost imitation gold, silver, and the use of powdered bronze as a substitute for genuine gold leaf. It was soon discovered, however, that bronze powder tarnished very rapidly and that imitation gold could only be used on cheap articles. Manufacturers soon realized that it was necessary to devise some way for the bronze to retain its lustre for longer periods of time. The first attempts to remedy this defect used various chalks, clays and other separators by introducing them into the outer varnish sizing to act as a layer between the bronze powder and the article to be imprinted. Two patents were issued in 1925, viz.: The Boyd Patent, No. 1,515,722, in which starch was used as the separator^ and the Grupe Patent, No. 1,515,676, in which powdered chalk was used for the same purpose over bronze powder, both of which were held invalid. Peerless Roll Leaf Co., Inc., v. Lange, 3 Cir., 20 F.2d 801. The American Embossing Foil Company used an oxide separator in place of the starch and chalk of Boyd and Grupe, or a low cost yellow ochre. However, the use of bronze powder as the metallic leaf and a separator did not obviate the defect and it retained its lustre a very short time as compared with the use of genuine gold as the metallic leaf. This was the state of the prior art when the alleged Swift invention was placed on the market. The prior development of the roll carrier by Coe, or by the Peerless Roll Leaf Company, had emphasized the defects in the use of gold leaf, which have already been pointed out. Donald D. Swift in 1931 began to experiment with a view to correcting the inherent defects of genuine gold when used in the art as a “metallic leaf” in order to obtain a finished product of uniform color, texture and appearance; and in the course of his experiments, which covered a period of nearly two years, he discovered that yellow ochre in the proper amount, when mixed with the sizing, furnished a good bed for the genuine gold metallic leaf. With the assistance of .one Robertson, a former employee of the American Embossing Foil Company, who was skilled in the mixing of pigments in the sizing over bronze .powder, they discovered that by the use of yellow ochre mixed with the outer sizing, they were able to use genuine gold leaf successfully on much of the new material which had come into use since the turn of the century, and in June, 1933, Swift' applied for his patent now in suit. The specification of his patent describes the manufacture of the product as follows: “In manufacturing the novel product, a carrier strip 1 of paper or other' suitable flexible material is provided, glassine paper being preferred, and a coating 2 of a combined adherent and burnishing material placed on the face thereof, the preferred material being wax, such as beeswax. Over this coating a layer 3 of gold or metallic leaf is applied, and a final coat 4 consisting of an intimate mixture of sizing 5, such as French varnish, and a filler material 6, the most suitable material being yellow ochre.” The only advance over the prior art was the use of yellow ochre in the outer sizing. Donald D. Swift’s application for a patent contained seven claims on which his patent was based, but subsequent to the filing of the defendant’s answer the plaintiff elected to rely on Claims 3 and 5 in the trial in the District Court. It appears that the plaintiff’s invention as stated in Claim 3 consisted of a carrier paper, a beeswax covering, genuine gold leaf with an outer sizing with which was mixed a “substantial” amount of yellow ochre. Claim 3 reads as follows: “A metallic sheet comprising a carrier strip, a coat of releasable composition thereon, a layer of metallic leaf on said coat, and an outermost layer comprising sizing containing a substantial amount of comminuted particles of substantially the same color as the color of the metallic leaf.” This claim obviously is limited to the mingling with the sizing comminuted particles having substantially the same color as the color of the metallic leaf. Claim 5, the only other claim in suit, is as follows: “A gold leaf comprising a carrier strip, a coat of wax thereon, a layer of gold leaf on said coat, and an outermost layer of sizing containing a substantial amount of comminuted yellow ochre.” Under these two claims, the plaintiff contends that the patent describes a new product not known or used before in the art and which constituted an improvement over the clear sized gold leaf described in the patent to Davis in 1915. The validity of the plaintiff’s patent is attacked by the defendant chiefly on two grounds: (1) that it was insufficiently described in the patent; (2) that it was anticipated in the prior art, either of which, if sustained, is fatal to the validity of the patent. Sec. 4888, R.S., 35 U.S.C.A. § 33, requires that an invention to be valid must be clearly, concisely and exactly described so that anyone skilled in the art can use it by determining the combination, if made up of two or more constituents and the relative and proportionate parts of each; but the only description in the Swift patent of the amount of yellow ochre to be mixed with the sizing was a “substantial” amount without specifying the exact amount of the yellow ochre to be used in the combination and left that to be determined by experiments. The District Court, under R.S. § 4888, held all the claims of the patent in issue, including 3 and 5, were invalid for insufficiency of disclosure and for lack of invention and dismissed the bill. The District Court found, since the patent does not specify the amount of yellow ochre used in the outer sizing, unless an “extender” is used explaining the amount of yellow ochre needed, that therefore “upon a reading, one skilled in the art could not make and use it; could not obtain the desired results; [and] could not know the proper proportions [of yellow ochre] to use without experimentation.” [22 F.Supp. 527, 530.] However, it is urged that the defense of insufficiency of description of the patent was not before the court, since it was not raised in the answer. In a suit in equity, a defense not set up in the answer will not he considered. No doubt this defense, if relied on, under Sec. 4920, R.S., 35 U.S.C.A. § 69, should have been set up in the answer. Jennings v. Pierce, Fed. Cas. No. 7283; 48 C.J., page 350, Sec. 564. However, the plaintiff’s witness, Donald D. Swift, the alleged patentee, testified that he did not know and could not give the proportions of yellow ochre used to produce the results he claimed for his invention. If evidence had been offered by the defendant and had been objected to by the plaintiff tending to show that the amount of yellow ochre in the outer sizing was not concisely and exactly stated in his patent, it would have been inadmissible. But no objection was made to the statement by Swift, the patentee, which appears in his own testimony as follows: “In order to vary the pigment in the outer sizing in accordance with the tone of the gold of the metal layer, in order to obtain the invention of the patent in suit, there is still the additional factor, namely, that the proportion of that yellow ochre in the outer sizing must be in sufficient quantity to carry out those results, namely to compensate for the irregularities of the metal, compensate for the irregularities of the product to be stamped, and the other factors which I mentioned.” The plaintiff’s expert, Wickwire, also testified: “The art of gold stamping, particularly with gold leaf, is far from an exact science. The different materials to be stamped upon require different methods. Different manipulations require also a good deal of skill. We have never — that is the Peerless Roll Leaf — have never been able to find any one combination of products' in a roll leaf which can be used with, great success universally on all materials to be stamped on. It is therefore, necessary at the present' time, and has always been necessary, in my experience with the company, to depend and rely upon our salesmen and representatives for practical and actual contact with the jobs which our customers were to stamp and largely to recommend different and specific sizings and other properties of leaf which will best suit the conditions of the job to be done by the customer.” According to Swift, the irregularities of the product to be stamped are determined primarily by the material on which the stamping is to be done. As testified by him: “When a stamper wishes to stamp different material, for instance, the different materials that were shown this morning, like regular leather, artificial leather, buckram, foil and materials .of that kind, the stamper must know in advance what kind of leaf he wants in order to obtain the results which are obtained in accordance with the patent here in suit.”. Further, “the sizing must be in correct balance to meet the requirements of the stamper. In order to have the proper roll leaf in accordance with this patent, the stamper must know what material he is going to use it with in order to carry out my invention.” The patent in suit is wholly silent as to any statement of quantity or proportion of yellow ochre in the outer sizing of the plaintiff’s metallic leaf product. This, also, is admitted by plaintiff in his cross examination : “I am familiar with the patent which is here involved in this suit. I have read it. The patent does not point out definite proportions of yellow ochre to be used in the outer sizing to obtain the results I enumerated.” In recross examination he stated: “The amount of yellow ochre necessary is such that will co-operate with the gold to compensate for the irregularities in the leaf or to make the product more salable; to co-operate with the leaf in compensating for the transparencies of the leaf and to compensate, for the irregularities of the material to be imprinted. That is the best answer -I can give you. The entire patent indicates the results obtained. I have already stated that the patent does not disclose any definite proportion. Without this extender and using yellow ochre only, you merely get the color of yellow ochre when the thing is viewed before it is stamped. The ribbon leaf under my patent containing a certain proportion of yellow ochre without an extender has some yellow color of some kind. To get a color other than yellow, you have to use this extender. The use of that extender is under this patent. The extender may be titanium oxide. I don’t believe that titanium oxide is mentioned in the patent,” It is clear from the evidence that different materials require different proportions of yellow ochre in the outer sizing of the gold leaf; and since under Sec. 4888, R.S., it is essential to the validity of the plaintiff’s patent that the amount of yellow ochre for different materials be disclosed correctly and accurately to the trade, only by such an extender, the contents of which the District Court did not require the plaintiff to disclose on the ground that it was a trade secret — the inference being that the proportionate amount of yellow ochre necessary in any case is made to appear therein — can the charge • of insufficiency of the description of the patent be met. The admissions of the plaintiff made it plain that it is impossible to set out even a typical detailed specification for effecting the patent in suit for all materials to be stamped. The subject matter of the invention appears clearly to come within the purview of Chief Justice Taney’s classic ruling in Wood v. Underhill, S How. 1, at page 5, 12 L.Ed. 23: “But when the specification of a new composition of matter gives only the names of the substances which are to be mixed together, without stating any relative proportion, undoubtedly it would be the duty of the court to declare the patent to be void. And the same rule would prevail where it was apparent that the proportions were stated ambiguously and vaguely. For in such cases it would be evident on the face of the specification, that no one could use the invention without first ascertaining by experiment the exact proportion of the different ingredients required to produce the result intended to be obtained. * * * And if, from the nature and character of the ingredients to be used, they are not susceptible of such exact description, the inventor is not entitled to a patent.” In Tyler v. Boston, 7 Wall. 327, 330, 19 L.Ed. 93, the court said: “Now a machine which consists of a combination of devices is a subject of invention, and its effects may be calculated a priori, while a discovery of a new substance by means of chemical combinations of known materials is empirical and discovered by experiment. Where a patent is claimed for such a discovery, it should state the component parts of the new manufacture claimed with clearness and precision, and not leave the person attempting to use the discovery to find it out ‘by experiment/ ” This is also true if there is a physical combination of materials upon the exact proportions of which the success of the alleged patent depends. In Howard v. Detroit Stove Works, 150 U.S. 164, 14 S.Ct. 68, 69, 37 L.Ed. 1039: “The description of the invention is vague and indefinite, and is not sufficient to enable those skilled in the art to construct it without experiment so as to attain the desired result. The width of the flange is a mere matter of degree, and if at the time of the invention the proper width of the flange to accomplish the purpose desired was known, then the patentee made no invention. If the proper width was not known at that time, it should have been described in the patent; but, as the patent is silent on this point, except that the drawings indicate that the width of the outside rim of the grate is the proper width for the flange, it can hardly be said under such circumstances that the vague and indef-elevates it to the dignity of invention, for it has been shown that the stoves covered by the patents just discussed also had each a flange which performed the same function, although not specifically claimed in the patents. We think it is obviously apparent that the patent of appellants’ testator has not only been anticipated, but that it is wanting in all of the elements of patentable novelty.” inite description of the width of the flange And in the Incandescent Lamp Patent, 159 U.S. 465, 16 S.Ct. 75, 78, 40 L.Ed. 221, the court said: “It is required by Rev.St., § 4888, that the application shall contain ‘a written description of the device, and of the manner and process of making, constructing, compounding, and using it in such full, clear, concise, and exact term? as to enable any person, skilled in the art or science to which it appertains or with which it is most nearly connected, to make, construct, compound, and use the same.’ The object of this is to apprise the public of what the patentee claims as his own, the courts of what they are called upon to construe, and competing manufacturers and dealers of exactly what they are bound to avoid. Grant v. Raymond, 6 Pet. 218, 247 [8 L.Ed. 376], If the description be so vague and uncertain that no one can tell, except by independent experiments, how to construct the patented device, the patent is void.” Also see H. Ward Leonard, Inc., v. Maxwell Sales Corp., 2 Cir., 252 F. 584, 590; Rohm et al. v. Martin Dennis Co., 3 Cir., 263 F. 388. Mr. Justice Brandéis, in speaking for the Supreme Court in Permutit Company v. Graver Corp., 284 U.S. 52, at page 60, 52 S.Ct. 53, at page 55, 76 L.Ed. 163, said: “The statute requires the patentee not only to explain the principle of his apparatus and to describe it in such terms that any person skilled in the art to which it appertains may construct and use it after the expiration of the patent, but also to inform the public during the life of the patent of the limits of the monopoly asserted, so that it may be known which features may be safely used or manufactured without a license and which may not.” While the plaintiff in support of its contention that the language of Claims 3 and 5 are sufficient to comply with Sec. 4888, R.S., cited the case of Minerals Separation Syndicate v. Hyde, 242 U.S. 261, 270, 271, 37 S.Ct. 82, 61 L.Ed. 286, which on first blush might seem to sustain his contentions, an examination of the cases cited in the opinion in that case by the court at once indicates that it was not the intention of the court to overrule the cases above cited, or to disregard the clear requirements of R.S., § 4888; and an examination of the opinion and the evidence in the case discloses that there were many investigators at work in that case on the preliminary investigations, which resulted in that patent. The court, in its opinion on page 271, 37 S.Ct. on page 86, said: “Yet the investigations preceding were so informing that this final step was not a long one, and the patent must be confined to the results obtained by the use of oil within the proportions often described in the testimony’ and in the claims of the patent as ‘critical proportions/ ‘amounting to a fraction of 1 per cent on the ore/ and therefore the decree of this court will be that the patent is valid * * There was no such definiteness in the instant case as to the amount of yellow ochre to be used in the outer sizing of the plaintiff’s alleged patent, nor any limits within which the amount of yellow ochre must be confined, since the patentee, Swift, admitted in his cross examination that he could not give any percentage of yellow ochre necessary to secure the desired results. It could, therefore, only be determined by experimentation. In Ives et al. v. Hamilton, Ex’r, 92 U.S. 426, 431, 23 L.Ed. 494, cited in the Minerals Separation case, there were diagrams of the patent to assist one skilled in the art in the use of the patent; and in Mowry v. Whitney, 14 Wall. 620, 20 L.Ed. 860, there was a maximum and a minimum degree of heat to be applied to a wheel, which, in view of the specifications, was held to be a sufficient description of the patent. The plaintiff in its reply memorandum also cited a case in the Eighth Circuit recently decided, General Electric Supply Corp. v. Maytag Company, 100 F.2d 218, where it claims this question was decided; but the quotation from the opinion in that case shows that, “although the word ‘substantial’ was used in describing the patent, it must be considered in connection with drawings and specifications and the earlier devices; and so considered we think they were sufficient, citing Eibel Process Co. v. Paper Co., 261 U.S. 45 [43 S.Ct. 322, 67 L.Ed. 523].” If manufacturers and competitors of the pla-intiff by experiment or analysis have found the amount of yellow ochre necessary to make the patent as described available for commercial use, and have put it on the market in the convenient form of a metallic roll in which the outer sizing is mixed with some material of substantially the same color as the metallic leaf, or with ■comminuted yellow ochre in a “substantial” amount and sufficient to achieve the results claimed by Swift for his alleged invention, any unusual acceptance and success of the metallic roll manufactured and sold by the plaintiff or its competitors to the trade is hardly indicative of a new and novel discovery by the patentee, if the patent is invalid for want of sufficiency in the description to enable one skilled in the art to use it without experimentation. Extensive commercial use or success is without any weight to prove invention, if the alleged invention is not sufficiently described in the patent. Where there is no invention the extent of the use is of no importance. Keene v. New Idea Spreader Co., 6 Cir., 231 F.‘701, 711; Boss Mfg. Co. v. Thomas, 8 Cir., 182 F. 811, 814; McClain v. Ortmayer, 141 U.S. 419, 429, 12 S.Ct. 76, 35 L.Ed. 800; Adams v. Bellaire Stamping Company, 141 U.S. 539, 542, 12 S.Ct. 66, 35 L.Ed. 849. A determination of the issue of infringement by the defendant is not essential to a decision of this case, as an invalid patent can not be infringed;_ neither is it necessary to consider the plaintiff’s other assignments of error, or the defense of anticipation, as a patent which lacks validity for want of a sufficient description 'is not affected by anticipation. The decree of the District Court is affirmed with costs. 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:
sc_casedisposition	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. BREARD v. ALEXANDRIA. No. 399. Argued March 7-8, 1951. Decided June 4, 1951. E. Russell Shockley argued the cause for appellant. With him on the brief was J. Harry Wagner, Jr. Frank H. Peterman argued the cause and filed a brief for appellee. Briefs of amici curiae supporting appellant were filed by Robert E. ‘Coulson and Forbes D. Shaw for the National Association of Magazine Publishers, Inc.; Clark M. Clifford for the P. F. Collier & Son Corporation et al.; and J. M. George for the National Association of Direct Selling Companies. Mr. Justice Reed delivered the opinion of the Court. The appellant here, Jack H. Breard, a regional representative of Keystone Readers Service, Inc., a Pennsylvania corporation, was arrested while going from door to door in the City of Alexandria, Louisiana, soliciting subscriptions for nationally known magazines. The arrest was solely on the ground that he had violated an ordinance because he had not obtained the prior consent of the owners of the residences solicited. Breard, a resident of Texas, was in charge of a crew of solicitors who go from house to house in the various cities and towns in the area under Breard’s management and solicit subscriptions for nationally known magazines and periodicals, including among others the Saturday Evening Post, Ladies’ Home Journal, Country Gentleman, Holiday, Newsweek, American Home, Cosmopolitan, Esquire, Pic, Parents, Today’s Woman and True. These solicitors spend only a few days in each city, depending upon its size. Keystone sends a card from its home office to the new subscribers acknowledging receipt of the subscription and thereafter the periodical is forwarded to the subscriber by the publisher in interstate commerce through the mails. The ordinance under which the arrest was made, so far as is here pertinent, reads as follows: “Section 1. Be it Ordained by the Council of the City of Alexandria, Louisiana, in legal session convened that the practice of going in and upon private residences in the City of Alexandria, Louisiana by solicitors, peddlers, hawkers, itinerant merchants or transient vendors of merchandise not having been requested or invited so to do by the owner or owners, occupant or occupants of said private residences for the purpose of soliciting orders for the sale of goods, wares and merchandise and/or disposing of and/or peddling or hawking the same is declared to be a nuisance and punishable as such nuisance as a misdemeanor.” It, or one of similar import, has been on the statute books of Alexandria for many years. It is stipulated that: “Such ordinance was enacted by the City Council, among other reasons, because some householders complained to those in authority that in some instances, for one reason or another, solicitors were undesirable or discourteous, and some householders complained that, whether a solicitor was courteous or not, they did not desire any uninvited intrusion into the privacy of their home.” The protective purposes of the ordinance were underscored by the Supreme Court of Louisiana in its opinion. 217 La. 820, at 825-828, 47 So. 2d 553, at 555. At appellant’s trial for violation of the ordinance, there was a motion to quash on the ground that the ordinance violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution; that it violates the Federal Commerce Clause; and that it violates the guarantees of the First Amendment of freedom of speech and of the press, made applicable to the states by the Fourteenth Amendment to the Constitution of the United States. Appellant’s motion to quash was overruled by the trial court and he was found guilty and sentenced to pay a $25 fine or serve 30 days in jail. The Supreme Court of Louisiana affirmed appellant’s conviction and expressly rejected the federal constitutional objections. 217 La. 820, 47 So. 2d 553. The case is here on appeal, 28 U. S. C. § 1257; Jamison v. Texas, 318 U. S. 413. All declare for liberty and proceed to disagree among themselves as to its true meaning. There is equal unanimity that opportunists, for private gain, cannot be permitted to arm themselves with an acceptable principle, such as that of a right to work, a privilege to engage in interstate commerce, or a free press, and proceed to use it as an iron standard to smooth their path by crushing the living rights of others to privacy and repose. This case calls for an adjustment of constitutional rights in the light of the particular living conditions of the time and place. Everyone cannot have his own way and each must yield something to the reasonable satisfaction of the needs of all. It is true that the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers for all kinds of salable articles. When such visitors are barred from premises by notice or order, however, subsequent trespasses have been punished. Door-to-door canvassing has flourished increasingly in recent years with the ready market furnished by the rapid concentration of housing. The infrequent and still welcome solicitor to the rural home became to some a recurring nuisance in towns when the visits were multiplied. Unwanted knocks on the door by day or night are a nuisance, or worse, to peace and quiet. The local retail merchant, too, has not been unmindful of the effective competition furnished by house-to-house selling in many lines. As a matter of business fairness, it may be thought not really sporting to corner the quarry in his home and through his open door put pressure on the prospect to purchase. As the exigencies of trade are not ordinarily expected to have a higher rating constitutionally than the tranquillity of the fireside, responsible municipal officers have sought a way to curb the annoyances while preserving complete freedom for desirable visitors to the homes. The idea of barring classified salesmen from homes by means of notices posted by individual householders was rejected early as less practical than an ordinance regulating solicitors. The Town of Green River, Wyoming, undertook in 1931 to remedy by ordinance the irritating incidents of house-to-house canvassing for sales. The substance of that ordinance, so far as here material, is the same as that of Alexandria, Louisiana. The Green River ordinance was sustained by the Circuit Court of Appeals of the Tenth Circuit in 1933 against an attack by a nonresident corporation, a solicitor of orders, through a bill for an injunction to prohibit its enforcement, on the federal constitutional grounds of interference with interstate commerce, deprivation of property without due process of law, and denial of the equal protection of the laws. Town of Green River v. Fuller Brush Co., 65 F. 2d 112. No review of that decision was sought. An employee of the Brush Company challenged the same ordinance again in the courts of Wyoming in 1936 on a prosecution by the town for the misdemeanor of violating its terms. On this attack certain purely state grounds were relied upon, which we need not notice, and the charges of violation of the Federal Constitution were repeated. The ordinance was held valid by the Supreme Court of Wyoming. Town of Green River v. Bunger, 50 Wyo. 52, 58 P. 2d 456. Due Process. — On appeal to this Court, appellant urged particularly the unconstitutionality under the Fourteenth Amendment Due Process Clause of such unreasonable restraints as the Green River ordinance placed on “the right to engage in one of the common occupations of life,” citing, inter alia, New State Ice Co. v. Liebmann, 285 U. S. 262, 278, and Adams v. Tanner, 244 U. S. 590. He also relied upon the alleged prohibition of interstate commerce under the guise of a police regulation. Here this Court dismissed for want of a substantial federal question. 300 U. S. 638. For an answer to the argument that the ordinance denied due process because of its unreasonable restraint on the right to engage in a legitimate occupation, this Court cited three cases: Gundling v. Chicago, 177 U. S. 183 ; Western Turf Association v. Greenberg, 204 U. S. 359 ; and Williams v. Arkansas, 217 U. S. 79. The opinions of this Court since this Green River case have not given any ground to argue that the police power of a state over soliciting has constitutional infirmities under the due process principle embodied in the concept of freedom to carry on an inoffensive trade or business. Decisions such as Liebmann and Tanner, supra, invalidating legislative action, are hardly in point here. The former required a certificate of convenience and necessity to manufacture ice, and the latter prohibited employment agencies from receiving remuneration for their services. The Green River ordinance can be characterized as prohibitory of appellant’s legitimate business of obtaining subscriptions to periodicals only in the limited sense of forbidding solicitation of subscriptions by house-to-house canvass without invitation. All regulatory legislation is prohibitory in that sense. The usual methods of solicitation — radio, periodicals, mail, local agencies — are open. Furthermore, neither case is in as strong a position today as it was when Bunger appealed. See Olsen v. Nebraska, 313 U. S. 236, 243 et seq., and Lincoln Union v. Northwestern Co., 335 U. S. 525, 535. The Constitution’s protection of property rights does not make a state or a city impotent to guard its citizens against the annoyances of life because the regulation may restrict the manner of doing a legitimate business. The question of a man’s right to carry on with propriety a standard method of selling is presented here in its most appealing form — an assertion by a door-to-door solicitor that the Due Process Clause of the Fourteenth Amendment does not permit a state or its subdivisions to deprive a specialist in door-to-door selling of his means of livelihood. But putting aside the argument that after all it is the commerce, i. e., sales of periodicals, and not the methods, that is petitioner’s business, we think that even a legitimate occupation may be restricted or prohibited in the public interest. See the dissent in New State Ice Co. v. Liebmann, 285 U. S. 262, 280, 303. The problem is legislative where there are reasonable bases for legislative action. We hold that this ordinance is not invalid under the Due Process Clause of the Fourteenth Amendment. Commerce Clause. — Nor did this Court in Bunger consider the Green River ordinance invalid under the Commerce Clause as an unreasonable burden upon or an interference with interstate commerce. As against the cases cited in Bunger’s behalf, this Court relied upon Asbell v. Kansas, 209 U. S. 251, 254, 255 (allowing Kansas to have its own inspection for cattle imported, into the state, except for immediate slaughter); Savage v. Jones, 225 U. S. 501, 525 (allowing a state to regulate the sale and require a formula for stock feeds); Hartford Indemnity Co. v. Illinois, 298 U. S. 155, 158 (upholding an Illinois statute requiring commission merchants to keep record of out-of-state consignments and obtain a license and give a bond). Appellant does not, of course, argue that the Commerce Clause forbids all local regulation of solicitation for interstate business. “Under our constitutional system, there necessarily remains to the States, until Congress acts, a wide range for the permissible exercise of power appropriate to their territorial jurisdiction although interstate commerce may be affected. . . . States are thus enabled to deal with local exigencies and to exert in the absence of conflict with federal legislation an essential protective power.” Such state power has long been recognized. Appellant argues that the ordinance violates the Commerce Clause “because the practical operation of the ordinance, as applied to appellant and others similarly situated, imposes an undue and discriminatory burden upon interstate commerce and in effect is tantamount to a prohibition of such commerce.” The attempt to secure the householder’s consent is said to be too costly and the results negligible. The extent of this interstate business, as stipulated, is large. Appellant asserts that Green River v. Bunger, supra, is inapplicable to the commerce issue, although the point was made and met, because the effect of the ordinance at that date, 1936, upon commerce was “incidental” and because it was decided “before the widespread enactment of Green River Ordinances and before their actual and cumulative effect upon interstate commerce could possibly be forecast.” It is urged that our recent cases of Hood & Sons v. Du Mond, 336 U. S. 525, and Dean Milk Co. v. City of Madison, 340 U. S. 349, demonstrate that this Court will not permit local interests to protect themselves against out-of-state competition by curtailing interstate business. It was partly because the regulation in Dean Milk Co. discriminated against interstate commerce that it was struck down. “In thus erecting an economic barrier protecting a major local industry against competition from without the State, Madison plainly discriminates against interstate commerce. This it cannot do, even in the exercise of its unquestioned power to protect the health and safety of its people, if reasonable nondiscriminatory alternatives, adequate to conserve legitimate local interests, are available.” Id. at 354. Nor does the clause as to alternatives apply to the Alexandria ordinance. Interstate commerce itself knocks on the local door. It is only by regulating that knock that the interests of the home may be protected by public as distinct from private action. Likewise in Hood & Sons v. Du Mond it was the discrimination against out-of-state dealers that invalidated the order refusing a license to buy milk to an out-of-state distributor. Where no discrimination existed, in a somewhat similar situation, we upheld the state regulation as a permissible burden on commerce. See in accord, Panhandle Eastern Pipe Line Co. v. Michigan Pub. Serv. Comm’n, 341 U. S. 329, 336. We recognize the importance to publishers of our many periodicals of the house-to-house method of selling by solicitation. As a matter of constitutional law, however, they in their business operations are in no different position so far as the Commerce Clause is concerned than the sellers of other wares. Appellant, as their representative or in his own right as a door-to-door canvasser, is no more free to violate local regulations to protect privacy than are other solicitors. As we said above, the usual methods of seeking business are left open by the ordinance. That such methods do not produce as much business as house-to-house canvassing is, constitutionally, immaterial and a matter for adjustment at the local level in the absence of federal legislation. Cf. Prudential Ins. Co. v. Benjamin, 328 U. S. 408. Taxation that threatens interstate commerce with prohibition or discrimination is bad, Nippert v. Richmond, 327 U. S. 416, 434, but regulation that leaves out-of-state sellers on the same basis as local sellers cannot be invalid for that reason. While taxation and licensing of hawking or peddling, defined as selling and delivering in the state, has long been thought to show no violation of the Commerce Clause, solicitation of orders with subsequent interstate shipment has been immune from such an exaction. These decisions have been explained by this Court as embodying a protection of commerce against discrimination made most apparent by fixed-sum licenses regardless of sales. Where the legislation is not an added financial burden upon sales in commerce or an exaction for the privilege of doing interstate commerce but a regulation of local matters, different considerations apply. We think Alexandria’s ordinance falls in the classification of regulation. The economic effects on interstate commerce in door-to-door soliciting cannot be gainsaid. To solicitors so engaged, ordinances such as this compel the development of a new technique of approach to prospects. Their local retail competitors gain advantages from the location of their stores and investments in their stock but the solicitor retains his flexibility of movement and freedom from heavy investment. The general use of the Green River type of ordinance shows its adaptation to the needs of the many communities that have enacted it. We are not willing even to appraise the suggestion, unsupported in the record, that such wide use springs predominantly from the selfish influence of local merchants. Even before this Court’s decision in Martin v. Struthers, 319 U. S. 141, holding invalid, when applied to a person distributing leaflets advertising a religious meeting, an ordinance of the City of Struthers, Ohio, forbidding the summoning of the occupants of a residence to the door, our less extreme cases had created comment. See Chafee, Free Speech in the United States (1941), 406. To the city council falls the duty of protecting its citizens against the practices deemed subversive of privacy and of quiet. A householder depends for protection on his city board rather than churlishly guarding his entrances with orders forbidding the entrance of solicitors. A sign would have to be a small billboard to make the differentiations between the welcome and unwelcome that can be written in an ordinance once cheaply for all homes. “The police power of a state extends beyond health, morals and safety, and comprehends the duty, within constitutional limitations, to protect the well-being and tranquility of a community.” When there is a reasonable basis for legislation to protect the social, as distinguished from the economic, welfare of a community, it is not for this Court because of the Commerce Clause to deny the exercise locally of the sovereign power of Louisiana. Changing living conditions or variations in the experiences or habits of different communities may well call for different legislative regulations as to methods and manners of doing business. Powers of municipalities are subject to control by the states. Their judgment of local needs is made from a more intimate knowledge of local conditions than that of any other legislative body. We cannot say that this ordinance of Alexandria so burdens or impede's interstate commerce as to exceed the regulatory powers of that city. First Amendment. — Finally we come to a point not heretofore urged in this Court as a ground for the invalidation of a Green River ordinance. This is that such an ordinance is an abridgment of freedom of speech and the press. Only the press or oral advocates of ideas could urge this point. It was not open to the solicitors for gadgets or brushes. The point is not that the press is free of the ordinary restraints and regulations of the modern state, such as taxation or labor regulation, referred to above at n. 24, but, as stated in appellant’s brief, “because the ordinance places an arbitrary, unreasonable and undue burden upon a well established and essential method of distribution and circulation of lawful magazines and periodicals and, in effect, is tantamount to a prohibition of the utilization of such method.” Regulation necessarily has elements of prohibition. Thus the argument is not that the moneymaking activities of the solicitor entitle him to go “in or upon private residences” at will, but that the distribution of periodicals through door-to-door canvassing is entitled to First Amendment protection. This kind of distribution is said to be protected because the mere fact that money is made out of the distribution does not bar the publications from First Amendment protection. We agree that the fact that periodicals are sold does not put them beyond the protection of the First Amendment. The selling, however, brings into the transaction a commercial feature. The First and Fourteenth Amendments have never been treated as absolutes. Freedom of speech or press does not mean that one can talk or distribute where, when and how one chooses. Rights other than those of the advocates are involved. By adjustment of rights, we can have both full liberty of expression and an orderly life. The case that comes nearest to supporting appellant’s contention is Martin v. Struthers, 319 U. S. 141. There a municipal ordinance forbidding anyone summoning the occupants of a residence to the door to receive advertisements was held invalid as applied to the free distribution of dodgers “advertising a religious meeting.” Attention was directed in n. 1 of that case to the fact that the ordinance was not aimed “solely at commercial advertising.” It was said: “The ordinance does not control anything but the distribution of literature, and in that respect it substitutes the judgment of the community for the judgment of the individual householder.” Pp. 143-144. The decision to release the distributor was because: “Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved.” Pp. 146-147. There was dissent even to this carefully phrased application of the principles of the First Amendment. As no element of the commercial entered into this free solicitation and the opinion was narrowly limited to the precise fact of the free distribution of an invitation to religious services, we feel that it is not necessarily inconsistent with the conclusion reached in this case. In Marsh v. Alabama, 326 U. S. 501, and Tucker v. Texas, 326 U. S. 517, a state was held by this Court unable to punish for trespass, after notice under a state criminal statute, certain distributors of printed matter, more religious than commercial. The statute was held invalid under the principles of the First Amendment. In the Marsh case it was a private corporation, in the Tucker case the United States, that owned the property used as permissive passways in company and government-owned towns. In neither case was there dedication to public use but it seems fair to say that the permissive use of the ways was considered equal to such dedication. Such protection was not extended to colporteurs offending against similar state trespass laws by distributing, after notice to desist, like publications to the tenants in a private apartment house. Hall v. Commonwealth, 188 Va. 72, 49 S. E. 2d 369, appeal, after conviction, on the ground of denial of First Amendment rights, dismissed on motion of ap-pellee to dismiss because of lack of substance in the question, 335 U. S. 875, 912; see n. 2, supra. Since it is not private individuals but the local and federal governments that are prohibited by the First and Fourteenth Amendments from abridging free speech or press, Hall v. Virginia does not rule a conviction for trespass after notice by ordinance. However, if as we have shown above, p. 640, a city council may speak for the citizens on matters subject to the police power, we would have in the present prosecution the time-honored offense of trespass on private grounds after notice. Thus the Marsh and Tucker cases are not applicable here. This makes the constitutionality of Alexandria’s ordinance turn upon a balancing of the conveniences between some householders’ desire for privacy and the publisher’s right to distribute publications in the precise way that those soliciting for him think brings the best results. The issue brings into collision the rights of the hospitable housewife, peering on Monday morning around her chained door, with those of Mr. Breard’s courteous, well-trained but possibly persistent solicitor, offering a bargain on culture and information through a joint subscription to the Saturday Evening Post, Pic and Today’s Woman. Behind the housewife are many housewives and home-owners in the towns where Green River ordinances offer their aid. Behind Mr. Breard are “Keystone” with an annual business of $5,000,000 in subscriptions and the periodicals with their use of house-to-house canvassing to secure subscribers for their valuable publications, together with other housewives who desire solicitors to offer them the opportunity and remind and help them, at their doors, to subscribe for publications. Subscriptions may be made by anyone interested in receiving the magazines without the annoyances of house-to-house canvassing. We think those communities that have found these methods of sale obnoxious may control them by ordinance. It would be, it seems to us, a misuse of the great guarantees of free speech and free press to use those guarantees to force a community to admit the solicitors of publications to the home premises of its residents. We see no abridgment of the principles of the First Amendment in this ordinance. Affirmed. Restatement, Torts, §167; Cooley on Torts (4th ed.) §248. Hall v. Commonwealth, 188 Va. 72, 49 S. E. 2d 369, appeal dismissed, 335 U. S. 875; statutes collected, Martin v. Struthers, 319 U. S. 141, 147, n. 10. “We must assume that the practice existed in the town as the first section states, and that it had become annoying and disturbing and objectionable to at least some of the citizens. We think like practices have become so general and common as to be of judicial knowledge, and that the frequent ringing of doorbells of private residences by itinerant vendors and solicitors is in fact a nuisance to the occupants of homes. It is not appellee and its solicitors and their methods alone that must be considered in determining the reasonableness of the ordinance, but many others as well who seek in the same way to dispose of their wares. One follows another until the ringing doorbells disturb the quietude of the home and become a constant annoyance.” Town of Green River v. Fuller Brush Co., 65 F. 2d 112, 114. Town of Green River v. Bunger, 50 Wyo. 52, 70, 58 P. 2d 456, 462; cf. Real Silk Hosiery Mills v. City of Richmond, 298 F. 126. The ordinance now under consideration, § 3, does not apply to “the sale, or soliciting of orders for the sale, of milk, dairy products, vegetables, poultry, eggs and other farm and garden produce Appellant makes no point against the present ordinance on the ground of invalid classification. Cf. Tigner v. Texas, 310 U. S. 141; Williams v. Arkansas, 217 U. S. 79, 90. The validity of Green River ordinances has also been considered in a number of state courts. Five states — Colorado, Louisiana (in cases previous to the instant one), New Mexico, New York, and Wyoming— have upheld the ordinance, against objections that it was beyond the scope of the police power, deprived vendors of property rights without due process of law, deprived them of the equal protection of the laws, and infringed upon the Commerce Clause and the First and Fourteenth Amendments. McCormick v. City of Montrose, 105 Colo. 493, 99 P. 2d 969; Shreveport v. Cunningham, 190 La. 481, 182 So. 649; Alexandria v. Jones, 216 La. 923, 45 So. 2d 79; Green v. Gallup, 46 N. M. 71, 120 P. 2d 619; People v. Bohnke, 287 N. Y. 154, 38 N. E. 2d 478; Green River v. Bunger, 50 Wyo. 52, 58 P. 2d 456. Eleven states, on the other hand, have held such ordinances invalid. All of these states acted in part at least on nonfederal grounds, and the only federal constitutional argument, which was considered by three states, was that based on the Due Process Clause. No state court, in voiding the ordinance, has reached the Commerce Clause or the First Amendment issues urged here. The principal grounds relied on have been that the prohibited conduct amounted at most only to a private nuisance and not a public one; that there was no showing of injury to public health or safety by the prohibited conduct; that there was a vested right in a lawful occupation, so that it was subject only to regulation but not to prohibition; and that the ordinance was beyond the delegated powers of the municipality. Prior v. White, 132 Fla. 1, 180 So. 347 (not more than a private nuisance); Clay v. Mathews, 185 Ga. 279, 194 S. E. 172 (affirming without opinion by an evenly divided court); DeBerry v. LaGrange, 62 Ga. App. 74, 8 S. E. 2d 146 (not a nuisance; invades an inalienable right to the occupation of soliciting); Osceola v. Blair, 231 Iowa 770, 2 N. W. 2d 83 (not a nuisance, deprives persons of a property right in their occupation); Mt. Sterling v. Donaldson Baking Co., 287 Ky. 781, 155 S. W. 2d 237 (not a public nuisance, beyond the scope of the municipal police power); Jewel Tea Co. v. Bel Air, 172 Md. 536, 192 A. 417 (not a nuisance, not within delegated powers of municipality) ; Jewel Tea Co. v. Geneva, 137 Neb. 768, 291 N. W. 664 (not a public nuisance, arbitrary, violates Due Process Clause, citing Jay Burns Baking Co. v. Bryan, 264 U. S. 504); N. J. Good Humor, Inc. v. Board of Commissioners, 124 N. J. L. 162, 11 A. 2d 113 (not a valid police regulation, beyond powers of municipality); McAlester v. Grand Union Tea Co., 186 Okla. 487, 98 P. 2d 924 (only a private nuisance); Orangeburg v. Farmer, 181 S. C. 143, 186 S. E. 783 (unreasonable, prohibits a lawful occupation, in violation of state and federal due process, enacted with improper motive); Ex parte Faulkner, 143 Tex. Cr. R. 272, 158 S. W. 2d 525 (beyond the powers of the municipality); White v. Culpeper, 172 Va. 630, 1 S. E. 2d 269 (not a public nuisance). The ordinances in the Bel Air and Culpeper cases contained discriminatory provisions not involved in the instant case. It should be noted also that while New York upheld the ordinance in Bohnke, supra, as applied to distribution of religious tracts, that case was decided before this Court’s decision in Martin v. Struthers, 319 U. S. 141. Enforcement of Green River ordinances has subsequently been enjoined as against members of the Jehovah’s Witnesses sect, in Donley v. Colorado Springs, 40 F. Supp. 15, and Zimmerman v. London (Ohio), 38 F. Supp. 582. He cited: Real Silk Hosiery Mills v. Portland, 268 U. S. 325; Di Santo v. Pennsylvania, 273 U. S. 34; International Textbook Co. v. Pigg, 217 U. S. 91; Rogers v. Arkansas, 227 U. S. 401; Robbins v. Shelby Taxing District, 120 U. S. 489; Baldwin v. Seelig, Inc., 294 U. S. 511; Stewart v. Michigan, 232 U. S. 665. An ordinance forbidding the sale of cigarettes without a license was upheld. “Regulations respecting the pursuit of a lawful trade or business are of very frequent occurrence in the various cities of the country, and what such regulations shall be and to what particular trade, business or occupation they shall apply, are questions for the State to determine, and their determination comes within the proper exercise of the police power by the State, and unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizen are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without due process of law, they do not extend beyond the power of the State to pass, and they form no subject for Federal interference.” 177 U. S. at 188. A statute making it unlawful to refuse a purchaser of a ticket admission to a place of public entertainment except in certain circumstances relating to drunkenness and vice, was upheld. “Does the statute deprive the defendant of any property right without due process of law? We answer this question in the negative. Decisions of this court, familiar to all, and which need not be cited, recognize the possession, by each State, of powers never surrendered to the General Government; which powers the State, except as restrained by its own constitution or the Constitution of the United States, may exert not only for the public health, the public morals and the public safety, but for the general or common good, for the well-being, comfort and good order of the people.” 204 U. S. at 363. “Such a regulation, in itself just, is likewise promotive of peace and good order among those who attend places of public entertainment or amusement.” Id. at 364. The following sections of a statute of Arkansas were upheld: “ ‘Sec. 1. That it shall be unlawful for any person or persons, except as hereinafter provided in section 2 of this act, to drum or solicit business or patronage for any hotel, lodging house, eating house, bath house, physician, masseur, surgeon, or other medical practitioner, on the train, cars, or depots of any railroad or common carrier operating or running within the State of Arkansas. “ ‘Sec. 2. That it shall be unlawful for any railroad or common carrier operating a line within the State of Arkansas knowingly to permit its trains, cars or depots within the State to be used by any person or persons for drumming or soliciting business or patronage for any hotel, lodging house, eating house, bath house, physician, masseur, surgeon, or other medical practitioner, or drumming or soliciting for any business or profession whatsoever; ....’” 217 U. S. 86. This Court quoted the Supreme Court of Arkansas as saying: “ ‘Drummers who swarm through the trains soliciting for physicians, bath houses, hotels, etc., make existence a burden to those who are subjected to their repeated solicitations. It is true that the traveler may turn a deaf ear to these importunities, but this does not render it any the less unpleasant and annoying. The drummer may keep within the law against disorderly conduct, and still render himself a source of annoyance to travelers by his much beseeching to be allowed to lead the way to a doctor or a hotel.’ ” Id. 89. But cf. Jensen, Burdening Interstate Direct Selling, 12 Rocky Mt. L. Rev. 257, 275: “To disclaim this economic effect of upholding the ordinance and to suggest other methods of merchandising to direct-selling businesses short of local retailing, as was done by the Tenth Circuit Court of Appeals [65 F. 2d 112], shows a woeful lack of knowledge of the actual problems of direct-to-consumer merchandising.” Nebbia v. New York, 291 U. S. 502, 523: “Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest.” Railway Express Agency v. New York, 336 U. S. 106; Daniel v. Family Security Life Ins. Co., 336 U. S. 220. Arizona v. California, 283 U. S. 423, 454-455; Henneford v. Silas Mason Co., 300 U. S. 577, 586. Constitution, Art. Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:
sc_adminaction_is	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. MISSOURI et al. v. JENKINS, by her friend, AGYEI, et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 88-64. Argued February 21, 1989 Decided June 19, 1989 Bruce Farmer, Assistant Attorney General of Missouri, argued the cause for petitioners. With him on the brief were William L. Webster, Attorney General, Terry Allen, Deputy Attorney General, and Michael L. Boicourt and Bart A. Ma-tanic, Assistant Attorneys General. Jay Topkis argued the cause for respondents. With him on the brief were Julius LeVonne Chambers, Charles Stephen Ralston, Arthur A. Benson II, Russell E. Lovell II, and Theodore M. Shaw. John A. DeVault III filed a brief for the National Association of Legal Assistants, Inc., as amicus curiae urging affirmance. Justice Brennan delivered the opinion of the Court. This is the attorney’s fee aftermath of major school desegregation litigation in Kansas City, Missouri. We granted certiorari, 488 U. S. 888 (1988), to resolve two questions relating to fees litigation under 90 Stat. 2641, as amended, 42 U. S. C. § 1988. First, does the Eleventh Amendment prohibit enhancement of a fee award against a State to compensate for delay in payment? Second, should the fee award compensate the work of paralegals and law clerks by applying the market rate for their work? I This litigation began in 1977 as a suit by the Kansas City Missouri School District (KCMSD), the school board, and the children of two school board members, against the State of Missouri and other defendants. The plaintiffs alleged that the State, surrounding school districts, and various federal agencies had caused and perpetuated a system of racial segregation in the schools of the Kansas City metropolitan area. They sought various desegregation remedies. KCMSD was subsequently realigned as a nominal defendant, and a class of present and future KCMSD students was certified as plaintiffs. After lengthy proceedings, including a trial that lasted 754 months during 1983 and 1984, the District Court found the State of Missouri and KCMSD liable, while dismissing the suburban school districts and the federal defendants. It ordered various intradistrict remedies, to be paid for by the State and KCMSD, including $260 million in capital improvements and a magnet-school plan costing over $200 million. See Jenkins v. Missouri, 807 F. 2d 657 (CA8 1986) (en banc), cert. denied, 484 U. S. 816 (1987); Jenkins v. Missouri, 855 F. 2d 1295 (CA8 1988), cert. granted, 490 U. S. 1034 (1989). The plaintiff class has been represented, since 1979, by Kansas City lawyer Arthur Benson and, since 1982, by the NAACP Legal Defense and Educational Fund, Inc. (LDF). Benson and the LDF requested attorney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U. S. C. § 1988. Benson and his associates had devoted 10,875 attorney hours to the litigation, as well as 8,108 hours of paralegal and law clerk time. For the LDF the corresponding figures were 10,854 hours for attorneys and 15,517 hours for paralegals and law clerks. Their fee applications deleted from these totals 3,628 attorney hours and 7,046 paralegal hours allocable to unsuccessful claims against the suburban school districts. With additions for postjudgment monitoring and for preparation of the fee application, the District Court awarded Benson a total of approximately $1.7 million and the LDF $2.3 million. App. to Pet. for Cert. A22-A43. In calculating the hourly rate for Benson’s fees the court noted that the market rate in Kansas City for attorneys of Benson’s qualifications was in the range of $125 to $175 per hour, and found that “Mr. Benson’s rate would fall at the higher end of this range based upon his expertise in the area of civil rights.” Id., at A26. It calculated his fees on the basis of an even higher hourly rate of $200, however, because of three additional factors: the preclusion of other employment, the undesirability of the case, and the delay in payment for Benson’s services. Id., at A26-A27. The court also took account of the delay in payment in setting the rates for several of Benson’s associates by using current market rates rather than those applicable at the time the services were rendered. Id., at A28-A30. For the same reason, it calculated the fees for the LDF attorneys at current market rates. Id., at A33. Both Benson and the LDF employed numerous paralegals, law clerks (generally law students working part time), and recent law graduates in this litigation. The court awarded fees for their work based on Kansas City market rates for those categories. As in the case of the attorneys, it used current rather than historic market rates in order to compensate for the delay in payment. It therefore awarded fees based on hourly rates of $35 for law clerks, $40 for paralegals, and $50 for recent law graduates. Id., at A29-A31, A34. The Court of Appeals affirmed in all respects. 838 F. 2d 260 (CA8 1988). II Our grant of certiorari extends to two issues raised by the State of Missouri. Missouri first contends that a State cannot, consistent with the principle of sovereign immunity this Court has found embodied in the Eleventh Amendment, be compelled to pay an attorney’s fee enhanced to compensate for delay in payment. This question requires us to examine the intersection of two of our precedents, Hutto v. Finney, 437 U. S. 678 (1978), and Library of Congress v. Shaw, 478 U. S. 310 (1986). In Hutto v. Finney, the lower courts had awarded attorney’s fees against the State of Arkansas, in part pursuant to §1988, in connection with litigation over the conditions of confinement in that State’s prisons. The State contended that any such award was subject to the Eleventh Amendment’s constraints on actions for damages payable from a State’s treasury. We relied, in rejecting that contention, on the distinction drawn in our earlier cases between “retroactive monetary relief” and “prospective injunctive relief.” See Edelman v. Jordan, 415 U. S. 651 (1974); Ex parte Young, 209 U. S. 123 (1908). Attorney’s fees, we held, belonged to the latter category, because they constituted reimbursement of “expenses incurred in litigation seeking only prospective relief,” rather than “retroactive liability for prelitigation conduct.” Hutto, 437 U. S., at 695; see also id.,. at 690. We explained: “Unlike ordinary ‘retroactive’ relief such as damages or restitution, an award of costs does not compensate the plaintiff for the injury that first brought him into court. Instead, the award reimburses him for a portion of the expenses he incurred in seeking prospective relief.” Id., at 695, n. 24. Section 1988, we noted, fit easily into the longstanding practice of awarding “costs” against States, for the statute imposed the award of attorney’s fees “as part of the costs.” Id., at 695-696, citing Fairmont Creamery Co. v. Minnesota, 275 U. S. 70 (1927). After Hutto, therefore, it must be accepted as settled that an award of attorney’s fees ancillary to prospective relief is not subject to the strictures of the Eleventh Amendment. And if the principle of making such an award is beyond the reach of the Eleventh Amendment, the same must also be true for the question of how a “reasonable attorney’s fee” is to be calculated. See Hutto, supra, at 696-697. Missouri contends, however, that the principle enunciated in Hutto has been undermined by subsequent decisions of this Court that require Congress to “express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself.” Atascadero State Hospital v. Scanlon, 473 U. S. 234, 243 (1985); Welch v. Texas Dept, of Highways and Public Transportation, 483 U. S. 468 (1987). See also Dellmuth v. Muth, ante, p. 223; Pennsylvania v. Union Gas Co., ante, p. 1. The flaw in this argument lies in its misreading of the holding of Hutto. It is true that in Hutto we noted that Congress could, in the exercise of its enforcement power under § 5 of the Fourteenth Amendment, set aside the States’ immunity from retroactive damages, 437 U. S., at 693, citing Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), and that Congress intended to do so in enacting § 1988, 437 U. S., at 693-694. But we also made clear that the application of § 1988 to the States did not depend on congressional abrogation of the States’ immunity. We did so in rejecting precisely the “clear statement” argument that Missouri now suggests has undermined Hutto. Arkansas had argued that § 1988 did not plainly abrogate the States’ immunity; citing Employees v. Missouri Dept, of Public Health and Welfare, 411 U. S. 279 (1973), and Edelman v. Jordan, supra, the State contended that “retroactive liability” could not be imposed on the States “in the absence of an extraordinarily explicit statutory mandate.” Hutto, 437 U. S., at 695. We responded as follows: “[Tjhese cases [Employees and Edelman] concern retroactive liability for prelitigation conduct rather than expenses incurred in litigation seeking only prospective relief. The Act imposes attorney’s fees ‘as part of the costs.’ Costs have traditionally been awarded without regard for the States’ Eleventh Amendment immunity.” Ibid. The holding of Hutto, therefore, was not just that Congress had spoken sufficiently clearly to overcome Eleventh Amendment immunity in enacting § 1988, but rather that the Eleventh Amendment did not apply to an award of attorney’s fees ancillary to a grant of prospective relief. See Maine v. Thiboutot, 448 U. S. 1, 9, n. 7 (1980). That holding is unaffected by our subsequent jurisprudence concerning the degree of clarity with which Congress must speak in order to override Eleventh Amendment immunity, and we reaffirm it today. Missouri’s other line of argument is based on our decision in Library of Congress v. Shaw, supra. Shaw involved an application of the longstanding “no-interest rule,” under which interest cannot be awarded against the United States unless it has expressly waived its sovereign immunity. We held that while Congress, in making the Federal Government a potential defendant under Title VII of the Civil Rights Act of 1964, had waived the United States’ immunity from suit and from costs including reasonable attorney’s fees, it had not waived the Federal Government’s traditional immunity from any award of interest. We thus held impermissible a 30 percent increase in the “lodestar” fee to compensate for delay in payment. Because we refused to find in the language of Title VII a waiver of the United States’ immunity from interest, Missouri argues, we should likewise conclude that § 1988 is not sufficiently explicit to constitute an abrogation of the States’ immunity under the Eleventh Amendment in regard to any award of interest. The answer to this contention is already clear from what we have said about Hutto v. Finney. Since, as we held in Hutto, the Eleventh Amendment does not bar an award of attorney’s fees ancillary to a grant of prospective relief, our holding in Shaw has no application, even by analogy. There is no need in this case to determine whether Congress has spoken sufficiently clearly to meet a “clear statement” requirement, and it is therefore irrelevant whether the Eleventh Amendment standard should be, as Missouri contends, as stringent as the one we applied for purposes of the no-interest rule in Shaw. Rather, the issue here — whether the “reasonable attorney’s fee” provided for in § 1988 should be calculated in such a manner as to include an enhancement, where appropriate, for delay in payment — is a straightforward matter of statutory interpretation. For this question, it is of no relevance whether the party against which fees are awarded is a State. The question is what Congress intended — not whether it manifested “the clear affirmative intent ... to waive the sovereign’s immunity.” Shaw, 478 U. S., at 321. This question is not a difficult one. We have previously explained, albeit in dicta, why an enhancement for delay in payment is, where appropriate, part of a “reasonable attorney’s fee.” In Pennsylvania v. Delaware Valley Citizens’ Council, 483 U. S. 711 (1987), we rejected an argument that a prevailing party was entitled to a fee augmentation to compensate for the risk of nonpayment. But we took care to distinguish that risk from the factor of delay: “First is the matter of delay. When plaintiffs’ entitlement to attorney’s fees depends on success, their lawyers are not paid until a favorable decision finally eventuates, which may be years later .... Meanwhile, their expenses of doing business continue and must be met. In setting fees for prevailing counsel, the courts have regularly recognized the delay factor, either by basing the award on current rates or by adjusting the fee based on historical rates to reflect its present value. See, e. g., Sierra Club v. EPA, 248 U. S. App. D. C. 107, 120-121, 769 F. 2d 796, 809-810 (1986); Louisville Black Police Officers Organization, Inc. v. Louisville, 700 F. 2d 268, 276, 281 (CA6 1983). Although delay and the risk of nonpayment are often mentioned in the same breath, adjusting for the former is a distinct issue .... We do not suggest . . . that adjustments for delay are inconsistent with the typical fee-shifting statute.” Id., at 716. The same conclusion is appropriate under § 1988. Our cases have repeatedly stressed that attorney’s fees awarded under this statute are to be based on market rates for the services rendered. See, e. g., Blanchard v. Bergeron, 489 U. S. 87 (1989); Riverside v. Rivera, 477 U. S. 561 (1986); Blum v. Stenson, 465 U. S. 886 (1984). Clearly, compensation received several years after the services were rendered — -as it frequently is in complex civil rights litigation — is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed, as would normally be the case with private billings. We agree, therefore, that an appropriate adjustment for delay in payment— whether by the application of current rather than historic hourly rates or otherwise—is within the contemplation of the statute. To summarize: We reaffirm our holding in Hutto v. Finney that the Eleventh Amendment has no application to an award of attorney’s fees, ancillary to a grant of prospective relief, against a State. It follows that the same is true for the calculation of the amount of the fee. An adjustment for delay in payment is, we hold, an appropriate factor in the determination of what constitutes a reasonable attorney’s fee under § 1988. An award against a State of a fee that includes such an enhancement for delay is not, therefore, barred by the Eleventh Amendment. Ill Missouri’s second contention is that the District Court erred in compensating the work of law clerks and paralegals (hereinafter collectively “paralegals”) at the market rates for their services, rather than at their cost to the attorney. While Missouri agrees that compensation for the cost of these personnel should be included in the fee award, it suggests that an hourly rate of $15—which it argued below corresponded to their salaries, benefits, and overhead—would be appropriate, rather than the market rates of $35 to $50. According to Missouri, § 1988 does not authorize billing paralegals’ hours at market rates, and doing so produces a “windfall” for the attorney. We begin with the statutory language, which provides simply for “a reasonable attorney’s fee as part of the costs.” 42 U. S. C. § 1988. Clearly, a “reasonable attorney’s fee” cannot have been meant to compensate only work performed personally by members of the bar. Rather, the term must refer to a reasonable fee for the work product of an attorney. Thus, the fee must take into account the work not only of attorneys, but also of secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills her client; and it must also take account of other expenses and profit. The parties have suggested no reason why the work of paralegals should not be similarly compensated, nor can we think of any. We thus take as our starting point the self-evident proposition that the “reasonable attorney’s fee” provided for by statute should compensate the work of paralegals, as well as that of attorneys. The more difficult question is how the work of paralegals is to be valuated in calculating the overall attorney’s fee. The statute specifies a “reasonable” fee for the attorney’s work product. In determining how other elements of the attorney’s fee are to be calculated, we have consistently looked to the marketplace as our guide to what is “reasonable.” In Blum v. Stenson, 465 U. S. 886 (1984), for example, we rejected an argument that attorney’s fees for nonprofit legal service organizations should be based on cost. We said: “The statute and legislative history establish that ‘reasonable fees’ under § 1988 are to be calculated according to the prevailing market rates in the relevant community . . . Id., at 895. See also, e. g., Delaware Valley, 483 U. S., at 732 (O’Connor, J., concurring) (controlling question concerning contingency enhancements is “how the market in a community compensates for contingency”); Rivera, 477 U. S., at 591 (Rehnquist, J., dissenting) (reasonableness of fee must be determined “in light of both the traditional billing practices in the profession, and the fundamental principle that the award of a ‘reasonable’ attorney’s fee under § 1988 means a fee that would have been deemed reasonable if billed to affluent plaintiffs by their own attorneys”). A reasonable attorney’s fee under § 1988 is one calculated on the basis of rates and practices prevailing in the relevant market, i. e., “in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation,” Blum, supra, at 896, n. 11, and one that grants the successful civil rights plaintiff a “fully compensatory fee,” Hensley v. Eckerhart, 461 U. S. 424, 435 (1983), comparable to what “is traditional with attorneys compensated by a fee-paying client.” S. Rep. No. 94-1011, p. 6 (1976). If an attorney’s fee awarded under § 1988 is to yield the same level of compensation that would be available from the market, the “increasingly widespread custom of separately billing for the services of paralegals and law students who serve as clerks,” Ramos v. Lamm, 713 F. 2d 546, 558 (CA10 1983), must be taken into account. All else being equal, the hourly fee charged by an attorney whose rates include paralegal work in her hourly fee, or who bills separately for the work of paralegals at cost, will be higher than the hourly fee charged by an attorney competing in the same market who bills separately for the work of paralegals at “market rates.” In other words, the prevailing “market rate” for attorney time is not independent of the manner in which paralegal time is accounted for. Thus, if the prevailing practice in a given community were to bill paralegal time separately at market rates, fees awarded the attorney at market rates for attorney time would not be fully compensatory if the court refused to compensate hours billed by paralegals or did so only at “cost.” Similarly, the fee awarded would be too high if the court accepted separate billing for paralegal hours in a market where that was not the custom. We reject the argument that compensation for paralegals at rates above “cost” would yield a “windfall” for the prevailing attorney. Neither petitioners nor anyone else, to our knowledge, has ever suggested that the hourly rate applied to the work of an associate attorney in a law firm creates a windfall for the firm’s partners or is otherwise improper under § 1988, merely because it exceeds the cost of the attorney’s services. If the fees are consistent with market rates and practices, the “windfall” argument has no more force with regard to paralegals than it does for associates. And it would hardly accord with Congress’ intent to provide a “fully compensatory fee” if the prevailing plaintiff’s attorney in a civil rights lawsuit were not permitted to bill separately for paralegals, while the defense attorney in the same litigation was able to take advantage of the prevailing practice and obtain market rates for such work. Yet that is precisely the result sought in this case by the State of Missouri, which appears to have paid its own outside counsel for the work of paralegals at the hourly rate of $35. Record 2696, 2699. Nothing in § 1988 requires that the work of paralegals invariably be billed separately. If it is the practice in the relevant market not to do so, or to bill the work of paralegals only at cost, that is all that § 1988 requires. Where, however, the prevailing practice is to bill paralegal work at market rates, treating civil rights lawyers’ fee requests in the same way is not only permitted by § 1988, but also makes economic sense. By encouraging the use of lower cost paralegals rather than attorneys wherever possible, permitting market-rate billing of paralegal hours “encourages cost-effective delivery of legal services and, by reducing the spiraling cost of civil rights litigation, furthers the policies underlying civil rights statutes.” Cameo Convalescent Center, Inc. v. Senn, 738 F. 2d 836, 846 (CA7 1984), cert. denied, 469 U. S. 1106 (1985). Such separate billing appears to be the practice in most communities today. In the present case, Missouri concedes that “the local market typically bills separately for paralegal services,” Tr. of Oral Arg. 14, and the District Court found that the requested hourly rates of $35 for law clerks, $40 for paralegals, and $50 for recent law graduates were the prevailing rates for such services in the Kansas City area. App. to Pet. for Cert. A29, A31, A34. Under these circumstances, the court’s decision to award separate compensation at these rates was fully in accord- with § 1988. I — I The courts below correctly granted a fee enhancement to compensate for delay in payment and approved compensation of paralegals and law clerks at market rates. The judgment of the Court of Appeals is therefore Affirmed. Justice Marshall took no part in the consideration or decision of this case. Section 1988 provides in relevant part: “In any action or proceeding to enforce a provision of sections 1981, 1982,1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U. S. C. § 1681 et seq.], or title VI of the Civil Rights Act of 1964 [42 U. S. C. §2000d et seq.], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” The holding of the Court of Appeals on this point, 838 F. 2d, at 265-266, is in conflict with the resolution of the same question in Rogers v. Okin, 821 F. 2d 22, 26-28 (CA1 1987), cert. denied sub nonz. Commissioner, Massachusetts Dept, of Mental Health v. Rogers, 484 U. S. 1010 (1988). Our opinion in Shaiu does, to be sure, contain some language that, if read in isolation, might suggest a different result in this case. Most significantly, we equated compensation for delay with prejudgment interest, and observed that “[p]rejudgment interest... is considered as damages, not a component of ‘costs.’ . . . Indeed, the term ‘costs’ has never been understood to include any interest component.” Library of Congress v. Shaiu, 478 U. S. 310, 321 (1986). These observations, however, cannot be divorced from the context of the special “no-interest rule” that was at issue in Shaw. That rule, which is applicable to the immunity of the United States and is therefore not at issue here, provides an “added gloss of strictness,” id., at 318, only where the United States’ liability for interest is at issue. Our inclusion of compensation for delay within the definition of prejudgment interest in Shaiu must be understood in light of this broad proscription of interest awards against the United States. Shaw thus does not represent a general-purpose definition of compensation for delay that governs here. Outside the context of the “no-interest rule” of federal immunity, we see no reason why compensation for delay cannot be included within § 1988 attorney’s fee awards, which Hutto held to be “costs” not subject to Eleventh Amendment strictures. We cannot share Justice O’Connor’s view that the two cases she cites, post, at 293, demonstrate the existence of an equivalent rule relating to state immunity that embodies the same ultrastrict rule of construction for interest awards that has grown up around the federal no-interest rule. Cf. Shaiu, supra, at 314-317 (discussing historical development of the federal no-interest rule). In Shaio, which dealt with the sovereign immunity of the Federal Government, there was of course no prospective-retrospective distinction as there is when, as in Hutto and the present case, it is the Eleventh Amendment immunity of a State that is at issue. Delaware Valley was decided under § 304(d) of the Clean Air Act, 42 U. S. C. § 7604(d). We looked for guidance, however, to § 1988 and our cases construing it. Pennsylvania v. Delaware Valley Citizens’ Council, 483 U. S. 711, 713, n. 1 (1987). The Courts of Appeals have taken a variety of positions on this issue. Most permit separate billing of paralegal time. See, e. g., Save Our Cumberland Mountains, Inc. v. Hodel, 263 U. S. App. D. C. 409, 420, n. 7, 826 F. 2d 43, 54, n. 7 (1987), vacated in part on other grounds, 273 U. S. App. D. C. 78, 857 F. 2d 1516 (1988) (en banc); Jacobs v. Mancuso, 825 F. 2d 559, 563, and n 6 (CA1 1987) (collecting cases); Spanish Action Committee of Chicago v. Chicago, 811 F. 2d 1129, 1138 (CA7 1987); Ramos v. Lamm, 713 F. 2d 546, 558-559 (CA10 1983); Richardson v. Byrd, 709 F. 2d 1016, 1023 (CA5), cert. denied sub nom. Dallas County Commissioners Court v. Richardson, 464 U. S. 1009 (1983). See also Riverside v. Rivera, 477 U. S. 561, 566, n. 2 (1986) (noting lower court approval of hourly rate for law clerks). Some courts, on the other hand, have considered paralegal work “out-of-pocket expense,” recoverable only at cost to the attorney. See, e. g., Northcross v. Board of Education of Memphis City Schools, 611 F. 2d 624, 639 (CA6 1979), cert. denied, 447 U. S. 911 (1980); Thornberry v. Delta Air Lines, Inc., 676 F. 2d 1240, 1244 (CA9 1982), vacated, 461 U. S. 952 (1983). At least one Court of Appeals has refused to permit any recovery of paralegal expense apart from the attorney’s hourly fee. Abrams v. Baylor College of Medicine, 805 F. 2d 528, 535 (CA5 1986). This delay, coupled with the fact that, as we recognized in Delaivare Valley, the attorney’s expenses are not deferred pending completion of the litigation, can cause considerable hardship. The present case provides an illustration. During a period of nearly three years, the demands of this case precluded attorney Benson from accepting other employment. In order to pay his staff and meet other operating expenses, he was obliged to borrow $633,000. As of January 1987, he had paid over $113,000 in interest on this debt, and was continuing to borrow to meet interest payments. Record 2336-2339; Tr. 130-131. The LDF, for its part, incurred deficits of $700,000 in 1983 and over $1 million in 1984, largely because of this case. Tr. 46. If no compensation were provided for the delay in payment, the prospect of such hardship could well deter otherwise willing attorneys from accepting complex civil rights cases that might offer great benefit to society at large; this result would work to defeat Congress’ purpose in enacting § 1988 of “encourag[ing] the enforcement of federal law through lawsuits filed by private persons.” Delaware Valley, supra, at 737 (Blackmun, J., dissenting). We note also that we have recognized the availability of interim fee awards under § 1988 when a litigant becomes a prevailing party on one issue in the course of the litigation. Texas State Teachers Assn. v. Garland Independent School Dist., 489 U. S. 782, 791-792 (1989). In economic terms, such an interim award does not differ from an enhancement for delay in payment. The attorney who bills separately for paralegal time is merely distributing her costs and profit margin among the hourly fees of other members of her staff, rather than concentrating them in the fee she sets for her own time. A variant of Missouri’s “windfall” argument is the following: “If paralegal expense is reimbursed at a rate many times the actual cost, will attorneys next try to bill separately — and at a profit — for such items as secretarial time, paper clips, electricity, and other expenses?” Reply Brief for Petitioners 15-16. The answer to this question is, of course, that attorneys seeking fees under § 1988 would have no basis for requesting separate compensation of such expenses unless this were the prevailing practice in the local community. The safeguard against the billing at a profit of secretarial services and paper clips is the discipline of the market. It has frequently been recognized in the lower courts that paralegals are capable of carrying out many tasks, under the supervision of an attorney, that might otherwise be performed by a lawyer and billed at a higher rate. Such work might include, for example, factual investigation, including locating and interviewing witnesses; assistance with depositions, interrogatories, and document production; compilation of statistical and financial data; checking legal citations; and drafting correspondence. Much such work lies in a gray area of tasks that might appropriately be performed either by an attorney or a paralegal. To the extent that fee applicants under § 1988 are not permitted to bill for the work of paralegals at market rates, it would not be surprising to see a greater amount of such work performed by attorneys themselves, thus increasing the overall cost of litigation. Of course, purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them. What the court in Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714, 717 (CA5 1974), said in regard to the work of attorneys is applicable by analogy to paralegals: “It is appropriate to distinguish between legal work, in the strict sense, and investigation, clerical work, compilation of facts and statistics and other work which can often be accomplished by non-lawyers but which a lawyer may do because he has no other help available. Such non-legal work may command a lesser rate. Its dollar value is not enhanced just because a lawyer does it.” Amicus National Association of Legal Assistants reports that 77 percent of 1,800 legal assistants responding to a survey of the association’s membership stated that their law firms charged clients for paralegal work on an hourly billing basis. Brief for National Association of Legal Assistants as Amicus Curiae 11. Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_state	15	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". Mary F. DUNBAR, Plaintiff-Appellant, v. The UNION CENTRAL LIFE INSURANCE COMPANY, Defendant-Appellee. No. 17144. United States Court of Appeals Seventh Circuit. May 16, 1969. Thomas Clay Collier, Jr., Albert W. Zimmermann, Indianapolis, Ind., Dunbar, Collier & Zimmermann, Indianapolis, Ind., of counsel, for appellant. Ralph Hamill, John P. Price, Indianapolis, Ind., Hamill & Price, Indianapolis, Ind., of counsel, for appellee. Before KILBY, FAIRCHILD and KERNER, Circuit Judges. KILEY, Circuit Judge. The district court entered summary judgment against plaintiff in her suit to recover lump sum settlements of insurance policies on her husband’s life in lieu of a monthly settlement option she had chosen prior to her husband’s death. 283 F.Supp. 823. We affirm. At the time of her husband’s death, March 19, 1965, the total amount due under six policies issued by defendant covering decedent was $100,861.86. The several policies were issued to plaintiff as owner and in each she was named primary beneficiary. Each policy was subject to an “Agreement of Designation of Beneficiary and Method of Settlement” made September 14, 1945, which elected a settlement option providing for continuous monthly payments of $402.86 to plaintiff guaranteed for twenty years and for life thereafter. Plaintiff alleged in substance that she had timely performed all of her policy obligations; that defendant refused to pay, in accordance with her demand, the total face value, contrary to the express terms of the contract; and that defendant’s withholding its “consent” to election of the lump sum provision of the insurance contracts was arbitrary and in disregard of plaintiff’s interest. The district court entered summary judgment for defendant on the ground that “plaintiff ha[d] no right * * * to elect a lump sum payment, subsequent to maturity of the policies, without * * * consent of * * * defendant.” Plaintiff’s affidavits justify the following statement of facts: After her husband died on March 19, 1965, plaintiff, being uncertain as to her cash needs, did not immediately answer the repeated requests of the Company that she elect a mode of payment of the proceeds of the policies. On May 3, about six weeks after her husband’s death, the Company wrote plaintiff’s lawyer enclosing an inter-office memorandum to the effect that plaintiff had eighteen months to decide whether she would like a life income option. Plaintiff relied on the eighteen months representation and did not demand the lump sum settlement until October 29, 1965. On November 3, 1965, the Company refused the demand, stating that her election required the consent which they refused to give. Plaintiff argues that the foregoing post-maturity events “tacitly” admit her right to change the mode of payment and that the Company is estopped from withholding consent; that the withholding of consent was arbitrary and invalid; and that Indiana law prohibited the Company from changing its tacit position by failing, within two months after proof of death was submitted, to settle the claim. We see no merit in the last argument. The delay was due primarily to plaintiff’s uncertainty, and in the Company’s view it settled plaintiff’s claim by rejecting plaintiff’s demand of October 29,1965 in the next month after insured’s death. Under Sec. D1 of each policy, the “owner” could by written notice, before or after insured’s death, elect to have the proceeds paid according to any of several installment options instead of in a single sum. The beneficiary, “no prior election having been made,” could after insured’s death elect any one of the installment options instead of a single sum payment. The September, 1945 agreement which — under stipulation in subsequently issued policies — covered the six policies in issue, provided that “with consent of the Company” plaintiff at any time after maturity could “change or revoke the method of settlement.” The district court rejected the contention that plaintiff, as owner of the policy, did not need the Company’s consent to change her rights as beneficiary. The policies expressly provided that plaintiff was to have express ownership rights “during her lifetime,” and expressly provided that the insured was not owner and had no ownership rights. The 1945 agreement, however, reserved to plaintiff the right as owner to change the settlement option before maturity. This agreement also provided that plaintiff reserved the right after maturity to change or revoke the method of settlement “with * * * consent of the Company.” This modified the owner’s right “before or after” insured’s death. It is our view that plaintiff’s rights as beneficiary vested upon the insured’s death. Her rights as owner at that time ceased. This is consistent with the 1945 settlement agreement provisions, which reserved before maturity her ownership rights in the policies, and after maturity limited her right to change or revoke the method of settlement by requiring consent. After an examination of the record before us, we hold there is no genuine issue of fact concerning the claim that the Company arbitrarily withheld its consent. The district court noted that the provisions of the policies making plaintiff the owner were prepared by the insured. The letterhead under which the ownership provisions were submitted shows that the insured, Mr. Dunbar, was an attorney and a member of the firm of Dunbar & Dunbar “Specializing in Income and Inheritance Taxes, Wills and Trusts.” It is apparent to us that the life insurance program was carried out at the direction of the insured. The September 22, 1945 agreement electing a monthly settlement option was signed by plaintiff. Presumably it was with her husband’s acquiescence, in view of the fact that it was executed a few months after the policies became effective. This jointly-declared intention to provide plaintiff with a guaranteed income for life was done for her financial security. The agreement provided for continuous installments and expressly withheld from plaintiff the right to withdraw funds from the insurance proceeds retained as principal by the defendant. Violence would be done to this plan if the option could be changed merely because the beneficiary has so requested. Plaintiff has neither alleged nor brought forth any extraordinary facts to justify a change in the pattern of financial security designed by both her and her husband. Finally, we see no merit in plaintiff’s claim that the policy option for monthly installments elected prior to her husband’s death violated Burns’ Ind.Stat. Ann. Sec. 39-4207 (1965 Repl.), because “at maturity” the settlement could be of less value than the “amount insured” in the policies. The affidavit of defendant’s chief actuary shows that the value of the “guaranteed” monthly installments was the equivalent of the amounts insured, and this settlement option was approved by the State of Indiana Insurance Department. There was no genuine issue of fact about this point. For the reasons given, the judgment is affirmed. . Contingent beneficiaries, two daughters at the time of insured’s death, under the agreement were to receive the balance due of the guaranteed payments should plaintiff not survive the twenty years, . “OWNERSHIP. Mary P. Dunbar, wife of the insured, during her lifetime, may exercise every right and receive every benefit specified in and conferred by the provisions of the policy to the owner thereof, including, but without limiting the foregoing, the right of assignment, the privilege to change the beneficiary * * * and to agree with the Company to any change in or amendment of the policy, all without the consent of the insured.” . We do not decide or imply the extent, if any, of the insured’s control over the incidents of ownership in the policies. 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_respond1_5_3	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Your task is to determine which specific state government agency best describes this litigant. Charles FLYNN, Petitioner, Appellant, v. Terrance HOLBROOK, et al., Respondents, Appellees. No. 84-1266. United States Court of Appeals, First Circuit. Argued Sept. 12, 1984. Decided Dec. 7, 1984. Barry P. Wilson, Boston, Mass., for petitioner, appellant. John A. Murphy, Sp. Asst. Atty. Gen., Providence, R.I., with whom Dennis J. Roberts, II, Atty. Gen., Providence, R.I., was on brief, for respondents, appellees. Before COFFIN, Circuit Judge, ALDRICH and COWEN, Senior Circuit Judges. Of the Federal Circuit, sitting by designation. BAILEY ALDRICH, Senior Circuit Judge. Petitioner Flynn appeals from the district court’s, 581 F.Supp. 990, denial of a writ of habeas corpus. He, with five co-defendants, was tried to a jury in the Rhode Island superior court, charged with a highly publicized armed robbery of a safe deposit vault. There had been no violence. Flynn and two others were convicted; the rest acquitted. The convicted defendants appealed, unsuccessfully raising the points now presented. Flynn, alone, sought habe-as corpus, again without success. We reverse. From the start of the trial defendants were brought to court accompanied by four uniformed, and conspicuously armed, state troopers, who sat, throughout, directly behind them in the front row of the spectators’ benches. Upon defendants’ timely protest that this created an “armed camp,” the court stated that the matter was out of its hands, and that the makeup and number of the security squad was determined solely by delegates of the Supreme Court Committee on Security. To defendants’ complaint that uniformed state police had never appeared at a Rhode Island trial before, the court replied, “But the rights of the defendants are equally safeguarded by an examination of the jurors.” Defendants immediately sought certiora-ri. In reversing and remanding, the Rhode Island Supreme Court (hereinafter court, or Rhode Island court) stated, “The presence of armed, uniformed police officers acting as a security force in criminal courtrooms in this jurisdiction is a departure from the practice usually found in the trial courts of this state.... [It] might be considered a form of restraint, and a showing of the need of their presence should be required in such circumstances. A.B.A. Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury, (Approved Draft 1968), standard 4.1(C), Comment, p. 94.... The presence of the State Police is a decision that must be resolved by the trial judge after consideration of all relevant factors.” State v. Byrnes, 116 R.I. 925, 357 A.2d 448, 449 (1976) (Byrnes I). The particular comment cited read, in part, (C) Defendants and witnesses should not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order. If the trial judge orders such restraint, the judge should enter into the record of the case the reasons therefor ____ The court’s directions were plain. The presence of armed, uniformed troopers is viewable as a form of physical restraint, unusual, and not to be countenanced short of a finding that it was “reasonably necessary to maintain order.” In such event the court was to record its reasons for so finding. In spite of this, when the hearing ordered by the court took place, nothing of any kind was offered as to the need, let alone as to an unusual need, to maintain order. The only evidence presented came from two officials, who testified to personnel problems. It seems that because of the demands of the Presiding Justice there was a shortage of commitment officers who generally handle prisoners. Consequently, a request for back-up had been made of the state police. Commitment officers were, if armed, not noticeably so. By union contract, state troopers could not appear out of uniform, or without visible arms. When it appeared that the Presiding Justice was sitting without a jury, defendants suggested to the court what might seem the logical solution, viz., to send the troopers to the P.J.’s court. The response was that this was an undesirable choice because the commitment officers were better trained than the police for the work in that court. The evidence stopped there. Nothing was offered as to the character, conduct, or disposition of any of the defendants, or of any other circumstance that might threaten the maintenance of order. Obviously, there was no, and could be no, finding of such. Nor was attention, apparently, paid to counsel’s assurances that their clients would behave, nor consideration given to why, if only armed officers were available, there needed to be so many, nor, finally, why they needed to sit so conspicuously close to the defendants. Hence, matters were back at square one, with, if we may say so, a thump. Convenience, a manpower shortage, even, incredibly, a union contract, determined who was to be present and, apparently, the troopers themselves, decided where they would like to sit. Alternatively, the prosecutor made that decision, which would be no better. In an at best trivial recognition of the instructions to consider the need for special restraint, the trial judge stated that it was his “conviction that the Supreme Court [in giving its instructions] has not been informed that the defendants on trial here are being held without bail— [If it were not for that] there would not be any state policemen in this courtroom, uniform or plain clothes.” It seems hardly necessary to observe that many defendants are incarcerated during trial; indeed, they are the only ones as to which a need for restraint arises. Inability to make bail is the common factor that fathers the vast percentage of cases discussing excessive restraint. Even more to the point, the trial judge had apparently not read the court’s order with enough care to note the third sentence thereof. “The petitioners, all of whom have been indicted on the charges of robbery, are being held without bail.” Byrnes I, 357 A.2d at 448. On this basis he held to his earlier belief that, so far as defendants’ rights were concerned, it was enough to make inquiry on the voir dire whether the presence of the officers would affect the juror’s decision, a practice he was already engaged in when he was reversed for its insufficiency. Unfortunately, as we shall develop, since physical restraint, or, more exactly, the exhibition thereof to the jury, is antithetical to the presumption of innocence, the Byrnes I order was not only correct, but constitutionally obligatory. See Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). The trial court’s total, and, we may add, inexplicable failure to observe it, requires the vacation of a conviction resulting from a trial that lasted in excess of two months, without any other prejudicial error. Because of the seriousness of this, and the seriousness of our disagreement with the Rhode Island court’s ultimate disregard of a basic constitutional principle, we write at greater length than we perhaps otherwise might. His conviction having been affirmed on appeal, State v. Byrnes, 433 A.2d 658 (R.I. 1981) (Byrnes II), post, Flynn, after several false starts, brought this petition. In denying the writ, the district court said, “To repeat the characterization employed by the Rhode Island Supreme Court, the circumstances of this trial were veritably ‘extraordinary.’ Id. at 663. And, the need for, and extent of, security measures are generally held to be within the sound discretion of the trial court. United States v. Gambina, 564 F.2d 22, 24 (8th Cir.1977); United States v. Clardy, 540 F.2d 439, 442-43 (9th Cir.), cert. denied, 429 U.S. 963 [97 S.Ct. 391, 50 L.Ed.2d 331] (1976); Kennedy v. Cardwell, 487 F.2d 101, 108-09 (6th Cir. 1973), cert. denied, 416 U.S. 959 [94 S.Ct. 1976, 40 L.Ed.2d 310] (1974). Cf. Woodard v. Perrin, 692 F.2d 220, 221-22 (1st Cir.1982). Even though security precautions may in some measure deprive a defendant of the physical indicia of innocence, they are not per se prohibited; rather, the necessity for the employment of such procedures obligates the trial court to simultaneously discharge clashing duties____ On the one hand, it was incumbent upon the court to strive to preserve impartiality and to avoid allowing anything to undermine the defendant’s presumption of innocence. On the other hand, the trial court was charged with the duty to preserve the safety of counsel, jury, witnesses, spe-cators — in short, everyone inside the courtroom. Clardy, 540 F.2d at 442-43. Judge Giannini, called upon to juggle these competing considerations, performed the resultant balancing with care. His conclusion that, in this instance, the interests of justice required the presence of the troopers, while perhaps fairly debatable, was well within the perimeters of his discretion. E.g., Gambina, 564 F.2d at 24. The necessity for heightened security for this trial was manifest. As noted by the state supreme court, the voir dire of the venire disclosed no prejudice attributable to the presence of the police. Less totalitarian alternatives appear to have been explored and rejected on rational grounds. The security measures approved here, extreme though they may have been, did not, under the totality of the circumstances, deny due process or equal protection to the petitioner. See Hardee v. Kuhlman, 581 F.2d 330, 331-32 (2d Cir.1978); United States v. Howell, 514 F.2d 710, 714-15 (5th Cir.), cert. denied, 423 U.S. 987 [96 S.Ct. 396, 46 L.Ed.2d 304] (1975).” We extensively disagree. The Rhode Island court said the presence of the armed state police was an extraordinary event, not that the circumstances of the trial were extraordinary. The trial judge had not balanced with care the competing considerations of avoiding the undermining of the defendants’ presumption of innocence and preserving the safety of counsel, jury, witnesses and spectators. Rather, with no threats shown to safety, he balanced nothing, but simply indicated a fear that since the defendants had not been bailed, they might flee from the courtroom. There was no evidence even suggesting any unusual likelihood of this; nor had anything whatever made “manifest” the “necessity for heightened security.” As for the exploration of less “totalitarian alternatives,” the exploration was limited, notwithstanding defendants’ suggestions, to inquiring whether regular commitment officers were available without inconveniencing the Presiding Justice, and whether the union contract permitted the state police to appear out of uniform and unarmed. Even if, instead of falling far short, the facts had been as the court stated, the law, as demonstrated by five of the six cases cited in its opinion would not have supported its result. In Kennedy v. Cardwell, 487 F.2d at 108-09 the court said, “... [G]uards seated around or next to the defendant during a jury trial are likely to create the impression in the minds of the jury that the defendant is dangerous or untrustworthy____ [Gjuards can be strategically placed in the courtroom when more than normal security is needed and can be hidden in plain clothes, [and] the jury never needs to be aware of the added protection so that no prejudice would adhere to the defendant.” United States v. Cardy, 540 F.2d at 442-43 is to the same effect, the court emphasizing that the guards wore plain clothes, and carried their weapons concealed. To this we would add a citation to United States v. Jackson, 549 F.2d 517 (8th Cir.1977), cert. denied, 430 U.S. 985, 97 S.Ct. 1682, 52 L.Ed.2d 379, where the court described a Cardy scenario as “maximum security.” Again, in the court’s twice cited case of United States v. Gambina, the court had noted, (a) that the defendant had been convicted of a prior attempt to escape, and had threatened to do so again, and (b) that instead of guards “seated around the defendant,” the court had done its best to preserve the defendant’s presumption of innocence by stationing nonuniformed marshals at the courtroom door. 564 F.2d at 24. These were hardly authorities to justify a finding of the trial court’s careful balancing of “avoiding] allowing anything to undermine the defendant’s presumption of innocence ... [and] presenting] ... safety.” Such citations could be readily multiplied. The district court cited only one case to the contrary. In Hardee v. Kuhlman, 581 F.2d 330 (2d Cir.1978) (2-1) the district court denied habeas corpus with relation to a state court murder trial in which several armed guards were continuously in the courtroom; one seated three feet behind the defendant. No special need was manifest. In affirming, the court noted that this was apparently New York procedure. The court cited no authority, and contented itself, as we believe it had to, by disagreeing with, or attempting to distinguish, the many cases cited by the dissenting judge. We must regard the majority decision as singularly unpersuasive. Most important of all, the district court failed to cite cases from our own circuit. In Young v. Callahan, 700 F.2d 32 (1st Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 194, 78 L.Ed.2d 170, decided the year previous, we held it was an excessive, and hence unconstitutional, restraint to confine the defendant in a prisoner’s dock during trial without a showing of special need, as being a “constant reminder of the accused’s condition.” 700 F.2d at 35. Of particular pertinency, we had said, “Where some form of security is essential, the dock seems far superior to surrounding the defendant with security personnel.” Id., at 36. The state’s brief would distinguish Young by saying, “The use of a prisoner’s dock to physically confine a defendant at trial is obviously bound to be obtrusive and more likely prejudicial to a defendant’s right to a fair trial than is the mere general presence of armed police in the courtroom.” (Emphasis suppl.) We can sympathize with counsel having to make bricks without straw, but not to this extent. Returning to the case at hand, the trial judge was neglectful of the fact that his reversal had been with the court’s knowledge that defendants had not been admitted to bail; oblivious to the court’s language and its citations of ABA Standards emphasizing that physical restraint should be the minimum needed, and, seemingly,, forgetful that his reversal had occurred in spite of the fact that the jurors already, as the reversing court knew, were being examined for possible prejudice on the voir dire. Proceeding precisely as if nothing had happened, the trial court concluded, “I am firmly convinced [in the light of the voir dire, that the presence of the armed, uniformed troopers] in this courtroom, has no effect whatsoever upon the constitutional rights of these defendants.” To us surprisingly, in view of its own, explicit, opinion in Byrnes I, the Rhode Island court, based on the voir dire, with equal assurance, and equal lack of any supporting authority, agreed. "... [W]e find no reason whatsoever to fault his conclusion.” 433 A.2d ante, at 663. We might find it very difficult to have such total confidence in the jurors’ disclaimers, even a priori, in light of the answers of some of them indicating a belief that the troopers were there to “protect” the jury and the audience. We would ask, protect them from whom? However, we do not rest our decision on such a factual issue. Even if all jurors had indicated an unreserved opinion that the troopers’ presence would not affect them, such expression, on a case as extreme as this, where there was no need to rely on it, is totally unacceptable. It is human nature to believe that one is able to disregard “irrelevancies,” and to be totally fair and impartial, or, alternatively, it is human to be unwilling to admit pub-lically that one cannot. But even if one believed it fully at the time, insidiously this obliviousness can wear off. Observing, for over two months of trial, and constantly reminded, perhaps of the burden or of the expense, of keeping, not one, but four armed troopers daily in court sitting immediately behind the defendants, how could one help but think the state had cause to believe that there was a compelling necessity therefor. This was far more than a symbolic guard. Must not these, undoubtedly unarmed, defendants be very bad men, certainly not to be trusted? See Kennedy v. Cardwell, ante. Were some equally bad confederates going to try to spring them from the very courtroom? With all respect to the Rhode Island court, it is beyond our imagination how this vivid, and constant, show of force could fail to detract from the presumption of innocence. At the expense of repetition, we are not talking about cases where a compelling necessity required the physical restraint, so that accepting the jurors’ assurances is the best that could be done. Nor are we concerned with a single incident which a juror might be able at least to remove from the front of his thinking. Further, there is a significant difference between seeing a defendant with heavy armed restraint in the courtroom, and outside, simply while being transported. United States v. Ayres, 725 F.2d 806, 812-13 (1st Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 84, 83 L.Ed.2d 31. Almost anyone might have a temptation to escape when outside of the courtroom and relatively free. Once defendants are safely seated inside, a constant guardian of four armed officers speaks in superlatives, in terms of extraordinary apprehension, not routine caution. In this posture the state argues that the error was harmless. We doubt whether we could ever find such an unnecessarily striking display harmless. For a state to go out of its way to create this “extraordinary” atmosphere, to quote Byrnes I, and then turn around and say it was meaningless, comes, we regret to say, close to disingenu-ousness. In any event, we reject the reasons given for calling it harmless. The fact that the jury found some of the defendants not guilty could merely mean, if we were to be cynical, that it was demonstrating how open-minded it was. Or, it could have concluded that, as we are told, the evidence against some defendants was weaker than against others. The fact that close restraint was believed needed does not necessarily mean it was needed as to all the defendants. Nor was the evidence against this defendant overwhelming. While we find the admission of the highly important identifying testimony, post, not to have been error, defendant’s attack on it could not be called insignificant. In anticipation of a new trial, we deal briefly with Flynn’s other points. We quite agree with the Rhode Island court’s supporting the trial court’s refusal to permit defendant’s making an opening immediately following the prosecutor’s, when counsel’s announced proposal was to argue the merits and demerits of the case rather than simply to present the defense in narrative form. It is legitimate for a court to consider the purpose of an opening is to tell the jury what the case is about, not to tell it how to go about deciding it. Flynn’s approach, to attempt to persuade or influence the jurors by argument, was comparable to the growing tendency we have noted in other jurisdictions with respect to allowing counsel to conduct a psychologically-oriented voir dire, viz., to introduce the skills of advocacy before the evidence has even started. A trial should be on evidence, aided by advocacy, not the reverse. We also agree with the court in the matter of Flynn’s choice as to his time of testifying. Early in defendants’ case one of the other defendants called Flynn to the stand and asked him a few questions, including whether he, Flynn, had robbed the vault. On his denial, counsel turned him over to his own counsel, who said, “No questions at this time, Your Honor.” Upon the court asking him what he meant by “not at this time,” counsel replied that he did not know whether “any other cross-examination ... will open an area that has not been opened up.” None did. The state contented itself with introducing Flynn’s criminal record, to which he made no rejoinder. Later Flynn’s counsel sought to put him back on the stand. The court reminded counsel of the local rule that permitted a witness to testify only once and refused. One member of the court has some question whether the record shows that defendant was sufficiently aware that his taking the stand for another defendant — a voluntary action since, as a defendant, he was free to refuse — would be construed as a waiver of being called later on his own behalf. If he was, he caused his own predicament. We do not assume that this state rule would prevent a defendant’s being recalled on rebuttal, or for some special reason, but we see nothing unconstitutional in a rule that says one cannot put in one’s main testimony in segments. In any event, this question will not arise again. Finally, we affirm the propriety, under the fourteenth amendment, of eyewitness Barbara Oliva’s in-court identification of Flynn as the second robber. The trial court excluded Oliva’s pretrial identification of Flynn at his joint bail hearing, finding that the state’s failure to have notified his attorney violated Flynn’s sixth amendment rights. The admissibility of Oliva’s subsequent in-court identification depends on its reliability under the totality of the circumstances, as determined by the five-part test of Manson v. Brathwaite, 432 U.S. 98, 114-16, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). Also pertinent is whether there was a “very substantial likelihood” that the illegal confrontation between the witness and the defendant tainted her later in-court identification. See Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 383-84, 88 S.Ct. 967, 970-71, 19 L.Ed.2d 1247 (1968). In assessing these issues, Sumner v. Mata, 449 U.S. 539, 547, 549, 551, 101 S.Ct. 764, 769, 770, 771, 66 L.Ed.2d 722, and 28 U.S.C. § 2254(b) impose now upon defendant the considerable burden of proving, by convincing evidence, that the record does not support the court’s findings. Unfortunately for him, the record provides ample support. First, we find very unlikely any adverse effect of the confrontation on the in-court identification. Oliva made two accurate identifications of Flynn before she confronted him at his bail hearing. The first was on August 20, 1975, six days after the robbery. At this time, she gave a detailed description of the first robber but, compared with her second description on August 26, only a partial description of the second. Although, once admitted, the jury could have questioned why her first description was not as complete as her second, we find her description on August 20 of Flynn’s height, weight, hair color and style, and clothing, sufficiently detailed and accurate to permit a finding excluding a tainting effect from the later confrontation. Cf. Velez v. Schmer, 724 F.2d 249, 252 (1st Cir.1984) (identification not accurate where witness fails to describe height, weight, build, skin color, “or other indicia of appearance”). Moreover, on August 26, Oli-va fully described Flynn, including his facial features, and drew a picture of him which the court described as “not an unfair likeness.” True, there are arguable flaws. First is Oliva’s statement on August 20 that she could not say more about Flynn because she “did not see his face.” Second is her failure to identify Flynn’s photograph from' those shown to her on August 26. The trial court interpreted her August 20 statement as referring to Flynn’s entrance at the beginning of the robbery, at which time his arms obscured his face. The record supports this interpretation as plausible and our function is not to second-guess the trial court where its findings are supported. The court discounted her failure to select Flynn’s photograph, observing that “[t]here is no similarity at all between that photograph and as Mr. Flynn appears today.” We also note, in finding no taint from the confrontation if Oliva’s in-court identification is otherwise reliable, that the confrontation itself was not highly suggestive. Unlike the facts before us in Velez v. Schmer, 724 F.2d at 250-51, the police never directly questioned Oliva during the confrontation. Neither did they tell her that Flynn was present at the bail hearing. Oliva had previously told the police that there were seven robbers; only five men appeared at the bail hearing, and, according to the trial court, one other, Tillinghast, could have fit Oliva’s general description of robber number two. Certainly this confrontation was not necessary, see Velez v. Schmer, 724 F.2d at 251, but neither was it so suggestive as necessarily tainting the later identification, especially in light of her earlier descriptions. Defendant’s strongest point relates to the pillow-case interference with Oliva’s vision. The jury did not accept it. We have read the testimony favorable to defendant with care, but also the court’s careful analysis of the evidence meeting it, and cannot say that the court was plainly wrong. The court saw the witness, and was impressed with her “extremely acute powers of observation and recollection and attention.” It is not our duty to approach the question de novo. Reversed; the writ to be granted. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Which specific state government agency best describes this litigant? A. Judge (non-local judge; appellate judge) B. Prosecutor/district attorney (non-local, e.g., special prosecutor) C. Jail/Prison/Probation Official (includes juvenile officials) D. Other judicial official E. not ascertained Answer:
songer_genapel1	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. Milton E. SPARKS, Plaintiff-Appellant, v. GILLEY TRUCKING COMPANY, INCORPORATED, Defendant-Appellee. No. 92-1547. United States Court of Appeals, Fourth Circuit. Argued Dec. 2, 1992. Decided April 21, 1993. James Collins Landstreet, II, Cowan & Landstreet, Elizabethton, TN, argued, for plaintiff-appellant. Frank Parrott Graham, Roberts, Stevens & Cogburn, P.A., Asheville, NC, argued, for defendant-appellee. Before WILKINSON and NIEMEYER, Circuit Judges, and MORGAN, United States District Judge for the Eastern District of Virginia, sitting by designation. OPINION NIEMEYER, Circuit Judge: The principal issue presented in this appeal is whether evidence of prior speeding tickets may be admitted under Federal Rule of Evidence 404(b) to prove negligence in an automobile tort case. We hold that in the circumstances of this case it was prejudicial error for the district court to have admitted such evidence, and we therefore vacate the judgment and remand the case for a new trial. I Late on a June afternoon in 1987, Milton E. Sparks was driving up a mountain near the North Carolina-Tennessee border in his red Corvette when a logging truck came down the mountain in the opposite direction. After the vehicles passed by each other, Sparks lost control of his car, hit a tree, and sustained serious personal injuries. Sparks sued Gilley Trucking Company, the owner of the logging truck, alleging negligence, and Gilley Trucking filed a defense contending that Sparks’ own negligence contributed to the accident. At trial Sparks testified that the truck was traveling in the middle of the road and that, in trying to avoid a collision, he ran off the road and hit a tree. The driver of the truck testified to different facts, stating that Sparks was driving at an excessive rate of speed in the middle of the road and lost control when he swerved to avoid hitting the truck. To advance its theory that Sparks was speeding and, indeed, racing at the time of the accident, Gilley Trucking was allowed to introduce, over Sparks’ objection, evidence that Sparks had been convicted of speeding on several prior occasions. Relying on Federal Rule of Evidence 404(b), the district court admitted the evidence “to show intent, preparation, plan or motive to race or speed on the day in question.” This evidence formed a principal part of Gilley Trucking’s defense that on the day of the accident Sparks was contributorily negligent. Gilley Trucking also presented testimony of the investigating police officer who estimated Sparks’ rate of speed immediately before the accident at 70 m.p.h. The jury found that negligence of both drivers contributed to the accident and, as required by North Carolina law, rendered judgment for the defendant trucking company. On appeal Sparks contends that the district court erred in admitting both the evidence of prior speeding tickets and the expert testimony. II The principal issue turns on whether the fact that Sparks was convicted of speeding on prior occasions had a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R.Evid. 401. The analysis begins with the recognition that Federal Rule of Evidence 404(a) provides that “[ejvidence of a person’s character or a trait of character” is not admissible to prove that a person acted in conformity with that character or trait on a particular occasion. Attempting to prove conduct by showing a character trait is too general and unreliable a method, and therefore it is excluded under the same principle as is reflected in Rule 403 — any probative value is “substantially outweighed by the danger of unfair prejudice.” Accordingly, Rule 404(b) provides that evidence of prior “crimes, wrongs or acts” may be admitted to prove a relevant fact except when it is offered solely to “prove the character of a person in order to show action in conformity therewith.” Rule 404(b) is thus a rule of inclusion that permits the admission of prior acts if probative to an aspect of the case and not offered merely to establish a character trait which would encompass the type of conduct in question. See United States v. Masters, 622 F.2d 83, 85-86 (4th Cir.1980). Thus, when intent to commit a crime is at issue, we have regularly permitted the admission of prior acts to prove that element. A criminal defendant, for example, cannot deny knowledge of drug trafficking or an intent to traffic in drugs and at the same time preclude the admission of the government’s evidence of prior occasions when he willingly trafficked in drugs. We have held repeatedly that when intent to commit an act is an element of a crime, prior activity showing a willingness to commit that act may be probative. See, e.g., United States v. Mark, 943 F.2d 444, 448 (4th Cir.1991); United States v. Rawle, 845 F.2d 1244, 1247-48 (4th Cir.1988). The Supreme Court pointed out in Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), the importance that prior act evidence may have in deciding a disputed issue, “especially when that issue involves the actor’s state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct.” Id. at 685, 108 S.Ct. at 1499. Thus when evidence of prior acts is probative of a fact material to the case, Rule 404(b) permits its admission even when it may tend also to show a character trait. To protect against the danger of prejudice the court should give a limiting instruction under Rule 105 if one is requested and must, in any event, weigh the prejudicial effect under Rule 403. In a common law negligence case, however, the issue is generally not the defendant’s state of mind. Rather the factfinder must determine whether the defendant was acting as a reasonable person would have acted in similar circumstances. In this case Gilley Trucking was attempting to prove that Sparks was speeding or racing at the time of the accident and therefore driving in a negligent manner that contributed to the resulting accident. Yet proof of negligence does not require a showing of intent or plan, the stated purposes for which the prior speeding tickets were admitted by the district court. Moreover, prior acts of speeding alone do not establish intent because a speeding violation does not depend on intent. A speeding ticket may be issued regardless of the defendant’s state of mind. Indeed, accidental or inadvertent speeding may result in the issuance of a speeding ticket. See N.C.Gen. Stat. § 20-141. If Gilley Trucking was attempting to show that Sparks was racing at the time of the accident, it took upon itself the unnecessary burden of showing that Sparks was speeding intentionally to show that he was driving negligently. While an intentional act does require proof of a state of mind, for which prior acts may be admissible, a showing of prior acts of speeding without more is still not relevant to establishing this state of mind. Gilley Trucking made no effort to show that any prior speeding was deliberate or was in any way related to racing. Indeed, Sparks’ explanations tend to suggest that the conduct resulted more from inadvertence. For example, he said, “As far as I know every speeding ticket I’ve ever had has been out on interstate road traveling back and forth to and from jobs.” Nor did Gilley Trucking present any foundation for the theory that-the prior tickets revealed a “plan” or a “motive” to race on the day of the accident, and none of the evidence about the tickets discloses preparation to speed or race on that day. The relatively extensive evidence of the several prior speeding tickets in this case tended to show at most a trait about Sparks, that he tended to speed, and to suggest that because he speeded on prior occasions, he was speeding at the time of the accident. This purpose for using the prior acts evidence, however, is the one specifically prohibited by Rule 404, as we have already observed, and the evidence should not have been admitted. While it was error to have admitted evidence of the prior speeding tickets in the circumstances of this case, a new trial is warranted only if admission of the evidence was not harmless error. See 28 U.S.C. § 2111 (judgments not to be set aside on appeal based on “errors or defects which do not affect the substantial rights of the parties”); Fed.R.Evid. 103(a) (same). In the circumstances of this case we do not find the error harmless. When the speeding tickets are excluded, the evidence presents close factual issues. Sparks and the Gilley Trucking driver testified to different versions of the events leading to the accident. There was conflicting testimony and physical evidence of Sparks’ speed. Against the backdrop of this stand-off, the jury heard detailed evidence about several prior occasions when Sparks was convicted of speeding, and this evidence thus became an important aspect of Gilley Trucking’s presentation to the jury. Cf. Bonilla v. Yamaha Motors Corp., 955 F.2d 150, 154-55 (1st Cir.1992) (finding erroneous admission of speeding tickets not harmless error). We cannot determine that the evidence did not adversely affect the outcome of the case. See Ellis v. International Playtex, Inc., 745 F.2d 292, 305 (4th Cir.1984) (error not harmless when court could not be certain refusal to admit evidence did not prejudice outcome). Accordingly, we conclude that a new trial is necessary in this case. Ill Sparks also contends that the district court erred in allowing Officer D.K. Doster, who investigated the accident, to testify as an expert witness for Gilley Trucking that immediately prior to the accident he estimated Sparks’ speed at 70 m.p.h. Sparks argues that the court should not have admitted the expert testimony of Officer Doster as it was without sufficient factual basis, in particular because Officer Doster did not measure the friction of the highway surface in question before applying a coefficient of friction to the length of the skid marks when estimating Sparks’ speed. While resolution of this issue is not necessary to the immediate disposition of this appeal, we address it because the testimony of Officer Doster may again be offered at a new trial. Expert witnesses may testify whenever special knowledge will assist the trier of fact. Fed.R.Evid. 702. Whether to allow expert testimony and whether a potential witness possesses sufficient education and training to render an expert opinion are questions committed to the discretion of the trial judge, and our review determines only whether this discretion has been abused. See Persinger v. Norfolk & W. Ry., 920 F.2d 1185, 1187 (4th Cir.1990). Here, the district court concluded that expert testimony would help the jury evaluate the physical evidence and consider how fast Sparks was driving. The court accepted Officer Doster as an expert on rates of speed after it was presented with evidence of his experience in accident investigation and reconstruction as a member of the North Carolina Highway Patrol and the Franklin Police Department and his training through formal instruction. We do not find that the court abused its discretion. Sparks argues, however, that even if Officer Doster was properly accepted as an expert, he should not have been allowed to give his opinion on speed without having conducted a proper coefficients of friction test because without it he lacked the necessary factual basis to form a useful opinion. Sparks is correct in noting that a court may refuse to allow a generally qualified expert to testify if his factual assumptions are not supported by the evidence. See Eastern Auto Distrib., Inc. v. Peugeot Motors of America, Inc., 795 F.2d 329, 337-38 (4th Cir.1986). In this case, however, the objection relates more to how Officer Doster formed his opinion than to the facts upon which it was based. Officer Doster was the first officer on the scene. He saw the skid marks, their length, and their direction, and he observed the highway surface, the condition of the car, and the tree it hit. Moreover, all of the facts he considered in making his estimate were in evidence. Whether he properly performed a test goes more to the weight to be attached to his opinion than to its admissibility. See, e.g., Bazemore v. Friday, 478 U.S. 385, 400, 106 S.Ct. 3000, 3009, 92 L.Ed.2d 315 (1986) (finding that failure to include certain variables in a regression analysis went to the probative weight of the analysis, not to its admissibility). The proper methods for addressing the perceived shortcoming in Officer Doster’s technique were cross-examination and the presentation of rebutting expert testimony, and Sparks availed himself of both methods. Thus, while we find no abuse of discretion by the district court in admitting the expert testimony, we nevertheless vacate the judgment and remand for a new trial because the admission of evidence of prior speeding tickets was improper and prejudicial. REVERSED AND REMANDED. . In cases where character itself becomes relevant to an issue, however, it may be proved by prior acts. See Fed.R.Evid. 405(b). . We are careful to note that our opinion is limited to the circumstances of this case and should not be construed to establish a per se rule that would require the exclusion of a party's driving record under different circumstances. See, e.g., United States v. Fleming, 739 F.2d 945, 949 (4th Cir. 1984) (admission 'of prior drunk driving convictions not error in vehicular death case as prosecutor must show malice&emdash;awareness of risk of drinking and driving), cert. denied, 469 U.S. 1193, 105 S.Ct. 970, 83 L.Ed.2d 973 (1985). . In contrast, we need not address Sparks' final assignment of error&emdash;that the district court erred in refusing to allow Earl Street to testify for Sparks as a rebuttal witness to impeach the testimony of the Gilley Trucking Driver. The court ruled that Sparks' notification of the witness to Gilley Trucking was untimely, and to permit the witness to testify would be "unfair surprise” without giving Gilley Trucking "time to look into it.” By our new trial order, this issue is rendered moot. 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_appel1_7_5	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). Clarkson FULLER, Appellant, v. Kermit A. WEAKLEY, Superintendent, Lorton Reformatory, Lorton, Va., & D. C. Board of Parole, et al., Appellees. No. 9864. United States Court of Appeals Fourth Circuit. Argued May 7, 1965. Decided Aug. 2, 1965. Harvey B. Cohen, Arlington, Va. (Court-assigned counsel) [Tolbert, Lewis & Fitzgerald, Arlington, Va., on brief], for appellant. MaeDougal Rice, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on brief), for appellees. Before BOREMAN and J. SPENCER BELL, Circuit Judges, and BUTZNER, District Judge. J. SPENCER BELL, Circuit Judge: This is an appeal from an order of the district court dismissing a petition for a writ of habeas corpus without an evidential hearing. The petitioner, Clarkson Fuller, was convicted in the District Court for the District of Columbia of violating 26 U.S.C.A. § 4705(a) (narcotics) and sentenced on February 27, 1959, under the provisions of 26 U.S.C.A. § 7237(b) to six years. He was incarcerated at Lorton, Virginia, a District of Columbia penal institution, where his good time allowance was computed under 18 U.S.C.A. § 4161. On April 5, 1963, he was given a mandatory good time release under the provisions of 18 U.S.C.A. § 4163 and was placed in a parolee status in compliance with the provisions of 18 U.S.C.A. § 4164 until August 30, 1964, the maximum expiration date of his six year sentence. On August 14, 1963, a parole violator warrant was issued by the District of Columbia Board of Parole [hereinafter D.C.Parole Board] under the provisions of section 24-205 of the District of Columbia Code [hereinafter D.C.Code] charging that the petitioner had violated the terms of his conditional release. On December 13, 1963, Fuller was arrested in New York City, convicted on a charge of petit larceny, and sentenced to serve six months in jail. On December 17,1963, the D.C. parole violator warrant was “placed as a detainer” against the defendant pending the completion of his sentence in New York. On April 30,1964, a habeas corpus petition by the defendant was docketed in the United States District Court for the Southern District of New York. According to Fuller’s reply in the present proceeding, the New York habeas petition attacked the D.C. parole violator warrant on the ground that “they” were attempting to extradite him from New York for the commission of misdemeanors in the District of Columbia. The petitioner here also alleges that one of the grounds of his New York habeas petition was that the D.C. warrant could not lawfully issue for a breach of the conditions of his good conduct release for reasons which shall be discussed later. The New York habeas petition was set down on the motion docket for a hearing on May 11, 1964. On May 15 the defendant’s New York sentence expired, and on that date the D.C. parole violator warrant was served on him at the Manhattan House of Detention in New York City. Fuller was taken from New York and delivered to a D.C. jail on May 18,1964. On June 1, 1964, it appears from the answer of the U. S. Attorney in this case, the New York habeas petition was dismissed without prejudice. On June 10, 1964, the defendant was convicted in the Court of General Sessions for the District of Columbia of two misdemeanors and sentenced to serve a total term of 360 days. These sentences were not completed when this habeas petition was filed on June 29,1964. It is for these misdemeanors that the defendant alleges he was illegally “extradited” from New York City. Fuller’s current habeas corpus petition was dismissed by the District Court for the Eastern District of Virginia on August 3, 1964. This appeal followed. The appeal raises three issues. First, the petitioner contends that the provisions of the D.C.Code relating to indeterminate sentences and paroles do not apply to him because he was convicted of violating a general federal statute, as distinguished from a criminal law of the District of Columbia, and because he was released under the federal mandatory good time statute. Consequently, he argues, the D.C. Parole Board was without power to arrest him under the D.C.Code provision authorizing the arrest of parole violators. This argument is without merit. In Gould v. Green, 78 U.S.App.D.C. 363, 141 F.2d 533 (1944), this very point was settled. There the prisoner had been sentenced under the Dyer Act (a general federal law), had been imprisoned in a D.C. penal institution, and had subsequently received a mandatory good time release. He was recommitted on a parole violator warrant issued by the D.C. Parole Board. The Court of Appeals for the District of Columbia Circuit upheld the order of recommitment, holding that there was no doubt that the D.C. Parole Board had the same powers over prisoners confined in D.C. institutions for violating general federal statutes as the U.S. Parole Board had over violators of general federal statutes confined in institutions outside the District. It specifically held that the federal mandatory good time release provisions, including the predecessor of 18 U.S.C.A. § 4164, applied to violators of general federal statutes confined in District of Columbia institutions. In Gould there was no issue involving the recomputation of the prisoner’s remaining term, because the provisions of the federal statute and the D.C.Code were identical. Subsequently the D.C.Code was amended to provide for a method of sentence recomputation which resulted in a longer confinement upon recommitment for D.C. prisoners. In Howerton v. Rivers, 326 F.2d 653 (D.C. Cir. 1963), the court held under factual circumstances identical to this case that the provisions of the D.C. Code relating to recomputation of sentence applied upon recommitment to a D.C. prisoner, even though he had originally violated a general federal law. Neither Gilstrap v. Clemmer, 284 F.2d 804 (4 Cir. 1960), nor Clokey v. United States Parole Board, 310 F.2d 86 (4 Cir. 1962), is contra on the facts, for both of these cases dealt with prisoners who had violated provisions of the D.C. Code, the former having been confined at all times in a D.C. institution and the latter having been confined for part of his sentence in an institution outside the District but later having been recommitted to a D.C. institution. It is true that there was a suggestion in both those cases, contrary to the holding in the Hower-ton case, that a D.C.Code violator upon recommitment should have his sentence computed under the D.C.Code provisions and a general federal law violator should have his sentence computed under the federal statutes, in both cases without regard to the place of confinement. However, we are not here concerned with the term of the prisoner’s recomputed sentence. Our sole concern is with the power of the D.C. Parole Board to arrest and recommit Puller, and we are persuaded by Gould and Howerton that it had such power. Second, the petitioner contends that even if he, a general federal violator, was subject to the provisions of the D.C. Code pertaining to parole, the D.C. Parole Board did not have the power to issue the parole violator warrant in this case because the terms of 26 U.S.C.A. § 7237(d) specifically make the sections of the D.C.Code dealing with parole violators (including the right to rearrest) inapplicable to narcotics offenders. This argument is also without merit. To construe a statute the expressed intention of which was to deny a narcotics violator the benefits of parole in such a way as to make his case an exception to the statute which places restrictions on prisoners conditionally released on good time would indeed be an incongruous interpretation. The short answer to the petitioner’s argument is that the D.C. Parole Board acted under authority of 18 U.S.C.A. § 4164 in placing conditions upon his release. As Gould v. Green, supra, has held, this section is applicable to D.C. prisoners, and it is not affected by the provisions of 26 U.S.C.A. § 7237(d). United States v. Figueroa, 325 F.2d 418 (2 Cir. 1963). Finally, the petitioner alleges that he was unlawfully removed from New York to the District of Columbia. He bases his argument upon two grounds: first, he asserts that he was removed from the Southern District of New York while he had pending in that district a petition for a writ of habeas corpus and second, he claims that he was arrested and removed without the hearing called for in Rule 40(b) of the Federal Rules of Criminal Procedure. We think these allegations of fact standing alone would raise nonfrivolous issues which would merit consideration at a plenary hearing. In Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963), a case involving the interpretation of various United States parole statutes and regulations issued thereunder, the court laid down detailed guidelines to be applied to prisoners either on parole or in parole status by virtue of having been conditionally released on good time. This decision emphasized the critical aspects of the exercise of a parole board’s power in arresting a parolee and transporting him hundreds of miles before affording him any sort of hearing. The court said: “While the retaking is not ‘an arrest within the meaning of the constitutional provisions,’ Story v. Rives, 68 App.D.C. 325, 97 F.2d 182 (1938), the use of the terms ‘warrant’ and ‘arrest’ by Congress and vesting in the Board the power to issue the warrant satisfy us that something more than casual processes or varying improvisations was intended.’’ 318 F.2d at 244. The court directed the U.S. Parole Board to amend its regulations, if necessary, to require that a parole violator warrant contain a statement of the alleged violations of the conditions of parole or that a copy of the Board’s application for such a warrant be attached to any warrant which is issued in order that the parolee may have reasonable notice of the grounds asserted as the basis for the revocation of his release and a reasonable opportunity to refute the charges. The copy of the parole violator warrant which the petitioner attaches to the pleadings in this case contains neither. The Hyser opinion requires that the prisoner be given an informal hearing at or near his place of arrest before being transferred to a distant prison. The petitioner here alleges that he was “virtually kidnapped from another jurisdiction where a [petition for a] writ of habeas corpus was pending contesting their [D.C. Parole Board] right to place him in involuntary servitude.” Other facts appear from the record before us, however, which when considered in the light of our conclusion that the D.C. Parole Board did have supervision over the petitioner, obviate the necessity of granting him a plenary hearing at this time. We would under no circumstances condone the conduct of the officers in removing the defendant from New York without a Rule 40(b) hearing if in fact the situation were as alleged by the petitioner. Fuller alleges that his New York habeas petition attacked the D.C. Parole Board’s power to issue a parole violator warrant for him, and on this point we have decided that he is wrong as a matter of law. Consequently, he has had his hearing on this issue, late though it may be. He has also admitted that he was convicted of a crime in New York while he was on mandatory good time release. Nor does he attack the validity of his misdemeanor convictions in the Court of General Sessions for the District of Columbia for offenses which occurred while he was on good time release. His contention is that he could not be “extradited” for trial on misdemeanor charges. A copy of the misdemeanor sentences is attached to the Government’s response to his habeas petition. These facts would-clearly entitle the Board to issue the parole violator warrant for his arrest, even though at his Board hearing later the evidence might conceivably show that he was not subject to recommitment. Thus the petitioner himself has alleged facts which make it unnecessary that he be afforded further relief for any improper conduct by which he was returned to custody in the District of Columbia for violating his conditional release. The order of the district court denying Fuller’s petition for a writ of habeas corpus is therefore affirmed. Affirmed. . This statute makes it mandatory to reduce the sentences of all federal prisoners by a specified number of days for good conduct while in jail. Such releasees are placed under restraints and are treated as if they were parolees, in order to enforce their good conduct. Good conduct releases differ from parole in that when earned, they are mandatory, and they can be granted in eases where parole is not available. . “When petitioner filed this application for a writ of habeas corpus, he was in confinement at Rikers Island by virtue of a conviction for petit larceny in the New York state courts. The respondent named in the application was the warden of the penitentiary where petitioner was confined. On May 15, 1964, petitioner was released from the latter’s custody and turned over to federal authorities for return to Lorton Reformatory in Virginia under a mandatory release violator warrant. Since petitioner at this time is outside the territorial jurisdiction of this Court and there is no respondent within the jurisdiction of this Court who has present custody of petitioner, the petition for a writ is dismissed without prejudice to whatever remedies petitioner may have in the jurisdiction where he is presently incarcerated. (Citations omitted.) “So ordered. “Dated: New York, N. Y. June 1, 1964 /s/ Wilfred Feinberg U.S.D.J.” . It appears from the district court’s opinion that Fuller is presently serving the balance of his original sentence, subject to a good time release revocation hearing. . §§ 24-201a through 24-209. . 141 F.2d at 535. . Under either method of computation, the prisoner would not yet be entitled to release. . The pertinent parts of 26 U.S.C.A. § 7237(d) read as follows: “§ 7237. Violation of laws relating to narcotic drugs and to marihuana “(d) No suspension of sentence; no probation; etc. — Upon conviction — (1) of any offense the penalty for which is provided in subsection (b) of this section * * * the imposition or execution of sentence shall not be suspended, probation shall not be granted, section 4202 of title 18 of the United States Code shall not apply, and the Act of July 15, 1932 (47 Stat. 696; D.C.Code 24-201 and following), as amended, shall not apply.” Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
sc_respondentstate	26	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. COSTARELLI v. MASSACHUSETTS No. 73-6739. Argued March 17, 1975 Decided April 28, 1975 Robert W. Hagopian, by appointment of the Court, 419 U. S. 1066, argued the cause and filed a brief for appellant. David A. Mills, Assistant Attorney General of Massachusetts, argued the cause for appellee. With him on the brief were Francis X. Bellotti, Attorney General, and John J. Irwin, Jr., Assistant Attorney General. Mdivine Nathanson filed a brief for the Massachusetts Defenders Committee as amicus curiae urging reversal. Per Curiam. Under Massachusetts procedure, a “two-tier” system is utilized for trial of a variety of criminal charges. The initial trial under this system is in a county district court or the Municipal Court of the City of Boston. No jury is available in these courts, but persons who are convicted in them may obtain a de novo trial, with a jury, in the appropriate superior court by lodging an “appeal” with that court. At the de novo trial, all issues of law and fact must be determined anew and are not affected by the initial disposition. In effect, the taking of the appeal vacates the district court or Municipal Court judgment, leaving the defendant in the position of defendants in other States which require the prosecution to present its proof before a jury. In January 1974, appellant Costarelli was charged with knowing unauthorized use of a motor vehicle, an offense under Mass. Gen. Laws, c. 90, § 24 (2) (a) (Supp. 1975). The offense carries a maximum sentence of a $500 fine and two years’ imprisonment, and is subject to the two-tier system described above. Prior to trial in the Municipal Court, Costarelli moved for a jury trial. The motion was denied and the trial before the court resulted in a judgment of guilty. A one-year prison sentence was imposed. Costarelli thereupon lodged an appeal in the Superior Court for Suffolk County. Without awaiting proceedings in Superior Court, Costarelli appealed to this Court, seeking to establish that the Sixth and Fourteenth Amendments require that a jury be available in his first trial, whether it be in the Municipal Court or the Superior Court. He also raised speedy trial and double jeopardy contentions as bars to his retrial before a jury. On October 21, 1974, we postponed further consideration of the question of jurisdiction to the hearing on the merits. 419 U. S. 893. We now dismiss for want of jurisdiction. Title 28 U. S. C. § 1257 limits our review to the judgment of the highest state court in which a decision could be had, and we conclude that this is not such a judgment. That a decision of a higher state court might have been had in this case is established by a recent decision of the Supreme Judicial Court of Massachusetts, Whitmarsh v. Commonwealth, -Mass. -, 316 N. E. 2d 610 (1974), in which another criminal defendant sought relief from Massachusetts’ two-tier trial system. After conviction without a jury in the first tier, Whitmarsh took his appeal to the Superior Court, but thereupon sought immediate review of his constitutional contentions in the Supreme Judicial Court. As one potential basis of that court’s jurisdiction, he asserted its power of “general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided." Mass. Gen. Laws, c. 211, §3 (1958) (emphasis added). The Supreme Judicial Court rejected this basis of jurisdiction on the ground that another remedy was in fact expressly provided. It stated: “The constitutional issue the plaintiff now asks us to decide is the same issue which he raised in the District Court, and in the Superior Court by his motion to dismiss. If his motion were denied, and if he were thereafter tried in the Superior Court and found guilty, the plaintiff would have available to him an opportunity for appellate review of the ruling on his motion as matter of right by saving and perfecting exceptions thereto.” -Mass., at-, 316 N. E. 2d, at 613 (footnote omitted). It is thus clear that Costarelli can raise his constitutional issues in Superior Court by a motion to dismiss, and can obtain state appellate review of an adverse decision through appeal to the state high court. That the issue might be mooted by his acquittal in Superior Court is, of course, without consequence, since an important purpose of the requirement that we review only final judgments of highest available state courts is to prevent our interference with state proceedings when the underlying dispute may be otherwise resolved. Cf. Republic Gas Co. v. Oklahoma, 334 U. S. 62, 67 (1948); Gorman v. Washington University, 316 U. S. 98, 100-101 (1942). Costarelli argues that resort to the remedy outlined in Whitmarsh should be unnecessary, because it cannot produce the relief to which he believes he is entitled. He is of the opinion that if the Superior Court denied his motion to dismiss, he would have no alternative but to proceed to trial before a jury. Once this occurred the error would, he fears, have been cured, or at least mooted. But we think this contention confuses an argument of substantive constitutional law with an argument relating to the application of 28 U. S. C. § 1257. Whit-marsh undoubtedly contemplates that in the event the Superior Court were to deny Costarelli’s motion, he would then have to proceed to trial. But just as surely it contemplates that in the event that judgment were adverse to him, he could appeal to the Supreme Judicial Court and raise before it precisely the constitutional question which had been raised by the motion to dismiss in the Superior Court. Whether the fact that he was afforded a jury trial in the Superior Court proceeding “cured” or “mooted” his federal, constitutional claim is a matter of federal constitutional law, for determination initially in state courts and ultimately by this Court. That the state courts might conclude that the second-tier trial terminated his claim does not mean that Costarelli may draft his own rules of procedure in order to raise the claim only before those Massachusetts courts which he deems appropriate. Massachusetts affords him a method by which he may raise his constitutional claim in the Superior Court, and a method by which he may, if necessary, appropriately preserve that claim for assertion in the Supreme Judicial Court. The Supreme Judicial Court of Massachusetts, therefore, is “the highest court of a State in which a decision could be had” on his claim. Since no decision has been had in that court, we lack jurisdiction of this case. Appellant relies on language from Largent v. Texas, 318 U. S. 418 (1943), to support a contrary result. In that case we reviewed a judgment of the County Court of Lamar County, Tex. We did so because under Texas law the state-court system provided no appeal from that judgment of conviction. We noted that state habeas corpus was available to test the constitutionality on its face of the ordinance under which Mrs. Largent had been convicted, but that it was not available to test its constitutionality as applied in her particular case. We then stated: “Since there is, by Texas law or practice, no method which has been called to our attention for reviewing the conviction of appellant, on the record made in the county court, we are of the opinion the appeal is properly here under § [1257 (2)] of the Judicial Code.” Id., at 421 (emphasis added). Appellant argues that because the proceeding in Massachusetts Superior Court would not be a review on the record made in Municipal Court, the de novo proceeding in Superior Court is a collateral proceeding which need not, under Largent, be utilized to satisfy the highest-court requirement. Appellant's reliance is misplaced. In Largent, we went on to say: “The proceeding in the county court was a distinct suit. It disposed of the charge. The possibility that the appellant might obtain release by a subsequent and distinct proceeding, and one not in the nature of a review of the pending charge, in the same or a different court of the State does not affect the finality of the existing judgment or the fact that this judgment was obtained in the highest state court available to the appellant. Cf. Bandini Co. v. Superior Court, 284 U. S. 8, 14; Bryant v. Zimmerman, 278 U. S. 63, 70.” 318 U. S., at 421-422. The present case is plainly distinguishable. Here the Municipal Court proceeding did not finally dispose of the charge, and the proceeding in Superior Court is not a distinct suit or proceeding. It is instead based on precisely the same complaint as was the Municipal Court trial. In Largent, the available review on habeas corpus was not based on the record in county court for the reason that habeas review was sharply limited in scope. Similarly, in Bandini Co., cited in Largent, the “distinct suit” was a proceeding for a writ of prohibition in which the only litigable issue was lower court jurisdiction. Here, on the contrary, the review is not circumscribed so as to be narrower than normal appellate-type review on the record made in an inferior court, but is instead so broad as to permit de novo relitigation of all aspects of the offense charged, whether they be factual or legal. It is because of the breadth of appellate review, not its narrowness, as in Largent, that the record is not the basis of review in Superior Court. Greater identity of proceedings in two different courts would be difficult to imagine, and it would be strange indeed to class the Superior Court trial as a form of “collateral” review of the Municipal Court judgment in the same sense as habeas corpus is traditionally thought of as a “collateral attack” on a judgment of conviction. The appeal is dismissed for want of jurisdiction. So ordered. Mb. Justice Douglas took no part in the consideration or decision of this case. See Mass. Gen. Laws, c. 218, § 27A, and c. 278, § 18 (Supp. 1975); c. 278, § 18A (1972). Unlike the situation in Colten v. Kentucky, 407 U. S. 104 (1972), the initial trial cannot be avoided by a plea of guilty without also waiving the right to a jury trial in superior court. Appellant argues that in several respects the district court or Municipal Court judgment remains in effect despite the lodging of an appeal. In particular, he points to the facts that if a defendant defaults in superior court, the first-tier judgment becomes the legal basis for imposing sentence, and that appeal does not eliminate such collateral consequences as revocation of parole or of a driver’s permit. These matters do not affect the result we announce today, and merit no further discussion. There is some question as to whether review should have been sought by way of a petition for certiorari rather than appeal. Under 28 U. S. C. § 1257 (2), we have appellate jurisdiction when the constitutional validity of a state statute is drawn in question and the decision is in favor of its validity. In the present case it is not clear that the denial of a jury in the first-tier trial resulted from the operation of a statute rather than of custom and practice. We need not resolve the issue, because it cannot affect our disposition — if not properly denominated an appeal, we would treat the papers as a petition for certiorari, 28 U. S. C. §2103, and the highest-state-court requirement of § 1257 applies to petitions for certiorari as well as to appeals. Question: What state is associated with the respondent? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
songer_applfrom	E	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). Giuseppe BERTONE, Plaintiff, v. TURCO PRODUCTS, Inc., a Corporation of the State of California, Defendant and Third-Party Plaintiff-Appellant (FLYING TIGER LINE, Inc., a Corporation of the State of Delaware, Third-Party Defendant-Appellee). No. 12312. United States Court of Appeals Third Circuit. Argued Jan. 6, 1958. Decided March 4, 1958. Philip M. Lustbader, Newark, N. J. (Schneider, Lustbader & Morgan and George H. Harbaugh, Newark, N. J., on the brief), for appellant. Harry A. Margolis, Newark, N. J. (Max L. Rosenstein, Newark, N. J., on the brief), for appellee. Before MARIS, McLAUGHLIN and STALEY, Circuit Judges. McLAUGHLIN, Circuit Judge. Giuseppe Bertone was a recent immigrant to this country, able to speak or understand only very little of the English language. It would seem that he could read no language. He was employed by Flying Tiger Line, Inc. and on February 23 or 24, 1953, in the course of that employment he was put to work cleaning some aircraft engine parts. To this end he was given a solution called “Paint-Gon” to be used in dissolving the foreign substances deposited on the aircraft engine parts during their operation. Paint-Gon has dangerous properties and consequently should not be permitted to touch the person, nor should its fumes be inhaled for very long. The dangerous qualities probably are a necessary concomitant of the product which will adequately perform the cleaning job. The containers in which Paint-Gon is made available apparently bear a label warning of the danger. Recommended procedure in using the product indicates that it be applied in a well-ventilated space with tools permitting use of the substance without direct contact therewith. The extent of the instructions Bertone received from his employer, the extent of his comprehension of whatever instructions were given, and the type of tools and working space he was assigned do not appear from the pleadings. At any rate it does appear that Bertone was injured by exposure to Paint-Gon. Subsequently he recovered a judgment in excess of $10,000 under the New Jersey Workmen’s Compensation statute. Bertone thereafter filed this action against Turco Products, Inc., a California corporation and manufacturer of Paint-Gon, on a theory of negligence in failing to warn purchasers and prospective users of the dangerous characteristics of the product and of the precautions required for its use. Turco by answer set up defenses denying negligence, asserting contributory negligence, assumption of risk, and supervening negligence by a third party. Thereafter it brought in Flying Tiger by filing a third party complaint asserting a right to indemnity on the ground that Flying Tiger had not adequately instructed Bertone of the dangers in using Paint-Gon, even though Flying Tiger had been apprised thereof, and consequently Bertone’s injury was a result not of Turco’s negligence, but of Flying Tiger’s. Flying Tiger answered denying liability to Turco and setting up the workmen’s compensation recovery as a bar to any further recovery on a cause of action arising from the same accident. Subsequently Flying Tiger moved for summary judgment of dismissal, supported by affidavit, of the third party complaint against it. The dismissal was granted, without opinion, presumably for failure to state a claim upon which relief could be granted. The question on this appeal from the order of dismissal is whether by the law of New Jersey Turco’s third party complaint makes out any possibility of proof under which Bertone could recover from Turco for which Turco would be entitled to indemnification by Flying Tiger. The situation presents four possibilities of legal consequence: (1) neither Flying Tiger nor Turco was negligent as to Bertone, (2) Flying Tiger was negligent while Turco was not, (3) Turco was negligent whereas Flying Tiger was not, or (4) both Flying Tiger and Turco were negligent as to Bertone. Bertone asserts he was not warned of the dangers of Paint-Gon. Turco states that its warning to prospective users was adequate. If Turco’s warning was adequate, there could be no recovery from Turco by Bertone irrespective of whether or not Flying Tiger may have acted negligently as to Bertone. This would dispose of the first two possibilities of legal consequence; Bertone could not recover from Turco for negligence by Flying Tiger in failing to pass on to Bertone the manufacturer’s adequate warning when Flying Tiger assigned Bertone to the task requiring the use of Paint-Gon. It is well nigh inconceivable that Bertone, under the disability of illiteracy would have found his own way, without some explicit guidance, to the use of Paint-Gon.. The supplier of the material to be used for the supplier’s business purposes is under a duty to pass along the manufacturer’s warning if he knew of it. Restatement, Torts, § 391. Accord, Tulpom v. Cantor, 87 N.J.L. 213, 93 A. 573 (E. & A. 1915); Ramsey v. Raritan Copper Works, 78 N.J.L. 474, 74 A. 437 (E. & A. 1909); Cf. Restatement, Torts, § 324, Comment b. In that, sort of situation it is clear that only Flying Tiger would have been negligent. Thus if Turco exercised reasonable care-to inform users of Paint-Gon of that product’s dangers, Bertone cannot recover from Turco; a fortiori there would be no call for indemnity of Turco by Flying Tiger. But if the warning given by Turco to prospective users of Paint-Gon was not adequate, then Turco is liable-in negligence to persons in that class injured by use of the product. Assuming-that the proofs could demonstrate negligence by Turco and none by Flying Tiger, indemnity could be required of Flying Tiger only if Flying Tiger had contracted' expressly or implicitly to undertake such indemnification. See Yearicks v. City of Wildwood, 23 N.J.Super. 379, 92 A.2d 873 (1952). The pleadings, however, do not present the possibility of that type of' contract. The only possible legal relationship between the three parties which remains unexplored, then, is that both Turco and' Flying Tiger acted negligently as to Ber-tone. Two theories of indemnity of Tur-co by Flying Tiger would seem to be possible there. The first of these is that if the warning given by Turco to prospective users of Paint-Gon was not calculated reasonably to afford notice of the danger, but that additional warning-meeting the requirements of adequacy was supplied to Flying Tiger by Turco, Flying Tiger could have come under a duty to Turco as well as to the prospective user to pass the additional information on to whomever Flying Tiger exposed to the product as the actual user. And if that were the fact then it is very possible that Turco itself could assert against Bertone the defense of the Workmen’s Compensation recovery by reason of its being in privity with Flying Tiger. Cf. Jacowicz v. Delaware, L. & W. R. Co., 87 N.J.L. 273, 92 A. 946 (E. & A. 1915). But cf. Yearicks v. City of Wildwood, supra. Turco could, under the supposed facts, also escape liability to Bertone by successfully showing that it was Flying Tiger’s supervening negligence in failing to relay the additional information making the warning adequate which had caused Bertone’s injury. Restatement, Torts, § 440. Be that as it may the fact is that nothing has been pleaded in the third party complaint from which it would appear that there was any more adequate, specific, or detailed warning given to Flying Tiger. And even if there were, in order for Turco to be indemnified by Flying Tiger it would be necessary to show additionally that Flying Tiger, in receiving the product with any further instructions regarding precautions, had come under a duty to Turco, either expressly or by implication, to instruct its employees more adequately than Turco had undertaken to warn generally of the product’s dangerous qualities. It remains for us to deal with the second theory by which Turco might seek recovery over from Flying Tiger, even though both were negligent as to Bertone. The fault of each as to Bertone is alleged to be a failure to convey to him the full information which each of them severally possessed concerning the dangers inherent in the use of Paint-Gon. This assumes that Turco gave some warning not amounting to a full disclosure, but that Flying Tiger wrongfully omitted to pass even the warning of which it was apprised on to Bertone. The further assumption here must be that Turco’s failure to warn was so slight in relation to the extent of the danger which could foreseeably stem from that failure, that Bertone’s injury was all but entirely caused by the neglect of Flying Tiger properly to instruct him in accordance with what information Turco had made available. The theory has been characterized as one where the passively negligent tortfeasor is entitled to recovery over against the active tortfeasor. As stated by Judge Hand in Slattery v. Marra Bros., 2 Cir., 1951, 186 F.2d 134, 139, that result is rationally possible only if the two are liable to the same person for a joint wrong. As Judge Hand has also pointed out, Slattery v. Marra Bros., supra, 186 F.2d at page 138, the doctrine may perhaps be accounted for as being an exception designed to mitigate the often harsh rule which denies contribution — of which indemnity is an extreme form — among joint tort-feasors. For whatever reason it has come into the law of some jurisdictions, the doctrine is generally limited to situations where liability has been imposed upon a party by statute or because of his legal relationship to the actual wrongdoer, Detroit Edison Co. v. Price Brothers Co., 6 Cir., 1957, 249 F.2d 3, or for acts of omission where the negligence of the other tortfeasor has been an act of commission, Banks v. Central Hudson Gas & Electric Corp., 2 Cir., 1955, 224 F.2d 631. Whether or not the negligence of Turco — if negligence there was — could be characterized as merely passive need not detain us, for it appears that the active-passive negligence doctrine has not found favor in New Jersey, at least to an extent that would affect the result here. Public Service Electric & Gas Co. v. Waldroup, 38 N.J.Super. 419, 119 A.2d 172 (App.Div.1955). That was, indeed, Judge Hand’s conclusion in the Slattery case before Waldroup pronounced for the state courts the rule that is binding on the Federal courts in this diversity case. Both Slattery and Waldroup involved attempts by a third-party tortfeasor to im-plead the plaintiff's employer for contribution, even though the employer was liable to the injured employee under the provisions of the New Jersey Workmen’s Compensation statute and consequently thereby not subject to any other form of recovery by the employee. N.J.S.A. 34: 15-8. New Jersey, since 1952, ordinarily would permit contribution among joint tortfeasors. N.J.S.A. 2A:53A-3. “Joint tortfeasors” are there statutorily defined as being “* * * two or more persons jointly or severally liable in tort for the same injury * * Farren v. New Jersey Turnpike Authority, 31 N.J.Super. 356, 106 A.2d 752, 753 (App.Div. 1954) held that because the employee could not maintain an action against his employer, the employer is not one “liable in tort” and so therefore not subject to contribution, even though negligent, to a third party who is liable in tort to the employee. Any possible doubt that this would apply equally to a claim for indemnity was removed by Public Service Electric & Gas Co. v. Waldroup, supra. Thus, even if the active-passive doctrine were otherwise accepted in New Jersey it would not remove the bar to the assertion of remedies other than the Compensation statute against the employer. That bar continues against the third party liable in tort who seeks contribution to that liability from the employer who, absent the bar of the statute,, would also be liable in tort. The judgment of the district court will be affirmed. . N.J.S.A. 34:15-7 provides that where employer and employee have accepted the elective compensation provisions, compensation for personal injuries or death to the employee by accident arising out of and in the course of employment shall be made by the employer without regard to negligence by him according to the schedule set out in other sections of the same chapter. N.J.S.A. 34:15-9 provides that in the absence of written notice from either employee or employer to the other before the occurrence of an accident to the effect that the elective provisions of Chapter 15, Title 34 are not intended to apply to any accident, it will be conclusively presumed that they have been accepted. N.J.S.A. 34:15-8 provides that acceptance of the elective compensation provisions will be a surrender of any other remedies and will be binding on both. . In Yearicks the employee who had recovered workmen’s compensation from his employer sued a third party tortfeasor. The third party sought indemnity from the employer who seems to have been a joint tortfeasor, but the indemnity was sought not on that ground but on the basis of a contract between the im-pleading third party and the impleaded employer. No attempt seems to have been made by the third party tortfeasors to assert that the workmen’s compensation payment was a discharge of all the joint tortfeasors if the employer was found as a matter of fact to have been in pari delicto with them. As it was Yea-ricks could have resulted in a recovery by the employee from the third party tortfeasor, who then by contract would have been indemnified by the employer. In effect the employer, by entering the contract of indemnification gave the employee in the case a right to elect the compensation recovery or the common law remedy, not only after the accident but after recovering judgments on both theories. . The rule denying contribution has been warmly criticized as in reality not being the general rule but an exception which even as an exception has been unjustifiably enlarged. 13 Am.Jur. 35, § 37 Contribution, fn. 9, citing Restatement, Restitution pp. 386-388; Reath, Contribution Between Persons Jointly Charged for Negligence, 12 Harvard Law Review 176. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_respond1_3_2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. Earl COLEMAN, Appellant, v. UNITED STATES of America, Appellee. Alvin J. TOBIN, Appellant, v. UNITED STATES of America, Appellee. Ronald ALLSTON, Appellant, v. UNITED STATES of America, Appellee. Winfield L. ROBERTS, Appellants, v. UNITED STATES of America, Appellee. Nos. 21804-21806, 21856. United States Court of Appeals District of Columbia Circuit. Argued June 18, 1969. Decided Nov. 28, 1969. Petition for Rehearing in No. 21856 Denied Dec. 18, 1969. Mr. Peter D. O’Connell, Washington, D.C., with whom Mr. William F. Wet-more, Jr., Washington, D.C. (both appointed by this court), was on the brief, for appellants in Nos. 21,804, 21,805 and 21,806. Mr. Robert L. Wright, Washington, D.C. (appointed by this court), for appellant in No. 21,856. Mr. Julius A. Johnson, Asst.U.S. Atty., with whom Messrs. David G. Bress, U.S.Atty., at the time the brief was filed, and Victor W. Caputy, Asst. U.S.Atty., were on the brief, for appel-lee. Messrs. Thomas A. Flannery, U.S. Atty., and Roger E. Zuckerman, Asst.U. S.Atty., also entered appearances for ap-pellee. Before BAZELON, Chief Judge, and TAMM and ROBB, Circuit Judges. ROBB, Circuit Judge: The appellants Earl Coleman, Alvin Tobin, Ronald Allston and Winfield Roberts were convicted on twelve counts of an indictment: one count charging them jointly with unauthorized use of a motor vehicle on or about November 15, 1966 (22 D.C.Code § 2204); one count charging that on November 22, 1966 they entered The National Bank of Washington, D.C., Brookland Branch, with intent to commit robbery (18 U.S.Code § 2113 (a)); five counts charging them jointly with robbery of the Bank on November 22, 1966, in violation of 18 U.S.Code § 2113(a); and five counts alleging the same robberies on November 22, 1966, in violation of 22 D.C.Code § 2901 Each was sentenced to prison for not less than one nor more than five years on the unauthorized use count and from five to fifteen years on each of the remaining counts, the sentences to run concurrently- At a few minutes before 9:56 A.M. on November 22, 1966, the Brookland Branch of The National Bank of Washington, on 12th Street, N.E. near Perry Street, was held up. As they were aft-erwards to testify some of the tellers on duty saw three men enter the bank with drawn guns, others saw four. The bandits, Negro males, were masked with dark glasses to which scarfs or bandanas were attached. Witnesses noticed that one or more wore dark hats, dark gloves, and raincoats or carcoats. The bandits ordered the Bank employees and customers to lie down on the floor. One of the tellers, a lady, was talking on the telephone at the time and was slow in complying with this order. A bandit pushed her, took the telephone receiver out of her hand and struck her in the face with it, breaking her nose. She noticed that this man wore a black hat, sun glasses with a multi-colored bandana tied to them, a dark carcoat, khaki pants and dark gloves. He carried a short-barreled pistol. Having placed the employees and customers on the floor the bandits “went through and took the money out of the tellers’ cages”, gathering it up in “dirty white” bags that “looked like pillow cases”. The money, in bills and coins, amounted to $15,308.32. Included in the loot were bills the serial numbers of which had previously been recorded by the Bank and packets of bills and rolls of coins bearing notations in the handwriting of Bank employees. The holdup took only a few moments. Before the bandits left, carrying the bags of money, one of the Bank employees was able to set off the holdup alarm; and after they left another employee got up from the floor, looked out the front window and saw the bandits getting into a dirty light blue or white automobile. She noted and wrote down the tag number of the car. It was a District of Columbia tag, 251-219. She watched the car leave the Bank, head towards Perry Street, and turn left on Perry. At 9:56 A.M. Officers Ervin and Dar-zinsky of the Metropolitan Police, who were patrolling in a scout car, responded to the alarm from the Bank. Having spoken to the Bank manager they set out in search of the getaway car. Within minutes they found it abandoned on Perry Street, two blocks from the Bank. It was a blue Mustang bearing D. C. tags 251-219. The engine was running, the door on the driver’s side was open, and rolls of coins were scattered on the floor boards and on the ground outside. A loaded automatic pistol was lying on the right of the front seat. The car was parked almost in front of the house of a Mrs. Rosser. When questioned by the officers she told them that at about 9:20 A.M. that morning she had noticed a U-Haul truck, shaped like a Volkswagen bus, parked in front of her house. Shortly afterwards she heard a noise “like a high speed speeding away”. She looked out the window again and noticed that the U-Haul truck was gone. Acting on this information Officer Ervin broadcast a lookout for a U-Haul truck. At 9:56 A.M. Officers Lukic and Yates of the Metropolitan Police, patrolling in another scout car, heard a “flash” lookout that there was a holdup in progress at the Brookland Branch of The National Bank of Washington. Five or ten minutes later they received a second message “to look out for four Negro males, one Negro male was dark skinned, heavy build and wearing a large bushy mustache. These Negro males * * * entered a blue Mustang with D. C. registration and were seen leaving the scene of holdup.” The tag number of the Mustang was included in the message. Five or ten minutes after this second message the officers heard a third broadcast that “the blue Mustang was found abandoned and that they [the bandits] now may be in a U-Haul van-type truck.” Promptly after receiving the lookout for a U-Haul van-type, truck Officers Lu-kic and Yates stationed themselves on an overpass overlooking Kenilworth Avenue, N. E., which they “figured * * * would be a good escape route”. In a few minutes they saw a U-Haul van-type truck bound down Kenilworth Avenue. Only one man, the driver, was visible in the truck. The officers “came up behind” the truck and Officer Lukic saw the face of the driver in the truck’s large rear-view mirror. The driver was a Negro male, dark skinned, with a heavy mustache. Turning on their red light and siren the officers “pulled the truck over” on Kenilworth Avenue about four blocks from the place where they had first seen it. Before the truck stopped Officer Yates noticed a Negro male looking out through one of the small windows in the rear of the van, “peeping quickly and going down”. When the truck and the police car stopped, the police ear being to the rear of the truck, the driver of the truck, who turned out to be Coleman, got out and walked towards the policemen, who also got out of their car and walked towards Coleman and the truck. As he walked Officer Lukic “observed a head bob up” at one of the small rear windows of the truck and then quickly duck “back down inside the truck”. At this point Lukic drew his gun and told Coleman to turn and put his hands on the side of the truck. Opening the truck’s rear doors the officers discovered Tobin, Allston and Roberts inside, lying on a mattress. Also in the truck was more than $14,900 in bills and coins, together with a number of articles of clothing. A fully loaded short-barreled .38-ealiber revolver was on the floor behind the driver’s seat. A loaded .22-caliber starter’s pistol was found in Coleman’s right pants pocket. Among the articles of clothing and equipment found in the U-Haul truck with the appellants were the following: 4 pairs of sun glasses; 4 scarfs or bandanas ; 4 pairs of brown work gloves; 2 pillow cases; 4 felt hats; 2 trench coats; 1 raincoat; 2 jackets. A black silk scarf was found in Allston’s pocket. Witnesses at the trial identified many of these articles as similar to those worn by the bank robbers. Also found in Allston’s trousers pocket was a packet of twenty-dollar bills. At trial these bills were identified by their serial numbers as part of the money taken from the Bank. In addition, several thousand dollars in bills and rolls of coins recovered in the truck were identified by serial numbers and bank markings as part of the loot. When recovered, most of this money was stuffed in two pillow cases; the rest was scattered on the floor of the truck. Finally, evidence at the trial established that the several rolls of quarters, dimes and nickels recovered in the blue Mustang getaway car, or on the ground nearby, had been taken from the Bank that morning. Evidence at the trial established that the blue Mustang had been stolen about November 15, 1966 from a used-car lot, where it was parked with the keys on the dashboard. No tags were on the car when it was stolen. As we have said, when it was recovered on Perry Street on November 22 it bore D. C. tags 251-219. These tags had been issued for a 1956 Dodge which was acquired by Coleman in October 1966. As for the U-Haul truck in which the appellants were apprehended, the proof was that this vehicle was rented by one Alvin Douglas, at the instance of Coleman, and with Coleman’s money, on November 20, 1966. At the time he received the U-Haul truck Coleman removed a mattress from another truck that he had, and placed it in the U-Haul truck. The appellant Tobin was with Coleman on this occasion. The appellant Roberts testified at the trial that he had no part in the bank robbery. He said he left home about 8:00 o’clock on the morning of November 22 to visit a young lady who lived near Kenilworth Avenue. Finding that she was not at home he went to a bus stop on Kenilworth Avenue where he was waiting when the U-Haul truck driven by Coleman came by, “slowed up” and his friend Tobin, who was sitting on a mattress in the truck with Allston, opened the door and offered Roberts a ride. Roberts said he got into the truck, but that he had ridden only two or three blocks when the truck was stopped by the police and he was arrested. He testified that he did not know Coleman or Allston. He did not notice the contents of the truck, he said, except for the mattress on the floor, on which the men were sitting. Roberts was the only defendant to take the stand before both sides announced that they rested. Before final argument began, however, counsel for Tobin moved to reopen the ease so that his client might testify. Counsel stated that “I thought it was going to be the defense which was shared by counsel in the case” that Tobin, Allston and Roberts “were picked up by Coleman who was driving the truck and that they got into the truck and they knew nothing about any bank robbery, and that is inconsistent, of course, with what I heard and I was taken by surprise and my client would like to testify that he did not know anything about it. He wasn’t going to take the stand, but he has changed his mind and now he does want to take the stand.” Tobin was then permitted to testify over the objection of counsel for Roberts. His story was that on the morning of November 22, he was on Kenilworth Avenue “catching out”, that is waiting in the hope that someone from a construction company “would come and pick me up * * * to go out as a helper.” He said he had been waiting about two hours when Allston came along on his way to a liquor store. Allston tarried with Tobin and in a few minutes Coleman drove by in the U-Haul truck. Tobin “flagged him down” and Allston and Tobin got into the truck. Almost immediately thereafter, according to Tobin, the truck stopped again and picked up Roberts, and the three men sat on the mattress until they were arrested a few moments later. Tobin swore that although he knew Coleman, Roberts and Allston, he had nothing to do with the holdup. He said he was with Coleman when Coleman rented the U-Haul truck, but he understood the truck was to be used by Coleman in moving some of his household goods. ' In rebuttal the government introduced the testimony of police officers to the effect that the U-Haul truck made no stops in the blocks on Kenilworth Avenue where the appellants claimed they had been picked up. Against the background of these facts we now consider the errors assigned by the appellants. I The appellants assert that there was no probable cause for their arrest and that the search of the U-Haul truck was therefore unlawful. We think, however, that Officers Lukic and Yates acted reasonably in stopping the truck and arresting its occupants. Within twenty minutes after the robbery the officers were alerted to look out for a U-Haul van-type truck occupied by four Negro males, one of whom was dark-skinned and wearing a large mustache. Moments after receiving this information they saw a U-Haul van-type truck proceeding on a logical escape route. It was driven by a dark-skinned Negro male with a heavy mustache. Before stopping the truck one of the officers noticed furtive movements by one or more Negro males inside the truck. Had the officers failed to stop the truck under these circumstances they would have been remiss in their duty. The “exigencies of the situation” made their action imperative. Bailey v. United States, 128 U.S.App.D.C. 354, 358, 389 F.2d 305, 309 (1967). As we have repeatedly noted the existence of probable cause “depends on the facts and circumstances of the particular case * * * and on the ‘practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ” Bailey v. United States, 128 U.S. App.D.C. 354, 357, 358, 389 F.2d 305, 308, 309 (1967), quoting from Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Probable cause exists when the officer “in the particular circumstances, conditioned by his observations and information, and guided by the whole of his police experience, reasonably could have believed that a crime had been committed by the person to be arrested.” Jackson v. United States, 112 U.S.App.D.C. 260, 262, 302 F.2d 194, 196 (1962). “Conduct innocent in the eyes of the untrained may carry entirely different ‘messages’ to the experienced or trained observer.” Davis v. United States, 133 U.S.App.D.C. 172, 174, 409 F.2d 458, 460, cert. den., 395 U.S. 949, 89 S.Ct. 2031, 23 L.Ed.2d 469 (1969). And the element of flight in a vehicle from the scene of the crime may tip the scales in favor of probable cause. Bailey v. United States, supra. See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Dixon v. United States, 111 U.S.App.D.C. 305, 296 F.2d 427 (1961); Dorsey v. United States, 125 U.S.App.D.C. 355, 372 F.2d 928 (1967). Judged by these criteria the actions of the officers were reasonable and lawful. II The appellant Allston complains of the cross examination of his “character” witness. The witness testified that she had known Allston for about nine years, that she knew other persons in the community in which he lived who in turn knew him, that she knew what his reputation was among these persons, and that his reputation for “peace and good order” and for “honesty” was good. On cross examination she testified that she had discussed Allston’s reputation for peace and good order and honesty with the people who knew him. Over the objection of Allston’s counsel the Assistant United States Attorney then asked the witness whether she had heard that (1) on September 18, 1964, Allston was convicted of petty larceny; (2) on June 17, 1966, Allston was convicted of petty larceny; (3) on January 26, 1967 he was convicted of petty larceny; and (4) on October 24, 1957 he was convicted of a violation of the Federal Narcotics laws. The witness responded that she thought she had heard of the 1966 petty larceny conviction but she had not heard of the others. The record discloses that before permitting the Assistant United States Attorney to ask these impeaching questions the district judge was careful to satisfy herself from court records that the convictions inquired about had in fact occurred. Immediately after the witness left the stand the district judge instructed the jury: “Members of the jury, with reference to Inez Milton, the last witness called by Mr. Mack, you are told this: The defendant, Mr. Allston, called Inez Milton as a character witness, and the basis for the evidence given by that character witness is the reputation of the defendant, Mr. Allston, in the community. “Since the defendant, Mr. Allston, has thus tendered the issue of his reputation, Mr. Caputy, the Assistant United States Attorney, was permitted to ask the witness, Inez Milton, if she had heard of certain incidents. “You are told that you are not to assume that the incidents asked about actually took place and you are not to consider them, in fact, you are to put those incidents out of your mind so far as the defendant Allston, himself, is concerned. “The questions referred to were permitted so as to test the standard of information of the character witness, herself, as to the reputation of the defendant Allston. In other words, these questions to a character witness and her answer thereto, are to be taken into consideration by the jury only in weighing the evidence of the character witness, Inez Milton, that is, testing the standard of character evidence and the opinions that this character witness seemed to have.” In her charge to the jury the district judge, after instructing as to the weight that might be given to evidence of the appellant’s good reputation, repeated and emphasized her previous instruction limiting the effect of the prosecutor’s impeaching questions. There was no error in the procedure followed by the district judge and the Assistant United States Attorney. The impeaching questions were carefully phrased; each of them followed the proper formula, beginning “Have you heard?”. The convictions to which they related were plainly relevant to the testimony of the witness. The limiting and explanatory instructions by the district judge, and indeed the entire procedure, were precisely in accord with the ruling of the Supreme Court in Michelson v. United States, 335 U.S. 469, 69 S. Ct. 213, 93 L.Ed. 168 (1948). Awkard v. United States, 122 U.S.App.D.C. 165, 352 F.2d 641 (1965) and Shimon v. United States, 122 U.S.App.D.C. 152, 352 F.2d 449 (1965), relied upon by the appellant, are readily distinguishable. In the Awkard case the prosecutor inquired about arrests and a conviction that occurred after the period to which the character testimony related. In the Shimon ease we held that the impeaching questions were not directed at the credibility of the witness but rather were intended to prejudice the defendant by innuendo. Cf. United States v. Wooden, 137 U.S.App.D.C.-, 420 F.2d 251 (decided this day). Ill The appellants Coleman, Tobin and Allston contend that fatal error occurred when the Court permitted counsel for Roberts, in the presence of the jury, to call them as witnesses for Roberts and thus compel them to invoke their right to remain silent. It is argued that the error was compounded when counsel for Roberts in his closing argument to the jury referred to the refusal of the co-defendants to take the stand. When Roberts left the stand after completing his testimony his counsel announced in the presence of the jury: “Your Honor, I call Earl Coleman to the stand”. A conference at the bench followed, in which Coleman’s counsel stated that his client would decline to testify. He asked that the Court “make some explanation as non-violent as possible why he is not going to testify”. The Court responded “I will simply say that he has the right to take it or not take it as he sees fit. And then just simply say that he elects not to. Is that all right?” Coleman’s counsel answered “That is agreeable to me, Your Honor.” Counsel for Allston stated that his client would not testify and that he did not want him to be called as a witness by Roberts. Tobin’s counsel also took this position. Counsel for Roberts insisted that “I am not going to be restricted, Your Honor. I have a right to call any witness I desire * * * I have a right in open court to ask for a witness. The witness has a right not to testify by invoking his privilege.” After the bench conference all counsel returned to the trial table and the following occurred in the presence of the jury: “[Counsel for Roberts]: I believe * * * [Counsel for Coleman] was addressing the Court in reference to my request for a witness. “THE COURT: You have asked that Earl Coleman— “[Counsel for Roberts]: — be called as a witness. “THE COURT: Earl Coleman has the right to take the stand or not to take it, as he sees fit. ****** “[Counsel for Coleman]: Yes, Your Honor. Mr. Coleman declines to testify. “THE COURT: Very well. “[Counsel for Roberts]: Your Hon- or, I will now call Mr. Allston as a witness. “THE COURT: The defendant Ronald Allston has the right to take the stand or not to take the stand as he sees fit. “[Counsel for Allston]: I object, Your Honor’s statement and I ask that it be stricken from the record and that the jury be instructed to disregard it. (sic) “THE COURT: The Court declines to do so, * * * [Counsel for Roberts] having sought to call Mr. Allston as a witness. “[Counsel for Roberts]: If the Court please, I now call Mr. Tobin as a witness. “[Counsel for Tobin]: On behalf of the Defendant Tobin, we decline to take the stand on the basis of the Fifth Amendment. “THE COURT: The attorney for the defendant Tobin has declined. You may not call him as a witness. “[Counsel for Roberts]: If the Court please, may the record indicate the manner in which the various defendants are asserting their privilege? “THE COURT: Just a moment. “[Counsel for Roberts]: I am sorry- “THE COURT: You are not making any further statement in reference to the defendants.” In his closing argument to the jury counsel for Roberts referred to his unsuccessful attempt to call the co-defendants as witnesses. The co-defendants objected and the Court responded “I believe I told the jury the other day that they may testify or may not as they please. A defendant has an absolute right not to testify if that is his choice.” When counsel for Roberts persisted in this line of argument the Court admonished him, saying “I think you should cease commenting upon the other defendants”. It was error to permit counsel for Roberts in the presence of the jury to call upon the co-defendants to testify, and he should not have been allowed to comment to the jury upon their failure to take the stand. Counsel’s actions violated the rights of the defendants who did not testify, guaranteed by both the Fifth Amendment and the provisions of 18 U.S.C. § 3481. Were this a case in which the question of guilt or innocence was close the error in permitting this conduct would require us to reverse the convictions of Coleman and Allston, who did not testify. DeLuna v. United States, 308 F.2d 140, 1 A.L.R.3d 969 (5th Cir.1962), rehear. den., 324 F.2d 375 (1963); United States v. Housing Foundation of America, Inc., 176 F.2d 665 (3rd Cir.1949); Cf. United States v. Echeles, 352 F.2d 892 (7th Cir.1965); State v. Medley, 178 N.C. 710, 100 S.E. 591 (1919); State v. Smith, 74 Wash. 2d 749, 446 P.2d 571 (1968). See Hayes v. United States, 329 F.2d 209, 221-222 (8th Cir.), cert. den., sub nom. Bennett v. United States, 377 U.S. 980, 84 S.Ct. 1883, 12 L.Ed.2d 748 (1964). We are convinced beyond a reasonable doubt however that the error did not contribute to the conviction of Coleman and Allston and that it was therefore harmless. Efficient and intelligent work by the police, combined with skillful marshaling and presentation of the evidence by the prosecutor during seven days of trial, resulted in a case against the appellants Coleman and Allston that was overwhelming: The license tags on the Mustang getaway ear belonged to Coleman. Two days before the holdup, Coleman, accompanied by Allston, arranged to rent the getaway truck and placed in it the mattress upon which the bandits reclined. Less than twenty-five minutes after the holdup he was arrested while driving the getaway truck. He had a pistol in his pocket. In the truck were proceeds of the holdup, a loaded revolver, and the disguises used by the robbers. The appellant Allston was lying concealed in the truck and in his pocket were a silk scarf, similar to the masks worn by the robbers, and a sheaf of twenty-dollar bills which was part of the loot. In the light of these facts it is inconceivable that any honest juror in his right mind could have had any doubt as to the guilt of Coleman and Allston, even if counsel for Roberts had never called them to the stand or commented on their failure to testify. In short, we think that this is a case for the application of the harmless error rule of Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), decided by the Supreme Court of the United States June 2, 1969. Cf. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); 28 U.S.C., § 2111; Fed.Rule Crim.Proc. 52(a). We have carefully considered all of the other contentions of the appellants and find them to be without merit; however, we mention one further matter: The appellants were convicted and sentenced on the second count of the indictment alleging that in violation of 18 U.S.C. § 2113(a) they entered The National Bank of Washington, D.C., with intent to commit robbery therein. They were also convicted and sentenced on the third, fifth, seventh, ninth and eleventh counts alleging robbery of the Bank in violation of 18 U.S.C., § 2113(a). Although all of the sentences are to run concurrently, Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957) holds that one who is convicted of robbery under 18 U.S.C. § 2113(a) may not also be convicted under the same section of entering the Bank to commit robbery. We have recently considered this matter in Bryant v. United States, 135 U.S.App.D.C. 138, 417 F.2d 555 (decided August 7, 1969). In accordance with the procedure followed in that case and in the Prince case we therefore set aside the appellants’ convictions on the second count of the indictment and remand for resentencing on the convictions under the other counts, which we affirm. It is so ordered. . A thirteenth count charging Coleman with carrying a dangerous weapon, a pistol, without a license, was dismissed on motion of the government when it appeared during trial that the pistol was not capable of discharging a\ projectile. . Each of the five counts charging robbery under 18 U.S.Code § 2113(a) corresponded with one of the five counts alleging robbery under 22 D.C.Code § 2901, and related to the theft of a specified sum of money from the cage of one of five tellers. . See footnote 1 above. . Not counsel on this appeal. . The instruction was as follows: “The basis for the evidence given by the character witness called by Mr. Allston is the reputation of Mr. Allston in the community. The jury is instructed that Mr. Allston, by calling the character witness, put in issue in this case his reputation for peace and good order and for honesty and, because he did so, Mr. Oaputy was permitted to question the character witness as to whether she had heard that Mr. Allston had committed certain offenses. “The jury is instructed that regardless of those questions and the answers thereto, the jury is not to assume or infer that any of the offenses inquired about were actually committed. The jury may take into consideration those questions and the answers thereto for a limited purpose only. That is, in weighing the evidence of the character witness, in testing her standard of information on the reputation of Mr. Allston and otherwise passing upon her credibility as a witness. “The jury is directed not to consider such questions and the answers thereto for any other purpose. “I have a few more statements to make to you on this same subject: The jury is instructed that questions put to the character witness as to any alleged prior offenses committed by Mr. Allston, and her answers thereto, are to be disregarded entirely by the jury, except to the extent that they bear on the credibility of the character witness. You are also instructed that such questions and the answers thereto are not to be considered as evidence that there have in fact been prior offenses by Mr. Allston. “Further, the jury is instructed that such questions and answers thereto are not to be considered as evidence of the guilt of Mr. Allston of the offenses charged in the indictment here.” . Not counsel on this appeal. . The transcript of the closing- argument contains the following: “[Counsel for Roberts] : Roberts didn’t even know Coleman and Allston. You heard him call each one of these defendants to the stand and you probably wondered why and how I intended to prove Roberts’ story or how I was going to be able to say to each one of these other men: ‘Is it true that Roberts doesn’t know you as he says he doesn’t,’ but I didn’t have that opportunity. That was my purpose, in trying to call them, because the only way I could support his testimony is by putting some evidence on the stand to give you the situation— “[Counsel for Allston]: I must object to that, Your Honor. I think that this is not proper argument and I object, if the Court please, and I ask Your Honor to instruct the jury to disregard it. “[Counsel for Coleman]: I join in that. “[Counsel for Allston]: With reference to the other defendants. “THE COURT: I believe I told the jury the other day that they may testify or may not as they pleased. A defendant has an absolute right not to testify, if that is his choice. “[Counsel for Roberts]: May I comment on it? “THE COURT: Well, I think you have. “[Counsel for Roberts]: * * * What circumstances do we have — they are difficult to overcome. I would ask you this hypothetical case, that probably may never occur, but just think of this: You and I walk out into the corridor alone during a recess and then on reentering the courtroom you say: ‘That person took $100 out of my pocket.’ Mow, there are just the two of us. How do I deny it ever happened, except by taking the stand and saying T didn’t do it’? How would one prove that this never occurred? Mow, isn’t Roberts in that same position? These men wouldn’t testify for him, so there he is— “[Counsel for Allston]: Your Honor, I ask Your Honor to instruct the jury to disregard that statement. “THE COURT: I have already instructed the jury. I think you should cease commenting upon the other defendants, * * * [Counsel for Roberts], “[Counsel for Roberts] : Well, members of the jury, how else would you overcome that statement by someone whom you know is telling the story about you, about a crime which you never committed? How would you go about it? How would you be able to refute this testimony? * * * ” At the conclusion of the argument for Roberts, counsel for Allston and Tobin moved for a mistrial because of the statements by Counsel for Roberts about his attempts to get the co-defendants to testify. The motion was denied. In her charge to the jury the district judge 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_lcdisagreement	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent. CONNELL CONSTRUCTION CO., INC. v. PLUMBERS & STEAMFITTERS LOCAL UNION NO. 100, UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES OF THE PLUMBING & PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO No. 73-1256. Argued November 19, 1974 Decided June 2, 1975 Powell, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 638. Stewart, J., filed a dissenting opinion, in which Douglas, Brennan, and Marshall, JJ., joined, post, p. 638. Joseph F. Canterbury, Jr., argued the cause and filed briefs for petitioner. David R. Richards argued the cause and filed a brief for respondent. Briefs of amici curiae urging reversal were filed by Gerard C. Smetana, Lawrence D. Ehrlich, Jerry Kronenberg, and Milton Smith for the Chamber of Commerce of the United States; by Vincent J. Apruzzese, Francis A. Mastro, and William L. Keller for the Associated General Contractors of America et al.; and by Kenneth C. Mc-Guiness and Robert E. Williams for the Air-Conditioning and Refrigeration Institute et al. Briefs of amici curiae urging affirmance were filed by Solicitor General Bork, Peter G. Nash, John S. Irving, Patrick Hardin, Norton J. Come, and Linda Sher for the National Labor Relations Board, and by J. Albert Woll, Laurence Gold, and Thomas E. Harris for -the American Federation of Labor and Congress of Industrial Organizations. Mr. Justice Powell delivered the opinion of the Court. The building trades union in this case supported its efforts to organize mechanical subcontractors by picketing certain general contractors, including petitioner. The union’s sole objective was to compel the general contractors to agree that in letting subcontracts for mechanical work they would deal only with firms that were parties to the union’s current collective-bargaining agreement. The union disclaimed any interest in representing the general contractors’ employees. In this case the picketing succeeded, and petitioner seeks to annul the resulting agreement as an illegal restraint on competition under federal and state law. The union claims immunity from federal antitrust statutes and argues that federal labor regulation pre-empts state law. I Local 100 is the bargaining representative for workers in the plumbing and mechanical trades in Dallas. When this litigation began, it was party to a .multiemployer bargaining agreement with the Mechanical Contractors Association of Dallas, a group of about 75 mechanical contractors. That contract contained a “most favored nation” clause, by which the union agreed that if it granted a more favorable contract to any other employer it would extend the same terms to all members of the Association. Connell Construction Co. is a general building contractor in Dallas. It obtains jobs by competitive bidding and subcontracts all plumbing and mechanical work. Connell has followed a policy of awarding these subcontracts on the basis of competitive bids, and it has done business with both union and nonunion subcontractors. Connell’s employees are represented by various building trade unions. Local 100 has never sought to represent them or to bargain with Connell on their behalf. In November 1970, Local 100 asked Connell to agree that it would subcontract mechanical work only to firms that had a current contract with the union. It demanded that Connell sign the following agreement: “WHEREAS, the contractor and the union are engaged in the construction industry, and “WHEREAS, the contractor and the union desire to make an agreement applying in the- event of subcontracting in accordance with Section 8 (e) of the Labor-Management Relations Act; “WHEREAS, it is understood that by this agreement the contractor does not grant, nor does the union seek, recognition as the collective bargaining representative of any employees of the signatory contractor; and “WHEREAS, it is further understood that the subcontracting limitation provided herein applies only to mechanical work which the contractor does not perform with his own employees but uniformly subcontracts to other firms; “THEREFORE, the contractor and the union mutually agree with respect to work falling within the scope of this agreement that is to be done at the site of construction, alteration, painting or repair of any building, structure, or other works, that [if] the contractor should contract or subcontract any of the aforesaid work falling within the normal trade jurisdiction of the union, said contractor shall contract or subcontract such work only to firms that are parties to an executed, current collective bargaining agreement with Local Union 100 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry.” When Connell refused to sign this agreement, Local 100 stationed a single picket at one of Connell’s major construction sites. About 150 workers walked off the job, and construction halted. Connell filed suit in state court to enjoin the picketing as a violation of Texas antitrust laws. Local 100 removed the case to federal court. Connell then signed the subcontracting agreement under protest. It amended its complaint to claim that the agreement violated §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1 and 2, and was therefore invalid. Connell sought a declaration to this effect and an injunction against any further efforts to force it to sign such an agreement. By the time the case went to trial, Local 100 had submitted identical agreements to a number of other general contractors in Dallas. Five others had signed, and the Union was waging a selective picketing campaign against those who resisted. The District Court held that the subcontracting agreement was exempt from federal antitrust laws because it was authorized by the construction industry proviso to § 8 (e) of the National Labor Relations Act, 49 Stat. 452, as added, 73 Stat. 543, 29 U. S. C. § 158 (e). The court also held that federal labor legislation pre-empted the State’s antitrust laws. 78 L. R. R. M. 3012 (ND Tex. 1971). The Court of Appeals for. the Fifth Circuit affirmed, 483 F. 2d 1154 (1973), with one judge dissenting. It held that Local 100’s goal of organizing nonunion subcontractors was a legitimate union interest and that its efforts toward that goal were therefore exempt from federal antitrust laws. On the second issue, it held that state law was pre-empted under San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959). We granted certiorari on Connell’s petition. 416 U. S. 981 (1974). We reverse on the question of federal antitrust immunity and affirm the ruling on state law pre-emption. II The basic sources of organized labor’s exemption from federal antitrust laws are §§ 6 and 20 of the Clayton Act, 38 Stat. 731 and 738, 15 U. S. C. § 17 and 29 U. S. C. § 52, and the Norris-La Guardia Act, 47 Stat. 70, 71, and 73, 29 U. S. C. §§ 104, 105, and 113. These statutes declare that labor unions are not combinations or conspiracies in restraint of trade, and exempt specific union activities, including secondary picketing and boycotts, from the operation of the antitrust laws. See United States v. Hutcheson, 312 U. S. 219 (1941). They do not exempt concerted action or agreements between unions and nonlabor parties. Mine Workers v. Pennington, 381 U. S. 657, 662 (1965). The Court has recognized, however, that a proper accommodation between the congressional policy favoring collective bargaining under the NLRA and the congressional policy favoring free competition in business markets requires that some union-employer agreements be accorded a limited nonstatutory exemption from antitrust sanctions. Meat Cutters v. Jewel Tea Co., 381 U. S. 676 (1965). The nonstatutory exemption has its source in the strong labor policy favoring the association of employees to eliminate competition over wages and working conditions. Union success in organizing workers and standardizing wages ultimately will affect price competition among employers, but the goals of federal labor law never could be achieved if this effect on business competition were held a violation of the antitrust laws. The Court therefore has acknowledged that labor policy requires tolerance for the lessening of business competition based on differences in wages and working conditions. See Mine Workers v. Pennington, supra, at 666; Jewel Tea, supra, at 692-693 (opinion of White, J.). Labor policy clearly does not require, however, that a union have freedom to impose direct restraints on competition among those who employ its members. Thus, while the statutory .exemption allows unions to accomplish some restraints by acting unilaterally, e. g., Federation of Musicians v. Carroll, 391 U. S. 99 (1968), the nonstatutory exemption offers no similar protection when a union and a nonlabor party agree to restrain competition in a business market. See Allen Bradley Co. v. Electrical Workers, 325 U. S. 797, 806-811 (1945); Cox, Labor and the Antitrust Laws — A Preliminary Analysis, 104 U. Pa. L. Rev. 252 (1955); Meltzer, Labor Unions, Collective Bargaining, and the Antitrust Laws, 32 U. Chi. L. Rev. 659 (1965). In this case Local 100 used direct restraints on the business market to support its organizing campaign. The agreements with Connell and other general contractors indiscriminately excluded nonunion subcontractors from a portion of the market, even if their competitive advantages were not derived from substandard wages and working conditions but rather from more efficient operating methods. Curtailment of competition based on efficiency is neither a goal of federal labor policy nor a necessary effect of the elimination of competition among workers. Moreover, competition based on efficiency is a positive value that the antitrust laws strive to protect. The multiemployer bargaining agreement between Local 100 and the Association, though not challenged in this suit, is relevant in determining the effect that the agreement between Local 100 and Connell would have on the business market. The “most favored nation” clause in the multiemployér agreement promised to eliminate competition between members of the Association and any other subcontractors that Local 100 might organize. By giving members of the Association a contractual right to insist on terms as favorable as those given any competitor, it guaranteed that the union would make no agreement that would give an unaffiliated contractor a competitive advantage over members of the Association. Subcontractors in the Association thus stood to benefit from any extension of Local 100’s organization, but the method Local 100 chose also had the effect of sheltering them from outside competition in that portion of the market covered by subcontracting agreements between general contractors and Local 100. In that portion of the market, the restriction on subcontracting would eliminate competition on all subjects covered by the multiemployer agreement, even on subjects unrelated to wages, hours, and working conditions. Success in exacting agreements from general contractors would also give Local 100 power to control access to the market for mechanical subcontracting work. The agreements with general contractors did not simply prohibit subcontracting to any nonunion firm; they prohibited subcontracting to any firm that did not have a contract with Local 100. The union thus had complete control over subcontract work offered by general contractors that had signed these agreements. Such control could result in significant adverse effects on the market and on consumers — effects unrelated to the union’s legitimate goals of organizing workers and standardizing working conditions. For example, if the union thought the interests of its members would be served by having fewer subcontractors competing for the available work, it could refuse to sign collective-bargaining agreements with marginal firms. Cf. Mine Workers v. Pennington, supra. Or, since Local 100 has a well-defined geographical jurisdiction, it could exclude “traveling” subcontractors by refusing to deal with them. Local 100 thus might be able to create a geographical enclave for local contractors, similar to the closed market in Allen Bradley, supra. This record contains no evidence that the union’s goal was anything other than, organizing as many subcontractors as possible. This goal was legal, even though a successful organizing campaign ultimately would reduce the competition that unionized employers face from nonunion firms. But the methods the union chose are not immune from antitrust sanctions simply because the goal is legal. Here Local 100, by agreement with several contractors, made nonunion subcontractors ineligible to compete for a portion of the available work. This kind of direct restraint on the business market has substantial anticompetitive effects, both actual and potential, that would not follow naturally from the elimination of competition over wages and working conditions. It contravenes antitrust policies to a degree not justified by congressional labor policy, and therefore cannot claim a nonstatutory exemption from the antitrust laws. There can be no argument in this case, whatever its force in other contexts, that a restraint of this magnitude might be entitled to an antitrust exemption if it were included in a lawful collective-bargaining agreement. Cf. Mine Workers v. Pennington, 381 U. S., at 664-665 ; Jewel Tea, 381 U. S., at 689-690 (opinion of White, J.); id., at 709-713, 732-733 (opinion of Goldberg, J.). In this case, Local 100 had no interest in representing Connell’s employees. The federal policy favoring collective bargaining therefore can offer no shelter for the union’s coercive action against Connell or its campaign to exclude nonunion firms from the subcontracting market. Ill Local 100 nonetheless contends that the kind of agreement it obtained from Connell is explicitly allowed by the construction-industry proviso to § 8 (e) and that antitrust policy therefore must defer to the NLRA. The majority in the Court of Appeals declined to decide this issue, holding that it was subject to the “exclusive jurisdiction” of the NLRB. 483 F. 2d, at 1174. This Court has held, however, that the federal courts may decide labor law questions that emerge as collateral issues in suits brought under independent federal remedies, including the antitrust laws. We conclude that § 8 (e) does not allow this type of agreement. Local 100’s argument is straightforward: the first proviso to § 8 (e) allows “an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work.” Local 100 is a labor organization, Connell is an employer in the construction industry, and the agreement covers only work “to be done at the site of construction, alteration, painting or repair of any building, structure, or other works.” Therefore, Local 100 says, the agreement comes within the proviso. Connell responds by arguing that despite the unqualified language of the proviso, Congress intended only to allow subcontracting agreements within the context of a collective-bargaining relationship; that is, Congress did not intend to permit a union to approach a “stranger” contractor and obtain a binding agreement not to deal with nonunion subcontractors. On its face, the proviso suggests no such limitation. This Court has held, however, that § 8 (e) must be interpreted in light of the statutory setting and the circumstances surrounding its enactment: “It is a 'familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.’ Holy Trinity Church v. United States, 143 U. S. 457, 459.” National Woodwork Mfrs. Assn. v. NLRB, 386 U. S. 612, 619 (1967). Section 8 (e) was part of a legislative program designed to plug technical loopholes in § 8 (b)(4)’s general prohibition of secondary activities. In § 8 (e) Congress broadly proscribed using contractual agreements to achieve the economic coercion prohibited by § 8 (b) (4). See National Woodwork Mfrs. Assn., supra, at 634. The provisos exempting the construction and garment industries were added by the Conference Committee in an apparent compromise between the House bill, which prohibited all “hot cargo” agreements, and the Senate bill, which prohibited them only in the trucking industry. Although the garment-industry proviso was supported by detailed explanations in both Houses, the construction-industry proviso was explained only by bare references to “the pattern of collective bargaining” in the industry. It seems, however, to have been adopted as a partial substitute for an attempt to overrule this Court’s decision in NLRB v. Denver Building & Construction Trades Council, 341 U. S. 675 (1951). Discussion of “special problems” in the construction industry, applicable to both the § 8 (e) proviso and the attempt to overrule Denver Building Trades, focused on the problems of picketing a single nonunion subcontractor on a multiemployer building project, and the close relationship between contractors and subcontractors at the jobsite. Congress limited the construction-industry proviso to that single situation, allowing subcontracting agreements only in relation to work done on a jobsite. In contrast to the latitude it provided in the garment-industry proviso, Congress did not afford construction unions an exemption from § 8 (b) (4) (B) or otherwise indicate that they were free to use subcontracting agreements as a broad organizational weapon. In keeping with these limitations, the Court has interpreted the construction-industry proviso as “a measure designed to allow agreements pertaining to certain secondary activities on the construction site because of the close community of interests there, but to ban secondary-objective agreements concerning non jobsite work, in which respect the construction industry is no different from any other.” National Woodwork Mfrs. Assn., 386 U. S., at 638-639 (footnote omitted). Other courts have suggested that it serves an even narrower function: “[T]he purpose of the section 8 (e) proviso was to alleviate the frictions that may arise when union men work continuously alongside nonunion men on the same construction site.” Drivers Local 695 v. NLRB, 124 U. S. App. D. C. 93, 99, 361 F. 2d 547, 553 (1966). See also Denver Building Trades, 341 U. S., at 692-693 (Douglas, J., dissenting); Essex County & Vicinity District Council of Carpenters v. NLRB, 332 F. 2d 636, 640 (CA3 1964). Local 100 does not suggest that its subcontracting agreement is related to any of these policies. It does not claim to be protecting Connell’s employees from having to work alongside nonunion men. The agreement apparently was not designed to protect Local 100’s members in that regard, since it was not limited to jobsites on which they were working. Moreover, the subcontracting restriction applied only to the work Local 100’s members would perform themselves and allowed free subcontracting of all other work, thus leaving open a possibility that they would be employed alongside nonunion subcontractors. Nor was Local 100 trying to organize a nonunion subcontractor on the building project it picketed. The union admits that it sought the agreement solely as a way of pressuring mechanical subcontractors in the Dallas area to recognize it as the representative of their employees. If we agreed with Local 100 that the construction-industry proviso authorizes subcontracting agreements with “stranger” contractors, not limited to any particular jobsite, our ruling would give construction unions an almost unlimited organizational weapon. The unions would be free to enlist any general contractor to bring economic pressure on nonunion subcontractors, as long as the agreement recited that it only covered work to be performed on some jobsite somewhere. The proviso’s jobsite restriction then would serve only to prohibit agreements relating to subcontractors that deliver their work complete to the jobsite. It is highly improbable that Congress intended such a result. One of the major aims of the 1959 Act was to limit “top-down” organizing campaigns, in which unions used economic weapons to force recognition from an employer regardless of the wishes of his employees. Congress accomplished this goal by enacting § 8 (b)(7), which restricts primary recognitional picketing, and by further tightening §8 (b)(4)(B), which prohibits the use of most secondary tactics in organizational campaigns. Construction unions are fully covered by these sections. The only special consideration given them in organizational campaigns is § 8 (f), which allows “prehire” agreements in the construction industry, but only under careful safeguards preserving workers’ rights to decline union representation. The legislative history accompanying § 8 (f) also suggests that Congress may not have intended that strikes or picketing could be used to extract prehire agreements from unwilling employers. These careful limits on the economic pressure unions may use in aid of their organizational campaigns would be undermined seriously if the proviso to § 8 (e) were construed to allow unions to seek subcontracting agreements, at large, from any general contractor vulnerable to picketing. Absent a clear indication that Congress intended to leave such a glaring loophole in its restrictions on “top-down” organizing, we are unwilling to read the construction-industry proviso as broadly as Local 100 suggests. Instead, we think its authorization extends only to agreements in the context of collective-bargaining relationships and, in light of congressional references to the Denver Building Trades problem, possibly to common-situs relationships on particular jobsites as well. Finally, Local 100 contends that even if the subcontracting agreement is not sanctioned by the construction-industry proviso and therefore is illegal under § 8 (e), it cannot be the basis for antitrust liability because the remedies in the NLRA are exclusive. This argument is grounded in the legislative history of the 1947 TaftHartley amendments. Congress rejected attempts to regulate secondary activities by repealing the antitrust exemptions in the Clayton and Norris-LaGuardia Acts, and created special remedies under the labor law instead. It made secondary activities unfair labor practices under § 8 (b)(4), and drafted'special provisions for preliminary injunctions at the suit of the NLRB and for recovery of actual damages in the district courts. § 10 (l) of the NLRA, 49 Stat. 453, as added, 61 Stat. 149, as amended, 29 U. S. C. § 160 (l), and § 303 of the Labor Management Relations Act, 61 Stat. 158, as amended, 29 U. S. C. § 187. But whatever significance this legislative choice has for antitrust suits based on those secondary activities prohibited by 18(b)(4), it has no relevance to the question whether Congress meant to preclude antitrust suits based on the “hot cargo” agreements that it outlawed in 1959. There is no legislative history in the 1959 Congress suggesting that labor-law remedies for § 8 (e) violations were intended to be exclusive, or that Congress thought allowing antitrust remedies in cases like the present one would be inconsistent with the remedial scheme of the NLRA. We therefore hold that this agreement, which is outside the context of a collective-bargaining relationship and not restricted to a particular jobsite, but which nonetheless obligates Connell to subcontract work only to firms that have a contract with Local 100, may be the basis of a federal antitrust suit because it has a potential for restraining competition in the business market in ways that would not follow naturally from elimination of competition over wages and working conditions. IV Although we hold that the union’s agreement with Connell is subject to the federal antitrust laws, it does not follow that state antitrust law may apply as well. The Court has held repeatedly that federal law pre-empts state remedies that interfere with federal labor policy or with specific provisions of the. NLRA. E. g., Motor Coach Employees v. Lockridge, 403 U. S. 274 (1971); Teamsters v. Morton, 377 U. S. 252 (1964); Teamsters v. Oliver, 358 U. S. 283 (1959). The use of state antitrust law to regulate union activities in aid of organization must also be pre-empted because it creates a substantial risk of conflict with policies central to federal labor law. In this area, the accommodation between federal labor and antitrust policy is delicate. Congress and this Court have carefully tailored the antitrust statutes to avoid conflict with the labor policy favoring lawful employee organization, not only by delineating exemptions from antitrust coverage but also by adjusting the scope of the antitrust remedies themselves. See Apex Hosiery Co. v. Leader, 310 U. S. 469 (1940). State antitrust laws generally have not been subjected to this process of accommodation. If they take account of labor goals at all, they may represent a totally different balance between labor and antitrust policies. Permitting state antitrust law to operate in this field could frustrate the basic federal policies favoring employee organization and allowing elimination of competition among wage earners, and interfere with the detailed system Congress has created for regulating organizational techniques. Because employee organization is central to federal labor policy and regulation of organizational procedures is comprehensive, federal law does not admit the use of state antitrust law to regulate union activity that is closely related to organizational goals. Of course, other agreements between unions and nonlabor parties may yet be subject to state antitrust laws. See Teamsters v. Oliver, supra, at 295-297. The governing factor is the risk of conflict with the NLRA or with federal labor policy. Y Neither the District Court nor the Court of Appeals decided whether the agreement between Local 100 and Connell, if subject to the antitrust laws, would constitute an agreement that restrains trade within the meaning of the Sherman Act. The issue was not briefed and argued fully in this Court. Accordingly, we remand for consideration whether the agreement violated the Sherman Act. Reversed in part, affirmed in part, and remanded. The primary effect of the agreement seems to have been to inhibit the union from offering any other employer a more favorable • contract. When asked at trial whether another subcontractor could get an agreement on any different terms, Local 100’s business agent answered: “No. The agreement says that no one will be given a more favorable agreement. I couldn’t, if I desired, as an agent, sign an agreement other than the ones in existence between the local contractors and the Local 100. “Q. I see. So that’s — in other words, once you sign that contract with the Mechanical Contractors’ Association, that sets the only type of agreement which your Union can enter into with any other mechanical contractors; is that correct, sir? “A. That is true.” Tr. 45-46. There was no evidence that Local 100’s organizing campaign was connected with any agreement with members of the multiemployer bargaining unit, and the only evidence of agreement among those subcontractors was the “most favored nation” clause in the collective-bargaining agreement. In fact, Connell has not argued the case on a theory of conspiracy between the union and unionized subcontractors. It has simply relied on the multiemployer agreement as a factor enhancing the restraint of trade implicit in the subcontracting agreement it signed. Meat Cutters v. Jewel Tea Co., 381 U. S. 676, 684-688 (1965) (opinion of White, J.); id., at 710 n. 18 (opinion of Goldberg, J.); cf. Vaca v. Sipes, 386 U. S. 171, 176-188 (1967); Smith v. Evening News Assn., 371 U. S. 195 (1962). Section 8 (e) provides: “It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void: Provided, That nothing in this subsection shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work: Provided further, That for the purposes of this subsection and subsection (b)[(4)(B)] of this section the terms ‘any employer,’ ‘any person engaged in commerce or an industry affecting commerce,’ and ‘any person’ when used in-relation to the terms ‘any other producer, processor, or manufacturer,’ 'any other employer,’ or ‘any other person’ shall not include persons in the relation of a jobber, manufacturer, contractor, or subcontractor working on the goods or premises of the jobber or manufacturer or performing parts of an integrated process of production in the apparel and clothing industry: Provided further, That nothing in this subchapter shall prohibit the enforcement of any agreement which is within the foregoing exception.” 29 U. S. C. §158 (e). See H. R. Conf. Rep. No. 1147, 86th Cong., 1st Sess., 39-40 (1959). 105 Cong. Rec. 17327 (1959) (remarks by Sen. Kennedy); id., at 17381 (remarks by Sens. Javits and Goldwater); id., at 15539 (memorandum by Reps. Thompson and Udall); id., at 16590 (memorandum by Sen. Kennedy and Rep. Thompson). These debates are reproduced in 2 NLRB, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, pp. 1377, 1385, 1576, 1708 (1959) (hereinafter Leg. Hist, of LMRDA). 105 Coug. Rec. 17899 (1959) (remarks by Sen. Kennedy); id., at 18134 (remarks by Rep. Thompson); 2 Leg. Hist, of LMRDA 1432, 1721. President Eisenhower’s message to Congress reconunending labor reform legislation urged amendment of the secondary-boycott provisions to permit secondary activity “under certain circumstances, against secondary employers engaged in work at a common construction site with the primary employer.” S. Doc. No. 10, 86th Cong., 1st Sess., 3 (1959) (emphasis added). Various bills introduced in both Houses included such provisions, see 2 Leg. Hist, of LMRDA 1912-1915, but neither the bill that passed the Senate nor the one that passed the House contained a Denver Building Trades provision. The Conference Committee proposed to include such an amendment to § 8 (b) (4) (B) in the Conference agreement, along with a closely linked construction-industry exemption from §8 (e). 105 Cong. Rec. 17333 (1959) (proposed Senate resolution), 2 Leg. Hist, of LMRDA 1383. But a parliamentary obstacle killed the § 8 (b) (4) (B) amendment, and only the § 8 (e) proviso survived. See 105 Cong. Rec. 17728-17729, 17901-17903, 2 Leg. Hist, of LMRDA 1397-1398, 1434-1436. References to the proviso suggest that the Committee may have intended the § 8 (e) proviso simply to preserve the status quo under Carpenters v. NLRB (Sand Door), 357 U. S. 93 (195S), pending action on the Denver Building Trades problem in the following session. See H. R. Rep. No. 1147, supra, n. 5, at 39-40; 105 Cong. Rec. 17900 (1959) (report of Sen. Kennedy on Conference agreement), 2 Leg. Hist, of LMRDA 1433. Although Senator Kennedy introduced a bill to amend §8 (b)(4), S. 2643, 86th Cong., 1st Séss. (1959), it was never reported out of committee. See 105 Cong. Rec. 17881 (1959) (remarks by Sen. Morse); id., at 15541 (memorandum by Reps. Thompson and Udall); id., at 15551-15552 (memorandum by Sen. Elliott); id., at 15852 (remarks by Rep. Goodell); see also id., at 20004-20005 (post-legislative remarks by Rep. Kearns); 2 Leg. Hist, of LMRDA 1425, 1577, 1588, 1684, and 1861. Local 100 contends, unsoundly we think, that the NLRB has decided this issue in its favor. It cites Los Angeles Building & Construction Trades Council (B & J Investment Co.), 214 N. L. R. B. No. 86, 87 L. R. R. M. 1424 (1974), and a memorandum from the General Counsel explaining his decision not to file unfair labor practice charges in a similar case, Plumbers Local 100 (Hagler Construction Co.), No. 16-CC-447 (May 1, 1974). In B & J Investment the Board approved, without comment, an administrative law judge’s conclusion that the § 8 (e) proviso authorized a subcontracting agreement between the Council and a general contractor who used none of his own employees in the particular construction project. The agreement in question may have been a prehire contract under § 8 (f), and it is not clear that the contractor argued that it was invalid for lack of a collective-bargaining relationship. The General Counsel’s memorandum in Hagler Construction is plainly addressed to a different argument — that a subcontracting clause should be allowed only if there is a pre-existing collective-bargaining relationship with the general contractor or if the general contractor has employees who perform the kind of work covered by the agreement. 105 Cong. Rec. 6428-6429 (1959) (remarks of Sen. Goldwater); id., at 6648-6649 (remarks of Sen. McClellan); id., at 6664-6665 (remarks of Sen. Goldwater); id., at 14348 (memorandum of Rep. Griffin); 2 Leg. Hist, of LMRDA 1079, 1175-1176, 1191-1192, 1523. H. R. Rep. No. 1147, supra, n. 5, at 42; 105 Cong. Rec. 10104 (1959) (memorandum of Sen. Goldwater); id., at 18128 (remarks by Rep. Barden); 2 Leg. Hist, of LMRDA 1289, Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented? A. Yes B. No Answer:
songer_majvotes	2	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes. UNITED STATES of America, Appellee, v. Austin Jerry HUX, dba Fireball Electronics, Appellant. No. 90-2914. United States Court of Appeals, Eighth Circuit. Submitted April 10, 1991. Decided July 26, 1991. Ronald L. Griggs, El Dorado, Ark., for appellant. Matthew W. Fleming, argued (J. Michael Fitzhugh and Matthew W. Fleming, on brief), Fort Smith, Ark., for appellee. Before LAY, Chief Judge, and PECK and ROSS, Senior Circuit Judges. The HONORABLE JOHN W. PECK, Senior United States Circuit Judge for the Sixth Circuit, sitting by designation. JOHN W. PECK, Senior Circuit Judge. Austin Jerry Hux appeals from a guilty verdict in the district court on two counts of manufacturing an electronic device which surreptitiously intercepts electronic communications in violation of 18 U.S.C. § 2512(l)(b) and two counts of infringing the copyright of computer programs contained in satellite descramblers in violation of 17 U.S.C. § 506(a). Hux appeals on three grounds. First, he contends that 18 U.S.C. § 2512(l)(b) is not applicable to the conduct alleged in the first two counts. Second, he asserts that the district court erred in admitting certain evidence. Third, he alleges that the evidence was insufficient to convict him of the copyright charges. For the reasons stated below, we reverse in part and affirm in part. I. BACKGROUND Hux sells and services satellite systems, two-way radios, and other electronic devices. In March 1989, an undercover agent working with the FBI asked Hux to modify a General Instruments VideoCipher II Satellite Descrambler Module so that it would receive premium pay channels without the user paying the provider of the programming. Hux made the modification for $400. Again in May 1989, the undercover agent gave Hux a VideoCipher II for modification. Hux modified the second unit and was paid $400. The FBI analyzed the de-scrambler and found that a computer chip had been modified to allow the receipt of all encrypted channels. On the basis of this evidence, a search warrant was issued for Hux’s business, Fireball Electronics. Items seized during the search included modified computer chips, programs to modify computer chips, and the tools necessary to perform the modifications. Hux was indicted on two counts of manufacturing an electronic device for the purpose of surreptitiously intercepting electronic communications, two counts of copyright infringement, and one count that was dismissed prior to trial. Hux was convicted on the four counts presented to the jury. He was sentenced to three years of probation, six months of which was to be served in an in-home detention program. Additionally, he was fined $40,000. Hux appealed his convictions to this court. II. APPLICABILITY OF 18 U.S.C. § 2512(l)(b) 18 U.S.C. § 2510 et seq. are commonly referred to as the Wiretap Law. Hux argues that as such 2512(l)(b) is not applicable to the alleged conduct of modifying satellite descramblers. His contention presents a difficult question of statutory interpretation that has caused a split of opinion within the Circuit Courts. A. Statutory authority The legislative history of 18 U.S.C. § 2512 as it was originally promulgated states that its statutory language is intended to “establish a relatively narrow category of devices whose principal use is likely to be for wiretapping or eavesdropping.... The crucial test is whether the design of the device renders it primarily useful for surreptitious listening.” S.Rep. No. 90-1097, 90th Cong., 2nd Sess., reprinted in 1968 U.S.Code Cong. & Admin.News 2112, 2183. Martini olive transmitters, spike mikes, and other microphones disguised as jewelry, pens, or cigarette lighters were specifically listed as prohibited devices. Id. In 1986, the existing law was amended through the Electronic Communications Privacy Act of 1986. The stated purpose of the amendments was to “update and clarify Federal privacy protections and standards in light of dramatic changes in new computer and telecommunications technology.” S.Rep. No. 99-541, 99th Cong.2d Sess., reprinted in 1986 U.S.Code Cong. & Admin.News 3555. While the original law covered only interception of oral and wire communications, the amendments added electronic communications as well. The legislative history lists many of the new telecommunications and computer technologies covered by the amendments including electronic mail, computer-to-computer communications, electronic bulletin boards, microwave, cellular telephones, cordless telephones, electronic pagers, pen registers, trap and trace devices, electronic tracking devices, and remote computer services. Id. at 3562-65. Interception of certain satellite transmissions by home viewers is discussed in the legislative history only in the context of excepting unencrypted satellite transmissions from the Wiretap Law under 18 U.S.C. § 2511. In fact, the legislative history states that “[t]he private viewing of satellite cable programming, network feeds and certain audio subcarriers will continue to be governed exclusively by [47 U.S.C. § 605] and not by [18 U.S.C. § 2510 et seq. ]. Id. at 3576. The amended provision under which Hux was charged, 18 U.S.C. § 2512(l)(b), imposes criminal sanctions on anyone who intentionally: manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications.... Hux contends that the proper statute for the alleged conduct is 47 U.S.C. § 605(e)(4) which provides criminal penalties for: Any person who manufactures, assembles, modifies, imports, exports, sells, or distributes any electronic, mechanical, or other device or equipment, knowing or having reason to know that the device or equipment is primarily of assistance in the unauthorized decryption of satellite cable programming.... As noted earlier, the propriety of convicting a person who manufactures or sells modified descramblers under § 2512 has caused a split in the Circuits. B. Case law In United States v. McNutt, 908 F.2d 561 (10th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 955, 112 L.Ed.2d 1043 (1991), the Tenth Circuit concluded that the defendant, who was involved in a conspiracy involving cloned satellite descramblers for unauthorized interception of satellite programming, was properly charged under § 2512. While admitting that there was some legislative history to the contrary, the Tenth Circuit determined that it was ambiguous and looked to the plain language of the statute for guidance. Under the statute, “intercept” is defined as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” 18 U.S.C. § 2510(4). “Electronic communication” is defined as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio_” 18 U.S.C. § 2510(12). The Tenth Circuit reasoned that satellite television transmissions carry both images and sounds by radio waves and that the defendant’s cloned descramblers were electronic devices which intercepted electronic communications. 908 F.2d at 564-65. The reception of programming through the cloned descramblers is surreptitious because the satellite television program providers are unaware that it is being intercepted. Id. at 565. Therefore, the Tenth Circuit concluded that the defendant was properly charged under § 2512. Id. No mention was made of 47 U.S.C. § 605. The Eleventh Circuit reached the opposite conclusion in United States v. Herring, 933 F.2d 932 (1991), a case in which the defendants modified VideoCipher II units so that they could receive unauthorized satellite programming. In Herring, the court provided a thorough historical and precedential review of § 2512. In doing so, the court cited United States v. Schweihs, 569 F.2d 965 (5th Cir.1978), a case which reverses a conviction under § 2511(l)(b) as it was originally promulgated. In Schweihs, the defendant had made an amplifier that aided him in avoiding an alarm system in an office he was burglarizing. The Government witnesses testified that the amplifier could be used with ordinary audio equipment and that it was not primarily useful for surreptitious listening. Id. at 969. In overturning the conviction, the court in Schweihs examined the legislative history and concluded that even a device that was constructed for eavesdropping was not prohibited by the statute “if its design characteristics do not render it primarily useful for that purpose.” Id. at 968. The court stated that the statutory language “reflects a careful and studied congressional decision to leave untouched the production, distribution, and possession of electronic equipment designed for regular use in varied nonsurrep-titious activities, even though the equipment is capable of being used in a surreptitious manner_” Id. The Eleventh Circuit determined that the modified de-scramblers in Herring also had no specifically surreptitious characteristics. Herring at 934. Their similarity to legitimate descramblers was precisely what made them useful for illegitimate reception of satellite transmissions. Id. Because the descramblers have significant legitimate uses and are not primarily useful for surreptitious listening, the Eleventh Circuit concluded that the Herring defendants could not have been convicted under § 2512(l)(b) prior to its amendment. Id. The legislative history of the 1986 amendments to the Wiretap Law stated that private viewing of cable programming was governed exclusively by 47 U.S.C. § 605. The Eleventh Circuit noted that the provisions of § 605 clearly prohibited the defendants’ conduct in modifying de-scramblers to allow unauthorized access to satellite programming. Herring at 937. In examining whether both 47 U.S.C. § 605 and 18 U.S.C. § 2512(l)(b) applied to the conduct, the court noted that criminal statutes are to be construed narrowly in favor of the defendant. Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971). The court concluded that the ambiguity of the statute and its history, in conjunction with the fact that the conduct would not have been prohibited under the Fifth Circuit’s interpretation of § 2512(l)(b) in Schweihs, indicated that lenity was appropriate. Herring at 937. Next, the court noted the principle of statutory construction that a “statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum.” Id. (citing Radzanower v. Touche Ross & Co., 426 U.S. 148, 153, 96 S.Ct. 1989, 1992, 48 L.Ed.2d 540 (1976)). The Eleventh Circuit acknowledged that where statutes overlap, the prosecutor has discretion in choosing the statute for indictment. Id. at 938. However, the court concluded that these statutes do not overlap, or even if they do, § 2512(l)(b) is so ambiguous as to require prosecution under the more specific statute. Id. at 938. Finally, the Eleventh Circuit acknowledged the Tenth Circuit’s position in McNutt, supra. The court determined that McNutt incorrectly interpreted “surreptitiously” for the purpose of § 2512(l)(b). Id. at 938-39. Citing Schweihs, the court concluded that the significant legitimate uses for the descramblers take them out of the ambit of the devices prohibited under § 2512(l)(b). C. Conclusion The difference of opinion in the Circuits demonstrates that the interpretation of § 2512(l)(b) is a difficult matter. Under the Tenth Circuit’s interpretation, Hux’s conduct was prohibited by § 2512(l)(b). However, that interpretation discounts the legislative history and ignores the existence of 47 U.S.C. § 605. We believe that the Eleventh Circuit has the better reasoned approach in considering the past and present legislative history, prior case law, principles of statutory construction, and the provisions of 47 U.S.C. § 605. Accordingly, we reverse Hux’s conviction under 18 U.S.C. § 2512(l)(b). III. ADMISSIBILITY OF EVIDENCE Next, Hux complains that the district court erred in admitting General Instruments’ copyright certificates because they did not appear on the Government’s evidence list and were not produced by the Government until the first day of trial. Hux notes that Federal Rule of Criminal Procedure 12(d) requires the Government to provide notice of its intention to use in its case-in-chief any evidence that the defendant is entitled to discover under Federal Rule of Criminal Procedure 16. Hux submits that this untimely production of evidence prejudiced his ability to prepare for trial. At trial, the defense objected to the admission of the certificates. Upon the objection, the trial court held a bench conference. The Government attorney stated that he had just received the certificates on the morning of the trial. The Government noted that the certificates were merely business documents showing registration of the copyrights, not the copyrighted programs themselves. The trial judge extended the lunch recess so that defense counsel would have an adequate opportunity to examine the documents and then ruled that the certificates were admissible. This court may reverse the district court’s evidentiary rulings only upon a showing of an abuse of discretion. United States v. Simon, 767 F.2d 420 (8th Cir.), cert. denied, 474 U.S. 863, 106 S.Ct. 179, 88 L.Ed.2d 148 (1985). We conclude that there has been no such abuse in this case. As the Government noted, the certificates were merely business documents that substantiated the existence of the copyrights. Hux presented an expert witness who testified about the actual copyrighted material and concluded that there had been no infringement. Thus the tardy production of the certificates did not preclude Hux from preparing his defense with regard to the copyrighted material. Additionally the judge allowed the defense counsel adequate time to examine the documents during the long lunch break. Defense counsel did not indicate that he needed more time. Accordingly, we conclude that the district court did not abuse its discretion in admitting the certificates. IV. SUFFICIENCY OF THE EVIDENCE Hux was indicted under 17 U.S.C. § 506(a) which applies to “[a]ny person who infringes a copyright willfully and for purposes of commercial advantage or private financial gain....” The district court instructed the jury that the Government must prove the following elements beyond a reasonable doubt: 1) that the computer program in the satellite descrambler modules had a valid copyright; 2) that Hux infringed the copyright by preparing one or more derivative works or computer programs, or by reproducing or selling unauthorized copies of the computer program; 3) that Hux willfully infringed the copyright; and 4) that the act of infringement was for commercial advantage or private financial gain. Hux argues that the evidence was insufficient to sustain his convictions under § 506(a). Hux notes that only 205 bytes on the computer chip he developed were similar to the total of 16,384 bytes on General Instruments’ chip. He contends that this similarity is insignificant and that he merely replaced the original chip with another that was the product of his own labor. As such, he argues that there has been no copyright infringement. Apple Computer, Inc. v. Formula International, Inc., 562 F.Supp. 775, 782 (C.D.Cal.1983), aff'd, 725 F.2d 521 (9th Cir.1984) (one may make a machine do the same thing it would if the copyrighted material were placed in it as long as it is by one’s own creative effort, not piracy). Hux also disputes that the Government proved the second element of infringement. Hux’s expert witness testified that Hux’s chip was not a derivative work or other infringement of the General Instruments’ chip. In reviewing the sufficiency of the evidence, a conviction must be upheld, if viewing the evidence in the light most favorable to the Government, substantial evidence supports the jury’s verdict. United States v. Marin-Cifuentes, 866 F.2d 988, 992 (8th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989). The Government is also entitled to all reasonable inferences drawn from the evidence. Id. Additionally, the evidence need not exclude every reasonable hypothesis except guilt. It must only be sufficient to convince the jury of the defendant’s guilt beyond a reasonable doubt. Id. In addition to the copyright certificates, two witnesses testified that General Instruments held valid copyrights for the computer program in the descramblers Hux modified. A Government witness testified that the computer chips Hux substituted were derivative and essentially the same as General Instruments’ copyrighted chip. An FBI agent assigned to the investigation testified that Hux admitted knowing that what he was doing was illegal. The purchaser of the modified units testified that he paid Hux $400 for each modification. Thus, evidence was presented on each of the four elements. Viewing this evidence in the light most favorable to the Government, we conclude that it was sufficient for the jury to reasonably find Hux guilty beyond a reasonable doubt of copyright infringement. Accordingly, we affirm the conviction. . The Honorable Oren Harris, Senior District Judge for the Western District of Arkansas. . 18 U.S.C. § 2511(4)(c) provides: Conduct otherwise an offense under this subsection that consists of or relates to the interception of a satellite transmission that is not encrypted or scrambled and that is transmitted— (i) to a broadcasting station for the purposes of retransmission to the general public; or (ii) as an audio subcarrier intended for redistribution to facilities open to the public, but not including data transmission or telephone calls, is not an offense under this subsection unless the conduct is for the purposes of direct or indirect commercial advantage or private financial gain. 18 U.S.C. § 2511(5)(a)(i)(A) subjects private viewing of unencrypted satellite transmissions to a suit by the Government. Question: What is the number of judges who voted in favor of the disposition favored by the majority? Answer:
songer_geniss	D	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. 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". Donald L. CALE, Appellant, v. The CITY OF COVINGTON, Virginia, Appellee. No. 77-1239. United States Court of Appeals, Fourth Circuit. Argued Dec. 13, 1977. Decided Nov. 3, 1978. William A. Parks, Jr., Hot Springs, Ya. (Erwin S. Solomon, Erwin S. Solomon & Associates, Hot Springs, Va., on brief), for appellant. Joseph A. Matthews, Jr., and T. T. Lawson, Roanoke, Va. (William B. Poff, Woods, Rogers, Muse, Walker & Thornton, Roanoke, Va., on brief), for appellee. Before FIELD, Senior Circuit Judge, and WIDENER and HALL, Circuit Judges. WIDENER, Circuit Judge: On November 30, 1973, Donald L. Cale was discharged from his duties as a police officer for the City of Covington, Virginia. Chief of Police Donald Leet dismissed Cale for taking, while he was on duty, a plastic scalpel from the office of a deceased physician. Cale then brought this wrongful discharge action in the district court, only against the City of Covington, resting jurisdiction upon the existence of a federal question and an amount in controversy exceeding $10,000. The cause of action was alleged to have arisen under the Fifth and Fourteenth Amendments to the Constitution. The complaint also included State law claims, the dismissal of which is not here contested. He demanded damages of $50,-000. In its answer, the City pleaded that Cale’s complaint failed to state a cause of action, and, following discovery, moved for summary judgment. Considering Cale’s “complaint as a suit for monetary relief under 42 U.S.C. § 1983,” the district court granted the City’s motion on the “well settled principle of law that a municipality is not a ‘person’ within the meaning of § 1983 and therefore is not amenable to suit for monetary relief under these statutes,” citing City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The first of three questions for review is whether the district court erred in deciding that 42 U.S.C. § 1983 provided Cale no remedy. While the decision of the district court was correct at the time of its decision, e. g., City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the law has since changed. The Supreme Court in the recent decision of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), overruled the absolute immunity of municipalities from suits under § 1983 which had been established in Monroe. As we should apply the law as it exists at the time of our decision, Cort v. Ash, 422 U.S. 66, 76, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), we vacate the decision of the district court dismissing Cale’s case as a suit under § 1983 and remand for further proceedings consistent with Monell. We add only that the liability of the City of Covington under § 1983 may depend upon factual issues not developed in the current state of the record, for Monell makes it clear that “a municipality cannot be held liable under § 1983 on a respondeat superior theory,” 436 U.S. at 691, 98 S.Ct. at 2036, and that only a local government which “under color of some official policy ‘causes’ an employee to violate another’s constitutional rights” may be liable. 436 U.S. at 692, 98 S.Ct. at 2036. The next question is whether the amount in controversy was sufficient to invoke the district court’s subject matter jurisdiction under 28 U.S.C. § 1331. The City disputes Cale’s claim of $50,000 in damages, and argues that because Cale was later able to secure subsequent employment with about the same salary or wages, his damages were in fact less than the $10,000 jurisdictional amount required under § 1331. To agree with the City, however, we must determine “to a legal certainty that the claim is really for less than the jurisdictional amount . . Mt. Healthy, infra, 429 U.S. at 276, 97 S.Ct. at 570, quoting St. Paul Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). “[T]he sum claimed by the plaintiff controls if the claim is apparently made in good faith.” Id. Viewing Cale’s complaint under these criteria, we cannot find to a legal certainty that the amount in controversy was insufficient, and the bona fides of his claim for $50,000 in damages have not been questioned here. Although often litigated of late in the inferior federal courts, neither this court nor the Supreme Court has yet answered the question of whether or not an implied cause of action for damages exists against a municipality for the act of its employee under the Fourteenth Amendment with jurisdiction under 28 U.S.C. § 1331, without the limitations imposed by § 1983. We hold that it does not. Our opinion that no action of the type exemplified by Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), should be so implied from the Fourteenth Amendment rests upon our opinion as to the meaning of the amendment in the light of its wording, background, congressional action, and court decisions construing it. While it is true that the federal courts have determined the constitutionality of State and federal legislation under the Fourteenth Amendment, Cale does not ask us merely to enforce the prohibitions of the Fourteenth Amendment as measured against a statute or regulation. Rather, he asks us to imply a cause of action for damages in that he was discharged in violation of the due process clause of the Fourteenth Amendment because the discharge was without proper notice or hearing. The beginning point of our analysis is the amendment itself, ratified in 1868. Our particular concerns are §§ 1 and 5 thereof. Section 1, in pertinent part, provides that no State shall “deprive any person of life, liberty, or property without due process of law.” Section 5 states that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” We also consider 28 U.S.C. § 1331(a), which, for our purposes, was enacted in 1875. It provides for original jurisdiction in the district courts over “all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States. . . ” It is too well documented to bear citation that federal courts are courts of limited jurisdiction and especially the inferior federal courts. And “in the legal system generally a jurisdictional grant does not in and of itself necessarily — or even ordinarily — imply a power to make substantive rules of decision. . . . ” The Federal Courts and the Federal System, Bator, Shapiro, Mishkin, and Wechsler (2d ed. 1973), p. 786. We need go no further than these elementary rules to arrive at our conclusion that the enactment of § 1331 did not of itself create any cause of action, nor do we think that one may be implied from the mere grant of jurisdiction. So, if there is to be a cause of action implied in favor of the plaintiff against the City of Covington, it must be directly under the Constitution and in our case more particularly under the due process clause of the Fourteenth Amendment. Due process decisions, especially in recent years, have reached endless number. To repeat, plaintiff’s claim is based on the now familiar allegation that he was discharged as a policeman by the Chief of Police of the City of Covington without a hearing. He claims that his discharge without a hearing is a violation of the due process clause. Assuming for the moment, without deciding, the validity of the plaintiff’s cause of action as alleged, the question arises as to whether there is jurisdiction in a federal court to hear it. This question has been answered in the affirmative for suits under § 1331 in Mt. Healthy Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), but the consideration of whether or not there is jurisdiction and whether or not a cause of action is stated are different questions. Mt. Healthy, p. 278, 97 S.Ct. 568; Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). Had the plaintiff sued the Chief of Police, he clearly may have stated a cause of action under'§ 1983, and we have directed remand on the issue of the City’s liability under § 1983 as construed by Monell. But the plaintiff persists that he has a right to sue the City, even apart from § 1983, for damages directly under the Fourteenth Amendment, claiming jurisdiction under § 1331. We thus turn to the question of whether or not to imply a cause of action under the Fourteenth Amendment against the City of Covington on account of the actions of its employee. There have been many opinions in the inferior federal courts which discuss the question, and we do not attempt to analyze them all or collect them here. Some are holdings directly on the point; some are more or less on the point; and some decide the jurisdictional question but speak of the cause of action. On facts very similar to the case at hand, the Eighth Circuit, in Owen v. City of Independence, 560 F.2d 925 (8th Cir. 1977), on account of the firing of a Chief of Police by the City Manager, held, under § 1331 jurisdiction, that there was an implied cause of action under the Fourteenth Amendment due process clause. A similar holding was apparently made in Hanna v. Drobnick, 514 F.2d 393 (6th Cir. 1975), on account of the inspections of a building inspector under a city ordinance claimed to be invalid. The question in Hanna, however, concerned Fourth Amendment rights asserted under the Fourteenth Amendment. Both Hanna and Owen relied on Bivens. The Second Circuit, in Gentile v. Wallen, 562 F.2d 193 (2d Cir. 1977), a suit against a School Board, made the same holding against the board when it refused to grant tenure. As did Hanna and Owen, Gentile relied on Bivens. The First Circuit, however, in Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977), held, to the contrary, that there was no implied cause of action for damages under the Fourteenth Amendment resulting from the shooting of the plaintiff’s decedent by a police officer. The Third Circuit, in two cases, has made it clear that it has not decided the question: Gagliardi v. Flint, 564 F.2d 112, 115, n. 3 (3d Cir. 1977), cert, den., - U.S. -, 98 S.Ct. 3122, 57 L.Ed.2d 1147 (1978); Mahone v. Waddle, 564 F.2d 1018, 1024-25 (3d Cir. 1977), cert, den.,--U.S. -, 98 S.Ct. 3122, 57 L.Ed.2d 1147 (1978). The Tenth Circuit also has not decided the question. Weathers v. West Yuma County School District, 530 F.2d 1335, 1342 (10th Cir. 1976). The Fifth and Seventh and Ninth Circuits have also discussed the question. We note that the holdings in those cases may strictly be said to relate to jurisdiction, and they were decided following Bivens and do not discuss that case. But, while their discussions may not be squarely on point, we should in candor relate that they indicate, if called upon to decide the question, those courts would probably decide that there was an implied cause of action under the Fourteenth Amendment with jurisdiction under § 1331 if they follow the thoughts expressed in the cases just following: see Fitzgerald v. Porter Mem. Hosp., 523 F.2d 716, 718, n. 7 (7th Cir. 1975); Gray v. Union Co. Intermediate Education District, 520 F.2d 803 (9th Cir. 1975); Roane v. Callisburg Independent School District, 511 F.2d 633 (5th Cir. 1975); Stapp v. Avoyelles Parish School Bd., 545 F.2d 527, 531, n. 7 (5th Cir. 1977); Hostrop v. Bd. of Jr. College District No. 515, 523 F.2d 569 (7th Cir. 1975). The Sixth Circuit, in Amen v. City of Dearborn, 532 F.2d 554 (6th Cir. 1976), has held there was § 1331 jurisdiction with respect to the condemnation of real estate in a claim under the Fourteenth Amendment. Cf. Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142 (1933). In our own circuit, Burt v. Board of Trustees, 521 F.2d 1201, 1205 (4th Cir. 1975), and Singleton v. Vance County Board of Education, 501 F.2d 429 (4th Cir. 1974), have alluded to the question but not decided it. The eases which have held that the cause of action may be implied have generally followed that part of the reasoning of Bivens which concludes that when a general statute provides for a right to sue for an invasion of a federally protected right, federal courts may use any available remedy to make good the wrong done. See also Bell v. Hood, 327 U.S. p. 684, 66 S.Ct. 773, Kostka analyzed Bivens differently, holding that its reasoning taught caution, making analogy to the case of a claim that an implied cause of action arose from a statute which had not explicitly created one. See Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). It found that Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), was based on an affirmative policy against federal court imposition of liability on political subdivisions. The Kostka court found that a damages action was not indispensable to the effectuation of the Fourteenth Amendment and held that there was no implied cause of action. While the Supreme Court, in Mt. Healthy, has made it clear that it has not decided the question, there are cases which have mentioned it, early as well as late. One of these is Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1880). In that case, which construed § 5 of the Fourteenth Amendment and the extent of congressional authority (which it upheld) granted under the amendment, the court said: “It is not said the judicial power of the general government shall extend to enforcing the prohibitions and to protecting the rights and immunities guaranteed. It is not said that that branch of the government shall be authorized to declare void any action of a State in violation of the prohibitions. It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the amendments fully effective.” 100 U.S. 339, 345, 25 L.Ed. 676 (Italics are the Court’s). Ex parte Virginia was closely followed by the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883), in which the Court reviewed the validity of an act of Congress providing for equality of accommodations and transportation as against the authority granted by the Thirteenth and Fourteenth Amendments. The Court held invalid a part of the statute complained of. In the Slaughter-House Cases, 16 Wall. 36, 21 L.Ed. 394 (Dec. Term 1872), the Court upheld the validity of a Louisiana statute regulating slaughter-houses when measured against the Fourteenth Amendment. It is true that in the Civil Rights Cases the Court referred to the Fourteenth Amendment as self-executing, 109 U.S. at 20, 3 S.Ct. 18, when discussing the Fifteenth, but it is also true that earlier in the opinion, discussing § 1 of the Fourteenth Amendment, the court stated: “in order that the national will, thus declared, may not be a mere brutum fulmen, the last section of the amendment invests Congress with power to enforce it by appropriate legislation.” The Civil Rights Cases did not overrule Ex parte Virginia, and any apparent inconsistency between the two just quoted statements in the Civil Rights Cases may be resolved, we think, by reference to the protection the Fourteenth Amendment provided of its own force as a shield under the doctrine of judicial review. See the dissent of Mr. Justice Harlan in the Civil Rights Cases quoted infra. See also the Slaughter-House Cases, 16 Wall, at 81, where the Court, referring to the equal protection clause of the Fourteenth Amendment, had stated that when it is a State dealt with and not alone the validity of a State law, the matter should be left until Congress should has exercised its power or some case of State oppression by denial of equal justice in its courts claims a decision at the hands of the Supreme Court. Another early opinion, not by the Supreme Court but by Chief Justice Chase sitting as a Circuit Justice, is Griffin’s Case, 11 Fed. Cases 7 (C.C.D.Va.1869), which held that the third section of the Fourteenth Amendment, concerning disqualifications to hold office, was not self-executing absent congressional action. Certainly the courts which decided these cases were aware of Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), and Martin v. Hunter’s Lessee, 1 Wheat. 304, 4 L.Ed. 97 (1816), and their contemporaneous understanding of the meaning of the Fourteenth Amendment, which we think coincided with the understanding of Congress, should be given consideration. We do not believe the statements in Ex parte Virginia, the Slaughter-House Cases, and the Civil Rights Cases as to the meaning of the Fourteenth Amendment are inconsistent or that they meant to overrule sub silentio Marbury or more especially Martin. The courts were entirely familiar with the doctrine of judicial review by that time, and the understanding of this is stated by the first Justice Harlan in his dissent on other grounds in the Civil Rights Cases at pages 45 and 46 of the opinion of 109 U.S. at page 46 of 3 S.Ct. “The Fourteenth Amendment presents the first instance in our history of the investiture of congress with affirmative power, by legislation, to enforce an express prohibition upon the States. It is not said that the judicial power of the nation may be exerted for the enforcement of that amendment. No enlargement of the judicial power was required, for it is clear that had the fifth section of the fourteenth amendment been entirely omitted, the judiciary could have stricken down all state laws and nullified all state proceedings in hostility to rights and privileges secured or recognized by that amendment. The power given is, in terms, by congressional legislation, to enforce the provisions of the amendment.” With this understanding in mind, we believe that the Congress and Supreme Court of the time were in agreement that affirmative relief under the amendment should come from Congress. When we add to this state of affairs Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which far-reaching opinion provided that an officer of a State could be required as an individual to perform his public duties in a constitutional manner, we see that litigants having suffered a violation of their constitutional rights were protected in all instances; that is to say, the right was protected in all instances. What we think is clear is that the right was protected either by Marbury v. Madison, or Martin v. Hunter’s Lessee, or by § 1983, or by Ex parte Young. It is not doubted that the remedy may not be coextensive under any of these theories of judicial review or legislation for the protection of constitutional rights. The acceptance of the teaching of these cases is undoubted and almost universal. Not without significance is that, in the 103 years of the present existence of § 1331, the Court has not decided the question now before us. Professor Dellinger, in his article on the subject, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532 (1972), states that “. with one exception [footnote omitted] prior to Bivens the court has never explicitly exercised the judicial power to create a damage remedy in a case arising under the Constitution . . that exception being Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142 (1933). And even in Jacobs the Court may have only recited that the suit was based on the right to recover just compensation for property taken by the United States for public use in exercise of its power of eminent domain and rested upon the Fifth Amendment. So the exception of Jacobs to the general rule thus may not be taken as beyond doubt. Arant v. Lane, 245 U.S. 166, 170, 38 S.Ct. 94, 62 L.Ed. 223 (1917). This understanding is echoed by Professor Moore in Moore’s Federal Practice, Vol. I (1977), p. 665, where he states “In most instances, on the other hand [referring to Bivens], the Constitution unaided by statute does not create rights against private parties. On the whole case, as previously indicated, we are of opinion there is no implied cause of action against the municipality under the Fourteenth Amendment, with jurisdiction under § 1331, for the acts of one of its employees. We give weight to the fact that the amendment itself authorizes action by Congress, which Congress has exercised in § 1983, and which, even under Monell, does not permit untrammeled municipal liability. We also give weight to the reasoning that the granting of money damages against a municipality in the absence of legislative authorization actively involves the judiciary in policy decisions relating to the allocation of limited resources which in certain instances may raise serious questions concerning the enforceability of a court’s mandate. See Dellinger, p. 1533. Also taken into account is the fact that the plaintiff here has a remedy, perhaps not perfect, but that which was contemplated by Congress. In our case, affirmative action by Congress should counsel hesitation. Bivens, 403 U.S. p. 396, 91 S.Ct. 1999. In contrast to Bivens, which did not deal “with a question of ‘federal fiscal policy’ ” by allowing a suit against federal agents, we do deal with a question of State fiscal policy should we permit a suit against a municipal corporation based on respondeat superior and not subject to the limitations of § 1983, the only source for satisfaction of a judgment against it being the taxpayers who furnish the money to the municipality. Again, in contrast to Bivens which had no formulation of congressional policy as to whether the availability of money damages was necessary to enforce the Fourth Amendment, we have here a congressional policy that while money damages against an individual may be necessary to enforce the Fourteenth Amendment, they are in certain circumstances inappropriate against municipalities on account of the same act of the same employee. Finally and not of the least importance, should we give as our opinion that there is an implied cause of action under the Fourteenth Amendment in the setting here, it would seem impossible for Congress to undo it for the federal courts in adjudicating such acts of Congress would enter into a balancing procedure to ascertain whether the remedy enacted by Congress is as adequate as a court implied remedy. That to us would seem to be a violation of the fifth clause of the Fourteenth Amendment which has expressly entrusted to Congress the “power to enforce, by appropriate legislation, the provisions of this article.” As MonelI holds, Congress has done just this. We doubt that we should take away this constitutionally entrusted power by judicial decision. Indeed, it seems that our authority so to do is little better than doubtful if it should exist at all. The judgment of the district court must be vacated and the case remanded. On remand, Cale should be allowed to proceed with his action under § 1983, but not allowed to proceed with it insofar as he claims it is based on an implied cause of action under the Fourteenth Amendment. VACATED AND REMANDED. . For example, in the Slaughter-House Cases, 16 Wall. 36, 21 L.Ed. 394 (1872), the Supreme Court reviewed the constitutionality of a Louisiana statute under the Fourteenth Amendment. In the Civil Rights Cases, 109 U.S. 3, 15, 3 S.Ct. 18, 27 L.Ed. 835 (1883), the Court reviewed the constitutionality of different sections of the congressional legislation upheld in Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1880). . A previous provision for catchall federal question jurisdiction was short lived, from 1801 to 1802. Wright, Miller, & Cooper, Federal Practice and Procedure (1975), § 3563, n. 3. . The cases and many other authorities are collected in the opinions we cite and in Professor Dellinger’s article, infra. See also Note: Damage Remedies Against Municipalities for Constitutional Violations, 89 Harv.L.Rev. 922 (1976). . Certiorari was granted, however, in Owen. The judgment of the court of appeals was vacated without opinion and the case remanded for further consideration in the light of Monell. --U.S.-----, 98 S.Ct. 3118, 57 L.Ed.2d 1145 (1978). . But see Davis v. Passman, 571 F.2d 793 (5th Cir. 1978) (en banc), which, somewhat contrary to a holding in this circuit in State’s Marine Lines, Inc. v. Shultz, 498 F.2d 1146 (4th Cir. 1974), held there was no implied cause of action under the Fifth Amendment against a federal officer as an individual for a discharge from employment claimed to be on account of the sex of the plaintiff. . This construction of Aldinger v. Howard should now be reconsidered in light of Monell. See 436 U.S. at 696, n. 61, 701, n. 66, 98 S.Ct. at 2039, 2041. . We note the reliance of Monell upon Ex parte Virginia. 436 U.S. at 683, n. 44, 690, n. 54, 98 S.Ct. 2032, 2035. . Wright, Miller and Cooper address the precise question before us and state that the general tenor of the Aldinger opinion “suggests that the Court may be unwilling to imply a damages remedy that Congress has deliberately refused to give.” 1977 Pocket Part, § 3573. This statement, of course, was written before the decision in Monell. 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	113	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. Jesus C. HERNANDEZ, et al., Petitioners v. Jesus MESA, Jr. No. 17-1678 Supreme Court of the United States. Argued November 12, 2019 Decided February 25, 2020 Randolph J. Ortega, Gabriel Perez, Ortega McGlashan Hicks & Perez, Louis Elias Lopez, Jr., El Paso, TX, for Respondent. Robert C. Hilliard, Marion M. Reilly, Hilliard Martinez, Gonzales, LLP, Corpus Christi, TX, Steve D. Shadowen, Matthew C. Weiner, Nicholas W. Shadowen, Hilliard & Shadowen LLP, Stephen I. Vladeck, Austin, TX, Leah M. Litman, Ann Arbor, MI, Cristobal M. Galindo, Cristobal M. Galindo, P.C., Houston, TX, for Petitioners. Justice ALITO delivered the opinion of the Court. We are asked in this case to extend Bivens v. Six Unknown Fed. Narcotics Agents , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and create a damages remedy for a cross-border shooting. As we have made clear in many prior cases, however, the Constitution's separation of powers requires us to exercise caution before extending Bivens to a new "context," and a claim based on a cross-border shooting arises in a context that is markedly new. Unlike any previously recognized Bivens claim, a cross-border shooting claim has foreign relations and national security implications. In addition, Congress has been notably hesitant to create claims based on allegedly tortious conduct abroad. Because of the distinctive characteristics of cross-border shooting claims, we refuse to extend Bivens into this new field. I The facts of this tragic case are set forth in our earlier opinion in this matter, Hernández v. Mesa , 582 U.S. ----, 137 S.Ct. 2003, 198 L.Ed.2d 625 (2017) (per curiam ). Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, was with a group of friends in a concrete culvert that separates El Paso, Texas, from Ciudad Juarez, Mexico. The border runs through the center of the culvert, which was designed to hold the waters of the Rio Grande River but is now largely dry. Border Patrol Agent Jesus Mesa, Jr., detained one of Hernández's friends who had run onto the United States' side of the culvert. After Hernández, who was also on the United States' side, ran back across the culvert onto Mexican soil, Agent Mesa fired two shots at Hernández; one struck and killed him on the other side of the border. Petitioners and Agent Mesa disagree about what Hernández and his friends were doing at the time of shooting. According to petitioners, they were simply playing a game, running across the culvert, touching the fence on the U.S. side, and then running back across the border. According to Agent Mesa, Hernández and his friends were involved in an illegal border crossing attempt, and they pelted him with rocks. The shooting quickly became an international incident, with the United States and Mexico disagreeing about how the matter should be handled. On the United States' side, the Department of Justice conducted an investigation. When it finished, the Department, while expressing regret over Hernández's death, concluded that Agent Mesa had not violated Customs and Border Patrol policy or training, and it declined to bring charges or take other action against him. Mexico was not and is not satisfied with the U.S. investigation. It requested that Agent Mesa be extradited to face criminal charges in a Mexican court, a request that the United States has denied. Petitioners, Hernández's parents, were also dissatisfied and therefore brought suit for damages in the United States District Court for the Western District of Texas. Among other claims, they sought recovery of damages under Bivens , alleging that Mesa violated Hernández's Fourth and Fifth Amendment rights. The District Court granted Mesa's motion to dismiss, and the Court of Appeals for the Fifth Circuit sitting en banc has twice affirmed this dismissal. On the first occasion, the court held that Hernández was not entitled to Fourth Amendment protection because he was "a Mexican citizen who had no 'significant voluntary connection' to the United States" and "was on Mexican soil at the time he was shot." Hernandez v. United States , 785 F.3d 117, 119 (C.A.5 2015) (per curiam ). It further concluded that Mesa was entitled to qualified immunity on petitioners' Fifth Amendment claim. Id., at 120. After granting review, we vacated the Fifth Circuit's decision and remanded the case, instructing the court "to consider how the reasoning and analysis" of Ziglar v. Abbasi , 582 U.S. ----, 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017), our most recent explication of Bivens , "[might] bear on this case." Hernández , 582 U.S., at ----, 137 S.Ct., at 2006. We found it "appropriate for the Court of Appeals, rather than this Court, to address the Bivens question in the first instance." Ibid. And with the Bivens issue unresolved, we thought it "imprudent" to resolve the "sensitive" question whether the Fourth Amendment applies to a cross-border shooting. Ibid. In addition, while rejecting the ground on which the Court of Appeals had held that Agent Mesa was entitled to qualified immunity, we declined to decide whether he was entitled to qualified immunity on a different ground or whether petitioners' claim was cognizable under the Fifth Amendment. Id., at ---- - ----, 137 S.Ct., at 2006-2008 On remand, the en banc Fifth Circuit evaluated petitioners' case in light of Abbasi and refused to recognize a Bivens claim for a cross-border shooting. 885 F.3d 811 (C.A.5 2018). The court reasoned that such an incident presents a " 'new context' " and that multiple factors-including the incident's relationship to foreign affairs and national security, the extraterritorial aspect of the case, and Congress's "repeated refusals" to create a damages remedy for injuries incurred on foreign soil-counseled against an extension of Bivens . 885 F.3d at 816-823. We granted certiorari, 587 U.S. ----, 139 S.Ct. 2636, 204 L.Ed.2d 282 (2019), and now affirm. II In Bivens v. Six Unknown Fed. Narcotics Agents , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619, the Court broke new ground by holding that a person claiming to be the victim of an unlawful arrest and search could bring a Fourth Amendment claim for damages against the responsible agents even though no federal statute authorized such a claim. The Court subsequently extended Bivens to cover two additional constitutional claims: in Davis v. Passman , 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), a former congressional staffer's Fifth Amendment claim of dismissal based on sex, and in Carlson v. Green , 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), a federal prisoner's Eighth Amendment claim for failure to provide adequate medical treatment. After those decisions, however, the Court changed course. Bivens , Davis , and Carlson were the products of an era when the Court routinely inferred "causes of action" that were "not explicit" in the text of the provision that was allegedly violated. Abbasi , 582 U.S., at ----, 137 S.Ct., at 1855. As Abbasi recounted: "During this 'ancien regime ,' ... the Court assumed it to be a proper judicial function to 'provide such remedies as are necessary to make effective' a statute's purpose .... Thus, as a routine matter with respect to statutes, the Court would imply causes of action not explicit in the statutory text itself." Ibid. (quoting Alexander v. Sandoval , 532 U.S. 275, 287, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) ; J. I. Case Co. v. Borak , 377 U.S. 426, 433, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964) ). Bivens extended this practice to claims based on the Constitution itself. 582 U.S., at ----, 137 S.Ct., at 1855 ; Bivens , 403 U.S. at 402, 91 S.Ct. 1999 (Harlan, J., concurring in judgment) (Court can infer availability of damages when, "in its view, damages are necessary to effectuate" the "policy underpinning the substantive provisio[n]"). In later years, we came to appreciate more fully the tension between this practice and the Constitution's separation of legislative and judicial power. The Constitution grants legislative power to Congress; this Court and the lower federal courts, by contrast, have only "judicial Power." Art. III, § 1. But when a court recognizes an implied claim for damages on the ground that doing so furthers the "purpose" of the law, the court risks arrogating legislative power. No law " 'pursues its purposes at all costs.' " American Express Co. v. Italian Colors Restaurant , 570 U.S. 228, 234, 133 S.Ct. 2304, 186 L.Ed.2d 417 (2013) (quoting Rodriguez v. United States , 480 U.S. 522, 525-526, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987) (per curiam )). Instead, lawmaking involves balancing interests and often demands compromise. See Board of Governors, FRS v. Dimension Financial Corp. , 474 U.S. 361, 373-374, 106 S.Ct. 681, 88 L.Ed.2d 691 (1986). Thus, a lawmaking body that enacts a provision that creates a right or prohibits specified conduct may not wish to pursue the provision's purpose to the extent of authorizing private suits for damages. For this reason, finding that a damages remedy is implied by a provision that makes no reference to that remedy may upset the careful balance of interests struck by the lawmakers. See ibid. This problem does not exist when a common-law court, which exercises a degree of lawmaking authority, fleshes out the remedies available for a common-law tort. Analogizing Bivens to the work of a common-law court, petitioners and some of their amici make much of the fact that common-law claims against federal officers for intentional torts were once available. See, e.g. , Brief for Petitioners 10-20. But Erie R. Co. v. Tompkins , 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), held that "[t]here is no federal general common law," and therefore federal courts today cannot fashion new claims in the way that they could before 1938. See Alexander , 532 U.S. at 287, 121 S.Ct. 1511 (" 'Raising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals' "). With the demise of federal general common law, a federal court's authority to recognize a damages remedy must rest at bottom on a statute enacted by Congress, see id., at 286, 121 S.Ct. 1511 ("private rights of action to enforce federal law must be created by Congress"), and no statute expressly creates a Bivens remedy. Justice Harlan's Bivens concurrence argued that this power is inherent in the grant of federal question jurisdiction, see 403 U.S. at 396, 91 S.Ct. 1999 (majority opinion); id. , at 405, 91 S.Ct. 1999 (opinion of Harlan, J.), but our later cases have demanded a clearer manifestation of congressional intent, see Abbasi , 582 U.S., at ---- - ----, 137 S.Ct., at 1856-1858. In both statutory and constitutional cases, our watchword is caution. For example, in Jesner v. Arab Bank, PLC , 584 U.S. ----, ---- - ----, 138 S.Ct. 1386, 1391-1403, 200 L.Ed.2d 612 (2018) we expressed doubt about our authority to recognize any causes of action not expressly created by Congress. See also Abbasi, 582 U.S., at ----, 137 S.Ct., at 1856 ("If the statute does not itself so provide, a private cause of action will not be created through judicial mandate"). And we declined to recognize a claim against a foreign corporation under the Alien Tort Statute. Jesner , 584 U.S., at ----, 138 S.Ct., at 1408. In constitutional cases, we have been at least equally reluctant to create new causes of action. We have recognized that Congress is best positioned to evaluate "whether, and the extent to which, monetary and other liabilities should be imposed upon individual officers and employees of the Federal Government" based on constitutional torts. Abbasi , 582 U.S., at ----, 137 S.Ct., at 1856. We have stated that expansion of Bivens is "a 'disfavored' judicial activity," 582 U.S., at ----, 137 S.Ct., at 1857 (quoting Ashcroft v. Iqbal , 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ), and have gone so far as to observe that if "the Court's three Bivens cases [had] been ... decided today," it is doubtful that we would have reached the same result, 582 U.S., at ----, 137 S.Ct., at 1856. And for almost 40 years, we have consistently rebuffed requests to add to the claims allowed under Bivens . See 582 U.S., at ----, 137 S.Ct., at 1863-1864 ; Minneci v. Pollard , 565 U.S. 118, 132 S.Ct. 617, 181 L.Ed.2d 606 (2012) ; Wilkie v. Robbins , 551 U.S. 537, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) ; Correctional Services Corp. v. Malesko , 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) ; FDIC v. Meyer , 510 U.S. 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) ; Schweiker v. Chilicky , 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) ; United States v. Stanley , 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) ; Chappell v. Wallace , 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) ; Bush v. Lucas , 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). When asked to extend Bivens , we engage in a two-step inquiry. We first inquire whether the request involves a claim that arises in a "new context" or involves a "new category of defendants." Malesko , 534 U.S. at 68, 122 S.Ct. 515. And our understanding of a "new context" is broad. We regard a context as "new" if it is "different in a meaningful way from previous Bivens cases decided by this Court." Abbasi , 582 U.S., at ----, 137 S.Ct., at 1859. When we find that a claim arises in a new context, we proceed to the second step and ask whether there are any " ' "special factors [that] counse[l] hesitation" ' " about granting the extension. Id. , at ----, 137 S.Ct., at 1857 (quoting Carlson , 446 U.S. at 18, 100 S.Ct. 1468, in turn quoting Bivens , 403 U.S. at 396, 91 S.Ct. 1999 ). If there are-that is, if we have reason to pause before applying Bivens in a new context or to a new class of defendants-we reject the request. We have not attempted to "create an exhaustive list" of factors that may provide a reason not to extend Bivens , but we have explained that "central to [this] analysis" are "separation-of-powers principles." Abbasi , 582 U.S., at ----, 137 S.Ct., at 1857. We thus consider the risk of interfering with the authority of the other branches, and we ask whether "there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy," id., at ----, 137 S.Ct., at 1858, and "whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed," id., at ----, 137 S.Ct., at 1858 III A The Bivens claims in this case assuredly arise in a new context. Petitioners contend that their Fourth and Fifth Amendment claims do not involve a new context because Bivens and Davis involved claims under those same two amendments, but that argument rests on a basic misunderstanding of what our cases mean by a new context. A claim may arise in a new context even if it is based on the same constitutional provision as a claim in a case in which a damages remedy was previously recognized. Compare Carlson , 446 U.S. at 16-18, 100 S.Ct. 1468 (allowing Bivens remedy for an Eighth Amendment claim for failure to provide adequate medical treatment), with Malesko , 534 U.S. at 71-74, 122 S.Ct. 515 (declining to create a Bivens remedy in similar circumstances because the suit was against a private prison operator, not federal officials). And once we look beyond the constitutional provisions invoked in Bivens , Davis , and the present case, it is glaringly obvious that petitioners' claims involve a new context, i.e. , one that is meaningfully different. Bivens concerned an allegedly unconstitutional arrest and search carried out in New York City, 403 U.S. at 389, 91 S.Ct. 1999 ; Davis concerned alleged sex discrimination on Capitol Hill, 442 U.S. at 230, 99 S.Ct. 2264. There is a world of difference between those claims and petitioners' cross-border shooting claims, where "the risk of disruptive intrusion by the Judiciary into the functioning of other branches" is significant. Abbasi Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:
songer_r_fed	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 "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. SCANWELL LABORATORIES, INC., Appellant, v. John H. SHAFFER, Administrator (Acting) of The Federal Aviation Administration, et al. No. 22863. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 3, 1969. Decided Feb. 13, 1970. Petition for Rehearing Denied May 7, 1970. Mr. John M. Calimafde, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. Paul H. Blaustein, New York City, and James W. Dent, Washington, D. C., were on the brief, for appellant. Mr. Michael C. Farrar, Atty., Dept, of Justice, with whom Messrs. Thomas A. Flannery, U. S. Atty., and Alan S. Rosen-thal, Atty., Dept, of Justice, were on the brief, for government appellees. Mr. David G. Bress, U. S. Atty., at the time the record was filed, and Mrs. Ellen Lee Park, Asst. U. S. Atty., also entered appearances for government appellees. Mr. David V. Anthony, Washington, D. C., for appellee, Cutler-Hammer, Inc. Before BAZELON, Chief Judge, and TAMM and MacKINNON Circuit Judges. Judge MacKinnon did not participate in the disposition of this case. TAMM, Circuit Judge: This is an appeal from an order entered in the district court dismissing the appellant’s complaint for lack of jurisdiction. The district court was mislead by precepts which on careful examination are more rhetorical than guiding. The suit was dismissed on the ground that plaintiff lacked standing to sue; this appeal raises important questions concerning that concept. The transaction involved resulted from the issuance by the Federal Aviation Administration of an invitation for bids (IFB) for instrument landing systems to be installed at airports to guide aircraft along a predetermined path to a landing approach. Such systems are designed to make the approach of aircraft to airports safer, a result which the FAA sought to attain by carefully circumscribing the criteria for bids in such a way as to preclude bids from producers who did not already have operational systems installed and tested in at least one location. When the bids for the instrument landing systems were opened, it was discovered that appellant’s was the second lowest bid. The lowest bid was entered by Airborne Instrument Laboratory, a division of Cutler-Hammer, Inc. Appellant alleged in the district court that appellee Cutler-Hammer’s bid was non-responsive to the IFB in that Cutler-Hammer did not have a system installed in one location, nor did it have a certificate of performance based on an FAA flight check. Appellant therefore sought to have the action of the FAA in granting the contract to defendant Cutler-Hammer de-dared null and void as a violation of statutory provisions controlling government contracts and the regulations promulgated thereunder. The Code of Federal Regulations provides : To be considered for award, a bid must comply in all material respects with the invitation for bids so that, both as to the method and timeliness of submission and as to the substance of any resulting contract, all bidders may stand on an equal footing and the integrity of the formal advertising system may be maintained. 41 C.F.R. § 1-2.301 (a) (1969) (emphasis added). The regulations go on to state that: Any bid which fails to conform to the essential requirements of the invitation for bids, such as specifications, delivery schedule or permissible alternates thereto, shall be rejected as non-responsive. 41 C.F.R. § l-2.404-2(a) (1969) (emphasis added). Appellant urges that it can seek review of a contract award which is in violation of the regulations governing the issuance thereof by virtue of section 10 of the Administrative Procedure Act, 5 U.S.C. § 702 (Supp. IV 1965-68), which provides : A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. Appellant asserts that the action of the FAA in granting this contract to an allegedly non-responsive bidder is arbitrary, capricious and a violation of the statutory provisions governing contracting, and that it can therefore be set aside under section 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706 (Supp. IV 1965-68). I. STANDING TO SUE Whether a frustrated bidder for a government contract has standing to sue, alleging illegality in the manner in which the contract was let, is a question of major importance and can be dealt with only on the basis of a thorough review of the law of standing. Much that can be easily recognized in this area cannot be defined except with the greatest difficulty. Standing has been called one of the most amorphous concepts in the entire domain of the public law. That this statement is undoubtedly true is evidenced by the mental gymnastics through which the courts have passed in determining standing issues. Professor Davis describes the circuity of reasoning which surrounds these issues as follows: A plaintiff who seeks to challenge governmental action always has standing if a legal right of the plaintiff is at stake. When a legal right of the plaintiff is not at stake, a plaintiff sometimes has standing and sometimes lacks standing. Circular reasoning is very common, for one of the questions asked in order to determine whether a plaintiff has standing is whether the plaintiff has a legal right, but the question whether the plaintiff has a legal right is the final conclusion, for if the plaintiff has standing his interest is a legally-protected interest, and that is what is meant by a legal right. The law of standing as developed by the Supreme Court has become an area of incredible complexity. Much that the Court has written appears to have been designed to supply retrospective satisfaction rather than future guidance. The Court has itself characterized its law of standing as a “complicated specialty of federal jurisdiction.” United States ex rel. Chapman v. FPC, 345 U.S. 153, 156, 73 S.Ct. 609, 97 L.Ed. 918 (1953). One cannot help asking why this should be true. Is there something innately different about the standing questions which arise in the state courts which makes them easier of solution than their federal counterparts? Or is it true, as Professor Davis has stated, that “[t]he difference is that the federal courts have invented a law of standing that is too complex for the federal courts to apply consistently, whereas the state courts, relatively speaking, have perceived the merits of the simple proposition that those who are in fact adversely affected should be allowed to challenge” ? In order to answer the question whether there is a valid basis for the complexities surrounding the federal standing criteria, it will be useful to consider the early landmark cases in this area. A. The Early Cases The most famous early cases denying standing were the companion cases of Massachusetts v. Mellon and Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), in which the Court said that the Commonwealth could not sue because its own rights were not involved, and that the individual taxpayer could not sue because the interests of the taxpayer are so “comparatively minute and indeterminable” and that the taxpayer’s contentions, even if proved, would have too “remote, fluctuating and uncertain" an effect on payments out of the Treasury. 262 U.S. 487, 43 S.Ct. 597, 67 L.Ed. 1078. (The overruling of Frothingham in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), will be discussed infra.) Thus the initial criterion for establishing standing to sue was a showing that a legal right of the plaintiff was violated. As the Court pointed out in Edward Hines Yellow Pine Trustees v. United States, 263 U.S. 143, 148, 44 S.Ct. 72, 68 L.Ed. 216 (1923), the plaintiff “must show also that the order alleged to be void subjects them to legal injury, actual or threatened.” A subsequent opinion by Mr. Justice Brandéis which clarified that criterion was written the following year in The Chicago Junction Case, 264 U.S. 258, 44 S.Ct. 317, 68 L.Ed. 667 (1924). Standing was upheld therein for six competitors to challenge the validity of an Interstate Commerce Commission decision allowing the New York Central Railroad to acquire an independent terminal railroad in Chicago. The decision was attacked on the ground that there was no evidence to support a finding that the acquisition would be in the public interest as required by the statute. The Court distinguished its prior decision by stating that: This loss is not the incident of more effective competition. Compare Edward Hines [Yellow Pine] Trustees v. United States, 263 U.S. 143, 148 [44 S.Ct. 72, 68 L.Ed. 216]. It is injury inflicted by denying to the plaintiffs equality of treatment * * . By reason of [the Interstate Commerce Act] the plaintiffs, being competitors of the New York Central and users of the terminal railroads theretofore neutral, have a special interest in the proposal to transfer the control to that company. 264 U.S. at 267, 44 S.Ct. at 320. Professor Jaffe has construed this case to mean that: Standing * * is made to rest on a determination that an interest intended by statute to be protected has been denied that protection. It should be stated somewhat more sharply just what this did and did not mean in the context. It did not mean that there was a right that competition not be diminished. The plaintiff could not win simply by showing such diminution. It did mean that the agency was required by the statute to have regard to competition as one factor in its decision; that it must, if it disregards the effect on competition, give a reasoned explanation. It is in this sense that the “legal right” criterion is most appropriately applied as a generalizing concept to administrative law. A clear statement of the bases of this principle is found in the Court’s subsequent opinion in Tennessee Elec. Power Co. v. TVA, 306 U.S. 118, 137-138, 59 S.Ct. 366, 83 L.Ed. 543 (1939): The appellants invoke the doctrine that one threatened with direct and special injury by the act of an agent of the government which, but for the statutory authority for its performance, would be a violation of his legal rights, may challenge the validity of the statute in a suit against the agent. The principle is without application unless the right invaded is a legal right, — one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege. (Emphasis added.) This case held that a private electric producer did not have standing to challenge governmental subsidy of competition. This line of cases securely entrenched the legal right doctrine in the federal law of standing. Inconsistencies resulting from this doctrine are readily apparent. The need for a broader criterion was met by the decision of the Court in FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869 (1940), which is the leading case on the “person aggrieved” criterion for standing to sue. With this case the broader concept of standing gained tremendous ground. In Sanders the Court granted standing to a plaintiff who could not demonstrate an infringement of a legally protected right. This the Court did through its interpretation of the Communications Act of 1934, saying of section 402(b) (2) thereof: [Congress] may have been of the opinion that one likely to be financially injured by the issue of a license would be the only person having a sufficient interest to bring to the attention of the appellate court errors of law in the action of the Commission in granting the license. It is within the power of Congress to confer such standing to prosecute an appeal. 309 U.S. at 477, 60 S.Ct. at 698. The only apparent difference between Tennessee Electric Power and Sanders is that in Tennessee Electric there was no statutory provision granting judicial review to the courts, whereas in the latter case there was such an express provision. If this is true, the “legal right” doctrine is certainly dead wherever there is express “person aggrieved” language in the relevant statute, and there is a strong argument for the proposition that the same result should obtain when section 10 of the Administrative Procedure Act applies. At this point in the development of the law of standing the Court evidently perceived the need to promulgate a standard which would provide redress for legitimate grievances in cases in which the plaintiff asserted a position which protected a public rather than a specific private interest; for this purpose it was recognized that the legal right doctrine was needlessly harsh and restrictive. Thus the Court made clear in Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 14, 62 S.Ct. 875, 86 L.Ed. 1229 (1942), that “these private litigants have standing only as representatives of the public interest.” In using these words to find that a radio station which would in all probability suffer economic injury if the FCC granted a rival license was a person aggrieved under the statute, the Court opened the door to the next logical step, which Judge Frank took the following year. In Associated Industries of New York State, Inc. v. Ickes, 134 F.2d 694, 704 (2d Cir.), vacated as moot, 320 U.S. 707, 64 S.Ct. 74, 88 L.Ed. 414 (1943), Judge Frank, after emphasizing the above-quoted language from Scripps-Howard, said: [W]e believe that the usual “standing to sue” cases can be reconciled with the Sanders and Scripps-Howard cases, as follows: While Congress can constitutionally authorize no one, in the absence of an actual justiciable controversy, to bring a suit for the judicial determination either of the constitutionality of a statute or the scope of powers conferred by a statute upon government officers, it can constitutionally authorize one of its own officials, such as the Attorney General, to bring a proceeding to prevent another official from acting in violation of his statutory powers; for then an actual controversy exists, and the Attorney General can properly be vested with authority, in such a controversy, to vindicate the interest of the public or the government. Instead of designating the Attorney General, or some other public officer, to bring such proceedings, Congress can constitutionally enact a statute conferring on any non-official person, or on a designated group of non-official persons, authority to bring a suit to prevent action by an officer in violation of his statutory powers; for then, in like manner, there is an actual controversy, and there is nothing constitutionally prohibiting Congress from empowering any person, official or not, to institute a proceeding involving such a controversy, even if the sole purpose is to vindicate the public interest. Such persons, so authorized, are, so to speak, private Attorney Generals. (Emphasis added.) This court has read the above language with approbation. In National Coal Ass'n v. FPC, 89 U.S.App.D.C. 135, 191 F.2d 462 (1951), Judge Bazelon, speaking for the court, said: We agree with the rationale which [the Ickes] case draws from the Supreme Court’s decisions in the Sanders and Scripps-Howard cases: “ * * * one threatened with financial loss through increased competition resulting from a Commission’s order is ‘aggrieved.’ * * * The “ ‘person aggrieved’ review provision [is] a constitutionally valid statute authorizing a class of ‘persons aggrieved’ to bring suit in a Court of Appeals to prevent alleged unlawful official action in order to vindicate the public interest, although no personal substantive interest of such persons had been or would be invaded. * * * ” 89 U.S.App.D.C. 137, 191 F.2d 464-465. In essence this is precisely what the appellant sought to do in the case at bar; there is no right in Seanwell to have the contract awarded to it in the event the district court finds illegality in the award of the contract to Cutler-Hammer. Thus the essential thrust of appellant’s claim on the merits is to satisfy the pub-lie interest in having agencies follow the regulations which control government contracting. The public interest in preventing the granting of contracts through arbitrary or capricious action can properly be vindicated through a suit brought by one who suffers injury as a result of the illegal activity, but the suit itself is brought in the public interest by one acting essentially as a “private attorney general.” For this reason one of the things implicit in Judge Frank’s statement strikes us as being of the utmost importance: When the Congress has laid down guidelines to be followed in carrying out its mandate in a specific area, there should be some procedure whereby those who are injured by the arbitrary or capricious action of a governmental agency or official in ignoring those procedures can vindicate their very real interests, while at the same time furthering the public interest. These are the people who will really have the incentive to bring suit against illegal government action, and they are precisely the plaintiffs to insure a genuine adversary case or controversy. As the Supreme Court has recently said, the need is for parties with “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for the illumination” of complex legal issues. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). B. The Administrative Procedure Act The law of standing was greatly modified by the passage of the Administrative Procedure Act, 5 U.S.C. §§ 551-706 (Supp. IY 1965-68), section 10 of which states that: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. 5 U.S.C. § 702 (Supp. IV 1965-68). It has been forcefully argued that the legislative history of this section can be reasonably interpreted to support the “aggrieved in fact” theory because that language appears in the reports of both the Senate and House committees; in each the statement is found that “[tjhis subsection confers a right of review upon any person adversely affected in fact by agency action or aggrieved within the meaning of any statute.” This language did not appear in the statute itself, however, and the Attorney General stated that the provision was reflective of existing law. In order to meet the objections of various parties to language in the statute, the Senate Report which accompanied the Act stated that: (1) One agency objects to the recognition of a right of review in public contract and other cases where Congress has not specifically provided for judicial review. But * * * the so-called nonstatutory or common-law type of review was recognized by the Attorney General’s Committee as properly obtaining wherever special statutory review is not provided by Congress and legislation does not indicate that judicial review is precluded or withdrawn. The exceptions stated in the introductory clause of section 10 appear to set forth the proper type of issues not subject to judicial review. If a party can show that he is “suffering legal wrong” as provided in subsection (a), he should have some means of judicial redress. S. Doc. No.248, 79th Cong., 2d Sess. 37-38 (1946) (emphasis added). The view that the Act was reflective of existing law was supported by the opinion of this court in Kansas City Power & Light Co. v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924 (D.C.Cir.), cert. denied, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955), in which Judge Washington stated that the section was declaratory of existing law. The weight of that decision has been greatly reduced, however, by the decision of the Supreme Court in Hardin v. Kentucky Utilities Co., 390 U.S. 1, 7, 88 S.Ct. 651, 19 L.Ed.2d 787 (1968), in which the Court held that there was no requirement for a specific statutory grant of standing in actions by competitors to enforce statutes protecting competitive interests. The interpretation of the McKay case is further weakened by the language of the Supreme Court in Abbott Laboratories v. Gardner, 387 U.S. 136, 140-141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), in which Mr. Justice Harlan said for the Court: [A] survey of our cases shows that judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress. * * * Early cases in which this type of judicial review was entertained, e. g., Shields v. Utah Idaho Central R. Co., 305 U.S. 177 [59 S.Ct. 160, 83 L.Ed. 111]; Stark v. Wickard, 321 U.S. 288, [64 S.Ct. 559, 88 L.Ed. 733], have been reinforced by the enactment of the Administrative Procedure Act, which embodies the basic presumption of judicial review to one “suffering legal wrong because of agency action * * The legislative material elucidating that seminal act manifests a congressional intention that it cover a broad spectrum of administrative actions, and this Court has echoed that theme by noting that the Administrative Procedure Act’s “generous review provisions” must be given a “hospitable” interpretation. * * * [I]n Rusk v. Cort, [369 U.S. 367, 82 S.Ct. 787, at 794, 7 L.Ed.2d 809 (1962)] * * * at 379-380, the Court held that only upon a showing of “clear and convincing evidence” of a contrary legislative intent should the courts restrict access to judicial review. (Emphasis added.) There is no evidence of a contrary legislative intent which affects the appellant’s position in the current case. If anything, the legislative intent with respect to the field of government contracting in general seems to run in precisely the opposite direction, that is, in favor of review. Appellee makes much of the Supreme Court’s decision in Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940), in which the Public Contracts Act was interpreted to be an enactment for the protection of the government rather than for those contracting with the government. The plaintiff in that case was therefore denied standing to secure review of wage determinations allegedly arrived at as a result of erroneous statutory interpretation. It must be remembered that Perkins was decided during the heyday of the legal right doctrine, and before the passage of the Administrative Procedure Act. The Court therefore followed the reasoning of its earlier cases in declaring : We are of opinion that no legal rights of respondents were shown to have been invaded or threatened in the complaint upon which the injunction * * * was based * * * Respondents, to have standing in court, must show an injury or threat to a particular right of their own, as distinguished from the public’s interest in the administration of the law. 310 U.S. at 125, 60 S.Ct. at 875. Professor Davis has very discerningly seen the fallacy of the Court’s thinking in this decision and has devised a more logical and more consistent basis for viewing such situations: What the court did not inquire into in the Lukens opinion is why the companies which are adversely affected by the asserted misinterpretation of the statute should not be enlisted as natural law enforcers, whether or not a legal right of the companies is violated. The opinion was written in terms of what “the Government” may do in making contracts; a more refined view would be that government officers were making contracts on behalf of the government, that Congress is also a participant in the exercise of the government’s proprietary functions, and that the most practicable way to keep the government’s contracting officers within their statutory powers is by letting complainants like those in the Lukens case obtain judicial review of the officers’ action. This is a powerful argument for allowing the plaintiff in the current case the requisite standing to challenge the governmental action of which it complains. Regardless of the merits of plaintiff’s case, it should be granted the right, if possible, to make a prima facie showing that the government’s agents did in fact ignore the Congressional guidelines in the manner in which they handled the granting of the contracts. If there is arbitrary or capricious action on the part of any contracting official, who is going to complain about it, if not the party denied a contract as a result of the alleged illegal activity ? It seems to us that it will be a very healthy cheek on governmental action to allow such suits, at least until or unless this country adopts the ombudsman system used so successfully as a watchdog of government activity elsewhere. Appellee’s reliance on Perkjns is ill founded. In 1952 the Walsh-Healy Public Contracts Act was amended; during floor debate on the Fulbright Amendment, 66 Stat. 308, 41 U.S.C. § 43a (1964), its proponent said; Mr. FULBRIGHT. * * * There has been no reasonable means by which interpretations might be challenged. It was tried in the Lukens steel case, in which it was held that the parties seeking to challenge the interpretation had no standing in court to do so._ It is our purpose, by this amendment, to overturn that decision. Mr. SALTONSTALL. So, the amendment of the Senator from Arkansas, we hope, will provide a fairer procedure than the procedure now in effect. Mr. FULBRIGHT. That is correct. That is the intention. It is simply intended to give a judicial review of the questions referred to by the Senator from Rhode Island, and others which may arise. ****** Mr. PASTORE. I was hoping that the author of this amendment would really give a liberal construction as to what might be meant by “an aggrieved person.” I think I understand the Senator correctly, that anyone who feels himself aggrieved, even though he may not be directly connected with the particular case, might go to court and have the question determined by the court upon review. Mr. FULBRIGHT. The Senator gets into a very technical question, there, as to whether there is a controversy involved, under the Constitution. I do not think that I could shed much light upon that. But that matter would be submitted to the court for decision as to whether there was a sufficient set of circumstances to support a case. 98 Cong. Rec. 6531 (1952) (emphasis added). This somewheat lengthy excerpt from the Congressional Record is made both to show that the basic approach of the Supreme Court in the Perkins case has been legislatively reversed by the Congress and to demonstrate the Congressional intent that certain matters arising under the Public Contracts Act will be given specific judicial review by Congressional fiat. Given this statement of intent on the part of the Congress, can it be said that to grant standing to the plaintiffs in the current cases would go against the will of the Congress? Does not this phraseology constitute a liberation from the bonds of stare decisis ? We hardly think a contrary argument can stand in the face of the quoted language. Clearly the Congress favors review for those who are likely to be injured by illegal agency action in the context of government contracting. This court had occasion to review the amendments to the Walsh-Healy act in Wirtz v. Baldor Elec. Co., 119 U.S.App.D.C. 122, 337 F.2d 518 (1963), in which it was said: It is clear that the statutory language saying that persons adversely affected shall be deemed to include “any manufacturer”, et cetera, was inserted for the purpose of specifically negating the Supreme Court’s holding in Perkins v. Lukens Steel, [310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108] * * * and was not intended to confer standing upon every manufacturer or dealer in an industry, whether or not he was adversely affected * * . Thus, the amendment was intended to bestow litigable rights upon those who need “protection against arbitrary actions,” i. e., as the statute says, those adversely affected or aggrieved. Manufacturers and sup pliers were specifically mentioned in the statute in order to reject clearly the Supreme Court’s holding that notwithstanding an adverse effect the parties had no litigable rights. 119 U.S.App.D.C. at 136-137, 337 F.2d at 532-533 (emphasis added). The court found this to be the purpose of the amendment largely on the basis of Senator Fulbright’s statement that: The second part of my amendment provides for judicial review * * as a protection against arbitrary actions of the Secretary of Labor. It is made necessary by the decision of the Supreme Court in the Lukens Steel case. This case held that courts have no jurisdiction since no rights of the contractors were involved — doing business with the Government was a privilege and not a right. 98 Cong. Rec. 6246 (1952). This portion of the legislative history of the amendments to the Public Contracts Act shows without question that there is not only no Congressional intent to limit review under that Act but rather that there is actually an affirmative intent of the legislature to grant review in circumstances which warrant it. Indeed, one of the primary effects of the Fulbright Amendment was to make the Administrative Procedure Act specifically applicable. The trend of cases, both in this Circuit and in the Supreme Court, indicates that allegations of illegality such as those made by the appellant in the current case are a sufficient basis for standing. This court had occasion to review the application of the Public Contracts Act in Friend v. Lee, 95 U.S.App.D.C. 224, 221 F.2d 96 (1955), and delimited standing under its provisions in the following terms: Plaintiff contends that the contract between the defendants and Avis is illegal on the ground that it was entered into without previous advertising for proposals, as 41 U.S.C.A. § 5 requires. But assuming arguendo that the statute is applicable and may have been violated, plaintiff, nevertheless, has no standing to sue to invalidate the contract. Statutes regulating the contracting procedures of officers of the Federal Government are enacted solely for the benefit of the Government and confer no enforceable rights upon persons dealing with it. Perkins v. Lukens Steel Co., 1940, [310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108] * * * In consequence, plaintiff cannot contest the award of the contract to Avis, either as a bidder or in his capacity as a citizen generally. * * * ****** * * * Contracting officers of the Federal Government have the duty to select the contract most advantageous to the Government, and advantage is not measured exclusively in terms of price; it includes other factors such as judgment, skill, ability, capacity and integrity. * * * The final selection of a contractor involves discretion and is not subject to review by the judicial branch of the Government. * * * Since plaintiff has alleged no facts which tend to show that defendants have through conspiracy, fraud, malice or coercion abused their discretion in awarding the contract, Alabama Power Co 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_appnatpr	3	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "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. 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: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
sc_precedentalteration	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the opinion effectively says that the decision in this case "overruled" one or more of the Court's own precedents. Alteration also extends to language in the majority opinion that states that a precedent of the Supreme Court has been "disapproved," or is "no longer good law". Note, however, that alteration does not apply to cases in which the Court "distinguishes" a precedent. WOODARD, SECRETARY OF CORRECTIONS OF NORTH CAROLINA, et al. v. HUTCHINS No. A-557. Decided January 13, 1984 Per Curiam. This matter comes to the Court on the application of the State of North Carolina to vacate an order of a single Circuit Judge of the United States Court of Appeals for the Fourth Circuit, granting, at 12:05 a. m. today, respondent’s application for a stay of execution. Circuit Judge Phillips had jurisdiction to consider respondent’s application pursuant to 28 U. S. C. § 1651; accordingly, this Court has jurisdiction to consider the State’s application. A transcript of Judge Phillips’ opinion is before the Court. The application to vacate the stay of execution entered today, January 13, 1984, by Circuit Judge Phillips, was presented to the Chief Justice and by him referred to the Court. The application to vacate said stay is granted. It is so ordered. Question: Did the the decision of the court overrule one or more of the Court's own precedents? A. Yes B. No 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. UNITED STATES of America, Plaintiff-Appellee, v. Victor ARDITTI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Guillermo AVILA, Defendant-Appellant. Nos. 90-8646, 90-8721. United States Court of Appeals, Fifth Circuit. Feb. 27, 1992. Bernard J. Panetta, II, Mary Stillinger, Gabellero, Panetta & Ortega, El Paso, Tex., for defendant-appellant in No. 90-8646. LeRoy M. Jahn, Richard L. Durbin, Jr., W. Ray Jahn, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee in No. 8646. Sidney Powell, Strusburger & Price, Dallas, Tex., for defendant-appellant in No. 90-8721. LeRoy Morgan Jahn, Richard L. Durbin, Jr., Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee in No. 90-8721. Before GOLDBERG, SMITH, and DUHÉ, Circuit Judges. JERRY E. SMITH, Circuit Judge: Guillermo Avila and Victor Arditti were convicted of conspiracy to launder monetary instruments and of the substantive offense. Avila argues that his conduct did not violate the federal monetary instrument laundering statute, that the jury instructions at his trial were inadequate, and that the government entrapped him and engaged in outrageous conduct in the course of its undercover operation. Arditti also challenges the jury instructions and charges entrapment and outrageous conduct, and he claims that in quashing a trial subpoena the district court deprived him of due process. We affirm. I. These appeals arise from an Internal Revenue Service (“IRS”) undercover investigation of money-laundering. The defendants were tried separately, but their cases were consolidated on appeal. Because each defendant challenges the conduct of the IRS investigation, we present the facts of the two cases together. We then discuss Avila’s argument that his conduct did not violate the statute, each defendant’s challenges to the jury instructions, the issues of entrapment and outrageous government conduct as they apply to each, and the quashing of Arditti’s subpoena. II. In 1988, IRS Special Agent Gary Gall-man began investigating money laundering in El Paso, Texas, using the assumed name of “Gary W. Adams” and portraying himself as a cocaine dealer. Gallman started with information that Gabriel Yanez, who owned a money exchange business, laundered money by handling it to disguise its source. Gallman’s goal was to discover Yanez’s methods and cohorts. Gallman first contacted Yanez in May 1988, explaining that he wanted Yanez to help him move large amounts of cash offshore, then bring the money back into the United States in usable form, intimating that he and his associates were involved in illegal activity. Gallman and Yanez invented the name “Ricardo Guerra-Battle” and established a Mexican bank account in that name. Yanez twice funneled $100,000 cash through Mexico, arranged for the money to be wire-transferred to Gallman’s bank in Dallas, then collected a fee from Gallman. Yanez next arranged for Gallman to open a Cayman Islands account in the “Adams” and “Guerra” names, using a letter of introduction from an El Paso attorney to a Cayman Islands attorney. Gall-man later asked Yanez to put him in touch with someone who could help him with business in El Paso. In September, Yanez introduced Gallman to Arditti, an El Paso criminal defense lawyer. During the introductory meeting in September 1988, Gallman told Arditti that he must trust Arditti before he could reveal the nature of his business and explained that Yanez was helping him “get [his money] out and get it back” so that he could use it. Arditti reassured Gallman by mentioning the - attorney-client privilege, his previous work with clients involved in drugs, and his distrustful nature. Arditti told Gallman that since he was “into that kind of business,” he should fund a war chest in preparation for the day he would need money to get out of jail on bond and hire a lawyer. Gallman explained that he couldn’t spend any of the money “the way it is right now and that he had “to get it out and get it back.” Although Arditti told Gallman that he could not advise him on how to launder any illegal funds, Arditti advised Gallman on structuring transactions to purchase real estate in El Paso without arousing suspicion and assured Gallman that the government would not discover any payments made by Gallman to Arditti. In October, Yanez channeled another $100,000 of Gallman’s cash to Gallman’s Dallas account after tinkering with the Cayman Islands arrangements. In the meeting discussing the transfer, Gallman told Yanez directly that “he and his group were in the ‘coke business’ and his part was to handle the money they derived from the sales.” Yanez and Gallman seemed to agree that they should follow Arditti’s advice in investing in real estate and stocks by using Mexican cashier’s checks, using the “Guerra” false name, and making purchases in the name of the British Virgin Islands corporation they had opened to facilitate the offshore Cayman Islands account. Gallman asked Yanez to recommend stock or brokerage houses that the corporation could use to invest in the stock market. In November, Yanez told Gallman about his friend Avila, a securities broker in San Antonio for the firm of Prudential-Bache Securities (“Pru-Bache”) who wouldn’t insist on meeting Gallman “or anything like that.” Yanez explained that he frequently referred business to Avila and that the two had a fee-sharing arrangement. When Gallman asked what Yanez had told Avila about him, Yanez said that he portrayed Gallman as a Mexican mining client seeking investments. When Gallman further questioned Yanez about Avila, Yanez said that “he has a lot of clients from Mexico in the same business you are, and he never asks questions.” During this discussion, Gallman signed the brokerage forms provided by Yanez as “Guerra.” Yanez introduced Gallman and Avila in January 1989 at a hotel in San Antonio. Although Gallman used his undercover name, “Adams,” he signed the client agreement and certificate of foreign status (W-8) as “Guerra.” The W-8 eliminates brokerage house reporting requirements as to the accounts of foreign nationals and, thus, effectively would have prevented the government from knowing that Ricardo Guerra or Gary Adams was transacting business with Pru-Bache. Gallman told Avila that Gallman was both “Adams” and “Guerra” and that this was “untaxed money” from the Mexican mining operation. Additionally, according to the government, Avila knew that Gallman was not a Mexican citizen, yet told Gallman that he would “take whatever you tell me” when asked whether he felt comfortable about the Mexican mining investor story. Further, Avila told Gallman that because client “confidentiality is a must,” he staggered client appointments and entertained at home. The three arranged for investment funds to come from Gallman through Yanez to Avila. Avila repeated that under law and Pru-Bache policy he could not take cash and that investments of under $10,000 did not need to be reported to the government. In February, Gallman executed new, backdated documents to change the brokerage account to the name of the British Virgin Islands corporation at Avila’s request. As with the first forms, Gallman signed the forms in blank, and Avila completed them. A few days later in February, Gallman and Avila met again. Gallman plainly told Avila, “I am in the coke business. That’s what I do. Now, you will not ever be involved in that part of it.” Although Gall-man offered Avila the opportunity to back away from the deals because of the source of the funds, Avila responded that Yanez had told him that, as long as Gallman provided the investment funds in check form, there was “[n]o problem as to where that money comes f[rom] or how it was made,” because the corporation, not “Adams,” was Avila’s client. Avila asked Gallman whether he was a law enforcement officer, which Gallman denied. Gallman purported to have recently collected $15,000, which, the government asserts, Avila admittedly understood were the proceeds from a cocaine deal. Avila, however, maintains that Gallman did not tell Avila that he wanted to violate the law or that he did not want to report the cash. Avila stresses that he told Gallman that he did not want to do anything illegal and that Gallman confirmed that the corporation was “legal” and that Gallman was going to deposit “clean money.” After Avila repeated that he could not handle cash, he directed Gallman to obtain cashier’s checks in the name of the corporation and told him how to do so. After Gallman obtained the checks, he met Avila outside Avila’s office and gave him two cashier’s checks totaling $15,000, payable to Pru-Bache in care of Avila. Avila deposited the funds in the corporation’s account. In March, Gallman delivered to Avila a $40,000 cashier’s check, which Avila also deposited. At Gallman’s request; Yanez invited Ar-ditti to meet them for lunch in March 1989. Arditti discussed methods to avoid suspicion and the tracing of money, including not using cash. Gallman offered Arditti the chance to “walk away from the deal” if Arditti had a “problem with the money or what I do.” According to Gallman’s testimony, when Arditti responded that he had not asked what kind of business Gallman did, Gallman then clarified, “You understand this is coke money,” to which Arditti replied, “Yoú don’t see me going anywhere, do you?” Arditti disputes Gallman’s testimony as to this portion of their conversation and notes that the government failed to tape-record this exchange, nor did Gall-man record it in his memorandum concerning the meeting. In May, Gallman met with Yanez and Arditti. Gallman put aside the idea of real estate investments- in El Paso and told Ya-nez and Arditti about an opportunity to invest $200,000 in an Oklahoma oil deal. Gallman revealed that “this money- we’re doing right now is part of a ten-kilo deal that ... I’m getting paid off for ... now,” and stressed protecting his identity in the oil deal. Arditti outlined a complex arrangement for preventing governmental access to Gallman’s name through the royalty payment.mechanism, perhaps setting up a foreign corporation or, as Gallman suggested, a trust in a foreign bank to receive and invest Gallman’s money. Gall-man repeated that “this is coke money” and wanted to know whether he could count on Arditti not to talk if “I end up ... getting busted.” Arditti assured Gallman that he would not divulge anything but again warned Gallman against spending large lumps of cash. Arditti agreed to draft documents memorializing the “loan” of money from the corporation to Gallman, which would explain the source of Gallman’s money, and to check on establishing an escrow account to receive Gallman’s money and invest it in the Oklahoma deal. The next week, Yanez told Gallman that the fake loan documents and the escrow account would be delayed because Arditti was being audited by the IRS. Arditti told Yanez he was worried about “being framed” by Gallman. When Yanez passed this information to Gallman and offered to contact another lawyer, Gallman insisted on using Arditti. At the end of May, Gallman delivered $50,000, which Yanez funneled to Gall-man’s Dallas account. At this time, Yanez attributed Arditti’s delay to procrastination but noted that Arditti was “convinced” about how to proceed with the bank in setting up the escrow account. Gallman repeatedly telephoned Yanez over the next few weeks because Gallman wanted Arditti to complete the deal. Yanez continued to insist that Arditti would participate but wanted to take care in structuring the deal. The first infusion of funds to Oklahoma occurred through Yanez’s own bank account at the end of June, not through the escrow account as envisioned by Gallman. Gallman asked for Yanez’s help in getting the money to Oklahoma using the escrow account procedure. In mid-July, Gallman met in El Paso with Yanez and Arditti, who explained that they had agreed to the method used in the first transfer because the bank had set up some hurdles in establishing the escrow account. Departing from the escrow account idea, Arditti offered to set up. a trust whose funds Arditti would manage, which would also conceal Gall-man’s identity. The three formulated an elaborate plan to invest money from the corporate brokerage account into the Oklahoma oil deal and completed the arrangements for the fraudulent loan. With Yanez’s participation, Arditti opened a bank account in the name “V.R. Arditti Trust Account Number 3” several days later. No trust documents were prepared for the account, and Arditti alone had signature authority and the code to validate wire transfers. When Arditti received a check from the corporate brokerage account for $50,000 on August 2, he deposited it in the trust account and told the bank to wire $49,000 to the oil deal bank account in Oklahoma. In mid-August, Arditti gave Gallman a bill for his services. Gallman found the amount “pretty stout,” so Arditti adjusted it downward but asked Gallman not to pay him in cash because that would appear suspicious. The three then devised a more efficient plan for future transactions, focusing on the need to shield Gallman by using the “Guerra” name and procuring the funds for deposit in the trust account at a Mexican bank in the form of a cashier’s check. As planned, Arditti received a $50,000 check the next day from a Mexican money exchanger and transferred the money to the oil deal account. On August 29, Ardit-ti, following the same procedure, deposited another $50,000 in the trust account and wired it to Oklahoma. III. A grand jury charged Arditti with conspiring with Yanez and Avila in violation of 18 U.S.C. § 371 to (1) avoid filing currency transaction reports in violation of 31 U.S.C. § 5313(a); (2) avoid filing currency or monetary instrument reports in violation of id. § 5316; and (3) launder a monetary instrument in violation of 18 U.S.C. § 1956 (count one). Additionally, the indictment charged Arditti with violating section 1956(a)(3) (counts twelve, fifteen, and eighteen) and violating id. § 2 by aiding and abetting Yanez in violating section 1956(a)(3) (counts fourteen and sixteen). The jury convicted Arditti on all counts. The indictment charged Avila with conspiring with Arditti and Yanez in violation of section 371 to commit the three offenses outlined above (count one). Additionally, the indictment charged Avila with violating section 1956(a)(3) (counts seven and eight). The district court granted Avila’s motion to sever his case for trial. The court granted Avila’s motion for judgment of acquittal on the allegations in count one that Avila conspired to violate sections 5313(a) and 5316. The jury, however, convicted Avila on the remaining allegation in count one and on counts seven and eight. IV. Avila challenges his substantive and conspiracy convictions on the ground that his conduct did not violate a criminal statute. Section 1956(a)(3), entitled “Laundering of Monetary Instruments,” makes it unlawful for a person, with the intent (A) to promote the carrying on of specified unlawful activity; (B) to conceal or disguise the nature, location, source, ownership, or control of property believed to be the proceeds of specified unlawful activity; or (C) to avoid a transaction reporting requirement under State or Federal law, [to] conduct[ ] or attempt[ ] to conduct a financial transaction involving property represented by a law enforcement officer to be the proceeds of specified unlawful activity, or property used to conduct or facilitate specified unlawful activity.... 18 U.S.C. § 1956(a)(3) (West Supp.1988). Section 1956(c)(4) defines “financial transaction” as (A) a transaction (i) involving the movement of funds by wire or other means or. (ii) - involving one or more monetary instruments, which in any way or degree affects interstate or foreign commerce, or (B) a transaction involving the use of a financial institution which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree. Section 1956(c)(5) defines “monetary instruments” as follows: The term ‘‘monetary instruments” means (i) coin or currency ..., travelers’ checks, personal checks, bank checks, and money orders, or (ii) investment securities or negotiable instruments, in bearer form or otherwise in such form that title thereto passes upon delivery. Avila urges reversal of his conviction under section 1956(a)(3) because the plain terms of the statute do not criminalize accepting cashier’s checks in non-bearer form. Avila argues, as he did in a motion for acquittal, that a cashier’s check is not a “bank check” under the relevant definition of “monetary instrument.” Avila asserts that Congress did not intend to cover cashier’s checks not in bearer form, as evidenced by a federal statute and multiple federal regulations that plainly acknowledge the distinction between a “bank check,” i.e., a check drawn by a bank on its account in another bank, and a “cashier’s check,” i.e., a check drawn by a bank on itself and accepted upon issuance. See, e.g., Bruno v. Collective Fed. Sav. & Loan Ass’n, 147 N.J.Super. 115, 370 A.2d 874, 877 n. 2 (1977). The government agrees with Avila’s characterization of the cashier’s checks as non-bearer instruments and accepts Avila’s distinctions between' cashier’s checks and bank checks. Pointing to the legislative history of section 1956, however, the government argues that Congress indeed intended the definition of the term “monetary instruments” to include cashier’s checks. “Monetary instruments are a subset of the term ‘property’ as used in section (a), a term that is intended to be construed liberally to encompass any form of tangible or intangible assets.” S.Rep. No. 433, 99th Cong., 2d Sess. 13 (1986). Avila responds that the legislative history contextually refers to cashier’s checks “in such form that title thereto passes upon delivery,” not to all cashier’s checks. Id. Moreover, Avila asserts that Congress’s intent is irrelevant when a statute, like this one, is not capable of two rational readings. Cf. McNally v. United States, 483 U.S. 350, 360, 107 S.Ct. 2875, 2881, 97 L.Ed.2d 292 (1987) (“before one can be punished, it must be shown that his case is plainly within the statute”) (citation omitted). Despite the facts that Congress did not include cashier’s checks in the statutory definition of monetary instruments and that we must construe criminal statutes strictly, see United States v. Daniel, 813 F.2d 661, 663 (5th Cir.1987), Avila’s challenge to his substantive convictions must fail. Simply, the plain language of section 1956 does not require that the suspect have used a “monetary instrument” in his offense. A financial transaction for the purposes of the statute is “[1] a transaction involving the movement of funds by wire or other means or [2] involving ... monetary instruments ... or [3] involving the use of a financial institution which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree” (emphasis added). The substantive charges of his indictment, counts seven and eight, do not accuse Avila of laundering a “monetary instrument” as defined in section 1956(c)(5). Rather, count seven states that he conducted “a financial transaction involving property to wit: $15,000 in cashier’s checks, represented by a law enforcement officer to be the proceeds of [specified] ... unlawful activity, in violation of Title 18, United States Code, Section 1956(a)(3).” Count eight is similar, except that it specifies $40,000 as the sum in question and does not mention cashier’s checks. The acts alleged in these counts plainly fall within the language of section 1956(c)(4)(A)(i): They were transactions “involving the movement of funds by wire or other means.” The issue of whether cashier’s checks are monetary instruments thus is irrelevant to the substantive counts; the checks unquestionably were “property” and “funds [moved] by wire or other means” under the statute. Although we have not previously interpreted the money laundering statute in this way, the plain language dictates such a holding, and this court has found that the statute encompasses a wide range of conduct. See, e.g., United States v. Gallo, 927 F.2d 815, 822 (5th Cir.1991) (transporting money in the trunk of a car was a financial transaction in that it was a “movement of funds by wire or other means ... which in any way or degree affects interstate of [sic] foreign commerce” (ellipses in original)). We similarly uphold Avila’s conspiracy conviction. The first count of the indictment charged that Yanez, Arditti, and Avila “willfully, knowingly and unlawfully conspired, combined, confederated and agreed together, and with each other, and with others to the Grand Jury unknown, ... to launder a monetary instrument, in violation of Title 18, U.S.C. § 1956. Arditti does not raise the issue on appeal, but Avila appears to argue that this count of the indictment charges a crime that the government did not prove. Simply, Avila asserts that he did not conspire to launder a “monetary instrument” under the language of the statute. If there was conspiracy, Avila argues, it was to launder cashier’s checks, which are not monetary instruments as statutorily defined. As with the substantive counts, this court need not consider whether cashier’s checks qualify as monetary instruments. Although cashier’s checks were the means through which the conspirators were to launder the funds, the objective of the conspiracy was to launder the cash that “Adams” claimed to have obtained through his drug wholesaling activities. Cash, of course, is “coin or currency of the United States” and thus is a monetary instrument. Because Gallman represented to Avila that he wanted to launder cash, and Avila advised him how to convert the cash into cashier’s checks without having to present his identification, so that Pru-Bache could accept the money, we reject Avila’s argument that no monetary instruments were involved. V. Avila further argues that his behavior was not illegal because the government agent did not represent to him that the funds he participated in laundering were the proceeds of criminal activity. Section 1956(a)(3), in establishing the basis for money laundering “sting” operations, requires that the government agent represent that the property involved in the transaction is the “proceeds of specified unlawful activity, or property used to conduct or facilitate specified unlawful activity.” The statute further defines the term- “represented” as “any representation made by a law enforcement officer or by another person at the direction of, or with the approval of, a Federal official authorized to investigate or prosecute violations of this section.” 18 U.S.C. § 1956(a)(3). Avila argues that “[s]trict construction ... requires that the officer make an affirmative representation to the defendant,” not merely a suggestion, or just enough information to create an inference. Nor can the government agent’s perception of the “representation” substitute for satisfaction of the element. Because Gallman did not plainly tell Avila that the $15,000 and $40,000 cashier’s checks were proceeds from cocaine sales, Avila urges reversal of the convictions. We find Avila’s arguments unconvincing. The record shows that “Adams” told Avila that he was in the cocaine business and that the initial $15,000 was the proceeds of a collection. Because “Adams” represented his business as drug wholesaling, then never represented his relationship with Avila as one involving funds not derived from that illicit industry, the jury could have viewed the later $40,000 as ostensible drug-related funds, believe that Gallman portrays and Avila viewed them as such, and thus convict Avila of money laundering. To hold that a government agent must recite the alleged illegal source of each set of property at the time he attempts to transfer it in a “sting” operation would make enforcement of the statute extremely and unnecessarily difficult; “legitimate criminals,” whom undercover agents must imitate, undoubtedly would not make such recitations before each transaction. In this case, it is enough that sufficient evidence was presented that the jury could have found beyond a reasonable doubt that “Adams” represented, and Avila understood, that the funds they were laundering were the proceeds of the specified illegal activities. VI. Avila and Arditti challenge the district court’s jury instructions at their respective trials. We find their argument to be without merit. A district court possesses broad discretion in framing the instructions to the jury; we will not reverse unless the instructions taken as a whole do not “correctly reflect the issues and law.” United States v. Casto, 889 F.2d 562, 566 (5th Cir.1989), cert. denied, 493 U.S. 1092, 110 S.Ct. 1164, 107 L.Ed.2d 1067 (1990) (citation omitted). This court will reverse for abuse of discretion a district court’s refusal to issue a jury instruction only if the requested instruction “(1) is substantively correct; (2) was not substantially covered in the charge actually delivered to the jury; and (3) concerns an important point in the trial so that failure to give it seriously impairs the defendant’s ability to effectively present a given defense.” United States v. Chambers, 922 F.2d 228, 241 (5th Cir.1991) (citation omitted). The district court defined the offense of conspiracy (count one) in relevant part as follows, essentially tracking the Fifth Circuit Pattern Jury Instructions § 2.21 at 89 (West 1990): You must be convinced that the government has proved each of the following beyond a reasonable doubt ... Second: That the defendant knew the purpose of the agreement and joined in it with the intent to further the illegal purpose So, if the defendant ... knowingly and willfully joins in that unlawful plan on one occasion, that is sufficient to convict him for conspiracy. The court defined the substantive offense under section 1956, charged in counts seven and eight, in relevant part as follows, tracking the language of the statute: “You must be convinced that the government has proved each of the following beyond a reasonable doubt ... Second: That the defendant acted with the intent to promote ... or conceal and disguise....” Avila requested that the jury be instructed that “willfully” “means that the act was committed voluntarily and purposely, with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or disregard the law”; and that “[t]o establish specific intent the government must prove that the defendant knowingly did an act which the law forbids, purposely intending to violate the law.” On appeal Avila argues that the district court’s refusal to issue the instructions he requested constituted reversible error, arguing that “willfulness” is a substantive element of a section 371 conspiracy and that “specific intent” is a substantive element of section 1956(a)(3) money laundering. First, we find that the conspiracy instruction, as a whole, adequately addressed the burden the government had to bear. The requested instruction as to “willfully” was not necessary. The meaning of “willfully” varies depending upon the context. See United States v. Bishop, 412 U.S. 346, 356-61, 93 S.Ct. 2008, 2015-18, 36 L.Ed.2d 941 (1973). The Supreme Court has recognized that in common usage the word “willful” is considered synonymous with such words as “voluntary,” “deliberate,” and “intentional” and that in law the word generally refers to conduct that is not merely negligent. McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 1681, 100 L.Ed.2d 115 (1988). “Willfulness” appears in neither the section 371 definition of conspiracy nor the section 1956 monetary-instrument laundering statute, and, as defined in Avila’s requested instruction, it is not an element of the conspiracy offense, which requires the state of mind necessary for the substantive crime. See, e.g., United States v. Harrelsow, 754 F.2d 1153, 1172 (5th Cir.), cert. denied, 474 U.S. 908, 106 S.Ct. 277, 88 L.Ed.2d 241 (1985). The definition of willfulness Avila requested is an exception to the traditional rule and is a statutory element of special treatment of criminal tax offenses. United States v. Cheek, — U.S. -,-, 111 S.Ct. 604, 607, 112 L.Ed.2d 617 (1991). The district court’s conspiracy instruction required the jury to find (1) that there was an agreement between two or more persons; (2) that Avila joined the agreement knowing its purpose and with the intent to further the illegal purpose; and (3) that an overt act was committed. Further, the court instructed, “If the defendant knows about a plan, knows that it is an unlawful plan, and knowingly and willfully joins in the unlawful plan ... that is sufficient to convict him for conspiracy.” These instructions cover the necessary elements of the conspiracy offense, including the requisite mental state. They thus differ from the charges we rejected in United States v. Burroughs, 876 F.2d 366, 369 (5th Cir.1989), which did not require that the defendant have joined the agreement “knowing its purpose and with the intent to further the illegal purpose,” and United States v. Kerley, 643 F.2d 299, 302 (5th Cir. Unit B Apr. 1981), in which we reversed a criminal conviction for failing to instruct on the element of willfulness where such willfulness was actually a “critical element” of the offense. We thus conclude that the requested instruction on willfulness was not substantially correct, and to the extent that it did accurately reflect the law, it was included in the adequate instruction that the district court gave. Second, we find that to the extent Avila’s requested instruction of specific intent was correct, it too was included in the district court’s instructions. The court told the members of the jury that they could not find Avila guilty unless they found that he conducted or attempted to conduct a financial transaction involving property represented by a law enforcement officer to be proceeds of the sale of illegal drugs and that he acted with the intent to promote the carrying on of the specified unlawful activity (meaning the drug dealing) or “to conceal and disguise the nature, location, source, ownership and control” of such property. The instruction parallels the wording of section 1956(a)(3) and includes all the elements of intent that Congress deemed necessary for the offense, as is apparent in the language of the statute. If Congress wanted to require any higher mens rea requirement, it would have enacted one. See United States v. Baker, 807 F.2d 427, 428 (5th Cir.1986). VII. Avila next argues that the district court erred in not instructing the jury as to his ignorance of the law. In United States v. Davis, 583 F.2d 190, 194 (5th Cir.1978), we held that “the trial court, when instructing that specific intent is required, may not instruct that ignorance of the law is no excuse, because ignorance of the law goes to the heart of the defendant’s denial of specific intent.” In 1989 this court ordered a new trial for defendants who had been convicted of conspiring to commit tax fraud under section 371 and of willfully aiding or assisting fraud in violation of 26 U.S.C. § 7206(2) because “the district court did not instruct the jury that they should, or could, consider the defendants’ ignorance of the law.” United States v. Buford, 889 F.2d 1406, 1409 (5th Cir.1989). Rather, the district court had instructed the jury that “the presumption is that every person knows what the law forbids.” Id. The Buford court, however, interpreted the term “willfully” for purposes of the statute criminalizing preparation of fraudulent tax returns to mean a “voluntary intentional violation of a known legal duty” and viewed the absence of a corresponding “ignorance of the law” instruction as “inconsistent with the element of specific intent.” Id. (citation omitted; emphasis added). Avila asks us to apply Buford to the case at hand, but the reasoning in that case and the others Avila cites does not support such an extension. Avila urges us to hold that the district court erred because it failed to instruct the jury that it could consider Avila’s ignorance of the law, despite the critical distinction that its instructions, and the applicable statute, did not require the government to prove that Avila intentionally violated a known legal duty, nor, for that matter, did the court issue an instruction that the jury should presume that Avila knew what the law was. As we discussed above, such a concept of “willfulness” is not an element of the offenses with which Avila was charged. Because the instruction Avila requested is not a “substantially correct” statement of the law in this context, we affirm the refusal to include it. Additionally, to the extent the requested instruction might accurately reflect the law, it was included in the instructions the district court issued. The conspiracy instruction told the jury that it could convict Avila only if it found that he joined the plan knowing that it was unlawful 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_state	14	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". Joseph LOMBARDO and Roy L. Williams, Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee. No. 88-1482. United States Court of Appeals, Seventh Circuit. Argued Oct. 28, 1988. Decided Jan. 12, 1989. Judith Helprin, Chicago, Ill., Bruce C. Houdek, James Millert Houdek Tyrl & Sommers, Kansas City, Mo., for petitioners-appellants. Gary S. Shapiro, Asst. U.S. Atty., Anton Valukas, U.S. Atty., Chicago, Ill., for respondent-appellee. Before BAUER, Chief Judge, CUMMINGS and CUDAHY, Circuit Judges. CUMMINGS, Circuit Judge. Defendants Joseph Lombardo and Roy L. Williams, together with three co-defendants, were each convicted in the United States District Court for the Northern District of Illinois of nine counts of wire fraud in violation of 18 U.S.C. § 1343, one count of conspiracy to bribe a United States Senator in violation of 18 U.S.C. § 371, and one count of traveling interstate with the intent to promote bribery in violation of 18 U.S.C. § 1952. Lombardo received an aggregate sentence of 15 years plus substantial fines. In addition to fines, Williams received a ten-year prison term. This Court affirmed the convictions. Following the 1987 decision of the Supreme Court in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292, defendants returned to the district court to mount a collateral attack on the validity of their convictions pursuant to 28 U.S.C. § 2255. McNally reversed an accepted interpretation of mail fraud by the courts in holding that the mail fraud statute contemplates only offenses designed to obtain property rights fraudulently in contrast to schemes depriving the victim of intangible rights. Both the defendants and the United States concede that McNally is to be applied retroactively since the defendants’ convictions cannot stand if their conduct no longer constitutes criminal activity. United States v. Keane, 852 F.2d 199, 205 (7th Cir.1988). Judge Prentice Marshall was the trial judge. After reviewing the indictment, evidence and lengthy instructions given to the jury in their 1982 trial, he denied defendants’ motions to vacate their convictions, as well as their motions to reconsider. The court found that the indictment and jury instructions alleged two objectives of the wire fraud scheme in the conjunctive, one involving property rights and the other involving the impermissible intangible rights theory. As a result, the jury was required to find a deprivation of property rights in order to convict the defendants, rendering the intangible rights language mere sur-plusage. We affirm. I Because the defendants are contesting their convictions, we must review all evidence in the light most favorable to the government. United States v. Bentley, 825 F.2d 1104, 1107 (7th Cir.1987), certiorari denied, — U.S. -, 108 S.Ct. 240, 98 L.Ed.2d 198. Defendants were convicted for their conduct surrounding the sale of a piece of property, known as Wonderworld, located in Las Vegas, Nevada, and owned by the Teamsters Central States Pension Fund (“Pension Fund”). At the time of the sale of the property, defendant Williams was the President of the Central Conference of Teamsters (“Teamsters”) while defendant Lombardo’s vocational status was “something of a mystery.” 737 F.2d at 599. The Wonderworld property was located in close proximity to the residence of then United States Senator Howard Cannon. Senator Cannon, together with his neighbors, became interested in purchasing the Wonderworld property in order to prevent it from being used for commercial development. During the transaction in question, legislation was pending in Congress which would lead to the deregulation of the trucking industry, a move strongly opposed by the Teamsters. As Chairman of the Senate Committee on Commerce, Senator Cannon was in a position to influence the future of the legislation. Since Senator Cannon and the Pension Fund each possessed something of value to the other party, the defendants participated in communications with the Senator for the objective of selling the Wonderworld property to him for $1,400,000 to the exclusion of higher bids, with the hope of influencing his position toward the deregulation legislation. Defendants’ ability to control the sale of the Wonderworld property was diluted by the necessity of delegating control over the assets of the Pension Fund to a management company, Victor Palmieri and Company, in order for the Pension Fund to retain its tax-exempt status. As a result, in order to consummate the sale of the Wonder-world property to the Senator as promised, the defendants were forced to pursue a less direct method of influence by encouraging the withdrawal of other potentially higher bids for the property. At the behest of defendant Lombardo, Thomas O’Malley and Andrew Massa, Pension Fund trustees, persuaded Allen Glick to withdraw his $1,600,000 bid for the Wonder-world property. Glick in turn persuaded his business partner, Fred Glusman, to withdraw his independent bid of $1,600,000. In spite of the defendants’ efforts, Wonder-world was eventually sold to a corporation unrelated to the defendants for $1,600,000. II In order to convict the defendants of wire fraud, two elements must be proven: (1) a scheme to defraud; and (2) use of wire communications in furtherance of the scheme. Prior to McNally, courts had interpreted the mail fraud statute (18 U.S.C. § 1341), which criminalizes schemes “to defraud” or schemes to obtain “money or property by means of false or fraudulent pretenses ... ”, in the disjunctive, enabling conviction for schemes to defraud which did not necessarily include the deprivation of property rights. See McNally 107 S.Ct. at 2880. Accordingly, defendants’ convictions in McNally were based on instructions charging the jury that the defrauding of the citizens of their intangible rights to honest and impartial government was sufficient to constitute mail fraud without a finding that the victims of the fraud were deprived of anything of value. McNally involved the funnelling of insurance policies by the two defendants to insurance companies controlled or nominally owned by the defendants. Based on this transaction, defendants were charged with defrauding the Commonwealth of Kentucky and its citizens of their right to have “the Commonwealth’s business and its affairs conducted honestly, impartially, free from corruption, bias, dishonesty, deceit, official misconduct, and fraud” and obtaining money and other things of value by fraudulent means. McNally 107 S.Ct. at 2878, n. 4. In reversing defendants’ convictions the Supreme Court relied on the legislative intent surrounding the codification of the statute and the plain meaning of the words “to defraud”. Its opinion concluded that § 1341 criminalizes only those offenses involving the deprivation of property rights by a scheme or artifice to defraud. “As the Court long ago stated, however, the words ‘to defraud’ commonly refer ‘to wronging one in his property rights by dishonest methods or schemes,’ and ‘usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.’” McNally 107 S.Ct. at 2881, quoting Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968. The Court held that the value which is the subject of mail fraud encompasses money and property, but does not include the intangible expectation of the citizenry to an honest government, despite what intangible value such honesty may hold for the defrauded victims. The Supreme Court further articulated the contours of the new “money or property” requirement in Carpenter v. United States, — U.S. -, 108 S.Ct. 316, 98 L.Ed.2d 275, which involved R. Foster Win-ans’ appropriation of confidential securities information prior to its publication in his Wall Street Journal column “Heard on the Street”. In affirming the mail fraud conviction, the Court distinguished McNally by finding that the Journal had been defrauded of more than its right to the defendant’s honest and faithful service, “an interest too ethereal in itself to fall within the protection of the mail fraud statute”. Carpenter 108 S.Ct. at 320. The Court characterized the Journal’s interest in the information contained in the column as a protectable property right in spite of its intangible nature. “McNally did not limit the scope of § 1341 to tangible as distinguished from intangible property rights.” Carpenter 108 S.Ct. at 320. In so holding, the Court rejected the defendants’ argument that the Journal must demonstrate a monetary loss as a prerequisite to the defendants’ mail fraud convictions. “Petitioners cannot successfully contend ... that a scheme to defraud requires a monetary loss ...; it is sufficient that the Journal has been deprived of its right to exclusive use of the information.” Carpenter 108 S.Ct. at 321. Ill Defendants contend they were wrongfully convicted under the intangible rights theory subsequently rejected by the Supreme Court in McNally. They claim that this requires vacating the wire fraud convictions and even the bribery and interstate travel convictions on the basis that the latter were inextricably intertwined with the wire fraud charges. In order to determine whether defendants’ convictions should be vacated, it is necessary to determine whether the indictment, jury instructions and evidence produced at trial required the jury to find that the defendants schemed to deprive the Pension Fund or its pensioners of a protectable property right within the scope of McNally. United States v. Wellman, 830 F.2d 1453, 1462 (7th Cir.1987). In so doing the Court is mindful of the dangers of engaging in a revisionary history of the indictment, evidence and jury instructions formulated pri- or to the McNally decision. Although the indictment and jury instructions clearly contain language supporting the invalid intangible rights theory of mail fraud, the jury nonetheless was required by the indictment and instructions to find that the defendants schemed to defraud the Pension Fund of property rights protected by the wire fraud statute despite defendants’ lack of success. Such a finding was clearly justified by the evidence. Paragraph 2 of Count Three of the indictment charged in part that the defendants devised a scheme and artifice: (a) To defraud the Teamsters Pension Fund and its pensioners of their right to the conscientious, loyal, faithful, disinterested, and unbiased services of Thomas F. O’Malley and Andrew G. Massa, in the performance of acts related to their official duties, functions, and employment; and (b) To obtain money and property by means of fraudulent pretenses and representations (J.App. 9). (Emphasis added.) This terminology was incorporated by reference in Counts Four through Eleven. Similarly, the jury instructions charged: The phrase ‘scheme and artifice to defraud,’ as used in the indictment or these instructions includes any plan or course of action intended to deceive others out of something to which they were lawfully entitled, and to obtain by false or fraudulent pretenses or representations money or property from persons so deceived (J.App. 44). (Emphasis added.) The instructions (which consumed more than one hour) contained considerable elaboration of the then valid intangible rights aspect of wire fraud charging the jury that a scheme or artifice to defraud may include a scheme designed to deprive the Pension Fund of the “loyal, faithful, disinterested and unbiased services of the defendant O’Malley” and information necessary to the management company of the Pension Fund, as well as interference with the fiduciary duty of the Pension Fund trustees. Defendants argue that the discussion of the intangible rights theory overwhelmed the above conjunctive instruction given by Judge Marshall which required the jury to find both a scheme to defraud the Pension Fund as well as the deprivation of the Pension Fund of money or property, such that it is impossible to decipher on which theory the jury convicted the defendants. Although the instructions given by Judge Marshall did thoroughly discuss the intangible rights theory, the discussion was merely an elaboration of what may constitute a “scheme to defraud”. Once the jury determined whether the defendants were guilty of a scheme to defraud as defined by Judge Marshall to include the deprivation of tangible and intangible rights, the jury was still required by the indictment to find that the defendants participated in a scheme to “obtain money and property by means of fraudulent pretenses and representations” (J.App. 9). And “[w]here a fraud scheme involves multiple objectives, some of which are insufficient to state an offense under McNally, the remaining charge or charges will be deemed sufficient to state the offense if they are ‘easily separable’ from the charges deemed insufficient.” United States v. Eckhardt, 843 F.2d 989, 997 (7th Cir.1988). The jury instructions did not allow conviction based on the intangible rights theory alone nor as an alternative to the money or property requirement. In light of McNally and the law of this Circuit, the intangible rights portion of the jury instructions was not prejudicial when viewed in the context of the conjunctive indictment and Judge Marshall’s conjunctive definition of wire fraud. Therefore, United States v. Price, 857 F.2d 234, 236 (4th Cir.1988), on which the defendants rely, is inapplicable. The evidence presented at trial further supports the conclusion that the defendants engaged in a scheme to obtain money or property by fraudulent means. The essence of the conduct in which defendants engaged was the attempted sale of the Wonderworld property to Senator Cannon and his neighbors for $1,400,000 in spite of the existence of higher bids for the property. Such a scheme clearly contemplated depriving the Pension Fund of the highest price for the Wonderworld property. Defendants attempt to justify their behavior by arguing that their conduct was motivated by their desire to benefit the Teamsters Union by blocking the deregulation legislation in return for the relatively small sacrifice of a reduction in price secured by the sale of the Wonderworld property to Senator Cannon. Defendants feebly reason that their conduct is indistinguishable from the scheme contained in McNally because defendants did not seek to obtain something of value for themselves but for the benefit of the Teamsters. Defendants’ rationalizations miss the mark. McNally did not posit the further requirement that the scheme to obtain money or property by fraudulent means result in a benefit to the schemers. McNally simply requires the devising of a scheme for the purpose of obtaining property rights by false means. Admittedly, most schemes to defraud are designed to benefit the schemers personally. This does not transform the characteristic of personal pecuniary benefit into an element of the crime nor make defendants’ conduct less culpable. The mail fraud statute is primarily concerned with the protection of the rights of victims. “[T]he original impetus behind the mail fraud statute was to protect the people from schemes to deprive them of their money or property.” McNally 107 S.Ct. at 2880. The Pension Fund was no less harmed as a result of defendants’ wire fraud scheme to sell the Wonder-world property to Senator Cannon for a bargain price than if the defendants had purchased the property themselves and received the benefit of the $200,000 reduction in the price. The fact that defendants were depriving the Pension Fund of property for the purposes of securing a benefit of equal or greater value (ie., the “appreciation” of Senator Cannon), does not deflect from the reality that the pensioners were being deprived of property without their knowledge by fraudulent means. The district court’s order denying defendants’ motion to vacate pursuant to 28 U.S. C. § 2255 is affirmed. . United States v. Williams, 737 F.2d 594 (7th Cir.1984), certiorari denied, 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377. Subsequent to filing this appeal, defendant Williams was released from incarceration on parole. Both the United States and Williams have, however, stipulated that the release of Williams does not impact on the merits of this appeal given that Williams was in custody when the appeal was filed, thus satisfying the custody requirement of 28 U.S.C. § 2255. See United States v. Payne, 741 F.2d 887, 890 (7th Cir.1984). . McNally applies with equal force to the wire fraud convictions since the scope of the wire fraud statute is for most purposes coextensive with that of the mail fraud statute. See United States v. Gimbel, 830 F.2d 621, 627 (7th Cir.1987). . Section 1343, the wire fraud statute, provides in relevant part: “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire ... for the purpose of executing such scheme or artifice, shall be fined ... or imprisoned ...” This language tracks the earlier mail fraud statute, 18 U.S.C. § 1341, and therefore is to be given a like construction. . The property aspects of the wire fraud were also emphasized in paragraphs 3 and 4 of Count Three (J.App. 9-10). . Additional portions of the charge stressing the property aspects of the charge are reproduced in Judge Marshall’s memorandum opinion (Lombardo App. 3-4). 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_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. JOHNSTON v. UNITED STATES. No. 10779. Circuit Court of Appeals, Ninth Circuit. Oct. 10, 1944. Clarence L. Gere, of Seattle, Wash., for appellant. J. Charles Dennis, U. S. Atty., and G. D. Hile, Asst. U. S. Atty., both of Seattle, Wash., for appellee. Before DENMAN, STEPHENS, and HEALY, Circuit Judges. STEPHENS, Circuit Judge. In December of 1939 defendant Johnston was indicted and adjudged guilty, upon the entry of his plea of guilty, for robbing the mail and endangering the life of a mail custodian by the use of a dangerous weapon in violation of 18 U.S.C.A. § 320. He was sentenced to imprisonment for twenty-five years. In March of 1944 he made the within motion, before the United States District Court which had presided over the original hearing, to vacate the judgment and sentence on the ground that the indictment failed to state a federal offense and consequently that the trial" court lacked jurisdiction over the matter. The motion was denied, and defendant appeals. The challenged indictment alleged in part that defendant did “rob and take from the person, possession and in the presence of one FI. F. McElhaney, Clerk in Charge of Contract Station No. 59, a branch of the United States Post Office at Seattle, Washington, without the consent of the said H. F. McElhaney, and against his will, certain monies which were then and there in the lawful charge, control and custody of the said H. F. McElhaney in his official capacity and character as Clerk in charge of said Contract Station No. 59, a branch of the United States Post 'Office at Seattle, Washington, to-wit, the'sum of Twenty-two and 94/100 Dollars * * * being postage stamp funds of the said Contract Station No. 59 * * * ” According to defendant’s argument the indictment is fatally defective in failing specifically to charge that the money taken by him was property of the United States since the statute under which the indictment was framed, 18 U.S.C.A. § 320, is limited to robbery in connection with “mail matter, money, or other property of the United States.” Defendant contends that under the standard contract between the Postmaster General and a branch post office the latter is not supplied with postage stamp funds by the government, that the indictment herein merely charged custody and control, as to the money stolen, by the clerk of a contract station in his official capacity, that necessary allegations in a criminal indictment cannot be supplied by implication, intendment or recital, and that therefore an allegation of the ownership by the United States of the money taken, essential to the statement of a federal offense, is lacking. The indictment alleged that the money taken was at the time of the robbery in the lawful custody of a certain clerk in his official capacity as clerk in charge of a branch of the United States Post Office. We believe that such an averment of possession in an agent of the United States under the authority of his official position is the equivalent of an averment of ownership by the United States. See dictum in Hubbard v. United States, 9 Cir., 1935, 79 F.2d 850, 852; Hoback v. United States, 4 Cir., 1922, 284 F. 529, 532. Our decision herein need not be based alone- on our interpretation of the allegation of possession, for we may consider herein all implications of the language used in the indictment. In Elder v. United States, 9 Cir., 1944, 142 F.2d 199, 200, this court recognized that necessary facts could be drawn by reasonable inference from the allegations of an indictment where that document was not challenged in the trial court but was questioned for the first time on appeal from a conviction in the trial court. Hagner v. United States, 1932, 285 U.S. 427, 433, 52 S.Ct. 417, 76 L.Ed. 861. The same rule applies in the instant case where the indictment was not contested until the present motion to vacate the judgment was made more than four years after judgment and sentence. The allegation in the indictment herein as to the custody of the money stolen together with the declaration that the money constituted postage stamp funds of the branch post office we think raises a reasonable inference that the money was property of the United States. Under various pertinent statutes, postal revenues, including sums received by reason of keeping a branch office, constitute public money belonging to the United States, 39 U.S.C.A. §§ 42 and 46, 5 U.S.C.A. § 380; the Postmaster General is given authority to establish branch offices and to make rules and regulations for the government thereof, 39 U.S.C.A. § 158, and to enter into contracts for the conduct of such offices, 39 U.S.C.A. § 161. Under the general procedure established by the postal regulations in effect at the time the robbery herein was committed — of which regulations we take judicial notice, Caha v. United States, 1894, 152 U.S. 211, 221, 14 S.Ct. 513, 38 L.Ed. 415-postmasters issued stamp supplies to clerks in charge of contract stations within the amounts of the bonds of the clerks and received in return fixed credit receipts; the supplies appeared on the records of the postmasters as stock on hand; money received from the sale of such stamp supplies was used to purchase additional supplies; periodic inventories were taken of both supplies and cash in the custody of employees of contract stations, Postal Laws and Regulations of 1932, § 152, subdivision 4. The provision for the “purchase” of additional supplies does not necessarily mean a transfer for cash of stamp supplies by the government to clerks of contract stations and a resultant transfer of title. The definition of the word “purchase” in Funk & Wagnalls’ “New Standard Dictionary” (1940) applicable here is: “3. Law. (1) To acquire (property) by one’s own act or agreement, as distinguished from the act or mere operation of law.” Other provisions of the postal regulations cannot be reconciled with a change of. ownership theory, such as the requirement that stamp supplies originally shall be issued only within the amount of the branch clerk’s bond, and strict requirements for the keeping of stamps and funds in safes (Regulations, § 106, subdivision 4). Clearly, the regulations are inconsistent with the view that stamps and funds are property of clerks in charge of contract stations and therefore property in which the United States has no interest. Further, as has heen seen, the branch clerk invests no money of his own for such supplies but is issued the initial supply upon his fixed credit receipt which is secured to the government by the manager’s bond. Nothing appears in the postmaster-branch office contract relied upon by defendant contradictory to government ownership of funds in the possession of the clerk in charge of a contract station, even should we assume the right to take judicial notice of it. The indictment alleges a federal offense, and defendant-appellant’s motion to vacate the judgment and sentence based thereon was properly denied. Affirmed. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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. SOUTHERN ELECTRONICS CO., Respondent. No. 19895. United States Court of Appeals, Sixth Circuit. Sept. 16, 1970. Leonard M. Wagman, Atty., N.L.R.B., Washington, D. C., for petitioner; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., on brief. S. J. Milligan, Greeneville, Tenn., for respondent; Milligan, Silvers, Coleman & Fletcher, Greeneville, Tenn., on brief. Before CELEBREZZE and McCREE, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge. PER CURIAM. This is a petition for enforcement of an order of the National Labor Relations Board based upon findings of unfair labor practices arising out of an organizational campaign at respondent Southern Electronics Company’s Mosheim, Tennessee plant. Adopting the findings of its Trial Examiner, the Board found the company guilty of violating §§ 8(a) (1) and 8(a) (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a) (1), 158(a) (3). Respondent was ordered to cease and desist from the proscribed conduct, and to reinstate with back pay two employees who had been discharged. 175 N.L.R.B. No. 11 (1969). The company takes exception to the Board’s findings and conclusions, and asks us to deny enforcement of its order. The no-solicitation rule. The Board found that the company’s rule prohibiting solicitation “of any kind on company property during working hours” violated § 8(a) (1). This rule could be construed as barring solicitation during non-working time, such as rest periods or coffee breaks. Rules which prohibit such activity are presumptively invalid under the Act in the absence of special circumstances (which are not claimed to be present here). National Steel Corp., Great Lakes Steel Division v. NLRB, 415 F.2d 1231 (6th Cir. 1969); Campbell Soup Co. v. NLRB, 380 F.2d 372, 373 (5th Cir. 1967). TRW, Inc., TRW Michigan Division v. NLRB, 393 F.2d 771 (6th Cir. 1968), relied on by respondent, is not in point, since it concerns a rule which clearly exempted non-working time on company property from the operation of a prohibition against solicitation. Accordingly, the Board’s order prohibiting the company from issuing and enforcing unlawful no-solieitation rules will be enforced. Coercive interrogation. The Board found that company officials engaged in coercive interrogation of employees concerning union activities. The Trial Examiner and the Board found that foreman Dixon had interrogated employee Wiseearver about the progress of the union organizational drive just three days after employee Ricker had been discharged for allegedly discussing union membership with another employee during work hours in violation of the no-solieitation rule. It is well settled that such interrogation violates § 8(a) (1) when its probable effect is to inhibit union activity. NLRB v. Bin-Dicator Co., 356 F.2d 210, 213-214 (6th Cir. 1966). Here there was evidence from which the Trial Examiner and the Board could conclude that this questioning tended to have such an effect. Accordingly, the Board’s order in this respect will be enforced. Threat to close the plant. Respondent also challenges the Board’s finding that a company official violated § 8(a) (1) by threatening that the plant would be closed in retaliation if the employees chose to be represented by a union. Employee Wiseearver testified as follows at the Board’s hearing: [Foreman Dixon] said “Well, if the union did get in we may all be looking for a job;” and I asked him why and he said that if the union did go in the plant would be closed, that the plant would probably be closed; that Mr. Detrick of the plant would not allow a union to go in and that we would probably all be out of a job and he was strongly against it. Transcript, at 85. Although Dixon testified that he was unable to remember whether he had made such a statement, Transcript, at 258-259, the Trial Examiner and the Board were entitled to credit the employee’s testimony and to resolve the factual discrepancies against the company. The courts will not overturn such a finding if there is, as here, substantial evidence in the record considered as a whole to support it. Dixon’s statement as reported by Wisecarver clearly violates § 8(a) (1). NLRB v. Gissel Packing Co., 395 U.S. 575, 618-619, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). As the Supreme Court said, “If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment.” 395 U.S. at 618, 89 S.Ct. at 1942. The discharge of Ricker. Employee Ricker, one of the leading union activists, was' fired for allegedly violating the no-solieitation rule which the Board held to be unlawfully broad. As the Board found, a discharge based on such a rule has the natural effect of discouraging protected activity and therefore violates § 8(a) (1). Moreover, there was substantial evidence to support the Board’s finding that the company was actually motivated by anti-union animus. The rule had been laxly enforced in the past, and the company suddenly abandoned its three-step “progressive discipline” system to apply the most stringent sanction, discharge, against Ricker, a known union adherent, after his first offense. Under these circumstances, the Board’s order requiring reinstatement of Ricker will be enforced. The discharge of Wiseearver. The firing of employee Wiseearver presents the most difficult question in this case. Like Ricker, Wiseearver was a union activist, but he also had a record of tardiness and absenteeism in the weeks preceding his discharge. The immediate cause of Wisecarver’s firing was his refusal to sign a reprimand concerning his lateness for a Saturday overtime assignment. The Trial Examiner’s conclusion was as follows: The question then remains whether Detrick would have abandoned the progressive discipline and fired Wise-carver for not signing the reprimand if Wisecarver had not been a union proponent. Under the circumstances set out above, I find and conclude that Detrick would not have fired Wise-carver if it had not been for the latter’s union involvement. Common sense dictates that Detrick could have followed the progressive discipline system by merely noting on the reprimand that Wisecarver had been given the form and refused to sign it and had been informed that a further breach of the rules would mean a 3-day layoff. Detrick testified that two other persons had been discharged for a high absentee record and that the progressive discipline system had been followed as to them. Why then was it abandoned here ? Detrick gave no plausible reason but retreated to a firm position that Wise-carver was fired for high absenteeism and insubordination. The total of the insubordination was Wisecarver’s refusal to sign the reprimand form since he felt he had not broken any of the company’s rules. The common sense answer was to warn him and make an appropriate notation. Detrick did neither but apparently became incensed and fired Wisecarver. I do not know whether he fired Wisecarver primarily to rid himself of a union proponent or because he was afraid of being accused of being soft on a union man. In either event Wisecarver’s union predilections was [sic] a moving factor in causing Detrick to abandon the progressive discipline and fire him. I believe it is safe to assume that if Wisecarver had not been an open union proponent, he would not have been discharged under these circumstances. Accordingly, I would conclude and find that Wisecarver’s discharge was violative of Section 8(a) (3) and (1) of the Act. This conclusion, which the Board adopted, is supported by substantial evidence in the record taken as a whole and by applicable law. It is axiomatic that when an employee is fired because of his union sympathies, the discharge is a violation of §§ 8(a) (1) and (8) (3). NLRB v. Whitfield Pickle Co., 374 F.2d 576, 582 (5th Cir. 1967); NLRB v. West Side Carpet Cleaning Co., 329 F.2d 758, 761 (6th Cir. 1964). The order of the Board will be enforced in full. 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_r_fed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Michael J. TAIT and Monica Tait, his wife, Appellants, v. ARMOR ELEVATOR COMPANY, and Prudential Insurance Company of America, Appellees. No. 91-1378. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) Oct. 10, 1991. Decided March 12, 1992. Rehearing and Rehearing In Banc Denied April 10, 1992. Stephen R. Bolden, Michael S. Lubline, Debra Schwaderer Dunne Fell & Spauld-ing, Philadelphia, Pa., for appellants. William J. Conroy, White and Williams, Philadelphia, Pa., for appellee, Armor Elevator Co. Ralph P. Bocchino, Christine M. Brenner, Marshall, Dennehey, Warner, Coleman and Goggin, Philadelphia, Pa., for appellee, Prudential Ins. Co. Before MANSMANN, NYGAARD and SEITZ, Circuit Judges. OPINION OF THE COURT SEITZ, Circuit Judge. Monica and Michael Tait (plaintiffs), appeal a final judgment of the district court in favor of defendants, Armor Elevator Company (Armor) and Prudential Insurance Company of America (Prudential). The district court exercised diversity jurisdiction under 28 U.S.C. § 1332. This court has jurisdiction pursuant to 28 U.S.C. § 1291. Plaintiffs brought this negligence action against Prudential and Armor for injuries allegedly suffered by plaintiff Michael Tait as a result of an abrupt stop of a descending elevator in which he was the sole passenger. Prudential owned the building where the accident occurred. Armor was under contract with Prudential to inspect, repair and maintain the building elevators. In June of 1988, it also contracted to modernize the elevators. At the close of plaintiffs’ case, the district court granted a directed verdict in favor of Prudential and entered a judgment accordingly. The trial continued against Armor and resulted in a jury verdict in its favor based on a finding of no negligence. After entry of judgment therein, the district court denied plaintiffs’ motion for a new trial. This appeal against both defendants followed. I. JURY VERDICT FOR DEFENDANT ARMOR The plaintiffs contend that the district court erred in denying their motion for a new trial against Armor. Plaintiffs first assert that the district court gave an erroneous jury instruction as to the standard of care that Armor owed to plaintiff Michael Tait. In their “Revised and Supplemental Points for Charge,” plaintiffs sought a “highest duty of care” instruction. Although the issue of its propriety was apparently argued, no subsequent ruling can be found in the appendix. Counsel was asked by us to comment on this apparent defect. Their responses, particularly Armor’s, leave us with the definite impression that the district court, in fact, rejected plaintiffs’ request at a sidebar conference during the trial. We conclude that there was a definitive ruling before the jury instructions were given. Therefore, we determine that the issue of instructional error was preserved. Bowley v. Stotler & Co., 751 F.2d 641, 646-47 (3d Cir.1985). As noted, plaintiffs first argue that the jury instruction was erroneous under controlling Pennsylvania law since it failed to correctly instruct the jury as to the duty of care owed by Armor to passengers under the present circumstances. The plaintiffs asked the district court to instruct the jury as follows: Armor owes to the plaintiffs Michael Tait a duty of care similar to that of a corn-mon carrier [and,] ... as such, is required by the law to use a higher degree of care for the safety of passengers who ride upon the elevators maintained, inspected and repaired by it, than that ordinarily imposed on others and it must be judged by a much stricter standard ... [namely,] the highest degree of diligence and care in the operation and maintenance of its elevators. Instead of honoring their request, the court instructed the jury to decide whether Armor breached its duty of care “under all the circumstances.” The instructions recited further: [W]hat constitutes ordinary care varies according to the particular circumstances and conditions and that amount of care required by law must be in keeping with the degree of dangers involved.... [I]n deciding whether ordinary care was exercised in a given case, the conduct in question must be viewed in light of all the surrounding circumstances that are shown by the evidence in the case. Plaintiffs alleged in their motion for a new trial that the district court’s refusal to instruct the jury that Armor owed plaintiff Michael the highest degree of care constituted error. On appeal, they say that since Armor assumed contractual duties to inspect, repair and maintain the elevators, it “must of necessity have assumed the same obligations to passengers as was owed to them by Prudential,” the highest degree of care. The district court denied the motion on the ground that the instructions given fairly reflected the duty of an elevator service company to passengers under Pennsylvania law. The court explained: In speaking about duty of care in Benson v. Penn Central Transportation Co. [463 Pa. 37], 342 A.2d 393 (Pa.1975), the Supreme Court of Pennsylvania said “it is true, of course, that our cases have placed upon common carriers a duty to use ‘the highest degree of care for (their passengers) safety.’ ” (citations omitted.) However, as Dean Prosser correctly states, “Although this language ... seems to indicate that a special standard is being applied, it would appear that none of these cases should logically call for any departure from the usual formula. What is required is merely the conduct of the reasonable man of ordinary prudence under the circumstances, and the greater danger, or the greater responsibility is merely one of the circumstances, demanding only an increased amount of care.” I believe my instructions to the jury referred to previously were consistent with the law. Tait v. Armor Elevator Company and Prudential Life Insurance Company of America, No. 89-6313 (E.D.Pa.), slip. op. 4, 1991 WL 67737 (Buckwalter, J.) The district court’s instructions must be viewed as a whole and read in light of all the evidence. Under such a review, the ruling should be reversed only if it does not fairly and adequately submit the issue to the jury and, thereby, confuse or mislead the jury. Link v. Mercedes-Benz, 788 F.2d 918, 922 (3d Cir.1986). The Pennsylvania Supreme Court has stated that a common carrier “is negligent if a reasonable man under like circumstances would recognize that it involves an unreasonable risk of causing harm to another.” Benson, 342 A.2d at 397. The Benson court reasoned further that the fact that the cab company was a common carrier did not affect the applicability of this definition of the standard of care: It is true, of course, that our cases have placed upon common carriers a duty to use “the highest degree of care for [their passengers’] safety.” (citations omitted). However, as Dean Prosser correctly states, “although [this] language ... seems to indicate that a special standard is being applied, it would appear that none of these cases should logically call for any departure from the usual formula. What is required is merely the conduct of the reasonable man of ordinary prudence under the circumstances, and the greater danger, or the greater responsibility is merely one of the circumstances demanding only an increased amount of care.” W. Prosser, The Law of Torts, § 34, at 181 (4th ed. 1971). Id. at 397 n. 11. Without discussing Benson, the plaintiffs argue that, under Pennsylvania law, an elevator service company owes the highest degree of care to its passengers when it acts as a common carrier. This argument is not supported by Pennsylvania precedent. Prior to Benson, former Chief Justice Jones in his concurrence in Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94, 105 (1974), extrapolating from Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961), stated “it is clear that the duty owed by a service contractor to third parties is uniformly one of ordinary care and does not vacillate to conform with the standard of care which the law has placed on the other party to the contract.” However, the majority in Gilbert did not determine the extent of the tort law duty of care owed by such a service company to elevator passengers. The Pennsylvania Supreme Court has not decided whether it will apply to an elevator service company the duty of care standard articulated in Benson for common carriers. Further, we recognize that there is a division of authority nationally on the issue of the standard of care owed to passengers by an elevator company arising from its contract to service and maintain an elevator. Prosser and Keaton on the Law of Torts, § 34 at 208-9 n. 5-14 (1984; Supp.1988). See also 64 A.L.R.3d 950, 962-64, 974 (1975). Nevertheless, the case law in Pennsylvania, particularly the quoted footnote in Benson, leads us to believe that the Supreme Court of Pennsylvania would adopt the same duty of care as to an elevator service contractor that it has applied to other common carriers. Thus, we find no error under Pennsylvania law in the instruction given as to Armor’s duty of care. The plaintiffs’ second allegation of trial error is based on the following statement by counsel for Armor in his closing argument to the jury: Let me try and put in perspective what I am driving at. We often pick up the newspaper and we read that a jury verdict has resulted and you start reading through it and you say to yourself, my God, how could they have done what they did with the evidence they had on the issue they had to decide? Because you read it, you say, I can’t believe it. Well, you can imagine picking up a newspaper and reading that a jury had awarded a person or had concluded that a person had a certain injury at one point in time, when his own doctors' agreed that the symptoms that would evidence that injury, all pre-existed the date when he said it occurred? Can you imagine that? Well, that’s what you’re being asked to do, if I may say so, to put it in perspective for you. App. at 843-44. Although plaintiffs did not object to these remarks at trial, they asserted in their motion for a new trial that these remarks constituted plain error. They argued that the remarks were improper because they suggested to the jury that the plaintiff Michael Tait was a malingerer and attempted to link his claim to other frivolous law suits reported in the newspapers. Even entertaining plaintiffs’ argument under the stringent standard of the plain error doctrine, we agree that the district court properly denied plaintiffs’ new trial motion. As it said, the remarks had no “reasonable probability of improperly prejudicing the jury and influencing its verdict.” Thus, the district court did not abuse its discretion in its ruling on this issue. Finally, plaintiffs seek a new trial against Armor on the ground that the district court improperly excluded certain “Elevator Logs” that recorded tenant complaints and which were kept on a regular basis by Prudential’s building manager. The purpose of these tenant logs was to record tenant complaints about elevator operation problems and Armor’s response time in dealing with them. These logs showed a pattern of unexplained malfunctions, other than abrupt stops, in elevator No. 7. They also showed evidence of abrupt stops in No. 7 both before and after the accident. Finally, the logs kept by Prudential revealed incidents in the same bank of mid-rise elevators during the year leading up to the accident in July of 1988. Plaintiffs sought to introduce these logs to establish three propositions: (1) that the defendants had notice or knowledge of the dangerous condition and its magnitude, (2) that defendants had an ability to correct a known danger, and (3) that the defendants knew of the likelihood of injury in connection with an accident. Prior to trial, both defendants filed motions in limine to exclude the tenant logs on the ground that the evidence of prior malfunctions in the same bank of elevators other than No. 7 and incidents in other elevators was not probative and should be excluded under Federal Rule of Evidence 402 (Only relevant evidence admissible). Alternatively, they contended that the evidence was too prejudicial and must be excluded under Rule 403 (when relevant evidence excluded). The defendants asserted that the plaintiffs should be limited to introducing evidence from the logs showing malfunctions prior to the incident involving plaintiff Michael on July 18, that resulted from abrupt stops in elevator No. 7. Plaintiffs argued that the evidence was relevant because poor maintenance of the interconnected safety circuits had caused accidents of a similar nature in both elevator No. 7 and the other elevators. They contended that these circuits would have caused malfunctions in all the elevators because they were exposed to the same environment of dust, dirt and corrosion common to all the mid-rise bank elevator shafts. The district court reserved ruling on this matter until the plaintiffs had presented other evidence. The plaintiffs presented expert testimony to show that the accident alleged by plaintiff Michael would only result from negligence and that dust, dirt or corrosion in the circuits may have caused the alleged abrupt stop in elevator No. 7. The reports of the plaintiffs’ experts were submitted to support their request for admission of the evidence of prior accidents and malfunctions. The defendants presented testimony of an expert, Mr. Steven Man-gold, refuting their theory. Mr. Mangold testified that the safety circuitry of each elevator was separate and would not affect the operation of any other elevator in the same bank of elevators. The court concluded that plaintiffs’ experts had drawn unsubstantiated conclusions about the causal relationship between malfunctions due to bad circuits in any of the mid-rise elevators and a malfunction in elevator No. 7. Thus, the district court granted the defendants’ motions in limine insofar as they sought to exclude the evidence of malfunctions in all the elevators, except No. 7. It also excluded all evidence of malfunctions in elevator No. 7 occurring after the incident involving plaintiff Michael. As to the excluded evidence, the court held that “it would have been more prejudicial than probative to let into testimony problems in elevators other than elevator No. 7.” The court did rule that the logs showing prior instances of abrupt, sudden or jolting stops in elevator No. 7 were admissible “to lend credibility to plaintiff’s unwitnessed account of what happened to him when he was in the elevator alone.” Finally, the district court allowed plaintiffs’ experts to testify about evidence in their reports about prior abrupt stops in elevator No. 7, but excluded any reference by them to accidents in other elevators or in elevator No. 7 occurring after the date of the alleged accident. We review for abuse of discretion the district court’s rulings with respect to plaintiffs’ evidentiary tenders. United States v. Stewart, 806 F.2d 64, 68 (3d Cir.1986). The admission or exclusion of evidence is a matter well suited to the exercise of the district court’s discretion. In re Merritt Logan, Inc., 901 F.2d 349, 359 (3d. Cir.1990). After a review of the record and in light of the rules of evidence applied by the district court, we cannot say that it committed reversible error in its evidentiary rulings. The evidence of malfunction in other elevators was found inadmissible because the plaintiffs' theory of concurrent causation of the malfunction in several elevators at once was purely speculative. Accordingly, plaintiffs did not establish the cause of the accidents in the other elevators or make a sufficient showing that they were related to the accident in elevator No. 7. The district court therefore acted within the scope of its legitimate discretion in excluding reports of malfunctions of the other elevator prior to the accident, given the prejudicial and speculative nature of such evidence. Finally, the district court did not abuse its discretion in excluding evidence of subsequent malfunctions in elevator No. 7. Gumbs v. International Harvester, 718 F.2d 88, 97-98 (3d Cir.1983); Wojcieschowski v. Long-Airdox Div., 488 F.2d 1111 (3d Cir.1973). These incidents in elevator No. 7 after July 18 were not shown to be similar enough to the circumstances in this case to overcome the prejudice inherent in admitting this evidence. We will, therefore, affirm the judgment of the district court in Armor’s favor. Thus, we need not address Armor’s alternative ground for affirmance that the district court erred in refusing to direct a verdict in its favor based on the insufficiency of plaintiffs’ evidence. II. DIRECTED VERDICT FOR PRUDENTIAL Plaintiffs appeal the order of the district court granting Prudential’s motion for a directed verdict at the close of plaintiffs’ case. In proceeding with the case against Armor the district court informed the jury that Prudential had been “dismissed because there was no evidence against the defendant as a matter of law, upon which you could find Prudential was negligent here.” In rejecting the plaintiffs’ motion for a new trial, the district court observed that, [T]here was no evidence of any culpable conduct on the part of Prudential. Prudential was the owner of the building in which the elevator was installed but the uncontroverted evidence was that Armor had sold an [sole and] exclusive control of the elevators and that plaintiff was basing its cause of action on the basis of Armor’s failing to properly maintain the elevators. We accordingly find no merit to plaintiff’s contention that the entry of a directed verdict was incorrect. Tait, slip op. 10. The district court’s opinion did not discuss whether there was sufficient evidence to satisfy the elements of res ipsa loquitur in order to create a permissible inference of Prudential’s negligence. In granting a directed verdict in Prudential’s favor, however, the district court must have found either (1) that Prudential delegated its duty of care by contract to Armor or (2) that there was insufficient evidence to warrant giving a res ipsa lo-quitur instruction against Prudential. On appeal, plaintiffs contest the correctness of the district court’s action. Review of a directed verdict is plenary. “A motion for directed verdict should be granted only if, viewing the evidence in the light most favorable to the non-moving party, there is no question of material fact for the jury, and any verdict other than the one directed would be erroneous under the governing law.” MacLeary v. Hines, 817 F.2d 1081, 1083 (3d Cir.1987). The district court must deny a defendant’s directed verdict motion under this standard “if there is evidence reasonably tending to support the recovery by the plaintiffs as to any of its theories of liability.” Bielevicz v. Dubinon, 915 F.2d 845, 849 (3d Cir.1990). Our first task is to determine whether the district court correctly found that Armor had sole and exclusive control of the elevator. In doing so, we shall assume without deciding that Prudential could have relieved itself of any legal responsibility to plaintiffs under Pennsylvania law by delegating sole and exclusive control to its service contractor. But such an assumption does not help Prudential here because it is clear on this record that it too owed plaintiff Michael, as an elevator passenger, a duty of care. The contract between Armor and Prudential demonstrates that Prudential reserved to itself ultimate control over its elevators and their operation. While the service contract delegates primary responsibility for installation, inspection repairs and maintenance to Armor, the service company did not assume sole and exclusive control of elevator No. 7. In pertinent part, the contract governing Armor’s installation of the new elevator safety circuits states that, “Armor does not assume possession, management, or control of any part of the equipment, but such remains purchaser’s exclusively as the owner or lessee thereof.” Plaintiff’s Exhibit 10. Nor was Armor required “to make renewals or repairs necessitated by non-repetitive or infrequent fluctuations in the AC power systems or extreme variations in machine room temperature, or by negligence or misuse of the equipment.” Id. It further provides that the purchaser, Prudential, is responsible “to keep the elevator pit(s) and machine room(s) free from water and to not use these areas for storage purposes.” Id. In addition, under the contract, Armor does not agree “to install new attachments on the elevators whether recommended or directed by insurance companies or governmental authorities, or to make any replacements with parts of a different design, or to replace or realign guide rails.” Still further, Armor assumed no responsibility under the contract over the following parts of the elevator’s mechanisms and equipment: “the car enclosure, hoistway, enclosures, fixture faceplates, power switches, fuses and electrical power feeders to controllers.” Finally, Prudential owes the following contractual duty to Armor under the agreement: TO GIVE ARMOR NOTICE WITHIN TWENTY-FOUR (24) HOURS OF ANY ACCIDENT, ALTERATION OR CHANGE AFFECTING THE EQUIPMENT AND OF ANY CHANGE OR OWNERSHIP; TO DISCONTINUE IMMEDIATELY THE ELEVATOR FROM SERVICE WHEN THE EQUIPMENT BECOMES UNSAFE OR OPERATES IN A MANNER WHICH MIGHT CAUSE INJURY TO A USER THEREOF. The record does not show whether Prudential gave Armor the required notice after each of the 19 separate reported malfunctions prior to Mr. Tait’s alleged accident on elevator No. 7. The provisions of the service contract, without more, amply demonstrate that a jury could find that Prudential retained substantial control over the elevators and their operation. Thus, a jury could infer that the accident may have resulted from Prudential’s independent negligence. This being so, we conclude that the district court erred in stating that Prudential could not be negligent because Armor was given sole and exclusive control of elevator No. 7. We find unacceptable Prudential’s view that this case is controlled by Brletich v. United States Steel Corp., 445 Pa. 525, 285 A.2d 133 (1971), where the court held that a property owner delegated its duty of care to a demolition contractor to demolish a structure on its land. Unlike Brletich, there is evidence in this case to show that Prudential never fully surrendered actual control over the instrumentality to Armor. Further, the contract specifically provides that Armor would not take control, or even temporary possession, of the elevator. Given these record facts, we conclude that Prudential also owed plaintiff Michael a duty to anticipate or guard against the risks that might result in injury to its elevator passengers. Thus, Prudential’s responsibility or “control” was a proper subject for jury determination. Gilbert, 327 A.2d at 102, citing Restatement (Second) of Torts, § 328C (1965). Having determined that Prudential did not delegate its tort law duty of care, we must now determine the standard of care that plaintiff was owed by Prudential as owner of the elevator. Under controlling Pennsylvania law, Prudential, as building owner, is a common carrier who owes a duty of care to maintain the elevator in a reasonably safe condition for passengers. See generally, McKnight v. Kresge, 285 Pa. 489, 132 A. 575, 577 (1926); Gilbert, 327 A.2d at 97; Lynch v. McStome & Lincoln Plaza Assoc., 378 Pa.Super. 430, 548 A.2d 1276, 1279 (1988); McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 420 A.2d 514, 519 (1980). It was clearly within the scope of Prudential’s duty as owner of the instrumentality to make thorough inspections, to keep the common approaches ... in a reasonably safe condition, and to operate the elevator in a reasonably safe manner. McGowan, 420 A.2d at 519. Moreover, Prudential owed this duty even though it contracted with an elevator service company to perform some, but not all, of its duties with respect to the elevators. The Pennsylvania intermediate appellate courts have consistently held that the owners of elevators owe a duty to elevator passengers similar to that of a common carrier. For example, in Dallas v. F.M. Oxford, 381 Pa.Super. 89, 552 A.2d 1109, 1111 n. 4 (1989), the court found that a building owner and an elevator service company could be found negligent in failing to install an elevator door safety device. Similarly, in McGowan, the court held that an apartment house owner’s negligence could be inferred from its failure to provide for frequent enough or proper inspections based on evidence of the plaintiff’s injury when a door closed as she exited an elevator in the building. McGowan, 420 A.2d at 519 n. 2. In Carney v. Otis Elevator Co., 370 Pa.Super. 394, 536 A.2d 804 (1988), the negligence of both the building owner and the elevator service company were established, although the evidence showed that the duty to inspect was under the service company’s, exclusive control. Id., 536 A.2d at 806. Given that Prudential exercised joint control over the elevator, it owed a duty of care as a common carrier to its elevator passengers under Pennsylvania law. We must next decide whether a res ipsa loquitur instruction may be warranted against the owner of an elevator who shares joint control over that instrumentality with an elevator service company. The district court did not decide whether the evidence showing that Prudential jointly controlled the elevator with Armor would permit a finding under Pennsylvania law that Prudential was negligent in causing the alleged accident. Prior to Gilbert, the Pennsylvania courts limited res ipsa loquitur instructions to cases where defendants had “exclusive control” of the instrumentality allegedly causing the accident. Izzi v. Philadelphia Transportation Co., 412 Pa. 559, 195 A.2d 784, 788 (1963). However, the Pennsylvania Supreme Court thereafter abandoned these “arbitrary requirements [that] have been imposed by earlier cases.” Gilbert, 327 A.2d at 98. In consequence, the application of the res ipsa loquitur doctrine to a building owner in Pennsylvania no longer depends on whether or not the owner exercised exclusive control over the instrumentality. Id. at 99, 101; Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 437 A.2d 1134, 1137, 1139 (1981). Most jurisdictions apply the Restatement rule on res ipsa loquitur to multiple defendants, so long as the defendants are joint tortfeasors or have joint control over the instrumentality causing the injury. See 59 A.L.R. 4th 201 (1988). This is the Pennsylvania rule. Thus, Gilbert held that “if responsibility is vested in and shared by two or more parties, [such as a building owner and its independent contractor], each may be subjected to liability under the rule we adopt.” Id. at 101, (citing Restatement § 328D, cmt. g and illus. 8; 38 A.L.R.2d 905 (1954); 58 Am.Jur.2d Negligence § 503. See generally 63 A.L.R.3d 893, 996 (1975). While it is not clear to us whether the district court decided the issue in ruling on the correctness of the directed verdict, we must determine whether the plaintiffs produced sufficient evidence on the issue of Prudential’s negligence to require that the issue be submitted to a jury. To analyze this issue, we must first determine the scope of plaintiffs’ allegations regarding Prudential’s breach of the duty of care it owes to its elevator passengers. The district court granted Prudential’s motion for a directed verdict on the assumption that “plaintiffs were basing their cause of action on the basis of Armor’s failing to properly maintain the elevators.” This reading of plaintiffs’ complaint is too narrow. Plaintiffs sued Prudential for its breach of its duty of care in operating and maintaining the elevators. Additionally, the plaintiff alleged that Prudential breached its duty to warn passengers of dangerous and defective conditions. We now ask whether there was adequate evidence of Prudential’s breach of its duty of care to warrant a jury instruction on res ipsa loquitur. Plaintiffs sought to establish Prudential’s negligence by circumstantial proof. In some cases, where a party seeking to establish negligence does not establish the exact cause of the injury, he may rely upon res ipsa loquitur, a rule of evidence, that permits the jury to infer the cause of the injury from the circumstances of the event. The Pennsylvania Supreme Court has adopted the Restatement § 328D view that permits the jury to infer the defendant's negligence if the following three elements are satisfied: (a) the event is of the kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiffs and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant’s duty to the plaintiffs. Gilbert, 327 A.2d at 100 (citing Restatement § 328D.) When the court determines that all three elements of section 328D(1) have been met, the negligence issue must be given to the jury. See Restatement § 328D(2). See also Carney, 536 A.2d at 806; Smith v. City of Chester, 357 Pa.Super. 24, 515 A.2d 303, 305 (1986); Lanza v. Poretti, 537 F.Supp. 777 (E.D.Pa.1982). Plaintiffs easily satisfied the first element of Section 328D(1). Plaintiff Michael testified that elevator No. 7 made an abrupt stop during its descent near the 19th floor on July 18, 1988 causing him to injure his back. As with plaintiff Michael’s accident, “there are many events, such as ... the fall of an elevator ... where the conclusion is at least permissible that such things do not usually happen unless someone has been negligent ... [and] to such events res ipsa loquitur may apply.” Restatement § 328D(1), cmt. c. See also McGowan, 420 A.2d at 518. Moreover, in the claim against Armor, the district court found that the evidence was sufficient to satisfy the first element of § 328D(1). The same evidence satisfies this element in the claim against Prudential. Second, plaintiffs’ evidence permitted a conclusion that the conduct of plaintiff Michael and other third parties was not a responsible cause of the accident. The plaintiffs’ expert, Mr. Thomas W. Carroll, former chief elevator inspector in the Commonwealth of Pennsylvania, testified that the circumstances of the accident meant that it was not caused by its passenger’s activation of the emergency stop button. Mr. Carroll also testified that the abrupt stop of the elevator was not caused by a loss of electrical power from an outside source, such as a power failure due to the fault of the electrical company. The evidence was therefore sufficient to permit an inference that the first and second elements of § 328D were met. The abrupt stop was an accident that would not have occurred in the absence of negligence and the plaintiff was not responsible for that abrupt stop. We must next consider whether plaintiffs’ evidence supported an inference that the alleged negligence was within the scope of Prudential’s duty of care. The evidence of the plaintiffs’ experts shows that Prudential’s negligence may have caused plaintiff Michael’s injury. These experts testified that the alleged accident was most likely caused by a failure of those responsible to properly maintain its elevators in a reasonably safe condition. Before testifying, the plaintiffs’ three experts studied the records of 19 separate prior malfunctions to elevator No. 7 and numerous problems in the other elevators at Five Penn Square. They also inspected elevator No. 7 and reviewed plaintiff Michael’s deposition testimony. After this examination, these experts testified that the abrupt stop was most likely a result of negligent maintenance leading to a malfunction in the elevator’s circuits and/or its electronic controller. First, Mr. Raymond Harkinson, the mechanic who maintained elevator No. 7 for Armor in July of 1988 (the month of the accident), testified that the elevator accident most likely resulted from accumulated dirt, dust and/or corrosion in the elevator’s safety circuits. Second, Nicholas Haneman, a mechanical engineer, corroborated this view that the accident was caused by a malfunction in the safety circuits and/or in the electronic controller due to improper maintenance. Third, Mr. Carroll agreed with the other experts’ evaluations 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_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. Irwin B. ARIEFF, Appellant, v. U.S. DEPARTMENT OF the NAVY. No. 82-1536. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 2, 1982. Decided July 22, 1983. As Amended Aug. 24, 1983. Cornish F. Hitchcock, with whom John C. Sims and Alan B. Morrison, Washington, D.C., were on brief, for appellant. Charles D. Ossola, Atty., Dept, of Justice, with whom Leonard Schaitman, Atty., Dept, of Justice, Washington, D.C., was on brief, for appellee. Before GINSBURG and SCALIA, Circuit Judges, and GESELL, Judge, United States District Court for the District of Columbia. Opinion for the Court filed by Circuit Judge SCALIA. Sitting by designation pursuant to 28 U.S.C. § 292(a). SCALIA, Circuit Judge: This case is before us on appeal by Irwin B. Arieff, a professional journalist for Congressional Quarterly, from a Memorandum Order of the District Court granting summary judgment to appellee Department of the Navy and dismissing his complaint. Arieff v. Department of the Navy, No. 81-2406 (D.D.C. Apr. 27, 1982). We are asked to decide whether Exemption 6 to the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(6) (1976), authorized the Navy to withhold certain inventory control documents, requested by appellant, which disclose the names and amounts of prescription drugs supplied to the Office of Attending Physician to the United States Congress (“OAP”), by the National Naval Medical Center (“NNMC”). I The OAP, located in the Capitol, was created in 1928 to serve the personal medical needs of Members of the House of Representatives. H.R.Res. 253, 70th Cong., 2d Sess., 70 Cong.Rec. 101 (1928). Since 1931, it has served Members of both the House and Senate. See S.Con.Res. 14, 71st Cong., 2d Sess., 72 Cong.Rec. 6606 (1930). In addition, the Office provides medical care to Justices of the Supreme Court of the United States, former Members of Congress and Justices, designated senior officials of the Court and Congress, and congressional pages. Jt.App. at 48 (Public Affidavit of Freeman H. Cary, M.D. (“Cary Affidavit”)). (Those entitled to OAP services are hereinafter collectively referred to as “Beneficiaries.”) The Attending Physician is the principal physician of the vast majority of Beneficiaries. Id. at 51. Within the OAP, a licensed pharmacist under the supervision of the Attending Physician provides prescription services to all Beneficiaries, to families of Members of Congress, and to congressional staff. The OAP purchases the drugs to fill prescriptions for staff and families from a wholesale commercial drug warehouse, and charges the recipients the unit price. Id. at 49. The drugs to fill Beneficiaries’ prescriptions, on the other hand, the OAP orders from the NNMC, a division of the Department of the Navy, and provides without charge. Id. The NNMC maintains “hard copy computer printouts” that document the narcotics, controlled substances, and other drugs requisitioned by the offices it serves. Id. at 91 (Affidavit of David H. Hofflinger, Asst. Supply Officer, NNMC). These records identify the particular office requesting the drugs (here, for example, the OAP); the date the order is filled; whether the order is one for narcotics, controlled substances, or other drugs; and the name, quantity and price of each drug sent to the requisitioning office. Id. at 49-50 (Cary Affidavit); id. at 91-92 (Hofflinger Affidavit). The NNMC has records of the narcotics requisitioned by OAP from October 20, 1978, to present; of controlled substances from October 12, 1978, to present; and of other drugs from January 17, 1980, to present. It is these records that appellant seeks. Appellant’s FOIA request asked for “all records concerning releases of any prescription drugs” to the OAP from the NNMC between 1974 and 1980. Id. at 29-30. It explicitly stated the Navy could delete all information that would identify the ultimate recipient of any of the drugs. The request was denied on the grounds that (1) the documents were not “agency” records within the definition of 5 U.S.C. § 552(e) (1976), but congressional records, and (2) production of the records would constitute a “clearly unwarranted invasion of [the] personal privacy” of the Beneficiaries in violation of 5 U.S.C. § 552(b)(6). Appellant’s administrative appeal of this denial was rejected on the same grounds. Appellant filed this action in the district court on September 29, 1981, and shortly thereafter moved for summary judgment. The Navy filed a cross-motion for summary judgment, supported by four affidavits, the principal one of which was submitted by Dr. Freeman H. Cary, the present Attending Physician. Jt.App. at 47-53. In this affidavit, Dr. Cary stated that informational requests directed to the OAP “often reflect that the inquirers have already pieced together information about the medical condition of Members [of Congress]; sometimes they seek from the OAP just a single bit of information or confirmation that would transform speculation about Members’ medical conditions or whereabouts into certain knowledge.” Id. at 50, f 6. Dr. Cary also asserted that disclosure of OAP receipt of drugs “prescribed exclusively, or almost exclusively, for a particular medical problem or condition” would be “tantamount to disclosing a medical diagnosis,” and that disclosure of OAP receipt of drugs “widely prescribed” for a particular condition “would promote speculation concerning the medical problems or conditions requiring such prescriptions.” Id. at 52, If 9. Dr. Cary supported these views through submission of a separate, in camera affidavit in which he set forth the names of selected drugs prescribed for Beneficiaries and, in his opinion, the medical conditions for which those drugs are principally if not exclusively prescribed. Appellant responded to the Navy’s cross-motion and in camera submission with an affidavit by Dr. Sidney M. Wolfe, an author on prescription drugs. Dr. Wolfe challenged Dr. Cary’s assertions that the records in question could be used to identify the medical condition of individual Beneficiaries and that the uses to which certain of the drugs are put are so limited that knowledge of them could link individual Beneficiaries to particular conditions. He cited examples of drugs which, although widely prescribed for particular medical conditions and often associated with those conditions, are also used in the treatment of other problems. Id. at 97-100. In a Memorandum Order of April 27, 1982, the district court granted the Navy’s motion for summary judgment and dismissed the complaint. Appellant’s principal contentions on appeal are that the district court erred in approving the withholding of all requested records on the basis of a submission which, at most, demonstrated that release of only some of the records would prejudice the interests protected by Exemption 6, and that the court did not accord him adequate opportunity to challenge Dr. Cary’s in camera affidavit. We agree that the district court committed reversible error. We decline, however, appellant’s invitation to enter judgment in his favor, and instead, reverse and remand to the district court for the reasons detailed below. II Exemption 6 of the Freedom of Information Act, exempts from disclosure, “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” When confronted with a challenge to a withholding of agency records on the basis of this exemption, courts must make a two-step determination de novo, see 5 U.S.C. § 552(a)(4)(B) (1976): whether the information sought is to be found in personnel, medical or' similar files, and if so, whether its release would constitute a “clearly unwarranted invasion of personal privacy.” The district court rejected appellant’s contention that the records in question are not medical or similar files. In the interim between the district court’s decision and this appeal, the Supreme Court issued its opinion in Department of State v. Washington Post, 456 U.S. 595, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982), rejecting this circuit’s rule, see Simpson v. Vance, 648 F.2d 10, 13 (D.C.Cir.1980), that the phrase “similar files” in § 552(b)(6) is limited to files within which may be found “intimate details” and “highly personal” information. Given the Court’s broad construction of the term, appellant does not contest this aspect of the district court’s holding, Appellant’s Brief at 12, nor do we consider it (For its part, appellee does not argue on this appeal, nor did it in the district court, the validity of the first reason for its original denial, namely that the documents in question were not “agency records.”) We turn directly, then, to the second test — whether disclosure would constitute a “clearly unwarranted invasion of personal privacy.” The district court acknowledged that the records appellant seeks “do not, on their face, contain personal details of any individual’s medical condition.” Jt.App. at 133-34. It rested its decision in appellee’s favor on two grounds, which we will consider in sequence: First, it concluded that disclosure of the records — given the existence of other fragmented, publicly available information concerning Beneficiaries’ health and (what it took to be true) the identification of at least certain of the drugs with particular medical conditions — would enable identification of the medical conditions of particular individuals. Second, it found that even if certain identification were not possible, disclosure would promote questions and lead to informed speculation about the health of particular individuals. Either of these intrusions, it held, would constitute the kind of “clearly unwarranted invasion of the personal privacy” of the OAP Beneficiaries that Congress intended to prevent. A. Identification of Particular Beneficiaries’ Medical Conditions In examining this portion of the district court’s opinion, it is important to bear in mind that the exemptions of the FOIA do not apply wholesale. An item of exempt information does not insulate from disclosure the entire file in which it is contained, or even the entire page on which it appears. Rather, “[a]ny reasonably segregable portion of a record shall be provided ... after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). Since there is no claim, nor any reason to believe, that particular drugs could not readily be deleted from the inventory control documents here requested, the district court’s conclusion on this aspect of the case amounted to a finding that all of the drugs listed will enable identification of the medical conditions for which they are respectively prescribed. The factual allegations most favorable to appellant (which were controlling for purposes of rendering summary judgment against him) did not remotely support this finding, but to the contrary asserted that “many drugs are used to treat more than one condition.” Jt.App. at 99, II8 (Wolfe Affidavit). Indeed, even the factual allegations most favorable to appellee asserted only that “certain drugs have connotations regarding specific medical problems.” Jt. App. at 52, f 9 (Cary Affidavit) (emphasis added). Furthermore, nothing whatever in the record suggests that any invasion of privacy would result from release of only the quantities and unit prices of shipments — information which, even without the drug names, was of interest to appellant. See Appellant’s Brief at 22. The district court’s complete failure to restrict application of the Exemption to those “segregable portions” of the records producing the alleged invasion of privacy would alone require our reversal of the judgment. There is, moreover, a further difficulty, worth noting because it will have to be taken into account in the district court’s more particularized consideration of the records on remand. The Supreme Court has said that invocation of Exemption 6 requires “threats to privacy interests more palpable than mere possibilities,” Department of the Air Force v. Bose, 425 U.S. 352, 380 n. 19, 96 S.Ct. 1592, 1608 n. 19, 48 L.Ed.2d 11 (1976), and that courts “may properly discount [the] probability” of invasion of privacy in light of attendant circumstances, id. at 380, 96 S.Ct. at 1608. In the present case, even if each of the drugs listed was prescribable for only a single disease, that alone would not establish any more than a possibility that the presence of the drug on the inventory would be, as the district court put it, “the ‘missing link’ for a person with fragmented knowledge” to identify the disease suffered by a particular Beneficiary. Jt.App. at 134-35. The records in question list only (1) the name of each prescription drug shipped to OAP; (2) the quantity of shipment; (3) the unit price; and (4) the date of shipment. Even if each drug is only prescribable for a single disease, it is fanciful to assume that without more (for example, visible and distinctive manifestations of that disease in the patient) the knowledge that someone among 600 possible recipients was probably using the drug (only probably because it might, of course, have been ordered merely to replenish inventory) would lead to the conclusion that Beneficiary X has disease Y. In short, even assuming the identifiability of each drug with a particular disease, insofar as the totality of these records is concerned, appellee has established no more than a “mere possibility” that the medical condition of a particular individual might be disclosed — which the Supreme Court has told us is not enough. The district court supported its “missing link” approach to the matter by citation to our opinion in Halperin v. CIA, 629 F.2d 144 (D.C.Cir.1980), sustaining the CIA’s denial of a FOIA request for attorney fee information on the basis of Exemptions 1 and 3: We must take into account ... that each individual piece of intelligence information, much like a piece of jigsaw puzzle, may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself. When combined with other small leads, the amount of a legal fee could well prove useful for identifying a covert transaction. Id. at 150. But even as the world of cloak and dagger is not the world of pharmacology, the standards applicable to the exemptions at issue in Halperin, are not the same as those governing Exemption 6. Neither the Executive Order on Classification of Documents, which gives content to Exemption 1, Exec.Order No. 12,356, 47 Fed.Reg. 14,874 (1982), revoking Exec.Order No. 12,-065, 3 C.F.R. 1978 Comp, at 190 (1979), nor the statutory responsibility of the Director of Central Intelligence to “protect[] * * * sources and methods,” which was the basis for the Exemption 3 claim in Halperin, 50 U.S.C. § 403(dX3) (1976), contains language as categorical as Exemption 6, which requires a showing that “disclosure * * * would constitute a clearly unwarranted invasion of personal privacy” (emphasis added). We need not discuss how probable identification of the subject need be in order to establish more than a “mere possibility” and render Exemption 6 applicable. It suffices to say that, if language has any meaning, merely being one of 600 persons who are entitled to use pharmacological services that have probably prescribed a particular drug that is exclusively used for a single ailment is not enough. Although it seems to us that the issue we have just been discussing relates simply to invasion of privacy vel non, and does not implicate the Exemption’s further requirement that the invasion be “clearly unwarranted,” the Supreme Court in Department of the Air Force v. Rose, supra, appeared to take a different approach: [T]he argument [that the documents were entitled to the Exemption if there was a possibility of identification] implies that Congress barred disclosure in any case in which the conclusion could not be guaranteed that disclosure would not trigger recollection of identity in any person whatever. But this ignores Congress’ limitation of the exemption to cases of “clearly unwarranted” invasions of personal privacy. 425 U.S. at 378-79, 96 S.Ct. at 1607 (footnotes omitted). On the assumption that the “clearly unwarranted” element of the Exemption has some bearing, it may be noted that public interests are asserted to warrant the grant of this journalistic FOIA request. Specifically, appellant points to a public interest in knowing, among other things, the quantities of prescription drugs made available cost-free to Beneficiaries; the extent to which OAP prescribes namebrand drugs as opposed to presumably less costly “generic” drugs; and whether OAP prescribes drugs which the Food and Drug Administration has found to lack evidence of effectiveness for the recommended use. Appellant’s Brief at 22-23. To the extent the degree of “warrant” for the alleged intrusion is germane to this case, it seems to us appellant’s position is a relatively strong one. Providing information “material for monitoring the Government’s activities” is the “core purpose” of the FOIA. Ditlow v. Shultz, 517 F.2d 166, 172 & n. 24 (D.C.Cir. 1975). B. Increased Speculation as an Invasion of Privacy We come, then, to the district court’s alternate holding that, even absent any likelihood of identifying the medical condition of a particular individual, the mere speculation concerning individuals’ medical conditions that release of the records would produce constituted a clearly unwarranted invasion of privacy. The text of the statute, its legislative history, and the Supreme Court’s interpretation of it are united in contradicting such an approach. The text of the Exemption does not apply to an invasion of privacy produced as a secondary effect of the release. It may be predictable that the release of certain agency information will cause the agency head to be bothered at home with irate phone calls, but that, like consequent public speculation, is not the sort of invasion of privacy that can support an Exemption 6 claim. According to the statute, it is the very “production” of the documents which must “constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Obviously, that can only occur when the documents disclose information attributable to an individual. The legislative history of Exemption 6 is clear on the point. As the House Report said: “The exemption is ... intended to cover detailed Government records on an individual which can be identified as applying to that individual .... ” H.R.Rep. No. 1497, 89th Cong., 2d Sess. 11 (1966), U.S.Code Cong. & Admin.News 1966, pp. 2418, 2428. Finally, the “speculation” approach is incompatible with the Supreme Court’s opinion in Department of the Air Force v. Rose, supra. There the Court refused to give blanket exemption under Exemption 6 to case summaries of honor and ethics hearings at the United States Air Force Academy, with personal references and other identifying information deleted. Despite facts that suggested a likelihood of “speculation” among former students or instructors at the Academy as to who the honor code violators might have been, the Court did not even mention that factor, and discussed only the likelihood of actual identification. See 425 U.S. at 378-82, 96 S.Ct. at 1607-08. Ill For the reasons set forth above, we set aside the summary judgment granted to appellee. We do not, however, direct the entry of judgment for appellant, resulting in immediate release of the records, since our consideration, like the district court’s, has gone only to the application of the Exemption in gross. It is conceivable that, as to some segregable portions of the records, appellee can establish more than a “mere possibility” that the medical condition of a particular individual will be disclosed. (As we have noted above, establishing that a particular drug is used exclusively or primarily in the treatment of a single disease will not alone suffice.) Appellee should have the opportunity to make the necessary showing, on the basis of the court’s actual review of the records themselves. See Rose v. Department of the Air Force, 495 F.2d 261 (2d Cir.1974), aff’d, 425 U.S. 352,96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). Finally, we address a procedural objection of appellant that will almost certainly be raised again on remand. He claims that the district court’s ex parte, in camera examination of Dr. Cary’s affidavit, which listed examples of drugs requisitioned by the OAP and the condition for which each is “widely” or “almost exclusively” prescribed, “deprived [him] of a meaningful chance to oppose the Navy’s summary judgment motion.” Appellant’s Brief at 26. The Freedom of Information Act specifically authorizes the courts to “examine the contents of ... agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions .... ” 5 U.S.C. § 552(a)(4)(B). The in camera presentation in the present case consisted not of “the contents of ... agency records” but of factual assertions and expert opinion relating to those contents — a greater distortion of normal judicial process, since it combines the element of secrecy with the element of one-sided, ex parte presentation. However, the statutory authorization for in camera examination of records was merely a confirmation of (and perhaps encouragement to the use of) a power that the courts already possessed. See EPA v. Mink, 410 U.S. 73, 93, 93 S.Ct. 827, 839, 35 L.Ed.2d 119 (1973); Dennis v. United States, 384 U.S. 855, 874, 86 S.Ct. 1840, 1851, 16 L.Ed.2d 973 (1966). And like that power, the receipt of in camera affidavits is also, when necessary, “part of a trial judge’s procedural arsenal,” United States v. Southard, 700 F.2d 1, 11 (1st Cir.1983). This court has approved the procedure in FOIA cases, most frequently in connection with an agency’s assertion of Exemption 1, relating to classified materials, see, e.g., Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C.Cir.1976), but on occasion with regard to the assertion of other exemptions as well, see, e.g, Campbell v. HHS, 682 F.2d 256, 265 (D.C.Cir.1982) (Exemption 7(A), relating to investigatory records whose disclosure would “interfere with enforcement proceedings”); Playboy Enterprises, Inc. v. Department of Justice, 677 F.2d 931, 935 (D.C.Cir.1982) (Exemption 5, the so-called “deliberative process privilege”). Indeed, in a case involving the very exemption at issue here, we have reversed the district court for its refusal to receive an in camera affidavit explaining why disclosure would impair personal privacy. Public Citizen Health Research Group v. Department of Labor, 591 F.2d 808 (D.C.Cir.1978). See also Lame v. Department of Justice, 654 F.2d 917, 928-29 (3d Cir.1981) (in camera affidavit approved with regard to that portion of Exemption 7, the investigatory records exemption, relating to “clearly unwarranted invasion of personal privacy”). Appellant suggests that, even if receipt of the in camera affidavit was proper, at least the court should have permitted his counsel and his expert, Dr. Wolfe, to examine the affidavit and respond to it under appropriate protective order restricting further disclosure. Appellant’s Brief at 26. We have said elsewhere that “[n]ormally the denial of ... access [to in camera submissions] is completely within the discretion of the court.” Yeager v. DEA, 678 F.2d 315, 324 (D.C.Cir.1982). Where, however,' the issue is access by counsel and experts alone, in the context of FOIA litigation, we think that discretion is significantly constrained. Although dictum in one of our FOIA cases refers to the court’s “inherent discretionary power” to adopt such a procedure of selective access, see Hayden v. National Security Agency, 608 F.2d 1381, 1386 (D.C.Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d 790 (1980), the decisions of this court cited for that proposition all involved the assertion of executive privilege. See United States v. American Telephone & Telegraph Co., 567 F.2d 121, 131-34 (D.C.Cir.1977); Black v. Sheraton Corp., 564 F.2d 531, 544-45 (D.C.Cir.1977); Dellums v. Powell, 561 F.2d 242, 250 (D.C.Cir.), cert. denied, 434 U.S. 880, 98 S.Ct. 234, 54 L.Ed.2d 160 (1977); Halkin v. Helms, 598 F.2d 1, 7 (D.C.Cir.1978) (dictum). That class of case is quite different from FOIA litigation. Ordinarily, it involves pretrial discovery demands, so that what is disclosed to selected agents of the demanding party is merely data that may be useful as evidence or as a lead to further investigation— not information which it is the very object of the law suit to obtain. Even in that context, the procedure (as applied to access by counsel) strains the attorney-client relationship, but at least it does not put the attorney in the position of knowing, and being unable to disclose to his principal, the very data he has been retained to acquire. The relative volume of FOIA litigation also counsels against use of the procedure in the FOIA context. Adding to the usual FOIA mechanisms of public affidavits and undisclosed in camera exhibits (including the requested records and ex parte affidavits) a third mechanism of in camera exhibits disclosed only to counsel and experts, would introduce additional complexity and uncertainty into a field where simplicity and assurance are required. We are dealing here not with an occasional, isolated need for access to secret information, but with a regular feature of FOIA litigation and hence a proposed practice which, if approved, will color .public perception of the security of confidential information in government files. Citizens whose personal privacy or commercial data is at issue, foreign governments that may have provided secret information to our Executive Branch, and, for that matter, the officials of our Executive Branch itself, will hardly have the assurance which it is the purpose of the FOIA exemptions to provide if hostile counsel and experts can ordinarily obtain access to assertedly exempt information. Even assuming that the trial courts which permit such access will invariably be correct in their prior assessment that the favored counsel and experts are reliable and that violations of the protective order will be detectable, this is a matter in which appearance is as important as reality. The appearance, overall, will be that even in the process of sustaining an exemption the secrets to which it pertains will be compromised. Therefore, when an affidavit disclosing information assertedly exempt from production under the FOIA is proffered, we think that the district court — at least as a general matter — is limited to the stark choice of receiving it ex parte and in camera, or receiving it not at all. We have said that the former course should be chosen only “ ‘where absolutely necessary.’ ” Salisbury v. United States, 690 F.2d 966, 973 n. 3 (D.C.Cir.1982), quoting from Allen v. CIA, 636 F.2d 1287, 1298 n. 63 (D.C.Cir.1980). That necessity exists when (1) the validity of the government’s assertion of exemption cannot be evaluated without information beyond that contained in the public affidavits and in the records themselves, and (2) public disclosure of that information would compromise the secrecy asserted. There is no basis for setting aside the district court’s application of that test to the facts of the present case. Evaluation of the claim that the name of the drug would disclose the disease for which it was prescribed would be impossible without further explanation; and that explanation would of necessity disclose the name of the drug itself. We cannot pretend to be comfortable in endorsing regular use of ex parte procedures — a practice out of accord with normal usage under our common law tradition, in which the judge functions as the impartial arbiter of a dispute fully argued by both parties before him. But FOIA cases as a class present an unusual problem that demands an unusual solution: One party knows the contents of the withheld records while the other does not; and the courts have been charged with the responsibility of deciding the dispute without altering that unequal condition, since that would involve disclosing the very material sought to be kept secret. The task can often not be performed by proceeding in the traditional fashion, so that what is a rarity among our cases generally must become a commonplace in this unique field. IV We are aware of the interest in this matter on the part of the Congress, reflected in the record by correspondence to the Navy from the Clerk of the House and the Secretary of the Senate. We are also aware that the principles which we have directed the district court to apply on remand in order to determine which drugs, if any, may be deleted from the list, will not satisfy all of the justifiable concerns that some Members of Congress may have. For them, erroneous or speculative attribution of a medical condition is just as bad as — or even worse than — the genuine identifiability which alone triggers the protection of Exemption 6. We might be able to protect this concern if the Supreme Court had accepted the Government’s argument in Department of the Air Force v. Rose, supra, that the clause “the disclosure of which would constitute a clearly unwarranted invasion of personal privacy” modifies only the last of Exemption 6’s three categories of files (“personnel and medical files and similar files”). Such an interpretation was, however, rejected, and the Court specifically endorsed the proposition that “ ‘[i]t is only the identifying connection to the individual that casts the personnel, medical, and similar files within the protection of [the] sixth exemption.’ ” 425 U.S. at 371, 96 S.Ct. at 1603 (citation omitted). Speculation fueled by the release of medical files can of course affect persons other than Members of Congress, and to the extent it is a problem it suggests the need for a more general revision of Exemption 6. Absent such revision, however, existing Supreme Court law cannot be stretched to afford protection in the present case. For the reasons set forth, the district court judgment is reversed and the case remanded for further proceedings in accordance with this opinion. So ordered. . United States v. American Telephone & Telegraph Co., supra, was an exception. There, staff of and counsel for a congressional subcommittee were given access to documents which would disclose the identity of the targets of national security wiretaps — which was substantially the information that was the object of the subcommittee subpoena which the Executive sought to prevent AT & T from observing. As our opinion noted, 567 F.2d at 134, the circumstance that the party seeking access was a body of the legislature pursuing public ends made the case unique. A similar situation existed in Nixon v. Sirica, 487 F.2d 700, 721 (D.C.Cir.1973), where the Special Prosecutor, acting on behalf of a grand jury, was given access to the contested documents. . Though the issue is not presented in the present case, what we have said regarding access of counsel and experts to affidavits holds true as well for their participating in in camera inspection of the records themselves. Indeed, in the latter context the case for their participation is even weaker, since they are not countering an in camera presentation of fact or opinion by the other side. Also not presented in the present case is access to in camera materials not by selected agents of the demanding party but by the party himself. The Supreme Court approved such a procedure in an executive privilege case, where the demanding party was a public official (and where the demanding party and his counsel were one and the same). See United States v. Nixon, 418 U.S. 683, 715 n. 21, 94 S.Ct. 3090, 3111 n. 21, 41 L.Ed.2d 1039 (1974). Whatever may be the permissible extension of that decision to other executive privilege cases, such a practice in the FOIA context — effectively giving the plaintiff what he seeks — would seem even more objectionable than the more limited access here at issue. We have expressed elsewhere our doubt that the courts can award only to particular plaintiffs information which the FOIA requires to be made available (if at all) “to the public,” 5 U.S.C. § 552. See Ditlow v. Shultz, supra, 517 F.2d at 171-72; but see Getman v. NLRB, 450 F.2d 670, 677 n. 24 (D.C.Cir.1971). As the Fifth Circuit has said, “if anyone can have the desired information everyone can.” Cooper v. Department of the Navy, 558 F.2d 274, 276 (5th Cir.1977), reh’g granted in part and denied in part, 594 F.2d 484, cert. denied, 444 U.S. 926, 100 S.Ct. 266, 6 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_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. Harry G. FROMBERG, as Trustee of Grand National Pictures, Inc., Appellant, v. James A. DAVIDSON, as Trustee of Educational Pictures, Inc., Appellee. No. 187. Circuit Court of Appeals, Second Circuit. Feb. 17, 1941. Julius M. Arnstein, of New York City, for appellant. A. Walter Socolow, of New York City, for appellee. Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges. PER CURIAM. Order affirmed on opinion below, In re Educational Pictures, 34 F.Supp. 807. 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_summary	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment 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". In re U. S. FINANCIAL SECURITIES LITIGATION. Michael FABRIKANT and Milton Binswanger, Petitioners-Appellants, v. BACHE & CO., Basle Securities Corp. et al., Respondents/Appellees. FIRST NATIONAL BANK OF TOLEDO, etc. et al., Petitioners/Appellants, v. R. H. WALTER, J. B. Halverson, R. G. Steward et al., Respondents/Appellees. MELLON BANK, N. A., (“Mellon”) et al., Petitioners/Appellants, v. U. S. FINANCIAL, Salmon Bros, et al., Respondents/Appellees. Petition of Charles D. PRUTZMAN, Jr. Petition of UNION BANK. Petition of TOUCHE ROSS AND COMPANY. Petition of Angelo ADAMS. Petition of BROWN, Wood, Ivey, Mitchell & Petty. Petition of SOCIETE GENERALE DE BANQUE, RENTINVEST, et al. COLONIAL GROWTH SHARES, INC., Petitioner/Appellant, v. TOUCHE ROSS & CO. et al., Respondents/Appellees. Michael FABRIKANT and Milton Binswanger, Plaintiffs/Appellees, v. Philip HAMPTON, Philip D. Reed et al., Defendants/Appellants. Michael FABRIKANT and Milton Biswanger, Plaintiff/Appellees, v. John WEINBERG, etc. et al., Defendants/Appellants. Nos. 77-2993 to 77-2995, 77-3063, 77-3064, 77-3093, 77-3099, 77-3121, 77-3122, 77-3333, 77-3344 and 77-3345. United States Court of Appeals, Ninth Circuit. Dec. 10, 1979. Mitchell L. Lathrop, Los Angeles, Cal., for Richard Gant & V. Frank Asaro. Charles D. Siegal, Los Angeles, Cal., for Charles D. Prutzman. James W. Colbert, III, Los Angeles, Cal., for Union Bank. Robert F. Brown, for Crosby, Fox, et al. Stephen D. Miller, Beverly Hills, Cal., for Angelo Adams. James M. Shaughnessy, New York City, for Societe Generale de Banque etc. J. Asa Rountree, New York City, for Philip Hampton, Philip D. Reed, et al. Winthrop J. Allegaert, New York City, for Colonial Growth Shares, etc. Irwin F. Woodland, Los Angeles, Cal., for Touche Ross & Co. Before KILKENNY and ANDERSON, Circuit Judges, and BYRNE, District Judge. The Honorable William M. Byrne, United States District Judge for the Central District of California, sitting by designation. J. BLAINE ANDERSON, Circuit Judge: This appeal presents a challenge which strikes at the heart of this country’s system of jurisprudence. Simply stated, we are asked to decide whether there is a “complexity” exception to the Seventh Amendment right to a jury trial in civil cases. We answer this question in the negative and reverse the decision of the district court. I. PROCEEDINGS BELOW U.S. Financial (USF) was a high-flying real estate development company which began losing altitude in 1972 and finally crashed in 1973. This spawned an abundance of lawsuits. The present case concerns twenty separate suits filed by a variety of plaintiffs who were on the most part purchasers or representatives of purchasers of the different stock and debenture offerings made by USF. The various defendants include USF, certain closely-related companies, assorted USF insiders, underwriters, outside attorneys and accountants. All of the lawsuits present common issues relating to the allegations of federal and state securities law violations, common law fraud and negligence. The different lawsuits were filed in federal court for the Southern District of California and four other federal judicial districts. The Judicial Panel on Multidistrict Litigation found that the prevalence of common issues and allegations justified transfer of the several cases to the Southern District of California for coordinated or consolidated pretrial proceedings. In re U. S. Financial Securities Litigation, 385 F.Supp. 586 (Jud.Pan.Mult.Lit.1974); In re U. S. Financial Securities Litigation, 375 F.Supp. 1403 (Jud.Pan.Mult.Lit.1974). On its own motion, the court below struck all demands for jury trial in these consolidated cases. Judge Turrentine reasoned that the legal and factual issues were of such complexity as to be beyond the practical abilities and limitations of a jury. In re U. S. Financial Securities Litigation, 75 F.R.D. 702 (S.D.Cal.1977). Recognizing the importance of the jury trial question, it was certified for interlocutory appeal under 28 U.S.C. § 1292(b). By an order filed on August 29, 1977, this court granted permission to appeal. II. BACKGROUND In order to place this case and the question presented by it in perspective, its background is developed more fully than is normally necessary. Recently, there has been considerable controversy surrounding the Seventh Amendment’s guarantee of civil jury trial and the abilities of jurors as fact-finders in complex lawsuits. We therefore briefly sketch the history of USF, the status of the present litigation, the analysis used by the court below, and that used by the other federal district courts which have lately addressed the same issue. 1. History of USF USF grew slowly for the first three years after it was incorporated in 1962 as West Coast Financial. Initially, it was primarily engaged in small accounts receivable financing. In 1964 the USF name was adopted and the company expanded into real estate financing and title insurance. USF also made its first public stock offering and filed a registration statement with the SEC in 1964. USF’s growth and expansion began in earnest when R. H. Walter was appointed president in 1966. Walter brought his two real estate development companies and the joint venture concept with him to USF. That same year, USF formed U.S. Mortgage as a subsidiary to make long-term loans on real estate projects. In 1967, USF acquired Capital Leasing Company. It also formed another subsidiary, U. S. Realty, as a real estate sales and management company. And in 1968, USF sold 250,000 shares of common stock in an interstate offering at $10.75 per share. During 1969 it continued to expand its operations in the real estate field. Twenty million dollars was raised from a public offering of 15,000 units, each consisting of ten shares of common stock and one 5%% convertible subordinated debenture with a face value of $1,000, due in 1989. USF organized and acquired additional title insurance companies, and expanded its real estate operations with the acquisition of San Carlos Construction Co. and Due and Elliott Development Company. Additionally, U.S. Guaranty Capital was formed to make interim construction loans. USF continued its capital expansion in 1970 with another securities offering through U. S. Financial Overseas, N.V., a wholly-owned Netherland Antilles subsidiary of USF. The offering was for $12.5 million in 9% debentures, due 1982, guaranteed by USF, and which came with attached warrants for the purchase of ten shares of USF common stock. During 1970 USF acquired three more companies, Development Creators, Inc., an architectural firm, Mosser Construction, Inc., an Ohio corporation engaged in heavy construction, and Shelton Corporation, a Hawaiian real estate company. In keeping with its rapid growth, USF common stock was listed on the New York Stock Exchange in December of 1970. USF’s capital growth continued in 1971 with the offering of $35 million of 5V¿% convertible subordinated debentures in this country. Unfortunately for its investors, 1971 was the last year of USF’s phenomenal growth. USF’s reported assets had risen from $338,795 in 1962 to more than $310 million in 1971, its revenues from $8,876 to more than $180 million, and its earnings from $1,215 to over $6 million. The price of USF common stock had also increased correspondingly. From a selling price of less than $5.00 per share it soared to $92.00 per share in 1969, and following a three for two split in 1969 it had risen to a price of $57.00 per share in 1971. USF was a vertically-integrated company at the time of its downfall. It was in the business of developing, constructing, operating, marketing, and financing real estate projects, individually and as a “participant” in joint ventures. The construction and financing of the real estate developments were controlled through its subsidiary corporations. These various operations were further supplemented by USF’s wholly-owned title insurance and casualty insurance companies. Despite some problems in 1971, the collapse did not begin until 1972 after the SEC had begun investigating the USF operations. In late 1972 the SEC suspended trading in USF securities altogether. At this time USF had approximately 4.5 million outstanding shares of common stock. In 1973, USF began a Chapter XI arrangement proceeding in bankruptcy which has since been converted into a Chapter X reorganization proceeding. 2. Status of the Present Litigation On June 24, 1977, when the district court entered its order striking the demands for jury trial, there were eighteen consolidated cases. Subsequently, certain plaintiffs brought additional claims, increasing the total number of actions to twenty. However, several of the cases have been settled and dismissed since the district court’s order. This court has been advised that there are ten cases remaining, four of which, while still pending, have never been, and are not now, being actively pursued. Thus, there are six remaining active cases. The appellants maintain that these six actions actually amount to only three separate prosecutions. The three remaining cases brought by Societe Generale De Banque, they contend, allege a single continuing scheme to defraud, causing damages to a class of debenture purchasers, by Touche Ross & Co., Union Bank, and Brown, Wood. Liability is predicated upon violations of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), Rule 10b-5, 17 C.F.R. § 240.10b-5, and also for common law fraud and negligence. The appellants contend that the two separate actions brought by Colonial Growth, and the one action by Bank of Toledo, are all based upon the same continuing scheme to defraud which forms the basis of the So-ciete Generale De Banque actions. The appellees claim that the dismissals have done little, if anything, to reduce the complexity of the issues, the volume of the evidence, or the estimated length of trial. Furthermore, they contend that the nature and scope of the legal and factual issues remain basically the same as they were before any settlements were reached. The trier of fact will still have to decipher the financial statements and accounting procedures of USF for the period from 1966 through 1972. Since differing degrees of difficulty and complexity would not alter our ultimate decision, we accept the appel-lees’ representations. 3. District Court Decision In a carefully thought out opinion the district court presents a persuasive argument as to why there should be an exception to the Seventh Amendment right to jury trial in this type of case. The practical difficulties created by the size and scope of these consolidated cases are vividly illustrated. Nevertheless, such practical considerations diminish in importance when they come in conflict with the constitutional right to a jury in civil cases. The court, under the compulsion of the Seventh Amendment guarantee, acknowledged that the right to jury trial was dependent upon the legal or equitable classification of the case. After quoting several English and American court decisions with approval for their disparaging remarks about the abilities of juries, the court then reasoned somewhat as follows: If this case falls within equity jurisdiction, then there is no right to jury trial. Equity has jurisdiction over cases in which there is no adequate remedy at law. The inability of juries to handle complex cases and render a fair decision means that there is no adequate remedy at law. Therefore, complex cases are within equity jurisdiction and there exists no right to jury trial in them. Support for this reasoning is drawn from Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962), and Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970). In Dairy Queen, the court made the observation that a plaintiff may bring an action for an equitable accounting only when it can be shown “. . . that the ‘accounts between the parties’ are of such a ‘complicated nature’ that only a court of equity can satisfactorily unravel them.” 369 U.S. at 478, 82 S.Ct. at 900. And, in the Ross decision the court noted that one of the factors used in determining whether a case was legal or equitable was “. . . the practical abilities and limitations of juries.” 396 U.S. at 538, n. 10, 90 S.Ct. at 738, n.10 (referred to as Ross footnote). The decision then takes a quantum leap and establishes some general guidelines as to when the “complexity exception” will deny to a litigant his constitutional right to a civil jury trial. These are: “First, although mere complexity is not enough, complicated accounting problems are not generally amenable to jury resolution. Although such problems often arise only during the damages portion of a trial, they sometimes are present during the liability portion as well only a case in which such a special master could not assist the jury meaningfully may be subject to removal from the province of the jury because of complex accounts. “Second, the jury members must be capable of understanding and of dealing rationally with the issues of the case. “And third, an unusually long trial may make extraordinary demands upon a jury which would make it difficult for the jurors to function effectively throughout the trial.” 75 F.R.D. at 711. The court found the first two guidelines satisfied based on its conclusion that a jury was not capable of either understanding or rationally reconciling the mass of data, the variety of legal theories, and the number of parties involved in the case. Since the trial time was estimated at two years, the court concluded that it would be very difficult to find a jury which could sit for that long. 4. Other District Courts Recently, five other district courts have also faced the question of whether jury trial should be denied in complex cases. The focal point of the various inquiries has centered around the previously-mentioned footnote from the Ross decision and its consideration of the practical abilities and limitations of juries. Agreeing with the court below, thus far three of the other five courts have also found a “complexity exception” to the Seventh Amendment. First in this line of decisions was the case of In re Boise Cascade Securities Litigation, 420 F.Supp. 99 (W.D.Wash.1976). The district court struck the demands for a jury trial because of the complicated nature of the accounting and securities issues. The order was based upon the Ross footnote which the court found to be of “constitutional dimensions.” And the court also relied in part upon the due process clause which it found required fairness in decision-making, something which a jury was incapable of doing in a case of Boise Cascade’s complexity. The plaintiff in Radial Lip Mach., Inc., v. Intern. Carbide Corp., 76 F.R.D. 224 (N.D. 111.1977), moved to strike the defendants’ demand for jury trial. Radial Lip was a complicated trademark and patent infringement case with claims and counterclaims seeking a wide variety of legal and equitable relief. Faced with the argument based upon the Ross footnote, the court reasoned that this did not mean that the practical abilities and limitations of juries operated as an exception to the Seventh Amendment. The court also rejected the contention that the case was of such extraordinary complexity that only a court of equity could unravel the issues. The court, in Bernstein v. Universal Pictures, Inc., 79 F.R.D. 59 (S.D.N.Y.1978), on its own motion, struck the plaintiffs’ demand for jury trial. Various composers and lyricists brought Bernstein as a class action, alleging various antitrust violations. The court based its decision on what were viewed as the court’s traditional equity powers, which were found to include “ . . . the power to strike a jury demand when to allow it to stand would work an injustice.” 79 F.R.D. at 66. Relying principally on the Ross footnote, the court concluded that “ . . . the sheer size of the litigation and the complexity of the relationships among the parties render it as a whole beyond the ability and competence of any jury to understand and decide with rationality.” 79 F.R.D. at 70. In another decision from a district court in this circuit, an order was entered striking a jury demand. ILC Peripherals v. International Business Machines, 458 F.Supp. 423 (N.D.Cal.1978). ILC Peripherals was a complicated antitrust case where the court, after dismissing a hopelessly deadlocked jury, entered a directed verdict in favor of the defendant. As part of its decision, the court entered an order striking the jury demand in the event of a remand for a retrial. The court relied principally on the Ross footnote: “It is the third factor of the equation, the practical abilities and limitations of jurors, that causes the court to conclude that the issues in this case must be considered to be equitable.” 458 F.Supp. at 445. Where the issues are beyond the abilities of a jury, the court reasoned, the legal remedy becomes inadequate and equity jurisdiction attaches. Unlike any of the other district court decisions on this issue, the ILC Peripherals court based its decision upon “its own observations during the five month trial.” 458 F.Supp. at 447. The most exhaustive analysis of the jury issue by any court was the recent opinion, In re: Japanese Electronic Products Antitrust Litigation, 478 F.Supp. 889 (E.D.Pa. 1979). In the consolidated cases which were described as “so massive as to make them unique in the annals of United States antitrust and trade regulation litigation,” the district court refused to strike the plaintiffs’ jury demands. III. DISCUSSION Analytically, we are faced with three different arguments as to why the Seventh Amendment right should not apply to this class of complex civil cases. The first approach follows the historical legal-equitable test. Complex commercial litigation, such as the present case, is analogized to an “equitable accounting,” where there was no right to jury trial. The second argument, based upon the Ross footnote, asks the court to adopt a new interpretation of the Seventh Amendment and examine the practical abilities and limitations of juries. The final argument claims that due process requires trial by the court when a jury cannot comprehend the issues and evidence in the case. After a short explanation of the historical background of the Seventh Amendment, we will address each of these arguments. 1. Historical Background Throughout this country’s history, the Seventh Amendment and the right it is designed to guarantee, has engendered neither the controversy nor the litigation that has surrounded some of the other nine Amendments forming the Bill of Rights. Nevertheless, the importance of the civil right to jury trial should not be underestimated. The right to jury trial arrived on the shores of this country with the first English colonists. The original Jamestown charter guaranteed all the rights of Englishmen to the colonizers, including trial by jury. During the next two hundred years of development in colonial America, the right to jury trial continued to expand. The principles embodied in jury trials found a receptive atmosphere in the egalitarian principles of the colonists. By 1776, the right to jury trial existed, in one form or another, in each one of the thirteen colonies. In fact, one of the primary grievances against England at the time of the Declaration of Independence was the restriction on the right to jury trial. Colonial administrators had been circumventing the right by trying various cases, both criminal and civil, in the vice-admiralty courts. When the Constitution was finally drafted, there was limited debate as to whether the civil right to jury trial should be included. The lack of this guarantee formed one of the primary arguments against the adoption of the new Constitution. The right to jury trial in civil cases, embodied in the Seventh Amendment, then became one of the chief reasons supporting the adoption of the Bill of Rights. This does not mean that juries were not without their detractors. The Federalists generally opposed juries and the Seventh Amendment. Since their arguments did not carry the day, we do not believe that we should give much credence to the Federalists’ opinions about the abilities of juries as suggested on appeal. The preceding brief historical sketch serves to illustrate the significance of the civil right to a jury. Additionally, certain general considerations pertaining to the nature and construction of the Seventh Amendment further dramatize the importance attached to it. In Jacob v. City of New York, 315 U.S. 752, 62 S.Ct. 854, 86 L.Ed. 1166 (1942), the Supreme Court noted that: “The right of jury trial in civil cases at common law is a basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment. A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded by the courts.” 315 U.S. at 752-753, 62 S.Ct. at 854. The Court has also explained that: “Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to jury trial should be scrutinized with the utmost care.” Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed.2d 603 (1935), quoted with approval in Beacon Theatres v. West-over, 359 U.S. 500, 501, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). With these general considerations in mind, we turn to the question of whether the Seventh Amendment protects the right to jury trial in the present case. 2. Historical Approach Whenever a court is called upon to interpret the Constitution, its analysis must begin with the language of the constitutional provision which it is called upon to interpret. Initially, we must therefore look to the Seventh Amendment which provides as follows: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of common law.” The surface simplicity of this provision is beguiling for the exact scope of its application was unclear even when it was first adopted. The Seventh Amendment “preserved” the right to jury trial in all suits “at common law.” The basic purpose behind it was to maintain the right to jury trial as it existed when the Amendment as adopted in 1791. Because the Amendment speaks in terms of preservation, an historical test has been employed to determine its application. And since it refers to the common law, reference is made to the English practice as the source of this country’s common law. The classic explanation of what was meant by “common law” was made by Justice Story almost one hundred fifty years ago: “The phrase ‘common law,’ found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence. ... By common law they meant what the Constitution denominated in the third article ‘law;’ not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered; or where, as in the admiralty, a mixture of public law, and of maritime law and equity was often found in the same suit. . In a just sense, the amendment, then, may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights.” Parsons v. Bedford, 3 Pet. 433, 28 U.S. 433, 446-447, 7 L.Ed. 732 (1830). The right to jury trial does not depend on the character of the overall action but instead is determined by the nature of the issue to be tried. Ross v. Bernhard, 396 U.S. 531, 538, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970). Thus, there is a right to jury trial when the issue presented in a case would have been heard at common law. And conversely, there is no right when the issue presented in a case, viewed historically, would have been tried in the courts of equity, or in some other manner without a jury. Thus, the basic consideration in determining when the right to jury trial applies depends on the ancient distinction between law and equity. Since the merger of law and equity in 1938, some have stated that this is the only area where the distinction has any further significance. Groome v. Steward, 79 U.S.App.D.C. 50, 142 F.2d 756 (D.C.Cir.1944). Although the primary test depends upon the distinction between law and equity, courts are not rigidly bound to the procedural rules and forms of action as they existed in 1791. Several procedural devices developed and expanded since 1791 have infringed upon the civil jury’s historic role; nevertheless, they have been found consistent with the Seventh Amendment. Conversely, other procedural developments have limited the scope of equity jurisdiction, and expanded the right to jury trial. Additionally, it is too obvious to be doubted that the constitutional right to jury trial attaches to statutory causes of action as long as they involve legal rights and remedies. Thus, the historical test is not static, rather it is more in the nature of an historical inquiry, an inquiry which is guided by the statutory expansion of legal rights, and the procedural developments which have both expanded and retracted the role of the civil jury. Returning to the present case, the appel-lees do not seriously contest the fact that the issues presented here are basically of a legal nature. The remedy which is sought in all of the consolidated cases is damages, which is the traditional form of relief granted by the common law courts. The substantive rights asserted are, in part, based on the common law principle of fraud and negligence. The statutory rights under the securities laws (principally Section 10(b) of the Securities Exchange Act of 1934 and the rules and regulations which form its progeny) merely create new legal duties. An action seeking damages from a breach of any of these statutory duties is analogous to a tort action at common law. From this it is clear that the present cases, where legal relief is sought and legal rights are asserted, involve suits either at common law or analogous to common law actions where the Seventh Amendment preserves the right to jury trial. Nevertheless, the appellees claim that due to the complexity of the present case, it is analogous to an action for an equitable accounting where historically there has been no right to a jury. This argument misses the mark. It attempts to have the legal or equitable nature of the case characterized as a whole rather than by examining the nature of the issues involved. As previously pointed out, the issues presented here are of a legal nature. The fact that resolution of the issues will involve an examination of USF’s accounts, and accounting procedures, cannot transform the case into an action for an equitable accounting. The Supreme Court rejected a similar argument in Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962). The plaintiff there had brought an action for an injunction restraining an alleged patent infringement and for an accounting for profits lost through the infringement. The Court decided that the plaintiff’s characterization of the case as an action for an equitable accounting was of no consequence. The true basis of the action, the Court found, was on a “debt allegedly due under a contract . . [or] for damages . . . .” 369 U.S. at 477, 82 S.Ct. at 899. The opinion went on to note that in view of the ability of masters to assist the jury in complicated cases, it would be extremely difficult to satisfy one of the prerequisites for bringing an equitable accounting; that is, a showing that the accounts between the parties are of such a complicated nature that only a court of equity could unravel them. A suit for an “accounting” was a narrow and little-used ground for establishing equitable jurisdiction. The present actions do not involve any claims for an equitable accounting. The questions in this case are of a legal character traditionally heard at common law. The fact that a case may involve accounting principles cannot magically convert the legal causes of action into an action for an equitable accounting. 3. The Ross Test As we discussed earlier in this opinion, the Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733,24 L.Ed.2d 729 (1970), decision has been interpreted by some courts and commentators as establishing a new test for determining the right to jury trial. The court below held, and the appellees argue, that Ross establishes a test under which a court must inquire into the practical abilities and limitations of juries in resolving the Seventh Amendment question. We do not believe that Ross may be read as establishing a new test for determining when the Seventh Amendment applies. In Ross, the plaintiffs had brought a stockholders’ derivative suit against the directors of an investment company and the company’s brokers. The complaint alleged statutory violations of the Investment Company Act of 1940, breach of fiduciary duties, and requested that the defendants return their profits to the company. Despite the fact that stockholders’ derivative suits were historically only recognized in equity, the Court held that “ . . . the right to jury trial attaches to those issues in derivative actions as to which the corporation, if it had been suing in its own right, would have been entitled to a jury.” 396 U.S. at 532-533, 90 S.Ct. at 735. The Court viewed the prior rule which only allowed derivative suits to be brought in equity as merely a procedural obstacle which was “destroyed” by the merger of law and equity under the Federal Rules of Civil Procedure. For our purposes here, the most important part of the Ross decision came during the discussion of Beacon Theatres v. West-over, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959), and Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962), where the court said this: “The Seventh Amendment question depends on the nature of the issue to be tried rather than the character of the overall action.10 ” 396 U.S. at 538, 90 S.Ct. at 738 This statement was explained in footnote 10 as follows: “As our cases indicate, the ‘legal’ nature of an issue is determined by considering, first, the pre-merger custom with reference to such questions; second, the remedy sought; and, third, the practical abilities and limitations of juries. Of these factors, the first, requiring extensive and possibly obtruse historical inquiry, is obviously the most difficult to apply. See James, Right to a Jury Trial in Civil Actions, 72 Yale L.J. 655 (1963).” Based on this footnote, this court is asked to employ an inquiry into the practical abilities and limitations of a jury as the test for determining the application of the Seventh Amendment. We decline this invitation for several reasons. While it is unclear as to what was meant by the inclusion of the third factor, we do not believe that it stated a rule of constitutional dimensions. After employing an historical test for almost two hundred years, it is doubtful that the Supreme Court would attempt to make such a radical departure from its prior interpretation of a constitutional provision in a footnote. Another consideration involves the two sources cited for the rule: the vague reference to “our cases” and the James article. No Supreme Court decision prior to Ross ever utilized a test even partially dependent upon an inquiry into the abilities of jurors. The only occasions even remotely resembling such an inquiry are the equitable accounting cases, the significance of which Dairy Queen limited practically to the point of extinction. The James article also fails to add any support to the use of the third factor, and, if anything, it counsels against such an inquiry. James explains that under the Constitution, judges are not free to examine what issues may be best suited for resolution by a judge or by a jury. While the Supreme Court has never specifically repudiated the third factor in the Ross footnote, it has never met with general acceptance by the courts In the Ross decision itself, the Court did not consider the practical abilities and limitations of juries. And, although the Supreme Court has considered the Seventh Amendment question in depth on at least five occasions since Ross, the abilities of juries have never been considered. The subsequent decisions have all relied upon the traditional historical test. Another factor which militates against our adoption of a new interpretation of the Seventh Amendment is our belief that it would be totally at odds with prior Seventh Amendment experience. To consider the practical abilities and limitations of juries within the context of complex cases would necessitate an examination of the whole case. However, the Seventh Amendment right has never been made dependent upon such an examination; it has always been the nature of the issue. When a case involves mainly equitable issues and only incidental legal issues, the right to jury trial still attaches to the legal issues. Under Seventh Amendment jurisprudence, an historical approach must still be followed. Thus, we conclude that Ross may not be read as establishing a functional interpretation of the Seventh Amendment. 4. Due Process The appellees argue that their rights to due process under the Fifth Amendment would be violated if this case were tried to a jury. Because of the size and magnitude of the present litigation, they reason that a jury could not reach a rational decision. According to one of the briefs, due process dictates that a jury should not be required when the facts and issues are beyond a jury’s comprehension. We assume, without deciding, that there is such a right to a “competent” fact-finder. However, we Question: Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed 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". UNITED STATES of America, Appellee, v. Larry Lee WHITE, a/k/a Felix Idleburg, Appellant. UNITED STATES of America, Appellee, v. Doris WADE a/k/a Janice Handson, Appellant. Nos. 88-2457, 88-2458. United States Court of Appeals, Eighth Circuit. Submitted June 12, 1989. Decided Nov. 28, 1989. Rehearing and Rehearing En Banc Denied in No. 88-2457 Feb. 22, 1990. Charles E. Polk, Jr., St. Louis, for White. James Delworth, St. Louis, for Wade. James K. Steitz, Asst. U.S. Atty., St. Louis, for appellee. Before BEAM, Circuit Judge, HEANEY, Senior Circuit Judge, and HANSON, Senior District Judge. The HONORABLE WILLIAM C. HANSON, Senior United States District Judge for the Northern and Southern Districts of Iowa, sitting by designation. HANSON, Senior District Judge. Appellees White and Wade appeal their conviction by jury of drug related crimes. The two were tried together in a conspiracy case before the Honorable George F. Gunn. White presents four causes for reversal. He argues that: (1) the trial court improperly allowed the use of “drug courier profiles” as substantive evidence of guilt; (2) the trial court erred in denying his motion for severance of trials; (3) the government improperly commented on his failure to testify; (4) the sentencing guidelines were unconstitutional in their application to this case. Wade joins in the challenges of the use of the “drug courier profiles” and the constitutionality of the sentencing guidelines. She also challenges the admissibility of evidence used at trial as the fruit of an illegal search. The court, for the reasons discussed below, finds all of the challenges without merit and affirms the convictions. We first address the common challenges. Constitutionality of Sentencing Guidelines Appellants challenge the constitutionality of the sentencing guidelines as: a violation of the separation of powers doctrine; a violation of their due process rights; and a violation of the presentment clause. Appellants’ separation of power challenges were rejected by the Supreme Court in Mistretta v. United States, — U.S. -, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Appellants’ due process challenges were rejected by this court in United States v. Barnerd, 887 F.2d 841, 842 (8th Cir.1989), United States v. Nunley, 873 F.2d 182, 186 (8th Cir.1989) and United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989). The presentment clause challenge was also rejected in Barnerd. At 842. Accordingly, we reject the challenges of appellants on this issue. Drug Courier Profiles Appellants’ allegations that “drug courier profiles” were used during the trial as substantive evidence of guilt raises a troublesome issue for the court because such profiles “are inherently prejudicial because of the potential they have for including innocent citizens as profiled drug couriers.” United States v. Hernandez-Cuartas, 717 F.2d 552, 555 (11th Cir.1983). As noted by the Hernandez court: Generally, the admission of this evidence is nothing more than the introduction of the investigative techniques of law enforcement officers. Every defendant has a right to be tried based on the evidence against him or her, not on the techniques utilized by law enforcement officers in investigating criminal activity. Drug courier profile evidence is nothing more than the opinion of those officers conducting an investigation. Although this information is valuable in helping drug agents to identify potential drug couriers, we denounce the use of this type of evidence as substantive evidence of a defendant’s innocence or guilt. Id. at 555. Additionally, the profile has a “chameleon-like way of adapting to any particular set of observations.” United States v. Sokolow, — U.S. -, 109 S.Ct. 1581, 1588, 104 L.Ed.2d 1 (1989) (Marshall, J., dissenting). However, it is also well established that it is within a federal court’s discretion to allow law enforcement officials to testify as experts concerning the modus operandi of drug dealers and other criminals in areas concerning activities which are “not something with which most jurors are familiar.” United States v. Daniels, 723 F.2d 31, 33 (8th Cir.1983) (trial court’s allowance of testimony by expert that drug dealers often register their cars and apartments in names of others not an abuse of discretion); United States v. Scavo, 593 F.2d 837, 844 (8th Cir.1979) (trial court’s allowance of testimony concerning nature of gambling operations, gambling terminology and opinion as to defendant’s role in operation not an abuse of discretion). The trial court’s discretion to allow such testimony arises from Fed.R.Evid. 702 which “allows a qualified witness to testify in the form of an opinion if the witness’s specialized knowledge will help the factfinder to understand the evidence or determine a fact in issue.” Daniels, 723 F.2d at 33. Such testimony, however, is “subject to exclusion under Rule 403 if its probative value is substantially outweighed by the risks of unfair prejudice.” Id. In making the Rule 403 determination we give “great deference to the district judge, who saw and heard the evidence.” Id. We find that the challenged testimony, prejudicial by its nature, was probative in explaining the modus operandi of the crimes defendants were charged with. It was not simply an introduction of a drug courier profile as substantive evidence of guilt. “Thus, the question becomes one of balance” and one in which we must give the trial court “great deference”. Id. In making this balance we find it relevant that defendants’ guilt was clearly and overwhelmingly established by the remaining evidence in the record, making the modus operandi evidence of little significance. Accordingly, we are unwilling to find that the district court so abused its discretion as to warrant a reversal of the conviction. This finding does not indicate any belief that the district court followed the best course in admitting all of the evidence that was admitted, or that we favor admission of such evidence in general. Instead we merely find that in this case there was no clear abuse of discretion and that appellants’ challenges on this ground must fail. The Bathroom Search We turn next to appellant Wade’s assertion that she was subjected to illegal searches while occupying restrooms at the airport. The first of these searches occurred shortly after Wade had deplaned from her flight to Los Angeles when a female officer followed her into an airport restroom. Once in the restroom Wade entered one of the stalls and the officer observed what she could of Wade’s actions through a gap between the bathroom stall door and the bathroom stall wall. The officer made her observations from the common area of the restroom by looking through the gap from a distance, and by looking through the gap via the reflections of the bathroom mirror. She did not position herself in any way that would be unexpected by someone using the restroom. Specifically, she did not peer in “knothole fashion” through the gap. Nor did she look under or over the bathroom stall door. The court finds that the observations made by the officer were not an illegal search in this case because they were not a violation of any reasonable expectations of privacy. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). A bathroom stall, such as at issue here, does not afford complete privacy, but an occupant of the stall would reasonably expect to enjoy such privacy as the design of the stall afforded, i.e., to the extent that defendant’s activities were performed beneath a partition and could be viewed by one using the common area of the restroom, the defendant had no subjective expectation of privacy, and, even if he did, it would not be an expectation which society would recognize as reasonable. People v. Kalchik, 160 Mich.App. 40, 407 N.W.2d 627, 631 (1987). Thus, although Wade could reasonably expect a significant amount of privacy in the bathroom stall, this expectation was not violated in this case because the design of the stall allowed the officer to make her observations without placing herself in any position that would be unexpected by an occupant of the stall. The second search occurred when Wade entered a second bathroom after conversing with co-defendant White. In this instance an officer knocked the bathroom door open after Wade failed to respond to a demand to open the door. This demand was made based on the officer’s conclusion that Wade was in the process of destroying evidence. The court finds that there was probable cause for the officer’s action in the second bathroom and that the seizure of the cocaine in the bathroom was valid as incident to Wade’s arrest. The evidence at trial and at a hearing on a motion to suppress establish that it was reasonable to assume that Wade was involved in illegal activity and was in the process of trying to destroy evidence in the bathroom. The court incorporates by reference the analysis of Magistrate Carol Jackson’s June 20, 1989 report and recommendation on this point. Accordingly, this challenge is also denied. The Government’s Comment on White’s Silence White's allegation that the trial court should have declared a mistrial because of the government's comment on his failure to testify is also without merit. The challenged comment consisted of the government's statement during closing argument that "{y]ou didn't hear why Larry White used the word-the name Idleburg." White's counsel immediately objected to this statement as an inappropriate comment on White's failure to testify. The trial court sustained the objection and instructed the jury to disregard the comment. This is not sufficiently prejudicial to warrant a mistrial. It had little cumulative effect when viewed in context of the entire trial, the trial court took curative actions, and there was an abundance of properly admitted evidence establishing defendant's guilt. See United States v. Dougherty, 810 F.2d 763, 767-68 (8th Cir.1987). The Denial of Severance White’s assertion that the trial court committed reversible error by not severing his and Wade’s trials is similarly unconvincing. Rule 8(b) of the Federal Rules of Criminal Procedure permits join-der of defendants when the defendants are alleged to have participated in the same act or transaction or the same series of acts or transactions constituting an offense or offenses. Further, it is a general rule that persons charged with conspiracy should be tried together, particularly in cases such as this “where proof of the charges against the defendants is based upon the same evidence and acts.” United States v. Lee, 743 F.2d 1240, 1248 (8th Cir.1984). White has presented no convincing reason why this general rule is inapplicable to this case. Thus, severance was not necessary. Conclusion We affirm the convictions. . Justice Marshall documented this chameleon-like nature with the following listing of some of the "drug courier” characteristics relied upon in various cases: Compare e.g., United States v. Moore (suspect was first to deplane), with United States v. Mendenhall (last to deplane), with United States v. Buenaventure-Ariza (deplaned from middle); United States v. Sullivan (one-way tickets), with United States v. Craemer (roundtrip tickets), with United States v. McCaleb (non-stop flight), with United States v. Sokolow (changed planes); Craemer, supra (no luggage), with United States v. Sanford (gym bag), with Sullivan, supra (new suitcases); United States v. Smith (traveling alone), with United States v. Fry (traveling with companion); United States v. Andrews (acted nervously), with United States v. Himmelwright (acted too calmly). Sokolow, 109 S.Ct. at 1588-89 (citations omitted) (Marshall, J., dissenting). Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
sc_casesource	023	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. CAMP, COMPTROLLER OF THE CURRENCY v. PITTS et al. No. 72-864. Decided March 26, 1973 Per Curiam. In its present posture this case presents a narrow, but substantial, question with respect to the proper procedure to be followed when a reviewing court determines that an administrative agency’s stated justification for informal action does not provide an adequate basis for judicial review. In 1967, respondents submitted an application to the Comptroller of the Currency for a certificate authorizing them to organize a new bank in Hartsville, South Carolina. See 12 U. S. C. §27; 12 CFR §4.2 (1972). On the basis of information received from a national bank examiner and from various interested parties, the Comptroller denied the application and notified respondents of his decision through a brief letter, which stated in part: “ [W] e have concluded that the factors in support of the establishment of a new National Bank in this area are not favorable.” No formal hearings were required by the controlling statute or guaranteed by the applicable regulations, although the latter provided for hearings when requested and when granted at the discretion of the Comptroller. Respondents did not request a formal hearing but asked for reconsideration. That request was granted and a supplemental field examination was conducted, whereupon the Comptroller again denied the application, this time stating in a letter that “we were unable to reach a favorable conclusion as to the need factor,” and explaining that conclusion to some extent. Respondents then brought an action in federal district court seeking review of the Comptroller’s decision. The entire administrative record was placed before the court, and, upon an examination of that record and of the two letters of explanation, the court granted summary judgment against respondents, holding that de novo review was not warranted in the circumstances and finding that “although the Comptroller may have erred, there is substantial basis for his determination, and ... it was neither capricious nor arbitrary.” 329 F. Supp. 1302, 1308. On appeal, the Court of Appeals did not reach the merits. Rather, it held that the Comptroller’s ruling was “unacceptable” because “its basis” was not stated with sufficient clarity to permit judicial review. 463 F. 2d 632, 633. For the present, the Comptroller does not challenge this aspect of the court’s decision. He does, however, seek review here of the procedures that the Court of Appeals specifically ordered to be followed in the District Court on remand. The court held that the case should be remanded “for a trial de novo before the District Court” because “the Comptroller has twice inadequately and inarticulately resolved the [respondents’] presentation.” The court further specified that in the District Court, respondents “will open the trial with proof of their application and compliance with the statutory inquiries, and proffer of any other relevant evidence.” Then, “[testimony may ... be adduced by the Comptroller or intervenors manifesting opposition, if any, to the new bank.” On the basis of the record thus made, the District Court was instructed to make its own findings of fact and conclusions of law in order to determine “whether the [respondents] have shown by a preponderance of evidence that the Comptroller’s ruling is capricious or an abuse of discretion.” 463 F. 2d, at 634. We agree with the Comptroller that the trial procedures thus outlined by the Court of Appeals for the remand in this case are unwarranted under present law. Unquestionably, the Comptroller’s action is subject to judicial review under the Administrative Procedure Act (APA), 5 U. S. C. § 701. See Association of Data Processing Service Organizations v. Camp, 397 U. S. 150, 156-158 (1970). But it is also clear that neither the National Bank Act nor the APA requires the Comptroller to hold a hearing or to make formal findings on the hearing record when passing on applications for new banking authorities. See 12 U. S. C. §26; 5 U. S. C. § 557. Accordingly, the proper standard for judicial review of the Comptroller’s adjudications is not the “substantial evidence” test which is appropriate when reviewing findings made on a hearing record, 5 U. S. C. § 706 (2) (E). Nor was the reviewing court free to hold a de novo hearing under § 706 (2) (F) and thereafter determine whether the agency action was “unwarranted by the facts.” It is quite plain from our decision in Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402 (1971), that de novo review is appropriate only where there are inadequate factfinding procedures in an adjudicatory proceeding, or where judicial proceedings are brought to enforce certain administrative actions. Id., at 415. Neither situation applies here. The proceeding in the District Court was obviously not brought to enforce the Comptroller’s decision, and the only deficiency suggested in agency action or proceedings is that the Comptroller inadequately explained his decision. As Overton Park demonstrates, however, that failure, if it occurred in this case, is not a deficiency in factfinding procedures such as to warrant the de novo hearing ordered in this case. The appropriate standard for review was, accordingly, whether the Comptroller’s adjudication was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” as specified in 5 U. S. C. § 706 (2) (A). In applying that standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court. Respondents contend that the Court of Appeals did not envision a true de novo review and that, at most, all that was called for was the type of “plenary review” contemplated by Overton Park, supra, at 420. We cannot agree. The present remand instructions require the Comptroller and other parties to make an evidentiary record before the District Court “manifesting opposition, if any, to the new bank.” The respondents were also to be afforded opportunities to support their application with “any other relevant evidence.” These instructions seem to put aside the extensive administrative record already made and presented to the reviewing court. If, as the Court of Appeals held and as the Comptroller does not now contest, there was such failure to explain administrative action as to frustrate effectivé judicial review, the remedy was not to hold a de novo hearing but, as contemplated by Overton Park, to obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary. We add a caveat, however. Unlike Overton Park, in the present case there was contemporaneous explanation of the agency decision. The explanation may have been curt, but it surely indicated the determinative reason for the final action taken: the finding that a new bank was an uneconomic venture in light of the banking needs and the banking services already available in the surrounding community. The validity of the Comptroller’s action must, therefore,, stand or fall on the propriety of that finding, judged, of course, by the appropriate standard of review. If that finding is not sustainable on the administrative record made, then the Comptroller’s decision must be vacated and the matter remanded to him for further consideration. See SEC v. Chenery Corp., 318 U. S. 80 (1943). It is in this context that the Court of Appeals should determine whether and to what extent, in the light of the administrative record, further explanation is necessary to a proper assessment of the agency’s decision. The petition for certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. See 12 CFR § 4.12 (d) (1967). The regulations were amended in 1971, 36 Fed. Reg. 5051. For the present regulation, see 12 CFR §5.4 (1972). The letter reads in part: “On each application we endeavor to develop the need and convenience factors in conjunction with all other banking factors and in this case we were unable to reach a favorable conclusion as to the need factor. The record reflects that this market area is now served by the Peoples Bank with deposits of $7.2MM, The Bank of Harts-ville with deposits of $12.8MM, The First Federal Savings anil Loan Association with deposits of $5.4MM, The Mutual Savings and Loan Association with deposits of $8.2MM and the Sonoco Employees Credit Union with deposits of $6.5MM. The aforementioned are as of December 31, 1968.” Title 12 U. S. C. § 26 contemplates a wide-ranging ex parte investigation; it reads as follows: “Comptroller to determine if association can commence business. “Whenever a certificate is transmitted to the Comptroller of the Currency, as provided in this chapter, and the association transmitting the same notifies the comptroller that all of its capital stock has been duly paid in, and that such association has complied with all the provisions of this chapter required to be complied with before an association shall be authorized to commence the business of banking, the comptroller shall examine into the condition of such association, ascertain especially the amount of money paid in on account of its capital, the name and place of residence of each of its directors, and the amount of the capital stock of which each is the owner in good faith, and generally whether such association has complied with all the provisions of this chapter required to entitle it to engage in the business of banking; and shall cause to be made and attested by the oaths of a majority of the directors, and by the president or cashier of the association, a statement of all the facts necessary to enable the comptroller to determine whether the association is lawfully entitled to commence the business of banking.” (Emphasis added.) As to the APA, its requirement of a written statement of “findings and conclusions, and the reasons or basis therefor” (5 U. S. C. § 557 (c)(3)(A)), applies only to rulemaking proceedings (§ 553) and to adjudications “required by statute to be determined on the record after opportunity for an agency hearing” (§ 554 (a)). By its terms, then, the APA’s requirement of formal findings is not relevant since the National Bank Act plainly does not require agency hearings on applications for new banks. Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:
songer_genapel1	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. HOUSE v. UNITED STATES. No. 6913. Circuit Court of Appeals, Sixth Circuit. May 17, 1935. Rehearing Denied June 28, 1935. William H. Boyd, of Cleveland, Ohio (Everett D. McCurdy, of Cleveland, Ohio, on the brief) for appellant. E. B. Freed and Parker Fulton, both of Cleveland, Ohio, for the United States. Before HICKS and SIMONS, Circuit Judges, and NEVIN, District Judge. Writ of certiorari denied 56 S. Ct. 125, 80 L. Ed. —. HICKS, Circuit Judge. Appellant was president, a director, and a member of the executive committee of the Guardian Trust Company (hereinafter called the bank) of Cleveland, Ohio. As president of the bank he was ex officio president and a member of the board of trustees of the bank’s pension fund. Harry C. Robinson and William R. Green were senior vice president, and vice president and comptroller, respectively, of the bank; and Robinson as senior vice president was ex officio vice president of the pension fund. Green was the secretary-treasurer of the board of trustees of the pension fund but was not a member thereof. Appellant and Green and Robinson, as such officers of the bank, were jointly indicted under section 592, tit. 12 U. S. C. (12 USCA § 592). In 16 counts they were charged with willful misapplication of the moneys, funds, and credit of the bank, and in 11 counts with making false entries upon its Sundry Trust Ledger. During the trial the twenty-seventh count was dismissed, and at the close of all the evidence the court sustained a motion to direct a verdict of not guilty as to Robinson and Green on the remaining counts but overruled it as to appellant. Appellant was convicted upon 16 counts charging “willful misapplication” and upon 10 counts charging him with making false entries or causing them to be made. Each of the alleged misapplications had a related alleged false entry. Together the two made up a unitary transaction, the units of the scries of which varied as to date and amount but were otherwise similar to each other. They all sprang from the same basic circumstances. Each “false entry” count was correlated to one or more “misapplication” counts; and the inclusion of more than one “misapplication” in some of the “false entries” resulted in the smaller number of “false entry” counts. Appellant complains of the denial of a directed verdict and in particular that the evidence failed to show (1) that any money or funds of the bank were lost; (2) that he intended to injure or defraud the bank; and (3) that any false entries were made with intent to deceive. He maintained that the evidence showed conclusively that he acted as an officer of the pension fund and not as an officer of the bank. Appellant also assigned as error the refusal of the court to instruct the jury in accordance with his request No. 2, which was in substance that even if funds of the bank were temporarily used as a step in the transactions complained of, yet if they were restored before these transactions were completed there was no misapplication; and further that the court refused to submit to the jury his request No. 6 that if any one of the trustees of the pension fund had knowledge of the loans involved and failed to protest against them this was equivalent to a consent to make such loans. There are certain other assignments of error to be hereinafter considered. The bank was a large one, and highly organized. Its trust department contained three divisions, of which the “Sundry Trust” division was one, being a grouping of a large number of miscellaneous trusts. The whole trust department was necessarily tied in with the bank proper, since all the cash therein was deposited in the bank and was shown on the general books of the bank. The department itself kept account of its cash in a miscellaneous record and in its own general books. It made a record of individual checks, disbursed, and at the end of the day the record was sent to the auditing department. The general ledgers of the trust department recorded each day the transactions between the individual sundry trusts and the trust department through the tellers’ sheets of receipts and disbursements. Sundry Trust No. 635 was that of the pension fund. This fund was set up in August, 1913, and the employees of the bank and the bank itself contributed to it equally. Its management was vested in a board of trustees of seven members, four of whom were chosen by the board of directors of the bank and two by the employees. Appellant as president of the bank was ex officio the seventh member. By 1930 its assets were well over a million dollars. In article VI, section 2, of its by-laws, under the heading “Investments,” appeared the following: “Any part or all of the fund may be invested in first mortgage loans, or in participations therein, or in such other securities as the Board of Trustees may from time to time approve, and the Trust Department of the Guardian Savings and Trust Company shall-be custodian of all investments.” In conformity with this declaration of policy, much of the pension fund was invested in mortgage participations. The transactions upon which appellant was indicted grew out of a desire upon his part as president of the bank to forestall depreciation in the value of the stock of the bank by buying up stock that was offered in the general market. The method he suggested was the formation of a syndicate of stockholders each of whom would agree to buy a certain number of the offered shares. This practice antedated the transactions involved herein. In January, 1929, the bank increased its capitalization from four to seven million dollars, one million of which was a stock dividend and two millions of which were sold to the public, and it was thought that the appearance of so much new stock might unsettle the market. Accordingly appellant as president wrote identical letters to certain stockholders requesting that they subscribe for a number of shares and advance $25 per share toward their purchase. He received replies in which an aggregate of 2,350 shares was subscribed. The money paid in was placed in a trust fund opened in the name of J. A. House, trustee, and known as “Sundry Trust No. 1441 'of the Sundry Trust Division.” Later an additional $50 per share was called for. This syndicate was closed out with the purchase of but 311 shares. Each subscriber was given his portion of the total shares purchased and a check was issued to him for the amount of money he had overpaid. Again in the fall of 1930, a second group was approached for the purchase of stock through a letter written by appellant as president on November 3. In this letter the directors and stockholders, notified, were urged to “round out” their holdings by the purchase of a suggested number of shares, the number varying according to the holdings of the different stockholders. Replies were received, some favorable, some unfavorable. This syndicate, called the “No. 394 Syndicate” from the number of shares purchased, was closed September 3, 1931, at which time letters were sent out advising the members of the number of shares they had subscribed, the average cost per share, and the amount due for which a check was requested.' ' This syndicate was not financed as was the first, i. e., through an advance from its members. The method used was substantially as follows: Appellant orally and by telephone spoke to a majority of the trustees of the pension fund who authorized a loan of $100,000 for the purchase of stock. The authorization was not in writing but it seems clear from the testimony of Daley and Dean, two of the trustees, that the loans to which they gave their approval, were .to be to C. H. Force, trustee or agent for the group or syndicate of stockholders. His notes were made out to the bank for the amount of the sums borrowed on each purchase and were held by the pension fund in lieu thereof and the stock acquired was put up as collateral. This syndicate was closed about September 3, 1931, and each of the participating members was advised and a bill sent for the cost of the shares allotted to him. Of the 394 shares thus acquired all but 66 were disposed of to the syndicate members. There was some misunderstanding about these shares and the members of the syndicate who had supposedly agreed to take them refused to do so. The so-called “Third” syndicate here involved was constituted and conducted as follows: Upon being advised by Clayton H. Force, vice president of the bank, in charge of the stock transfer department, that a large block of stock, 90 shares owned by Mr. Spira, was on the market, and fearing the effect on the bank, appellant took up with a few members of the executive committee, after an adjournment of an official meeting of the committee on September 1, 1931, the matter of the formation of another syndicate. Appellant testified that of those present Mr. McIntosh, Sr., stated that if such a group were formed he would take 100 shares, Mr. Prentiss 50, Mr. Hall 25, Mr. Marlatt 25, and Mr. Bicknell 25. Appellant also testified that no subscriptions were conditioned upon putting the agreement in writing, and that when the group broke up he believed he had authority to buy up to 225 shares at a figure not to exceed $300 per share. But when Mr. Inglis, a lawyer, who was also a member of the executive committee of the bank, heard of the matter a week later, he counseled the drawing up of a written agreement setting forth the conditions under which the stock was to be purchased. He testified that Mr. Force drew up such an agreement and submitted it to him but it was never signed and nothing ever came of it. The only record kept of the meeting was a memorandum made either by appellant or some other officer present which was simply a list of the number of shares each subscriber agreed to take. There was testimony that subscriptions solicited privately after the meeting brought the authorized purchase up to 298 shares, including 20 shares subscribed by Mr. Inglis, but the matter is immaterial since only 221 shares were actually acquired under these oral authorizations. Appellant directed Force to enter upon the acquisition of shares and authorized and approved the method of financing their purchase. This method was followed by Force in the purchase of 221 shares in different amounts on different dates between September 10 and October 19, 1931. Each of these purchases is made the basis of a “misapplication count” in the indictment and correlative “false entry counts.” To avoid unnecessary detail and the risk of confusion, we deal particularly only with the first and second counts of the indictment involving the “Spira” transaction. On September 10, 1931, the trust department of the bank issued a check to Spira drawn upon the bank for $23,848.20, the cost of his stock after $1.80 federal tax had been deducted. Force delivered the check, received the stock in exchange and had it canceled and reissued in the name of appellant, who indorsed it in blank. Spira cashed the check and the encashment is the basis of the first misapplication count. Force made out a demand note signed by him as agent for $23,850 payable to the bank, and this note was held in the pension fund. The stock was also held by the pension fund as collateral to the note. The office routine by which the transaction was carried through the various departments of the bank and recorded on its books was involved and need not be outlined further than to show that the Spira check was charged to S. T. No. 1441 which was maintained in the name of J. A. House, trustee. S. T. No. 1441 was used for handling the purchase of Guardian stock. As it possessed no funds of its own the pension fund or S. T. No. 635 sold mortgage “participations” and placed the money to the credit of S. T. No. 1441 so that the Spira check might be paid therefrom. This transaction is recorded on September 10, 1931, in two lines on S. T. No. 635 cash sheet. The first line reads, “Sold participation,” and is followed by the entry of $23,850 in the debit column. On the next line and on the same date appears, “Transfer to S. T. 1441 bought note C. II. Force Syn,” which notation is followed by the entry of $23,850 in the credit column. This is the entry alleged in the second count of the indictment to be false. As above indicated, the transactions upon which the remaining counts of the indictment were based, are similar; the last one occurring on October 13,1931. Matters went along quietly from that date until July, 1932, the stock of the bank continuing to decline in value. In July, 1932, the shares purchased by Force at an average cost of $263 and held by the pension fund as collateral to the Force notes were worth only about $70 per share. In other words, the $76,000 of Force notes were secured by stock worth but $18,000. The purported subscribers to the “Third” syndicate were never called upon to take any of the 221 shares of stock purchased. Instead, on July 6, 1932, at a special meeting of the pension fund trustees, they were all purchased by the fund along with 66 shares carried oyer from the second syndicate, and the Force notes were canceled. Appellant as president presided at the meeting, advised that this action be taken, and voted for the resolution, knowing all along that the syndicate had not been completed. Mr. Inglis testified: “I never got the stock which I had indicated I might take. No one ever asked me to take the stock." (Italics ours.) Mr. Prentiss said: “ * * * I said I would take 50 shares. I never got those 50 shares. The transaction was never completed. I was never asked to take 50 shares.” James W. Warwick testified that he was approached by Mr. Howard Shepherd on the matter of entering the syndicate, and that he replied he “would go along for 20 shares.” He said: “I left on a business trip soon after that, and probably three weeks after that I saw Shepherd again and he said, ‘Just forget about that.’ He said ‘there wasn’t enough interest, enough people interested in the proposition to go ahead with it.’ ” Shepherd was a director, deceased before the trial. William H. Marlatt testified: “* * * I said I would subscribe for 25 shares if such a syndicate was formed. * * * I never heard anything more about the subject.” Most of these men testified that although they did not specifically authorize Force to borrow money for them from the pension fund to buy the stock, they were content that the matter be handled in any way the officers of the bank saw fit. We think there was substantial evidence to support the verdict upon all the counts of the indictment. Referring again to the Spira transaction : It is clear that appellant as the president of the bank caused the Spira check to be issued. Its encashment by Spira was a misapplication of the bank’s funds. Appellant as president was not authorized thus to withdraw its money. Whether he acted '“willfully” as denounced by the statute, or in good faith as contended by him, was a question for the jury. The jury might reasonably have concluded that he acted for the benefit and gain of the purported members of the alleg-ed syndicate and, if so, his conduct was willful [U. S. v. Britton, 107 U. S. 655, 666, 2 S. Ct. 512, 27 L. Ed. 520; U. S. v. Steinman, 172 F. 913, 915 (C. C. A. 3)] as distinguished from ordinary maladministration. U. S. v. Northway, 120 U. S. 327, 332, 7 S. Ct. 580, 30 L. Ed. 664; Cooper v. U. S., 13 F.(2d) 16, 18 (C. C. A. 4). It will not serve to say that the money was restored to the bank from the proceeds of the sale of mortgage participations of the pension fund. Assuming that it was returned its restoration might mitigate appellant’s offense but would not nullify nor excuse it. Robinson v. U. S., 30 F.(2d) 25, 27 (C. C. A. 6); U. S. v. Jenks, 264 F. 697, 699 (D. C). There is likewise substantial evidence that the book entry upon which the second count of the indictment was based was false. The pension fund did not buy any genuine note of the “C. H. Force Syn. $23,850.00.” There was no syndicate. Appellant himself testified “that the syndicate had not been completed.” Herring, a special investigating agent of the Department of Justice, testified that appellant said to him in substance: “That in the fall of 1931 the stock, after the Spira transaction, began to drop very fast and they didn’t have a chance to complete the transaction, have the syndicate agreement signed prior to the completion of that syndicate. Therefore the stock purchased for the syndicate they just held the stock as collateral to Force’s notes in the trust department of the bank. That in July, 1932, they knew that this stock was being carried along as collateral to Force’s notes and in order to relieve that situation they took it up with the pension fund trustees and the pension fund trustees decided to take over that stock and to cancel the Force notes. * * * ” (Italics ours.) The recital complained of does not report a genuine transaction excusable if it was nothing more than indiscreet and ill-advised as in the cases of Hayes v. U. S., 169 F. 101 (C. C. A. 8); and U. S. v. Young, 128 F. 111 (D. G). See, also, Twining v. U. S., 141 F. 41 (C. C. A. 3). It clearly reflects a sham or pretext upon which an apparently true but really false entry could be based. U. S. v. Darby, 289 U. S. 224, 53 S. Ct. 573, 77 L. Ed. 1137; Coffin v. U. S., 162 U. S. 664, 685, 16 S. Ct. 943, 40 L. Ed. 1109; Morse v. U. S., 174 F. 539, 552, 20 Ann. Cas. 938 (C. C. A. 2). It is urged that the evidence fails to show the criminal intent necessary to sustain either count of the Spira transaction. The point is without merit. There is always an inference that one intends the natural consequences of his deliberate acts. While this inference is not conclusive, it is sufficient to require the case to be decided by a jury unless it disappears in the light of other evidence which creates a reasonable doubt of appellant’s guilt. Agnew v. U. S., 165 U. S. 36, 50, 17 S. Ct. 235, 41 L. Ed. 624; Robinson v. U. S., 30 F.(2d) 25, 27 (C. C. A. 6); Morse v. U. S., supra, 174 F. 539, page 554, 20 Ann. Cas. 938); see also Laws v. U. S., 66 F.(2d) 870, 872 (C. C. A. 10). As indicated above, we are of opinion that the evidence raises no such doubt as a matter of law. The jury was justified in believing that appellant intended gratuitously to extend the credit of the bank to the prospective purchasers of the Spira stock. Granting that the pension fund was under separate and distinct control and management, the fact remains that the bank was heavily interested in it as a deposit. The jury was justified in believing that appellant caused the false entry to be recorded to protect the credit of the prospective purchasers of the Spira stock until such time as a rise in the market might make it profitable to close out the transaction, or, in the alternative, to relieve them altogether and shift the loss directly to the pension fund and indirectly to the bank itself as actually occurred; and that the entry was intended and calculated to deceive any officer of the bank who should inquire into the true nature of the transaction, or any agent of the Comptroller who should examine it. What has been said with reference to the “misapplication” and “false entry” counts based upon the Spira transaction is illustrative of our views upon all other relative counts of the indictment and no further detailed discussion is required. From what has been said it follows that there was no prejudicial error in failing to submit appellant’s requests Nos. 2 and 6 to the jury; or in the court’s amendment to request No. 3, which was in substance that if the bank paid checks issued by appellant with intent to defraud it was not open to him to say that the assets were not depleted; or in submitting to the jury the question whether the entire transactions connected with the Force notes were shams and pretenses; nor in instructing the jury that if it found that appellant intended to sell the stock to the pension fund if it went down in value, the jury would be justified in finding that appellant had a guilty intent. The judgment of the District Court is affirmed. 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_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. Robert T. GEBHARDT, Administrator of the Estate of James Glenn Martin, Deceased, v. WILSON FREIGHT FORWARDING COMPANY, a Corporation, and Regis G. Lostetter, Administrator of the Estate of Richard R. Lostetter, Deceased. Wilson Freight Forwarding Company, a Corporation, Appellant. No. 15003. United States Court of Appeals Third Circuit. Argued Feb. 15, 1965. Decided July 12, 1965. Samuel M. Rosenzweig, Pittsburgh, Pa. (Arthur E. Siegel, Cincinnati, Ohio, on the brief), for appellant. Paul E. Moses, Evans, Ivory & Evans, Pittsburgh, Pa. (Robert B. Ivory, Pittsburgh, Pa., on the brief), for plaintiff-appellee. William J. Lancaster, Pittsburgh, Pa., for defendant-appellee. Before KALODNER and SMITH, Circuit Judges, and KIRKPATRICK, District Judge. WILLIAM F. SMITH, Circuit Judge. The plaintiff brought this action under the Wrongful Death Act, 12 P.S. § 1601 and the Survival Act, 20 P.S. § 320.601 of Pennsylvania. He joined as defendants Wilson Freight Forwarding Co., a corporation, and the Administrator of the Estate of Richard R. Lostetter, deceased. The said Administrator filed an answer to the complaint and, in addition, a cross-claim in which he joined as a defendant only the said corporation. The .defendant filed separate answers in each of which it denied liability and alleged in effect that the sole cause of the accident, to which reference is hereinafter made, was the negligence of the decedent Richard Lostetter, the driver of the automobile in which the decedent James Martin was a passenger. We shall refer to the parties as plaintiff, cross-claimant, and defendant. The trial of the action resulted in a jury verdict in favor of the plaintiff and against the defendant, and a similar verdict in favor of the cross-claimant, on each of which a judgment was entered. The defendant made a motion for the entry of judgment notwithstanding the verdict and, in the alternative, for a new trial on the grounds that the evidence was insufficient to support the verdicts and that the verdicts were contrary to the weight of the evidence. The motion was denied and this appeal followed. The appeal is not from the judgment but from the denial of the motion. The defendant seeks reversal solely on the grounds urged in the court below in support of its motion for a new trial. The scope of review is therefore limited. The decedents were fatally injured when an automobile in which they were occupants, one as a driver and the other as a passenger, collided with a tractor-trailer owned by the defendant and driven by one Thurman Korns, an employee. The accident happened early in the morning of September 2, 1962, on a curve in the highway at a point approximately five miles west of Shells-burg, Bedford County, Pennsylvania. At this point the paved portion of the highway is twenty feet wide and is divided into two lanes, delineated by the usual dual lines. The north and south sides of the highway are bordered by traversable berms six to eight feet in width. At the time of the collision the weather was slightly inclement and the roadway was wet. The only eyewitness to the collision was the driver of the tractor-trailer but even with his testimony the evidence as to the manner in which the accident happened is somewhat meager. It sufficiently appears therefrom that prior to the collision the vehicles were proceeding in opposite directions, the automobile in the eastbound lane and the tractor-trailer in the westbound lane. It also sufficiently appears from the physical evidence, the damage to the respective vehicles, and the testimony of the driver, that the left side of the automobile rearward collided with the left front of the tractor-trailer. After the accident the tractor-trailer, facing in an easterly direction, came to rest in a field on the south side of the road; the automobile, facing in a westerly direction, came to rest on the berm of the eastbound lane. The debris was scattered over the roadway but the larger portion of it was in the westbound lane. The plaintiff and cross-claimant contended in the court below that at the time of the impact the tractor-trailer was in the eastbound lane on its wrong side of the highway; the defendant contended to the contrary. According to his testimony the driver of the tractor-trailer first saw the automobile on the curve, fifty feet ahead, at which point it was skidding sideways, its front facing in a southerly direction. He testified on cross-examination that his range of view extended ahead for a distance of approximately 150 feet. He further testified that this view was partially obstructed by a vehicle proceeding eastwardly approximately 100 feet ahead of the automobile in which the decedents met their death. This explanation is in conflict with his answer to an interrogatory propounded by the plaintiff prior to trial. The testimony of the driver as to what happened after he first saw the automobile and before the collision is uncertain. The decedent driver must be presumed to have exercised reasonable care for his own safety and that of his passenger in the absence of evidence in the record to the contrary. Newsome v. Baker, 395 Pa. 99, 148 A.2d 906, 908 (1959) and other cases herein cited. This presumption in and of itself was of no significant probative value and did not relieve the plaintiff and cross-claimant of the burden of proving the defendant’s negligence by a fair preponderance of the evidence. Moore v. Esso Standard Oil Co., 364 Pa. 343, 72 A.2d 117 (1950); Klink v. Harrison, 332 F.2d 219, 228 (3rd Cir. 1964) and the cases therein cited. Proof of the defendant’s negligence rested entirely on the evidence as to the physical facts, and particularly the location of the tractor-trailer after the accident. The defendant’s case rested primarily on the testimony of the driver of the tractor-trailer. This testimony was sufficiently uncertain, at least in part, to create in the minds of the jurors some misgiving as to the credence and weight to be given it. This misgiving may have been given further emphasis by the testimony of a disinterested witness who arrived on the scene shortly after the accident occurred. He testified that when the driver was asked “how the accident had happened,” he replied, “I do not know.” We are of the opinion that under the circumstances the jury was not required to accept the testimony as wholly true; the jurors, as the sole arbiters of issues of credence and weight, had a right to consider the testimony in light of the other evidence and to discard such portions of the testimony as it found either incredible or lacking in persuasive weight. Wooley v. Great Atlantic & Pacific Tea Company, 281 F.2d 78, 80 (3rd Cir. 1960) and the cases therein cited; Yurkonis v. Dougherty, 382 Pa. 387, 115 A.2d 193, 195-196 (1955). The argument of the defendant to the contrary is without merit. The defendant challenges on this appeal, as it did in the court below in support of its motion for a new trial, the sufficiency of the evidence to support the verdicts. This challenge is precluded by the defendant’s failure to comply with rule 50(a) Fed.Rules Civ.Proc., 28 U.S.C.A. An examination of the original record discloses that at the close of the evidence offered by the plaintiff the defendant made a motion “for a compulsory non suit” which we here treat as analogous to a motion for a directed verdict under the rule. The motion was denied and the defendant then offered evidence in support of the defenses pleaded in its answers. The motion was not renewed at the close of all the evidence. The defendant made no motion for a directed verdict at the close of the cross-claimant’s case or at the close of all the evidence. The failure of the defendant to move for a directed verdict against the plaintiff and cross-claimant at the close of all the evidence foreclosed its right to raise on appeal any issue as to the sufficiency of the evidence and also its right to move for judgment notwithstanding the verdict. Massaro v. United States Lines Company, 307 F.2d 299, 303 (3rd Cir. 1962); Budge Manufacturing Co. v. United States, 280 F.2d 414, 416 (3rd Cir. 1960). This Court and others have uniformly held that the introduction of evidence after the denial of a motion for directed verdict constitutes a waiver of the error, if any, in the denial unless the motion is renewed at the close of all the evidence. Ibid; Pruett v. Marshall, 283 F.2d 436, 438 (5th Cir. 1960); Rotondo v. Isthmian Steamship Co., 243 F.2d 581, 582 (2nd Cir. 1957); Fleming v. Lawson, 240 F.2d 119, 120 (10th Cir. 1956); 5 Moore’s Federal Practice ¶ 50.05, pp. 2322-23. The court below may not be held to have erred on an issue which was not properly raised. However, the disposition of the question raised by the defendant need not rest on the procedural ground alone. If the question were still open we would be compelled to conclude that the evidence, viewed in the light most favorable to the plaintiff and cross-claimant, was sufficient to justify the submission of the issue of negligence to the jury. See Klink v. Harrison, supra, 332 F.2d 225; Benner v. Weaver, 394 Pa. 503, 147 A.2d 388 (1959); Mitchell v. Stolze, 375 Pa. 296, 100 A.2d 477 (1953); Wenham Transportation, Inc. v. Radio Const. Co., 190 Pa.Super. 504, 154 A.2d 301 (Super. Ct.1959); but see Satovich v. Lee, 385 Pa. 133, 122 A.2d 212 (1956). The last cited case, relied on by the defendant, is distinguishable. Therein the court held, 122 A.2d at page 214, “Both cars were so close to the center line that there can be nothing but conjecture with respect to their positions when they collided.” The vehicles in the instant case came to rest south of the eastbound traffic lane, the automobile on the berm and the trailer-tractor in a field beyond the berm, approximately twenty feet or more from the dividing lines. The plaintiff seems to argue, although it is not entirely clear from the brief, that the verdict was against the weight of the evidence and that the denial of its motion for a new trial based on this ground was error. The issue raised by this argument, which must be decided under federal law, requires only brief discussion. The defendant argues that the evidence upon which it relied in the trial of the action preponderates in its favor. This argument cannot avail the defendant on this appeal. It is the function of the jury, as the fact finding body, to weigh the evidence and inferences. Byrd v. Blue Ridge Rural Elec. Cooperative, 356 U.S. 525, 537, 78 S.Ct. 893, 901, 2 L.Ed.2d 953 (1958). It is therein stated: “The federal system is an independent system for administering justice to litigants who properly invoke its jurisdiction. An essential characteristic of that system is the manner in which, in civil common-law actions, it distributes trial functions between judge and jury and, under the influence — if not the command — of the Seventh Amendment, assigns the decisions of disputed questions of fact to the jury.” If the evidence in the record, viewed from the standpoint of the successful party, is sufficient to support the jury verdict, a new trial is not warranted merely because the jury could have reached a different result. Jarrell v. Ford Motor Company, 327 F.2d 233, 234-235 (4th Cir. 1964); Land O’ Lakes Creameries, Inc. v. Hungerholt, 319 F.2d 352, 360 (8th Cir. 1963); Armco Steel Corp. v. Realty Investment Co., 273 F.2d 483, 488 (8th Cir. 1960); Bolan v. Lehigh Valley R. R. Co., 167 F.2d 934, 937 (2nd Cir. 1948). Neither the trial court nor this Court may substitute its judgment for that of the jury on disputed issues of fact. Ibid. The judgment of the court below will be affirmed. . It is the law of Pennsylvania that proof that a vehicle skidded will not support an inference of negligence in the absence of evidence that the skidding was caused by the negligent conduct of the driver. Matkevich v. Robertson, 403 Pa. 200, 169 A.2d 91, 93; Richardson v. Patterson, 368 Pa. 495, 84 A.2d 342, 343. There was no such evidence in this case, 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	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". UNITED STATES v. THOMSON. SAME v. CRAIG. Nos. 7227, 7230. Circuit Court of Appeals, Seventh Circuit. July 5, 1940. Rehearing Denied July 17, 1940. Harold Lindley, of Danville, 111.^ and Harry I. Hannah and Thomas R. Pigenbaum, both of Mattoon, 111., for appellants, Arthur Roe, U. S. Atty., and Ray M. Foreman, Asst. U. S. Atty., both of Dan-ville, 111., and Carl W. Feickert, of East St. Louis, 111., for appellee, Before EVANS, MAJOR, and KERNER, Circuit Judges . EVANS, Circuit Judge. Defendants were charged with, and convlcted of> crime of devising a scheme t0 defraud and using the mails m further-ance th«rcof and als°TCT°nSp'^Cy t0 vlolate Se^°“ 338Title 18 United States Code, 18 U.S.C.A. § 338. They were tried together, and imprisonment sentences pro-nounced on both. Each appealed separately, The questions presented on both appeals are in some respects alike and one opinion will dispose of both appeals. Defendants ask us to review and reverse the ruling of the District Court made on their motion to suppress evidence secured through an allegedly illegal search of their property and possessions. The issue is a narrow one. Were two searches made by post office inspectors reasonable ? Post office inspectors without search warrants made two searches, one August 3, 1938, and one August 16, 1938. The Government’s answer to the asserted illegality of the first search is that defendants consented-thereto. Its justification of the August 16th search was that it was made on the occasion of the arrest of the defendants pursuant to warrants issued on the indictment returned in this case. No search warrant was necessary. On this second search, seventeen mail bags of books, papers and documents were taken in the course of a two hour search made by the post office inspectors while the marshal stood by and the defendants were making arrangements for bail. The District Court heard oral evidence and ruled against the defendants’ motion. Defendants were in the business of merchandising cosmetics and did so by means of hundreds of solicitors with whom agency contracts were executed. The alleged fraud set forth in each of the many counts of the indictment arose out of these agency contracts. Deposits taken from the solicitors were not repaid, or only rarely. Salaries earned, due to impossible requirements as to hours of service, daily reports, etc., of the agency contract, could not be, or at least were not, collected. Defendant Thomson had successfully promoted several cosmetic companies, either alone or in partnership. Complaints about him and his ways reached the post office inspectors, who, on August 3, without warrant, called at defendants’ place of business to investigate the facts and obtain the names and addresses of the agents so that they might correspond with them. One inspector testified he asked for the names of various agents. He testified that defendant went through his files and gave them to him voluntarily. Thomson, -on the other hand, denied granting permission to the inspector to withdraw such records. The District Court heard oral evidence on the fact issues arising out of defendants’ motion to suppress the evidence obtained-from this and the other search and reached the conclusion, which we think is well supported by the evidence, that Thomson not only waived his right to object to the use of this evidence, but invited the post office inspector to examine the same and “get any information he desired.” This disposes of defendants’ objections to the first — the August 3d search. The testimony respecting the search on the 16th of August is not free from dispute. The investigation of the post office inspector, following the August 3d visit, resulted in the presentation of evidence to the Grand Jury and .the return of an indictment against the defendants. On August 16th the marshal and his deputy arrived at the defendants’ place of business with a warrant for their arrest. At the same time two post office inspectors appeared, and, after the arrest was made, the inspectors proceeded to search the premises. They went through defendants’ files and records and removed a great many documents. Thomson stated he protested against the removal of his papers and asked leave to telephone his attorney. The inspectors told him they had the legal right to search and seize whenever the Government was making an arrest. They advised him to arrange for his bail. While the marshal ■ was not active in making the search, he was present and the accused was also there during the entire period of the search. Statements of the law of search and seizure in somewhat analogous cases have been announced by the Supreme Court in the following cases: Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409; Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231; Go-Bart Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, 82 A.L.R. 775. In the face of these decisions it is hardly helpful to cite decisions of inferior' courts, which are out of harmony with the holdings of these cases. Differences of opinion may well exist over the weight of the reasons upon which the conclusions expressed in, these opinions rest, but our duty is clear. It is to apply these decisions to the facts of each case. So doing, we must reverse the judgment in this case. In thus disposing of this case we assume: (a) That neither the length of the search at the time of the arrest, nor the volume of the evidence seized has anything to do with the validity of the search. One single bit of evidence, no larger than a half carat diamond, may be all that is seized in one case. Thirteen truck loads of liquor, still apparatus, etc., may be taken in another case. The smuggled diamond may be so skillfully concealed that much time is required for the searching officers to locate it, whereas the defendant may be sitting in his still house surrounded by vats of liquor, in the second search, and no time at all required to complete the search. In other words, the reasonableness of the search depends upon the facts in each case, and this applies to the length of the search and the quantity seized. (b) The right to search when defendant is arrested is no greater than when the search is made pursuant to a search warrant. There is an intimation in one of the opinions that the right is not quite as comprehensive in the case of search when arrest is made. In United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 423, 76 L.Ed. 877, 82 A.L.R. 775, the court said: “ * * The authority of officers to search one’s house or place of business contemporaneously with his lawful arrest therein upon a valid warrant of arrest certainly is not greater than that conferred by a search warrant issued upon adequate proof and sufficiently describing the premises and the things sought to be obtained.” (c) A valid search may result in the seizure of papers as well as other kinds of property. The test is not the nature of the property seized (papers or liquor for instance), but whether such property was by the accused used in perpetrating a crime. In Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 265, 65 L.Ed. 647, the court said: “There is no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure, if only they fall within the scope of the principles of the cases in which other property may be seized, and if they be adequately described in the affidavit and warrant. Stolen or forged papers have been so seized, * * * and lottery tickets, * * * and we cannot doubt that contracts may be so used as instruments or agencies for perpetratinv frauds upon the government as to give the public an interest in them whiph would justify the search for and seizure of them, under a properly issued search warrant, for the purpose of preventing further frauds. * * * ” (d) Where the papers of the accused are seized upon a search solely for use as evidence of a crime of which respondents were accused or suspected, the search may be described as unreasonable. In the Lefkowitz ease the court said: “Respondents’ papers were wanted by the officers solely for use as evidence of crime of which respondents were accused or suspected. They could not lawfully be searched for and taken even under a search warrant issued upon ample evidence and precisely describing such things and disclosing exactly where they were. * * * ” Distinguishing the facts in the Marrón case, the court said: “ * -+- * There, prohibition officers lawfully on the premises searching for liquor described in a search warrant, arrested the bartender for crime openly being committed in their presence. * * * The ledger and bills being in plain view were picked up by the officers as an incident of the arrest. No search for them was made. The ledger was held to be part of the outfit actually used to commit the offense. The bills were deemed so closely related to the business that it was not unreasonable to consider them as employed to carry it on. While no use was being made of the book or paper at the moment of the arrest, they — like coiitainers [etc.] — were kept to be utilized when needed. The facts disclosed in the opinion were held to justify the inference that when the arrest was made the ledger and bill were in use to carry on the criminal enterprise. “Here, the searches were exploratory and general and made solely to find evidence of respondents’ guilt of the alleged conspiracy or some other crime. Though intended to be used to solicit orders for liquor in violation of the act, the papers and other articles found and taken were in themselves unoffending. The decisions of this court distinguish searches of one’s house, office, papers or effects merely to get evidence to convict him of crime from searches such as those made to find stolen goods for return to the owner, to take property that has been forfeited to the government, to discover property concealed to avoid payment of duties for which it is liable, and from searches such as those made for the seizure of counterfeit coins, burglars’ tools, gambling paraphernalia and illicit liquor in order to prevent the commission of crime. * * * “This case does not differ materially from the Go-Bart Case and is ruled by it. An arrest may not be used as a pretext to search for evidence. The searches and seizures here challenged must be held violative of respondents’ rights under the Fourth and Fifth Amendments.” It is apparent that this case governs the law applicable to the facts in the case before us. The papers seized in the instant case were in themselves not offending. They were taken for the sole purpose of getting evidence to convict the defendants of a crime with which they had been charged. It would be unjust and illogical to separate the two cases and uphold the judgment as to one defendant and reverse it as to the other. While the Constitutional Amendments upon which the defense of illegal search and seizure is based may have been available to only one defendant, nevertheless the trial of the two together, and the introduction of evidence against them both may well have worked to the prejudice of the other. The judgment is reversed with directions to grant a new trial. 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_jurisdiction	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ. MOODY et al v. FLOWERS et al. No. 624. Argued April 17-18, 1967. Decided May 22, 1967. Charles S. Rhyne argued the cause for appellants in No. 624. With him on the briefs were Brice W. Rhyne and C. R. Lewis. Stanley S. Corwin argued the cause for appellants in No. 491. With him on the briefs were Reginald C. Smith, Howard M. Finkelstein and Pierre G. Lundberg. Truman Hobbs argued the cause for appellees in No. 624. With him on the brief were MacDonald Gallion, Attorney General of Alabama, and Gordon Madison, Assistant Attorney General. Frederic Block and Richard C. Cahn argued the cause and filed a brief for appellees in No. 491. Francis X. Beytagh, Jr., argued the cause pro hoc vice for the United States, as amicus curiae, urging reversal in No. 624 and affirmance in No. 491. With him on the brief were Solicitor General Marshall, Assistant Attorney General Doar and Bruce J. Terris. Briefs of amici curiae were filed in both cases by Louis J. Lefkowitz, Attorney General, pro se, and Daniel M. Cohen, Robert W. Imrie and George D. Zuckerman, Assistant Attorneys General, for the Attorney General of the State of New York, and by Morris H. Schneider and Seymour S. Ross for the County of Nassau. Richard C. Cahn, Walter Maclyn Conlon and Robert G. Dixon, Jr., filed a brief for the Towns of Babylon et al., as amici curiae, urging affirmance in No. 491. Members of the Board of Supervisors of the County of Nassau filed a brief, as amici curiae, in No. 491. Together with No. 491, Board of Supervisors of Suffolk County et al. v. Bianchi et al., on appeal from the United States District Court for the Eastern District of New York. Mr. Justice Douglas delivered the opinion of the Court. The threshold question in these cases is whether this Court has jurisdiction under 28 U. S. C. § 1253 on direct appeals from the decisions of the respective District Courts purportedly convened pursuant to 28 U. S. C. § 2281. The answer to that question in turn depends upon whether the three-judge courts in these cases were properly convened. In No. 624, appellants attack the validity of an Alabama statute (Ala. Laws 1957, Act No. 9, p. 30) prescribing the apportionment and districting scheme for electing members of the Houston County Board of Revenue and Control. Under the statute, the Board consists of five members, each elected by the qualified electors of the district of which he is a resident. The challenged statute prescribes the areas constituting the various districts. The action is brought against the appellees, including some state officials, seeking a declaration that the statute is invalid and an injunction prohibiting its enforcement, and requesting that the court order at-large elections until the State Legislature redistricts and reapportions the Board on a population basis. The theory is that the apportionment and districting scheme results in the overrepresentation of certain areas and the under-representation of others. The complaint also requested the convening of a three-judge court. A three-judge court was convened and the complaint was dismissed. 256 F. Supp. 195. We noted probable jurisdiction, 385 U. S. 966. In No. 491, appellees brought an action against appellants, members of the Suffolk County Board of Supervisors, seeking a declaration that so much of § 203 of the Suffolk County Charter (N. Y. Laws 1958, c. 278) as provides that each supervisor shall have one vote as a member of the Suffolk County Board of Supervisors violates the Fourteenth Amendment and an injunction prohibiting the appellants from acting as a Board of Supervisors unless and until a change in their voting strength is made, and requesting the convening of a three-judge court. The 10 towns of Suffolk County, New York, elect, by popular vote, a supervisor every two years. The supervisor is the town’s representative on the Suffolk County Board of Supervisors. Suffolk County Charter § 201. And, each supervisor is entitled to one vote on the County Board of Supervisors. Suffolk County Charter § 203. Pursuant to Art. 9, §§ 1 and 2, of the New York Constitution, the State Legislature approved a charter for the county containing, inter alia, the above provisions. N. Y. Laws 1958, c. 278. Appellees claim that granting each supervisor one vote regardless of the population of the town which elected him results in an overrepresentation of the towns with small populations and underrepresentation of towns with large populations. A three-judge court was convened and it declared § 203 of the Suffolk County Charter invalid because in conflict with the Equal Protection Clause of the Fourteenth Amendment, and ordered the Board to submit to the county electorate a plan for reconstruction of the Board so as to insure voter equality. 256 F. Supp. 617. We noted probable jurisdiction. 385 U. S. 966. This Court has jurisdiction of these direct appeals under 28 U. S. C. § 1253 only if the respective actions were “required ... to be heard and determined by a district court of three judges.” Section 2281 of 28 U. S. C. requires that a three-judge court be convened in any case in which a preliminary or permanent injunction is sought to restrain “the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute . . . .” The purpose of § 2281 is “to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme . . . by issuance of a broad injunctive order” (Kennedy v. Mendoza-Martinez, 372 U. S. 144, 154) and to provide “procedural protection against an improvident state-wide doom by a federal court of a state’s legislative policy.” Phillips v. United States, 312 U. S. 246, 251. In order for § 2281 to come into play the plaintiffs must seek to enjoin state statutes “by whatever method they may be adopted, to which a State gives her sanction . . . .” American Federation of Labor v. Watson, 327 U. S. 582, 592-593. The Court has consistently construed the section as authorizing a three-judge court not merely because a state statute is involved but only when a state statute of general and statewide application is sought to be enjoined. See, e. g., Ex parte Collins, 277 U. S. 565; Ex parte Public National Bank, 278 U. S. 101; Rorick v. Board of Commissioners, 307 U. S. 208; Cleveland v. United States, 323 U. S. 329, 332; Griffin v. School Board, 377 U. S. 218, 227-228. The term “statute” in § 2281 does not encompass local ordinances or resolutions. The officer sought to be enjoined must be a state officer; a three-judge court need not be convened where the action seeks to enjoin a local officer (Ex parte Collins, supra; Rorick v. Board of Commissioners, supra) unless he is functioning pursuant to a statewide policy and performing a state function. Spielman Motor Sales Co. v. Dodge, 295 U. S. 89. Nor does the section come into operation where an action is brought against state officers performing matters of purely local concern. Rorick v. Board of Commissioners, supra. And, the requirement that the action seek to enjoin a state officer cannot be circumvented “by joining, as nominal parties defendant, state officers whose action is not the effective means of the enforcement or execution of the challenged statute.” Wilentz v. Sovereign Camp, 306 U. S. 573, 579-580. In No. 624, the constitutional attack was directed to a state statute dealing with matters of local concern— the apportionment and districting for one county’s governing board. The statute is not a statute of statewide application, but relates solely to the affairs of one county in the State. The fact that state officers were named as defendants cannot change the result. It is said that, there is enough similarity between this law and the laws governing other Alabama counties as to give this case a statewide interest. It is said that 29 counties having a city of consequence located within their borders have the same “crazy quilt” of malappor-tionment to insure rural voters’ control. It is said that 32 other counties provide for election of county board members at large but with a local residence requirement which insures rural control. It is said that six rural counties elect their governing bodies on an at-large basis with no local residence requirement. We indicate no views on the merits. But we do suggest that even a variety of different devices, working perhaps to the same end, still leaves any one device local rather than statewide for purposes of the statutory three-judge court. In No. 491, the constitutional attack is directed at provisions of a county charter providing that the county governing board shall be composed of the supervisors of the several towns and that each supervisor shall have one vote. The county charter is similar to a local ordinance, a challenge to which cannot support a three-judge court. The fact that the charter was enacted into state law does not change the result. The charter provisions plainly relate only to one county and the statute enacting the charter is similarly limited. It does not remotely resemble a state statute of general, statewide application. It is a statute dealing solely with matters of local concern. Nor was the action brought against “state officers” within the meaning of the statute; it was brought to enjoin local officers acting solely with reference to local matters. It is argued, however, that the alleged malapportionment reflected in the charter is also reflected in § 150 and § 153 of the New York County Law, which does have a statewide application, and that the provisions of the charter here challenged are actually interchangeable with § 150 and § 153 of the County Law. It is also argued that to get rid of this alleged malapportionment the Court would have to declare unconstitutional not only the provisions of the charter but also § 150 and §153 of the County Law. The complaint, however, challenges only the charter. It makes no challenge of any statewide law. And the three-judge court considered it as an attack only on the charter. 256 F. Supp. 617. We therefore do not accept the invitation to get into the niceties of the relationship between the provisions of the charter and the New York County Law, but take the complaint as we find it for purposes of the jurisdictional question, and conclude on the face of the complaint that we have only an alleged malapportionment under a county charter. Since the “statute” in each of these cases is one of limited application, concerning only a particular county involved in the litigation, a three-judge court was improperly convened. Appeals should, therefore, have been taken to the respective Courts of Appeals, not to this Court. Since the time for perfecting those appeals may have passedj we vacate the judgments and remand the causes to the court which heard each case so that they may enter a fresh decree from which appellants may, if they wish, perfect timely appeals to the respective Courts of Appeals. Phillips v. United States, supra, at 254. Decrees vacated. Section 150 of the N. Y. County Law (1950) provides that “[t]he supervisors of the several cities and towns in each county . . . shall constitute the board of supervisors of the county” and § 153 subd. 4 provides for a majority vote of the supervisors with respect to actions of the Board of Supervisors where “no proportion of the voting strength for such action is otherwise prescribed.” But § 2 of the N. Y. County Law provides that the provisions of the law shall not apply “in so far as they are in conflict with or in limitation of a provision of any alternative form of county government . . . adopted by a county pursuant to section two of article nine of the constitution, or any . . . county government law or civil divisions act enacted by the legislature and applicable to such county . . . , or in conflict with any local law . . . adopted by a county under an optional or alternative form of county government . . . unless a contrary intent is expressly stated in [the law].” And see Bianchi v. Griffing, 238 F. Supp. 997, where the three-judge court in this ease denied the motion to dismiss and denied the motion for an injunction against the continued operation of the Board, pending legislative or other political action to correct the alleged malapportionment. Question: What is the manner in which the Court took jurisdiction? A. cert B. appeal C. bail D. certification E. docketing fee F. rehearing or restored to calendar for reargument G. injunction H. mandamus I. original J. prohibition K. stay L. writ of error M. writ of habeas corpus N. unspecified, other Answer:
songer_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". UNITED STATES of America, Plaintiff-Appellee, v. Eric F. SANDERS, Defendant-Appellant. No. 90-5654. United States Court of Appeals, Fourth Circuit. Argued Jan. 11, 1991. Decided Jan. 21, 1992. As Amended Feb. 12, 1992. Allen Bethea Burnside, Asst. Federal Public Defender, Columbia, S.C., for defendant-appellant. David Calhoun Stephens, Asst. U.S. Atty. (E. Bart Daniel, U.S. Atty., on brief), Greenville, S.C., for plaintiff-appellee. Before ERVIN, Chief Judge, NIEMEYER, Circuit Judge, and YOUNG, Senior District Judge for the District of Maryland, sitting by designation. ERVIN, Chief Judge: Eric Forward Sanders appeals his conviction for armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). He raises three issues on appeal: whether the district court erred in (1) admitting a confession resulting from an allegedly illegal arrest; (2) failing to dismiss because of the government’s destruction of potentially exculpatory evidence; and (3) relying on a prior conviction to classify Sanders as a career offender. While the district court did not err on the last two issues, we reverse and remand for a new trial with respect to the first issue. I. Sanders was taken into custody on October 26, 1989. An indictment, returned November 14, 1989, charged him with armed bank robbery. Following the selection of jurors, a suppression hearing was held. The court denied Sanders’ suppression motion, and subsequently the jury returned a verdict of guilty. Sanders was sentenced on April 25, 1990 to imprisonment for 300 months under the United States Sentencing Commission Guidelines, with five years of supervised release to follow. Sanders timely appealed. II. A lone black male robbed a branch of the Security Federal Savings Bank in Green-ville, South Carolina, on October 13, 1989. The robber, wearing a white handkerchief as a mask and a hat pulled down low on his head, was holding a gun. A motorist, Bill Searson, happened to drive by the bank immediately after the robbery. A teller following the robber from the bank flagged Searson down and Searson briefly pursued the bank robber’s vehicle as it left the crime scene. Searson told the police that the car was a small gray vehicle with damage on the passenger’s side. Searson later identified Sanders’ car as being similar to the vehicle he chased. About ten days later, on October 23, 1989, Detective Terry Christy of the Green-ville City Police Department saw a small gray Toyota that resembled the vehicle that Searson had described. Christy had a uniformed officer stop the car. Christy talked to the driver and determined his identity and correct address. The driver was Eric Forward Sanders, who presented his registration card and driver’s license. Christy wrote down the license tag number of the vehicle and later ascertained that Sanders and his wife were the owners of the Toyota. Nothing was said about a bank robbery during the October 23 stop, which lasted five to ten minutes. On October 26, Christy directed two uniformed officers to stake out Sanders’ car and to stop Sanders if he attempted to drive away. Around 9:30 a.m., Sanders, walking with crutches, came out of his apartment and went to the parking lot where his car was parked. He got into his car, started it and backed it up to the other side of the parking lot. After he stopped the car and as he was getting out of his vehicle, the police drove into the parking lot, blocking Sanders in. They asked Sanders about his improper license tags and about his headlights and sticker. Sanders admitted that he had an expired license tag, that his car was uninsured and that he had not paid taxes on it because he did not have the money. Sanders was then arrested without a warrant and handcuffed. There was a dispute as to whether the officers told Sanders why he was being arrested, but no one ever claimed that Sanders drove the car on any public street or highway or left the confines of the parking lot on the day in question. Later that same morning, Sanders was given Miranda warnings by Christy and signed a waiver of rights form. Sanders then confessed to the October 13 bank robbery. Taking the position that no traffic laws were violated to justify the arrest, the defense moved to suppress the confession as the fruit of an illegal arrest. At the suppression hearing, Christy testified that his entire purpose in instructing the officers to watch the car and arrest Sanders after he got in the car was so Christy could interrogate Sanders at the police station about the bank robbery and other robberies in which he was a suspect. Christy also testified that on October 26 he did not have probable cause to make an arrest on the bank robbery charge. The AUSA also stipulated that Sanders was not arrested for bank robbery; that he was arrested for traffic charges instead. At the close of the suppression hearing and without making any findings of fact, the district court ruled that Sanders’ statement was given freely and voluntarily. When queried about the legality of the arrest, he added: “I overrule the motion. The arrest was legal.” Sander’s trial followed and two tellers identified Sanders as the robber. The government also used the challenged confession against Sanders. At trial, the government was unable to present a videotape taken of the robbery in progress. The tape was erased in the process of duplication by a commercial lab. Sanders moved to dismiss the case based upon the government’s “destruction” of the evidence. He, however, neither alleged nor demonstrated bad faith on the part of the government in their handling of the tape. The district court did not rule on this motion to dismiss. At sentencing, two prior offenses, a bank robbery and a murder, were the predicate for the district court’s classification of Sanders as a career offender under U.S.S.G. § 4B1.1. It was Sanders’ position that these two offenses should have been consolidated since they shared a common motivation, namely, drug addiction. III. A. Sanders first avers that his confession is the consequence of an illegal arrest. Sanders was eventually issued three traffic citations for his actions prior to his arrest on October 23, each of which has a central element that the vehicle was operated on the state’s highways. His first ticket, # 5651, charged him with operating an uninsured vehicle. Section 56-10-270 of the South Carolina Code of Laws Annotated (Law Co-op 1976) makes it a misdemean- or for “any person to knowingly operate an uninsured motor vehicle subject to registration in this state.” Section 56-3-110, pertaining to registration, states that “every motor vehicle ... driven, operated or moved upon a highway in this state shall be registered_” (emphasis added). With reference to uninsured vehicles, the South Carolina Supreme Court explained in St. Paul Fire and Marine Insurance Company v. Boykin, 251 S.C. 236, 161 S.E.2d 818, 821 (1968): Liability insurance or its equivalent is not a requirement for ownership of a motor vehicle or for obtaining a certificate of title but is a prerequisite to licensing and registration of the motor vehicle in order to legally operate the same upon the highway. (Emphasis added). The second ticket, # 5652, charged Sanders with driving with expired tags in violation of S.C.Code § 56-3-840, which makes it a misdemeanor “to drive, move, or operate on a highway any vehicle for which a registration and license are required....” (Emphasis added). The last ticket, # 5653, charged Sanders with possessing a car with an improper vehicle license plate in violation of § 56-3-1360 of the state code. The relevant section of the code states that, “[N]o person shall drive or operate any motor vehicle ... on a highway displaying thereon a vehicle license plate which was issued for any other vehicle.” (Emphasis added). Each of the three traffic offenses require the operation of a vehicle upon the state’s highways. Since the uniformed police officers lacked any evidence that Sanders’ car was driven on a public road on the day of his arrest, they lacked probable cause for his arrest. Lacking such cause, the arrest was illegal. In an attempt to salvage its conviction, the government cites § 23-1-15, South Carolina Code of Laws Annotated, which provides: PUBLIC PARKING LOTS WITH POLICE JURISDICTION Any real property which is used as a parking lot and is open to use by the public for motor vehicle traffic shall be within the police jurisdiction with regard to the unlawful operation of motor vehicles in such parking lot. Such parking lots shall be posted with appropriate signs to inform the public that the area is subject to police jurisdiction with regard to unlawful operation of motor vehicles. The extension of police jurisdiction to such areas shall not be effective until the signs are posted. In any such area the law enforcement agency concerned shall have the authority to enforce all laws or ordinances relating to the unlawful operation of motor vehicles which such agency has with regard to public streets and highways immediately adjoining or connecting to the parking area. There are several problems utilizing § 23-1-15 as justification to arrest Sanders here. First, this section was not relied on in the district court, but was referred to for the first time in the government’s brief in this court. Furthermore, there is no evidence in the record to show that the parking lot in question was open to use by the public, that it was or had ever been posted with appropriate signs to inform the public that the area was subject to police jurisdiction, or that the arresting officers believed that the lot was subject to § 23-1-15. The government suggests that Sanders failed to show that the parking lot in question did not conform to the requirements of § 23-1-15, although it is the government who is trying to use it to validate an otherwise illegal arrest. We reject the attempt to use § 23-1-15 on these facts. Because we hold that Sanders’ arrest was unlawful, the next line of inquiry must be whether his confession was a consequence of this arrest or whether it was instead truly voluntary. The district court, because it erroneously held that the arrest was lawful, never reached this question. In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the Supreme Court held that where a confession is preceded by a Fourth Amendment violation, such as in the case at bar, in determining the voluntariness of the confession the examining court must decide whether it was “ ‘sufficiently an act of free will to purge the primary taint’ [of the illegal arrest].” Id. at 602, 95 S.Ct. at 2261 (quoting Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). The prosecution has the burden of showing admissibility. Id., 422 U.S. at 604, 95 S.Ct. at 2262. Sanders does not dispute that he was given his Miranda warnings, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or that he executed a waiver of rights form. The Court in Brown overturned the lower court’s decision that the giving of Miranda warnings alone removed the taint of the illegal arrest so long as the subsequent confession was voluntary and not coerced. While Miranda warnings do constitute a factor to be considered in ascertaining whether a confession is obtained by utilizing an illegal arrest, there are other factors to be examined, including the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and particularly, the purpose and flagrancy of the official misconduct. We are particularly concerned about the trial court’s failure to examine the purpose and flagrancy of the official misconduct. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (seizing petitioner without probable cause and transporting him to police station for interrogation violates Fourth and Fourteenth Amendments). Since the district court erroneously determined that Sanders’ arrest was legal, the court had no occasion to apply the teachings of Brown and its progeny to the facts of this case. Consequently, the question of whether Sanders’ confession is or is not admissible has never been properly addressed. This issue is so fact-laden that the case must be remanded to the district court to enable that court to conduct, if necessary, a new suppression hearing, at which it must make factual findings and conclusions on the key issue of whether Sanders’ confession was “ ‘sufficiently an act of free will to purge the primary taint’ [of the illegal arrest].” See Brown v. Illinois, 422 U.S. 590, 602, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975) (quoting Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). We therefore reverse the district court’s ruling on the suppression motion and remand the case for a new trial in accordance with this opinion. We intimate no views as to the applicability, if any, of § 23-1-15 to this case. B. Sanders next contends that the district court erred by not granting his motion to dismiss based upon the erasure of the bank videotape. Sanders, however, makes no claim of bad faith by the government. Indeed, he would not be able to credibly do so. The tape was delivered to the Federal Bureau of Investigation on the day of the robbery. It was subsequently turned over to a commercial firm for development. The company had handled tape processing for fifteen years for the F.B.I. and this was the first time that a tape was destroyed. Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58, 109 S.Ct. at 337. Given the absence of bad faith, and considering the circumstances of this particular erasure, the district court did not err in refusing to dismiss this case on that ground. C. In the early seventies, Sanders was convicted of armed bank robbery and the murder of a jewelry store owner during the commission of a different robbery. Sanders argues that because these two crimes shared the same motivation, namely, to sustain his addiction to heroin, they should have been consolidated by the district court for the purpose of determining whether he was a career offender under the Sentencing Guidelines. The Guidelines categorize a defendant as a career offender if he has two prior felony convictions for crimes of violence or controlled substance offenses. U.S.S.G. § 4B1.1. Sanders’ argument, while novel, is without merit. Shared motivation cannot transform two crimes committed three months apart, prosecuted in different jurisdictions, and involving different victims, into one illicit act. The district court properly classified Sanders as a career offender. IV. For the aforestated reasons, the conviction is reversed and the case is remanded to the district court for a new trial in accordance with this opinion. REVERSED AND REMANDED. . His exact words were "I believe this is the car I saw at the robbery.” The car that he viewed was damaged on the driver’s side, but he explained the discrepancy by saying that he was looking in his rear view mirror at the time of his initial observation. . Sanders explained that he had been receiving traffic tickets telling him to move his car within seven days. He felt that this was the result of the fact that his driver’s license showed his old rather than his current address. 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_appel2_4_2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant. Lorraine KROMNICK, Lorraine Brancato, Gladys Hirsh and Regina Katz v. SCHOOL DISTRICT OF PHILADELPHIA, and Board of Education of the School District of Philadelphia, Appellants. No. 83-1144. United States Court of Appeals, Third Circuit. Argued Nov. 29, 1983. Decided July 17, 1984. Eugene F. Brazil, General Counsel, Martin Horowitz, Asst. General Counsel, School District of Philadelphia, Germaine Ingram (argued), University of Pennsylvania Law School, Philadelphia, Pa., for appellants. Robert M. Goldich (argued), Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., for appellees. Thomas K.' Gilhool (argued), Michael Churchill, Stephen F. Gold, Public Interest Law Center of Philadelphia, Philadelphia, Pa., for amici curiae Barbara Jordan, Gwendolyn Saunders, Cora Bazmore, Glenda Billings Poole and Linda Hewson. Michael Hardiman, Asst. General Counsel, Pennsylvania Human Relations Commission, Philadelphia, Pa., for amicus curiae Commonwealth of Pennsylvania, Pennsylvania Human Relations Commission. Richard C. Dinkelspiel, Maximilian W. Kempner, Co-Chairmen, William L. Robinson, Norman J. Chachkin, Lawyers’ Committee for Civil Rights Under Law, Walter A. Smith, Jr., David F. Grady, Julie E. Stumpe, Hogan & Hartson, Washington, D.C., for amicus curiae Lawyers’ Committee for Civil Rights Under Law. Steven A. Asher, LaBrum & Doak, Philadelphia, Pa., Justin Finger, Jeffrey P. Sinensky, Leslie K. Shedlin, Anti-Defamation League of B’nai B’rith, New York City, Richard L. Berkman, Boston, Mass., Samuel Rabinove, Andrea S. Klausner, American Jewish Committee, New York City, Paul T. Sosnowski, Polish-American Congress, Philadelphia, Pa., Marc D. Stern, American Jewish Congress, New York City, for amici curiae Anti-Defamation League of B’nai B’rith, American Jewish Committee, Polish-American Congress and American Jewish Congress. Before GIBBONS, SLOVITER, Circuit Judges, and CALDWELL, District Judge. Hon. William W. Caldwell, United States District ■ Judge for the Middle District of Pennsylvania, sitting by designation. OPINION OF THE COURT SLOVITER, Circuit Judge. The School District of Philadelphia appeals from the orders of the district court permanently enjoining it from complying with its policy under which some teachers are transferred to other schools to maintain racial integration of faculty in each school. Teachers subject to transfer contend, and the district court agreed, that this policy violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Kromnick v. School District, 555 F.Supp.249 (E.D.Pa.1983). We • reverse the judgment of the district court. I. FACTS AND PROCEDURAL HISTORY A. Challenged Policy Under the policy challenged in this action, the Philadelphia Board of Education seeks to maintain a faculty ratio at each school of between 75% and 125% of the system-wide proportions of white and black teachers. As a result, the racial composition of each school’s faculty reflects that of the overall teaching staff. To reach this objective, the School District annually reassigns some classroom teachers to other schools. The reassignment plan operates in two phases. First, there is a determination of the need for staff at each school. Because of declining student enrollment, each year many schools have fewer positions. Open positions are staffed in order of accumulated seniority at the school, and the least senior teachers are transferred from the school. However, if that would cause the school to fall outside the 75%/125% range, teachers of the overrepresented race are transferred even though they have more seniority. Also, if retirements cause a racial imbalance in the school’s faculty outside the 75%/125% range, again the least senior teachers of the overrepresented race are transferred even though they may have more seniority than teachers of the other race. Only a small percentage of teachers transferred are transferred in derogation of seniority. In the last year, .approximately 50 or 60 of the 1,100 teachers transferred were transferred to maintain the 75%/125% racial balance. In the second phase of the reassignment plan, all the transferred teachers are entitled to choose new schools in descending seniority order, unless their choice would bring the selected schools outside the 75%/125% range. If so, those teachers are required to forego their preferred choice of transfer. In considering the School District’s policy, it is also necessary to keep in mind several factors. First, layoffs, as opposed to transfers, are determined by strict seniority. App. Ill at 185a; Brief for Appellees at 6. Second, teachers required to be transferred retain accumulated “building seniority,” whereas those who seek transfers generally lose that seniority. App. II at 137a. This affects transfer rights for the following school year. Third, transferred teachers retain a “right of return," or priority to any vacancies that recur at their former schools, if return will not upset the racial balance. App. Ill at 192a-93a. B. Development of the Policy The Philadelphia School System has long suffered from de facto segregation by race of students and faculty. Under Pennsylvania law, school districts may take steps to rectify a racial imbalance that is the product of de facto segregation as well as of de jure origin. Balsbaugh v. Rowland, 447 Pa. 423, 438, 290 A.2d at 85, 93 (1972). Also, the state, through the agency of the Pennsylvania Human Relations Commission (PHRC), may require a plan to eliminate de facto racial imbalances in schools. 447 Pa. at 432-33, 290 A.2d at 90; Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 233 A.2d 290 (1967). In 1968, the PHRC began proceedings under state law to compel the elimination of racially identifiable schools in Philadelphia. See School District v. Pennsylvania Human Relations Commission, 6 Pa. Cmmw. 281, 294 A.2d 410 (1972), affd as to other parties, 455 Pa. 52, 313 A.2d 156 (1973), (School District I); Pennsylvania Human Relations Commission v. School District, 23 Pa.Cmmw. 312, 352 A.2d 200 (1976) (School District II); Pennsylvania Human Relations Commission v. School District, 30 Pa.Cmmw. 644, 374 A.2d 1014 (1977) , affd, 480 Pa. 398, 390 A.2d 1238. (1978) (School District III); Pennsylvania Human Relations Commission v. School District, 66 Pa.Cmmw. 154, 443 A.2d 1343 (1982) (School District IV). The state courts have generally preferred to allow the School District to establish “voluntary” plans in response to prodding by the PHRC because, as the Pennsylvania Supreme Court noted, the School District has “primary responsibility for the choice and implementation of an effective desegregation program.” School District III, 480 Pa. at 428, 390 A.2d at 1253 (quoting Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 181, 233 A.2d 290, 302 (1967)). The most recent state court action resulted in a consent agreement for a desegregation plan involving use of “magnet” schools. Despite these lengthy proceedings, the students of the School District still attend racially identifiable schools. See School District IV, 66 Pa.Cmmw. at 174, 443 A.2d at 1352. PHRC guidelines espouse integration of faculty as well as of students as a means to eliminate the racial identifiability of schools and to achieve equal education for their students. See School District II, 23 Pa. Cmmw. at 317, 352 A.2d at 203. In 1969, the PHRC entered into a consent decree with the School District that required each elementary school to have at least 20% and each secondary school to have at least 10% of both black and white teachers. App. II at 115a. This decree supplemented a policy imposed in 1965, and still continuing,' of assigning newly hired teachers in a manner that furthers racial balance. Appellee teachers do not attack this race-conscious initial assignment, which they consider “reasonable”. Brief for Appellees at 4-5. Assignment on this basis aided faculty integration when there was an upsurge in hiring but voluntary transfers were also restricted in an effort to reach the 20% and 10% goals. Kromnick v. School District, 555 F.Supp. at 250. In 1978, the School District’s teacher assignment policies were again rewritten, this time because of the requirements of the federal government. In order to receive financing to assist in desegregation, the School District applied for federal aid then available under the Emergency School Aid Act (ESAA) Title VI, § 601, 20 U.S.C. §§ 3191-3207 (Supp V. 1981) (repealed effective October 1, 1982). The Office of Civil Rights (OCR), of the Department of Health, Education and Welfare denied the .application because the School District’s desegregation plan was unsatisfactory. Among the deficiencies cited was insufficient integration of classroom teachers. The then-applicable ESAA regulations administered by OCR provided: No educational agency shall be eligible for assistance under the Act if ... it has ... any practice, policy or procedure which results in discrimination on the basis of race ... including the assignment of full-time classroom teachers to the schools of such agency in such manner as to identify any of such schools as intended for students of a particular race, color or national origin. . 45 C.F.R. § 185.43(b)(2) (1978) (emphasis added), redesignated 280.22(e) (1980) (repealed effective October 1, 1982). OCR found that teacher assignments in Philadelphia were “racially identifiable” despite the District’s compliance with the numerical goals imposed under its consent decree with the PHRC. In 1978 the School District’s student population was 64.2% black, 6% Hispanic, and 31.6% white and its faculty was 63% white, 36% black and 1% other. OCR found that of 280 schools, 114 had 90% black students, whereas 60 schools had 80% white students. 61% of the black teachers were assigned to the schools with 90% black students, but only 8% were assigned to the schools with 80% white students. App. I at 58a-59a, 66a. OCR concluded that many schools that were racially identifiable by students had racially identifiable faculties and were “readily identifiable by the racial composition of their teaching staffs as intended for students of a particular race ____ in violation of 45 C.F.R. 185.43(b)(2).” App. I at 59a. OCR found that the District’s teacher assignment policies had allowed too much choice of assignment for teachers in a system with de facto segregation. After intimating that this amounted to a conscious policy that might be unlawful or unconstitutional, the agency declined to revoke a determination of ineligibility, and concluded: [C]ompliance with the [PHRC consent decree] ... was not sufficient to overcome the persistent pattern of racial identification of schools by faculty assignment ____ In fact, the district has continued to allow teacher choice to determine teaching assignments even though, as the district representatives admitted, residential areas in the city are de facto segregated and teachers tend to choose schools nearest to their homes. Thus, it is our view that the natural, probable and foreseeable result of your district’s teacher assignment policies was to maintain the racial identifiability of schools by the composition of their teaching staffs. Letter from Herman R. Goldberg to Dr. Michael P. Marcase (August 8, 1978), App. I at 71a. ESAA regulations provided for a “waiver” of eligibility if the district undertook remedial action “so that the proportion of minority group full-time teachers at each school is between 75 percentum and 125 percentum of the proportion of such minority group teachers which exists on the faculty as a whole.” 45 C.F.R. § 185.44(d)(3) (1978), redesignated 34 C.F.R. § 280.30(c) (1980), (repealed effective October 1, 1982). The School Board voted to comply with this 75%/125% standard, and adopted the policy described above, which went into effect immediately for the 1978-79 school year and has been continued for each year since. As a result, the School District received federal funds annually for desegregation. C. Procedural History and Continued Use of the Policy Four white teachers transferred under the 75%/125% policy, Lorraine Kromnick, Lorraine Brancato, Gladys Hirsh and Regina Katz, filed suit against the School District in December 1981, seeking declaratory and injunctive relief as well as money damages under the Constitution. Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1983. Plaintiffs contended that the policy was an impermissible racial classification, but did not argue that its impact fell disproportionately on whites or blacks as a group. The district court denied plaintiffs’ motion for preliminary injunction primarily because the policy was mandated by OCR. See Kromnick v. School District, 555 F.Supp. 249, 252 (E.D.Pa.1983). The court then granted plaintiffs’ motion for certification as representatives, for declaratory and injunctive relief, of a mixed-race class of teachers affected by the 75%/125% policy. The court also directed the School District to determine if OCR continued to require use of the 75%>/125% policy. Id. at 252. On June 23, 1982, the Office of Civil Rights of the Department of Education, now responsible for the ESAA program, found the School District “substantially in compliance” with the regulations. The agency commended the system for integrating the faculty and stated that the district “is under no further obligation to continue to meet the 75%/125% standard.” The agency also stated that “the district must continue to use nondiscriminatory policies” in placing teachers, and was “free to continue to maintain [the 75%/125% policy] if it so chooses.” Letter from Frederick T. Cioffi, Director, Elementary and Secondary Education Division, Litigation, Enforcement and Policy Service, Department of Education to Superintendent Michael Mar-case (June 23, 1982), App. II at 74a-75a. The School Board voted, on August 2, 1982, to continue using the 75%/125% policy for the upcoming school year. Although the Board made no specific findings as to the continued need for this particular policy and did not canvass alternative race-conscious policies, the Board heard a report by its personnel department, later confirmed in a written study, that if the 75%/125% policy were abandoned in favor of free choice in teacher assignments, the level of faculty integration would slip. At the trial on plaintiffs’ motion for permanent injunction, the plaintiff teachers dropped their contention that the plan was unlawful for the years 1978-82, and limited their claims to the new period of voluntary adherence. Brief for Appellees at 3 n. 2. The district court now held for plaintiffs, concluding that continued voluntary adherence to the 75%/125% policy violated the Equal Protection Clause o.f the United States Constitution and Title VII of the Civil Rights Act of 1964. The court found that the policy’s current purpose “is not to remedy past discrimination in teacher assignments, but to guard against the possibility that the system will revert to its pre-1978 level of racial imbalance in faculty assignments,” and therefore termed the policy “an elective racial quota.” 555 F.Supp. at 252. The court held that the School District had failed to show that the policy was substantially related to achievement of the legitimate and important objective of enhancing educatiónal opportunities for school children, because it had not demonstrated “through empirical evidence” the likelihood of reversion to prior levels of segregation, but had only presented “sheer speculation.” Id. at 254. It held, moreover, that the School District had failed to demonstrate the unavailability of “nondiscriminatory alternatives for maintaining faculty integration.” Id. The court then distinguished cases from other circuits upholding such reassignment plans because in those cases the plans were remedial devices, whereas it viewed continued use of the 75%/125% policy as not remedial, but aimed at maintaining racial balance for its own sake. Id. The court held that continued use of the policy violated Title VII for essentially the same reasons as it violated the Constitution. Id. at 255-56. The court stated, “The salient and ultimately fatal characteristic of the District’s quota system is that its only function is to preserve the existing racial percentages.” Id. at 255. The policy “continues to allow race to be the sole criterion affecting employment once the desired end is actually met.” Id. The district court entered an order enjoining use of the 75%/125% policy as it applies to both phases of the transfer process. The court initially granted only prospective relief “because of the District’s good faith reliance upon the OCR determination ... that the District could continue its use of the 75%/125% standard,” id. at 256; however, the court later granted plaintiffs’ motion to amend the judgment and ordered that defendants restore those teachers transferred after August 1982 under the challenged policy. The School District filed a timely appeal from this final order, and this court granted its motion to stay the district court’s orders pending appeal. This court denied a motion to intervene by several parents of children enrolled in Philadelphia public schools, Barbara Jordan et al., but allowed them to participate by briefing and oral argument as amici curiae. The PHRC submitted a brief as amicus curiae as did the Lawyer’s Committee for Civil Rights Under Law and the Anti-Defamation League of B’nai B’rith, on behalf of itself and other ethnic organizations. II. EQUAL PROTECTION The Supreme Court signalled the beginning of the end of institutionalized racism in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). As the Court later stated, “School boards ... were ... clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” Green v. County School Board, 391 U.S. 430, 437-38, 88 S.Ct. 1689, 1693-94, 20 L.Ed.2d 716 (1968) (citations omitted). Congress joined in the Court’s view of the invidiousness of racial discrimination and passed a series of laws, including the Civil Rights Act of 1964, outlawing discrimination in many areas. Racism, however, has not been eliminated, but the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution have been restored to their intended race-conscious and remedial function. “[N]o decision of [the Supreme] Court has ever adopted the proposition that the Constitution must be color blind.” Regents of the University of California v. Bakke, 438 U.S. 265, 336, 98 S.Ct. 2733, 2771, 57 L.Ed.2d 750 (1978) (opinion of Brennan, J., joined by White, Marshall, and Blackmun, JJ.). Rather, experience has taught us that “[i]n order to get beyond racism, we must first take account of race.” Id. at 407, 98 S.Ct. at 2807 (separate opinion of Blackmun, J.). See also Williams v. City of New Orleans, 729 F.2d 1554, 1573 (5th Cir.1984) (in banc) (Wisdom, J., concurring in part and dissenting in part). In only two cases has the Supreme Court reached the merits of a party’s contention that a governmental remedial program considering race as a factor violates the Equal Protection Clause of the Fourteenth Amendment. In the first, Regents of the University of California v. Bakke, supra, decided in 1978, the Court’s judgment was grounded on Title VI of the Civil Rights Act of 1964, which a majority of the Court viewed as coextensive with the Equal Protection Clause. The Court concluded that the University of California’s preferential admissions program for student applicants from certain minority groups violated Title VI. The Court, however, also held that the state medical school should not be enjoined from according any consideration to race in its admissions process. 438 U.S. at 272, 98 S.Ct. at 2738. In the second, Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), the Court held that a provision of the Public Works Employment Act of 1977, requiring a set-aside of at least 10% of federal funds granted for local public works projects for purchases from minority-owned businesses, did not violate the Equal Protection Clause. In Bakke, five Justices (the Chief Justice and Justices Stewart, Powell, Rehnquist, and Stevens) concluded that the preferential admission plan violated Title VI. Justice Powell was the only Justice who expressed the opinion that the plan was unconstitutional as well. Justices Brennan, White, Marshall, and Blackmun would have upheld the plan under both Title VI and the Constitution. In Fullilove, seven Justices concluded that a Congressionally enacted preference for minority ' contractors was constitutional, but did so under three separate opinions applying differing legal tests. Notwithstanding the differing views of the Justices, it is clear that a majority of the Supreme Court members have opined that not every race-conscious measure is constitutionally impermissible. Nothing in either of these cases impairs this court’s earlier holding in Porcelli v. Titus, 431 F.2d 1254,' 1257 (3d Cir.1970) (per curiam), cert, denied, 402 U.S. 944, 91 S.Ct. 1612, 29 L.Ed.2d 1Í2 (1971), that “state action based partly on considerations of color, when col- or is not used per se, and in furtherance of a proper governmental objective, is not necessarily a violation of the Fourteenth Amendment.” The absence of an Opinion of the Court in either Bakke or Fullilove and the concomitant failure of the Court to articulate an analytic framework supporting the judgments makes the position of the lower federal courts considering the constitutionality of affirmative action programs somewhat vulnerable. Nevertheless, it is necessary, as a preliminary matter, to determine the level of scrutiny to be employed in reviewing a claim that state action violated the Equal Protection Clause. In Bakke, Justices Brennan, White, Marshall, and Blackmun articulated a standard, similar to that developed in gender-discrimination cases, that “racial classifications designed to further remedial purposes must serve important governmental objectives and must be substantially related to achievement of those objectives.” 438 U.S. at 359, 98 S.Ct. at 2783. Justice Powell, after distinguishing cases involving “remedies for clearly determined constitutional violations,” id. at 300, 98 S.Ct. at 2753, viewed remedial classifications as “suspect,” and justifiable only if the State “show[s] that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is ‘necessary ... to the accomplishment’ of its purpose or the safeguarding of its interest.” Id. at 305, 98 S.Ct. at. 2756. The remaining Justices did not reach the constitutional issue in Bakke, and therefore did not comment on the level of scrutiny. In Fullilove, Chief Justice Burger (joined by Justice White and by Justice Powell, who also drafted his own concurrence) declined to adopt a specific test in his opinion but held that the minority, contracting program passed constitutional muster under either of the above tests. 448 U.S. at 492, 100 S.Ct. at 2781. Justice Marshall (joined by Justices Brennan and Blackmun) adhered to the intermediate test articulated by Justice Brennan in Bakke. Id. 448 U.S. at 519, 100 S.Ct. at 2795. Justice Stevens dissented in Fullilove, finding the program not “narrowly tailored,” but without advocating a general theory applicable to remedial classifications. Id. 448 U.S. at 552, 100 S.Ct. at 2812. Justice Stewart, joined by Justice Rehnquist, dissented and advocated a color-blind position that barred preferences unless ordered by a court for the “sole purpose ... [of] eradicating] the actual effects of illegal discrimination.” Id. at 528, 100 S.Ct. at 2799. The nature of the state action in this case is unique. In both Bakke and Fullilove, the governmental action imposed a preference based on race, which resulted in an undeniable detriment to members of the nonpreferred race. Thus in Bakke, the reservation of slots for. minorities under the admissions plan created, as stated in Justice Powell’s determinative opinion, “a line drawn on the basis of race and ethnic status” which meant that “white applicants could compete only for 84 seats in the entering class, rather than the 100 open to minority applicants.” 438 U.S. at 289, 98 S.Ct. at 2747. Similarly, in Fullilove, the 10% set aside for minorities concededly could “have the effect of awarding some contracts to MBE’s which otherwise might be awarded to other businesses, who may themselves be innocent of any prior discriminatory actions.” 448 U.S. at 484, 100 S.Ct. at 2777 (opinion of Burger, C.J.). Even in the context of these clear preferences, the members of the Court disagreed on the appropriate level of scrutiny, with some members opting for a strict scrutiny standard, while others stated that an intermediate standard was appropriate when the goal was remedial. The 75%/125% program challenged in this action creates no preference of the type usually associated with claims of “reverse discrimination.” There is no contention that teachers are either hired or laid off on the basis of race. There is no contention that teachers are promoted on the basis of race. There is no contention that any classification with any monetary significance is made on the basis of race. The challenge is to a policy that only affects assignment of teachers to schools. Ordinarily, this is a function within the exclusive prerogative of the school district, unless a collective bargaining agreement imposes restrictions. In this instance, however, the collective bargaining agreement incorporates the 75%/125% policy, and has done so year after year. Since the program is racially neutral, requiring the transfer of both black and white teachers, and there has been no showing of disparate impact upon one race, it is questionable whether the policy is one effecting a discrimination of constitutional dimension. Indeed, there is an innate inconsistency in plaintiffs’ position on this issue. Plaintiffs do not challenge the constitutionality of the school district’s policy to assign teachers initially to schools in such manner as will integrate the school’s faculty. Furthermore, they do not suggest that the policy limiting voluntary transfer on race considerations is constitutionally offensive. They suggest no basis, grounded in constitutional principles, .why involuntary transfer of teachers, unlike these other unchallenged race-conscious strategies, involves a constitutional discrimination in the absence of a contractual right that is being overridden. No case has suggested that the mere utilization of race as a factor, together with seniority, school need, and subject qualification, is prohibited. Since the classification is not preferential, it might most appropriately be reviewed for its rational relationship to a legitimate government objective, under which standard it would be patently valid. At most, since there is some element of racial classification, albeit not of preference, the appropriate level of scrutiny would be the intermediate level suggested by four members of the Court in Bakke, in which the classification was indeed preferential. The appropriate question under that standard is whether the classification “serve[s] important governmental objectives” and is “substantially related to achievement of those objectives.” Bakke, 438 U.S. at 359, 98 S.Ct. at 2783 (opinion of Brennan, J.). The School District articulates its goal as the integration of the faculties of the public schools of the City of Philadelphia so that public school pupils will have the opportunity to be taught by an integrated faculty. The district court agreed that “the governmental objective of maintaining desegregated school faculties in order to enhance the educational opportunities of the school children is indeed a legitimate and important objective.” 555 F.Supp. at 254. It held, however, that the 75%/125% plan had not been shown to be “substantially related to achievement” of the objective. Id. It was in this regard that the district court erred. The evidence is unmistakable and unchallenged that during the period of the operation of the 75%/125% program, the goal of integrating faculties of the public schools was substantially furthered. See, e.g., App. I at 75a. Although the district court stated that it was applying an intermediate standard of review, it did not do so in fact since it imposed on the School District the burden to show by empirical evidence that the district would “revert back to prior levels of segregation” if the 75%/125% policy were not used, and that “other nondiscriminatory alternatives” could not be used for “maintaining faculty integration.” 555 F.Supp. at 254. By imposing on the School District these requirements, the district court in fact was using a strict, indeed a most exacting, standard of scrutiny, one we conclude was inappropriate under these facts. In neither Bakke nor Fullilove did a majority of the Court hold that such a strict scrutiny standard was appropriate even when the racial classification imposed a preference. Thus, its use by the district court in this case cannot be sustained. Furthermore, even if the intermediate standard of review applied above were not deemed apt, the result would be the same if we apply the more rigorous standard used to evaluate affirmative action programs under which members of minority groups are given a preference. In reviewing such a preference, Chief Justice Burger in Fullilove declined to select a particular standard of scrutiny and instead reviewed the racial classification against the underlying concerns common to the opinions previously expressed in Bakke. As an alternative holding, therefore, we adopt that course which was also utilized recently by Judge Kravitch in her opinion reviewing a chailenge to a race-conscious affirmative action plan for county contracts in South Florida Chapter v. Metropolitan Dade County, 723 F.2d 846, 851-52 (11th Cir.1984). The relevant factors that emerge from the Supreme Court opinions are (1) the importance and validity of the remedial aim, (2) the competence of the agency to choose such a remedy, and (3) the tailoring of the remedy so as to limit the burden suffered by others. We do not suggest that this list is complete, but rather believe that it provides a framework in which tó determine whether this plan is permissible or entails Unconstitutional racial discrimination. A. Remedial Purpose One of the linchpins of appellees’ argument is its contention that the 75%/125% policy serves no remedial purposé and that, as a result, the legal precedent supporting a more flexible scrutiny for remedial plans is inapplicable. It bases its argument on the district court’s determination that the “purpose [of the policy] is to preserve the status quo and not to remedy past discreimination.” 555 F.Supp. at 256. We believe the district court’s narrow view of the parameters of a remedial purpose was erróneous as a matter of law, and that its finding that the 75%/125% policy in this case was not remedial was clear error. The district court apparently believed that once the School District was relieved by the OCR in 1982 of the obligation to maintain the 75%/125% policy, its action in continuing that policy ceased to be remedial. The district court ignored the 15 year history of state proceedings against the School District, which are still pending in state court, directed to effecting integration of the Philadelphia public school system. The long history of Philadelphia public schools as “racially identifiable” as either “white schools” or “black schools” cannot be gainsaid. As early as 1969 the School District was operating under a consent decree entered into with the Pennsylvania Human Relations Commission requiring it to remove the racial imbalance among teachers in its schools. The opinions of the Pennsylvania courts provide graphic evidence of the continuing efforts by the PHRC to require the School District to submit a plan that would be effective in eliminating racial imbalance in its schools, the submission of plans repeatedly held inadequate by the PHRC and the Commonwealth Court, and the failure, as yet, to reach the goal of racial balance. In the context of repeated court and administrative orders to eliminate the racial identifiability of schools, the School District’s plan to further this end by integrating faculty must be considered remedial as a vital part of the ongoing effort to achieve a unitary school system. Thus, the fact that the four year federal phase of this long history concluded in 1982 cannot signify an end to the remedial nature of efforts made toward this goal. In fact, at the time of the hearing before the district court, the School District was still Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate government best describes this litigant? A. legislative B. executive/administrative C. bureaucracy providing services D. bureaucracy in charge of regulation E. bureaucracy in charge of general administration F. judicial G. other Answer:
sc_lcdisposition	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. WEISGRAM et al. v. MARLEY CO. et al. No. 99-161. Argued January 18, 2000 Decided February 22, 2000 Ginsburg, J., delivered the opinion for a unanimous Court. Paul A. Strandness argued the cause for petitioners. With him on the briefs were Stephen S. Eckman and Daniel J. Dunn. Christine A. Hogan argued the cause for respondents. With her on the brief was James S. Hill. Jeffrey Robert Wkite filed a brief for the Association of Trial Lawyers of America as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for Brunswick Corp. by Stephen M. Shapiro, Timothy S. Bishop, and Jeffrey W. Sarles; and for the Product Liability Advisory Council, Inc., by Michael T. Wharton. Justice Ginsburg delivered the opinion of the Court. This case concerns the respective authority of federal trial and appellate courts to decide whether, as a matter of law, judgment should be entered in favor of a verdict loser. The pattern we confront is this. Plaintiff in a product liability action gains a jury verdict. Defendant urges, unsuccessfully before the federal district court but successfully on appeal, that expert testimony plaintiff introduced was unreliable, and therefore inadmissible, under the analysis required by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993). Shorn of the erroneously admitted expert testimony, the record evidence is insufficient to justify a plaintiff’s verdict. May the court of appeals then instruct the entry of judgment as a matter of law for defendant, or must that tribunal remand the ease, leaving to the district court’s discretion the choice between final judgment for defendant or a new trial of plaintiff’s case? Our decision is guided by Federal Rule of Civil Procedure 50, which governs the entry of judgment as a matter of law, and by the Court’s pathmarking opinion in Neely v. Martin K. Eby Constr. Co., 386 U. S. 317 (1967). As Neely teaches, courts of appeals should “be constantly alert” to “the trial judge’s first-hand knowledge of witnesses, testimony, and issues”; in other words, appellate courts should give due consideration to the first-instance decisionmaker’s “ Teel’ for the overall case.” Id., at 325. But the court of appeals has authority to render the final decision. If, in the particular ease, the appellate tribunal determines that the district court is better positioned to decide whether a new trial, rather than judgment for defendant, should be ordered, the court of appeals should return the case to the trial court for such an assessment. But if, as in the instant ease, the court of appeals concludes that further proceedings are unwarranted because the loser on appeal has had a full and fair opportunity to present the case, including arguments for a new trial, the appellate court may appropriately instruct the district court to enter judgment against the jury-verdict winner. Appellate authority to make this determination is no less when the evidence is rendered insufficient by the removal of erroneously admitted testimony than it is when the evidence, without any deletion, is insufficient. I Firefighters arrived at the home of Bonnie Weisgram on December 30, 1993, to discover flames around the front entrance. Upon entering the home, they found Weisgram in an upstairs bathroom, dead of carbon monoxide poisoning. Her son, petitioner Chad Weisgram, individually and on behalf of Bonnie Weisgram’s heirs, brought a diversity action in the United States District Court for the District of North Dakota seeking wrongful death damages. He alleged that a defect in an electric baseboard heater, manufactured by defendant (now respondent) Marley Company and located inside the door to Bonnie Weisgram’s home, caused both the fire and his mother’s death. At trial, Weisgram introduced the testimony of three witnesses, proffered as experts, in an endeavor to prove the alleged defect in the heater and its causal connection to the fire. The District Court overruled defendant Marley’s objections, lodged both before and during the trial, that this testimony was unreliable and therefore inadmissible under Federal Rule of Evidence 702 as elucidated by Daubert. At the close of Weisgram’s evidence, and again at the close of all the evidence, Marley unsuccessfully moved under Federal Rule of Civil Procedure 50(a) for judgment as a matter of law on the ground that plaintiffs had failed to meet their burden of proof on the issues of defect and causation. The jury returned a verdict for Weisgram. Marley again requested judgment as a matter of law, and additionally requested, in the alternative, a new trial, pursuant to Rules 50 and 59; among arguments in support of its post-trial motions, Marley reasserted that the expert testimony essential to prove Weisgram’s case was unreliable and therefore inadmissible. App. 123-125. The District Court denied the motions and entered judgment for Weisgram. App. to Pet. for Cert. A28-A40. Marley appealed. The Court of Appeals for the Eighth Circuit held that Marley’s motion for judgment as a matter of law should have been granted. 169 F. 3d 514, 517 (1999). Writing for the panel majority, Chief Judge Bowman first examined the testimony of Weisgram’s expert witnesses, the sole evidence supporting plaintiffs’ produet defect charge. Id., at 518-522. Concluding that the testimony was speculative and not shown to be scientifically sound, the majority held the expert evidence incompetent to prove Weisgram’s ease. Ibid. The court then considered the remaining evidence in the light most favorable to Weisgram, found it insufficient to support the jury verdict, and directed judgment as a matter of law for Marley. Id., at 516-517, 521-522. In a footnote, the majority “reject[ed] any contention that [it was] required to remand for a new trial.” Id., at 517, n. 2. It recognized its discretion to do so under Rule 50(d), but stated: “[W]e can discern no reason to give the plaintiffs a second chance to make out a case of strict liability .... This is not a close case. The plaintiffs had a fair opportunity to prove their claim and they failed to do so.” Ibid, (citations omitted). The dissenting judge disagreed on both points, concluding that the expert evidence was properly admitted and that the appropriate remedy for improper admission of expert testimony is the award of a new trial, not judgment as a matter of law. Id., at 522, 525 (citing Midcontinent Broadcasting Co. v. North Central Airlines, Inc., 471 F. 2d 357 (CA8 1973)). Courts of Appeals have divided on the question whether Federal Rule of Civil Procedure 50 permits an appellate court to direct the entry of judgment as a matter of law when it determines that evidence was erroneously admitted at trial and that the remaining, properly admitted evidence is insufficient to constitute a submissible ease. We granted certiorari to resolve the conflict, 527 U. S. 1069 (1999), and we now affirm the Eighth Circuit’s judgment. h-4 Federal Rule of Civil Procedure 50, reproduced below, governs motions for judgment as a matter of law in jury trials. It allows the trial court to remove cases or issues from the jury’s consideration "when the facts are sufficiently clear that the law requires a particular result.” 9A C. Wright & A. Miller, Federal Practice and Procedure § 2521, p. 240 (2d ed. 1995) (hereinafter Wright & Miller). Subdivision (d) controls when, as here, the verdict loser appeals from the trial court’s denial of a motion for judgment as a matter of law: “[T]he party who prevailed on that motion may, as ap-pellee, assert grounds entitling the party to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment. If the appellate court reverses the judgment, nothing in this rule precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.” Under this Rule, Weisgram urges, when a court of appeals determines that a jury verdict cannot be sustained due to an error in the admission of evidence, the appellate court may not order the entry of judgment for the verdict loser, but must instead remand the case to the trial court for a new trial determination. Brief for Petitioner 20, 22; Reply Brief 1, 17. Nothing in Rule 50 expressly addresses this question. In a series of pre-1967 decisions, this Court refrained from deciding the question, while emphasizing the importance of giving the party deprived of a verdict the opportunity to invoke the discretion of the trial judge to grant a new trial. See Cone v. West Virginia Pulp & Paper Co., 330 U. S. 212, 216-218 (1947); Globe Liquor Co. v. San Roman, 332 U. S. 571, 573-574 (1948); Johnson v. New York, N. H. & H. R. Co., 344 U. S. 48, 54, n. 3 (1952); see also 9A Wright & Miller § 2540, at 370. Then, in Neely, the Court reviewed its prior jurisprudence and ruled definitively that if a motion for judgment as a matter of law is erroneously denied by the district court, the appellate court does have the power to order the entry of judgment for the moving party. 386 U. S., at 326; see also Louis, Post-Verdict Rulings on the Sufficiency of the Evidence: Neely v. Martin K. Eby Construction Co. Revisited, 1975 Wis. L. Rev. 503 (surveying chronologically Court’s decisions bearing on appellate direction of judgment as a matter of law). Neely first addressed the compatibility of appellate direction of judgment as a matter of law (then styled “judgment n.o.v.”) with the Seventh Amendment’s jury trial guarantee. It was settled, the Court pointed out, that a trial court, pursuant to Rule 50(b), could enter judgment for the verdict loser without offense to the Seventh Amendment. 386 U. S., at 321 (citing Montgomery Ward & Co. v. Duncan, 311 U. S. 243 (1940)). “As far as the Seventh Amendment’s right to jury trial is concerned,” the Court reasoned, “there is no greater restriction on the province of the jury when an appellate court enters judgment n.o.v. than when a trial court does”; accordingly, the Court concluded, “there is no constitutional bar to an appellate court granting judgment n.o.v.” 386 U. S., at 322 (citing Baltimore & Carolina Line, Inc. v. Redman, 295 U. S. 654 (1935)). The Court next turned to “the statutory grant of appellate jurisdiction to the courts of appeals [in 28 U. S. C. §2106],” which it found “certainly broad enough to include the power to direct entry of judgment n.o.v. on appeal” 386 U. S., at 322. The remainder of the Neely opinion effectively complements Rules 50(c) and 50(d), providing guidance on the appropriate exercise of the appellate court’s discretion when it reverses the trial court’s denial of a defendant’s Rule 50(b) motion for judgment as a matter of law. Id., at 322-330; cf. supra, at 449, n. 5 (1963 observation of Advisory Committee that, as of that year, “problems [concerning motions for judgment coupled with new trial motions] ha[d] not been fully canvassed”). Neely represents no volte-face in the Court’s understanding of the respective competences of trial and appellate forums. Immediately after declaring that appellate courts have the power to order the entry of judgment for a verdict loser, the Court cautioned: “Part of the Court’s concern has been to protect the rights of the party whose jury verdict has been set aside on appeal and who may have valid grounds for a new trial, some or all of which should be passed upon by the district court, rather than the court of appeals, because of the trial judge’s first-hand knowledge of witnesses, testimony, and issues — because of his ‘feel’ for the overall case. These are very valid concerns to which the court of appeals should be constantly alert.” 386 U. S., at 325. Nevertheless, the Court in Neely continued, due consideration of the rights of the verdict winner and the closeness of the trial court to the case “do[es] not justify an ironclad rule that the court of appeals should never order dismissal or judgment for the defendant when the plaintiff’s verdict has been set aside on appeal.” Id., at 326. “Such a rule,” the Court concluded, “would not serve the purpose of Rule 50 to speed litigation and to avoid unnecessary retrials.” Ibid. Neely ultimately clarified that if a court of appeals determines that the district court erroneously denied a motion for judgment as a matter of law, the appellate court may (1) order a new trial at the verdict winner’s request or on its own motion, (2) remand the ease for the trial court to decide whether a new trial or entry of judgment for the defendant is warranted, or (3) direct the entry of judgment as a matter of law for the defendant. Id., at 327-330; see also 9A Wright & Miller § 2540, at 371-372. III The parties before us — and Court of Appeals opinions— diverge regarding Neely’s scope. Weisgram, in line with some appellate decisions, posits a distinction between cases in which judgment as a matter of law is requested based on plaintiffs failure to produce enough evidence to warrant a jury verdict, as in Neely, and eases in which the proof introduced becomes insufficient because the court of appeals determines that certain evidence should not have been admitted, as in the instant ease. Insufficiency caused by deletion of evidence, Weisgram contends, requires an “automatic remand” to the district court for consideration whether a new trial is warranted. Brief for Petitioner 20, 22; Reply Brief 1, 3-6; Tr. of Oral Arg. 6, 18, 23. Weisgram relies on cases holding that, in fairness to a verdict winner who may have relied on erroneously admitted evidence, courts confronting questions of judgment as a matter of law should rule on the record as it went to the jury, without excising evidence inadmissible under Federal Rule of Evidence 702. See, e. g., Kinser v. Gehl Co., 184 F. 3d 1259, 1267, 1269 (CA10 1999); Schudel v. General Electric Co., 120 F. 3d 991, 995-996 (CA9 1997); Jackson v. Pleasant Grove Health Care Center, 980 F. 2d 692, 695-696 (CA11 1993); Midcontinent Broadcasting, 471 F. 2d, at 358. But see Lightning Lube, Inc. v. Witco Corp., 4 F. 3d 1153, 1198-1200 (CA3 1993). These decisions are of questionable consistency with Rule 50(a)(1), which states that in ruling on a motion for judgment as a matter of law, the court is to inquire whether there is any “legally sufficient evidentiary basis for a reasonable jury to find for [the opponent of the motion].” Inadmissible evidence contributes nothing to a “legally sufficient evidentiary basis.” See Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 242 (1993) (“When an expert opinion is not supported by sufficient facts to validate it in the eyes of the law, or when indisputable record facts contradict or otherwise render the opinion unreasonable, it cannot support a jury’s verdict.”). As Neely recognized, appellate rulings on post-trial pleas for judgment as a matter of law call for the exercise of “informed discretion,” 386 U. S., at 329, and fairness to the parties is surely key to the exercise of that discretion. But fairness concerns should loom as large when the verdict winner, in the appellate court’s judgment, failed to present sufficient evidence as when the appellate court declares inadmissible record evidence essential to the verdict winner’s case. In both situations, the party whose verdict is set aside on appeal will have had notice, before the close of evidence, of the alleged evidentiary deficiency. See Fed. Rule Civ. Proc. 50(a)(2) (motion for judgment as a matter of law “shall specify .. . the law and facts on which the moving party is entitled to the judgment”). On appeal, both will have the opportunity to argue in support of the jury’s verdict or, alternatively, for a new trial. And if judgment is instructed for the verdict loser, both will have a further chance to urge a new trial in a rehearing petition. Since Daubert, moreover, parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet. 509 U. S. 579; see also Kumho Tire Co. v. Carmichael, 526 U. S. 137 (1999) (rendered shortly after the Eighth Circuit’s decision in Weisgram’s case); General Electric Co. v. Joiner, 522 U. S. 136 (1997). It is implausible to suggest, post-Daubert, that parties will initially present less than their best expert evidence in the expectation of a second chance should their first try fail. We therefore find unconvincing Weisgram’s fears that allowing courts of appeals to direct the entry of judgment for defendants will punish plaintiffs who could have shored up their cases by other means had they known their expert testimony would be found inadmissible. See Brief for Petitioner 18, 25. In this case, for example, although Weisgram was on notice every step of the way that Marley was challenging his experts, he made no attempt to add or substitute other evidence. See Lujan v. National Wildlife Federation, 497 U. S. 871, 897 (1990) (“[A] litigant’s failure to buttress its position because of confidence in the strength of that position is always indulged in at the litigant's own risk.”). After holding Weisgram’s expert testimony inadmissible, the Court of Appeals evaluated the evidence presented at trial, viewing it in the light most favorable to Weisgram, and found the properly admitted evidence insufficient to support the verdict. 169 F. 3d, at 516-517. Weisgram offered no specific grounds for a new trial to the Eighth Circuit. Even in the petition for rehearing, Weisgram argued only that the appellate court had misapplied state law, did not have the authority to direct judgment, and had failed to give adequate deference to the trial court’s evidentiary rulings. App. 131-151. The Eighth Circuit concluded that this was “not a close case.” 169 F. 3d, at 517, n. 2. In these circumstances, the Eighth Circuit did not abuse its discretion by directing entry of judgment for Marley, instead of returning the case to the District Court for further proceedings. * * * Neely recognized that there are myriad situations in which the determination whether a new trial is in order is best made by the trial judge. 386 U. S., at 325-326. Neely held, however, that there are also cases in which a court of appeals may appropriately instruct the district court to enter judgment as a matter of law against the jury-verdict winner. Id., at 326. We adhere to Neely’s holding and rationale, and today hold that the authority of courts of appeals to direct the entry of judgment as a matter of law extends to cases in which, on excision of testimony erroneously admitted, there remains insufficient evidence to support the jury’s verdict. For the reasons stated, the judgment of the Court of Appeals for the Eighth Circuit is Affirmed. At trial and on appeal, the suit of the Weisgram heirs was consolidated with an action brought against Marley Company by State Farm Fire and Casually Company, insurer of the Weisgram home, to recover benefits State Farm paid for the damage to the Weisgram townhouse and an adjoining townhouse. State Farm was dismissed from the appeal after certio-rari was granted. For purposes of this opinion, we generally refer to the plaintiffs below, and to the petitioners before us, simply as “Weisgram.” The Tenth Circuit has held it inappropriate for an appellate court to direct the entry of judgment as a matter of law based on the trial court’s erroneous admission of evidence, because to do so would be unfair to a party who relied on the trial court’s evidentiary rulings. See Kinser v. Gehl Co., 184 F. 3d 1259, 1267, 1269 (1999). The Fourth, Sixth, and Eighth Circuits recently have issued decisions, in accord with the position earlier advanced by the Third Circuit, directing the entry of judgment as a matter of law based on proof rendered insufficient by the deletion of improperly admitted evidence. See Redman v. John D. Brush & Co., 111 F. 3d 1174, 1178-1179 (CA4 1997); Smelser v. Norfolk Southern R. Co., 105 F. 3d 299, 301, 306 (CA6 1997); Wright v. Willamette Industries, Inc., 91 F. 3d 1105, 1108 (CA8 1996); accord, Aloe Coal Co. v. Clark Equipment Co., 816 F. 2d 110, 115-116 (CA3 1987). We agreed to decide only the issue of the authority of a court of appeals to direct the entry of judgment as a matter of law, and accordingly accept as final the decision of the Eighth Circuit holding the testimony of Weis-gram’s experts unreliable, and therefore inadmissible under Federal Rule of Evidence 702, as explicated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993). We also accept as final the Eighth Circuit’s determination that the remaining, properly admitted, evidence was insufficient to make a submissible case under state law. “Rule 50. Judgment as a Matter of Law in Jury Trials; Alternative Motion for New Trial; Conditional Rulings. “(a) Judgment as a Matter of Law. “(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue. “(2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment. “(b) Renewing Motion for Judgment after Trial; Alternative Motion for New Trial. If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment — and may alternatively request a new trial or join a motion for a new trial under Rule 59. In ruling on a renewed motion, the court may: “(1) if a verdict was returned: “(A) allow the judgment to stand, “(B) order a new trial, or “(C) direct entry of judgment as a matter of law; or “(2) if no verdict was returned: “(A) order a new trial, or “(B) direct entry of judgment as a matter of law. “(c) Granting Renewed Motion for Judgment as a Matter of Law; Conditional Rulings; New Trial Motion. “(1) If the renewed motion for judgment as a matter of law is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. In case the motion for a new trial has been conditionally denied, the appellee on appeal may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court. "(2) Any motion for a new trial under Rule 59 by a party against whom judgment as a matter of law is rendered shall be filed no later than 10 days after entry of the judgment. “(d) Same: Denial of Motion for Judgment as a MatteR op Law. If the motion for judgment as a matter of law is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling the party to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment. If the appellate court reverses the judgment, nothing in this rule precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.” According to the Advisory Committee Notes to the 1963 Rule 50 amendments, this "omission” was not inadvertent: “Subdivision (d) does not attempt a regulation of all aspects of the procedure where the motion for judgment n.o.v. and any accompanying motion for a new trial are denied, since the problems have not been fully canvassed in the decisions and the procedure is in some respects still in a formative stage. It is, however, designed to give guidance on certain important features of the practice.” Advisory Committee’s Notes on Fed. Rule Civ. Proc. 50(d), 28 U. S. C. App., p. 769. Section 2106 reads: “The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.” Iacurci v. Lummus Co., 387 U.S. 86 (1967) (per curiam), decided shortly after Neely, is illustrative. There, the Court reversed the appellate court’s direction of the entry of judgment as a matter of law for the defendant and instructed the appeals court to remand the case to the trial court for a new trial determination; the Court pointed to the jury’s failure to respond to four out of five special interrogatories, which left issues of negligence unresolved, and concluded that in the particular circumstances, the trial judge “was in the best position to pass upon the question of a new trial in light of the evidence, his charge to the jury, and the jury’s verdict and interrogatory answers.” 387 U. S., at 88. See Tr. of Oral Arg. 6, 8, 17-18, 23, 26-28, 31; Reply Brief 3-6; Brief for Respondents 24-29. Compare, e. g., Redman, 111 F. 3d, at 1178-1179 (treating judgment as a matter of law based on insufficiency caused by admission error identically to initial insufficiency); Smelser, 105 F. 3d, at 301, 306 (same); Wright, 91 F. 3d, at 1108 (same); Lightning Lube, Inc. v. Witco Corp., 4 F. 3d 1153, 1198-1200 (CA3 1993) (rejecting distinction), with Kinser, 184 F. 3d, at 1267, 1269 (insufficiency caused by admission error inappropriate basis for judgment as a matter of law); Jackson v. Pleasant Grove Health Care Center, 980 F. 2d 692, 695-696 (CA11 1993) (same); Douglass v. Eaton Corp., 956 F. 2d 1339, 1343-1344 (GA6 1992) (same); Midcontinent Broadcasting Co. v. North Central Airlines, Inc., 471 F. 2d 357, 358-359 (CA8 1973) (same). Weisgram misreads the Court’s decision in Montgomery Ward & Co. v. Duncan, 311 U. S. 243 (1940), to support his position. Reply Brief 3-4; Tr. of Oral Arg. 19. The Court in Montgomery Ward directed that a trial judge who grants the verdict loser’s motion for judgment n.o.v. should also rule conditionally on that party’s alternative motion for a new trial. 311 U. S., at 253-254. The conditional ruling would be reviewed by the court of appeals only if it reversed the entry of judgment n.o.v. Proceeding in this manner would avoid protracting the proceedings by obviating the need for multiple appeals. See id. at 253. Rule 50 was amended in 1963 to codify Montgomery Ward’s instruction. See Fed. Rule Civ. Proc. 50(c)(1). In the course of its elaboration, the Montgomery Ward Court observed that a “motion for judgment cannot be granted unless, as a matter of law, the opponent of the movant Mled to make a case.” 311 U. S., at 251. In contrast, the Court stated, a new trial motion may invoke the court’s discretion, bottomed on such standard new trial grounds as “the verdict is against the weight of the evidence,” or “the damages are excessive,” or substantial errors were made “in admission or rejection of evidence.” Ibid; see also id, at 249. Many rulings on evidence, of course, do not bear dispositively on the adequacy of the proof to support a verdict. For example, the evidence erroneously admitted or excluded may strengthen or weaken one side’s case without being conclusive as to the litigation’s outcome. Or, the evidence may abundantly support a jury’s verdict, but one or another item may have been unduly prejudicial to the verdict loser and excludable on that account. See Fed. Rule Evid. 403 (relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice”). Such run-of-the-mine, ordinarily nondispositive, evidentiary rulings, we take it, were the sort contemplated in Montgomery Ward. Cf. 311 U. S., at 245-246 (indicating that sufficiency-of-the-evidence challenges are properly raised by motion for judgment, while other rulings on evidence may be assigned as grounds for a new trial). Weisgram additionally urges that the Seventh Amendment prohibits a court of appeals from directing judgment as a matter of law on a record different from the one considered by the jury. Brief for Petitioner 20-22; Reply Brief 6-8. Neely made dear that a court of appeals may order entry of judgment as a matter of law on suffidency-of-the-evidence grounds without violating the Seventh Amendment. 386 U. S., at 321-322. Entering judgment for the verdict loser when all of the evidence was properly before the jury is scarcely less destructive of the jury’s verdict than is entry of such a judgment based on a record made insufficient by the removal of evidence the jury should not have had before it. We recognize that it is awkward for an appellee, who is wholeheartedly urging the correctness of the verdict, to point out, in the alternative, grounds for a new trial. See Kaplan, Amendments of the Federal Rules of Civil Procedure, 1961-1963 (II), 77 Harv. L. Rev. 801, 819 (1964) (“A verdict winner may suffer forensic embarrassment in arguing for a new trial on his own behalf, faute de mieux, while seeking to defend his verdict against all attacks by his opponent.”). A petition for rehearing in the court of appeals, however, involves no conflicting tugs. We are not persuaded by Weisgram’s objection that the 14 days allowed for the filing of a petition for rehearing is insufficient time to formulate compelling grounds for a new trial. Reply Brief 15-16. This time period is longer than the ten days allowed a verdict winner to move for a new trial after a trial court grants judgment as a matter of law. See Fed. Rule Civ. Proc. 50(c)(2). Nor do we foreclose the possibility that a court of appeals might properly deny a petition for rehearing because it pressed an argument that plainly could have been formulated in a party’s brief See Louis, Post-Verdict Rulings on the Sufficiency of the Evidence: Neely v. Martin K. Eby Construction Co. Revisited, 1975 Wis. L. Rev. 503, 519-520, n. 90 (“[IJt is often difficult to argue that a gap in one’s proof can be filled before a court has held that the gap exists ....” On the other hand, “the brief or oral argument will suffice ... when the area of the alleged evidentiary insufficiency has previously been clearly identified.” (citation omitted)). We note that the decision in Kwmho is consistent with Eighth Circuit precedent existing at the time of trial in Weisgram’s case. See, e.g., Peitzmeier v. Hennessy Industries, Inc., 97 F. 3d 293, 297 (CA8 1996). Cf Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:
sc_lcdisagreement	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent. COLORADO v. BERTINE No. 85-889. Argued November 10, 1986 Decided January 14, 1987 Rehnquist, C. J., delivered the opinion of the Court, in which White, Blackmun, Powell, Stevens, O’Connor, and Scalia, JJ., joined. Blackmun, J., filed a concurring opinion, in which Powell and O’Con-nor, JJ., joined, post, p. 376. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 377. John M. Haried argued the cause for petitioner. With him on the briefs were C. Phillip Miller and Richard F. Good. Richard J. Lazarus argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Trott, and Deputy Solicitor General Bryson. Cary C. Lacklen argued the cause for respondent. With him on the brief were David F. Vela and Thomas M. Van Cleave III Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Larry W. Yackle and George Kannar; and for the Colorado Criminal Defense Bar, Inc., et al. by John M. Richilano and Mary G. Allen. Chief Justice Rehnquist delivered the opinion of the Court. On February 10, 1984, a police officer in Boulder, Colorado, arrested respondent Steven Lee Bertine for driving while under the influence of alcohol. After Bertine was taken into custody and before the arrival of a tow truck to take Bertine’s van to an impoundment lot, a backup officer inventoried the contents of the van. The officer opened a closed backpack in which he found controlled substances, cocaine paraphernalia, and a large amount of cash. Bertine was subsequently charged with driving while under the influence of alcohol, unlawful possession of cocaine with intent to dispense, sell, and distribute, and unlawful possession of methaqualone. We are asked to decide whether the Fourth Amendment prohibits the State from proving these charges with the evidence discovered during the inventory of Ber-tine’s van. We hold that it does not. The backup officer inventoried the van in accordance with local police procedures, which require a detailed inspection and inventory of impounded vehicles. He found the backpack directly behind the frontseat of the van. Inside the pack, the officer observed a nylon bag containing metal canisters. Opening the canisters, the officer discovered that they contained cocaine, methaqualone tablets, cocaine paraphernalia, and $700 in cash. In an outside zippered pouch of the backpack, he also found $210 in cash in a sealed envelope. After completing the inventory of the van, the officer had the van towed to an impound lot and brought the backpack, money, and contraband to the police station. After Bertine was charged with the offenses described above, he moved to suppress the evidence found during the inventory search on the ground, inter alia, that the search of the closed backpack and containers exceeded the permissible scope of such a search under the Fourth Amendment. The Colorado trial court ruled that probable causé supported Bertine’s arrest and that the police officers had made the decisions to impound the vehicle and to conduct a thorough inventory search in good faith. Although noting that the inventory of the vehicle was performed in a “somewhat slipshod” manner, the District Court concluded that “the search of the backpack was done for the purpose of protecting the owner’s property, protection of the police from subsequent claims of loss or stolen property, and the protection of the police from dangerous instrumentalities.” App. 81-83. The court observed that the standard procedures for impounding vehicles mandated a “detailed inventory involving the opening of containers and the listing of [their] contents.” Id., at 81. Based on these findings, the court determined that the inventory search did not violate Bertine’s rights under the Fourth Amendment of the United States Constitution. Id., at 83. The court, nevertheless, granted Bertine’s motion to suppress, holding that the inventory search violated the Colorado Constitution. On the State’s interlocutory appeal, the Supreme Court of Colorado affirmed. 706 P. 2d 411 (1985). In contrast to the District Court, however, the Colorado Supreme Court premised its ruling on the United States Constitution. The court recognized that in South Dakota v. Opperman, 428 U. S. 364 (1976), we had held inventory searches of automobiles to be consistent with the Fourth Amendment, and that in Illinois v. Lafayette, 462 U. S. 640 (1983), we had held that the inventory search of personal effects of an arrestee at a police station was also permissible under that Amendment. The Supreme Court of Colorado felt, however, that our decisions in Arkansas v. Sanders, 442 U. S. 753 (1979), and United States v. Chadwick, 433 U. S. 1 (1977), holding searches of closed trunks and suitcases to violate the Fourth Amendment, meant that Opperman and Lafayette did not govern this case. We granted certiorari to consider the important and recurring question of federal law decided by the Colorado Supreme Court. 475 U. S. 1081 (1986). As that court recognized, inventory searches are now a well-defined exception to the warrant requirement of the Fourth Amendment. See Lafayette, supra, at 643; Opperman, supra, at 367-376. The policies behind the warrant requirement are not implicated in an inventory search, Opperman, 428 U. S., at 370, n. 5, nor is the related concept of probable cause: “The standard of probable cause is peculiarly related to criminal investigations, not routine, noncriminal procedures. . . . The probable-cause approach is unhelpful when analysis centers upon the reasonableness of routine administrative caretaking functions, particularly when no claim is made that the protective procedures are a subterfuge for criminal investigations.” Ibid. See also United States v. Chadwick, supra, at 10, n. 5. For these reasons, the Colorado Supreme Court’s reliance on Arkansas v. Sanders, supra, and United States v. Chadwick, supra, was incorrect. Both of these cases concerned searches solely for the purpose of investigating criminal conduct, with the validity of the searches therefore dependent on the application of the probable-cause and warrant requirements of the Fourth Amendment. By contrast, an inventory search may be “reasonable” under the Fourth Amendment even though it is not conducted pursuant to a warrant based upon probable cause. In Opperman, this Court assessed the reasonableness of an inventory search of the glove compartment in an abandoned automobile impounded by the police. We found that inventory procedures serve to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger. In light of these strong governmental interests and the diminished expectation of privacy in an automobile, we upheld the search. In reaching this decision, we observed that our cases accorded deference to police caretaking procedures designed to secure and protect vehicles and their contents within police custody. See Cooper v. California, 386 U. S. 58, 61-62 (1967); Harris v. United States, 390 U. S. 234, 236 (1968); Cady v. Dombrowski, 413 U. S. 433, 447-448 (1973). In our more recent decision, Lafayette, a police officer conducted an inventory search of the contents of a shoulder bag in the possession of an individual being taken into custody. In deciding whether this search was reasonable, we recognized that the search served legitimate governmental interests similar to those identified in Opperman. We determined that those interests outweighed the individual’s Fourth Amendment interests and upheld the search. In the present case, as in Opperman and Lafayette, there was no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation. In addition, the governmental interests justifying the inventory searches in Opperman and Lafayette are nearly the same as those which obtain here. In each case, the police were potentially responsible for the property taken into their custody. By securing the property, the police protected the property from unauthorized interference. Knowledge of the precise nature of the property helped guard against claims of theft, vandalism, or negligence. Such knowledge also helped to avert any danger to police or others that may have been posed by the property. The Supreme Court of Colorado opined that Lafayette was not controlling here because there was no danger of introducing contraband or weapons into a jail facility. Our opinion in Lafayette, however, did not suggest that the station-house setting of the inventory search was critical to our holding in that case. Both in the present case and in Lafayette, the common governmental interests described above were served by the inventory searches. The Supreme Court of Colorado also expressed the view that the search in this case was unreasonable because Bertine’s van was towed to a secure, lighted facility and because Bertine himself could have been offered the opportunity to make other arrangements for the safekeeping of his property. But the security of the storage facility does not completely eliminate the need for inventorying; the police may still wish to protect themselves or the owners of the lot against false claims of theft or dangerous instrumentalities. And while giving Bertine an opportunity to make alternative arrangements would undoubtedly have been possible, we said in Lafayette: “[T]he real question is not what ‘could have been achieved,’ but whether the Fourth Amendment requires such steps .... “The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative ‘less intrusive’ means.” Lafayette, 462 U. S., at 647 (emphasis in original). See Cady v. Dombrowski, supra, at 447; United States v. Martinez-Fuerte, 428 U. S. 543, 557, n. 12 (1976). We conclude that here, as in Lafayette, reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment, even though courts might as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure. The Supreme Court of Colorado also thought it necessary to require that police, before inventorying a container, weigh the strength of the individual’s privacy interest in the container against the possibility that the container might serve as a repository for dangerous or valuable items. We think that such a requirement is contrary to our decisions in Opperman and Lafayette, and by analogy to our decision in United States v. Ross, 456 U. S. 798 (1982): “Even if less intrusive means existed of protecting some particular types of property, it would be unreasonable to expect police officers in the everyday course of business to make fine and subtle distinctions in deciding which containers or items may be searched and which must be sealed as a unit.” Lafayette, supra, at 648. “When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.” United States v. Ross, supra, at 821. We reaffirm these principles here: “‘[a] single familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.’ ” Lafayette, supra, at 648 (quoting New York v. Belton, 453 U. S. 454, 458 (1981)). Bertine finally argues that the inventory search of his van was unconstitutional because departmental regulations gave the police officers discretion to choose between impounding his van and parking and locking it in a public parking place. The Supreme Court of Colorado did not rely on this argument in reaching its conclusion, and we reject it. Nothing in Opperman or Lafayette prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity. Here, the discretion afforded the Boulder police was exercised in light of standardized criteria, related to the feasibility and appropriateness of parking and locking a vehicle rather than impounding it. There was no showing that the police chose to impound Bertine’s van in order to investigate suspected criminal activity. While both Opperman and Lafayette are distinguishable from the present case on their facts, we think that the principles enunciated in those cases govern the present one. The judgment of the Supreme Court of Colorado is therefore Reversed. Section 7-7-2(a)(4) of the Boulder Revised Code authorizes police officers to impound vehicles when drivers are taken into custody. Section 7-7-2(a)(4) provides: “A peace officer is authorized to remove or cause to be removed a vehicle from any street, parking lot, or driveway when: (4) The driver of a vehicle is taken into custody by the police department.” Boulder Rev. Code § 7-7-2(a)(4)(1981). Two justices dissented from the majority opinion, arguing that South Dakota v. Opperman and Illinois v. Lafayette compel the conclusion that the inventory search of the backpack found in Bertine’s van was permissible under the Fourth Amendment. Since our decision in South Dakota v. Opperman, several courts have confronted the issue whether police may inventory the contents of containers found in vehicles taken into police custody. See, e. g., United States v. Griffin, 729 F. 2d 475 (CA7) (upholding inventory search of package found in paper bag), cert. denied, 469 U. S. 830 (1984); United States v. Bloomfield, 594 F. 2d 1200 (CA8 1979) (affirming suppression of evidence found in closed knapsack); People v. Braasch, 122 Ill. App. 3d 747, 461 N. E. 2d 651 (1984) (upholding inventory of paper bag); People v. Gonzalez, 62 N. Y. 2d 386, 465 N. E. 2d 823 (1984) (upholding inventory of paper bag); Boggs v. Commonwealth, 229 Va. 501, 331 S. E. 2d 407 (1985) (upholding inventory of boxes and pouch found in bag), cert. denied, 475 U. S. 1031 (1986). The Colorado Supreme Court correctly stated that Opperman did not address the question whether the scope of an inventory search may extend to closed containers located in the interior of an impounded vehicle. We did note, however, that “ ‘when the police take custody of any sort of container [such as] an automobile ... it is reasonable to search the container to itemize the property to be held by the police.’ ” 428 U. S., at 371 (quoting United States v. Gravitt, 484 F. 2d 375, 378 (CA5 1973), cert. denied, 414 U. S. 1135 (1974)). In arguing that the latter two interests are not implicated here, the dissent overlooks the testimony of the backup officer who conducted the inventory of Bertine’s van. According to the officer, the vehicle inventory procedures of the Boulder Police Department are designed for the “[p]ro-teetion of the police department” in the event that an individual later claims that “there was something of value taken from within the vehicle.” 2 Tr. 19. The officer added that inventories are also conducted in order to cheek “[f]or any dangerous items such as explosives [or] weapons.” Id., at 20. The officer testified that he had found such items in vehicles. We emphasize that, in this case, the trial court found that the Police Department’s procedures mandated the opening of closed containers and the listing of their contents. Our decisions have always adhered to the requirement that inventories be conducted according to standardized criteria. See Lafayette, 462 U. S., at 648; Opperman, 428 U. S., at 374-376. By quoting a portion of the Colorado Supreme Court’s decision out of context, the dissent suggests that the inventory here was not authorized by the standard procedures of the Boulder Police Department. See post, at 380-381. Yet that court specifically stated that the procedure followed here was “officially authorized.” 706 P. 2d 411, 413, n. 2 (1985). In addition, the court did not disturb the trial court’s finding that the police procedures for impounding vehicles required a detailed inventory of Bertine’s van. See id., at 418-419. In arguing that the Boulder Police Department procedures set forth no standardized criteria guiding an officer’s decision to impound a vehicle, the dissent selectively quotes from the police directive concerning the care and security of vehicles taken into police custody. The dissent fails to mention that the directive establishes several conditions that must be met before an officer may pursue the park-and-loek alternative. For example, police may not park and lock the vehicle where there is reasonable risk of damage or vandalism to the vehicle or where the approval of the arrestee cannot be obtained. App. 91-92, 94-95. Not only do such conditions circumscribe the discretion of individual officers, but they also protect the vehicle and its contents and minimize claims of property loss. Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented? A. Yes B. No Answer:
songer_numappel	2	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Melvin MORRIS and Noah A. Spann, Defendants-Appellants. Nos. 90-1080, 90-1134. United States Court of Appeals, Seventh Circuit. Argued Jan. 22, 1991. Decided March 18, 1992. Rehearing and Rehearing En Banc Denied June 3, 1992. David Capp, Asst. U.S. Atty. (argued), Andrew B. Baker, Jr., Asst. U.S. Atty., Dyer, Ind., for U.S. Michael B. Nash (argued), Chicago, Ill., for Melvin Morris. Ellen G. Robinson (argued), Robinson, Gurley & Clayton, Chicago, Ill., for Noah A. Spann. Before CUMMINGS, COFFEY and EASTERBROOK, Circuit Judges. COFFEY, Circuit Judge. Defendants-appellants Melvin Morris and Noah A. Spann were found guilty after a jury trial on August 31, 1989 of one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371, two counts of mail fraud in violation of 18 U.S.C. § 1341, and one count of misapplying federal revenue sharing funds in violation of 18 U.S.C. § 666(a). They contest their convictions on numerous grounds. We affirm. FACTS This case involves the purchase of a nursing home facility in East Chicago, Indiana by Tri-City Comprehensive Community Mental Health Center, Inc. (“TriCity”), a community mental health provider, using Lake County, Indiana funds and federal revenue sharing funds. The jury convicted the two appellants of misappropriating federal funds to bribe various individuals involved in the purchase of the nursing home facility and to pay an inflated purchase price for the facility. In 1980, the state of Indiana converted a state mental hospital into a correctional facility, displacing a number of psychiatric patients. Some of these displaced patients were housed in a deteriorating nursing home facility in Lake County that provided nothing more than room and board. A dispute between the nursing home’s owner and the state over the rates the nursing home charged led to the closing of the facility, requiring the emergency placement of the mental patients. Thereafter, a permanent solution for the placement of these mentally ill patients was sought. During the time that the patient housing crisis was straining the Lake County mental health system, the owners of the East Chicago Rehabilitation Center, Inc. (“ECRC”), a nursing home in East Chicago, Lake County, Indiana, were considering selling their facility. ECRC was owned by a group of five men, including one of the appellants, attorney Melvin Morris. The interest of the ECRC owners in selling their facility was communicated shortly thereafter to Glenn Kuipers, the executive director of Tri-City. Tri-City was one of three mental health centers in Lake County, and its operation was funded from patient fees combined with state and federal funds. A sister corporation to Tri-City, the Foundation for Comprehensive Mental Health Care, Inc. (“Foundation”), was formed in 1980 to hold property for TriCity. . Tri-City’s specific responsibility within the Lake County mental health system was to care for those persons diagnosed as being chronically mentally ill (“CMIs”). Mental patients were classified as CMIs when the nature of their mental illness was more acute and required repeated hospitalization or occasional confinement for extended periods of time in a more structured psychiatric setting. The CMIs were among the patients most acutely affected by the mental health system’s housing shortage. As Melvin Morris and the other ECRC owners were looking for a buyer and TriCity was seeking ways to solve the CMI problem, Noah A. Spann,, the other defendant-appellant, stepped to center stage. From 1974 to 1986, Spann was one of three district commissioners of the Lake County Board of Commissioners, the governmental body in the Lake County executive branch entrusted with the authority to enter into contracts on behalf of the county and approve payment requests of county contracts. Although it required a majority vote of the three commissioners to award a contract, the commissioners had a tacit agreement among themselves that any contract within a commissioner’s district would not be Opposed if the local commissioner was in favor of it. Thus, the potential purchase of ECRC by Tri-City fell within Spann’s designated de facto authority as East Chicago’s commissioner. Events began to accelerate after Kui-pers,. representing Tri-City, met with Commissioner Spann to discuss the purchase. Spann responded favorably to Kuipers’ inquiries about the possible purchase by TriCity of ECRC. Spann indicated that he was interested in the transaction since ECRC was located in his district. Sometime in the middle of 1982, Kuipers met with both Morris and Spann to discuss the ECRC purchase, and negotiations continued through 1983. In late 1983, after discussions with his ECRC partners, Morris proposed to Kuipers an asking price of $6,423,000 for the facility. Shortly thereafter, at a meeting between ECRC and TriCity officials, Morris made a presentation suggesting a per bed cost of $40,000. A Tri-City accountant characterized the proposed price as “way too high”. On December 5, 1983, Kuipers submitted a proposal to Morris for the acquisition of ECRC for a total price of $4,948,000, which included a sale price of $4,148,000, a ten month lease of ECRC by Tri-City for $500,-000, and a ten-month $300,000 management contract under which ECRC would operate the facility. Morris and his partners rejected the proposal. Kuipers then discussed the purchase price with Spann. On or about December 21, Kuipers submitted a proposal of $5,073,000, including the same previously discussed sale price of $4,148,000 and $500,000 lease, but with the management contract fee increased to $425,000. Morris and his partners accepted this proposal. On December 31, 1983, ECRC entered into a Memorandum of Agreement with the Foundation (Tri-City's sister corporation). The memorandum provided that the parties would enter into a ten month lease of ECRC by the Foundation, with lease payments of $210,000, $160,650 and $189,350, due on December 31, 1983, February 1, 1984 and August 31, 1984, respectively. The agreement also provided that ECRC would operate the facility pursuant to a $425,000 management contract. The Foundation would purchase ECRC for $4,148,-000. The total payments under the Memorandum were $5,133,000, $60,000 more than the total of the proposal Morris had accepted. In January, 1984, Tri-City began receiving money from the County for the ECRC transaction and transferred it to the Foundation, which in turn began making payments to ECRC pursuant to the Memorandum agreement. State regulations, however, created problems for the developing scheme. Kuipers was advised by his accounting firm that the state of Indiana, pursuant to Indiana law, would not grant a license to a facility if it was operating under a lease arrangement. Morris and Kuipers restructured the agreement into a purchase agreement, using the initial lease payment of $210,000 as an option price for the purchase. The option agreement provided for a cash purchase price for ECRC of $4,148,000 and an alternative contract sale price of $4,800,000 with monthly payments of $52,162. The parties also negotiated a training agreement, under which ECRC would train designated representatives of the Foundation in the operation of the facility. The training fee was set at $160,650. This amount was equal to the second contemplated lease payment under the memorandum agreement. The negotiations also included other contracts to cover the remaining lease payment and the management contract provided in the memorandum agreement. These additional agreements included a temporary in-patient care contract under which 15 beds would be reserved for 351 days at ECRC for Tri-City patients for a price of $355,000. A psychiatric care agreement valued at $260,000 was also made part of the restructured transaction. The option agreement was signed on February 1, 1984, with an expiration date in 425 days. The training agreement was signed on February 14, 1984, and eight days later the Foundation paid ECRC the $160,650 required under its terms. No one was ever trained under the agreement. Shortly thereafter, the Indiana. State Board of Health, pursuant to its regulatory obligations, determined that the ECRC purchase price was excessive as the ECRC purchase price came to $34,000 per bed, far exceeding new construction costs in the area calculated on the high side at $28,000 per bed. Undeterred, the schemers restructured the ECRC sale a third time. The original option had expired by this time and thus, on March 29, 1985, the parties entered into the “First Amended Option Agreement.” The amended option agreement provided for a purchase price of $3,416,000 Gower-ing the per bed costs to $28,000), which was some $732,000 less than the purchase price in the original option. Morris then put together a new agreement for temporary in-patient care. This temporary inpatient care agreement provided that 30 skilled care beds would be reserved at ECRC for Foundation patients for six months, up from the previously reserved 15 beds. The agreement provided that the cost of reserving the thirty beds for Foundation patients was $104,000 per month for a total of $624,000 during the six month period. Under the agreement, the Foundation was liable for the full amount whether the beds were occupied or not.. Spann then went to the Lake County, Indiana Council and requested $1,050,000 in County funds for the acquisition of a CMI facility in 1985 for use- in 1986. At a budget committee meeting of the County Council on June 6,1985, Kuipers and Spann told the Council president that they had not yet selected a facility, even though the president specifically asked about ECRC. The commissioners allocated $1,050,000 for the purchase of ECRC, the, money coming from federal revenue sharing funds. On August 30, 1985, the Foundation exercised its option under the agreement with ECRC and began paying ECRC the monthly purchase price payments of $54,590.70 per month. Subsequently, the Foundation made six monthly payments to ECRC under the temporary care agreement. The sale of ECRC was completed shortly thereafter, but in March, 1986, a federal grand jury investigation began, culminating in the indictments and convictions of Morris and Spann. ISSUES PRESENTED The defendants-appellants contest their convictions on numerous grounds. They argue (1) that the evidence presented at trial was insufficient to sustain their convictions; (2) that the trial judge made several evidentiary errors; (3) that the trial judge improperly denied their motion to compel the government to produce certain FBI reports of interviews with Glenn Kui-pers pursuant to the Jencks Act, 18 U.S.C. § 3500 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (4) that Spann’s convictions for conspiring to defraud the United States and for mail fraud and the misapplication of federal monies violated Wharton’s rule since they involved convictions for conspiracy as well as the completed substantive offenses; and (5) that the trial judge abused his discretion sentencing the defendants. I. SUFFICIENCY OF THE EVIDENCE Morris and Spann claim that the government failed to present evidence sufficient to support their convictions for conspiring to defraud the United States (18 U.S.C. § 371), mail fraud (18 U.S.C. § 1341) and misapplying federal revenue sharing funds (18 U.S.C. § 666(a)). In evaluating the sufficiency of the evidence challenge, we note that the appellants bear a “heavy burden”: “Initially, we ‘review all the evidence and all the reasonable inferences that can be drawn from the evidence in the light most favorable to the government.’ ... ‘The test is whether after viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt_ A verdict will withstand a sufficiency of the evidence challenge unless there is no evidence from which the jury could find guilt beyond a reasonable doubt.... In appeals of jury trials such as this case, we are obliged to ‘defer to reasonable inferences drawn by the jury and the weight it gave to the evidence. Likewise, we leave the credibility of witnesses solely to the jury’s evaluation, absent extraordinary circumstances.... [W]e ‘view the evidence in the light most favorable to the government and accept circumstantial evidence as support, even sole support, for a conviction.” United States v. Moore, 936 F.2d 1508, 1524 (7th Cir.) cert. denied, Moore v. United States, — U.S.-, 112 S.Ct. 607, 116 L.Ed.2d 630 (1991) (citations omitted) (emphasis in original). With these standards for appellate review in mind, we turn to Morris’ and Spann’s arguments requesting that we overturn their convictions because the evidence presented in the trial court was insufficient to meet the requisite burdens of proof. The two were convicted for their participation in a scheme to sell ECRC at a grossly inflated price using public funds to finance the purchase. The government persuaded the jury that in executing their plan to sell at the inflated purchase price the defendants conspired to defraud the federal government, committed mail fraud and misapplied federal revenue sharing funds. Central to the government’s trial theory was that numerous collateral agreements the parties entered into were merely part and parcel of a fraudulent scheme to maintain the artificially high price of the ECRC sale. The government presented evidence at trial that the temporary in-patient care agreement discussed above was an integral part of the fraudulent scheme to inflate the price of the ECRC transaction. The agreement provided for the reservation of 30 beds for Tri-City in the ECRC for a 6 month period beginning August 30, 1985. Under the agreement, the Foundation (acting for Tri-City) was liable for the full $624,000 price of the reservation whether the beds were ever occupied or hot. Jacqueline Beverly, former Assistant Director of Tri-City, testified that the agreement reserving beds at ECRC did not benefit Tri-City since CMI patients (ostensibly the ones for whom the beds were reserved) generally did not require nursing home bed care and confinement, but, required only a minimum amount of help in supervised housing. Further buttressing the government’s characterization of the temporary in-patient care agreement as a fraudulent device to transfer funds to ECRC was the testimony of Dr. Jerry H. Henderson, an ECRC administrator. Henderson’s testimony makes clear that ECRC had ample bed capacity for any additional patients. Thus, the reservation setting aside thirty beds (with guaranteed payment whether the beds were occupied or not) was unnecessary. Evidence presented at trial demonstrated that the other collateral agreements were as suspect as the temporary in-patient care agreement. Glenn Kuipers testified that the training agreement was created in an effort to sustain the total inflated purchase price of ECRC. The Foundation paid ECRC over $160,000 for the training agreement under which no one was ever trained. When the lease contemplated in the original agreement had to be scrapped because of state licensing problems, the funds which were to be transferred to ECRC through the second contemplated lease payment were simply rerouted through the sham training agreement. The government argued at trial that the only purpose for any of these collateral agreements was that they maintained the agreed package price of over $5 million. Despite a 14 month span and numerous changes in types of agreements and per bed costs, the total package price remained remarkably constant. Presented with the evidence set out above, a rational trier of fact (here, the jury) could have concluded beyond a reasonable doubt that the collateral agreements were entered into merely to sustain the inflated $5 million dollar agreement. The government also produced several witnesses who testified that the proposed price for the ECRC facility was far in excess of the cost in the comparable market. Terrance M. Hiduke, a certified public accountant hired by Tri-City to assist in the. proposed purchase of ECRC, testified that he did not seek an independent appraisal of the ECRC facility because “the price was considerably above what other [comparable] facilities were being sold at.” Joseph Baldus, a career health administrator with over 20 years experience with nursing homes and a project review officer with the Indiana State Board of Health assigned to review the ECRC proposal, testified that per bed costs of the facility were “a bit much higher than the norm at that time.” John Dull, the Lake County attorney who investigated the costs of nursing homes in connection with the ECRC purchase, testified that he told Spann that the range of per bed costs for nursing homes in Indiana was between $13,000 and $28,000 and that the County ought to begin negotiations for the purchase of ECRC at the $13,000 range. Rather than follow Dull’s negotiation recommendation, Spann’s response was that the price would then be $28,000 per bed, the high end of the price range. Other evidence offered at trial that demonstrated that the ECRC transaction was fraudulent from its inception was testimony concerning Spann’s commissioning of á study to determine if the ECRC facility would be suitable for Tri-City’s purposes. The study was done by Macro Systems, Inc. under a contract with Lake County. Spann, after threatening nonpayment, persuaded Macro Systems to produce a study he could use to argue for and support the purchase of ECRC by Tri-City. This evidence served to corroborate the testimony of Glenn Kuipers, which demonstrated that the ECRC purchase price was grossly inflated and that the collateral agreements with Morris were merely a device to justify and provide a vehicle for the transfer of money to ECRC. The government presented further evidence damaging to Morris and Spann’s denials of the charge that they arranged the ECRC sale at a grossly inflated price, thus misapplying federal monies. Testimony established that the two arranged payments to Kuipers and Larry Crowel to ensure that the ECRC transaction would be consummated at the inflated price they desired. Crowel was the owner of a cleaning company which had a contract with Tri-City. Crowel paid Kuipers’ girlfriend a salary without her performing any work while Kuipers, in turn, approved inflated bills from Crowd’s company. Moreover, from 1982-1984, Crowel paid Spann $1,000 per month to maintain his janitorial contract with Lake County. As a result of these machinations, Crowel was able to be of assistance in the ECRC transaction because of his dealings with both Kuipers and Spann. Kuipers testified that because of Crowd’s relationship with Spann he asked Crow-el to join him in approaching Spann about receiving payments in connection with the ECRC transaction. Kuipers and Crowel testified that they met Spann at a restaurant on December 21, 1983. Crowel told Spann that he and Kuipers wanted $120,-000 from the ECRC deal, with payment of half of the agreed amount up front and half at the completion of the transaction. Kuipers requested the bribe from Spann based on the fact that this transaction would be a political coup for Spann. Kui-pers testified that Crowel believed he was entitled to the money because of the kickbacks he had been paying Spann. Spann responded favorably to the proposed $120,-000 payment, but advised Kuipers and Crowel that he would have to discuss it with others before agreeing to it. Part of this contemplated payment was eventually paid, although Kuipers and Crowel gave diverging accounts of the transaction. In early February 1984, Crowel met Kuipers in a restaurant and gave him a bag of money. Kuipers testified that Crowel told him that he was giving him his half of the $60,000. Crowel testified that he received two bags of money from Spann in Spann’s office and that he gave Kuipers his half, amounting to $12,500. Crowel’s receipt of his share of the payment was corroborated by a false invoice he created masking the income as part of a real estate transaction. It was also evidenced by his safety deposit box records, and by the fact that Crowel reported the receipt of this money on his 1984 tax return. Other evidence supported the testimony that Morris and Spann had agreed to make the payment to Kuipers and Crowel. On December 21, 1983, a final proposal for purchase totalling $5,073,000 was agreed to by Morris. Ten days later, the parties entered into the memorandum agreement totaling $5,133,000. The difference between these two amounts is $60,000. A jury could have reasonably concluded that this amount was to cover the $60,000 up-front payment. Moreover, Kuipers testified that in November, 1984, Crowel called and said that he had received another package of money. Kuipers testified that Crowel gave him $30,000 from this second payment. Crowel also testified that there was a second transfer of money. He stated that the amount was $35,000, but could not recall the particulars of the transaction. Crowel had previously testified that he had received $60,000 in one transaction. In addition, Kuipers and Crowel both testified that they met with Morris and Spann at Morris’ East Chicago office to discuss the payment of the second $60,000. At this meeting the method of payment of the second payment was discussed. Considering all this evidence, the jury could very well have concluded beyond a reasonable doubt that Morris and Spann were guilty of engineering the sale of ECRC at an inflated price, thus defrauding the federal government through the misapplication of government funds. We reject the defendants-appellants’ claim that the evidence was insufficient' to support their convictions. II. EVIDENTIARY ISSUES Morris contends that the trial judge erred in admitting evidence pertaining to three matters. Spann joins with Morris in the first objection. We reject all three evidentiary challenges. A. Kuipers’ note Morris and Spann claim the trial judge committed reversible error when he admitted evidence of a note Kuipers left with his secretary. Kuipers testified that during the summer of 1984, he received a telephone call from Spann telling him to attend a meeting at Spann’s home. The purpose of the meeting was to finalize the ECRC agreements. Kuipers stated that he did not recognize the address Spann gave him, and that he left a note with his secretary telling her where he was going and instructing her to contact the police if anything happened to him. His secretary, Diane Sakellaropoulos, testified that Kuipers wrote out a lengthy note, sealed it in an envelope and told her, “If you don’t see me by 4:00 o’clock today, give this to the East Chicago Police Department.” Kuipers returned before 4:00 and retrieved the envelope containing the note. The government argues the evidence (1) was probative of Kuipers’ state of mind because it demonstrated that he was in fear for his life as he was involved in an illegal activity with respect to ECRC and (2) it corroborated his testimony that the meeting occurred. In addition, the government maintains that the evidence was probative of its contention that Spann and Morris were the controlling forces behind the inflated price scheme in that they could intimidate and force Kuipers into attending a meeting he was reluctant to attend. Spann and Morris claim that the government elicited the testimony purely to suggest to the jury that Spann was a violent, dangerous man. They also argue that the testimony injected “the stench of racial prejudice” into the trial since the government was suggesting that Spann, who is black, was violent. Rule 403 of the Federal Rules of Evidence provides, in pertinent part, that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ..." In United States v. Ferguson, 935 F.2d 1518, 1529 (7th Cir.1991), we noted that “[i]t is well established that a trial judge’s assessment of relative probative value and unfair prejudice is generally accorded great deference because of his firsthand exposure to the evidence and his familiarity with the course of the trial proceeding.” We have also noted that “[i]n reviewing decisions to admit evidence ... the district court’s discretion, when exercised, will rarely be disturbed, ... and that we shall we reverse a decision of the trial court only for abuse of discretion.” United States v. Zapata, 871 F.2d 616, 621 (7th Cir.1989) (citations omitted). Given this deferential standard of review, we cannot say that the trial court abused its discretion in admitting evidence of Kuipers’ note. The government argued that the note was evidence of the way in which Spann was using Kuipers as his agent in the ECRC scheme. Defendants-appellants’ allegation that the note served to paint Spann as a violent and dangerous man and was thus prejudicial to him may conceivably have some merit, but it was within the district court’s discretion to weigh any possible prejudicial effect against the note’s probative value and make its own evidentiary decision, and we refuse to disturb this well-reasoned decision based upon our review of the record. Although we, if acting in the capacity of the trial judge, may not have exercised our discretion in the same manner, we refuse to hold that the decision to admit the evidence was error much less an abuse of discretion. The defendants’ reliance on United States v. DeGeratto, 876 F.2d 576 (7th Cir.1989) is misplaced. DeGeratto concerned a trial involving the receipt and transportation of stolen property during which the prosecution questioned the defendant about his alleged involvement with a prostitution ring. Id. at 580-81. In the instant case, no such “bad acts” unconnected to the indicted offense were improperly imputed to the defendant. The Kuipers note was probative of whether the defendants committed the crime for which they were indicted, the misapplication of federal funds and the conspiracy to defraud the federal government. B. Morris’ statements to his accountants about the option extension. Morris asserts that the trial court erred in admitting statements he made to an accountant concerning an ECRC-related business operation and the ECRC option that was exercised in 1985. As discussed above, the parties to the ECRC transaction, upon learning in 1984 that a lease transaction was no longer possible, converted the deal into one involving an option. This agreement was negotiated and signed in February, 1984. An amended option was eventually exercised on August 30, 1985. The tax returns filed at Morris’ direction for the relevant period failed to report as income the monies paid to the ECRC-relat-ed company pursuant to the option. Morris maintains that the admission of this evidence was improper because it successfully introduced “classic bad character evidence” by suggesting to the jury that Morris was a liar. However, we have rejected the proposition that “statements of conspirators whose job is to prevent detection of the conspiracy are inadmissible.” United States v. LeFevour, 798 F.2d 977, 982 (7th Cir.1986). Morris’ failure to report the option money as income, and his statements to the accountants denying that the option had been exercised, could have reasonably been viewed by the trial judge as an effort to prevent detection of the conspiracy. Allowing receipt of this evidence did not rise to the level of an abuse of the trial court’s broad discretion over evidentiary matters. C. Buyout valuation evidence Morris’ final claim of evidentiary error concerns the testimony of an accountant regarding his valuation of an interest in the ECRC partnerships. Morris claims this evidence was irrelevant and therefore inadmissible. In 1975, the ECRC partners executed agreements providing for the sale of any deceased partner’s interest to the surviving partners. In 1979, one of the partners died in a plane crash. An accountant determined that the deceased partner’s Vsth share in ECRC was worth $217,500 in 1980, placing the value of the entire partnership at $1,305,000. Testimony was received at trial concerning this valuation. Morris claims that the valuation evidence based on the buy-back agreement was irrelevant as a matter of law since it related to a 1980 price and the ECRC transaction central to this case occurred in 1984. Under Fed.R.Evid. 401 “ ‘[rjelevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” We have noted that “ ‘relevancy is a relationship between a proffered item of evidence and a fact that is of consequence to the determination of the action.’ 1 Weinstein’s Evidence, § 401[03], pp. 401-17. ‘Whether or not a fact is of consequence is determined not by the Rules of Evidence but by substantive law.’ Id. at 401-19. Thus, before the district court could properly have received evidence ... the district court had to find that this fact was relevant to the determination of ... liability.” Sherrod v. Berry, 856 F.2d 802, 804 (7th Cir.1988). Here, the valuation evidence about ECRC was offered to establish that the proposed transaction included payment of a fraudulently inflated price for the facility. Although the ECRC transaction which gave rise to this case was put together four years after the disputed valuation was made, it was evidence of the government’s assertion that the ECRC transaction engineered by Morris and Spann hinged upon an inflated sale price for ECRC. We do not agree with Morris that the trial court abused its discretion in deciding that the buyout valuation was relevant to the proper price of ECRC in 1984. III. THE FBI REPORTS The defendants contend that the district court erred in ruling that the government was not required to produce certain FBI 302 reports pursuant to the Jencks Act, 18 U.S.C. § 3500 or Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We will address each challenge separately. A. Jencks Act The Jencks Act compels the government’s production of statements a government witness has signed or otherwise adopted or approved and which relate to the subject matter as to which the witness has testified. 18 U.S.C. § 3500(a) & (b). The Act defines a statement as “(1) a written statement made by said witness and signed or otherwise adopted by him; (2) a ... substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or (3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.” 18 U.S.C. § 3500(e). In considering a Jencks Act challenge, we must remember that “ ‘[tjhe district court is vested with broad discretion’ in determining whether a particular document is considered a producible document within the parameters of the Jencks Act, and ‘[i]ts findings in this respect may be disturbed on appeal only if they are clearly erroneous.’ ” United States v. Herrero, 893 F.2d 1512, 1522 (7th Cir.), cert. denied, — U.S. -, 110 S.Ct. 2623, 110 L.Ed.2d 644 (1990) (quoting United States v. Allen, 798 F.2d 985, 994 (7th Cir.1986)). The reports in question were of FBI interviews of Glenn Kuipers, a government witness. The reports were, appropriately, submitted by the government to the district court for an in camera inspection. “[I]f the defendant claims that the documents he seeks are statements as defined by the Jencks Act, but the government says they are not, then the presumption should be that the district court should hold an in camera hearing and after reviewing the documents make a determination of what should be turned over to the defendant.... [T]he district court must review the documents in question when their status as a Jencks statement is contested.” United States v. Allen, 798 F.2d 985, 994 (7th Cir.1986). “The district court is vested with broad discretion in determining this question through an in camera inspection. Its findings in this respect may be disturbed on appeal only if they are clearly erroneous.” Id. (quoting United States v. O’Brien, 444 F.2d 1082, 1087 (7th Cir.1971)). In determining whether material is producible under the Jencks Act, the “emphasis clearly is on whether the statement can fairly be deemed to reflect fully and without distortion the witness’s own words.” Id. (citations omitted) (emphasis added). “A government agent’s summary of a witness’s oral statement that is not signed or adopted by the witness is not producible ...” because, [a] federal agent Question: What is the total number of appellants in the case? Answer with a number. Answer:
songer_r_stid	01	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your task is to identify the state of the first listed state or local government agency that is a respondent. CLARK v. COMMISSIONER OF INTERNAL REVENUE. MERCANTILE-COMMERCE BANK & TRUST CO. et al. v. SAME. Nos. 13465, 13466. Circuit Court of Appeals, Eighth Circuit. July 1, 1947. James E. Garstang, of St. Louis, Mo. (Emmet T. Carter and Gerald K. Presberg, both of St. Louis, Mo., on the brief), for petitioners. Hilbert P. Zarky, Sp. Asst to Atty. Gen. (Sewall Key, Acting Asst. Atty. Gen., and J. Louis Monarch, Sp. Asst, to Atty. Gen., on the brief), for respondent. Before GARDNER, THOMAS, and RIDDICK, Circuit Judges. RIDDICK, Circuit Judge. In these cases, which were consolidated for hearing in the Tax Court and in this court, Lenore Scullin Clark, in her income tax return for the year 1941, and Harry Scullin and Bernice W. Scullin, his wife, in their return for the same year, claimed capital losses deductible from net income, incurred on sales of certain stock purchase warrants made in the taxable year. The Commissioner ruled that the taxpayers had realized capital gains instead of losses on the sales in question and determined deficiencies. On review, the Commissioner’s action was sustained by the Tax Court. So far as material, the facts in the cases are identical. Lenore Scullin Clark and Harry Scullin were among the beneficiaries of a trust under the will of John Scullin, deceased. The trustees of this trust were the holders of $1,497,000 principal amount of 6V2 per cent debenture bonds of Scullin Steel Company, a Delaware corporation, acquired by the trustees in 1926 at a cost of $1,452,090. Interest on the debentures had been in default since April 1, 1931. In 1937 the company was reorganized pursuant to section 77B of the Bankruptcy Act, 11 U.S. C.A. § 207. The plan, of reorganization provided for the formation of a new company with an authorized issue of 29,940 shares of preferred stock of a par value of $50 a share, and 395,510 shares of common stock of no par value. Holders of the preferred stock of the new company were granted the right to convert it into common stock on the basis of one share of preferred stock for one and one-quarter shares of common stock. The plan also provided for the issue of 524,840 stock purchase warrants, in bearer form, entitling the holder of each four of such warrants to subscribe to one share of common stock in the new company upon the payment of $10. The particular provisions of the reorganization plan necessary -for consideration here are as follows: “VII. Allocation of Capital Stock of New Company It is proposed that the capital stock of the New Company shall be allocated and distributed as follows: A. 29,940 shares of Preferred Stock to the holders of $1,497,000 of outstanding Debentures on the basis of 20 shares of such stock for each $1,000 principal amount of such Debentures, which Debentures shall then be cancelled, together with the coupons evidencing interest thereon. * * * * * * IX. Issuance and Distribution of Stock Purchase Warrants There shall be issued Stock Purchase Warrants dated as of May 1, 1937, in bearer form, which will entitle the holder of each four of such warrants to subscribe for one (1) share of Common Stock for Ten Dollars ($10.00) per share within five (5) years from the date thereof. An aggregate of 524,840 warrants shall be issued as follows: * * $ * * * B. 79,840 thereof to the holders of the Debentures, which warrants are in lieu of and in satisfaction for all accrued, accumulated and unpaid interest upon said Debentures, on the basis of 53% warrants for each $1,000 face amount of Debentures * * * >> A new company was organized under the name of Scullin Steel Company, a Missouri corporation, and its securities were issued and distributed as provided by the plan. The trustees of the trust received on or about December 20, 1937, 29,940 shares of a par value of $50 per share of preferred stock of the new corporation on the basis of 20 shares for each $1,000 face value of the debentures, and 79,840 stock purchase warrants in satisfaction of accrued and unpaid interest upon the debentures. The trust reported no taxable income as the result of this exchange of securities. The parties agree that this was an exchange of securities in which no gain or loss was realized. Revenue Act of 1936, § 112(b) (3), 26 U.S.C.A. Int.Rev.Code, § 112(b) (3). The stock purchase warrants were distributed by the trustees to the beneficiaries of the trust in 1937, but neither taxpayer reported any taxable income for that year as the result of the receipt of warrants. During the year 1941 some of these stock purchase -warrants were sold by the taxpayers, and, as noted above, long-term capital losses were claimed by them in their respective income tax returns. None of the preferred stock of the new company has been sold, but in December 1937 there were sales of common stock and of stock purchase warrants. The Tax Court found and petitioners now agree that at the time of their distribution to the taxpayers the stock purchase, warrants had a value of 95 cents each. Since one share of preferred stock of the new company could be converted into one and one-quarter shares of common stock, the taxpayers attributed to the preferred stock a value of $13 a share, that is, the purported average value of the common stock multiplied by 1%. In the Tax Court taxpayers contended, as the petitioners contend here, that the reorganization plan provided for one exchange of debenture bonds and the coupons representing past-due interest oti the bonds for both preferred stock and stock purchase warrants of the pew company. On this reading of the plan of reorganization, which petitioners assert is the only reading permissible, the basis of the stock purchase warrants in the hands of the taxpayers for the computation of gain or loss on the sales of the warrants in 1911 must be determined by allocating the agreed cost basis of the debentures ($1,492,090) to both preferred stock and stock purchase warrants for which the debentures were exchanged in the course of a nonlaxable reorganization. Internal Revenue Code, § 113(a) (6), 26 U.S.C.A. Int.Rev.Codc, § 113(a) (6). On this contention, by a computation, the accuracy of which is not at issue here, the taxpayers obtain a cost basis for each stock purchase warrant which, if accepted, would show capital losses sustained by them on sales of the warrants. The Commissioner does not deny that the result for income tax compulation would be that claimed by petitioners if their interpretation of the plan of reorganization is accepted. The argument of the Commissioner is that the trustees, in the consummation of the plan of reorganization, exchanged debentures of the old company which had an agreed cost basis of $1,452,-090 for 29,940 shares of preferred stock and for nothing else; that the entire cost basis of the debentures was therefore required to be allocated to tbe preferred stock and none of it to the stock warrants; that the trustees received the 79,840 stock warrants in satisfaction for only accrued and past-due interest upon the debenture bonds; that because the exchanges were in a nontaxable reorganization and because none of the past-due interest had ever been returned as taxable income either by the trustees or by the taxpayers, the cost basis of such stock warrants must he held to he zero under section 113(a) (6) of the Internal Revenue Code. The Tax Court sustained the Commissioner, basing its holding squarely on the provisions of the plan of reorganization, saying: “It therefore seems clear from the foregoing that the trustees received these stock purchase warrants strictly in settlement of the past due interest on the debentures and for nothing else, and while the receipt of such warrants was not taxable income to the trustees because it was part of a plan of reorganization, it also did not serve to give them any cost basis for the stock warrants. The stock warrants neither cost the trustees anything nor the beneficiaries of the trust anything when distributed to them. Of course the claim of the trustees for accumulated and unpaid interest on the debentures was a valuable right but this unpaid interest never having been taken into income by the trustees, had no cost basis to them. Petitioners do not contend that the past due and unpaid interest on the debentures had any cost basis to them. What they are contending is that the $1,452,000 stipulated cost of the debentures should be allocated between the preferred stock and the stock purchase warrants. But for reasons we have already stated we reject this coutcntion. Therefore, in 1941, when petitioners, beneficiaries of the trust, sold the warrants here involved, they had no cost basis under Section 113, Internal Revenue Code, and all that they received, less expense of selling, represented gain to them. That gain the Commissioner has determined shall be taken into account at capital gain rates, and in this determination we sustain him.” The Commissioner argues for the affirmance of the decisions under review on the ground that the conclusion reached by the Tax Court in these cases is a factual conclusion supported by substantial evidence and not reviewable by a circuit Court of appeals. Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248. On the other hand, the petitioners assert that the Tax Court has drawn its conclusion in these cases from its interpretation of a written instrument, the plan of reorganization, and therefore has decided a question of law on which this court may substitute its judgment for that of the Tax Court. Reliance is placed upon Morainville v. Commissioner, 6 Cir., 135 F.2d 201, decided before Dobson v. Commissioner, and for that reason of doubtful weight; and upon Thornley v. Commissioner, 3 Cir., 147 F. 2d 416, 420, in which the court, one judge dissenting, held that, where the Tax Court was required to determine the taxable consequences of a transfer of the assets of a partnership to a corporation “from various writings which chronicled the transaction”, a question of law was presented for review by the court of appeals. Compare Okonite Company v. Commissioner, 3 Cir., 155 F.2d 248, 250, 251. But we find it unnecessary to decide the perplexing issue raised by these opposing contentions. For conceding for. the argument that the question here is one of law and not of fact, we are unable to say that the conclusion reached by the Tax Court in these cases is irrational or without a reasonable basis in law, in view of the explicit language of Section IX of the plan of reorganization which provides for the issue of stock purchase warrants to the holders of debentures “in lieu of and in satisfaction for all accrued, accumulated and unpaid interest upon said debentures.” We are not at liberty therefore to substitute our judgment for that of the Tax Court even if it may be said that a conclusion opposite to that which the Tax Court has reached' is not entirely unreasonable on the record before us. Dobson v. Commissioner, supra; Boehm v. Commissioner, 326 U. S. 287, 66 S.Ct. 120, 90 L.Ed. 78, 166 A.L.R. 708; John Kelley Co. v. Commissioner, 326 U.S. 521, 66 S.Ct. 299, 90 L.Ed. 278; Trust of Bingham v. Commissioner, 325 U.S. 365, 65 S.Ct. 1232, 89 L.Ed. 1670; Commissioner v. Estate of Bedford, 325 U.S. 283, 292, 65 S.Ct. 1157, 89 L.Ed. 1611; Commissioner v. Scottish American Investment Company, Ltd., 323 U.S. 119, 124, 125, 65 S.Ct. 169, 89 L.Ed. 113; Sunnen v. Commissioner, 8 Cir., 161 F.2d 171; Helvering v. Meredith, 8 Cir., 140 F.2d 973, 974; Brooklyn National Corporation v. Commissioner, 2 Cir., 157 F.2d 450; Kirschenbaum v. Commissioner, 2 Cir., 155 F.2d 23. Affirmed. After the decisions in the Tax Court Harry Scullin died. Mercantile-Commerce Bank and Trust Co., a corporation, and Bernice W. Scullin, coexecutors under the will of Harry Scullin, have been substituted in his place as petitioners. For- a review of the cases in the Supreme Court and in the Circuit Courts of Appeals since Dobson v. Commissioner, and a discussion of the distinction between a question of fact and a question of law in decisions of the Tax Court, see Dobson v. Commissioner: An Analysis, Panl’s Federal Estate and Gift Taxation, 1946 Supplement, § 1422(a) and 1422(b): The Bingham ease, Id., § 1422 (e); Gordon, Reviewability of Tax Court Decisions, 2 Tax Law Review 171. Question: What is the state of the first listed state or local government agency that is a respondent? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_appbus	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "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. AKTIEBOLAGET SVENSKA AMERIKA LINIEN (SWEDISH AMERICAN LINE) et al., Petitioners, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents, American Society of Travel Agents, Inc., Intervenor. No. 20458. United States Court of Appeals District of Columbia Circuit. Argued Dec. 14, 1966. Decided Jan. 19, 1967. Mr. Edward R. Neaher, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Mr! Warren E. Baker, Washington, D. C., was on the brief, for petitioners. Mr. Lloyd D. Young, Washington, D. C., also entered an appearance for petitioners. Mr. Milton J. Grossman, Atty., Dept. of Justice, with whom Asst. Atty. Gen. Donald F. Turner, James L. Pimper, Gen. Counsel, Robert N. Katz, Sol., Walter H. Mayo, III, Atty., Federal Maritime Commission, and Irwin A. Seibel, Atty., Dept. of Justice, were on the brief, for respondents. Mr. Robert J. Sisk, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Mr. Glen A. Wilkinson, Washington, D. C., was on the brief, for intervenor. Mr. Jerry C. Straus, Washington, D. C., also entered an appearance for intervenor. Before Wilbur K. Miller, Senior Circuit Judge, and Danaher and Tamm, Circuit Judges. TAMM, Circuit Judge: In a previous decision in this case, we remanded to the Federal Maritime Commission because of our determination that the Commission’s decision lacked adequate findings to establish and support the Commission’s conclusions. We called upon the Commission in that decision to give further consideration to the two controverted issues in the case, id est, the legality of the so-called “unanimity rule” and the legality of the “tie-ing rule.” On remand, the Commission, without taking additional testimony or evidence, accepted additional briefs from the parties, heard oral argument, and reached, by a divided vote, the same conclusions recorded in the earlier proceedings. The Commission’s Report and Order on Remand, served July 20, 1966, containing these restated determinations, is again challenged by the same petitioners who had attacked the Commission’s earlier action. In its present order, the Commission again strikes down both the provision of the Conference agreements requiring unanimous action of Conference members to fix or alter maximum commissions payable to travel agents (unanimity rule) and the provision of the Conference agreements prohibiting travel agents appointed by the Conference from selling tickets on competing non-Conference steamship lines without prior permission from the Conference (tieing rule). Both of these provisions are described in detail in our earlier opinion in this case, as are the identities of the parties, the provisions of pertinent statutes, and the governing case law. There is no doubt whatsoever that the petitioner Conference was authorized by Section 15 of the Shipping Act, 46 U.S.C. § 814, to act in concert in all shipping matters until and unless the actions were found illegal by the Commission as being detrimental to the commerce of the United States and contrary to the public interest within the meaning of those terms as contained in this statute. The petitioners were, consequently, free to adopt, utilize, and be governed by a unanimous vote requirement on the subject of maximum commissions to travel agents, unless the respondent found the provision was, in fact, detrimental to the commerce of the United States or contrary to the public interest, in accord with the statutory requirements and limitations of 46 U.S.C. § 814. The same principle, of course, applies to the Conference action relating to the “tieing rule.” We remanded the Commission’s earlier opinion and order to permit the Commission to make findings based on evidence of record, if any there be, to support its conclusions that the Conference actions on those subjects were illegal under the statute. The case now returns to us upon the same evidentiary record which was before us when we previously reviewed the proceedings. True it is that the Commission’s present opinion enlarges upon its previously stated views and is couched at various points in the phraseology of the statute. Careful analysis of the record, however, convinces us that nothing substantial has been added to support, sustain, or even justify the Commission’s condemnation and voiding of the Conference actions. As the two dissenting opinions of Commission members accurately point out, the Commission Report lacks sufficient basis in supporting facts or evidence of record and consists only of rationalizations, conjecture and opinion. We are not satisfied that the Commission has made adequate response to our mandate to eliminate the doubts and problems which we pointed out in our prior opinion. We conclude, consequently, that the Commission’s decision is arbitrary and capricious and not supported by substantial evidence on the record considered as a whole. We see no purpose in further remand, and, accordingly, we reverse the Commission action. Reversed. . Aktiebolaget Svenska Amerika Linien, et al. v. Federal Maritime Commission, et al., 122 U.S.App.D.C. 59, 351 F.2d 756 (1965). . Section 15 of the Shipping Act, 1916 (hereinafter the “Act”), 39 Stat. 733, as amended, 46 U.S.C. § 814 provides in pertinent part: “Every common carrier by water, or other person subject to this chapter, shall file immediately with the Commission a true copy, or, if oral, a true and complete memorandum, of every agreement with another such carrier or other person subject to this chapter, or modification or cancellation thereof, to which it may be a party or conform in whole or in part, fixing or regulating transportation rates or fares; giving or receiving special rates, accommodations, or other special privileges or advantages; controlling, regulating, preventing, or destroying competition; pooling or apportioning earnings, losses, or traffic; alloting ports or restricting or otherwise regulating the number and character of sailings between ports; limiting or regulating in any way the volume or character of freight or passenger traffic to be carried ; or in any manner providing for an exclusive, preferential, or cooperative working arrangement. The term ‘agreement’ in this section includes understandings, conferences, and other arrangements. “The Commission shall by order, after notice and hearing, disapprove, cancel or modify any agreement, or any modification or cancellation thereof, whether or not previously approved by it, that it finds to be unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, or between exporters from the United States and their foreign competitors, or to operate to the detriment of the commerce of the United States, or to be contrary to the public interest, or to be in violation of this chapter, and shall approve all other agreements, modifications or cancellations. * * *" 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_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. DIE SUPPLY CORPORATION, Respondent. No. 6961. United States Court oí Appeals First Circuit. April 12, 1968. Rehearing Denied May 17, 1968. Charles N. Steele, Washington, D. C., with whom Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Paul J. Spielberg, Washington, D. C., were on brief, for petitioner. Murray S. Freeman, Boston, Mass., with whom John J. Delaney, Jr., Boston, Mass., Henry G. Stewart, Cambridge, Mass., and Nutter, McClennen & Fish, Boston, Mass., were on brief, for respondent. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. McENTEE, Circuit Judge. This is a petition for enforcement of a Labor Board order based on findings that the respondent, Die Supply Corporation, refused to bargain with the union in connection with the relocation of its Rhode Island plant. Die Supply Corporation (the company), an Ohio corporation manufactures and sells die sets and related products. In January 1965 the company arranged to purchase the Standard Die Set Company, a division of Harsco Corporation, located in Cranston, Rhode Island. It also leased the Cranston plant for a three months period with the view to establishing a branch operation either there or elsewhere in Rhode Island. These transactions, which became effective on February 16, 1965, were handled by and in the name of one Lawrence, the attorney for and an officer, director and shareholder in the company. Harsco (Standard Die Set Company) had a collective bargaining contract with the Steelworkers Union which was about to expire in February 1965. The union sought a new contract and in January 1965 when Harsco informed them that Standard Die Set was being sold the union arranged a meeting with Lawrence for February 11. Also present at this meeting were one Gardner, general manager of Standard Die Set, who was being retained temporarily by the new employer, and two officials of the union named Spitz and Gould. The union insisted on continuing under the Harsco contract and threatened to strike unless it was recognized and this contract continued. Lawrence objected to continuing under the Harsco contract. He pointed out that operations at the plant were going to be greatly reduced when the new company took over, that less personnel would be required and that it would be almost impossible for the company to assume the burden of the Harsco contract. He also stated that it was uncertain whether the company would remain at the Cranston plant or move elsewhere but if it did move, the new location almost certainly would be in Rhode Island. After some further discussion particularly with reference to changes in various employee benefits and other provisions of the expiring Harsco contract, the parties finally reached an oral understanding which later that day was confirmed in a telephone conversation between Spitz and one Echlin, Lawrence’s labor lawyer. Thereupon, Echlin prepared a collective bargaining contract which Spitz approved and the parties executed as of February 16, 1965. This contract was based on the expiring Hars-co contract with certain modifications ■ dictated in part at least by the reduction in size of the new employer’s planned operation. The expiration or termination clause of this contract is the only provision that is in dispute in this case. This provision reads as follows: “8. * * * This agreement shall remain in effect from date hereof until such time as the Company terminates its operations at the above Cranston plant, provided, however, that should the Company continue its operations beyond June 1, 1965, this Agreement shall be subject to termination by either party upon 30 days’ advance written notice to the other party.” The company took over operation of the Cranston plant on February 16, 1965 as planned. A few weeks later, without notice to the union, it leased facilities in Warwick, Rhode Island — some four miles from the Cranston plant. The company closed down the Cranston plant on May 19, 1965, and on May 24 commenced operations at the new location. While still at Cranston the company dealt directly with the employees rather than the union with reference to employment at Warwick. There is evidence that in at least two instances employees were recruited to work at the Warwick plant without regard for seniority, for lower wages and with no union. At no time did the company notify or consult with the union about this move or agree to bargain with reference to the effects of it. On two ac-casions during May after the union learned of the forthcoming move, it demanded negotiations with the company but without success. In fact, at a meeting held on May 24, when Gould protested the hiring of Warwick employees out of seniority, Lawrence informed him that in his opinion the company was no longer obligated to recognize or bargain with the union now that the Cranston plant had been closed down. Mirroring the findings of the trial examiner, the Board ruled that the above stated termination clause became operative only if the Cranston operation were liquidated, that it did not apply in the event of relocation and no notice of termination having been given by either party, this contract was still in full force and effect at the Warwick plant. The Board found, as did the trial examiner, that in failing to inform the union of its intention to move, by refusing to bargain about the effects of the move, by refusing to recognize and bargain with the union at the Warwick plant and by bargaining directly with the employees about transfers to the Warwick plant and unilaterally establishing their conditions of employment, the company violated section 8(a) (5) and (1) of the National Labor Relations Act. The Board entered its order accordingly. It now seeks enforcement of this order on either of two grounds: (1) that the contract contemplated that the union would continue to represent the employees even after the Cranston operation terminated, and (2) that quite apart from the contract, when the company recognized the union in February 1965 this recognition continued and extended to the Warwick plant. The company contends that the February 16 contract was a compromise agreement, that when made the parties understood that the contract and indeed the recognition was only for the limited period of the Cranston operation which was a close-down operation. We do not agree with the Board’s ruling that the contract carried over and remained in effect at the Warwick plant. In our opinion the language of the termination clause as well as the surrounding circumstances does not support this interpretation. Contrary to the trial examiner, we find nothing “ambiguous” about this provision. It expressly states that the contract shall remain in effect “until such time as the company terminates its operations at the Cranston plant.” There is no reason to believe that this means anything but precisely what it says and we find no warrant for stretching it to mean that the contract was to remain in effect until the company was “liquidated.” As early as February 11, 1965, the union became aware of the likelihood of a transfer of the Cranston operation in the near future. Thus we think it unlikely that the union would have permitted the phrase “Cranston plant” to be used to define its rights if it believed that the contract would remain in effect as long as the company’s operations continued at Cranston or elsewhere. Moreover, only the company’s interpretation of the termination clause explains the reference in it to June 1, 1965. It maintains that it expected to close down operations at Cranston by June 1 and that the thirty days’ notice provision contained in the termination clause was inserted in the event that the close-down was not effectuated by that date. The union’s claim that it had only a vague awareness that there might be a transfer to another location and that in any event the contract would still apply at the new location is difficult to reconcile with the obvious significance of the June 1 date. Also, we think it significant that at no time during the union’s demands of May 1965 that the company bargain with it with reference to the move, did it claim that the February 16 contract continued in effect at Warwick. Finally, it seems clear from Echlin’s cover letter to Spitz, dated February 12, 1965, forwarding the draft of the agreement, that it was likely the Cran-ston plant would close down in a short time and that this would ipso facto terminate the agreement. If the union thought that this was not what it wanted in the way of a termination clause this was the time to speak. In this connection we point out that Spitz said this draft “quite adequately” reflected the arrangements that he and Echlin discussed over the telephone. Therefore, apart from any question of credibility and purely as a matter of interpretation, we must reject the Board’s ruling that the February 16 contract extended beyond the close-down of the Cranston operation. Petitioner’s second ground — that apart from the contract the union recognition extended to the Warwick operation — presents a different and a closer question. The company in keeping with its position on the interpretation of the contract, maintains that there is a built-in limitation in the February 16 contract which restricted union recognition to the Cran-ston plant and gave the union no rights thereafter; that this was one of the compromises resulting from the February 11 meeting. Since there is no express language in the contract that sheds light on this crucial issue, we must look to the testimony of those who participated in the February 11 meeting for an expression of intention. The difficulty is that the testimony on this point is irreconcilable. Thus the resolution of this question becomes essentially a matter of credibility. Petitioner points to the testimony of Gould and Spitz. Although the testimony of these two officials was somewhat inconsistent on the contract issue, the record shows that at the February 11 meeting both of them made the union’s position quite clear on the matter of continued recognition in the event the company moved to another location in Rhode Island. Gould stated in direct examination that the union insisted that recognition must survive a move from the Cranston plant. He testified: “[w]e would still insist that the collective bargaining relationship continue — the recognition continue — and the company would be obligated to bargain in an agreement with the union.” In cross-examination he stated: “[w]e said if he [Lawrence] moved these operations we would demand recognition and demand that he recognize the union.” Also in May of 1965 after the move became a fait accompli, Gould told Lawrence and Gardner that their hiring employees out of seniority to work at the Warwick plant was not consistent with their obligation to bargain with the union. He did not seek to invoke the contract. In view of the uncertainty of the company’s plans as expressed by Lawrence, Spitz suggested that in the event of a move the parties would sit down and work out the necessary modifications. The record shows that Lawrence agreed that in the event of a move, the parties would sit down and negotiate a long term contract. Also, in his telephone conversation of February 11 with Echlin, Spitz insisted that a way had to be provided for the union and the company to maintain a “continuity of relationship” if the company moved. On the contrary, Lawrence testified that he informed the union representatives that Cranston was a close-down operation, that he did not want to make any prejudgment as to what union would represent the employees at the new plant and that negotiations with the union were conducted on that basis. “I said if that is what you are saying- — that you want to represent us at the Cranston plant until we discontinue the operations there and that you are not extending the recognition to the new plant, I am agreeable to discussing the terms of the Hars-co contract.” Echlin testified that he had no discussions with Lawrence on recognizing the union or with Spitz concerning the union’s position with respect to the new plant. The trial examiner chose to credit the testimony of Spitz and Gould on the matter of continued recognition as did the Board in adopting his findings and conclusions. As we have repeatedly pointed out, questions of credibility are for the Board, subject to judicial review only when the Board oversteps the bounds of reason. We shall not substitute our judgment for that of the trial examiner who heard the testimony and observed the witnesses, nor for that of the Board with its vast experience in dealing with labor disputes. N. L. R. B. v. Pioneer Plastics Corporation, 379 F.2d 301, 306 (1st Cir.), cert. denied, 389 U.S. 929, 88 S.Ct. 292, 19 L.Ed.2d 281 (1967); N. L. R. B. v. Gass, 377 F.2d 438, 443 (1st Cir. 1967); see also N. L. R. B. v. Yale Manufacturing Company, 356 F.2d 69, 71 (1st Cir. 1966). Although the trial examiner made some observations that appear to be unwarranted by the evidence, we will not say under the circumstances of this case that his credibility findings on the matter of continued recognition must be rejected. We think that on the record as a whole these findings are supported by substantial evidence. In addition to the testimony of Gould and Spitz, we must take into account that it is unlikely and unrealistic that these two experienced labor leaders who in the February 11 meeting threatened to strike and picket in order to gain recognition from the new employer, would agree in the same meeting to lose that recognition upon the uncertain unilateral action of the new employer in moving its plant to a nearby location. We do not agree that at said meeting or that in the contract the parties bargained away or that the union waived this fundamental right. This court has held that a waiver must be clear and unmistakable. It should be express and a mere inference, no matter how strong, is not enough. N. L. R. B. v. Perkins Machine Co., 326 F.2d 488, 489 (1st Cir. 1964). There is nothing in the record tó indicate that the union waived this right at any time. There is ample evidence to support the Board’s finding that the operations at Cranston and Warwick were substantially the same. The latter was a continuation of the former and there was no break in the continuity. It is well established that where, as here, the employer remains the same, the status of an incumbent union is not impaired by the relocation of the plant. Cooper Thermometer Co. v. N. L. R. B., 376 F.2d 684, 687-688 (2d Cir. 1967). When the company voluntarily recognized the union, bargained with it and entered a labor contract as it did in February 1965 and then moved its plant to a nearby location a few months later, it had an obligation to notify the union of the move and bargain with it with reference to the transfer of employees and other effects of the move. Cooper Thermometer Co. v. N. L. R. B., supra. Instead, it deliberately concealed its plans and sought to undermine the union by dealing directly with the employees and offering them jobs at the Warwick plant with lower wages and no union. We are not persuaded that in doing this the company had a good faith doubt as to the majority status of the union. There is no evidence of employee discontent with the union. Even if the company had such a doubt it is not justified in exercising the self help involved here. It is established that its recourse in such circumstances is by way of petition to the Board. Finally, the company complains that the Board’s order is inconsistent and unenforceable. We do not agree. Congress has entrusted to the Board the task of devising remedies to effectuate the policies of the National Labor Relations Act. N. L. R. B. v. Seven-Up Bottling Co. of Miami, 344 U.S. 344, 346, 73 S.Ct. 287, 97 L.Ed. 377 (1953) and the Board’s order may not be disturbed “unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.” Virginia Elec. & Power Co. v. N. L. R. B., 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1943), quoted in Fibreboard Paper Products Corp. v. N. L. R. B., 379 U.S. 203, 216, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). The company has not made any such showing. The Board’s order here is obviously designed to restore the situation as nearly as possible to that which would have been obtained but for the unfair practices found and we find no merit in this contention. The order of the Board will be enforced. . Among other things this sale included certain machinery, inventory, product line, unfilled customers’ orders, use of trade name, certain equipment and an agreement not to compete. . United Steel Workers of America, AFL-GIO. . This operation started with fourteen employees selected according to plant seniority in accordance with the contract. Shortly thereafter seven more were added. Harsco had fifty-two employees on the payroll at the Cranston plant just prior to the take-over. . Echlin’s letter stated in part: “Finally, ■while the Company does not anticipate operating for more than a short time, it seemed to me that you would want some provision to cover the possibility of the unforeseen happening. Therefore, I have included a provision that should operations continue beyond June 1, 1965, either party may terminate the agreement. This, of course, would allow the parties to work out whatever other arrangements they may desire.” . Gould appeared to rely more heavily on the theory that the contract survived the relocation whereas Spitz stressed the company’s obligation of continued recognition regardless of the contract. . He testified: “I suggested, and Mr. Ech-lin agreed that we draft language stating that the contract would remain in full force and effect as long as there were operations going on, activity going on in Cranston. That when the company obtained another location, if they did, because Mr. Lawrence and Mr. Echlin both were saying that they did not know what their future program was for this operation in any concise fashion — that we would be able to work out a continuity of relationship. “Mr. Echlin said if they moved, there might be further need for modifying the collective bargaining agreement, and I indicated to him that we could work that out then just as well as we are working out the modifications of the Harsco agreement now. I told Mr. Echlin that in view of the many indefinite aspects of the operation, that I was required to address myself to the situation that then prevailed, and he agreed.” . Typical of these is the statement of the trial examiner that Echlin did not dispute most of Spitz’s recitation of their conversation of February 11. The record shows that Echlin made a point by point refutation of Spitz’s testimony. . The Standard Die Set catalogue was used to obtain sales at both plants. The assembly work was the same, back orders received at Cranston prior to the close-down were filled at Warwick. The same distributors were used at both Warwick and Cranston. The same salesmen serviced the distributors. The same inventory of component parts was maintained and no new equipment was purchased at Warwick. . The Board ordered the company to cease and desist from the unfair labor practices found, to bargain with the union as representative of the employees at the Warwick plant, to offer reinstatement with back pay to employees who were entitled thereto on the basis of plant wide seniority, to make whole any employee transferred from Cranston to Warwick for loss of wages due to the unilateral reduction of wage rates and to create a preferential hiring list for employees laid off on the day the Cranston plant closed who were not eligible for immediate transfer. 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_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 LEHIGH VALLEY R. CO v. STEVENSON et al. (Circuit Court of Appeals, Third Circuit. February 25, 1927.) No. 3486. 1. Negligence @=>83— Under New Jersey “last clear chance” doctrine plaintiff’s negligence must not be concurrent and defendant’s negligence must be gross. For doctrine of “last clear chance” to be applicable under law of New Jersey, plaintiff’s negligence must not be concurrent with negligence of defendant or its servant, must not continue down to time of accident, and negligence of defendant or its servant must be so gross as to imply a disregard of consequences or a willingness to inflict injury. [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Last Clear Chance.] 2. Carriers @=>314(2) — In action for injuries from being swept from car step by girder, allegation of railroad’s negligence held insufficient at common law for want of particularity. In action against railroad for injuries when swept off car step by upstanding girder of bridge, allegation that, “while the plaintiff lawfully attempted to enter one of the said trains, the defendant, by its agents or servants in its behalf, so carelessly, negligently and unlawfully operated its said train that the plaintiff was violently thrown * * * to the ground,” helé an insufficient pleading of negligence at common law for want of particularity. 3. Carriers @=>315(1) — Proof under doctrine of last dear chance held admissible under pleading. In actioñ for injuries from being swept from railroad car step by upright bridge girder, pleading that, while plaintiff was attempting to enter train, defendant “so carelessly, negligently and unlawfully operated its said train that plaintiff was violently thrown * * * to the ground,” held sufficiently broad to admit evidence of negligence under the last clear chance doctrine; defendant having gone to trial with- v out any objection to pleading for want of particularity. 4. Carriers <@=347 (8), — Evidence, in action for injuries to plaintiff, swept from car step by girder, held insufficient for jury, under New Jersey last clear chance doctrine. In action against railroad for injuries, evidence that plaintiff, after running to catch train, while standing on car steps while he regained his breath, was swept off by an upstanding girder of a nearby bridge, and evidence that flagman inside car saw plaintiff from two to six seconds before injury and immediately pulled whistle cord, held insufficient under New Jersey rule to go to jury under doctrine of last clear chance. 5. Carriers <@=331 (5) — Action for injuries to plaintiff, swept from car step by girder, held not barred by New Jersey statute affecting passengers on platform (General Railroad Law N. J., § 39 [3 Comp. St. N. J. 1910, p. 4240]). Where plaintiff, after running to catch train, while standing on step regaining his breath, was swept off by an upstanding bridge girder and injured, held, action for injuries was not barred by General Railroad Law N. J. § 39 (3 Comp. St. N. J. 1910, p. 4240), relating to railroad’s liability for injuries by reason of passengers’ going or remaining on platform of ear in violation of regulations. 6. Carriers <@=331 (5) — Action for injuries to plaintiff, swept from car step by girder, held not barred by New Jersey statute affecting trespasses and contributory negligence of persons boarding moving cars (General Railroad Law N. J. § 55 [3 Comp. St. N. J. 1910, p. 4245]). Where plaintiff, after running to catch train, while standing on car step regaining his breath, was swept off by an upstanding bridge girder and injured, held, action for injuries was not barred by General Railroad Law N. J. § 55 (3 Comp. St. N. J. 1910, p. 4245), relating to trespassing on tracks, and declaring rule as to contributory negligence of persons jumping on or off a car while in motion, and court’s refusal to charge on subject, of an alleged trespass not error. In Error to the District Court of the United States for the District of New Jersey; William Clark, Judge. Action by John H. Stevenson, by next friend, Hugh Stevenson, and by Hugh Stevenson individually, against the Lehigh Valley Railroad Company. Judgment for plaintiffs, and defendant brings error. Reversed, and new trial ordered. Hobart & Minaxd, of Newark, N. J. (George S. Hobart, of Newark, N. J., of counsel), for plaintiff in error. John A. Matthews, of Newark, N. J., for defendants in error; Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. WOOLLEY, Circuit Judge. This writ of error is directed to a judgment for the plaintiffs — one a minor, for personal injuries; the other, the father, for medical ex-# penses and loss of earnings of his son — entered on a verdict in a suit based on negligence of the defendant railroad company in operating a train. Referring to the young man as “the plaintiff,” the testimony in his case in chief tended to show that he ran for a train standing at the station at South Plainfield, New Jersey, which he intended to board through one of the doors customarily open on the side away from the station. His movement was impeded by a freight train passing in the direction opposite that in which the passenger train was headed. Before he could pass around the freight caboose the passenger train had started, yet by an extra effort he succeeded in reaching the train and getting on the rear step of what is known in this ease as the “ladies’ ear,” when, delaying his ascent to the platform in order to regain his breath, he was swept off by an upstanding girder of a nearby bridge and seriously injured. The defendant moved for a nonsuit on the grounds that no negligence on its part was shown while contributory negligence on the part of the plaintiff was proved by his own testimony. The court denied the motion. At the end of the trial the defendant moved for a directed verdict on the same grounds and on others. The learned trial judge denied this motion, yet, feeling the plaintiff had not made out a case of negligence and charging the jury that if they believed the plaintiff’s evidence they should return a verdict for the defendant, submitted the case on the testimony of Barker, a trainman and one of the defendant’s witnesses, which he conceived was of a character to invoke the doctrine of the last clear chance. He took this action because he thought there was a period of six seconds elapsing between Barker’s discovery of the plaintiff at the ear door and the instant of the accident and that the jury might find that Barker, within that period, could and should have done something to prevent the injury. The learned trial judge, correctly instructing the jury on the law of the subject, told them that for the plaintiff to recover under this doctrine they must find two things: One, that his negligence in putting himself in the place of danger was not concurrent with the negligence of Barker, the defendant’s employee, and did not last down to the time of the accident; and, the other, that the negligence of Barker was so gross as to imply a disregard of consequences or a willingness to inflict injury, Camden, etc., Ry. Co. v. Preston, 59 N. J. Law, 264, 35 A. 1119, followed by this court in the New Jersey case of Houston v. Delaware, etc., R. R. Co. (C. C. A.) 274 F. 599. The many grounds of the defendant’s motion for a directed verdict, which the court ignored, are presented here in assignments of error, of which the first is, in effect, that the court erred in admitting evidence of negligence on the part of the defendant not averred in the complaint, for instance, in admitting evidence under the doctrine of the last clear chance which appeared for the first time in the defendant’s case in chief. The only averment of negligence in the plaintiff’s complaint is in these words: “That while the plaintiff lawfully attempted to enter one of the said trains, the defendant by its agents or servants jn its behalf, so carelessly, negligently and unlawfully operated its said train that the plaintiff was violently thrown from the said train of the said defendant to the ground.” Certainly, under rules of common-law pleading, that averment is bad for want of particularity. It does not tell the defendant anything about how or why or just where the accident happened. Whether it is a good or bad averment of negligence under a system of simplified pleading we are not called upon to express an opinion, for the defendant accepted the averment and, joining issue, went to trial upon it. At the trial the defendant found itself in difficulty and sought to restrict acts of its negligence offered in proof under the averment; yet,. obviously, as pleaded arid accepted, it is broad enough to admit almost any acts of negligence and, accordingly, is broad enough to admit proof of negligence under the last clear chance doctrine, which sprang up later in the trial to the surprise of every one. That being true, the defendant cannot now be heard to complain and, accordingly, we resolve this assignment of error against it. As the court submitted the case on Barker’s testimony alone, which raised a single issue of fact for the jury under the last clear chance doctrine, we shall make what we believe will be a correct summary of his ' testimony. Barker was the flagman of the train in question — a vestibule train. On arriving at South Plainfield station he opened the right-hand doors and traps of the second and third cars (the second being the ladies’ car) and descended to the platform, leaving the left-hand traps down and the left-hand doors closed. When later the train started, he boarded the rear end of the ladies’ car, closed the traps and doors of the two cars, stepped inside the ladies’ car and called the next station, and then receded to a position midway the platform of that car, making ready to collect tickets. Casually looking through the window of the closed left-hand door, he saw a freight train passing and he also saw the plaintiff running from behind the caboose toward his train. As the plaintiff’s body in its approach to the train passed from view, Barker stepped to the door and opened it to see where the young man had gone. He did not open the trap but stood upon it. His position in the train was then beyond the waterplug, a very short distance from the girder bridge which the train was approaching at a speed, according to his testimony and that of others, of about fifteen miles an hour. He saw the plaintiff, with one hand on the rear grabhandle of the coach, running along with the train, as the witness thought, but he did not see his feet; They may have been on the lower step. Knowing what was going to happen, Barker made one plunge for the whistle cord, grabbed it and signaled the engineer to stop the train. It is not clear whether this action immediately proceeded, was concurrent with, or immediately succeeded the accident at the bridge. In any event Barker did not see the accident for, feeling the train slowing up, he, being the flagman, hastened to his station in the rear to protect his train when it should come to a stand. On this testimony the court submitted the ease. It was not disputed, nor was the witness impeached. It must therefore be taken as true. The time when Barker first sighted the plaintiff until he was hurt by the girder is variously estimated to have been from two to six seconds. The jury, we think, were left to conjecture what steps Barker, in the emergency of the moment, might and should have taken to save the plaintiff after discovering the position of great peril into which he had put himself. 29 Cyc. 434. More than that, they were left to find from this evidence, as an essential element in the last clear chance doctrine, that Barker’s action or lack of action amounted to gross negligence or negligence so gross, under the New Jersey rule, as to imply on his part a disregard of consequences or a willingness to inflict injury. We are unable to find anything in Barker’s testimony that sustains such a finding. Nor from Barker’s testimony can we discover anything to sustain a finding that the plaintiff’s act of holding on to the car and running with it was not concurrent with the actions of Barker. This observation, however, is limited to its connection with Barker’s testimony and is made without significance to other aspects of the case not now under review which, conceivably, might embrace a situation begun before Barker saw the plaintiff grabbing the car handle and continued only because, in the emergency, he dared not let go. 29 Cyc. 434. However, on the ease as submitted, we are unable to find that substantial quantum of evidence which justifies submission of a ease to the jury. Evans v. Ely (C. C. A.) 13 F.(2d) 62, 64, 65. For the guidance of the court at another trial on evidence similar to that produced at the first trial we rule adversely to the defendant on assignments specifying error in the court’s refusal to charge the jury on the subject of an alleged trespass by the plaintiff on the defendant’s property and on the defendant’s contention that the plaintiff’s action is haired by the provisions both of section 39 and section 55 of the General Railroad Law of the State of New Jersey (3 Comp. St. 1910, pp. 4240, 4245). Having reviewed this case on the single theory of its submission and there found error, we decline to consider and decide any errors that might have been committed if the court had submitted or refused to submit it on other grounds. We are constrained to reverse the judgment and award a venire de novo. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
sc_caseorigin	160	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. BEAUHARNAIS v. ILLINOIS. No. 118. Argued November 28, 1951. Decided April 28, 1952. Alfred A. Albert argued the cause for petitioner. With him on the brief was Herbert Monte Levy. William C. Wines, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were Ivan A. Elliott, Attorney General, John T. Coburn, Assistant Attorney General, and Albert I. Zemel. Mr. Justice Frankfurter delivered the opinion of the Court. The petitioner was convicted upon information in the Municipal Court of Chicago of violating § 224a of the Illinois Criminal Code, Ill. Rev. Stat,, 1949, c. 38, Div. 1, § 471. He was fined $200. The section provides: “It shall be unlawful for any person, firm or corporation to manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots. . . Beauharnais challenged the statute as violating the liberty of speech and of the press guaranteed as against the States by the Due Process Clause of the Fourteenth Amendment, and as too vague, under the restrictions implicit in the same Clause, to support conviction for crime. The Illinois courts rejected these contentions and sustained defendant’s conviction. 408 Ill. 512, 97 N. E. 2d 343. We granted certiorari in view of the serious questions raised concerning the limitations imposed by the Fourteenth Amendment on the power of a State to punish utterances promoting friction among racial and religious groups. 342 U. S. 809. The information, cast generally in the terms of the statute, charged that Beauharnais “did unlawfully . . . exhibit in public places lithographs, which publications portray depravity, criminality, unchastity or lack of virtue of citizens of Negro race and color and which exposes [sic] citizens of Illinois of the Negro race and color to contempt, derision, or obloquy . . . .” The lithograph complained of was a leaflet setting forth a petition calling on the Mayor and City Council of Chicago “to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods and persons, by the Negro . . . .” Below was a call for “One million self respecting white people in Chicago to unite . . . .” with the statement added that “If persuasion and the need to prevent the white race from becoming mongrelized by the negro will not unite us, then the aggressions . . . rapes, robberies, knives, guns and marijuana of the negro, surely will.” This, with more language, similar if not so violent, concluded with an attached application for membership in the White Circle League of America, Inc. The testimony at the trial was substantially undisputed. From it the jury could find that Beauharnais was president of the White Circle League; that, at a meeting on January 6, 1950, he passed out bundles of the lithographs in question, together with other literature, to volunteers for distribution on downtown Chicago street corners the following day; that he carefully organized that distribution, giving detailed instructions for it; and that the leaflets were in fact distributed on January 7 in accordance with his plan and instructions. The court, together with other charges on burden of proof and the like, told the jury “if you find . . . that the defendant, Joseph Beauharnais, did . . . manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place the lithograph . . . then you are to find the defendant guilty . . . .” He refused to charge the jury, as requested by the defendant, that in order to convict they must find “that the article complained of was likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest.” Upon this evidence and these instructions, the jury brought in the conviction here for review. The statute before us is not a catchall enactment left at large by the State court which applied it. Cf. Thornhill v. Alabama, 310 U. S. 88; Cantwell v. Connecticut, 310 U. S. 296, 307. It is a law specifically directed at a defined evil, its language drawing from history and practice in Illinois and in more than a score of other jurisdictions a meaning confirmed by the Supreme Court of that State in upholding this conviction. We do not, therefore, parse the statute as grammarians or treat it as an abstract exercise in lexicography. We read it in the animating context of well-defined usage, Nash v. United States, 229 U. S. 373, and State court construction which determines its meaning for us. Cox v. New Hampshire, 312 U. S. 569; Chaplinsky v. New Hampshire, 315 U. S. 568. The Illinois Supreme Court tells us that § 224a “is a form of criminal libel law.” 408 Ill. 512, 517, 97 N. E. 2d 343, 346. The defendant, the trial court and the Supreme Court consistently treated it as such. The defendant offered evidence tending to prove the truth of parts of the utterance, and the courts below considered and disposed of this offer in terms of ordinary criminal libel precedents. Section 224a does not deal with the defense of truth, but by the Illinois Constitution, Art. II, § 4, “in all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense.” See also Ill. Rev. Stat., 1949, c. 38, § 404. Similarly, the action of the trial court in deciding as a matter of law the libelous character of the utterance, leaving to the jury only the question of publication, follows the settled rule in prosecutions for libel in Illinois and other States. Moreover, the Supreme Court’s characterization of the words prohibited by the statute as those “liable to cause violence and disorder” paraphrases the traditional justification for punishing libels criminally, namely their “tendency to cause breach of the peace.” Libel of an individual was a common-law crime, and thus criminal in the colonies. Indeed, at common law, truth or good motives was no defense. In the first decades after the adoption of the Constitution, this was changed by judicial decision, statute or constitution in most States, but nowhere was there any suggestion that the crime of libel be abolished. Today, every American jurisdiction — the forty-eight States, the District of Columbia, Alaska, Hawaii and Puerto Rico — punish libels directed at individuals. “There are 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. It has been well observed that such utter-anees are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.’ Cantwell v. Connecticut, 310 U. S. 296, 309-310.” Such were the views of a unanimous Court in Chaplinsky v. New Hampshire, supra, at 571-572. No one will gainsay that it is libelous falsely to charge another with being a rapist, robber, carrier of knives and guns, and user of marijuana. The precise question before us, then, is whether the protection of “liberty” in the Due Process Clause of the Fourteenth Amendment prevents a State from punishing such libels — as criminal libel has been defined, limited and constitutionally recognized time out of mind — directed at designated collectivities and flagrantly disseminated. There is even authority, however dubious, that such utterances were also crimes at common law. It is certainly clear that some American jurisdictions have sanctioned their punishment under ordinary criminal libel statutes. We cannot say, however, that the question is concluded by history and practice. But if an utterance directed at an individual may be the object of criminal sanctions, we cannot deny to a State power to punish the same utterance directed at a defined group, unless we can say that this is a wilful and purposeless restriction unrelated to the peace and well-being of the State. Illinois did not have to look beyond her own borders or await the tragic experience of the last three decades to conclude that wilful purveyors of falsehood concerning racial and religious groups promote strife and tend powerfully to obstruct the manifold adjustments required for free, ordered life in a metropolitan, polyglot community. From the murder of the abolitionist Lovejoy in 1837 to the Cicero riots of 1951, Illinois has been the scene of exacerbated tension between races, often flaring into violence and destruction. In many of these outbreaks, utterances of the character here in question, so the Illinois legislature could conclude, played a significant part. The law was passed on June 29, 1917, at a time when the State was struggling to assimilate vast numbers of new inhabitants, as yet concentrated in discrete racial or national or religious groups — foreign-born brought to it by the crest of the great wave of immigration, and Negroes attracted by jobs in war plants and the allurements of northern claims. Nine years earlier, in the very city where the legislature sat, what is said to be the first northern race riot had cost the lives of six people, left hundreds of Negroes homeless and shocked citizens into action far beyond the borders of the State. Less than a month before the bill was enacted, East St. Louis had seen a day’s rioting, prelude to an outbreak, only four days after the bill became law, so bloody that it led to Congressional investigation. A series of bombings had begun which was to culminate two years later in the awful race riot which held Chicago in its grip for seven days in the summer of 1919. Nor has tension and violence between the groups defined in the statute been limited in Illinois to clashes between whites and Negroes. In the face of this history and its frequent obligato of extreme racial and religious propaganda, we would deny experience to say that the Illinois legislature was without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented. “There are limits to the exercise of these liberties [of speech and of the press]. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the States appropriately may punish.” This was the conclusion, again of a unanimous Court, in 1940. Cantwell v. Connecticut, supra, at 310. It may be argued, and weightily, that this legislation will not help matters; that tension and on occasion violence between racial and religious groups must be traced to causes more deeply embedded in our society than the rantings of modern Know-Nothings. Only those lacking responsible humility will have a confident solution for problems as intractable as the frictions attributable to differences of race, color or religion. This being so, it would be out of bounds for the judiciary to deny the legislature a choice of policy, provided it is not unrelated to the problem and not forbidden by some explicit limitation on the State’s power. That the legislative remedy might not in practice mitigate the evil, or might itself raise new problems, would only manifest once more the paradox of reform. It is the price to be paid for the trial-and-error inherent in legislative efforts to deal with obstinate social issues. “The science of government is the most abstruse of all sciences; if, indeed, that can be called a science which has but few fixed principles, and practically consists in little more than the exercise of a sound discretion, applied to the exigencies of the state as they arise. It is the science of experiment.” Anderson v. Dunn, 6 Wheat. 204, 226. Certainly the Due Process Clause does not require the legislature to be in the vanguard of science — especially sciences as young as human ecology and cultural anthropology. See Tigner v. Texas, 310 U. S. 141, 148. Long ago this Court recognized that the economic rights of an individual may depend for the effectiveness of their enforcement on rights in the group, even though not formally corporate, to which he belongs. American Foundries v. Tri-City Council, 257 U. S. 184. Such group-protection on behalf of the individual may, for all we know, be a need not confined to the part that a trade union plays in effectuating rights abstractly recognized as belonging to its members. It is not within our competence to confirm or deny claims of social scientists as to the dependence of the individual on the position of his racial or religious group in the community. It would, however, be arrant dogmatism, quite outside the scope of our authority in passing on the powers of a State, for us to deny that the Illinois legislature may warrantably believe that a man’s job and his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial and religious group to which he willy-nilly belongs, as on his own merits. This being so, we are precluded from saying that speech concededly punishable when immediately directed at individuals cannot be outlawed if directed at groups with whose position and esteem in society the affiliated individual may be inextricably involved. We are warned that the choice open to the Illinois legislature here may be abused, that the law may be dis-criminatorily enforced; prohibiting libel of a creed or of a racial group, we are told, is but a step from prohibiting libel of a political party. Every power may be abused, but the possibility of abuse is a poor reason for denying Illinois the power to adopt measures against criminal libels sanctioned by centuries of Anglo-American law. “While this Court sits” it retains and exercises authority to nullify action which encroaches on freedom of utter-anee under the guise of punishing libel. Of course discussion cannot be denied and the right, as well as the duty, of criticism must not be be stifled. ~~The scope of the statute before us, as construed by the Illinois court, disposes of the contention that the conduct prohibited by the law is so ill-defined that judges and juries in applying the statute and men in acting cannot draw from it adequate standards to guide them. The clarifying construction and fixed usage which govern the meaning of the enactment before us were not present, so the Court found, in the New York law held invalid in Winters v. New York, 333 U. S. 507. Nor, thus construed and limited, is the act so broad that the general verdict of guilty on an indictment drawn in the statutory language might have been predicated on constitutionally protected conduct. On this score, the conviction here reviewed differs from those upset in Stromberg v. California, 283 U. S. 359, Thornhill v. Alabama, 310 U. S. 88, and Terminiello v. Chicago, 337 U. S. 1. Even the latter case did not hold that the unconstitutionality of a statute is established because the speech prohibited by it raises a ruckos. It is suggested that while it was clearly within the constitutional power of Illinois to punish this utterance if the proceeding were properly safeguarded, in this particular case Illinois denied the defendant rights which the Due Process Clause commands. Specifically, it is argued that the defendant was not permitted to raise at the trial defenses constitutionally guaranteed in a criminal libel prosecution: (1) the defense of truth; (2) justification of the utterance as “fair comment”; and (3) its privilege as a means for redressing grievances. Neither by proffer of evidence, requests for instructions, nor motion before or after verdict did the defendant seek to justify his utterance as “fair comment” or as privileged. Nor has the defendant urged as a ground for reversing his conviction in this Court that his opportunity to make those defenses was denied below. And so, whether a prosecution for libel of a racial or religious group is unconstitutionally invalid where the State did deny the defendant such opportunities is not before us. Certainly the State may cast the burden of justifying what is patent defamation upon the defamer. The benefits of hypothetical defenses, never raised below or pressed upon us, are not to be invoked in the abstract. As to the defense of truth, Illinois in common with many States requires a showing not only that the utterance state the facts, but also that the publication be made “with good motives and for justifiable ends.” Ill. Const., Art. II, § 4. Both elements are necessary if the defense is to prevail. What has been called “the common sense of American criminal law,” as formulated, with regard to necessary safeguards in criminal libel prosecutions, in the New York Constitution of 1821, Art. VII, § 8, has been adopted in terms by Illinois. The teaching of a century and a half of criminal libel prosecutions in this country would go by the board if we were to hold that Illinois was not within her rights in making this combined requirement. Assuming that defendant’s offer of proof directed to a part of the defense was adequate, it did not satisfy the entire requirement which Illinois could exact. Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase “clear and present danger.” Certainly no one would contend that obscene speech, for example, may be punished only upon a showing of such circumstances. Libel, as we have seen, is in the same class. We find no warrant in the Constitution for denying to Illinois the power to pass the law here under attack. But it bears repeating — although it should not — that our finding that the law is not constitutionally objectionable carries no implication of approval of the wisdom of the legislation or of its efficacy. These questions may raise doubts in our minds as well as in others. It is not for us, however, to make the legislative judgment. We are not at liberty to erect those doubts into fundamental law. Affirmed. 408 Ill. 512, 518, 97 N. E. 2d 343, 346-347. Illinois law requires that for the defense to prevail, the truth of all facts in the utterance must be shown together with good motive for publication. People v. Strauch, 247 Ill. 220, 93 N. E. 126; People v. Fuller, 238 Ill. 116, 87 N. E. 336; cf. Ogren v. Rockford Star Printing Co., 288 Ill. 405, 123 N. E. 587. See, e. g., State v. Sterman, 199 Iowa 569, 202 N. W. 222; State v. Howard, 169 N. C. 312, 313, 84 S. E. 807-808; cf. Ogren v. Rockford Star Printing Co., supra. See, e. g., People v. Spielman, 318 Ill. 482, 489, 149 N. E. 466, 469; Odgers, Libel and Slander (6th ed.), 368; 19 A. L. R. 1470. Some States hold, however, that injury to reputation, as in civil libel, and not tendency to breach of the peace, is the gravamen of the offense. See Tanenhaus, Group Libel, 35 Cornell L. Q. 261, 273 and n. 67. For a brief account of this development see Warren, History of the American Bar, 236-239. See also correspondence between Chief Justice Cushing of Massachusetts and John Adams, published in 27 Mass. L. Q. 11-16 (Oct. 1942). Jefferson explained in a letter to Abigail Adams, dated September 11, 1804, that to strike down the Alien and Sedition Act would not “remove all restraint from the overwhelming torrent of slander which is confounding all vice and virtue, all truth and falsehood in the US. The power to do that is fully possessed by the several state legislatures.” See Dennis v. United States, 341 U. S. 494, 522, n. 4. See Miller, Crisis in Freedom, 168-169, 231-232. See also provisions as to criminal libel in Edward Livingston’s famous draft System of Penal Law for Louisiana, 2 Works of Edward Livingston 100-108. In eight States the offense is punished as at common law, without legislative enactment. State v. Roberts, 2 Marv. (Del.) 450, 43 A. 252; Cole v. Commonwealth, 222 Ky. 350, 300 S. W. 907 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. 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songer_r_bus	2	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "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. Paul B. NUNN, Gene Miles and John S. Hoover, Plaintiffs-Appellants, v. CHEMICAL WASTE MANAGEMENT, INC., a Delaware corporation, and Waste Management, Inc., a Delaware corporation, Defendants-Appellees, United States of America, Amicus Curiae. Paul B. NUNN, Gene Miles and John S. Hoover, Plaintiffs-Appellees, v. CHEMICAL WASTE MANAGEMENT, INC., a Delaware corporation, and Waste Management, Inc., a Delaware corporation, Defendants-Counterclaimants-Appellants, United States of America, Amicus Curiae. Nos. 85-1509, 85-1570. United States Court of Appeals, Tenth Circuit. Sept. 2, 1988. Thomas A. Wood, Wichita, Kan. (H.E. Jones, William R. Smith and David J. Morgan of Hershberger, Patterson, Jones & Roth, Wichita, Kan., with him, on the briefs), for plaintiffs/appellants. Robert L. Driscoll of Stinson, Mag & Fizzell, Kansas City, Mo. (Catherine M. Hauber and Mary Ann Tyrrell of Stinson, Mag & Fizzell, Kansas City, Mo., Steve A. Leben of Stinson, Mag & Fizzell, Overland Park, Kan., and William Tinker of McDonald, Tinker, Skaer, Quinn & Herring-ton, Wichita, Kan., with him, on the briefs), for defendants/appellees. F. Henry Habicht, II, Asst. Atty. Gen., Martin W. Matzen and Blake A. Watson, Attys., Dept, of Justice, Washington, D.C., Francis S. Blake, Gen. Counsel, and Gail Cooper, Atty., E.P.A., Washington, D.C., of counsel, filed a brief on behalf of amicus curiae. Before LOGAN, SETH and BARRETT, Circuit Judges. SETH, Circuit Judge. This action for breach of contract was brought by Paul B. Nunn, Gene Miles and John S. Hoover, the former owners of a corporation named National Industrial Environmental Services, Inc. (NIES), against Chemical Waste Management, Inc. (Chemical Waste), the purchaser of the shares of the corporation, and Waste Management, Inc. (Waste Management), Chemical Waste’s parent and sole shareholder. In their suit, the former owners alleged that Chemical Waste had breached its contractual duty of payment on a promissory note of $2,400,000.00 that it had executed in their favor in exchange (with some cash) for all the outstanding stock of NIES. The former owners also sought to hold Waste Management liable as guarantor for an accelerated payment of the note. Chemical Waste and Waste Management counterclaimed against the former owners, stating causes of action for negligence, breach of warranty, and violations of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq. After a bench trial, the trial court denied recovery on all of plaintiffs’ causes of action and entered judgment on defendants’ counterclaim for breach of warranty. As damages, the trial court awarded Chemical Waste and Waste Management $1,710,-400.00 in lost profits and $6,964,942.17 for costs to remedy contamination through August 30, 1984. The trial court also conditionally awarded $2,000,000.00 in damages for future remediation costs. Both sides have appealed. We considered the appeals previously and remanded the cases to the trial court because the issues could not be fully decided by consideration of either claim. We there held that the CERCLA issue was an essential element of the appeal, and it had not been decided by the trial court. The facts are not in dispute. Chemical Waste owns and operated a nationwide network of industrial waste facilities. In 1979, officers of Chemical Waste initiated negotiations for the acquisition of NIES. NIES was an attractive takeover target because it owned a permitted industrial waste disposal facility near Wichita, Kansas. During negotiations on the terms of the corporate acquisition the attorneys for Chemical Waste and NIES exchanged three drafts of an acquisition agreement. In each draft, counsel for NIES requested and received changes in the contractual language, including amendments to the warranties being made by the former owners of NIES. The final acquisition agreement was executed between the former owners and Chemical Waste on May 14, 1980. As consideration for all the outstanding stock in NIES, Chemical Waste made a $500,-000.00 cash payment to the former owners and gave its promissory note for $2,400,-000.00 which was guaranteed by Waste Management. The former owners of NIES made numerous warranties regarding NIES’s industrial waste facility to Chemical Waste in the final acquisition agreement. The trial court found that the former owners warranted, inter alia: “a. That the operations of NIES were in compliance with all applicable laws, regulations and its permits; “b. That from the inception of its operations NIES had been in compliance with all applicable laws, regulations and its permit; “c. That the NIES financial statements were complete; “d. That there were no undisclosed, fixed or contingent liabilities.” The trial court further found that “[u]nder the [acquisition] Agreement, the warranties were deemed effective as of December 15, 1980,” and that Chemical Waste “would not have bought NIES without the warranties that its site complied with all applicable laws.” Thirteen months after Chemical Waste acquired NIES, and had been operating the plant, the facility was closed by the Kansas Department of Health and Environment (KDHE) because toxic wastes were leaking from the facility’s ponds and polluting nearby groundwaters. The trial court found that “[t]he groundwater pollution which caused the NIES site to be shut down in 1982, began during the early phase of [the former owners’] operation of the NIES facility, continued thereafter during [the former owners’] operation, up to and including the time of sale to Chempcal] Waste.... ” To ameliorate the polluting of the leakage Chemical Waste and Waste Management undertook various remediation efforts all of which were either required or approved by the State of Kansas. As of the time of trial Kansas authorities had not permitted the Wichita facility to recommence operations. However, no direct request to reopen may have been made. Shortly after the Wichita facility was closed by KDHE, Chemical Waste notified the former owners that it was suspending payments on the promissory note. The former owners contend on appeal that the trial court erred in granting judgment for the defendants on the breach of warranty counterclaim. The former owners urge that the trial court misconstrued the warranties contained in the acquisition agreement. Specifically, the former owners maintain that they did not warrant that the Wichita facility did not leak, that the facility’s noncompliance with pertinent federal laws and regulations is irrelevant given the wording of the warranties, that they did not warrant facts about which they had no knowledge, and that the warranties contained in the acquisition agreement should be construed against the defendants since their attorney was primarily responsible for drafting the agreement. At the outset it must be observed that “[t]he intention of the parties and the meaning of the contract are to be deduced from the instrument where its terms are plain and unambiguous.” First National Bank & Trust Co. v. Lygrisse, 231 Kan. 595, 647 P.2d 1268, 1273 (quoting Martin v. Edwards, 219 Kan. 466, 548 P.2d 779, 785-86). In the absence of contractual ambiguity, a trial court’s interpretation of the contract presents an issue of law which is reviewed de novo on appeal. See CMI Corp. v. Gurries, 674 F.2d 821, 825 (10th Cir.); Duffin v. Patrick, 212 Kan. 772, 512 P.2d 442, 447-48. In Teton Exploration Drilling v. Bokum Resources Corp., 818 F.2d 1521, 1526 (10th Cir.), we held that “[t]he determination whether a contract provision is ambiguous is a matter of law.... Once a provision is found to be ambiguous, the resolution of its proper meaning is a question of fact, subject to review on a clearly erroneous standard.” Our review of the relevant contractual language leads us to conclude as a matter of law that the warranties made by the former owners are ambiguous insofar as the leakage issue and the applicability of federal laws and regulations are concerned. Accordingly, we review the trial court’s resolution of these ambiguities by a clearly erroneous standard. In Section 2.12 of the acquisition agreement, the former owners warranted that: “[NIES] is not in default under any law or ordinance, or under any order of any court or federal, state, municipal or other governmental department, commission, board, bureau, agency, or instrumentality wherever located; its operations are in compliance with all applicable laws, permits and ordinances and there are no claims, actions, suits or proceedings pending, or threatened, against or affecting the Company or any Shareholder, at law or in equity, or before or by any federal, state, municipal, or other governmental department, commission, board, bureau, agency or instrumentality, wherever located, which might result in any material adverse change in the financial condition or business of the Company or which would question the validity or propriety of this agreement or of any action taken or to be taken in accordance with or in connection with this agreement.” In Section 2.30 of the acquisition agreement, the former owners warranted that: “[NIES], from the inception of operation at the [Wichita] Site, has been and is in compliance with the terms, conditions and requirements of all licenses, permits and authorizations it holds and the laws, ordinances and regulations pursuant to which such licenses, permits and authorizations were granted.” We are not persuaded by the former owners’ contention that the foregoing warranties do not include within their scope a warranty against leakage at the Wichita waste facility. Although the warranties do not expressly mention leakage, we conclude that the trial court did not clearly err in interpreting these ambiguous contractual warranties to warrant against the leakage of toxic wastes from the site. Both Sections 2.21 and 2.30 warrant that the Wichita facility is in compliance with all applicable laws. One such law is surely K.S.A. § 65-164 which proscribes the placing, discharging, or permitting the flow of any chemical waste into the waters of the state of Kansas. Contrary to the former owners’ argument, we find that K.S.A. § 65-164 is not in conflict with later Kansas enactments dealing with toxic wastes and, accordingly, we conclude that the statute has not been repealed by implication. See State v. Keeley, 236 Kan. 555, 694 P.2d 422, 426-27 (to the extent possible, older statute must be harmonized with newer statutes), Pederson v. Russell State Bank, 206 Kan. 718, 481 P.2d 986, 990 (repeals by implication are disfavored and such a repeal should not be found if two statutes may operate independently without conflict). When we_ look at the warranties in the light of the laws of the state of Kansas, as well as in the context of applicable federal law, we are confident that the trial court correctly interpreted the contract to contain a warranty against leakage at the site. Likewise, we conclude that the trial court did not clearly err in resolving the contractual ambiguity regarding the relevance of pertinent federal laws and regulations. Section 2.17 of the acquisition agreement provides, in pertinent part, that “the business of [NIES] is subject to certain environmental regulations and that revision of such regulations may occur from time to time and is currently contemplated by the Kansas State Legislature and the Kansas Department of Health and Environment.” Section 2.21 of the acquisition agreement provides: “If the exchange provided for in this agreement is consummated at the Time of Closing, all of the representations and warranties hereinabove contained in this article will be true and correct at and as of the Time of Closing, with the same force and effect as though made at and as of the Time of Closing, except for changes contemplated or permitted by this agreement.” The former owners argue that the foregoing sections, read in conjunction with each other, render any violations of the federal Resource, Conservation and Recovery Act of 1976 (RCRA) and CERCLA irrelevant insofar as the contractual warranties are concerned. The former owners premise this contention on the fact that RCRA and CERCLA, both of which became effective during the period of time between the execution of the acquisition agreement and the time of closing, were regulatory “changes contemplated” by the agreement. Accordingly, argue the former owners, RCRA and CERCLA violations were not within the warranties. As noted above, the trial court found that “the warranties were deemed effective as of December 15, 1980,” the date upon which the acquisition of NIES was consummated. Although the trial judge did not so expressly hold, a reading of the findings of fact reveals that the trial court found that RCRA and CERCLA violations were warranted against. We agree and we hold that this interpretation is not clearly erroneous. Indeed, the very argument advanced by the former owners leads to the conclusion that the parties intended RCRA and CERC-LA violations to be within the scope of the warranties. Section 2.21, in effect, provides that the warranties made at the time the acquisition agreement was executed are not static; rather, the parties intended that the warranties would expand or contract along with the “contemplated changes” in the law which transpired prior to the time of closing. While the enactment of RCRA and of CERCLA may have expanded the scope of the warranties beyond that which was warranted at the time the agreement was executed, an expansion was expressly provided for by the terms of the agreement. We conclude, as mentioned, that the trial court’s interpretation that RCRA and CERCLA violations were within the warranties was not clearly erroneous. It is noteworthy that the former owners have not argued that the Wichita facility was in compliance with RCRA and CERCLA at the time the acquisition was consummated. The former owners also argue that they did not warrant conditions or events about which they had no knowledge. The contractual warranties are not ambiguous in this regard. Many of the warranties made by the former owners were expressly made “to the best of [their] knowledge.” The face of the agreement leaves no doubt but that the former owners well knew how to limit contractual warranties to the best of their knowledge when they so desired. It is significant, then, that the warranties contained in Sections 2.12 and 2.30 are not limited by the former owners’ knowledge. In the absence of such a limitation, we conclude that the trial court did not err when it found that the parties intended that such warranties would not be limited by the former owners’ knowledge. This is not at all an unusual result. Parties to a contract frequently allocate the risks which may arise from uncontemplated or unknown events and conditions through warranties. “[I]f a material state of facts is warranted to exist which turns out not to be the case, the warrantor is liable for the loss or damage caused; and it is no defense that he acted upon misinformation and in good faith.” Hoffa v. Fitzsimmons, 673 F.2d 1345, 1358 (D.C.Cir.) (quoting Pittsburgh Coke & Chemical Co. v. Bollo, 421 F.Supp. 908, 928 (E.D.N.Y.)). Neither are we persuaded by the former owners’ argument that the acquisition agreement, including the warranties contained therein, should be construed against the defendants since the defendants’ counsel drafted the agreement. The rule that contracts are to be construed against the draftsperson is simply inapplicable in this case in which the parties brought equal bargaining power to the negotiation table. Moreover, both the former owners and the defendants were represented by counsel during the negotiations and both parties to the agreement had input into the final contractual language. See Dorchester Exploration, Inc. v. Sunflower Electric Coop., Inc., 504 F.Supp. 926, 936 (D.Kan.). Having concluded that the trial court’s interpretation of the contractual warranties was not attended by any error, we further affirm the trial court’s conclusion that the warranties were breached. Our review of the record indicates that the trial court did not clearly err in finding that the warranties against leakage and violation of applicable laws and regulations were breached. This finding is supported by the evidentiary facts regarding the shutdown of the Wichita facility and the causes of the groundwater pollution which led to the shutdown. Accordingly, that portion of the damage award which reflects the cost to the defendants of bringing the Wichita facility up to the warranted condition is hereby affirmed. We cannot affirm, however, that portion of the damage award which was intended to compensate the defendants for their lost profits. The contractual warranties contained in the acquisition agreement were made by the former owners to Chemical Waste. Therefore, Chemical Waste was directly injured by the breach of those warranties. The lost profit injury, on the other hand, was not suffered by Chemical Waste. Rather, the profits were lost by a separate corporate entity, the subsidiary corporation NIES. As a matter of law, it was erroneous for the trial court to disregard the separate entity status of the defendant corporations and the injured corporation. See McDaniel v. Painter, 418 F.2d 545, 547 (10th Cir.) (a stockholder who is damaged indirectly may not sue individually to vindicate an injury to the corporation). Accordingly, we reverse the award of damages insofar as that award reflects profits lost by NIES, a corporate entity which was not made a party to this lawsuit. The final point on appeal raised by the former owners is that the trial court erred in failing to enforce the defendants’ contractual obligations because of a “failure of consideration.” We agree that the defendants should not have been discharged from their contractual duties and, accordingly, we hold that the defendants remain obligated to pay the balance due on the promissory note to the former owners. The cases cited by the defendants on failure of consideration are inapposite here. By performing on the warranties and paying remediation costs as ordered by the trial court, the former owners will deliver the consideration for which the defendants bargained. Thus, there has been no “failure” of consideration. “The general measure of damages for breach of warranty of quality is the difference between the value of the article actually furnished the buyer and the value the article would have had if it possessed the warranted qualities.” Williston, Contracts § 1391 (3d ed.1968). In the instant case, the award of remediation costs to the defendants puts them into as good a position as they would have been had the Wichita facility been in the condition warranted by the former owners. To discharge the defendants from their contractual duties while holding the former owners liable on the contractual warranties bestows a windfall on the defendants. “Kansas has recognized that ‘[t]he basic principle of damages is to make a party whole by putting it back in the same position, not to grant a windfall.’ ” State of Kansas v. Wolfenbarger and McCulley, P.A., 236 Kan. 183, 690 P.2d 380, 385 (quoting Service Iron Foundry, Inc. v. M.A. Bell Co., 2 Kan.App.2d 662, 588 P.2d 463, 476). Accordingly, we reverse the trial court’s decision to discharge the defendants from their contractual obligations. Finally, we note that the defendants have appealed from the trial court’s adverse judgment on their CERCLA counterclaim. When the original appeal was considered by this court, we noted that the record did not provide a sufficient basis for review of the trial court’s proceedings on the CERC-LA counterclaim. Accordingly, we remanded the case for further proceedings on the CERCLA issues. Unfortunately, the trial court did not develop the CERCLA issues upon remand. Instead, the trial court found that state law provided the parties with all the relief which they requested and again declined to pass upon the merits of the CERCLA claim. Although it is true that state law remedies were available in the instant case, the trial court’s calculation of damages could have been significantly affected by a full development of the issues surrounding the CERCLA liability of both parties to the acquisition agreement. As noted, NIES under the direction and under the ownership of Chemical Waste operated the facility for over a year. The Third Circuit in Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86 (3d Cir.), considered the obligations of entities which were or had operated the facilities. Unless and until the CERCLA issues are fully developed in the district court, however, we are unable to rule upon the CERCLA counterclaim. WHEREFORE, the trial court’s judgment in favor of Chemical Waste and Waste Management on the breach of warranty counterclaim is AFFIRMED insofar as the award of damages for remediation costs is concerned. The trial court’s award of lost profits damages is REVERSED, as is the trial court’s decision to discharge Chemical Waste and Waste Management from their contractual obligations. This cause is REMANDED to the trial court for modification of the judgment in a manner consistent with this opinion and for further proceedings on the CERCLA issues. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
sc_petitioner	135	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. DIAMOND et al. v. CHARLES et al. No. 84-1379. Argued November 5, 1985 Decided April 30, 1986 Blackmun, J., delivered the opinion of the Court, in which Brennan, Marshall, Powell, and Stevens, JJ., joined, and in Part I of which Burger, C. J., and Rehnquist and O’Connor, JJ., joined. O’Connor, J., filed an opinion concurring in part and concurring in the judgment, in which Burger, C. J., and Rehnquist, J., joined, post, p. 71. White, J., concurred in the judgment. Dennis J. Horan argued the cause for appellants. With him on the briefs were Victor G. Rosenblum, Edward R. Grant, and Maura K. Quinlan. R. Peter Carey argued the cause for appellees. With him on the brief were Colleen K. Connell, Frank Susman, Janet Benshoof, and Nan D. Hunter. Briefs of amici curiae urging reversal were filed for the United States by Acting Solicitor General Fried, Acting Assistant Attorney General Willard, Deputy Assistant Attorney General Kuhl, John F. Cordes, and John M. Rogers; for the Catholic League for Religious and Civil Rights by Steven Frederick McDowell; and for Senator Gordon J. Humphrey et al. by Robert A. Destro and Basile J. Uddo. Briefs of amici curiae urging affirmance were filed for the Attorney General of New York by Robert Abrams, pro se, Robert Hermann, Solicitor General, Rosemarie Rhodes, Assistant Attorney General, and Lawrence S. Kahn, Sanford M. Cohen, and Martha J. Olson, Assistant Attorneys General; for the American Medical Association et al. by Benjamin W. Heineman, Jr., Carter G. Phillips, Newton N. Minow, Jack R. Bierig, Stephan E. Lawton, Joel I. Klein, Joseph A. Keyes, Jr., and Ann E. Allen; for the Center for Constitutional Rights et al. by Anne E. Simon, Nadine Taub, Rhonda Copelon, and Judith Levin; for the National Abortion Rights Action League et al. by Lynn I. Miller; for the National Organization for Women et al. by Diane E. Thompson; and for Planned Parenthood Federation of America, Inc., et al. by Dara Klassel and Eve W. Paul. Briefs of amici curiae were filed for the Women Lawyers’ Association of Los Angeles et al. by Susan R. Schwartz, Carol Boyk, Judith Gordon, and Lorraine Loder; for the Unitarian Universalist Association et al. by Madeline Kochen; for Senator Bob Packwood et al. by Laurence H. Tribe and Kathleen M. Sullivan; and for Susan Bandes et al. by Arthur Kinoy. Justice Blackmun delivered the opinion of the Court. Appellant Eugene F. Diamond is a pediatrician engaged in private practice in Illinois. He seeks to defend before this Court the constitutionality of four sections of the Illinois Abortion Law of 1975, as amended. These sections impose criminal liability for the performance of an abortion under certain circumstances, and, under other circumstances, require that the woman be provided with particular abortion-related information. The State of Illinois has chosen to absent itself from this appeal, despite the fact that its statute is at stake. Because a private party whose own conduct is neither implicated nor threatened by a criminal statute has no judicially cognizable interest in the statute’s defense, we dismiss the appeal for want of jurisdiction. I On October 30, 1979, over gubernatorial veto, the Illinois Legislature amended the State’s 1975 Abortion Law to provide for increased regulation. 1979 Ill. Laws, Pub. Act 81-1078. That very day appellees, four physicians who provide obstetric, gynecologic, and abortion services in Illinois, filed a class action in the United States District Court for the Northern District of Illinois. They alleged a deprivation of rights in violation of 42 U. S. C. § 1983 by the Illinois officials charged with enforcing the Abortion Law. Appellees sought declaratory and injunctive relief. The next day, the District Court certified the plaintiff class and temporarily restrained enforcement of the entire statute. On November 8, appellant Diamond filed a motion to intervene as a party defendant, either permissively or as of right, and to be appointed guardian ad litem for fetuses who survive abortion. The motion for intervention professed to be based on Doctor Diamond’s conscientious objection to abortions, and on his status as a pediatrician and as a parent of an unemancipated minor daughter. Over appellees’ objection, the District Court granted Diamond’s motion to intervene. The District Court did not indicate whether the intervention was permissive or as of right, and it did not describe how Diamond’s interests in the litigation satisfied the requirements of Federal Rule of Civil Procedure 24 for intervenor status. The court denied the guardianship motion. On November 16, the District Court entered a preliminary injunction against a number of sections of the Abortion Law, including §§6(1) and 6(4). These sections prescribe the standard of care that must be exercised by a physician in performing an abortion of a viable fetus, and of a possibly viable fetus. A violator of §6(1) is subject to a term of imprisonment of between three and seven years and a fine not exceeding $10,000. Ill. Rev. Stat., ch. 38, ¶¶ 1005-8-1(5) and 1005-9-1(1) (1983). A violator of §6(4) is subject to a term of imprisonment of between two and five years and a fine not exceeding $10,000. Ill. Rev. Stat., ch. 38, ¶¶ 1005-8-1(6) and 1005-9-1(1) (1983). The plaintiffs appealed the denial of the preliminary injunction as to §2(10), which defines the term “abortifacient,” and as to § 11(d), which requires a physician who prescribes an abortifacient to tell the patient what it is. A violator of § 11(d) is subject to a term of imprisonment of not more than 30 days, and a fine not exceeding $500. Ill. Rev. Stat., ch. 38, ¶¶ 1005-8-3(3) and 1005-9-1(3) (1983). No cross-appeal was taken. The Court of Appeals for the Seventh Circuit instructed the District Court to enter a preliminary injunction as to §§2(10) and 11(d), because these statutory provisions forced physicians “to act as the mouthpiece for the State’s theory of life.” Charles v. Carey, 627 F. 2d 772, 789 (1980). On remand, the District Court permanently enjoined, among others, §§6(4), 2(10), and 11(d). Charles v. Carey, 579 F. Supp. 464 (1983). On appeal and cross-appeal, the Court of Appeals affirmed the entry of the permanent injunction as to the three sections, and also permanently enjoined the enforcement of § 6(1). 749 F. 2d 452 (1984). The State did not appeal the grant of the permanent injunction. Diamond, however, filed a notice of appeal to this Court and a jurisdictional statement. As we have indicated, see n. 4, supra, Doctor Diamond is the sole appellant here. We noted probable jurisdiction. 471 U. S. 1115 (1985). The State, through the office of its Attorney General, subsequently filed with this Court a “letter of interest,” invoking our Rule 10.4, which provides: “All parties to the proceeding in the court from whose judgment the appeal is being taken shall be deemed parties in this Court. . . .” In that letter Illinois stated: “Although not an appellant, the Office of the Attorney General ... is a party in the United States Supreme Court and is designated an appellee. The Illinois Attorney General’s interest in this proceeding is identical to that advanced by it in the lower courts and is essentially co-terminous with the position on the issues set forth by the appellants.” Letter dated July 15, 1985, to the Clerk of the Court from the Director of Advocacy, Office of the Attorney General of Illinois. See App. to Reply Brief for Appellants A-l. Illinois’ absence as an appellant requires that we examine our jurisdiction to entertain this appeal. II Article III of the Constitution limits the power of federal courts to deciding “cases” and “controversies.” This requirement ensures the presence of the “concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U. S. 186, 204 (1962). The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. Ill’s requirements. This Court consistently has required, in addition, that the party seeking judicial resolution of a dispute “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct” of the other party. Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 99 (1979); see also Warth v. Seldin, 422 U. S. 490, 501 (1975). The nature of the injury is central to the Art. Ill inquiry, because standing also reflects a due regard for the autonomy of those most likely to be affected by a judicial decision. “The exercise of judicial power . . . can so profoundly affect the lives, liberty, and property of those to whom it extends,” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 473 (1982), that the decision to seek review must be placed “in the hands of those who have a direct stake in the outcome.” Sierra Club v. Morton, 405 U. S. 727, 740 (1972). It is not to be placed in the hands of “concerned bystanders,” who will use it simply as a “vehicle for the vindication of value interests.” United States v. SCRAP, 412 U. S. 669, 687 (1973). Ill Had the State of Illinois invoked this Court’s appellate jurisdiction under 28 U. S. C. § 1254(2) and sought review of the Court of Appeals’ decision, the “case” or “controversy” requirement would have been met, for a State has standing to defend the constitutionality of its statute. Diamond argues that Illinois’ “letter of interest” demonstrates the State’s continued concern with the enforcement of its Abortion Law, and renders the State the functional equivalent of an appellant. Accordingly, Diamond asserts, there is no jurisdictional problem in the case. This claim must be rejected. It is true that, as a party below, the State remains a party here under our Rule 10.4. But status as a “party” does not equate with status as an appellant. To appear before the Court as an appellant, a party must file a notice of appeal, the statutory prerequisite to invoking this Court’s jurisdiction. See 28 U. S. C. § 2101(c). Illinois’ mere expression of interest is insufficient to bring the State into the suit as an appellant. By not appealing the judgment below, the State indicated its acceptance of that decision, and its lack of interest in defending its own statute. The State’s general interest may be adverse to the interests of appellees, but its failure to invoke our jurisdiction leaves the Court without a “case” or “controversy” between appellees and the State of Illinois. Cf. Princeton University v. Schmid, 455 U. S. 100 (1982). Had the State sought review, this Court’s Rule 10.4 makes clear that Diamond, as an intervening defendant below, also would be entitled to seek review, enabling him to file a brief on the merits, and to seek leave to argue orally. But this ability to ride “piggyback” on the State’s undoubted standing exists only if the State is in fact an appellant before the Court; in the absence of the State in that capacity, there is no case for Diamond to join. IV A Diamond claims that his interests in enforcement permit him to defend the Abortion Law, despite Illinois’ acquiescence in the Court of Appeals’ ruling of unconstitutionality. This claim also must fail. Doctor Diamond attempts to equate his position with that of appellees, the physicians who instituted this suit in the District Court. Appellees, however, had standing to bring suit against the state officials who were charged with enforcing the Abortion Law because appellees faced possible criminal prosecution. See, e. g., Doe v. Bolton, 410 U. S. 179, 188 (1973). The conflict between state officials empowered to enforce a law and private parties subject to prosecution under that law is a classic “case” or “controversy” within the meaning of Art. III. The conflict presented by Diamond is different. Were the Abortion Law to be held constitutional, Diamond could not compel the State to enforce it against appellees because “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Linda R. S. v. Richard D., 410 U. S. 614, 619 (1973); see Leeke v. Timmerman, 454 U. S. 83 (1981); Sure-Tan, Inc. v. NLRB, 467 U. S. 883 (1984). See also Younger v. Harris, 401 U. S. 37, 42 (1971); Bailey v. Patterson, 369 U. S. 31, 33 (1962). Cf. Allen v. Wright, 468 U. S. 737, 754 (1984) (“[A]n asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court”). The concerns for state autonomy that deny private individuals the right to compel a State to enforce its laws apply with even greater force to an attempt by a private individual to compel a State to create and retain the legal framework within which individual enforcement decisions are made. The State’s acquiescence in the Court of Appeals’ determination of unconstitutionality serves to deprive the State of the power to prosecute anyone for violating the Abortion Law. Diamond’s attempt to maintain the litigation is, then, simply an effort to compel the State to enact a code in accord with Diamond’s interests. But “the power to create and enforce a legal code, both civil and criminal” is one of the quintessential functions of a State. Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592, 601 (1982). Because the State alone is entitled to create a legal code, only the State has the kind of “direct stake” identified in Sierra Club v. Morton, 405 U. S., at 740, in defending the standards embodied in that code. B Even if there were circumstances in which a private party would have standing to defend the constitutionality of a challenged statute, this is not one of them. Diamond is not able to assert an injury in fact. A physician has standing to challenge an abortion law that poses for him a threat of criminal prosecution. Doe v. Bolton, 410 U. S., at 188; see Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 62 (1976). In addition, a physician who demonstrates that abortion funding regulations have a direct financial impact on his practice may assert the constitutional rights of other individuals who are unable to assert those rights themselves. See Singleton v. Wulff, 428 U. S. 106 (1976). Diamond attempts to assert an equivalent interest based upon his personal status as a doctor, a father, and a protector of the unborn. We must reject Diamond’s claims that his personal and professional interests confer standing. Diamond, who is a pediatrician, claims that if the Abortion Law were enforced, he would gain patients; fewer abortions would be performed and those that would be performed would result in more live births, because the law requires a physician to attempt to preserve the life of the aborted fetus. By implication, therefore, the pool of potential fee-paying patients would be enlarged. The possibilities that such fetuses would survive and then find their way as patients to Diamond are speculative, and “unadorned speculation will not suffice to invoke the federal judicial power.” Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S. 26, 44 (1976). Diamond’s situation, based on speculation and hoped-for fees is far different from that of the physicians in Wulff, supra, where actual fees were limited by the challenged Missouri statute. Diamond also alleges that, as a physician, he has standing to litigate the standards of medical practice that ought to be applied to the performance of abortions. Although Diamond’s allegation may be cloaked in the nomenclature of a special professional interest, it is simply the expression of a desire that the Illinois Abortion Law as written be obeyed. Article III requires more than a desire to vindicate value interests. See United States v. SCRAP, 412 U. S., at 687. It requires an “ ‘injury in fact’ ” that distinguishes “a person with a direct stake in the outcome of a litigation — even though small — from a person with a mere interest in the problem.” Id., at 689, n. 14. Diamond has an interest, but no direct stake, in the abortion process. This “abstract concern . . . does not substitute for the concrete injury required by Art. III.” Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S., at 40. Similarly, Diamond’s claim of conscientious objection to abortion does not provide a judicially cognizable interest. Doctor Diamond also asserts that he has standing as the father of a daughter of childbearing years. First, to the extent that Diamond’s claim derives from § 3(3) of the Abortion Law, the parental notification section, he lacks standing to continue this litigation, for it does not address the validity of that provision. Second, to the extent that he claims an interest in ensuring that his daughter is not prescribed an abortifacient without prior information — a concern ostensibly triggered by the invalidation of §§2(10) and 11(d) — he has failed to show that he is a proper person to advance this claim on her behalf. Diamond has not shown either that his daughter is currently a minor or that she is otherwise incapable of asserting her own rights. Diamond’s failure to adduce factual support renders him incapable of maintaining this appeal in his capacity as a parent. See Bender v. Williamsport Area School Dist., 475 U. S. 534, 548-549 (1986). Nor can Diamond assert any constitutional rights of the unborn fetus. Only the State may invoke regulatory measures to protect that interest, and only the State may invoke the power of the courts when those regulatory measures are subject to challenge. V Finally, Diamond asserts that he has standing based on two interests that relate not to the Abortion Law, but to his 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_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. SONDERICKER v. UNITED STATES. No. 4308. Circuit Court of Appeals, Seventh. Circuit. May 28, 1930. Albert K. Stebbins, of Milwaukee, Wis., for appellant. L. H. Bancroft, of Milwaukee, Wis., for the United States. Before ALSCHÜLER, EVANS, and SPARKS, Circuit Judges. ALSCHULER, Circuit Judge. The judgment from which this appeal was prosecuted was rendered on a verdict convicting appellant of maintaining a common nuisance under section 21, title 2, of the National Prohibition Act (27 USCA § 33). The indictment charged him with maintaining a nuisance at the premises described, in that he there “did sell and possess for sale for beverage purposes, certain intoxicating liquors, to wit: * * * ” The “Statement of Pacts” of the brief for the appellant sets out the propositions whereon the appeal is grounded, and the facts upon which they arise, as follows: “The appellant, upon arraignment, pleaded ‘not guilty/ but, upon the calling of the case for trial, withdrew said plea and made his several motions to strike out the word ‘possess for sale’ ’ and ‘possessed for sale/ where they appeared in the indictment as surplusage both under the Eighteenth Amendment and the Volstead Act. Upon the overruling of said motions, appellant renewed his plea of ‘not guilty’ but introduced no evidence, continuing to rely upon the objections originally interposed in the motions to strike, as aforesaid, which objections, differing only in form were renewed, 1st: on motion to discharge defendant at the close of the government’s case, 2nd: on motion to discharge defendant at the conclusion of all of the evidence, 3rd: on motion for arrest of judgment upon the coming in of the verdict of the jury and 4th: on motion for stay of execution. All of the foregoing motions were overruled and exceptions properly preserved. “The propositions of law involved in the above motions and upon which this appeal is based, are 1st: That the Eighteenth Amendment does not prohibit the possession of alcoholic liquor and that the Volstead Act, insofar as it attempts to prohibit such possession, is unconstitutional. 2nd: That the Volstead Act in terms prohibits possession but does not include an aggravated form of possession, coupled with a wrongful intent, and that, by charging ‘possession for sale/ the indictment undertook to hold appellant to answer an offense unknown to the law.” If, as staled in the motion, the assailed words “appeared in the indictment as surplusage,” then, as in any pleading, the “surplusage” would be disregarded the same as though not present at all. That is what is meant by “surplusage.” Black’s or Bouvier’s Law Dictionary. Or if, assuming the propriety in any event of a motion to strike out or otherwise amend an indictment, appellant’s motion to strike had been granted, it would have followed, both in ease of treating the words as surplusage, as vrell in the case of striking them out, .there would then have remained the charge of maintaining the premises as a common nuisance, in that the defendant “did sell for beverage purposes certain intoxicating liquor, to wit: * + * ” —a perfectly good indictment under section 21, of title 2, the relevant part of which is: “Any room, house, building, boat, vehiele, structure, or place where intoxicating liquor is manufactured, sold, kept, or bartered in violation of this chapter, and all intoxicating liquor and property kept and used in maintaining the same, is hereby declared to be a common nuisance, and any person who maintains such a common nuisance shall be guilty of a misdemeanor. * * * ” The indictment is not for the act of selling or possessing for sale, but for maintaining a nuisance through the several alleged means. The means are disjunctively stated in the statute. Any valid one of several mean's charged will, if proved, sustain the charge and uphold a conviction thereon. Sale of liquor upon premises as a means whereby an alleged nuisance was committed and maintained falls fully within section 21 as well as within the Eighteenth Amendment. An indictment charging the maintenance of a nuisance through sale is not subject to objection, for the reason that the same indictment alleges further means whereby the same nuisance was maintained, which neither the Eighteenth Amendment nor the statute recognize as means whereby a nuisance might be committed or maintained. The bill of exceptions states that evidence was received and a verdict of guilty found by the jury, but it does not present the evidence, and we must conclusively presume there was evidence to sustain the allegation of selling as the means whereby the nuisance was maintained. This situation requires affirmance of the judgment, regardless of whether there is merit in appellant’s contention that neither the Eighteenth Amendment nor section 21 of title 2 authorizes the penalizing of mere possession of liquor. The judgment 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_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 Shirley M. RUSSELL, Appellant, v. NEW AMSTERDAM CASUALTY COMPANY and Consumers Public Power District, Appellees. No. 16692. United States Court of Appeals Eighth Circuit. May 31, 1962. Charles E. Kirchner, Omaha, Neb., made argument for the appellant and filed brief. John E. Dougherty, York, Neb., made argument for the appellee and filed brief. Before JOHNSEN, Chief Judge, and WOODROUGH and MATTHES, Circuit Judges. MATTHES, Circuit Judge. The basic question for determination on this appeal is whether the trial court, upon motion interposed by one of the defendants, properly dismissed plaintiff’s cause of action and refused to permit an amendment to the original complaint. The issue presents for our consideration the Nebraska statute of limitations controlling wrongful death actions; the effect of failure of the original complaint, filed within the statutory period, to properly allege legal capacity to sue; and the right of plaintiff to file an amended complaint alleging her right to maintain the action, after the statutory period of limitations had expired. Section 30-809, R.S.Neb., 1956 Reissue, creates the right to recover for the wrongful death of a person. Section 30-810 provides that an action for wrongful death shall be commenced within two years after the death of such person, and “(i)t shall be brought by and in the name of his personal representatives, for the exclusive benefit of the widow or widower and next of kin.” Section 30-810 was considered by the Supreme Court of Nebraska in Swift v. Sarpy County, 102 Neb. 373, 167 N.W. 458, where the pronouncement was made, (167 N.W.) at p. 459: “When damage results from the death of an individual, this statute applies, and requires that an action for negligently causing such death shall be brought in the name of the administrator of the deceased individual.” The Swift case has conclusively established that a wrongful death action in Nebraska must be maintained by the legal representative of the deceased. See Sarpy County v. Galvin, 8 Cir., 251 F. 888; Stevenson v. Richardson Co. (D.C.Neb.), 9 F.R.D. 437. We turn now to the incidents from which this appeal emanated. Shirley M. Russell filed a complaint in the United States District Court for the District of Nebraska on July 25, 1960. She alleged that she was bringing the cause of action for herself and as personal representative of the estate of her husband, James G. Russell, deceased; and that on the 26th day of July, 1958, her husband was fatally injured as a result of the negligence of defendant Consumers Public Power District. There was a general allegation of diversity of citizenship and a prayer for judgment in the amount of $150,000. On August 6, 1960, defendant Consumers Public Power District moved to dismiss the complaint on the grounds (1) that the court lacked jurisdiction over the subject matter because the action was being prosecuted by the wife of the deceased who had no legal capacity to sue or maintain the action, and (2) failure to join an indispensable party, namely, the personal representative, as provided by §§ 30-809, 30-810, R.S.Neb., 1956 Reissue. On September 2, 1960, plaintiff moved for leave to file an amended complaint. In pertinent part this complaint alleged that on August 11, 1960, plaintiff had filed petition for appointment as special administratrix of the estate. of her deceased husband in the County Court of Hamilton County, Nebraska; that she had qualified for such appointment and had been issued letters of special administratrix ; that there were no children of her marriage to James G. Russell, and that she is his sole heir and next of kin. The court took the motion for leave to file the amended complaint under advisement, and on November 8, 1960, filed a memorandum and order sustaining Consumers’ motion to dismiss. This, of course, was tantamount to a denial of the right to file the amended complaint. From the memorandum, not officially published, it is manifest that the court was of the view that the cause of action was vested exclusively in the personal representative of the deceased; that the widow had no right as such to institute and maintain the action, and that because an action had not been commenced by the party having legal capacity under the Nebraska statute, the cause of action is barred by the statute of limitations. Plaintiff has appealed. No brief has been filed on behalf of the defendant New Amsterdam Casualty Company, and defendant Consumers Public Power District appears as appellee in this court. For convenience and brevity we shall hereafter refer to the parties as appellant and appellee. From the action taken by the trial court and reasons assigned therefor, it is apparent that the court failed to come to grips with what we regard as the crucial issue, to wit: the right of appellant to amend her complaint, after the two-year statutory period had expired, by alleging that she had been duly appointed as personal representative of the deceased’s estate and as such had authority to prosecute the same. Resolution of this issue turns on the question of whether an amendment which substitutes a party having legal capacity to sue for one lacking such right but having a beneficial interest in the subject matter, introduces a new and different cause of action. Because of the importance of the question we have made extensive independent research which persuades us to hold that the amendment should have been allowed. A clear statement of the general rule is found in 16 Am.Jur., Death, § 289, p. 201, in this language: “The usual rules as to the amendment of pleadings in civil actions generally prevail in regard to the amendment of a declaration, petition, or complaint in an action for death by wrongful act, and the right to amend is subject to the same general limitations as to changing the form of the action, change of parties, and the substitution or introduction of an entirely new cause of action after the statute of limitations has become a bar. Where an amendment to a complaint in an action for wrongful death introduces no new or different cause of action and does not set up any different state of facts as the ground of action, it relates back to the beginning of the suit and the statute of limitations is arrested at that point; but when the amendment introduces a new and different cause of action, it is treated as a new suit begun at the time when the amendment is filed.” Sections 290 and 291 of the same authority are pertinent. In the former it is stated, at p. 202: “By the weight of authority, if the action to recover for the negligent killing of a person is brought in the name of the wrong plaintiff, the proceedings may be amended to the end that the proper party be made plaintiff therein. * * * Indeed it has even been held, where it was contended that under an amendment bringing in new parties to an action for wrongful death a new cause of action was stated and the statute of limitations had run as to the new parties, that, since no new or different cause of action was introduced, the amendment related back to the commencement of the action and the plea of the statute of limitations was of no avail.” Section 291 is particularly apropos to the instant situation and it states, at p. 203, the rule to be: “In an action for wrongful death properly maintainable only in the name of the personal representative of the decedent, it has been held that an amendment of the original petition, in such an action, by which the plaintiff sued as sole beneficiary, may be made so as to allege the representative capacity of the plaintiff, since such an amendment introduces no new or different cause of action and sets up no different state of facts as the ground of action.” The question has been the subject of numerous court decisions, is annotated in 74 A.L.R. 1269; 8 A.L.R.2d 76-90, the latter being supplemented in A.L.R. Supplement Service, 1960, p. 580, §§ 39 and 40, and in A.L.R. Supplement Service, 1962, p. 131, §§ 39 and 40, and was considered in the analysis of the law of limitations appearing in 63 Harvard Law Review 1177, where this statement appears at p. 1239: “However, * * * where the plaintiff sues in the wrong capacity some courts have experienced considerable difficulty in avoiding the objection that the original action was void, and have thus disallowed the change of the party plaintiff. Nevertheless, the new plaintiff is today usually allowed to take advantage of the former action if the original plaintiff had, in any capacity, either before or after the commencement of the suit, an interest in the subject matter of the controversy.” (Emphasis supplied). The Supreme Court of the United States spoke authoritatively on the subject in Missouri, Kansas and Texas Railway Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, an action under the Federal Employers’ Liability Act of 1908 which required the action to be brought in the name of the personal representative of the deceased. Aside from being an action under the Federal Employers’ Liability Act, which we do not regard as having any controlling significance so far as the instant question is concerned, Wulf, supra, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, presented the same problem on an almost identical state of facts. The action was commenced by the mother in her individual capacity on January 23, 1909, to recover for the death of her son, which occurred on November 27, 1908. On January 6, 1911, plaintiff filed her amended petition, alleging that on January 4, 1911, she was appointed temporary administratrix of her son’s estate with full power and authority to prosecute the suit as party plaintiff. The amendment was allowed, she recovered, and on appeal it was contended that the amended petition filed after the statutory period of limitations of two years, and which for the first time set up a right to sue as administratrix, alleged an entirely new and distinct cause of action, and that such amendment could not relate back to commencement of the action. In ruling adversely to this contention, the court stated, 226 U.S. at p. 575, 33 S.Ct. at p. 137: “It seems to us, however, that, aside from the capacity in which the plaintiff assumed to bring her action, there is no substantial difference between the original and amended petitions. In the former, as in the latter, it was sufficiently averred that the deceased came to his death through injuries suffered while he was employed by the defendant railroad company in interstate commerce; that his death resulted from the negligence of the company and by reasons of defects in one of its locomotive engines due to its negligence; and that since the deceased died unmarried and childless, the plaintiff, as his sole surviving parent, was the sole beneficiary of the action.” Continuing on p. 576, 33 S.Ct. p. 137, the court observed further: “Nor do we think it [amendment] was equivalent to the commencement of a new action, so as to render it subject to the two years’ limitation prescribed by § 6 of the Employers’ Liability Act. The change was in form rather than in substance, (citing case). It introduced no new or different cause of action, nor did it set up any different state of facts as the ground of action, and therefore it related back to the beginning of the suit.” (citing cases, including McDonald v. State of Nebraska, 8 Cir., 101 F. 171). The teachings of the Supreme Court in Wulf, supra, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, have been applied by the federal courts in wrongful death actions. Reardon v. Balaklala Consol. Copper Co. (Circuit Ct.N.D., Calif.), 193 F. 189, aff’d sub nom. Balaklala Consol. Copper Co. v. Reardon, 9 Cir., 220 F. 584; Quaker City Cab Co. v. Fixter, 3 Cir., 4 F.2d 327; Bochantin v. Inland Waterways Corp., (D.C.E.D.Mo.), 9 F.R.D. 592; and in two cases involving actions on war risk policies, Lopez v. United States, 4 Cir., 82 F.2d 982; United States v. Powell, 4 Cir., 93 F.2d 788. St. Paul Fire & Mar. Ins. Co. v. Continental Bldg. Op. Co., W.D.Mo., 137 F.Supp. 493, involved the effect of an amendment under Missouri law substituting an insurance com-any for the individual plaintiff after expiration of five years, which was the period of limitations. Judge Whittaker, later a Justice of the United States Supreme Court, stated the Missouri law in this manner, at p. 494: “It is clear from an unbroken line of decisions in Missouri that if a suit is brought by one who has no legal right to maintain it, yet, who has a beneficial interest in the subject matter of the action, the substitution of a proper plaintiff will relate back to the time of filing of the original action by the one without authority to prosecute it, and the intervening running of the statute of limitations will not be held to bar the action by the substituted plaintiff, but on the other hand, if the original action was brought by an improper plaintiff who had no legal or beneficial interests in the subject matter of the action and later—but after the statute of limitations has run—a proper party plaintiff is substituted, the substitution will be treated as a new action, and the action will be held to be barred by the Missouri statute of limitations.” (Citing numerous cases). (Emphasis supplied). The principle has been recognized by state courts in Cox v. San Joaquin Light & Power Corp., 33 Cal.App. 522, 166 P. 578; Davis v. Gant (Tex.Civ.App.), 247 S.W. 576; Davis v. Preston (Tex.Civ.App.), 264 S.W. 331, 118 Tex. 303, aff’d 16 S.W.2d 117; Whitson v. Tennessee Cent. Ry. Co., 163 Tenn. 35, 40 S.W.2d 396, which overruled its prior holding in Flatley v. Memphis & C. Railroad, 56 Tenn. 230; Douglas v. Daniels Bros. Coal Co., 135 Ohio State 641, 22 N.E.2d 195, 123 A.L.R. 761, wherein the court made this pertinent observation at p. 198: “The amendment corrects the allegations of the petition with respect to plaintiff’s capacity to sue and relates to the right of action as contradistinguished from the cause of action. A right of action is remedial, while a cause of action is substantive, and an amendment of the former does not affect the substance of the latter. * * * The requirement of the wrongful death statute that the prosecution of the action be in the name of the personal representative is no part of the cause of action itself, but relates merely to the right of action or remedy.” McDonald v. State of Nebraska, 8 Cir. (1900), 101 F. 171, has received recognition by courts throughout the land and, as we have seen, it was cited by the Supreme Court of the United States in Wulf, supra, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355. McDonald was not a wrongful death action but in principal we regard it as persuasive. There the original plaintiff was the state treasurer of Nebraska. The defendant demurred, contending that the plaintiff lacked capacity to maintain this suit. The lower court sustained the demurrer but permitted the State of Nebraska to be substituted as plaintiff even though the statute of limitations had intervened. On appeal it was contended that the substitution was a change of the cause of action; was equivalent to bringing of a new action, and that as the statute of limitations had run against plaintiff’s claim before the amendment was made, the cause of action was barred. This court first considered the question in light of the Nebraska Code, §§ 144 and 145, now §§ 25-852 and 25-853, R.S. Nebraska, 1956 Reissue, and then from the standpoint of the Federal Judiciary Act of 1789 (which was then in effect). As to the former, it was concluded, 101 F. at p. 174: “Beyond all question these provisions authorized the court to allow the amendment that was made in this case.” As to the latter, we said, at p. 176: “But, independent of the Nebraska Code and the decisions of the supreme court of that state, we would have no difficulty in upholding the judgment of the lower court in this case both upon principle and authority. The right and duty of the federal courts to allow amendments does not rest on state statutes only. It is conferred on them by the judiciary act of 1789.” To our knowledge the Supreme Court of Nebraska has not determined the propriety of substituting the party having legal capacity to maintain a wrongful death action as plaintiff for one lacking such capacity, insofar as the statute of limitations of that State is concerned. However, in a number of cases, presenting varying situations, the Court has considered amendments to the original petition where the claim was made that the amendment introduced a new cause of action, and having been made after the statute of limitations had run, the action was barred. See Norfolk Beet-Sugar Co. v. Hight, 59 Neb. 100, 80 N.W. 276, where amendment amplified facts forming basis for cause of action; Chicago, R. I. & P. R. Co. v. Young, 67 Neb. 568, 93 N.W. 922, where amended petition alleged pecuniary loss; State Bank of Gothenburg v. Carroll, 81 Neb. 484, 116 N.W. 276, where amendment substituted State Bank of Gothenburg as plaintiff for the receiver of the bank and where the plea of the statute of limitations was on the theory that the substitution was the commencement of a new action; Tecumseh Nat. Bank of Tecumseh v. McGee, 61 Neb. 709, 85 N.W. 949, where heirs were substituted as plaintiff for the administrator of the estate; Kennedy v. Potts, 128 Neb. 213, 258 N.W. 471, where amended petition elaborated the cause of action; Muenchau v. Swarts, 170 Neb. 209, 102 N.W.2d 129, a mechanic’s lien action where amended petition alleged an agreement with the contractor whereas in original petition he alleged contract with the owner of the premises. As reference to the foregoing opinions will disclose, the issue turned on the question of whether the amended petition presented a new cause of action and in each, the amendment was per- mitted. The view of the Supreme Court of Nebraska is pertinently set out in State Bank of Gothenburg v. Carroll, supra, 116 N.W. 276, at p. 277: “The plea of the statute of tions was based upon the theory and assumption that the filing by the substituted plaintiff of an amended and substituted petition was the commencement of a new action, and that, more than five years having elapsed prior to the filing of such petition, the action was barred. It is conceded that the original action was begun previous to the running of the statute. We think the rule is generally well settled that the substitution of one party plaintiff for another in a pending action is a continuation of the original rather than the commencement of a new action. It is the same cause of action. Only another party has succeeded to the rights of one of the litigants, and in our practice such party may be substituted as the real party in interest in lieu of the one who commenced the action. Since the statute of limitations had not run at the commencement of the original action, it follows that it can be no defense in this action.” We fully recognize the distinguishable factual situations apparent in the cited Nebraska cases but to us they nevertheless strongly indicate that Nebraska has adopted a position of liberality in permitting amendments to the original petition. At least one Judge of the State of Nebraska has expressed his opinion on the precise question before us. W. G. Whitford, County Judge of Madison County, Nebraska, in his work, “Nebraska Probate and Administration,” published in 1954, Vol. I, pp. 473, 474, states: “After death of the decedent the action may be brought only by the personal representative. Action cannot be brought by all beneficiaries jointly or by the sole beneficiary in case there is only one. But, if action is brought by someone not then the personal representative, who subsequently becomes the personal representative, and an amended petition is filed showing this fact and that the action is brought in his representative capacity, the action may proceed and, so far as the statute of limitations is concerned, the amended petition will be treated as though filed at the time of commencing the action.” Judge Whitford’s authority for this statement is Missouri, Kansas and Texas Railway Co. v. Wulf, supra, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355. Reverting to the amended complaint—it does not allege any new or different facts as the ground of action. Both the original and amended complaints averred that the deceased was fatally injured on July 26, 1958, as the result of the negligence of defendant Consumers Public Power District. Moreover, and of vital significance, the amended complaint alleged that Shirley M. Russell, the widow, (the plaintiff in the original complaint) is the sole heir and next of kin of James G. Russell. Thus, she is the beneficiary of the subject matter of the action. While we are reluctant to interfere with and overturn the judgment of a district court in a diversity action involving a question of local law, Dierks Lumber & Coal Co. v. Barnett, 8 Cir., 221 F.2d 695, 697; Mothner v. Ozark Real Estate Company, 8 Cir., 300 F.2d 617, we are persuaded on the facts presented and the teachings of the Supreme Court of the United States, the courts of many jurisdictions and the other authorities above referred to, that the order of dismissal was induced by an erroneous concept of the Nebraska law. In summary, we hold that under the circumstances, the amendment did not introduce a new and different cause of action, but went to the right to pursue the same cause of action alleged in the original complaint; that the amendment was therefore procedural, bringing into play Rule 15(c) of the Federal Rules of Civil Procedure, Title 28 U.S.C.A., which provides that when the claim asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth in the original pleading, the amendment relates back to the original pleading, and, finally, the court improperly dismissed appellant’s cause of action on the ground that it was barred by the statute of limitations. In its brief appellee contends that federal jurisdiction does not exist because of lack of diversity of citizenship. Its theory is that under Nebraska law a non-resident of that state is ineligible for appointment as personal representative of a deceased’s estate; that inasmuch as it is alleged in the amended complaint that Shirley M. Russell was appointed administratrix by the Hamilton, Nebraska County Court that it is presumed she is a resident of Nebraska and since appellee is a political subdivision of that state there is no diversity of citizenship. Section 30-315, R.S.Nebraska, 1956 Reissue, provides in effect that the administration of an estate of a deceased person, dying intestate, shall be granted to someone who is a resident of the state. Appellant meets this suggestion by asserting that this provision does not apply to a special administratrix. For reasons presently stated we refrain from answering this question but we note in passing that federal jurisdiction on the grounds of diversity of citizenship in an action brought by the legal representative of a deceased person is to be determined by the citizenship of the legal representative and not that of his decedent. See Mecom v. Fitzsimmons Drilling Co., Inc., 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233; McCoy v. Blakely, 8 Cir., 217 F.2d 227, 230-231; Janzen, Administrator, etc. v. Goos, 8 Cir., 302 F.2d 421. It is of course fundamental that a federal appellate court must, on appeal, satisfy itself not only of its own jurisdiction, but also the jurisdiction of the United States District Court. Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338; Illinois Terminal R. Co. v. Friedman, 8 Cir., 208 F.2d 675, 676; Kern v. Standard Oil Co., 8 Cir., 228 F.2d 699, 701, cause ordered dismissed for lack of jurisdiction, 230 F.2d 954; Texaco-Cities Service Pipe Line Co. v. Aetna Casualty & Surety Co., 8 Cir., 283 F.2d 144, 145. The present state of the record is such that it is impossible for us to determine whether there is in fact diversity jurisdiction existing. In this connection we again take occasion to mention that it is diversity of citizenship which controls. 28 U.S.C.A. § 1332; Texaco-Cities Service Pipe Line Co. v. Aetna Casualty & Surety Co., supra, 283 F.2d at p. 145; Burkhardt v. Bates, 8 Cir., 296 F.2d 315, 316. The original complaint alleged that plaintiff is a resident of South Dakota, and that defendant is doing business in the State of Nebraska with headquarters at Columbus, Nebraska. Manifestly, the allegation did not comport to the requirements of the statute. The amended complaint does not allege the state of which the legal representative is a citizen. Neither does the amended complaint meet the requirments of Title 28 U.S.C.A. § 1332 (c), added July 25, 1958, which provides that “a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” We have concluded that plaintiff should have an opportunity to further amend the complaint, if the facts will permit, by alleging proper jurisdictional requirements. The order dismissing the cause of action is reversed and the cause is remanded. . Defendant New Amsterdam Casualty Company was alleged to be the insurer of Russell’s employer under the Nebraska Workmen’s Compensation Law, and that it was joined as a defendant in order that its subrogation rights arising by reason of payments made by it, could be determined. . The complaint alleged that the deceased and plaintiff were “at all times mentioned hereinafter residents of Yankton, South Dakota; that defendant Consumers Public Power District is doing business in the State of Nebraska with headquarters at Columbus, Nebraska; * * ." More will be said of diversity of jurisdiction during the course of the opinion. . There is contrary authority. In § 291 of Am.Jur. it is stated: “In some jurisdictions, however, it has been held that ordinarily an amendment making a change in the party plaintiff from an individual to a representative capacity, or vice versa, is a change in the cause of action which will let in the defense of the limitation of time.” See also: Baltimore & Ohio S. W. R. Co. v. Gillard, 54 Ind.App. 539, 71 N.E. 58; Bolitho v. Buch Exp., Inc., (D.C.E.D.Pa.), 12 F.R.D. 189; Maxson v. McElhinney, 370 Pa. 622, 88 A.2d 747. . The present Federal Employers’ Liability Act, 45 U.S.C.A. § 51, provides for bringing of action for death of employee “[by] personal representative, for the benefit of the surviving widow or husband and children of such employee; * . In these cases the court ruled that the substitution of a party with legal capacity to sue did not change the cause of action so as to let in the defense of limitations. . § 25-852 provides in substance that the court may either before or after judgment, in furtherance of justice, amend any pleading by adding or striking out the name of any party, or by correcting any mistake in the name of a party, or a mistake in any other respect when the amendment does not change substantially the claim. § 25-853 provides that the court in every stage of an action must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_appel1_7_3	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained". MERCADO v. BRANNAN, Secretary of Agriculture. No. 4386. United States Court of Appeals First Circuit. March 25, 1949. Abrahan Diaz Gonzalez, of Santurce, Puerto Rico (Pedro M. Porrata, Charles Cuprill, and Benjamin Ortiz, all of Ponce, Puerto Rico, on the brief), for appellant. Lewis A. Sigler, Ass’t Associate Solicitor, U. S. Department of Agriculture, of Washington, D. C. (Neil Brooks, Associate Sol., U. S. Department of Agriculture, and John M. Durbin, Atty., U. S. Department of Agriculture, both of Washington, D. C., on the brief), for appellee. Before MAGRUDER, Chief Judge, and CLARK and WOODBURY, Circuit Judges. Judge CLARK of the Second Circuit, serving by designation. CLARK, Circuit Judge. This is the second appearance before us of this action for treble damages, under § 205(e) of the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 925(e), for the sale of cane blackstrap molasses at 'an overceiling price. The facts are stated in our earlier opinion, Anderson v. Mercado, 1 Cir., 163 F.2d 303, certiorari denied Mercado v. Anderson, 332 U.S. 837, 68 S.Ct. 220, remanding the case to the district court for reconsideration of its award of damages. In our view of the case there had been a substantially greater delivery of the product in violation of the law than the district court had originally found, Porter v. Mercado, D.C.P.R., 67 F.Supp. 107, and reconsideration of its refusal to assess penalties beyond the overcharge itself was necessary because it had failed to take note of certain further factors we held to be relevant. Upon the new trial the court necessarily accepted our conclusion as to the overcharge itself and therefore increased it to the sum of $42,501.36. Then after further evidence the court found that defendant-appellant had not established its partial defense under § 205(e), namely, that its overcharge was not willful or the result of failure to take practicable precautions against the occurrence of the violation. Accordingly the court, in the exercise of its statutory discretion to assess a penalty not less than the amount of the overcharge or more than three times that amount, Bowles v. Krodel, 7 Cir., 149 F.2d 398, fixed defendant’s liability at one and one-half times that amount, or at an additional sum beyond the overcharge itself of $21,250.68. From the resulting judgment defendant has taken this appeal. Willfulness in violating a regulatory statute implies not so much malevolent design as action-with knowledge that one’s acts are proscribed or with careless disregard for their lawfulness or unlawfulness. Zimberg v. United States, 1 Cir., 142 F.2d 132, 137, 138, certiorari denied 323 U.S. 712, 65 S.Ct. 38, 89 L.Ed. 573. As is of course well known, the Office of Price Administration and its successors have not only conducted vast operations, but have also provided extensive informational services for the benefit of those subject to regulation. In view of this, the contention that an honest and reasonable belief in the validity of all acts done pursuant to an earlier contract is sufficient to support a defense of lack of willfulness, without proof of attempted verification of such a belief from the appropriate governmental officers, presents a problem. Compare, for example, Bowles v. Krasno Bros. Glove & Mitten Co., D.C.E.D.Wis., 59 F.Supp. 581, 583, and Bowles v. Arcade Inv. Co., D.C.Minn., 64 F.Supp. 577, with Bowles v. Pechersky, D.C.W.D.Pa., 64 F.Supp. 641. We need not decide this issue, however, since defendant was clearly Unable to establish the defense that it had taken practicable precautions to avoid the violation. Bowles v. Pechersky, supra. It learned of Amendment 32 to- Revised Maximum Price Regulation 183, providing a maximum price of 13.6{5 a gallon “delivered at the mill,” before it had made any of the deliveries in issue. Nevertheless it made no attempt to obtain an official interpretation of the amendment, but relied entirely on its own view of the law. This was incorrect, as the district court ruled at the first trial, 67 F.Supp. 107; and we agreed, 163 F.2d 30-3, 308. In fact, defendant took no precautions of any kind, beyond its blind reliance upon a pre-existing contract, to make sure that it had complied with these new, definite, and complete regulations affecting its business. It was not reasonable for it thus to assume that entering into a contract for the future would make it thereafter immune from changes in established maximum prices. This is particularly so, since the Act itself provides otherwise. § 4(a), 50 U.S.C.A.Appendix, § 904(a), making it unlawful to sell or deliver any commodity in violation of a price regulation, “regardless of any contract, agreement, lease, or other obligation heretofore or hereafter entered into.” The court below made explicit findings of fact, followed by equally explicit conclusions of law, against defendant on each of these defenses. Other than that it placed first its holding as to the defense we have considered, there is no indication that it rated one defense as more important than the other or that it exercised its discretion in fixing the penalty 'because of the double-barreled nature of its holding. On the contrary, it's restraint in settling the assessment, fixing this as it did at only one-quarter of the amount authorized under the statute,. shows that it gave all the consideration permissible to defendant’s claim of honesty of purpose in disregarding the new regulations. A discretion so moderately exercised cannot be found to have been abused. Defendant also argues that any recovery here, either for the overcharge or for additional penalties, is prevented by § 205(d) of the Act, 50 U.S.C.A.Appendix, § 925(d), barring awards for acts done in ■good faith pursuant to any provision of the Act or any regulation or “agreement there-, under,” even though thereafter changed or found invalid. But we have already answered that contention in our former opinion, 163 F.2d 303,'310, where we pointed out that the deliveries made by defendant were not in compliance with a regulation, but in violation of one. True, we did suggest, 163 F.2d 303, 309, that the original contract may itself have been illegal, as in excess of charges made by defendant during the base period; and this point has now been removed from the case by the finding of the district court that defendant ■“did not grant rebates or quantity discounts” during the base- period. The effect of this finding is to establish the legality of the contract when originally made, since it means that the contract price of 17f a gallon was then the correct one for purchasers for consumption, even though, they purchased in such large amounts as were here involved. But this does not reach our conclusion that a delivery illegal under the regulations in force at the time it is made is not thereby validated under § . 205 (d) merely by reason of the fact that it is in fulfillment of a contract of sale valid- when made. Defendant vigorously asserts, however, that the statutory phrase “agreement thereunder” refers to just such a contract as the one before us. But we agree with the plaintiff that, as the context clearly requires, the phrase means an agreement under the terms of the Act, i.e., not a private contract, but' an agreement in the same class with a regulation or price order of the Administrator. Thus it refers to a pricing agreement which the Administrator was authorized to make with industry or other groups under § 5 of the Act, 50 U.S.C.A. Appendix, § 905. There was obviously no intent upon the part of the legislative body to nullify the provisions of § 4(a), supra, making unlawful sales or deliveries in violation of a price regulation, though made to fulfill a prior contract. Foster & Co. v. Bowles, Em.App., 144 F.2d 870, 874; Bowles v. Franceschini, 1 Cir., 145 F.2d 510, 513. The. judgment of the District Court is affirmed. Here defendant’s representatives had visited the local Office of Price Administration to inquire about the ceiling price of molasses before the contract of sale was entered into, but they did not exhibit the contract. The crucial question, however, as our earlier opinion shows, was as to the deliveries made under the contract with relation to the later enacted regulations. Defendant’s representatives made no subsequent visits or inquiries until an OPA investigator approached them after the deliveries had been completed. Defendant’s general awareness of the price regulation program was shown by its attempt, though unsuccessful, to contract out of any possible liability under the Act and regulations in not merely this contract, but also other earlier contracts. “No person shall be held liable for damages or penalties in any Federal, State, or Territorial court, on any grounds for or in respect of anything done or omitted to be done in good faith pursuant to any provision of this Act or any ■ regulation, order, price schedule, requirement, or agreement thereunder, or under any price schedule of the Administrator of the Office of Price Administration or of the Administrator of the Office of Price Administration and Civilian Supply, notwithstanding that subsequently such provision, regulation, order, price schedule, requirement, or ■ agreement may be modified,-rescinded, or determined to be invalid.” 50 U.S.O.A. Appendix, § 925(d). Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion? A. not ascertained B. caucasian - specific indication in opinion C. black - specific indication in opinion D. native american - specific indication in opinion E. native american - assumed from name F. asian - specific indication in opinion G. asian - assumed from name H. hispanic - specific indication in opinion I. hispanic - assumed from name J. other Answer:
songer_r_stid	31	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your task is to identify the state of the first listed state or local government agency that is a respondent. Niels R. J. ELLIS, Appellant, v. STATE OF NEW JERSEY. No. 16640. United States Court of Appeals Third Circuit. Submitted on Briefs Jan. 18, 1968. Decided Feb. 15, 1968. Niels R. J. Ellis, pro se. Edward J. Dolan, Middlesex County Prosecutor, State of New Jersey, New Brunswick, N. J. (Christopher R. Wood, Legal Assistant, New Brunswick, N. J., on the brief), for appellee. Before HASTIE, Chief Judge, GAN-EY, Circuit Judge, and WEINER, District Judge. OPINION OF THE COURT PER CURIAM. This appellant is a state prisoner serving a term of 15 to 25 years in prison pursuant to a conviction of murder on his plea of nolo contendere. He now seeks relief by federal habeas corpus. The district court analyzed each of the prisoner’s contentions and denied habeas corpus in a carefully reasoned, very detailed and sound opinion with which we agree. The judgment will be affirmed. Question: What is the state of the first listed state or local government agency that is a respondent? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_genresp1	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. Homer L. BLACKWELL, Appellant, v. UNITED STATES of America, Appellee. No. 15552. United States Court of Appeals Eighth Circuit. May 7, 1957. James J. Waters, Kansas City, Mo., for appellant. William O. Russell, Asst. U. S. Atty., Kansas City, Mo. (Edward L. Scheufler, U. S. Atty., Kansas City, Mo., was with him on the brief), for appellee. Before WOODROUGH, VOGEL, and VAN OOSTERHOUT, Circuit Judges. VAN OOSTERHOUT, Circuit Judge. This is an appeal from judgment imposing sentences upon defendant after his conviction by a jury upon all counts of a 4-count indictment. Each count of the indictment charged defendant with filing a fraudulent income tax return with willful intent to evade income tax due, in violation of section 145(b), 26 U.S.C. Count I charged that defendant filed a false income tax return for 1948, wherein his stated income was $2,391.54 and the tax due thereon was $98.20, whereas, as defendant well knew, his net income was $18,270.83, upon which he owed an income tax of $3,550.48. Count II charged that defendant filed a false income tax return for 1949, wherein he stated that he suffered a loss of $10,603.41 and that no tax was due thereon, whereas, as defendant well knew, his net income was $3,651.91, upon which he owed an income tax of $407.02. Count III charged that defendant filed a false income tax return for 1950, wherein his stated income was $313.60 and no tax was due thereon, whereas, as defendant well knew, his net income was $10,993.-21, upon which he owed an income tax of $1,921.08. Count IV charged that defendant filed a false income tax return for 1951, wherein his stated income was $6,819.31 and the tax due thereon was $1,178.72, whereas, as defendant well knew, his net income was $16,657.65, upon which he owed an income tax of $3,829.30. During the years involved in the indictment defendant was the sole proprietor of a wholesale furniture business at Kansas City, Missouri, and during such years this business was his only source of income except for a modest amount of interest and dividends. Defendant’s records consisted of an inventory file; a record of charge sales showing purchaser, amount of payment, date paid, and discount allowed; check stubs; cancelled checks; bank statements; and a “little black book.” Any merchandise not sold on credit was treated as a cash sale whether paid for in currency or by check. The only record of cash sales preserved was a monthly total entered in the little black book. Originally there was an order, invoice, or notation with reference to cash sales. After the monthly total of cash sales was taken and entered in the little black book, such records were destroyed. There was no safe in the office so any currency received was handled and taken care of by defendant. The internal revenue agents investigating defendant’s returns determined that the defendant’s records did not properly reflect his income, and proceeded to determine defendant’s net income for the indictment years by the net worth method. The revenue agents also offered proof to the effect that the bank deposits during the period under investigation exceeded defendant’s reported receipts. Defendant contends his books properly reflect his income and that he has fully reported his income and paid the tax due thereon. His explanation of the net worth increases claimed by the Government, and the excess of deposits over receipts, is that he had since 1936 a hoard of cash of $80,000 to $100,000, and that this was put into the business as needed. Defendant was bom in 1900. In explanation of his cash hoard he testified! that he started earning money when he was in high school, at which time he was engaged in the “jitney” business, and that he engaged thereafter in various enterprises, including a trucking-business, an oil business, a theatre operation, an advertising business, a printing business, and a poster business. He concedes that a number of said ventures were not too successful, and claims his greatest success in the poster business in which he was engaged from about 1926 to 1940. He contends that by 1936 he had accumulated between $80,000 and $100,000 in currency which he kept in a bank deposit box, and that the hoard was still available on December 31, 1947. In determining defendant’s opening-met worth, the Government did not credit him with the cash hoard claimed, but gave him credit only for such cash and bank deposits it was able to verify as being on hand on December 31, 1947. Defendant asserts that the court com-mitted prejudicial error entitling him to •reversal in the following respects: 1. ' Overruling defendant’s motion for bill of particulars. 2. Overruling defendant’s motion for judgment of acquittal at the close of all the evidence and again overruling such motion when it was .renewed after verdict. 3. Errors in admission of Government evidence. The errors asserted will be considered in^ the order stated. In his pre-trial motion for a bill of ■particulars, which the court overruled, defendant asked that the Government be required to say whether it claimed understatement of “gross, income” and, if ■so; the items thereof, and when, where -and by whom, and in what manner, paid to defendant; that the Government be •required to say whether it claims overstatement or duplication of deductions and expenses and, if so, to state the amount, items, classes or types, and the dates thereof; and that the Government be required to say whether its determination of defendant’s “net income” for the years in question, is based-upon “the .net worth and expenditures method” and, if so, to state the amount of assets owned, and of the liabilities owing by, and the net worth of, defendant on January 1 of. each of the four years in question, and that the Government state “in what manner it is claimed” the questioned income tax returns “were false and fraudulent.” The Government, in its suggestions in opposition to this motion, filed about seven months before trial, stated that the additional income in each of the years involved in the indictment had been determined by the net worth method. Thus, defendant had timely notice that the Government was employing the net worth method of computation. The indictment advised the defendant of the amount of income the Government was claiming for each of the years involved. It is well settled that a motion for bill of particulars is addressed to the sound discretion of the court, and that the court’s ruling upon such a motion should not be disturbed in the absence of an abuse of discretion. Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 71 L.Ed. 545; McKenna v. United States, 8 Cir., 232 F.2d 431, 435. A number of courts have held that in a net worth prosecution the most that defendant is entitled to prior to trial is the disclosure of the theory or method used by the Government to compute net income. Remmer v. United States, 9 Cir., 205 F.2d 277, 281; United States v. Caserta, 3 Cir., 199 F.2d 905, 910; United States v. Chapman, 7 Cir., 168 F.2d 997, 999. Defendant relies upon Singer v. United States, 3 Cir., 58 F.2d 74. The Singer case is not a net worth case. Taxpayer’s business there was very complicated and the facts presented are very unusual. The Singer case is distinguished in the Caserta case, supra, decided by the same circuit, and the Remmer case, supra. Defendant also relies upon United States v. O'Connor, 2 Cir., 237 F.2d 466, 475. There, the court indicates that the rule requiring a bill of particulars should be liberally construed in net worth cases, and in footnote 10 sets out a- number of cases in which a bill of particulars was required. The court, however, found it unnecessary to decide whether the trial court had abused its discretion in denying the bill of particulars. Upon the record in the present case we do not deem it necessary to determine whether the rule for a bill of particulars should be liberally or strictly construed. Even if the rule is to be liberally construed, we are satisfied that the court did not abuse its discretion in overruling the motion for bill of particulars in the present case. We are not persuaded that the defendant was seriously handicapped in his defense by such ruling. The principal issue was whether the defendant was entitled to have his opening net worth increased by the amount of cash which he claimed he had accumulated and hoarded prior to the years here involved. Defendant was fully informed that the Government was proceeding on the net worth theory. He had many interviews with the investigating agents and had every reason to believe that the Government was not accepting his hoard-of-cash claim. At the trial defendant offered a witness from California who claimed to have seen the cash hoard in 1935. Defendant’s business was a modest one, wholly owned and controlled by him. His information as to the nature of his assets during the indictment years was at least equal to that of the Government. No prejudicial error was committed in overruling defendant’s motion for a bill of particulars. Defendant made a motion for judgment of acquittal at the close of all the evidence and renewed such motion after verdict. Defendant contends the court erred in overruling these motions. Defendant first argues that the evidence establishes that his records are adequate and that no error in his records has been pointed out, and contends that his income as disclosed by his records must be accepted. Many of the problems involved in this case are settled by Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150. The situation with reference to the adequacy of taxpayers’ books in the Holland case is quite similar to that confronting us here. In Holland the Court states (348 U.S. at pages 131-132, 75 S.Ct. at pages 133-134): “* * * Petitioners’ accounting system was appropriate for their business purposes; and, admittedly, the Government did not detect any specific false entries therein. Nevertheless, if we believe the Government’s evidence, as the jury did, we must conclude that the defendants’ books were more consistent than truthful, and that many items of income had disappeared before they had even reached the recording stage. * * * To protect the revenue from those who do not ‘render true accounts’, the Government must be free to use all legal evidence available to it in determining whether the story told by the taxpayer’s books accurately reflects his financial history.” In our present case, as previously stated, the defendant preserved only monthly totals of his cash sales. The memoranda upon which the monthly totals were based were not available for checking. The investigation also disclosed that the total deposits exceeded the total receipts. It is true, as defendant contends, that if his books were accurate and complete they would reflect his entire income. There is substantial evidence of an increase in defendant’s net worth during each of the years involved in an amount considerably in excess of his reported net income. Defendant’s explanation of this increase is the hoarded cash which he placed in the business. If the Government has proven that defendant did not have this hoarded cash, then the only source for the increased net worth above the reported income would be defendant’s furniture business. The court, several times in its instructions, advised the jury in effect that, if defendant’s records reflected substantially all transactions of importance on the question of income, such records are the best evidence, and in that event the Government could not establish income by the net worth method. The evidence presented a fact question for the jury, on the adequacy and truthfulness of defendant’s records. ' The Holland case, supra, also makes it clear that the opening net worth must be established with reasonable certainty. Defendant vigorously urges that the Government’s evidence has failed to meet this requirement. Particular attack is made upon failure to include defendant’s claimed cash hoard. Much of the evidence bearing upon this issue has been set- out heretofore. Most of the items upon the opening net worth statement are taken from the defendant’s records. The real controversy is over the hoarded currency claim of the defendant. Defendant is largely dependent upon his own testimony to support the cash hoard. One witness testified that the defendant owed him about $300 for a refrigerator, and in 1935 defendant took him to the bank and paid him out of defendant’s deposit box. The witness stated that he saw a lot of money in the box, but did not know what, if anything, the box contained besides money, and did not know the denominations of the bills. The witness stated that he would have nothing to substantiate any guess that he might make as to the amount of currency in the box. This evidence is remote and very vague as to the amount of hoarded currency. The bank records indicate that the defendant had made many trips to his deposit box. Evidence was also offered to the effect that defendant was well regarded in the community and that he enjoyed a good credit standing. The witnesses so testifying did not attempt to estimate defendant’s net worth. The opening net worth of $73,000 would be sufficient to entitle the defendant to a satisfactory credit rating. The Government’s proof to negate defendant’s currency hoard claim is largely circumstantial. Defendant’s testimony is that he filed his first income tax return in about 1933. Defendant’s accountant, on the basis of workpapers in his possession, testified as to defendant’s income for the years 1934 to 1947. During the years 1934 to 1936 defendant suffered a loss. Defendant’s highest net income in the 1937-1940 period was $1,-706. His highest net income in the 1940-1947 period was $7,500. Defendant purchased a home in 1935 and shortly thereafter mortgaged it for $4,000. He also made a number of bank loans during the period he claimed to have the currency available. Defendant made various financial statements to the First National Bank of Kansas City, Missouri, for credit purposes. Exhibit 76, dated May 15, 1945, shows cash of $18,000 and a net worth of $38,900. Exhibit 77, dated July 3, 1946, shows cash of $15,-937.43, bank deposits of $16,754.58, and a net worth of $76,009.21. Exhibit 78, dated November 1, 1948, shows cash of $14,700, bank deposits of $6,830.39, and a net worth of $97,221.25. Exhibit 79, dated August 11, 1950, shows cash of $22,000, bank deposits of $5,764.43, and a net worth of $126,392.58. Exhibit 80, dated December 31, 1950, shows bank deposits of $1,317.26 and a net worth of $118,061.42. The Government’s net worth computations as of December 31 of each year are: Year Net Worth 1947 .................... $ 73,078.57 1948 .................... 90,327.00 1949 .................... 91,855.72 1950 .................... 97,020.82 1951 .................... 113,124.44 During the period from July 3, 1946, to December 31, 1950, the defendant’s financial statements given his bank show a net worth increase from $76,000 to $118,-000, or approximately '$42,000. From December 31,1947, to December 31,1950, the increase in net worth, as computed by the Government, amounted to approximately $24,000. The periods covered are not identical, but the trend of increasing net worth is at least as great in defendant’s financial statements as in the Government’s net worth computations. The opening inventory in the Government’s net worth statement credits defendant with cash in bank under business assets in the sum of $9,631.59 and with personal and family deposits aggregating $4,195.48. The jury was properly instructed that it is necessary for the Government to establish opening net worth with reasonable certainty, There is adequate evidence to support the Government’s opening net worth statement. Defendant also contends that the Government has failed to investigate leads. There is an obligation on the part of the Government in net worth cases to negate reasonable explanations of the taxpayer inconsistent with guilt, In the Holland case with reference to leads, the Court, among other things, states (348 U.S. at page 138, 75 S.Ct. at page 137): “ * * * where relevant leads are not forthcoming, the Government is not required to negate every possible source of nontaxable income, a matter peculiarly within the knowledge of the defendant.” See also Kampmeyer v. United States, 8 Cir., 227 F.2d 313, 316. The leads furnished by the defendant were remote, vague, and indefinite. For the most part there was no reasonable way to check up on defendant’s earnings and savings from his multiple ventures, some dating back more than 35 years, Revenue Agent Bennett testified he made such inquiries as he could at the Better Business Bureau, banks, and of various people in the theatre business. Investí-gation was also made as to the income tax defendant had paid and financial statements given banks. The court submitted to the jury the issue of whether the Government sufficiently investigated any leads furmshed by the defendant. The record m this case supports a finding that the ■Government did all it reasonably could under the circumstances of this case to investigate relevant leads. Defendant next urges that there is no proof of willfulness. “Willfulness ‘involves a specific intent which must be proven by independent evidence and which cannot be inferred from the mere understatement of income.’ ” Holland v. United States, supra, 348 U.S. at page 139, 75 S.Ct. at page 137, 99 L.Ed. 150. The test of willfulness is quite fully discussed in Spies v. United States, 317 U.S. 492, 499, 63 S.Ct. 364, 87 L.Ed. 418. Willfulness involves a state of mind. Direct proof of willfulness s se^om available. A consistent Pattern of underreporting large amounts ^ncome °_r overclaiming deductions and no^ recording such items on the taxPayer s records is evidence from which willfulness may be inferred. Holland v. United States, supra; Zacher v. United States, 8 Cir., 227 F.2d 219, 224; Canton v. United States, 8 Cir., 226 F.2d 313, 321. The record in this case contains evidence from which a jury could infer a consistent underreporting of substantial amounts of ^ income. Additionally, defendant admitted failure to report $9,000 sa^es i1 1949 and $4,000 in 1950. Defendant explained that this was done . to ofiset some deductions which he had overlooked claiming in prior years. The weight to be given defendant’s explanation of why he did not report this in_ come was for the jury, ™0,ut fu,rther Prolonging the discussion of the voluminous evidence m case’ we tha\w? care‘ Mly examined the record, including the ongmal transcript of the evidence, and are cof “ced that f Jury queffa°n was Presented as to all the essential elements of the crime charged‘ Defendant contends that the court committed prejudicial error in receiving in evidence certain Government exhibits. Attack ig made upon the admission of Exhibit x_ ExWbit x is a chart proximately eight feet bigh and six feet wide> with red and bIack letterin en. títled «Summary of Net Worth In-creageg; Homer L> Blackwell» This ex. , hibit purports to be a chart summarizing the Government’s evidence bearing upon the various categories of assets and liabilities of the defendant involved in the computation of defendant’s net worth on December 31 of the years 1947 to 1951, inclusive. It is subdivided into 24 items. The chart was placed in the courtroom near the wall, across the room from the jury box. Each item on the chart was covered with a strip of brown paper. Immediately after the Government had offered proof to support an item on the chart, the strip covering such item was removed. After the Government had offered evidence as to all of the items on the chart, it introduced in evidence Exhibit 58 which contained the same information as Exhibit X. Defendant objected to the accuracy and completeness of the chart. Net worth summaries, properly identified and supported by substantial evidence, are admissible in tax fraud prosecutions. Hanson v. United States, 8 Cir., 185 F.2d 61, 67; Canton v. United States, supra, 226 F.2d at page 317. The issue of whether the evidence presented established the net worth for the various years as claimed by the Government was properly submitted to the jury. Defendant further contends Exhibit X was prejudicial because of its size and constant display in the courtroom. De-, fendant relies upon Lloyd v. United States, 5 Cir., 226 F.2d 9, and Holland v. United States, supra. In the Holland case the Court, in speaking of the danger to be guarded against in net worth cases in order to insure an adequate appraisal of the evidence, states (348 U.S. at pages 127-128, 75 S.Ct. at page 131, 99 L.Ed. 150): “* * * There is great danger that the jury may assume that once the Government has established the figures in its net worth computations, the crime of tax evasion automatically follows. The possibility of this increases where the jury, without guarding instructions, is allowed to take into the jury room the various charts summarizing the computations; bare figures have a way of acquiring an existence of their own, independent of the evidence which gave rise to them.” The Lloyd case, after referring to the foregoing admonition in the Holland case, states the general rule to be that the admission of charts is discretionary with the trial court, and that its rulings are subject to review only under a clear showing of an abuse of discretion. The court concedes that the proper use of charts often makes the complex evidence upon which such charts are based more intelligible to the jury, but cautions that a trial court is charged with grave responsibility to insure that an accused is not unjustly convicted in a “trial by charts.” [226 F.2d 17.] The Lloyd case was reversed on other grounds, so the court found it unnecessary to determine whether there was an abuse of discretion in the admission of charts. The chart in our present case has stronger evidentiary support than the one used in the Lloyd case and does not have the offensive subtitles used on the Lloyd chart. The court in our present case during the trial cautioned the jury on numerous occasions upon the consideration to be given Exhibit X, stating, among other things: “ * * * an exhibit of this character is admissible but I caution the Jury that this is a Net Worth Statement constructed by Bureau of Internal Revenue personnel and that you are not to give any emphasis to the size of this exhibit any more than you would if you were examining it on a piece of paper of normal size. Undoubtedly the Government’s view in putting it on an easel and in this size is merely for the convenience of the Jury in seeing it.” “But I don’t want the Jury to get any wrong idea about what this is. This is just a reflection up to now of what the witnesses have testified to, if you so believe, and you are to pay attention to and be governed by the evidence and not by what is on this exhibit, and if you don’t think the testimony sustains this exhibit, then you pay attention to the evidence and not to this exhibit, you understand ?” The court did not permit the chart to be taken into the jury room. Under the circumstances disclosed by the record in this case, the court did not abuse its discretion in admitting Exhibit X. Defendant also complains of the admission of Exhibits 85-88, which are Revenue Agent Concannon’s computations of tax due based upon an assumed net income. Upon objection to said exhibits, the court stated: “I will admit these exhibits only if and providing it is clearly and definitely understood that the figures used are only assumptions; otherwise the objection will be sustained. But if it may be clearly understood that the figures used are assumptions and assuming those figures to be true, the tax would be so much, then that is proper.” Government counsel accepted such condition. The court carefully insisted throughout Concannon’s examination that his computation of tax liability be based upon an assumed net income. The net income assumed was the amount of increase in net worth for each of the years as disclosed by Exhibit X. The issue of whether the Government had proven net income in the amount claimed was left to the jury’s determination. Thus the Government was doing no more than asking the witness a hypothetical question to the effect, “assuming the net income of so many dollars for the year in question, how much would the tax be?” It is within the trial court’s discretion to permit such expert testimony. United States v. Johnson, 319 U.S. 503, 519, 63 S.Ct. 1233, 87 L.Ed. 1546; Zacher v. United States, supra, 227 F.2d at page 228. Finally, defendant claims error in the admission of Exhibit 90. This exhibit was a copy made by Agent Gable of a paper found in the files of defendant’s accountant. Gable discovered the instrument, which he copied, while examining, with defendant’s consent, defendant’s tax file in the accountant’s office. The exhibit purports to list at least some of the assets of the Independent Poster Company for the years 1936 to 1939, the assets totaling less than $2,000 in each year. No listing of inventory appears in the exhibit. No showing was made as to the origin or purpose of the instrument of which Exhibit 90 purports to be a copy or how such instrument got into accountant’s file or who made it. The instrument was not signed by defendant, and there is no evidence that he ever saw it. The offer of Exhibit 90 was objected to because of the indefiniteness of what was copied. The court by its remarks indicated that the question of proper identification of the exhibit had been raised. We do not believe the instrument of which Exhibit 90 purports to be a copy was sufficiently identified to authorize the admission of Exhibit 90. See Olender v. United States, 9 Cir., 210 F.2d 795, 805, 42 A.L.R.2d 736. The question now arises as to whether the erroneous admission of Exhibit 90 constituted prejudicial error. Errors which do not affect substantial rights shall be disregarded. Rule 52(a), Rules of Criminal Procedure, 18 U.S.C. The test for determining whether error is prejudicial is set out in Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557. The error is prejudicial unless the reviewing court can say with fair assurance that the judgment of the jury was not swayed by the error. In Davis v. United States, 8 Cir., 229 F.2d 181, we quote with approval from Williams v. United States, 8 Cir., 265 F. 625, as follows (229 F.2d at page 187): “Whether prejudice results from the erroneous admission of evidence at a trial is a question that should not be considered abstractly or by way of detachment. The question is one of practical effect, when the trial as a whole and all the circumstances of the proofs are regarded.” We now look to the facts and circumstances of this case in the light of the foregoing standards. The basic fact issue for the jury was whether defendant had the $100,000 currency hoard which he claimed he had accumulated by 1936, and whether such hoard was still on hand on December 31, 1947. Defendant had claimed that the poster business was a most profitable business. The defendant had claimed on direct examination that in 1936 he had an inventory that cost him over $100,000. Upon cross-examination he was unable to estimate the net worth of the poster business in 1936, and couldn’t say whether such net worth was $50,000 or $5,000. Defendant conceded that after talking pictures came in in the late 1920’s the poster business was practically ruined and that by 1936 the business was unprofitable. Defendant’s income tax returns reflect that at least from 1934 until the sale of the poster business in 1940 the poster business was not profitable. In exchange for the poster business in 1940 defendant received a 5-year employment contract from the purchaser, calling for a salary of $8,000 a year. To refute the cash hoard claim, the Government relied principally upon defendant’s income tax returns and the financial statements defendant had given to banks, and the fact that during the period defendant claimed the cash hoard he borrowed money in substantial amounts on numerous occasions and that he had mortgaged his home. The amount of the inventory of the poster business in the 1936 to 1940 period had little, if any, bearing upon the determination of defendant’s net worth on December 31,1947. There was ample evidence to support the Government’s net worth computation without considering Exhibit 90. Upon the record before us we can say with reasonable assurance that the admission in evidence of Exhibit 90 had no substantial influence upon the verdict arrived at by the jury, and hence we conclude that the admission of Exhibit 90 could not constitute reversible error. The court gave the jury elaborate instructions which were very fair to the defendant upon the net worth issue. An examination of the entire record convinces us that defendant had a fair trial and that the trial court has committed no prejudicial error. The judgment appealed from is affirmed. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_treat	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. UNITED STATES of America ex rel. James Morris FLETCHER, Appellant, v. Angelo C. CAVELL, Warden, Western State Penitentiary, Pittsburgh 33, Pennsylvania. No. 13286. United States Court of Appeals Third Circuit. Argued Oct. 20, 1960. Decided Feb. 23, 1961. Marjorie Hanson Matson, Pittsburgh,. Pa., for appellant. Glenn R. Toothman, Jr., Dist. Atty.„ Greene County, Waynesburg, Pa. (Frank. P. Lawley, Jr., Deputy Atty. Gen., on the-brief), for appellee. Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges. McLAUGHLIN, Circuit Judge. Appellant was convicted of murder in the Court of Oyer and Terminer of Greene County, Pennsylvania in December, 1954. He was sentenced to life imprisonment. The conviction was affirmed, by the Supreme Court of that state, Commonwealth v. Fletcher, 387 Pa. 602, 128 A.2d 897 and certiorari denied by the-Supreme Court of the United States, 354 U.S. 913, 77 S.Ct. 1300, 1 L.Ed.2d 1429,. After that he filed a petition for a writ, of habeas corpus in the district court on which a hearing was allowed. At that hearing, (October 3, 1959), it was undisputed that in the course of the-selection of a jury to try the state criminal indictment a prospective juror, Paul E. Stephenson, was called for examina-tion. He testified that he was “perfectly impartial” as between the Commonwealth •and the defendant Fletcher. He said he was free of prejudice or bias and that he could render a verdict solely from the trial evidence. He was accepted by both .sides. Following Greene County practice he was immediately sworn in and seated as Juror No. 1. He was forthwith designated foreman by the presiding judge. Another person on the jury panel, Mrs. Nellie Barnhart, examined on her voir dire, also stated she could be perfectly impartial and render a verdict solely from the evidence, without bias or prejudice. She said that she knew of nothing she had heard or read which would tend to prejudice her against the defendant. She was accepted and sworn as Juror No. 7. As the selection of the jury continued and prior to its completion, counsel for the defense were informed (1) that Stephenson was the son-in-law of Paul Thomas, the Greene County detective who had investigated the crime and was to be a prosecution witness; (2) that Juror Barnhart was a distant relative of the deceased victim of the murder. Thomas did testify as a Commonwealth witness at the murder trial. As found by the district court he “testified to circumstantial facts which, combined with other circumstantial evidence, undoubtedly played an important role in petitioner’s (Fletcher) conviction.” (Emphasis supplied.) The defense sought leave from the court to challenge both jurors for cause, or in the alternative, peremptorily. At that stage of the proceedings the defense had twelve unused peremptory challenges. The request was denied without a hearing. Juror Stephenson was a witness in the district court habeas corpus hearing. He said that he was the son-in-law of Paul Thomas, having married the latter’s daughter Ruth in 1947; that Thomas had been the Waynesburg Chief of Police for many years and the Greene County Detective for two years prior to the Fletcher trial; that he was on friendly terms with his father-in-law and from January, 1951, including the period in 1954 when Thomas was investigating the murder for which Fletcher was tried, had dinner regularly at the latter’s home four or five times a week; that he knew at the time Thomas was working on the Fletcher case but never discussed it with him. Mrs. Barnhart’s brother was in court regarding her. He told the district judge that his sister was seriously ill, not expected to live. He explained that their grandmother was a sister of the murder victim Tanner’s great grandmother which counsel stipulated resulted in a civil law 7th degree and canon law 5th degree relationship. The district judge concluded as to Mrs. Barnhart that her retention did not result in a denial of due process or a fair trial. He based this on what he found to be remoteness of relationship, absence of contact with Tanner or his family during his lifetime, probable unawareness of the relationship and her juror’s oath. Regarding Stephenson the district judge posed the following question: “Whether a denial of constitutional due process has occurred where in a trial of an accused charged with first degree murder one of the jurors, who served as foreman, was the son-in-law of the chief prosecuting detective and a material witness, whose relationship was brought to the attention of the presiding judge before the selection of the jury had been completed and before trial had commenced.3 “ 3 Juror Stephenson was the first member of the voir dire interrogated and was administered the oath as juror # 1, and was forthwith designated foreman by the presiding judge. Juror Barnhart was named juror # 7 and was the 29th member of the voir dire interrogated. It is noteworthy that upon the interrogation of 47 members of the voir dire, after eight jurors had been selected and each administered the oath separately, defendant counsel interposed his objections to jurors Stephenson and Barnhart. He raised the objections while he continued to have 12 peremptory challenges remaining. “At the time juror Barnhart had been approved, 16 members of the voir dire were challenged successfully for cause and 7 peremptory challenges were exercised by both the prosecution and the defense. Subsequent to the selection of juror Barnhart, and until the objections were interposed as to jurors Stephenson and Barnhart, 14 challenges for cause had been successfully made and three peremptory challenges exercised by the parties. “A matter of considerable significance is the fact that the presiding judge excused a member of the voir dire for cause when she voluntarily stated her remote relationship to the decedent.” The court cited United States ex rel. De Vita v. McCorkle, 3 Cir., 1957, 248 F.2d 1, certiorari denied 1957, 355 U.S. 873, 78 S.Ct. 121, 2 L.Ed.2d 77, rehearing denied 1957, 355 U.S. 908, 78 S.Ct. 329, 2 L.Ed.2d 263. There a juror’s failure to disclose the fact that he had been the victim of a robbery in the same area and within seven months of the one involved in the trial on which he was sitting was held to have resulted in fundamental unfairness to the defendant entitling him to a new trial. The court noted that in De Vita, “ * * * the circumstances which rendered the juror biased were not disclosed until long after the trial. * * * On the other hand, in the instant proceeding, defendant counsel discovered circumstances of alleged bias relative to juror Stephenson in the course of the selection of the jury and before all the jurors had been selected and sworn.” Notwithstanding the above, the court did not formally resolve his question but continued the argument. He directed that the Commonwealth Attorney General participate therein and that briefs be filed. Following that argument (May 27, 1958), the judge, by opinion filed June 5, 1958, D.C., 162 F.Supp. 319, 323, found no substantial dispute existed between the Attorney General, the Greene County District Attorney and counsel for petitioner Fletcher that the latter’s rights “under the laws and Constitution of the Commonwealth of Pennsylvania were not thoroughly presented to the Supreme Court of Pennsylvania at the time motion for new trial was argued before said court.” He presented as issues not passed upon by the state tribunal : “Where seven jurors have been selected and sworn in a criminal murder trial in the Commonwealth of Pennsylvania and while twelve peremptory challenges in behalf of the defendant remain, is it basic and fundamental error for the trial court to refuse to accept as challenge for cause or, in the alternative, to grant peremptory challenges of two jurors when the defendant has not been placed in jeopardy where— “(a) Number One juror, being automatically the foreman in the State court, was a son-in-law of the Chief County Detective whose testimony as a State witness was of paramount importance in a case based on circumstantial evidence. “(b) Juror Number Seven was a relative of the murder victim within the fifth degree of consanguinity. “ (c) After motion to challenge for cause or, in the alternative, to exercise a peremptory challenge as to Juror Number Seven who was a relative of the murder victim within the fifth degree of consanguinity, the trial judge interrogated said juror in his chambers and also interrogated another juror on the panel who was a brother of said juror as to relationship of the juror selected with the victim, without the presence of defendant or his counsel. Whether under the decisions and the Constitution of Pennsylvania, involving a capital offense, the accused and/or his counsel, or both, should have been present during said inquiry when it is well recognized that the empaneling of a jury is within the purview of the constitutional safeguard. See Commonwealth v. Diehl, 378 Pa. 214, 107 A.2d 543. Prine v. The Commonwealth, 18 Pa. 103; Section 9, Article I of the Constitution of Pennsylvania.” To enable the parties to bring those questions to the state court and have them adjudicated the district judge stayed the habeas corpus action. An original petition for habeas corpus was entered in the Pennsylvania Supreme Court to which an answer was filed. Thereafter the court ruled upon the matter without oral argument or briefs and dismissed the writ. One of the seven members of the court disqualified himself as he had appeared in the district court hearing while he was Attorney General; a second was excused by reason of illness. Of the five who sat, one dissented. The majority opinion filed March 20, 1959, Commonwealth ex rel. Fletcher v. Cavell, 395 Pa. 134, states at pages 136 and 137, 149 A.2d 434, at page 436: “After eight jurors had been selected and so sworn, the defendant’s counsel moved the court for leave to challenge juror number one for the reason that he was the son-in-law of a county detective who had been an investigating officer in the case, and juror number seven because of her (actually very remote) relationship to the victim of the felonious homicide for which the defendant was being tried. These matters, concerning jurors one and seven, were not known to the defendant at the time those jurors were selected and sworn.” (Emphasis supplied.) The court commented on that part of its earlier decision which had affirmed the trial court in denying a new trial because of the contention that Jurors 1 and 7 should have been disqualified. The main reason as had been stated for that affirmance was that the Act of May 17, 1939, P.L. 157 § 9, 17 P.S. § 1340, prohibits challenge to a verdict because of a juror’s disqualification unless made before such juror is sworn. The court noted that the 1939 Act applied to third class counties whereas Greene County, the venue involved, is a sixth class county. However, the court upheld the same proposition as deriving from common law and uniformly enforced throughout the state. It also specifically held: “But even if it had been permissible for the defendant to challenge for cause after the jurors had been sworn, it clearly appeared at the time of Fletcher’s appeal to this court that there was no valid cause for challenging either juror number one or juror number seven.” The United States Supreme Court denied certiorari October 12, 1959, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 85. Thereafter the district court application for habeas corpus was reactivated. Briefs were filed and argument had. On May 3, 1960 the court denied the petition. In its opinion of the same date the court viewed the problem as [183 F.Supp. 338] “whether the retention of juror Stephenson was intolerable as distinguished from being unwise and undesirable. United States of America ex rel. De Vita v. McCorkle, 3 Cir., 248 F.2d 1.” Immediately following that, the court said “accordingly, I have weighed the testimony of County Detective Paul Thomas most assiduously with the view to determining what weight his testimony, construed in a light most favorable to this witness, could conceivably have exerted toward tipping the' scales of justice. Upon thoroughly combing the testimony in the state proceeding, together with an evaluation of the records applicable to this case, I am satisfied that said testimony, at best, was cumulative and corrobative of the testimony of State Trooper Harold A. Russell, who had signed the information and was the Chief Investigating Officer. The record of the state proceeding discloses that Thomas assisted Trooper Russell in making five plaster casts of seven footprints alleged to have been made by the murderer, and that his testimony was limited to identifying the casts and repeating the views of Trooper Russell that said casts bore a similarity to the size of defendant’s footsteps. Under the circumstances Detective Thomas’ role was minimal, and as such, could not, despite the retention of juror Stephenson, have resulted in such fundamental unfairness as to constitute a denial of due process of law.” (Emphasis supplied). The affirmative proposition that appellant was deprived of his right to a fundamentally fair trial under the Fourteenth Amendment to the United States Constitution is squarely before us. In our judgment the trial court’s action under the particular facts in permitting Stephenson to continue as a member of the jury so clearly impinged upon the Constitutional guarantee and is so dispositive of the issue that we will deal decisionally with that branch of the appeal alone and not pass upon the Barnhart situation at this time. The fact that Stephenson was the son-in-law of Thomas, the Greene County detective, as noted in the last state court opinion, 395 Pa. 134, 137, 149 A.2d 434 (quoted supra) was not known to the defense when he was accepted and sworn as a juror. As soon as the defense attorneys were apprised of it they asked leave to challenge. At that time the jury had not been completed and jeopardy had not attached. Commonwealth v. Curry, 1926, 287 Pa. 553, 557, 135 A. 316. The defense had twelve peremptory challenges remaining when its request was made. The trial court denied the request, holding that by its prior acceptance of the juror, the defense- had waived its right of challenge. It reiterated this conclusion on its denial for a new trial. The stated support for the decision was given as Section 9 of the Act of May 17, 1939, P.L. 157, 17 P.S. § 1340. That theory was the reason given for affirmance of the ruling by the state Supreme Court. Commonwealth v. Fletcher, 387 Pa. 602, 610, 128 A.2d 897. Later, as we have seen, this was corrected by that court in Commonwealth ex rel. Fletcher v. Cavell, 1959, 395 Pa. 134, 137, 149 A.2d 434. And the state practice, there noted as following the common law, was relied upon to justify the refusal to allow a challenge to Stephenson. As we read the Pennsylvania decisions, the all important test, applicable here, for exercise of peremptory challenges is whether jeopardy has attached. Commonwealth v. Curry, supra; Commonwealth v. Almeida, 1949, 362 Pa. 596, 636, 68 A.2d 595, 12 A.L.R.2d 183. But maintained the state court (395 Pa. at page 139, 149 A.2d at page 437) even if that were so “ * * * it clearly appeared .at the time of Fletcher’s appeal to this court there was no valid cause for challenging either juror number one or number seven.” As matters stood then, there had existed since at least 1951 and through that part of 1954 when Thomas was investigating the homicide in question, an intimate association between Stephenson and his father-in-law. He had eaten with Thomas at the latter’s home four or five days a week during those years, including from June 1954 when Tanner had been slain to December of 1954, the date of the Fletcher trial. Stephenson claimed that even in the early months of the probe into the killing and prior to any jury service, he and his father-in-law never said anything to each other regarding it. Thomas was in court at the trial, a member of the District Attorney’s staff. He was a witness for the Commonwealth. He testified regarding certain footprints-discovered at the scene of the killing. He, with a state trooper, had made casts of some of those prints which were accepted into evidence. The footprint evidence was most forcibly used by the District Attorney in summation to show they had been made by a man comparable to Fletcher in size and stride. The district judge after the habeas corpus proceeding had been heard by him, found on June 5, 1958, as we have above quoted, that County Detective Thomas’ * * * testimony as a state witness was of paramount importance in a case based on circumstantial evidence.” (Emphasis supplied.) Almost two years later, on May 3, 1960, specifically relying on the same evidence, the district judge completely reversed himself and held that Thomas’ evidence was cumulative and corrobative and under the circumstances his “ * * * role was minimal and as such, could not, despite the retention of juror Stephenson, have resulted in such fundamental unfairness as to constitute denial of due process of law.” (Emphasis supplied.) The sole new element before the court was the second opinion of the state tribunal, which as we have heretofore set out, again rejected Fletcher’s complaint against Stephenson and Mrs. Barnhart sitting as jurors in his trial. In some fashion the chilling evidence under oath at the habeas corpus hearing by Stephenson seems to have been completely overlooked. The jury foreman there stated that he believed Thomas; believed what he testified. He was asked: “Believed him (Thomas) — you believed him because you knew him didn’t you?” Stephenson’s answer was “Yes”. The next questions and answers were: “Q. And you knew him because he was your father-in-law? “A. I believed him on account of the evidence he gave. “Q. And there was never any doubt in your mind that he was telling the truth, was there ? “A. No.” It could have been with this general thought in mind that Stephenson (as he also testified) prior to being selected as a juryman remarked, “ * * * we didn’t think that the defendant would accept me as a juror by being relation (stet) to him.” He said he was surprised at being left on the jury. He had also said while being examined on his voir dire that he was “perfectly impartial”; was free of prejudice or bias; could render a verdict solely from the evidence adduced from the stand. So Stephenson by his own description under oath of himself was not merely tainted with colorable or even probable bias as in United States ex reí. De Vita v. McCorkle, supra. In the face of his frankly stated attitude towards his father-in-law’s evidence which pointed to Fletcher as having been at the crime scene within the critical time, it was impossible for him to believe Fletcher’s alibi defense. He could not accept the Thomas and other connecting evidence inferring Fletcher was present and the latter’s defense that he was somewhere else. It follows that Stephenson, sitting on that jury as its foreman, was actually biased in favor of the prosecution evidence of “paramount importance” given by Thomas. The vice of this necessarily went far beyond the Thomas testimony. State Trooper Russell testified concerning the footprints. In the last district court opinion he is referred to as the [183 F.Supp. 338] “Chief Investigating Officer” and Thomas’ testimony is called “corroborative” of his evidence. This is the first time it is so styled. If this is assumed to be correct it must follow that Russell’s story was necessarily held to be truthful by Stephenson. With that combination completely resolved against him by Stephenson’s belief in the truthfulness of his father-in-law, Fletcher’s alibi had no chance of receiving credence from him. All Stephenson did was to enter upon his duties as an impartial juror with what may have been the most vital evidence in the entire trial (the placing of Fletcher where the murder had been committed) prejudged by him in favor of his father-in-law and the latter’s co-investigator and against the defendant. Even so it was nine hours before the jury agreed on a guilty verdict. And though the crime had been undeniably vicious, the verdict was for life imprisonment — not death. We rest our decision on the firm ground that Stephenson in declaring himself to be impartial and without prejudice, while not revealing that he was the son-in-law of the County Detective who was one of the investigative officers in the very matter to be tried, who was to be a material witness at the trial, and whose testimony Stephenson would believe, created an intolerable situation that resulted in a fundamentally unfair trial to appellant. Stephenson’s conduct goes far beyond Kuhnle’s at the trial involved in United States ex rel. De Vita v. MeCorkle, supra. Kuhnle, called as a prospective juror in a trial for murder resulting from armed robbery, did not make it known that he had been an armed robbery victim within seven months of the murder and in the same area, dealing with the same police, etc. Other jurors had been queried on previous robbery experiences and Kuhnle’s attention had been directed to the questions put to the previous talis-men. He denied knowing any of the State’s officers or personnel. We held (248 F.2d at page 8) that “The subsequently discovered undisputed facts make out a colorable bias in a juror who was a part of the verdict which caused appellant and his confederate to be sentenced to death.” The De Vita decision effectively and rightly controls our course in this appeal. The problem in United States ex rel. Luzzi v. Banmiller, 3 Cir., 1957, 248 F.2d 303, differed completely from the present question. In minor aspects that case bears superficial resemblance but in essence it has no pertinence. Under the rigid test laid down in United States ex rel. Darcy v. Handy, 1956, 351 U.S. 454, 76 S.Ct. 965, 970, 100 L.Ed. 1331, cited by appellee, this appellant is not asking us to say that “ * * * the mere opportunity for prejudice or corruption is to raise a presumption that they exist, * * What the Court called “The burden of showing essential unfairness” has been sustained by him. The record before us is somewhat voluminous but it is not at all blurred, rather it is crowded with plain injustice to appellant. The order of the district court will be reversed. The cause will be remanded to the district court with instructions to issue a writ of habeas corpus which will allow appellant a new trial on the merits. The writ will indicate that meanwhile, appellant is to remain in the custody of the Commonwealth of Pennsylvania. . It is argued strongly on behalf of appellant from the inference arising out of Stephenson’s relationship to Thomas that the former had a substantial selfish interest in the outcome of the trial. The latter was a sensational messy affair in a small county where a murder trial itself was unusual. It was undoubtedly of importance to the prosecution, which would include the County Detective. It is suggested that for Stephenson to be completely impartial under those circumstances is to go counter to common experience. While there is considerable to be said for this thought, as we see it, there is no need of pursuing it under the circumstances before us. 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_search	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?" 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". If a civil suit brought by a prisoner or a criminal defendant in another action that alleges a tort based on an illegal search and seizure, also consider the issue to be present in the case. MILO COMMUNITY HOSPITAL, etc., Plaintiff-Appellant, v. Caspar W. WEINBERGER et al., Defendants-Appellees. No. 75-1205. United States Court of Appeals, First Circuit. Argued Sept. 10, 1975. Decided Nov. 14, 1975. Joseph J. Bichrest, Greenville, Me., for appellant. Lawrence E. Burstein, Asst. Regional Atty., Region I, United States Dept, of Health, Education and Welfare of Boston Mass., with whom Peter Mills, U. S. Atty., Portland, Me., was on brief, for appellee. Before COFFIN, Chief Judge, McENTEE, Circuit Judge, and THOMSEN', Senior District Judge. Of the District of Maryland, sitting by designation. COFFIN, Chief Judge. The Milo Community Hospital, a sixteen bed private non-profit hospital in Milo, Maine, brought suit in the district court to enjoin defendant Secretary of Health, Education, and Welfare and other relevant officials (HEW) from terminating its federally assisted status as a “provider of services” under Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq. (the Medicare Act). The hospital attacked HEW s decision in two counts of its complaint: in Count One it alleged that HEW had not prepared and issued an Environmental Impact Statement in compliance with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA); in Count Two it charged that the termination was arbitrary, capricious, and a denial of equal protection. Jurisdictional grounds asserted were 42 U.S.C. § 4332(2)(C); 5 U.S.C. §§ 702 and 706; and 28 U.S.C. §§ 1331, 1343, and 1361. Defendants denied jurisdiction under both counts and generally admitted the factual allegations. They further answered, as to Count One, that the decertification of a provider under the Medicare Act is controlled by statute and regulation and is not a “major Federal action significantly affecting the quality of the human environment” under NEPA; and, as to Count Two, that the hospital had failed to exhaust its administrative remedies. From a judgment in favor of defendants, entered after hearing by the court, the hospital appeals. The relevant factual background is the following. Appellant has been authorized to furnish federally compensable Medicare services as a “provider of services”, as the term is defined in 42 U.S.C. § 1395X. In October, 1973, the Bureau of Health Insurance of the Social Security Administration notified the hospital of a number of respects in which its facilities failed to comply with the 1967 edition of the National Fire Protection Association’s Life Safety Code, the relevant set of standards made applicable by 20 C.F.R. 405.1022(b). After a year of discussion, rectification of some deficiencies, and extensions of time for the hospital to submit an acceptable plan of correction, the Bureau, in November, 1974, issued its formal letter, notifying the hospital that, as of December 13, 1974, its Medicare provider agreement would be terminated. The hospital was advised that, if the Medicare program requirements were met in the future, it could request re-establishment of its eligibility to participate as a provider. It was further advised of its rights to request and have a hearing before an administrative law judge within six months. While the hospital sought, and was denied, reconsideration, it did not seek administrative review of the Bureau’s action, but brought this suit. During the same period, the Bureau had advised two other small hospitals in nearby towns of their failure to comply with the Life Safety Code. One, in Dexter, was terminated as a provider in December, 1974. The other, in Dover-Fox-croft, was allowed, subject to correcting certain deficiencies, to continue as a provider, pending construction of a new regional hospital in the same town — a project in which Dover-Foxcroft and several other communities had voted to participate and for which a firm time schedule had been determined. The town of Milo voted twice not to join the new Hospital Administrative District, the second occasion of such vote being in December, 1974, at which time Milo also voted to appropriate $390,000 for new hospital facilities and to raise $150,000 by a fund drive. As of March 5, 1975, the date of hearing before the district court, no firm plan for construction and financing had been submitted. The district court found that termination of the hospital’s provider status would force it to close, causing Milo patients to travel 13 miles to Dover-Fox-croft or 32 miles to Bangor. In addition to the deprivation of local hospital facilities, the town would lose some $170,000 in annual hospital payroll and $30,000 in annual local purchases. Established by stipulation were the facts that HEW had not filed an Environmental Impact Statement (EIS) and, indeed, that its position has always been that 42 U.S.C. § 4332(2)(C) of the National Environmental Protection Act was not applicable to certification and decertification decisions under the Medicare Act. The district court held that it had jurisdiction, that — as to Count One— HEW was not required to file an EIS before terminating the hospital’s provider status, and — as to Count Two — that the hospital was not entitled to judicial review since administrative remedies had not been exhausted. The court added, although unnecessary to its decision, that it found no merit in the claims of arbitrariness and denial of equal protection. Since the decision of the district court, the Supreme Court has spoken most relevantly to the jurisdictional issues in the present case. In Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522, 1975, the widow of a deceased wage earner was denied certain insurance benefits because she had been the decedent’s wife less than the nine months required by 42 U.S.C. § 416(C) for entitlement to benefits. After seeking and being refused reconsideration, she brought suit in district court, challenging the constitutionality of the statute. The Court held that the first two sentences of 42 U.S.C. § 405(h) “prevent review of decisions of the Secretary save as provided in the Act, which provision is made in § 405(g).” 422 U.S. at 757, 95 S.Ct. at 2463. In this case it would seem irrelevant to analyze each of the heads of jurisdiction alleged by appellant. Some, such as 28 U.S.C. § 1331, are clearly not available. But whether other bases of jurisdiction are present or not, § 405(g) is both a source of jurisdiction and a limitation on its exercise. Section 405(g) sets forth the procedure to be followed in obtaining judicial review of the Secretary’s decision. It commences with the words, “Any individual, after any final decision of the Secretary made after a hearing . . . may obtain a review of such decision by a civil action . . . .” The Supreme Court in Salfi variously characterized this requirement as “central to the requisite grant of subject matter jurisdiction”, id. at 764, 95 S.Ct. at 2466, “a statutorily specified jurisdictional prerequisite”, id at 766, 95 S.Ct. at 2467, “something more than simply a codification of the judicially developed doctrine of exhaustion”, loc. cit., but “not precisely analogous to the more classical jurisdictional requirements . ■. . as [28 U.S.C.] 1331 and 1332.” Loc. cit. It is not made inapplicable by reason of a constitutional challenge, beyond the power of the Secretary to take remedial action. The requirement, however, is not jurisdictional in an inflexible sense, as Mr. Justice Brennan noted in dissent, id. at 799, 95 S.Ct. 2457, since the Secretary may “determin[e] in particular cases that full exhaustion of internal review procedures is not necessary for a decision to be ‘final’ within the language of § 405(g).” Id. at 767, 95 S.Ct. at 2467. In Salfi, despite a defense of failure to exhaust contained in a motion submitted to the district court, the Court noted that the Secretary was not raising on appeal any challenge to the sufficiency of the allegations of exhaustion in the complaint and interpreted that action to be a “determination by him that for the purposes of this litigation the reconsideration determination is ‘final’.” Id. at 767, 95 S.Ct. at 2468. In the case at bar there is no question but that HEW has consistently raised and argued non-exhaustion as to Count Two both in the district court and before us. The district court was clearly correct in its holding that appellant could not claim judicial review of its due process and equal protection claims. HEW’s stance as to Count One is much less forthright. Although the answer began with a blanket denial of jurisdiction, Count One flatly asserted, by way of a detailed additional answer, the inapplicability of NEPA. This approach was in marked contrast to the answer to Count Two, where a detailed additional answer affirmatively raised the issue of non-exhaustion. In addition, the case was tried to the district court on the theory that it could reach the merits on Count One although not on Count Two. And the court noted the stipulation that it had always been HEW’s position that decertification decisions were not subject to NEPA’s requirements. It was not until the appeal, subsequent to the decision in Salfi, that HEW argued that § 405(g) bars judicial review of all issues in the case. Understandable though HEW’s change of mind might be, having the benefit of the Court’s strictures as to the sweep of § 405(g), we cannot avoid the conclusion that, for purposes of the trial below, the Secretary through his counsel, had made a determination that his refusal to reconsider his decision that no Environmental Impact Statement need accompany a decertification action was “final”. We arrive at this conclusion reluctantly. We would prefer not to decide the NEPA issue on the merits but defer decision until a case appears where full administrative review has been had. The deliberations of an administrative law judge and an Appeals Council could not fail to provide both a deeper perspective and more thorough consideration than are permitted a court, which can be concerned only with legal error. Appellant, however, deliberately refused to follow the course of administrative review and, HEW having effectively determined in this case that exhaustion would not be necessary, we must decide the merits. We decide on as narrow a ground as possible. We need not decide whether an Environmental Impact Statement will ever be required before a decertification decision is made. We do not exclude the possibility that such a decision might have a sufficient environmental impact to constitute a major federal action significantly affecting the quality of the environment, and we decline to consider whether environmental considerations would be irrelevant to all decertification decisions. Here we decide only that the Secretary did not err in failing to prepare an Environmental Impact Statement because, under the circumstances of this case, consideration of the factors that the appellant has characterized as “environmental considerations” could not have changed the Secretary’s decision. Appellant’s contention is that the economic consequences of closing the hospital and the resulting inconvenience and increased use of automobile transportation by Milo residents are environmental consequences that the Secretary had to weigh, via an impact statement, in reaching his decision to decertify the hospital. Accepting arguendo appellant’s characterization of these factors as “environmental considerations”, we hold that no impact statement was required because under the terms of the Medicare Act these considerations are irrelevant to a decertification determination. When the Secretary finds serious noncompliance with fire prevention requirements of the Life Safety Code, he is under a statutory duty to terminate the Provider Agreement. The kind of dislocation that-Milo Hospital alleges it will experience will accompany most termination decisions. We are certain that Congress did not intend the Secretary to have the discretion to give any weight to such consequences in arriving at a termination decision. Not only, therefore, were such factors irrelevant, but they would also be impermissible factors for the Secretary to consider in making this decision. Under these circumstances we hold that no impact statement was required. Therefore, whether or not the decertification action in this case could be said to be “major”, and whether or not the prospective social and economic impact could be said to fall within the statutory term, “quality of the human environment”, see Maryland-National Capital Park and Planning Commission v. U. S. Postal Service, 159 U.S.App.D.C. 158, 487 F.2d 1029 (1973), and Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972), we hold that the decertification of a small hospital as a “provider” or services under the Medicare Act for continued non-compliance with significant fire protection provisions of the Life Safety Code is a decision which should be governed solely by that Act. Affirmed. . A provider “hospital” under this statute must be an institution which meets, in addition to requirements relating to the nature and scope of professional services, “such other requirements as the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.” 42 U.S.C. § 1395x(e)(9). . While some items noticed were relatively minor, others were more basic and pervasive, such as the unprotected wood frame construction, lack of fire-stoppers in concealed spaces, lack of non-combustible interior walls and partitions, and inadequate means of egress. . Subpart O of Part 405 of the regulations governing federal health insurance for the aged and disabled, §§ 405.1501-405.1595, spell out in elaborate detail the procedures available to a provider of services wishing to contest an initial determination that it no longer qualifies. The various steps include a request for reconsideration, a hearing before an administrative law judge, and a discretionary review by an Appeals Council panel of three persons, one of whom must be from the U.S. Public Health Service. . It is the disparate treatment given to Milo and Dover-Foxcroft hospitals that gives rise to the equal protection claim. . The hospital sought to broaden the issue beyond HEW’s failure to file an EIS, by arguing that HEW had violated 42 U.S.C. § 4332(A), (B), and (D) by not pursuing an interdisciplinary approach, developing environmentally focused procedures, and exploring alternative uses of resources in its decision making process. Such contentions were not supported by the complaint or the evidence. At no time, on appeal, did the hospital attempt to invoke 42 U.S.C. § 4333, requiring internal agency review of policy and procedures in the light of NEPA. . Section 405(h) is facially applicable to determinations of the Secretary under Title II of the Social Security Act, but by 42 U.S.C. § 1395Ü is also made applicable to the present Title XVIII proceeding. So also is § 405(g) made applicable to this case by 42 U.S.C. § 1395ff(c). . The fact that the Secretary, not having been so requested, did not hold a hearing does not affect the “finality” of the decision within the meaning of § 405(g). It is clear from the statute, the regulations, and the Court’s decision in Salfi that, while an aggrieved person or institution has a right to a hearing, the holding of a hearing (which is not requested) is not a predicate to a final decision. Question: Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_crossapp	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case. INVESTMENT COMPANY INSTITUTE, Plaintiff-Appellee, v. Robert L. CLARKE, as Comptroller of the Currency; the Office of the Comptroller of the Currency, an agency of the United States; and the United States of America, Defendants-Appellants, and Wells Fargo Bank, N.A.; and the Bank of California, N.A., Defendants-Intervenors/Appellants. Nos. 84-2622, 84-2623. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 12, 1985. Decided June 30, 1986. Norris, Circuit Judge, filed opinion concurring especially. Coughenour, District Judge, sitting by designation, filed dissenting opinion. Harvey L. Pitt, Henry A. Hubschman, David M. Miles, Fried, Frank, Harris, Shri-ver & Jacobson, Washington, D.C., David J. Romanski, Steinhart & Falconer, San Francisco, Cal., for plaintiff-appellee. Brobeck, Phleger & Harrison, William F. Sullivan, San Francisco, Cal., for Wells Fargo Bank, et al. Richard K. Willard, Acting Asst. Atty. Gen., Richard V. Fitzgerald, Chief Counsel, Eugene M. Katz, L. Robert Griffin, Washington, D.C., for Clarke, et al. Before NORRIS and REINHARDT, Circuit Judges, and COUGHENOUR, District Judge. Comptroller of the Currency Robert L. Clarke has been substituted for his predecessor C.T. Conover, pursuant to Fed.R.App.P. 43(c)(1). Honorable John C. Coughenour, United States District Judge for the Western District of Washington, sitting by designation. REINHARDT, Circuit Judge: The Comptroller of the Currency, Wells Fargo Bank, and the Bank of California appeal from the district court’s grant of summary judgment in favor of the Investment Company Institute. The district court ruled that the operation by the two banks of common funds consisting of commingled individual retirement accounts violated the Glass-Steagall Act, 48 Stat. 162, as amended, and that the Comptroller could not properly authorize the operation of such funds. See Investment Company Institute v. Conover, 593 F.Supp. 846 (N.D. Cal.1984). Two circuit courts have ruled that the operation of such commingled funds does not violate Glass-Steagall and that the Comptroller could properly authorize their operation. See Investment Company Institute v. Conover, 790 F.2d 925 (D.C.Cir. 1986); Investment Company Institute v. Clarke, 789 F.2d 175 (2d Cir.1986) (per curiam). While the Second Circuit’s opinion consisted of only a summary affirmance of the district court, the District of Columbia Circuit engaged in an extensive analysis, applying the principle recently restated in Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837,104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), that interpretations of statutes by the agency charged with administering them may not be overturned unless they are unreasonable. The court found that the Comptroller's interpretation of Glass-Steagall was not unreasonable and thus that his authorization of the commingling of individual retirement accounts was proper. See Investment Company Institute v. Conover, 790 F.2d at 931-38. The Supreme Court has specifically held that “[t]he Comptroller of the Currency is charged with the enforcement of the banking laws to an extent that warrants” judicial deference to his interpretations of Glass-Steagall unless they are unreasonable. Investment Company Institute v. Camp, 401 U.S. 617, 626-27, 91 S.Ct. 1091, 1097, 28 L.Ed.2d 367 (1971). In Camp the Court reversed the Comptroller, saying that he had not offered a reasoned explanation for his conclusion. Such is not the case here, however. In his decisions authorizing Wells Fargo Bank and the Bank of California to operate their commingled funds, the Comptroller applied the mode of analysis that Camp held to be appropriate for determining whether Glass-Steagall has been violated. The district court found the Comptroller’s decisions to be “somewhat coneluso-ry” and to “simply disagree with congressional determinations enumerated in Camp.” 593 F.Supp. at 856. It is easy to understand the district court’s view. The Comptroller’s analysis appears to be superficial, and in some respects to come perilously close to disregarding the spirit of Camp while purporting to adhere to its letter. It also comes perilously close to rejecting the division between commercial banking and investment banking that Congress sought to mandate in Glass-Stegall. Nevertheless, in the end, the Comptroller did apply, however inadequately, the Camp test. In the case before us, the issue the Comptroller was required to decide essentially involved questions of expert judgment regarding the practical operation of the banking industry and the results that might be anticipated if particular business practices were instituted. Congress has delegated responsibility for such business judgments to the Comptroller. Whether he performs his task wisely or well is not for us to decide. Moreover, the practice the Comptroller approved is not prohibited by the plain words of the statute, and in most part, he has not relied on arguments that are inconsistent with or different from those set forth in his decision. Compare Securities Industry Association v. Board of Governors, 468 U.S. 137, 104 S.Ct. 2979, 82 L.Ed.2d 107 (1984). While the question is a close one, and certainly not free from doubt, we conclude ultimately, on balance, that we cannot say that the analysis and conclusions set forth in the Comptroller’s decisions are unreasonable. For the above reasons, we join with the Second and District of Columbia Circuits and hold that Wells Fargo and the Bank of California may lawfully commingle individual retirement accounts in the manner authorized by the Comptroller. The district court’s decision is reversed. REVERSED. . We review the grant of summary judgment de novo, Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983); because there are no contested issues of fact, we need decide only whether the district court correctly applied the substantive law, Lane v. Goren, 743 F.2d 1337, 1339 (9th Cir. 1984). . We also agree with the District of Columbia Circuit that the Employee Retirement Income Security Act of 1974 (ERISA) and its legislative history are not relevant in the decision before us. See Investment Company v. Conover, 790 F.2d at 932-33. Like the District of Columbia Circuit, we base our decision entirely on the portion of the Comptroller’s ruling that relates directly to Glass-Steagall. Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case? A. No B. Yes C. Not ascertained Answer:
songer_counsel2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party MINERS SAV. BANK OF PITTSTON, PA., v. JOYCE et al. UNITED STATES v. SAME. ROBERTSON et al. v. SAME. Nos. 6302, 6307, 6310. Circuit Court of Appeals, Third Circuit. April 14, 1938. Rehearing Denied June 2, 1938. W. L. Pace, of Pittston, Pa., for Miners Sav. Bank of Pittston, Pa. James W. Morris, Asst. Atty. Gen., Sewall Key and Clarence E. Dawson, Sp. Assts. to Atty. Gen., Frederick V. Follmer, U. S. Atty., of Scranton, Pa., and Herman F. Reich, Asst. U. S. Atty., of Sunbury, Pa., for the United States. R. L. Levy, of Scranton, Pa., for Nelson Robertson. John P. Kelly, W. J. Fitzgerald, and Edward J. Kelly, all of- Scranton, Pa. (Kelly, Fitzgerald & Kelly, of Scranton, Pa., of counsel), for appellees. Leo W. White, W. H. Gillespie, and Frank M. Flanagan, all of Pittston, Pa., and R. L. Coughlin, of Wilkes-Barre, Pa., amici curiae. Before BUFFINGTON and BIGGS, Circuit Judges, and MARIS, District Judge. MARIS, District Judge. On June 30, 1934 the Howell & King Company filed a debtor’s petition under section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207 and note, in the District Court for the Middle District of Pennsylvania. On the same day the court appointed P. F. Joyce trustee and on October 2, 1934, C. Raymond Bensinger and Peter Noll were appointed additional trustees. The trustees were authorized to continue the business of the debtor. In accordance with its practice the court referred the proceeding to David Rosenthal, Esq., one of the referees in bankruptcy, as special master. On June 19, 1935, the court entered a decree directing the trustees of the debtor to liquidate the estate and to make public sale of the assets and on the same day referred the case to David Rosenthal, Esq., as referee. Upon an appeal from that decree this court on August 30, 1935, by agreement and with the consent of the parties, ordered the trustees to proceed to cause the assets of the debtor and bankrupt to be liquidated, to sell all the said assets free and discharged of all liens, which were to be transferred to the proceeds. The order further provided that should the Miners Savings Bank of Pittston, Pa., the mortgagee and trustee for bondholders, or any holders of bonds secured by the mortgage, become the purchasers, it or they, “after the payment to said Trustees in cash at the time and in the manner provided by terms of sale on bid of an amount not exceeding $55,000.-00,” might deliver to the trustees bonds to be credited on account of the balance due on the bid. On October 14, 1935, pursuant to the order of this court, the trustees sold all of the real and personal property of the bankrupt at public sale as an entirety to the attorney for the Miners Savings Bank of Pittston, Pa., as mortgagee, for $55,000, which sale was confirmed absolutely on October 25, 1935. On December 9, 1935, the trustees filed their first and final account and on July 30, 1936, pursuant to order of the court, they filed a restated account. Exceptions were filed to the account and to the order of distribution made by the referee.' Upon review these exceptions were disposed of by the court below in an opinion filed November 17, 1936. In re Howell & King Co., D.C., 16 F.Supp. 984. From the decree confirming the account and awarding distribution of the balance shown thereby, which was entered pursuant to that opinion, appeals have been taken by the Miners Savings Bank of Pittston, Pa., as mortgagee and trustee for bondholders, by the United States of America, as a tax claimant, and by Nelson Robertson and others, as wage claimants. Each appeal raises distinct questions and we will, therefore, consider each separately. Appeal of Miners Savings Bank of Pittston, Pa., Mortgagee and Trustee for Bondholders (No. 6302). This appeal by the holder of the first mortgage upon the debtor’s real estate and plant in turn raises a number of questions which require separate discussion. The first is raised by the second assignment of error and relates to the refusal of the court to allow the costs of the prior appeal, amounting to $45, to be paid out of the estate as an expense of administration. The court evidently overlooked the provision contained in the prior order of this court entered August 30, 1935, which directed that the cost in connection with the former appeal should be paid by the appellees,- the trustees'of the debtor. These costs should have been allowed as an expense of administration. The next question arises under the third, fifth, sixth, and seventh assignments of error and relates to the amount of ..compensation allowed to the trustees of the debtor by the court below. As we have seen, the court on June 19, 1935, ordered the trustees to liquidate the estate and referred the matter to a referee in bankruptcy. The provisions of subdivision (k) of section 77B, 11 U.S.C.A. § 207(k), therefore, applied to the liquidation from that time. In re Collins Hosiery Mills, D.C., 18 F.Supp. 89. It follows under the terms of that subdivision that the compensation of the trustees of the debtor, both in the reorganization proceeding prior to June 19, 1935, and in the liquidation proceeding thereafter, must be limited fo the amounts specified in section 48 of the Bankruptcy Act, as amended, 11 U.S.C.A. § 76. Callaghan v. Reconstruction Finance Corp., 297 U.S. 464, 56 S.Ct. 519, 80 L.Ed. 804. In that case Mr. Justice Stone said on this point (297 U.S. 464, at page 469, 56 S.Ct. 519, 521, 80 L.Ed. 804): “Where the attempted reorganization results in liquidation, sections 40, 48 [11 .U.S.C.A. §§ 68, 76], regulating the fees of referees, receivers and trustees in bankruptcy, are incorporated by reference in Section 77B (k), 11 U.S.C.A. § 207(k), and are likewise made to control the fees of such officers in the reorganization proceedings.” It is conceded that the compensation allowed the trustees by the court below exceeded the amounts allowable under section 48, 11 U.S.C.A. § 76. Their compensation must, therefore, be reduced to the amount fixed by the statute. The next question is raised by the fourth and eighth assignments of error which refer to the compensation allowed by the court below to the special master and referee. David Rosenthal, Esq., referee in bankruptcy, was appointed special master during the pendency of the reorganization proceeding and on June 19, 1935, the liquidation proceedings were referred to him as referee. For his services as special master he is entitled to such reasonable compensation as the court may fix, Section 77B, subd. (c) (11), 11 U.S.C.A. § 207(c) (11). In this case the first and final account of the trustees which was confirmed by the court shows that payment of $2,000 to Mr. Rosenthal “on account of fees.” While $1,475 of this was actually paid to him after June 19, 1935, when his services as special master ceased, $1,000 of it appears to have been allowed to him by the court on January 24, 1935, and it was all claimed by him as special master. The sum does not seem to us to be unreasonable for his services as special master and we are satisfied that it should not be disturbed. In addition the court below in the decree appealed from allowed him $1,000 more as referee. This allowance cannot be sustained since his fees as referee in a liquidation proceeding under subdivision (k) of section 77B, 11 U.S.C.A. § 207(k), are limited to the amount allowed by section 40, 11 U.S.C.A. § 68, and the sum allowed was conceded to exceed that amount. His allowance must, therefore, be recomputed under that section. Callaghan v. Reconstruction Finance Corp., 297 U.S. 464, 471, 56 S.Ct. 519, 522, 80 L.Ed. 804. The ninth assignment of error relates to the finding by the court below that a minimum sale price for the property of the debtor was fixed at the request of the mortgagee. It is clear from an examination of the order of sale entered by this court on August 30, 1935, by agreement of the parties that no minimum sale price was fixed. Nor do we find in the record any evidence which would sustain a finding that such a minimum sale price was requested by this appellant. The tenth assignment of error refers to the failure of the trustees in their account to segregate the proceeds of the sale of the debtor’s property and to state separately the disbursements made therefrom. We think that the trustees should be required to state separately the proceeds of the sale and the disbursements made therefrom. The order of sale directed the liens on the property sold to be transferred to the proceeds of the sale. This made it imperative, if the rights of the lienholders were to be protected, to segregate the proceeds of the sale and to state an account of the proceeds separately. The failure of the trustees to do so in practical effect made it impossible for the court below to carry out the direction of the decree of sale entered by this court which transferred the liens on the property to the proceeds of the sale and authorized the lienholders to make their claims against the proceeds. It is impossible from the account as stated to determine whether the balance in the hands of the trustees was actually derived from the proceeds of the sale or from some other source. The account must, therefore, be restated. The first assignment of error complains of the refusal of the court below to apply the proceeds from the sale of the debtor’s property and the rentals collected from its real estate to the payment of administration expenses to the exclusion of the claim of appellant as mortgagee having a lien upon the fund. In considering this question it must of course be conceded that section 67d of the Bankruptcy Act, as amended, 11 U.S.C.A. § 107(d), protects the lien of the mortgagee in this case upon the property of the debtor. When the property was sold clear of liens the mortgagee’s lien was expressly transferred to the fund realized from the sale. The question raised by this assignment is whether under the circumstances the mortgagee is entitled to have paid to it the entire proceeds of the sale remaining after the payment of the costs of the sale and the prior tax liens or whether it must also be postponed to the payment of the administration expenses which the court below directed to be paid out of the fund. While there is authority for. the proposition that one who has a lien on the property of a bankrupt is entitled to be paid in full out of the proceeds of the liened property subject only to prior liens and a contribution to the expense of administering the bankrupt estate not in excess of what it would have cost to foreclose the lien, Odendahl v. Pokorny Realty Co., 5 Cir., 76 F.2d 271, we think the true rule to be that, where a trustee sells a bankrupt’s property free of liens, with the consent of the lienholders, the latter are chargeable not only with the actual costs of sale but also with expenses reasonably incurred in the preservation of the property, Virginia Securities Corporation v. Patrick Orchards, 4 Cir., 20 F.2d 78, and with the trustee’s and referee’s commissions payable with respect to the proceeds of the sale, Tawney v. Clemson, 4 Cir., 81 F.2d 300, but with no other expenses of administration, except with their consent, express or implied, In re Torchia, 3 Cir., 188 F. 207. Where, as here, the business of the debtor was carried on prior to the sale in the hope of reorganization the lien-holder’s forbearance in not foreclosing its lien, which enabled the business to be thus carried on in the mortgaged property, was obviously for the benefit of the debtor and its general creditors. The fact that the mortgagee did not press for foreclosure but consented to permit the business to be carried on in the mortgaged property should not be held to penalize it by postponing its lien to the expenses of operating the business, since to so hold would be to place a penalty upon a lien creditor for its forbearance and for the consideration which it has shown for general creditors. This of course is not to say that the lienholder should not bear the reasonable expenses of preserving the property, which expenses were clearly for its benefit. We conclude that the proceeds of the sale of the mortgaged property, as well as the net rents received therefrom after the deduction of expenses applicable thereto, should be devoted to the- payment of the costs of sale, the commissions of the trustees and the referee applicable thereto, and the reasonable expenses of preserving the property, and that the balance thereof should be applied to the payment of the liens in the order of their priority, including the lien of the mortgage. Appeal of the United States of America (No. 6307). This appeal raises the question whether the claim of the United States for taxes was a lien on the fund derived from the sale of the debtor’s property or whether it was otherwise entitled to payment out of that fund on a parity with other tax claims. The county, city, school, and poor taxes were first liens upon the real estate under the Pennsylvania Act of May 16, 1923, P.L. 207, § 2, 53 P.S.Pa. § 2022. The state taxes were first liens upon all the debtor’s property under the Pennsylvania Act of April 9, 1929, P.L. 343, § 1401, 72 P.S. § 1401. The taxes were, therefore, all first liens upon the proceeds of the sale under the terms of the decree of sale, which transferred the liens to the fund. On the other hand the tax claimed by the United States was not a lien on the property valid as against the mortgagee, whose claim against the balance of the proceeds of the sale we have held should be allowed, since notice of the government’s lien was not, in accordance with section 3186, Rev.St., as amended, 26 U.S.C.A. §§ 1560-1567, filed in the office of the prothonotary of Luzerne county as authorized by the Pennsylvania Act of May 1, 1929, P.L. 1215, 74 P.S.Pa. § 141 et seq. Section 67d of the Bankruptcy Act, as amended, 11 U.S.C.A. § 107(d), which provides that liens given or accepted in good faith shall not be affected by anything in the act, applies to tax liens, In re Brannon, 5 Cir., 62 F.2d 959, certiorari denied, Ryan v. City of Dallas, 289 U.S. 742, 53 S.Ct. 692, 77 L.Ed. 1489; Dunn v. Interstate Bond Co., 5 Cir., 68 F.2d 364, certiorari denied 292 U.S. 645, 54 S.Ct. 779, 78 L.Ed. 1496; Ingram v. Coos County, Or., 9 Cir., 71 F.2d 889; In re Ivel Displays, Inc., 2 Cir., 74 F.2d 702, and such liens are payable in bankruptcy out of the proceeds of the sale of the property subject to the liens ahead of claims having priority under section 64, 11 U.S.C.A. § 104. This is for the reason that section 64 lays down the priorities for paying ‘out the net balance of the funds derived from the liquidation of the bankrupt’s property which remains after all special liens and incumbrances have been provided for, In re Brannon, supra, and does not refer to lien debts. Richmond v. Bird, 249 U.S. 174, 39 S.Ct. 186, 63 L.Ed. 543; In re Cardwell, D.C., 52 F.2d 158; U. S. Fidelity & Guaranty Co. v. Sweeney, 8 Cir., 80 F.2d 235. In this case the only claim of the United States to priority is under section 64, however. It is obvious that the liens against the proceeds of the sale of the debtor’s property, when the lien of the mortgage is included, far exceed the fund. There is, therefore, nothing left to distribute under section 64 and the court properly refused to award any portion of the fund to the United States upon its claim. Appeal of Nelson Robertson and Others (No. 6310). This appeal involves the right of certain wage claimants to distribution out of the fund. They contend that the real and personal property of the debtor was sold as an entirety and since an admixture of the funds derived from both classes of property took place the tax liens applicable to the real estate only were lost and the claimants are, therefore, relegated to their priorities under section 64, which gives wagei claimants priority over taxes. We think that this contention is unsound. While it may be admitted that the local tax liens were against the real estate only, their right against the proceeds of the sale of the real estate was preserved by the order of sale and they were, therefore, not required to except to the order confirming the sale of the real and personal property as an entirety nor were they prejudiced thereby. Geo. Carroll & Bro. Co. v. Young, 3 Cir., 119 F. 576; In re Benz, 3 Cir., 218 F. 50; First Savings & Banking Co. v. Kilmer, 4 Cir., 263 F. 497; In re Wilkes, 2 Cir., 55 F.2d 224. The court below found that the fund in the hands of the trustees was produced by the real estate and that the amount realized from the personalty was nominal. We think that the record supports this finding but even if it were otherwise the tax claimants would be entitled to have a determination by the referee of the proportion of the fund derived from sale of the property which was applicable to the real estate. It was suggested at the argument that such a determination would show that a substantial part of the fund was derived from the sale of the personalty and that the wage claimants had a lien on this property which under the decree of sale they are entitled to enforce against its proceeds. It is clear, however, that under the law of Pennsylvania the wage claimants do not have a lien in the true sense but merely a priority in the distribution of the proceeds of a judicial sale, Wilkinson v. Patton, 162 Pa. 12, 29 A. 293; Mettfett v. Mohn, 171 Pa. 395, 33 A. 367; In re Curran’s Restaurant & Baking Co., D.C., 11 F.Supp. 8, and then only if notice in writing of their claims is given before the sale to the officers making the same, 43 P.S.Pa. § 222. So far as appears no such notice was here given. It follows that even if a part of the fund before the court was derived from the sale of the personalty the wage claimants would not be entitled to distribution out of it ahead of the commonwealth of Pennsylvania, which has a lien on tire entire property of the debtor, or the mortgagee, which has a lien on substantially all of the property, both real and personal, since it constituted an industrial plant and was, therefore, real estate subject to the lien of the mortgage under Pennsylvania law. Titus v. Poland Coal Co., 275 Pa. 431, 119 A. 540; Com. Trust Co. of Pittsburgh v. Harkins, 312 Pa. 402, 167 A. 278. Consequently, even upon the theory that because of an admixture of funds derived from the sale of real and personal property the local tax claims should be held to have lost their liens, the balance of the mixed fund would still he distributable to the commonwealth and to the mortgagee. It follows that the action of the court below in refusing to award any part of the fund to the wage claimants was right. The appeals of the United States of America (No. 6307) and of Nelson Robertson and others (No. 6310) are dismissed. The appeal of Miners Savings Bank of Pittston, Pa., (No. 6302) is sustained, the decree appealed from is reversed to the extent indicated in this opinion, and the case is remanded to the court below, with instructions to direct the restatement of the trustees’ account and to take further proceeding thereupon not inconsistent herewith. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_appel1_1_4	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant. WISCONSIN WINNEBAGO BUSINESS COMMITTEE, Plaintiff-Appellee, Cross-Appellant, v. John P. KOBERSTEIN & Ho-Chunk Management Corporation, Defendants-Appellants, Cross-Appellees. Nos. 84-1768, 84-1863. United States Court of Appeals, Seventh Circuit. Argued Jan. 29, 1985. Decided May 29, 1985. Douglas B.L. Endreson, Sonosky, Chambers, Sachse & Guido, Washington, D.C., for Wis. Winnebago Business. John P. Koberstein, Madison, Wis., pro se. Before BAUER, COFFEY, and FLAUM, Circuit Judges. COFFEY, Circuit Judge. The defendants, John P. Koberstein and the Ho-Chunk Management Corporation, appeal the determination of the district court that its Bingo Management Agreement with the Wisconsin Winnebago Business Committee is null and void under 25 U.S.C. § 81. We affirm. I. On July 9, 1983, the Wisconsin Winnebago Business Committee (“Business Committee”), the governing body of the federally recognized Wisconsin Winnebago Tribe (“Tribe”), hired Koberstein, the defendant, as its tribal attorney. At Koberstein’s suggestion, the Tribe entered into a Bingo Management Agreement (“Agreement”) with the co-defendant, the Ho-Chunk Management Corporation (“Ho-Chunk”), providing that Ho-Chunk would construct and manage a tribal bingo hall located near Lake Delton, Wisconsin. Koberstein is the president of the Ho-Chunk Management Corporation. Under the terms of the Agreement, Ho-Chunk was to receive $27,-000 for preparing a proposal to be presented to the federal Department of Housing and Urban Development for federal funds and for supervising the construction of the hall. Ho-Chunk also was engaged under the terms of the contract for a five-year period “commencing the first day of operation of the Bingo Hall, to assist the [Business Committee] in obtaining financing, construct, improve, develope [sic], manage, operate and maintain the Property as a facility for the conduct of bingo games____” The Agreement granted Ho-Chunk the exclusive right to “operate and maintain the Property” as a tribal bingo hall and to control “all business and affairs in connection with the operation, management and maintenance of the Property.” Furthermore, the Business Committee “specifically warranted] and represented] to [Ho-Chunk] that [the Business Committee] shall not act in any way whatsoever, either directly or indirectly, to cause this Management Agreement to be altered, amended, modified, canceled, terminated and/or attempt to assign or transfer this Management Agreement or any right to or interest in said Agreement. Further, [the Business Committee] warranted] and represented] that it shall take all actions necessary to ensure that the Management Agreement shall remain in good standing at all times.” The Agreement recited a legal description of the Property, located on tribal trust land, and allowed Ho-Chunk to record the Agreement “in any Public Record.” Furthermore, the Agreement provided that the Business Committee “shall not act in any way whatsoever, either directly or indirectly to cause any party to become an encumbrancer of the Property subject to this Agreement without the prior written consent of [Ho-Chunk].” In return for providing management services, Ho-Chunk was to receive “25 percent of net operating profits for each fiscal year resulting from and in connection with any business activities upon the Property.” On August 23,1983, Ho-Chunk submitted the Agreement and the Wisconsin Winnebago Business Committee resolution adopting the Agreement to the Bureau of Indian Affairs (“BIA”) for approval under 25 U.S.C. § 81. 25 U.S.C. § 81 provides in relevant part: “No agreement shall be made by any person with any tribe of Indians, or individual Indians not citizens of the United States, for the payment or delivery of any money or other thing of value, in present or in prospective, or for the granting or procuring any privilege to him, or any other person in consideration of services for said Indians relative to their lands, or to any claims growing out of, or in reference to, annuities, installments, or other monies, claims, demands, or thing, under laws or treaties with the United States, or official acts of any officers thereof, or in any way connected with or due from the United States, unless such contract or agreement be executed and approved as follows: * * * * * * “(2) It shall bear the approval of the Secretary of the Interior and the Commissioner of Indian Affairs endorsed upon it. Sic * * * * * “All contracts or agreements made in violation of this section shall be null and void.” Sometime during the second week of November, 1983, the Minnesota Area Office of the BIA requested an opinion from the Department of Interior’s Office of the Field Solicitor concerning the Agreement. On November 16, 1983, the Field Solicitor’s Office advised the BIA that the Department of the Interior’s approval was required only of contracts in which a “tribe purports to pay ‘money or other thing of value’ when such money or thing derives from amounts due to the tribe from the United States or is trust property or proceeds from trust property.” Although the Field Solicitor found “[t]here is no doubt that the Agreement is related to lands of the Wisconsin Winnebago Tribe,” section 81 did not apply because the funds Ho-Chunk was to receive were not “trust funds or proceeds of trust property.” Ho-Chunk was not formally notified of this decision until February 28, 1984. Sometime during the late summer or early fall of 1983, the Ho-Chunk Management Corporation directed that the construction of the Bingo Hall proceed even though it had not received a response from the BIA. On November 12, 1983, the same day that the Bingo Hall opened, the Business Committee voted to rescind the Agreement with Ho-Chunk. Some two weeks thereafter, on November 27, 1983, the Business Committee enacted, an ordinance regulating bingo on tribal lands providing inter alia “No person shall engage in the operation of bingo games on Wisconsin Winnebago trust lands, unless duly licensed or permitted to do so by the Wisconsin Winnebago Tribe in accordance with the terms of this ordinance.” Even though the Bingo Management Agreement had been rescinded, Ho-Chunk, which had not applied to the Winnebago tribe for a bingo license, continued to operate the bingo enterprise. On December 8, 1983, the Business Committee filed suit in the United States District Court for the Western District of Wisconsin to enjoin Ho-Chunk from operating bingo games on tribal trust lands on the Winnebago Reservation. The Business Committee alleged that the Agreement between Ho-Chunk and the Business Committee was void under 25 U.S.C. § 81, and alternatively that Ho-Chunk’s bingo operation violated the Tribe’s Bingo Ordinance. Subsequently, the Business Committee moved for summary judgment. On April 2, 1984, the district court granted summary judgment holding that the Agreement was null and void since it had not been approved by the Department of Interior as required by 25 U.S.C. § 81. Because the court “believe[d] that equity demands that defendants be given a period of time to cure the defect which mandated summary judgment against them or to resolve its responsibilities in an orderly fashion,” it declared that the Agreement would become null and void effective June 30, 1984. Additionally, the district court found that the bingo ordinance “left the WWBC in the position to exercise absolute discretion as to whether Ho-Chunk would be allowed to operate a bingo game. There is little doubt, under the facts in this case, that the WWBC would exercise its discretion against Ho-Chunk.” The Court concluded that it could “see no reason why the bingo ordinance adopted by the tribe, respecting the manner of operation, and to the extent not specifically in conflict with contract provisions, cannot be given immediate implementation. However, the requirement that Ho-Chunk be licensed is directly contrary to the powers granted Ho-Chunk in the contract.” The parties raise three issues on appeal: (1) whether the Bingo Management Agreement must be submitted for approval to the Secretary of the Interior pursuant to 25 U.S.C. § 81; (2) whether the Ho-Chunk Management Corporation relied on the Field Solicitor’s opinion that § 81 did not apply to the Bingo Management Agreement; and (3) whether the Bingo Management Agreement could bar application of the tribal licensing ordinance to Ho-Chunk. II. A. Applicability of Section 81. Ho-Chunk argues that the question of whether a contract is “relative to Indian lands” is irrelevant when determining whether section 81 requires Interior Department approval of a contract with Indian tribes. According to Ho-Chunk, the only relevant inquiry is whether “the tribe purports to pay ‘money or other thing of value’ when such money or thing derives from amounts due to the tribe from the United States or is trust property or proceeds from trust property.” Section 81 was enacted in 1872 “to protect the Indians from improvident and unconscionable contracts____” In re Sanborn, 148 U.S. 222, 227, 13 S.Ct. 577, 579, 37 L.Ed. 429 (1893). No federal cases have been presented to us nor have we been able to discover any federal case law that comprehensively analyzes the scope of coverage of section 81. Moreover the Supreme Court cases that do address the scope of section 81 in a cursory fashion do not present a detailed explanation of why the statute applied and are quite ancient. In Green v. Menominee Tribe, 233 U.S. 558, 34 S.Ct. 706, 58 L.Ed. 1093 (1914), the Supreme Court held that an oral contract between an Indian tribe and a trader for supplies to be used in logging Indian land was “so clearly within the text of the statute that it suffices to direct attention to such text without going further. But if it be conceded for argument’s sake that there is ambiguity involved in determining from the text whether the statute is applicable, we are of the opinion that the case made is so within the spirit of the statute and so exemplifies the wrong which it was intended to prevent and the evils which it was intended to remedy as to disspell any doubt otherwise engendered.” Id. at 569, 34 S.Ct. at 710. In Pueblo of Santa Rosa v. Fall, 273 U.S. 315, 47 S.Ct. 361, 71 L.Ed. 658 (1927), the Supreme Court held that a contract by a tribal chief agreeing that an attorney should represent the tribe in its claim “to an enormous tract of country” for a fee of one-half interest in the tract was “void by force of § 2103 [now § 81] and § 2116 [now § 177] of Title 25....” Id. at 320, 47 S.Ct. at 362. Ho-Chunk distinguishes these decisions by arguing that they were rendered at a time when Indians were more in need of the protection of the statutes and at a time prior to the present federal policy favoring tribal self-determination. Ho-Chunk urges us to consider intervening acts of Congress and to consult present federal Indian policy for guidance in construing section 81. According to Ho-Chunk, present federal Indian policy strongly promotes tribal self-determination and tribal capacity to deal effectively in the business world. Furthermore, the defendant argues that Congress has taken explicit action where it believed necessary to protect Indian property interests. Ho-Chunk concludes that requiring Interior Department approval of contracts “relative to their land” would “create a situation in which both the tribal entity and any outside contractor dealing with the tribe would operate in an atmosphere- of complete uncertainty.” Initially, we note that the defendants have failed to cite a case holding that when construing Indian statutes, the courts are “guided” by intervening acts of Congress and current federal Indian policy. The rule enunciated by the Supreme Court is that, “[u]ntil Congress repeals or amends the Indian ... statutes ... we must give them ‘a sweep as broad as their language’ and interpret them in light of the Congress that enacted them.” Central Machinery Co. v. Arizona State Tax Com’n., 448 U.S. 160, 166, 100 S.Ct. 2592, 2596, 65 L.Ed.2d 684 (1980) (citations omitted) (emphasis added) (Indian Trader Statutes). “ ‘Indian law’ draws principally upon the treaty drawn and executed by the Executive Branch and legislation passed by Congress. These instruments, which beyond their actual text form the backdrop for the intricate web of judicially made Indian law, cannot be interpreted in isolation but must be read in light of the common notions of the day and the assumptions of those who drafted them.” Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 206, 98 S.Ct. 1011, 1019, 55 L.Ed.2d 209 (1978) (jurisdiction of Indian tribal courts) (emphasis added). Our inquiry when determining the effect of intervening acts of Congress on Indian statutes is whether the Indian statute has been repealed by implication. See Morton v. Mancari, 417 U.S. 535, 546; 94 S.Ct. 2474, 2480, 41 L.Ed.2d 290 (1974) (effect of the Equal Employment Opportunities Act of 1972 on the Indian Reorganization Act of 1934); United States v. Crawford, 47 Fed. 561, 569 (1891) (section 81 impliedly repealed by statutes specifically dealing with the sale of Oklahoma). “Repeals by implication are not favored.” Mancari, 417 U.S. at 549, 94 S.Ct. at 2482. “In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.” Id. at 550. Absent a clear and manifest legislative intent to repeal a statute, apparently conflicting statutes must be read to give effect to each if such can be done by preserving their sense and purpose. Watt v. Alaska, 451 U.S. 259, 267, 101 S.Ct. 1673, 1678, 68 L.Ed.2d 80 (1981). If a later act covers the whole subject matter of an earlier act and embraces new provisions which plainly show that the later act was intended as a substitute for the earlier act, the later act will operate as a repeal of the earlier act. Crawford, 47 Fed. at 569. It is obvious from the broad language “relative to their lands” that Congress intended to cover almost all land transactions in Indian property. This literal reading of the statute is supported by the history of Federal regulation of Indian lands. Before independence, colonial legislatures safeguarded the Crown’s right to negotiate exclusively with the Indian tribes for the extinguishment of their aboriginal title by restraining private land purchases from the Indians and by requiring all acquisitions of Indian land to be licensed or approved in advance by the colonial authorities. F. Cohen, Handbook of Indian Law, 508 (1982 ed.). After the War of Independence, the Federal government continued the policy of restraining alienation of Indian land in order to avoid war with the Indian tribes. Id. at 508-09. Because of this longstanding policy of regulating all transactions in Indian land, we find no reason to disregard the plain language of the statute and hold that Congress intended to continue its policy of regulating all transactions in Indian land when it enacted § 81 in 1872. Indeed, Congress continues to regulate transactions in Indian land to insulate Indian lands from the full impact of market forces and to preserve the Indian land base for the furtherance of Indian values. Id. at 509. Specifically, Congress has passed a number of statutes requiring the Department of Interior’s approval of Indian land transactions, including leases, mineral agreements and mortgages. However, in arguing that § 81 has been impliedly repealed, Ho-Chunk does not contend that Congress has passed statutes subsequent to § 81 specifically regulating every conceivable form of transaction relative to Indian land. As we previously stated, the Supreme Court has held that Indian statutes must be construed in light of the Congress that enacted the statutes; holding that a particular statute has been repealed “by implication” is disfavored by our courts. Thus, a party seeking to make such a showing must demonstrate that the statute has been effectively amended or repealed by subsequent acts of Congress affecting the conduct covered by the statute’s original terms. Ho-Chunk has not presented any evidence that Congress has passed legislation affecting the broad coverage of 25 U.S.C. § 81 and its application to the facts of this case. Thus, because the later acts of Congress do not cover the entire subject matter of § 81, we are convinced the later acts of Congress pertaining to Indian land transactions did not impliedly repeal § 81. Because subsequent acts of Congress have not covered the whole subject matter of the “relative to their lands” provision of section 81, we hold that section 81 governs transactions relative to Indian land for which Congress has not passed a specific statute. Our second inquiry is whether the Bingo Management Agreement is an “agreement ... relative to [Indian] land.” The bingo facility, located near Lake Del-ton, Wisconsin is situated on tribal trust lands that have been proclaimed and designated by Congress as part of the Wisconsin Winnebago Indian Reservation. The Agreement granted Ho-Chunk the exclusive right to “operate and maintain the Property as a tribal bingo hall and to control “all business, management and maintenance of the Property.” Furthermore, Ho-Chunk was allowed to record the Agreement “in any Public Record” and the Business Committee was prohibited from “causpng] any party to become an encumbrancer of the Property subject to this Agreement without the prior written consent of [Ho-Chunk].” Because the Agreement gives Ho-Chunk the absolute right to control the operation of the bingo facility located on tribal trust lands and prohibits the exercise of the Business Committee’s right to encumber tribal trust property, we hold that the Bingo Management Agreement is an “agreement ... relative to [Indian] land,” as that term is used in 25 U.S.C. § 81. Cfi, Contracts for the Employment of Managers of Indian Tribal Enterprises, 61 Op. Solicitor, Dept, of Interior, No. M-36119 (Feb. 14, 1952) (contract to operate a tribal farming enterprise, including the cultivation of tribal lands, the development of livestock industries to utilize the crops raised by the enterprise, and the marketing of surplus crops is relative to Indian lands as that term is used in § 81). Our final inquiry is whether section 81 applies to the Bingo Management Agreement. As we held above, unless Congress has passed a statute specifically regulating the transaction in question, § 81 applies to Indian land transactions concerning their tribal trust property. Ho-Chunk has failed to produce, and our research has failed to reveal, a statute governing a management contract of the nature of the Bingo Management Agreement. Because in our research we have been able to discover no statute expressly regulating management contracts such as this agreement to manage a bingo facility located on tribal trust lands, we hold that it is the intent of Congress that § 81 govern this transaction. We therefore affirm the judgment of the district court finding the contract null and void as of June 30, 1984 for failure to gain the approval of the Department of the Interior. B. Estoppel. Ho-Chunk argues that it justifiably relied on the representations of the Depart- ment of Interior’s Field Solicitor Office that approval of the Bingo Management Agreement by the Department of the Interior was not required under section 81 and that “it is grossly inequitable for the district court to now order that the Department must approve the contract after the WWBC has since taken a position in opposition to the contract.” To establish an estoppel, “the party claiming the estoppel must have relied on its adversary's conduct ‘in such a manner as to change his position for the worse’ and that reliance must have been reasonable in that the party claiming the estoppel did not know nor should it have known that its adversary’s conduct was misleading.” Heckler v. Community Health Services of Crawford, — U.S. -, 104 S.Ct. 2218, 2223, 81 L.Ed.2d 42 (1984). The party claiming the estoppel must demonstrate that its reliance caused it to lose “[a] legal right, either vested or contingent, or suffer [an] adverse change in its status.” Id. 104 S.Ct. at 2225. In Community Health Services, the Supreme Court declined to decide whether “estoppel may not in any circumstance run against the Government” because the private party litigant was unable to demonstrate the presence of the judicial element of an estoppel. Id., 104 S.Ct. at 2224-25. In the case at hand, we need not decide whether the Government can under any circumstances be estopped because examination of the facts presented to the district court reveals that the traditional elements of an estoppel are not present. “To analyze the nature of a private party’s detrimental change in position, we must identify the manner in which reliance on the Government’s misconduct has caused the private citizen to change his position for the worse.” Id. at 2224-25. The Field Solicitor’s letter to the Area Director of the Minnesota Area Office of BIA stating that section 81 did not apply to the Bingo Management Agreement was dated November 16, 1983, four days after the Bingo Hall opened for business. Because the government did not act before the Bingo Hall was opened, Ho-Chunk cannot assert that it relied on-the Field Solicitor’s opinion when it opened the Bingo Hall. To the contrary, Ho-Chunk relied on its unilateral expectation that the contract would be approved by the Department of Interior. Furthermore, Ho-Chunk fails to specify any action it took after learning of the Field Solicitor’s Opinion in reliance on that opinion. Because Ho-Chunk fails to establish the traditional elements of an estoppel —specifically, because Ho-Chunk fails to set forth any action taken by Ho-Chunk in reliance on the government’s conduct to Ho-Chunk’s detriment — we hold that the government is not estopped by the Field Solicitor’s opinion that § 81 did not apply to the Bingo Management Agreement. C. Bingo Ordinance. The last issue presented for our consideration is whether the Bingo Ordinance was an exercise of the tribal governing body’s authority to regulate activities in the interest of the tribe’s health and welfare thus overriding any rights granted to Ho-Chunk under the contract. The district court found that the Bingo Ordinance “left the WWBC in the position to exercise absolute discretion as to whether Ho-Chunk would be allowed to operate a bingo game. There is little doubt, under the facts in this case, that the WWBC would exercise its discretion against Ho-Chunk.” Thus, the specific harm to the Ho-Chunk Management Corporation advanced by the defendants was the possibility that the Business Committee would deprive it of its contract rights by refusing to grant Ho-Chunk a bingo license. “Federal courts lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies.” Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 104 S.Ct. 373, 374, 78 L.Ed.2d 58 (1983). “[Mjootness has two aspects: ‘when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.’ ” United States Parole Com’n. v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980); Davis v. Ball Memorial Hosp. Ass’n., Inc., 753 F.2d 1410, 1416 (7th Cir.1985). Mootness has been defined as “the doctrine of standing set in a timeframe: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence.” Geraghty, 445 U.S. at 397, 100 S.Ct. at 1209. At the initiation of this litigation, Ho-Chunk’s “personal interest” in the validity of the bingo ordinance was grounded upon its fear that the Business Committee would deprive it of its rights under the Bingo Management Agreement by refusing to grant it a bingo license. We affirm the district court’s judgment that the Bingo Management Agreement was null and void as of June 30, 1984 because it had not been approved by the Department of Interior as required by 28 U.S.C. § 81. Ho-Chunk failed to obtain contract rights because of its failure to receive approval of the Bingo Management Agreement from the Department of Interior. Because Ho-Chunk’s Bingo Management Agreement with the Business Committee is null and void, it may no longer argue that the Business Committee may possibly deprive it of its rights under the Agreement by refusing to grant it a bingo license. Thus, Ho-Chunk, whose contract is null and void and without legal effect, fails to assert a personal interest in the question of whether the Tribe’s Bingo Ordinance would override previously existing contract rights. Since Ho-Chunk’s “personal interest” no longer exists, i.e., the fear that the Business Committee would deprive it of its contract rights by refusing to grant it a bingo license, the question of whether the Bingo Ordinance could override the rights granted to Ho-Chunk under the Bingo Management Agreement is moot. We AFFIRM the judgment of the district court. . For convenience, the defendants will be referred to collectively as “Ho-Chunk." . "The Office of the Solicitor performs all of the legal work of the Department [of the Interior] with the exception of that performed by the Office of Hearings and Appeals and the Office of Congressional and Legislative Affairs____ The Division of Indian Affairs [of the Office of the Solicitor] is responsible for legal matters involving the programs of the Assistant Secretary — Indian Affairs and the Bureau of Indian Affairs.” The United States Government Manual, Office of the Federal Register (1984-85). . "‘Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory1____ The sovereignty retained by tribes includes 'the power of regulating their internal and social relations.' ” New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 103 S.Ct. 2378, 2385, 76 L.Ed.2d 611 (1983) quoting White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980) and United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886). The Wisconsin Winnebago Tribe rather than the State of Wisconsin regulates bingo games conducted by the tribe on the Winnebago reservation because Wisconsin's bingo law, a civil regulation, is inapplicable to games conducted on Indian reservations. Oneida Tribe of Indians of Wis. v. State of Wis., 518 F.Supp. 712 (W.D.Wis.1981). See also Barona Group v. Duffy, 694 F.2d 1185 (9th Cir.1982) (California law regulating bingo games inapplicable to bingo games conducted on the Barona Tribe's reservation because the state law was civil and regulatory rather than criminal and prohibitive in nature); Seminole Tribe v. Butterworth, 658 F.2d 310 (5th Cir.1981) (Florida law regulating bingo games inapplicable to bingo games conducted on the Seminole Tribe's reservation because the state law was civil and regulatory rather than criminal and prohibitive in nature.) . On April 10, 1984, Ho-Chunk resubmitted the Agreement to the BIA for approval. The Director of the BIA's Minnesota Area Office found that tribal control over trust lands, tribal self-government and tribal economic development were jeopardized because the Agreement gave inequitable financial advantages and excessive control over the bingo operations to the defendants. Furthermore, the Area Director determined that “by his failure to disclose the [potential conflict of interest between his duties as tribal attorney and his position as president of Ho-Chunk] prior to the execution of the Agreement, ... Mr. Koberstein took unfair advantage of the Tribe at a time when it was most susceptible to his influence.” The Area Director of the BIA Minnesota Area Office disapproved the Agreement. The Area Director's disapproval of the Agreement was affirmed by the Interior Department’s Deputy Assistant Secretary-Indian Affairs on September 11, 1984. . See, e.g., 25 U.S.C. § 311 (public highways); §§ 312-318 (railroad, telegraph, telephone line rights-of-way, and town site stations); § 319 (telephone and telegraph rights-of-way); § 320 (railway reservoirs or materials); § 321 (pipeline rights-of-way); § 323 (rights-of-way for any purpose); §§ 396a-396g (leases for oil and gas mining and permits to prospect); § 399 (leases for mining purposes); § 407 (sale of dead and fallen timber); § 415 (leases of tribal land for public, religious, educational, recreational, residential or business purposes); §§ 416-416j (leases on Sand Xavier and Salt River Reservations); §§ 641-646 (authorizing Hopi Tribal Council to mortgage Hopi land for industrial park); 25 U.S.C. §§ 2101-2108 (mineral agreements). . On November 18, 1983, a bill was introduced in the United States House of Representatives which would regulate bingo management agreements. The bill provided that, "subject to the approval of the Secretary, a tribe may enter into a management contract for the operation and management of a tribal gambling enterprise for a reasonable fee which shall not be based upon any percentage of the gross or net revenue from operation____" H.R. 4566, 98th Cong., 1st Sess. (1983). The bill died in committee but has been reintroduced. H.R. 1920, 99th Cong., 1st Sess. (1985); S. 902, 99th Cong., 1st Sess. (1985). . In an affidavit dated January 23, 1984, Kurt V. Blue Dog, an attorney for the defendants, stated "that in the course of my representation of these parties, I inquired by telephone with the Field Solicitor for the Department of Interior for this area, Mr. Mark Anderson, as to why the Department of Interior had not taken formal action on the Ho-Chunk Management Contract with the Wisconsin Winnebago Business Committee signed and enacted on July 9, 1983. Mr. Anderson, on January 20, 1984, informed me in no uncertain terms that Secretarial approval under 25 U.S.C. § 81 or otherwise, was not required in this instance, and that he had so informed the Bureau of Indian Affairs." Although Ho-Chunk may have learned of the Field Solicitor’s opinion that section 81 did not apply to the Bingo Management Agreement on January 20, 1984 rather than November 16, 1983, this would not change our analysis because in either case, Ho-Chunk learned of the Field Solicitor’s opinion after it opened the Bingo Hall. Because Ho-Chunk learned of the government's position on the applicability of § 81 after it opened the Bingo Hall, it cannot argue that it relied on the Field Solicitor’s opinion before it opened the Bingo Hall. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant? A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities B. private attorney or law firm C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations D. school - for profit private educational enterprise (including business and trade schools) E. housing, car, or durable goods rental or lease F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc. G. information processing H. consulting I. security and/or maintenance service J. other service (including accounting) K. other (including a business pension fund) L. unclear 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. DU BOIS v. ZIMMERMAN et al. Circuit Court of Appeals, Third Circuit. September 20, 1928. No. 3802. James B. Avis, of Woodbury, N. J., for appellant. Frank E. Paige, of Philadelphia, Pa., for appellees. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. WOOLLEY, Circuit Judge. Josiah E. Du Bois engaged by written contract to sell and convey unto Alice G. Zimmerman and Ida Gleim a certain property situate in the city of Woodbury and state of New Jersey at an agreed valuation in consideration of one dollar and more particularly in consideration of the sale and conveyance by them unto him of certain properties in Florida at an agreed valuation, the women purchasers of the Woodbury property to give Du Bois a mortgage for a named sum secured thereby and free the Florida properties of existing liens and create against certain of them a new mortgage for a stated sum, failure on their part to create such mortgage or to perform any other term of the agreement worked its termination “at the option” of Du Bois. Disagreements followed, Du Bois rescinded the contract and Zimmerman and Gleim filed against Du Bois a bill for specific performance on which, after hearing, the District Court entered a decree that Du Bois specifically perform his part of the contract by conveying the Woodbury property unto the ven-dees. Du Bois appealed and has raised three questions: The first, whether he was induced to execute the written agreement by fraudulent representations as to the value of the Florida properties, we resolve against him without reciting the supporting testimony; the second and third, whether the written contract can be modified or changed by antecedent, concurrent or subsequent oral agreements between the parties and proved by parol evidence and whether Du Bois had a right to rescind the contract by reason of Zimmerman’s and Glenn’s failure to create the new mortgage against the Florida properties and do other things required by its terms. On the questions as framed the parties argued familiar law that all agreements reached in negotiations are presumed to be embodied in the writing into which they have subsequently entered and that understandings not embodied in the writing cannot be added to the agreement by parol evidence although admittedly the parties may, by mutual action and for sufficient consideration, modify its terms as often as they desire. Producers Coke Co. v. Hoover, 268 Pa. 104, 110 A. 733. But after a critical study of this record we are satisfied there are no such questions of law in the ease because the matters claimed as breaches of the contract or as improperly proved by parol had nothing to do with the main terms of the agreement affecting the trade. It had to do with preparing papers and creating the mortgage. These under the agreement were undertakings by Zimmerman and Gleim, but evidently they convinced the trial court and certainly they have convinced this court that Du Bois, who was a real estate broker, had, whether or not he was aware of the legal effeet, persuaded them to let him draw the papers and otherwise perform certain of their parts of the written contract, for which he charged them a fee of $270. Therefore we decide this appeal against Du Bois, not on the existence and admission in evidence of contemporaneous oral agreements, but on the ground that subsequently to the written agreement he persuaded the two women not to perform certain of their undertakings by promising that he would attend to them — for a consideration. In this way, unconsciously perhaps, he induced them to breach their contract. Clearly he cannot now take advantage of his own technical wrongdoing. In other words, he cannot take advantage of breaches by other parties which he himself brought about. The deeree for specific performance 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_geniss	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". UNITED STATES of America, Plaintiff-Appellee, v. George PHILLIPS, Defendant-Appellant. No. 78-5114. United States Court of Appeals, Fifth Circuit. Aug. 9, 1979. Lester Makofka, Jacksonville, Fla. (Court-appointed), for defendant-appellant. Gary L. Betz, U. S. Atty., Loretta Anderson, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee. Before GEWIN, COLEMAN and GOLDBERG, Circuit Judges. GOLDBERG, Circuit Judge. George Phillips drives a cement truck for a living. In July, 1972, he was hospitalized because of a condition called atriofibrillation — a rapid, irregular heart beat — accompanied by heart failure and lung congestion. These afflictions forced him to stop working for some months. In October of that year he applied for social security disability benefits. In March, 1973, the Social Security Administration (SSA) awarded him disability benefits, retroactive to January, 1973. In the meantime, Phillips had begun working again, although not at the pace he maintained before his illness; indeed during several weeks he did not work at all. But until March, 1974, about eighteen months after he resumed work, he did not tell the SSA that he was again working. In October, 1974, his benefits were terminated. Three years later he was charged with a misdemeanor for having failed to notify the SSA about his employment between November, 1972 and March, 1974. He was convicted by a jury and he now appeals. We reverse. Phillips was convicted under 42 U.S.C. § 408(d), which provides: Whoever . having knowledge of the occurrence of any event affecting (1) his initial or continued right to any payment under this subchapter . . •. conceals or fails to disclose such event with an intent fraudulently to secure payment either in a greater amount than is due or when no payment is authorized . shall be guilty of a misdemean- or . Phillips does not deny that his employment was substantial and prolonged enough to affect his right to disability payments. Of course he does not deny that he knew he was employed; and he admits that he first told the Social Security Administration about his employment in March of 1974, even though he had been working, on and off, since November 1972. The only remaining question under § 408(d) is whether Phillips had “an intent fraudulently to secure payment.” We hold that the government did not adduce enough evidence that Phillips had such a fraudulent intent. “Fraudulent intent” under § 408(d) has never been authoritatively defined. Indeed § 408(d) is apparently the basis for few prosecutions and seems seldom to have been interpreted. In this case, however, the trial judge, the prosecution, and the defense all seem to agree on what constitutes fraudulent intent, and we believe their interpretation of the statute is correct. First, the government must show that the defendant knew that he was legally obligated to disclose certain information. Second, the government must prove that the defendant knew that by withholding the information he would receive greater payments than he was entitled to. In other words, a defendant is not guilty under § 408(d) unless he is aware both that he is deceiving the government and that the government will pay out more money because of his deception. Cf. Restatement of Torts, § 525 (1939) (to be guilty of deceit, defendant must have intended that plaintiff rely on defendant’s misrepresentation). The second element is apparent on the face of the statute; Congress required an intent “to secure payment . . . in a greater amount than is due,” and a defendant cannot intend a consequence — here, receiving a greater amount than is due — unless he knows, or can reasonably be charged with knowing, that his action would have that consequence. The first element is almost equally apparent. Congress required a certain “intent,” choosing not to punish careless failures to disclose; the nondisclosure must be deliberate. Congress also required an “intent fraudulently to secure payment . . . in a greater amount than is due” (emphasis added). Congress must, therefore, have wanted to exempt recipients who deliberately failed to disclose certain information because they intended to increase their payments, but whose intention was nonetheless innocent. A recipient who thought he was entitled not to disclose would fall in this category. Finally, whatever else it involves, fraud is a matter of deliberate deception. But if a defendant does not know that the government expects him to reveal certain information, then he does not know that the government will be misled by not receiving it; so if he has deceived the government, he has not done so deliberately, and he cannot be said to have acted with a fraudulent intent. Phillips’s application for disability benefits specified that he was to notify the Social Security Administration if he became able to work or returned to work. Phillips, who has only a sixth-grade education, signed the application, but he testified that he did not read it; it was filled out by a Social Security representative to whom he supplied the necessary information. That representative testified that she could not remember Phillips specifically but that as a general practice she asked applicants, among other questions, whether they agreed to notify the SSA if they returned to. work. Phillips testified that he did not remember that question. On the basis of his October, 1972, application and some medical reports, Phillips was awarded disability benefits in March, 1973, retroactive to January, 1973. In January, 1974, the SSA sent Phillips a letter and a questionnaire, asking for the names of doctors he had consulted and asking if he had done any work. This was part of a routine reconsideration the SSA undertook because it thought Phillips had the kind of condition that was likely to improve. On February 7 the SSA, having received no reply, sent another letter. When it still did not receive a reply, the SSA sent a representative, Michael J. Wolpert, to call on Phillips at his home. Agent Wolpert testified that Phillips told him he was working eight hours a day, two to five days a week, and that he did not remember exactly when he had begun working. Wolpert also reported that Phillips was earning more than $200 a month. Wolpert told Phillips that his payments would probably be terminated, but testified that had he been asked, which he was not, he would have advised Phillips to cash the checks he was receiving and not to return them, “because as far as I knew he was not found . . rehabilitated, that or found un-disabled. As far as I knew at that point he was still disabled.” Agent Wolpert was quite emphatic on this point. See R.Vol. 4 at 65-66. As a result of Wolpert’s interview report, the SSA inquired of Phillips’s employer and learned that Phillips had been working irregularly since October, 1972. In October of 1974, the SSA decided that its original decision to award Phillips disability benefits was mistaken and it terminated his benefits. For the next two years the SSA seems to have had no contact with Phillips. Then in October, 1976, another SSA representative, Ms. Eloise Mobley, interviewed Phillips at his home. Agent Mobley’s testimony was the heart of the government’s effort to show that Phillips acted fraudulently. Mobley’s testimony is questionable for several reasons, but these need not detain us. She testified: He stated that he had been told at the initial interview that if he should return to work or if his condition improved, that he was supposed to report this to the Administration. He felt the reason why he did not report his return to work was because he felt that the check he was going to receive on disability, that he was receiving, was rightfully his, regardless of whether he worked or not. Q Did Mr. Phillips indicate during the course of his interview that he understood the meaning of disability? A Yes, he did. Q Did he give a reason as to why he did not report the work activity to the Social Security Administration? A Well, his reason was that, you know, he had worked and paid into the Social Security fund and disability had already been established for him so, you know, whether he worked or not, these checks were rightfully his. Q Did you ask Mr. Phillips if he intended to refund the overpayment? A Yes, I did ask him. Q And what, how did he respond? A Without hesitation he said no. Q Did you ask Mr. Phillips if he reported that he had worked to the Social Security Administration? A Yes, I did. Q And what did he answer? A He said no. R.Vol. 4 at 96-97. This evidence, taken together, can support a jury’s conclusion that Phillips knew he had an obligation to report his resumed employment. The jury might have decided to discount Phillips’s testimony on this point in the face of the application, the testimony of the agent who filled it out, and Agent Mobley’s directly contradictory recollection. But the evidence of the other element of fraudulent intent — that Phillips knew he was not entitled to the payments he was receiving — is far too threadbare. The government stresses Agent Mobley’s testimony that Phillips “indicated” that he “understood the meaning of disability,” but this alone cannot suffice. In the first place, this testimony may be inadmissible; arguably, it “amount[ed] to little more than choosing up sides” on an ultimate issue of fact, Fed.R.Evid. 701, Advisory Comm. Note, precisely what the Federal Evidence Rules’ limitations on lay opinion are designed to exclude. Whether or not it was inadmissible, however, Agent Mobley’s observation, by itself, is insufficient to support a finding that Phillips acted with fraudulent intent. Agent Mobley did not reveal what Phillips had said, or done, to convince her that he understood “the meaning of disability.” She did not quote, paraphrase, or even objectively summarize any statements that might have helped the jury decide whether Phillips knew that he was not entitled to the payments. Consequently, her testimony gave the jury no basis for making any independent judgment about Phillips’s state of mind. With only Agent Mobley’s unsupported lay opinion before it, a reasonable jury would be left with some reasonable doubt, see United States v. Buckley, 586 F.2d 498, 504 (5th Cir. 1978), quoting United States v. Stephenson, 474 F.2d 1353, 1355 (5th Cir. 1973), that Phillips knew he was defrauding the government. Oddly, the government also makes much of Agent Mobley’s testimony that Phillips “stated that, you know, that they [the checks] were rightfully his since he had paid into the fund, you know, over such a long period of time.” R.Vol. 4 at 108. See also R.Vol. 4 at 96. On its face, Phillips’s assertion that he was entitled to the benefits is exculpatory; it tends to show that he did not think he was doing wrong. Indeed, the government’s position is almost perverse; simply by saying that the checks were rightfully his, Phillips — claims the government — revealed that he thought the checks were not rightfully his. Of course, Phillips’s statement may be evidence that he believed himself morally entitled to the benefits no matter what the law provided; that in turn may be evidence that Phillips ignored legal requirements in an effort to keep receiving the benefits. But this inference is attenuated, and scarcely unavoidable. Phillips may instead have been saying that since he had once worked, he did not consider his payments a handout and therefore had no qualms about accepting the money, which he thought the government willingly disbursed. He may have been suggesting that since he had no moral doubts about accepting the money, he was not alerted to the possible legal problems. Cf. Screws v. United States, 325 U.S. 91, 104-05, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) (plurality opinion) (defendant who intentionally deprives a person of clear constitutional right cannot claim lack of fair notice that his act was criminal (prosecution under 18 U.S.C. § 242)). Since the jury did not itself see and hear Phillips make the statement, and since Agent Mobley did not specify the context and the circumstances in which it was made, the jury would have had no basis whatever for placing the most in-culpatory construction on Phillips’s remark. Of course, the government does not have to prove Phillips’s intent from Phillips’s statements alone. Two other avenues are open in a case like this. The government might argue that a jury can conclude, from its common sense knowledge, that every disability recipient who applies for benefits on his own initiative understands enough to know that if he returns to work his benefits will be reduced or terminated. If Phillips had returned to his previous job at the same wages and hours, this argument would be more persuasive. But after his illness Phillips worked irregularly. In some weeks he did earn almost as much as he had before he became ill, but this occurred infrequently. Phillips’s supervisor at work testified that Phillips’s illness impaired his ability to work and forced him to work fewer hours. In some weeks Phillips was wholly unable to work. His doctors treated him frequently and at one point he had to be hospitalized again. He said he feared that at any time he might again become unable to work for long periods. Some might argue that in a more compassionate society, Phillips’s condition would entitle him to disability benefits, and that Phillips’s believing that ours is such a society does not make him a criminal. Whatever the merits of that view, the basic issue is the extent to which we can expect citizens to understand the internal logic of complex government programs. To some degree, of course, we must act on the assumption that they do understand and hold them responsible if they do not. But here we deal with a criminal prosecution; with a defendant who has a sixth-grade education; and with a case of disability that was at least somewhat ambiguous. In any event, Agent Wolpert’s testimony vanquishes any suggestion that Phillips was so healthy that he must have known he was ineligible for payments. Wolpert testified that even after being told how much work Phillips was doing he would still have advised Phillips to continue cashing the checks he received and not to return them. From this we must infer that Wolpert, a trained SSA employee, did not think that Phillips was clearly ineligible for disability benefits; and from that we must conclude that a reasonable jury would have had some reasonable doubt that Phillips knew he was not entitled to the benefits. See United States v. Critzer, 498 F.2d 1160, 1162 (4th Cir. 1974). Finally, the government might have been able to establish Phillips’s fraudulent intent if his behavior had been so devious, and so uncharacteristic of an innocent person, that the jury could infer that Phillips must have known he was doing wrong. See, e. g., United States v. Callahan, 588 F.2d 1078, 1080-81, 1083 (5th Cir. 1979) (alleged tax evader kept elaborate fictitious records); United States v. Schafer, 580 F.2d 774, 782 (5th Cir.), cert. denied, 439 U.S. 970, 99 S.Ct. 463, 58 L.Ed.2d 430 (1978) (alleged tax evader avoided keeping records, and concealed information from, and made false statements to, government agents). But Phillips devised no elaborate schemes; he had no such craft. Agent Wolpert noted on his report that in their interview Phillips was very forthcoming, and in fact Phillips provided Wolpert with accurate information about his work. Agent Mobley also found Phillips cooperative, and she too was given truthful answers. The government has not suggested that Philips ever made a false statement to the SSA, either verbally or in writing. He never attempted to mislead the SSA about who his employer was or how much he was working. Indeed on forms he filled out at the hospital where he was treated, Phillips disclosed the details about his employment. Phillips’s actions betray no sign of an effort to cheat the government. Essentially, then, the government’s case that Phillips knew he was doing wrong rests on his failure to answer the letters sent to him. For many purposes, of course, the government is entitled to assume that citizens will read mail sent to them and be aware of its contents. But in a criminal prosecution where the government must show fraudulent intent, those of us who are comfortable with the forms and documents and often unlovely prose of the bureaucracy must not rush to assume that everyone is equally at ease with them. When Phillips dealt in the medium to which he was plainly more accustomed — verbal, face-to-face communications with the government agents — he was indisputably honest. Possibly, he ignored the SSA’s letters because he felt slightly overwhelmed by written papers, or because he simply did not understand quite what to do with them. The government, which of course had the burden of proof, did not show otherwise; certainly it did not show that his ignoring the letters was part of a crude effort to defraud. Indeed Phillips may have been guilty of nothing worse than insisting that the government know its place. His best precedent may be the case of Miss Emily Grier-son, the elderly, unhappy heroine of an early Faulkner story. Miss Emily was forgiven her taxes by an erstwhile mayor of the town of Jefferson named Colonel Sartoris. “Not that Miss Emily would have accepted charity. Colonel Sartoris invented an involved tale to the effect that Miss Emily’s father had loaned money to the town which the town, as a matter of business, preferred this way of repaying.” When the next generation, with its more modern ideas, became mayors and aider-men, this arrangement created some little dissatisfaction. On the first of the year they mailed her a tax notice. February came, and there was no reply. They wrote her a formal letter, asking her to call at the sheriff’s office at her convenience. A week later the mayor wrote her himself, offering to call or to send his car for her, and received in reply a note on paper of an archaic shape, in a thin, flowing calligraphy in faded ink, to the effect that she no longer went out at all. The tax notice was also enclosed, without comment. They called a special meeting of the Board of Aldermen. A deputation waited upon her, knocked at the door through which no visitor had passed since she ceased giving china-painting lessons eight or ten years earlier. . . She did not ask them to sit. She just stood in the door and listened quietly until the spokesman came to a stumbling halt. Then they could hear the invisible watch ticking at the end of the gold chain. Her voice was dry and cold. “I have no taxes in Jefferson. Colonel Sartoris explained it to me. Perhaps one of you can gain access to the city records and satisfy yourselves.” “But we have. We are the city authorities, Miss Emily. Didn’t you get a notice from the sheriff, signed by him?” “I received a paper, yes,” Miss Emily said. “Perhaps he considers himself the sheriff ... I have no taxes in Jefferson.” “But there is nothing on the books to show that, you see. We must go by the — ” “See Colonel Sartoris. I have no taxes in Jefferson.” “But, Miss Emily — ” “See Colonel Sartoris.” (Colonel Sar-toris had been dead almost ten years.) “I have no taxes in Jefferson. Tobe!” The [butler] appeared. “Show these gentlemen out.” By comparison Mr. Phillips treated the SSA quite well. Whatever his civil liabilities, he is not a criminal and he should not have been convicted of a crime. REVERSED. . Literally, or literalistically, a statute requiring “an intent ... to secure payment . in a greater amount than is due” might be satisfied by an intent to secure any payment which is in fact greater than the amount due. That is, it might require only proof that the defendant knew he would receive payments, not proof that he knew the payments were greater than the amount due. This interpretation would differ from that proposed in the text in only one respect. It would reach a defendant who knew he had a duty to disclose certain information, and knew that by not disclosing he could increase his payments, but thought— honestly although mistakenly — that he was entitled to the greater payments. Whether Congress intended to cover this unlikely case is an issue we need not decide here. . See also United States v. Bishop, 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973), which held that the requirement of a “willful” act or omission, generally found in 26 U.S.C. §§ 7201-7207, the principal statutes dealing with federal income taxpayers’ criminal liability, can be satisfied only by showing “a voluntary, intentional violation of a known legal duty.” Id. at 360, 93 S.Ct. at 2017. . There was testimony that state agencies also sent Phillips two letters. . Agent Mobley recounted her conversation with Phillips at a suppression hearing before a magistrate and again at a hearing before the district judge. There were several significant inconsistencies in her accounts. Compare R.Vol. 2 at 36-38 (Phillips refused to sign waiver of rights before being questioned) with R.Vol. 3 at 18-20, 23, 30, 32, 34 (after being questioned); R.Vol. 2 at 28, 29, 32 (Phillips was advised that interview was part of a criminal investigation) with R.Vol. 3 at 25 and R.Vol. 4 at 103 (Phillips was not so advised); R.Vol. 3 at 31 (Phillips asked Mobley about his refunding overpayments) with R.Vol. 4 at 97, 106 (Mobley asked Phillips if he would refund overpay-ments). Nevertheless we do not disturb the district judge’s ruling that Phillips’s statements to Mobley were admissible. More or less as Phillips spoke to her, Mobley recorded his statements on a form which she expected him to sign. When he refused to sign it, she summarized the statements on another form and destroyed the original form without transcribing it verbatim. See R.Vol. 4 at 120-21. . Apparently for this reason, the trial judge held inadmissible portions of Agent Mobley’s written report which contained comparably conclusory observations. . See footnote 4 supra. . For the same reason, Agent Mobley’s statement, on cross-examination: “All right, he, according — from what I can remember ... of my conversation with Mr. Phillips, he was aware that he was not entitled to checks, all right?” R.Vol. 4 at 107, was not enough to sustain the case against Phillips. . W. Faulkner, “A Rose for Emily,” Collected Stories (1950) 120-21. 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	057	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. ILLINOIS v. ABBOTT & ASSOCIATES, INC., et al. No. 81-1114. Argued November 29, 1982 Decided March 29, 1983 Stevens, J., delivered the opinion for a unanimous Court. Brennan, J., filed a concurring opinion, in which O’Connor, J., joined., post, p. 573. Thomas M. Genovese, Assistant Attorney General of Illinois, argued the cause for petitioner. With him on the briefs were Tyrone C. Fahner, Attorney General, and Thomas J. DeMay and Thomas S. Malciauskas, Assistant Attorneys General. Richard G. Wilkins argued the cause pro hac vice for the United States, respondent under this Court’s Rule 19.6, in support of petitioner. With him on the briefs were Solicitor General Lee, Assistant Attorney General Baxter, Deputy Solicitor General Wallace, and Robert B. Nicholson. Michael B. Nash argued the cause for respondents and filed a brief for respondents Climatemp, Inc., et al. Jerold S. Solovy, Barry Sullivan, and Thomas E. Bindley filed a brief for respondents Abbott & Associates, Inc., et al. Mark Crane and Wm. Carlisle Herbert filed a brief for respondents Inland Heating & Air Conditioning Co. et al. Arthur C. Chapman filed a brief for undisclosed respondents. A brief of amici curiae urging reversal was filed for the State of Alabama et al. by Stephen H. Sachs, Attorney General of Maryland, and Charles 0. Monk II and Robert W. Hesselbacher, Jr., Assistant Attorneys General; Charles A. Graddick, Attorney General of Alabama, and Susan Beth Farmer, Assistant Attorney General; Wilson L. Condon, Attorney General of Alaska, and Louise E. Ma, Assistant Attorney General; Robert K. Corbin, Attorney General of Arizona; Steve Clark, Attorney General of Arkansas, and David L. Williams, Deputy Attorney General; George Deukmejian, Attorney General of California, Sanford N. Gruskin, Assistant Attorney General, and Linda L. Tedeschi, Deputy Attorney General; J. D. MacFarlane, Attorney General of Colorado, and Thomas P. McMahon, Assistant Attorney General; Carl R. Ajello, Attorney General of Connecticut, and Robert M. hanger and Steven M. Rutstein, Assistant Attorneys General; Richard S. Gebelein, Attorney General of Delaware, and Vincent M. Amberly, Deputy Attorney General; Judith Rogers, Corporation Counsel of the District of Columbia, Charles Reischel, Deputy Corporation Counsel, and Timothy J. Shearer, Assistant Corporation Counsel; Jim Smith, Attorney General of Florida, and Bill L. Bryant, Jr., Assistant Attorney General; Tany S. Hong, Attorney General of Hawaii, and Sonia Faust, Deputy Attorney General; Linley E. Pearson, Attorney General of Indiana, and Frank A. Baldwin, Assistant Attorney General; Thomas J. Miller, Attorney General of Iowa, and JohnR. Perkins, Assistant Attorney General; Robert T. Stephan, Attorney General of Kansas, and Wayne E. Hundley, Deputy Attorney General; Steven L. Beshear, Attorney General of Kentucky, and James M. Ringo, Assistant Attorney General; William J. Guste, Jr., Attorney General of Louisiana, and John R. Flowers, Jr., Assistant Attorney General; James E. Tierney, Attorney General of Maine, and Cheryl Harrington, Senior Assistant Attorney General; Francis X. Bellotti, Attorney General of Massachusetts, and Alan L. Kovacs, Assistant Attorney General; Frank J. Kelley, Attorney General of Michigan, and Edwin M. Bladen, Assistant Attorney General; Warren Spannaus, Attorney General of Minnesota, and Stephen P. Kilgriff, Special Assistant Attorney General; Bill Allain, Attorney General of Mississippi, and Robert E. Sanders, Special Assistant Attorney General; John Ashcroft, Attorney General of Missouri, and William Newcomb, Assistant Attorney General; Mike Greely, Attorney General of Montana, and Jerome J. Cate; Paul L. Douglas, Attorney General of Nebraska, and Dale A. Comer, Assistant Attorney General; Richard H. Bryan, Attorney General of Nevada, and Don Christensen, Deputy Attorney General; Gregory H. Smith, Attorney General of New Hampshire, and Edward E. Lawson; James R. Zazzali, Attorney General of New Jersey, Charles D. Sapienza, and Laurel A. Price, Deputy Attorney General; Jeff Bingaman, Attorney General of New Mexico, and James J. Wechsler, Assistant Attorney General; Rufus L. Edmisten, Attorney General of North Carolina, H. A. Cole, Jr., Special Deputy Attorney General, and Fred R. Gamin, Assistant Attorney General; Robert 0. Wefald, Attorney General of North Dakota, and Gary Lee, Assistant Attorney General; William J. Brown, Attorney General of Ohio, and Eugene F. McShane; Jan Eric Cartwright, Attorney General of Oklahoma, and Gary Gardenhire, Assistant Attorney General; Dave Frohnmayer, Attorney General of Oregon, and William F. Gary, Solicitor General; Dennis J. Roberts II, Attorney General of Rhode Island, and Patrick J. Quinlan, Assistant Attorney General; Daniel R. McLeod, Attorney General of South Carolina, and John M. Cox, Assistant Attorney General; Mark V. Meierhenry, Attorney General of South Dakota, and Dennis R. Holmes, Assistant Attorney General; William M. Leech, Jr., Attorney General of Tennessee, and William J. Haynes, Jr., Deputy Attorney General; Mark White, Attorney General of Texas, and Katie Bond, Assistant Attorney General; David L. Wilkinson, Attorney General of Utah, and Mark K. Buchi, Assistant Attorney General; John J. Easton, Jr., Attorney General of Vermont, and Glenn A. Jarrett, Assistant Attorney General; Gerald L. Baliles, Attorney General of Virginia, Elizabeth B. Lacy, Deputy Attorney General, and Bertram M. Long and Craig T. Merritt, Assistant Attorneys General; Kenneth 0. Eikenberry, Attorney General of Washington, and John R. Ellis, Senior Assistant Attorney General; Chauncey H. Browning, Attorney General of West Virginia, and Charles G. Brown, Deputy Attorney General; Bronson C. La Follette, Attorney General of Wisconsin, and Michael L. Zaleski, Assistant Attorney General; and Steven F. Freudenthal, Attorney General of Wyoming, and Gay Vanderpoel, Assistant Attorney General. Arthur M. Handler filed a brief for Cuisinarts, Inc., as amicus curiae urging affirmance. Dee J. Kelly, Reese Harrison, Robert Travis, Frank McCown, Stanley E. Neely, Wilson W. Herndon, Timothy R. McCormick, and Michael P. Carnes filed a brief for certain appellants in In re Grand Jury Proceedings as amici curiae. Justice Stevens delivered the opinion of the Court. The Attorney General of Illinois asserts a statutory right of access to transcripts, documents, and other materials gathered or generated by two federal grand juries during their investigations of alleged violations of the federal antitrust laws. He contends that § 4F(b) of the Clayton Act, 90 Stat. 1395, 15 U. S. C. § 15f(b), enacted as part of Title III of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (Act), makes it unnecessary for him to meet the “particularized need” standard generally required under Rule 6(e) of the Federal Rules of Criminal Procedure in order to obtain access to grand jury materials. Disagreeing with two other Courts of Appeals, the Seventh Circuit rejected this contention. We granted certiorari to resolve the conflict, 455 U. S. 1015 (1982), and now affirm. I On January 31, 1980, the State of Illinois filed a petition in the United States District Court for the Northern District of Illinois seeking disclosure of transcripts and documents generated during two federal grand jury investigations of alleged bid-rigging in the construction trades in Illinois. These investigations had resulted in the return of three separate indictments naming 59 defendants. At the time the State filed its petition, most of the defendants had entered pleas of nolo contendere to the federal charges and one had been found guilty by a jury, but eight defendants were still awaiting trial. The Justice Department had refused the State’s request for the grand jury materials, explaining that they could not be disclosed without a court order under Rule 6(e) of the Federal Rules of Criminal Procedure. The State advised the District Court that it had already initiated civil class actions against 86 defendants, charged in the indictments or identified as unindicted co-conspirators, to recover damages based on federal antitrust violations. The State’s petition invoked § 4F(b) and Rule 6(e) in support of disclosure. It further stated that “the materials requested are extremely relevant and material to Plaintiff’s causes; their disclosure will insure and promote efficient and economical utilization of scarce judicial and taxpayers resources, and will also obviate the need for duplicative and redundant discovery . . . App. 13. The Department of Justice supported the State’s petition. Certain defendants in the civil suits and others who had testified before the grand juries intervened to oppose disclosure. The District Court first considered the State’s claim that it had a statutory right of access under § 4F(b) without making any showing of compelling or particularized need. The court concluded that, in response to a § 4F(b) request, the Justice Department was free to disclose documents that were independently acquired by the Executive Branch and voluntarily presented to the grand jury. But it held that transcripts of grand jury testimony and other materials acquired by the grand jury through the use of its subpoena power were not part of the “investigative files” of the Attorney General of the United States within the meaning of the Act. Moreover, the court found nothing in the legislative history of the Act to suggest that Congress intended either to authorize “unmonitored disclosure of purely grand jury materials” without a court order under Rule 6(e), or to modify the standard traditionally applied under Rule 6(e) itself. The District Court then explained why the record as then developed would not justify disclosure under Rule 6(e) without reference to §4F(b). Noting the absence of any special showing of need for access to the grand jury materials, the scope of the material otherwise available to the plaintiffs, and the interests in grand jury secrecy that survived the termination of criminal proceedings, the District Court denied all of the petitions for disclosure. The denial, however, was without prejudice to renewed requests under Rule 6(e) after discovery efforts created a basis for more narrowly focused requests showing “particularized needs.” The State of Illinois filed a timely appeal to the United States Court of Appeals for the Seventh Circuit. On appeal the State did not contend that its petition had satisfied the showing of particularized need normally required under Rule 6(e). Instead, it presented the issue that had been finally resolved by the District Court’s order: whether § 4F(b) gives the state attorney general a special right of access to grand jury materials that is independent of or that modifies the limitations that were imposed by Rule 6(e) in 1976 when the Act became law. Noting that the plain language of the Act authorizes disclosure only “to the extent permitted by law,” and that the legislative history affirmatively indicates Congress’ intent to preserve then-existing limitations on access to grand jury materials, the Court of Appeals affirmed. In re Illinois Petition to Inspect and Copy Grand Jury Materials, 659 F. 2d 800 (1981). II Section 4F(a) of the Clayton Act, 15 U. S. C. § 15f(a), provides that, whenever the Attorney General of the United States has brought an action under the antitrust laws, and he has reason to believe that any state attorney general would be entitled to bring a federal action based substantially on the same alleged violation, he shall promptly give written notification to that official. Under §4F(b), 15 U. S. C. § 15f(b), in order to assist a state attorney general in evaluating this notice or in bringing an action, the Attorney General of the United States “shall, upon request by such State attorney general, make available to him, to the extent permitted by law, any investigative files or other materials which are or may be relevant or material to the actual or potential cause of action under this Act.” The plain language of §4F(b) requires us to evaluate the legal context in which Congress legislated in 1976. The statute expressly mandates disclosure of investigative files and other materials only “to the extent permitted by law.” It is therefore appropriate to examine the extent to which, at the time the Act was passed, federal law permitted the Attorney General of the United States to disclose matters occurring before a federal grand jury to a state attorney general. Since 1946 the disclosure of grand jury minutes has been governed by Rule 6(e) of the Federal Rules of Criminal Procedure. In so many words, the Rule establishes a “General Rule of Secrecy,” a knowing violation of which “may be punished as a contempt of court.” The Rule provides that grand jury transcripts shall remain in the custody of the attorney for the Government “unless otherwise ordered by the court in a particular case.” There is only one exception to the general prohibition against disclosure without prior court approval, but that exception is limited to Federal Government personnel performing a specified federal law enforcement function. Plainly Rule 6(e) does not permit the Attorney General of the United States to disclose any grand jury proceedings to a state attorney general unless he is directed to do so by a court. The court, however, is authorized by Rule 6(e)(3)(C) to permit certain disclosures that are otherwise prohibited by the “General Rule of Secrecy.” The scope of that authority has been delineated in a series of cases setting forth the standard of “particularized need.” We need not delineate the precise contours of that standard in this case, because the State made no attempt to make any such showing in the District Court, see n. 8, swpra, and has consistently maintained that it need not shoulder that burden. Thus, under the law as it existed in 1976, two propositions were clear: (1) a state attorney general could not obtain access to federal grand jury proceedings without federal court approval; and (2) the State could not secure such approval merely by alleging that the materials were relevant to an actual or potential civil antitrust action. At the time the Act was passed in 1976, a blanket disclosure request comparable to the one at issue in this case would have been denied because it was not permitted by law. The State does not suggest that there has been any change in the law since 1976 that affects its right to disclosure. It therefore follows from the plain language of the Act that the State Attorney General is not entitled to the disclosure he seeks in this case. I — I HH h — i If the text of §4F(b) left any doubt concerning its recognition of the “General Rule of Secrecy” for grand jury mater i-als, that doubt would be removed by its legislative history. First, Congress considered and rejected a proposed section that would have specifically granted civil antitrust plaintiffs a right of access to grand jury materials after completion of federal civil or criminal proceedings. As reported by the Senate Judiciary Committee, the provision eliminated the particularized-need requirement and permitted disclosure, subject to court-imposed conditions, upon payment of reasonable costs. The proposed sweeping invasion of grand jury secrecy drew substantial criticism from a number of Senators. A floor amendment limited the section’s scope, and as amended it was adopted by the Senate, but at the informal House-Senate conference the House conferees objected and the Senate’s provision was dropped. The net effect of these deliberations was to leave the law applicable to grand jury-materials unchanged. Second, a specific explanation of §4F(b) by Senator Ab-ourezk, the floor manager of the legislation, confirms the conclusion that Congress did not intend to change existing law concerning grand jury materials. The section was included in the compromise bill accepted by an informal House-Senate conference. After Senator Hruska expressed his concern that § 4F(b) might require the Department of Justice to act as “a massive document distribution center for the benefit of State officials,” Senator Abourezk explained: “The section specifically limits the Attorney General’s power to release documents to whatever his powers are under existing law. Under existing law, he cannot turn over materials given in response to a grand jury demand or to a civil investigative demand. Therefore, the section is limited by existing law to cases where materials were turned over voluntarily.” 122 Cong. Rec. 29160 (1976). Senator Abourezk’s interpretation of this provision was not questioned. Third, the Act’s treatment of material obtained by the Government in response to Civil Investigative Demands (CID’s) supports our interpretation of §4F(b). The Act increases the Attorney General’s CID powers, but mandates that materials obtained in this manner be kept strictly confidential. CID materials may not be disclosed to persons outside the Federal Government without the consent of the provider. 15 U. S. C. § 1313 (1976 ed. and Supp. V). This requirement was imposed to safeguard the rights of individuals under investigation and to protect witnesses from retaliation. Since those reasons also underlie the traditional secrecy accorded to the grand jury, it would be anomalous for the same Congress that placed stringent limits on CID materials silently to have abrogated grand jury secrecy by permitting wholesale disclosure. HH C Finally, the State argues that the Act implements a general policy of encouraging federal/state cooperation and giving state attorneys general an important role in the enforcement of the antitrust laws. According to the State, this broad legislative goal would be served by facilitating the State’s access to grand jury materials. The State contends that virtually all of the Federal Government’s investigations of core Sherman Act violations — such as price fixing and bid rigging — are conducted from the outset by means of grand juries. Therefore, as in this case, a narrow reading of § 4F(b) would severely limit the amount of additional disclosure to state attorneys general. Further, the State asserts, a “particularized need” standard would be difficult to satisfy before a State has filed a civil action and attempted civil discovery — a stage when §4F(b) is intended to provide assistance to the State. However correct these assertions may be, they do not authorize us to add specific language that Congress did not include in a carefully considered statute. Congress, of course, has the power to modify the rule of secrecy by changing the showing of need required for particular categories of litigants. But the rule is so important, and so deeply rooted in our traditions, that we will not infer that Congress has exercised such a power without affirmatively expressing its intent to do so. The general goals of enhancing federal-state cooperation in antitrust enforcement, and encouraging more state lawsuits against price fixers, are not sufficient. The statute as enacted by Congress simply does not authorize the Attorney General to turn over the entire investigative record of a federal antitrust grand jury to a state attorney general who has not complied with the judicially developed standards implementing Rule 6(e). Because the disclosure requested by the State in this case is not permitted by Rule 6(e) on the basis of the showing it made to the District Court, the judgment of the Court of Appeals is affirmed. It is so ordered. United States v. Colonial Chevrolet Corp., 629 F. 2d 948 (CA4 1980) (placing the burden of justifying nondisclosure on the opposing party), cert, denied, 450 U. S. 913 (1981); and United States v. B. F. Goodrich Co., 619 F. 2d 798 (CA9 1980) (allowing disclosure on a showing of “relevance”). Contra, In re Grand Jury Investigation of Cuisinarts, Inc., 665 F. 2d 24 (CA2 1981) (§ 4F(b) did not change the standard of “particularized need” for state attorneys general), cert, pending, No. 81-1595. In June 1978, 18 corporations, 13 individuals, and a labor union were charged with conspiring to rig bids on public sheet metal projects in the Chicago area. United States v. Climatemp, Inc., 78 CR 388 (ND Ill.) On January 31, 1979, 21 corporations and 6 individuals were indicted for conspiring to rig bids on piping construction projects in the same area. United States v. Borg, Inc., 79 CR 67 (ND Ill.) (felony); United States v. S. J. Reynolds Co., Inc., 79 CR 66 (ND Ill.) (misdemeanor). The State’s memorandum in support of its petition, filed on January 31, 1980, advised the court that eight defendants were scheduled to begin trial on February 4,1980. Four of these were subsequently acquitted. On request of the Justice Department, the State held its petition in abeyance pending completion of the trial. App. 4 (Justice Department notice to the Attorney General of Illinois that indictments had been returned); id., at 5, 7 (state requests for investigative materials relating to the indictments). In response, the Justice Department furnished 19 pages of staff memoranda. It advised the State that, with respect to other materials within the scope of the State’s request, the Department would support the State’s request for court-ordered disclosure. Id., at 9-10. Rule 6(e) provides, in part: “Rule 6. The Grand Jury “(e) Recording and Disclosure of Proceedings. “(1) Recording of proceedings. . . . The recording or reporter’s notes or any transcript prepared therefrom shall remain in the custody or control of the attorney for the government unless otherwise ordered by the court in a particular case. “(2) General rule of secrecy. A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:
songer_appel2_7_2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). UNITED STATES of America, Appellee, v. Henry James WRIGHT, a/k/a Shawn Denvers and Carolyn Wright, a/k/a Carolyn Denvers a/k/a Lisa Anderson, Appellants. No. 85-5510. United States Court of Appeals, Fourth Circuit. Argued May 5, 1986. Decided Aug. 4, 1986. David A. Schneider and John Paul Woodley, Jr., Richmond, Va., for appellants. James R. Spencer, Asst. U.S. Atty. (Justin W. Williams, U.S. Atty., Alexandria, Va., Joseph A. LaBella, David W. Gross-man, Third Year Law Student on brief), for appellee. Before CHAPMAN and WILKINSON, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge. CHAPMAN, Circuit Judge: Appellants, Henry James Wright and Carolyn Wright, were convicted of various criminal charges in a trial at which they represented themselves. Both defendants were convicted of income tax evasion in violation of 26 U.S.C. § 7201 (1982) and of obstruction of justice in violation of 18 U.S.C. § 1503 (1982). Appellant Henry Wright was also convicted of transporting women across state lines for the purpose of prostitution in violation of 18 U.S.C. § 2421 (1982) and of interstate transportation in aid of racketeering in violation of 18 U.S.C. § 1952 (1982). Appellant Carolyn Wright was also convicted of making false statements to a federal grand jury in violation of 18 U.S.C. § 1001 (1982). On appeal they raise numerous exceptions, only one of which has merit. We conclude that the district court did not comply with the provisions of the Speedy Trial Act, 18 U.S.C. § 3161(c)(2) (1982), when it brought appellants to trial in less than thirty days from the date on which they first appeared through counsel or expressly waived counsel and elected to proceed pro se; therefore, we reverse. I On February 20, 1985, a federal grand jury sitting in the Eastern District of Virginia returned a twelve-count indictment against the appellants. The following day, both appellants were arrested in the State of Maryland. They were returned to Richmond, Virginia, in custody, on March 12, 1985. On March 14, there was a prearraignment status conference before the United States District Judge at which the appellants appeared pro se and advised the court that they were anxious to retain an attorney but contended that they could not make arrangements for an attorney while still incarcerated. They indicated that they had been in touch with a Richmond attorney, but that attorneys wanted their fees in advance and there would be some difficulty in getting the necessary money to pay such a fee while they were incarcerated. The judge indicated they could contact attorneys by telephone, and he felt that the necessary arrangements could be made. On March 19, 1985, Mr. and Mrs. Wright were arraigned before the same district judge, and Mr. Wright made and argued a motion for the reduction of his wife’s bond. The court reduced her bond from $100,000 to $25,000, and Mrs. Wright made bond. At the same hearing, the court set the case for trial on April 30, 1985. On March 25, 1985, there was another hearing with the defendants still appearing pro se. At this hearing, Mrs. Wright sought to have the travel restriction lifted. This travel restriction limited her to the Eastern District of Virginia and was a condition of her release on bond. The judge advised Mrs. Wright to contact her lawyer, and if the lawyer felt that it was necessary for her to leave the Eastern District of Virginia, the court would hear such a motion immediately. On April 11,1985, Richard Ryder, a Richmond attorney, made an appearance representing Mrs. Wright and filed a motion for continuance of the trial date and modification of the restrictions imposed as a condition of the bond. On the same date Henry Wright filed a number of pre-trial motions pro se on behalf of himself and his wife. On April 16, a hearing was held before the court on Mrs. Wright’s motions for modification of her travel restrictions and for a continuance due to the fact that Attorney Ryder had a conflict in another court on April 30. Both motions were denied. The court advised Henry Wright that it was important for him to obtain a lawyer and tried to impress upon him the seriousness of the charges against him. The court also reminded him that the court had reduced Mrs. Wright’s bond in order to facilitate the hiring of a lawyer. The judge warned the defendants that he would not allow them to manipulate the docket of the court, and he allowed Attorney Ryder to withdraw as counsel for Mrs. Wright. On April 22, 1985, Henry Wright filed several pretrial motions on behalf of himself and his wife, including a motion to suppress and a “Notice of Postponement.” These motions were denied on April 29 with instructions that a copy of the order denying the motions be hand delivered to the defendants prior to trial on April 30. On April 30, 1985, the first day of trial, an attorney from Massachusetts, John Cavicchi, appeared in court and advised that he was appearing on behalf of Henry Wright for the purpose of arguing the pretrial motions. It appears that the court interpreted Cavicchi’s appearance as a motion for continuance, which the court denied. The trial lasted until May 3, and the defendants represented themselves throughout these proceedings. During the course of the trial, defendants made various motions including a motion for mistrial, a motion for disclosure of the identity of an informant, and a motion for postponement. Following conviction, defendants served notice of intention to appeal, and a separate attorney was appointed for each defendant to brief and argue the appeals. The appellants raise five exceptions, claiming (1) that the court abused its discretion in denying defendants’ motions for continuance to obtain counsel, (2) that the court violated the Speedy Trial Act, 18 U.S.C. § 3161(c)(2), by requiring the trial of the defendants to commence less than thirty days from the date the defendants first appeared through counsel, (3) that the court violated Carolyn Wright’s due process rights by permitting her attorney to withdraw from representation and proceeding to trial shortly after his withdrawal, (4) that the court violated the defendants’ fifth and sixth amendment rights by trying them without either retained or appointed counsel, and (5) that the court deprived both defendants of their due process rights to be fully, fairly, and adequately represented. On the third day of trial, the Wrights moved for a mistrial and in ruling upon this motion the court stated: It has been the court’s observation that the parties have had ample opportunity to retain counsel. They have ample intelligence to know the desirability of being represented by counsel. They have ample resources to pay counsel---- [M]y inclination is to believe that their process has been one of attempting manipulation of the right to counsel in order to obtain continuances or to obtain a mistrial or to obtain reversal on appeal. And I simply think that the court is doing the best it can under the Constitution and the law to assure them a fundamentally fair trial. I am convinced that the circumstances in which the defendants find themselves is wholly and completely of their own making and that it was done deliberately. The motion is denied. At the conclusion of the trial the court addressed the defendants and reminded them of his urgings at the arraignment and other pretrial hearings to obtain counsel. He stated: I urged you at that time in every way I knew how to get a lawyer and to protect your interests in that way____ I explained to you at that time..., that you were playing a dangerous game. I think I recognized your game as attempting to create error in the trial of a case. At the time of sentencing, the judge observed: There are a number of difficulties with this case when it comes to sentencing. One of the difficulties, however, is not a scintilla of question in my mind that these defendants had every opportunity under the law to a fair and impartial trial by a jury of their peers. For my own part, I do not question this court’s and the magistrate’s repeated admonitions to the defendants that they owed it to themselves to retain counsel, nor repeated assurances from defendants that they had the means and the ability to obtain counsel, and they would do so in due time. For reasons that I do not understand, a lawyer, which according to the evidence in the case Mr. Wright had actually worked for for a number of years, Mr. Cavicchi, and thus had to be on close and personal terms with him, was retained to come to trial only on the day of trial, and then only for the purpose of asking for a continuance. Whatever benefit the defendants thought they would get from that tactic was not a benefit that a fair and impartial trial entitles them to. II There is no merit to the defendants’ claims that the trial judge abused his discretion in denying a continuance to allow them to obtain counsel. The judge correctly observed that the defendants were playing a dangerous game in trying to manipulate their claim of right to counsel in an effort to create error. The judge correctly found that they had the opportunity to retain an attorney, they had ample resources to pay such an attorney, and they knew the advantages of being represented by an attorney at trial. The trial judge concluded with ample justification that they were trying to create error. There is no merit to the defendants’ claims of denial of constitutional rights under the fifth and sixth amendments because they went to trial without either retained or appointed counsel. A defendant may be required to go to trial without an attorney when he has had a fair opportunity to obtain counsel and does not do so. Sampley v. Attorney General of North Carolina, 786 F.2d 610 (4th Cir.1986). Although there was no abuse of discretion by the trial judge in trying the defendants without either retained or appointed counsel, and the defendants’ constitutional rights were not violated by such a trial, the trial judge was in violation of the clear language of 18 U.S.C. § 3161(c)(2) in commencing the trial less than thirty days from the time that the defendants expressly waived counsel and elected to proceed pro se. Section 3161(c)(2) provides: Unless the defendant consents in writing to the contrary, the trial shall not commence less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se. The language is clear and unambiguous. In order to try an accused on a date sooner than thirty days from the date on which the defendant first appeared through counsel, written consent of the accused is required. In the present case there was no written consent from either Henry Wright or Carolyn Wright. Attorney Richard Ryder appeared for Mrs. Wright on April 11,1985, but after his motion for a continuance was denied, he was released from representation because he had a conflict in another court on the date this case was set for trial. If this is considered an appearance through counsel for Mrs. Wright, the trial date commenced less than thirty days from the date of this appearance. If the special appearance by Attorney John Cavicchi could be considered as an appearance through counsel for Henry Wright, this appearance did not occur until the morning of trial and would clearly violate the thirty-day limitation. If a defendant does not appear through counsel, section 3161(c)(2) provides that the trial may not commence in less than thirty days from the date the defendant “expressly waives counsel and elects to proceed pro se.” This language requires an express waiver to trigger the thirty-day period. From the record and the findings of the district court, it is clear that there was in effect a waiver of the right to counsel by implication from the acts or failure to act of the defendants. However, the clear language of the statute requires an express waiver. To have an express waiver, there must be a voluntary, intentional relinquishment of a known right. The present record will not support a finding of an express waiver by the defendants, and the trial judge did not find that there was an express waiver. Without such a finding and without an appearance through counsel, the thirty-day limitation contained in (c)(2) never began to run. The government contends that this case is controlled by United States v. Wooten, 688 F.2d 941 (4th Cir.1982) and calls particular attention to the following language: What section 3161(c)(2) does is simply to guarantee to the criminal defendant the right to a delay of at least thirty days between arraignment and trial in any circumstances. This guarantee is in addition to or supplementary to any other rights that the defendant may have under recognized legal principles for a continuance beyond those thirty days as given him by 3161(c)(2). What the statute does not give the criminal defendant is the right, by filing dilatory motions, to extend on his own the date of his trial. The power to extend the time of trial beyond the thirty-day period lies with the trial judge in the exercise of his informed discretion exercised in keeping with established principles of fairness and justice. Id. at 951. Wooten did not involve a question of waiver under § 3161(c)(2). Rather, the court found that the minimum time set forth in § 3161(c)(2) was not extended by the periods of excludable time set forth in § 3161(h). It is well established that the trial judge and not the defendant controls the calendar of the court, the scheduling of trials, and the granting of continuances. A defendant has no right to extend his date of trial by filing dilatory motions, and he has no right to extend the time by a course of conduct in which he refuses to employ counsel, but does not ask the court to appoint counsel for him. When a defendant embarks on such a course of delay, the trial judge must take action in order to start the running of the time clock provided in (c)(2). When faced with a defendant who delays in the employment of an attorney, who will not request the appointment of an attorney by the court, and who will not expressly waive his right to an attorney, the trial judge should bring such defendant into court and make a finding on the record that the actions or lack of actions of the defendant are the voluntary and intentional relinquishment of his known right to be represented by an attorney and that defendant’s actions will be treated as an election to proceed pro se. The trial judge should then set a date for trial not less than thirty days in the future, and he should advise the defendant that his trial will commence on that date whether he is represented by an attorney or whether he appears pro se. This is a difficult decision because the trial judge recognized that the defendants were intentionally trying to disrupt the calendar of the court, and if possible, to create error in the process. Regrettably, the defendants’ ploy has succeeded because of the clear language of (c)(2) and the trial judge’s failure to protect the record by making a finding of express waiver, thereby beginning the running of the thirty days. The Speedy Trial Act sets forth no specific remedy for a violation of the time requirements of § 3161(c)(2). We likewise establish no inflexible remedy but hold only that the circumstances of this case appear to warrant a new trial. REVERSED AND REMANDED FOR A NEW TRIAL. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:
songer_applfrom	E	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). John Dodson LITTLETON, Plaintiff-Appellant, v. Lino MARDIGAN, d/b/a Moon’s Motor Service, and John O’Brien, Defendants-Appellees. No. 71-1132. United States Court of Appeals, Seventh Circuit. March 30, 1972. David W. Foley, Indianapolis, Ind., for plaintiff-appellant. Howard J. DeTrude, Jr., John N. Thompson, Kightlinger, Young, Gray & Hudson, Indianapolis, Ind., for defendants-appellees. Before HASTINGS, Senior Circuit Judge, and STEVENS and SPRECHER, Circuit Judges. HASTINGS, Senior Circuit Judge. John Dodson Littleton brought this diversity action against Lino Mardigan, d/b/a Moon’s Motor Service (Mardigan) and John O’Brien. Plaintiff sought recovery of damages suffered when he was struck by a truck owned by Mardigan and driven by O’Brien. The trial court granted summary judgment on defendants’ motion and dismissed the action. Plaintiff appealed. We affirm. The motion for summary judgment was based upon the complaint and answer, the affidavit of Mardigan and the depositions of plaintiff, O’Brien and one Robert E. Davis. Plaintiff filed a brief in support of his„naotion in opposition to summary judgment on the ground that there was a genuine issue of fact to be tried by a jury in this ease. Defendants filed a reply brief thereto. At issue was defendants’ claim that plaintiff’s exclusive remedy was limited to his recovery under workmen’s compensation and that he had no independent remedy against them. The undisputed relevant facts as disclosed by the record and found by the trial court reveal the following. Calumet Trucking Company (Calumet) executed a contract in early 1967 with Youngstown Sheet and Tube Company to fill a lake on Youngstown’s property with slag. Under the contract, Calumet was to haul slag from the Bairstow slag pit in Hammond, Indiana to the lake dump three miles away. Calumet owned sufficient loading equipment and had the personnel to operate it, but needed trucks and drivers to haul the slag. Hence, Calumet leased the trucks and drivers from local truck owners and carried out the contract using leased personnel and equipment that were under the supervision of Calumet foremen. Both plaintiff and defendant Mardigan leased trucks to Calumet and both plaintiff and defendant O’Brien were drivers for Calumet-under such a lease. Such arrangements were evidenced by written leases prepared by Calumet. The form leases provided that the lessors, in this case plaintiff and defendant Mardigan, were to furnish the trucks and truck drivers as well as pay the drivers and keep the trucks in repair. The lessee, Calumet, was to see that the trucks contained the proper registration card from the Public Service Commission of Indiana; was responsible for obtaining sufficient liability insurance; and was required to furnish the trucks with such identification cards as were necessary to inform the general public that they were being operated by, for and under the control of Calumet. Also, the contract provided that the truck driver “will be responsible to the Lessee and be under the supervision and control of the Lessee and shall perform his services in any reasonable and lawful manner that the Lessee may direct.” In compliance with such leases, both plaintiff’s and Mardigan’s trucks carried Calumet signs and used Calumet’s P.S. C.I. permits. Calumet foremen gave the initial directions to the truck drivers on how to load their trucks and conduct themselves around the pit. Calumet employees ran the loading equipment, set up the route to be run by the trucks, weighed the loads of slag and generally supervised and controlled the details of the operation at the slag pit and the dump. It is undisputed that Calumet’s foremen did exercise control over the drivers at the site of the accident. All three deposition witnesses, including plaintiff, acknowledged that Robert E. Davis, the night foreman at the site of the accident, was in control. Plaintiff said of Davis: “Well, his job was to just keep everybody working, to see that the job was running right, to see that the grade over in Youngstown Steel was being taken care of right. He was the general boss.” Further, that “if I was driving reckless, no lights on my truck or trying to haul too much weight or anything that would hinder Calumet Trucking, he would sure let me know about it. * * * He ran the show.” Davis had authority to recommend dismissal of drivers and had done so. In sum, the area was within Calumet’s control. It fully exercised it. The occurrence of the accident was aptly described by the district court in its memorandum of decision: “The accident occurred while Littleton [plaintiff] was hauling slag during the morning of June 23, 1967. Plaintiff was being loaded at the slag pit prior to making the last trip of the night. He had left the cab of his truck to check the right rear tires of his rig when he was struck from behind by defendant Mardigan’s truck, which defendant O’Brien was pulling in beside plaintiff’s truck.” Plaintiff first reported the accident to Davis immediately after it occurred. Pursuant to the provisions of the Indiana Workmen’s Compensation Act of 1929, as amended, Burns’ Ind. Stat.Ann. § 40-1201 et seq., 1965 Repl., Vol. 8, Part 1, IC 1971, 22-3-2-1 et seq., plaintiff filed a claim for workmen’s compensation benefits against Calumet for his injuries and has received benefits thereunder. Plaintiff is thus es-topped from denying that he was Calumet’s employee at the time of his injury. If he has any remedy against defendants in the case at bar it can only flow from the Indiana Workmen’s Compensation Act. Section 40-1213 of the Act, IC 1971, 22-3-2-13, provides in substance that one who receives compensation may sue a potentially liable party to recover damages, other than the employer and a person in the same employ. Hence, it is critical here to determine who was the employer of O’Brien at the time of the accident; that is, whether he was employed by Calumet or Mardigan. In resolving this question the trial court quite properly looked to the borrowed servant doctrine as considered by the Indiana courts. It has been said: “One may be in the general service of another and, nevertheless, with respect to particular work, may be transferred, with his own consent or acquiescence, to the service of a third person, so that he becomes the servant of that person, with all the legal consequences of the new relation. The true test in determining who the master is, in a case of this character, is, not who actually did control the actions and movements of the servant in doing the work, but who had the right to control.” Sargent Paint Co. v. Petrovitzky, 71 Ind.App. 353, at 359, 124 N.E. 881, at 883 (1919). “In determining who is the master, we must inquire whose is the work being performed. As before stated, this is answered by ascertaining who has the power to control and direct the servant in the performance of the work.” Id., at 360, 124 N.E. at 883. In N.Y. Cent. R. R. Co. v. Northern Ind. Pub. Serv. Co., 140 Ind.App. 79, 221 N.E.2d 442 (1966), referred to as the “Nipsco case”, the court stated, at 84, 221 N.E.2d at 446, that the. borrowed servant doctrine was one “which states that an employee while generally employed by one party, may be loaned to another in such a manner that the special employer may be responsible for the acts of the employee under the doctrine of respondeat superior. Indiana has recognized this doctrine.” See also Uland v. Little, 119 Ind.App. 315, 321-322, 82 N.E.2d 536 (1949); Standard Oil Company v. Soderling, 112 Ind.App. 437, 446-447, 42 N.E.2d 373 (1942), aff’d 229 Ind. 47, 95 N.E.2d 298 (1950); Bates Motor Transport Lines, Inc. v. Mayer, Admx., 213 Ind. 664, 671, 14 N.E.2d 91 (1938). It is undisputed that both Little-ton (plaintiff) and O’Brien (defendant) were similarly employed. Littleton was a self-employed truck owner who leased his truck to Calumet with himself as the truck driver. O’Brien was originally employed by Mardigan who leased a truck to Calumet with O’Brien as the driver. Both drivers were engaged in having their trucks loaded with slag at the site of the accident to be hauled to the Youngstown dump. This was Calumet’s work under its contract with Youngstown. Both trucks carried Calumet signs and used Calumet P.S.C.I. permits. These latter factors have been held to be important considerations in determining who the employer is. Gas City, etc., Co., Inc. v. Miller, 107 Ind. App. 210, 214-215, 21 N.E.2d 428 (1939), relying upon Bates Motor Transport, 213 Ind. at 671, 14 N.E.2d 91. The facts, taken together with an earlier showing that Calumet had the right to control the truck drivers in the performance of Calumet’s work, conclusively establish to our satisfaction that the borrowed servants, Littleton and O’Brien, were the employees of the borrowing employer, Calumet, for the purposes of respondeat superior. We are left with the final contention raised by plaintiff, namely, that the issue of who is the employer of a borrowed servant is one of fact for a jury to decide; that reasonable men could surely, differ as. to the meaning of the facts in this case; and that therefore the trial court erred in entering summary judgment. As pointed out in various Indiana cases, the critical question here “is usually a question of fact for the jury or court.” See the Nipsco case, 140 Ind.App., at 86, 221 N.E.2d at 446. However, in Sargent, 71 Ind.App., at 366, 124 N.E. at 885, citing with approval Foster v. City of Chicago, 197 Ill. 264, 64 N.E. 322 (1902), in referring to a written contract providing for the furnishing of labor and materials in a city sewer construction job, the Indiana court stated: “The contract being in writing, the court correctly held that it was a question of law for the court to say whether the injured party was a servant of the city or of Sheehy [the contractor].” In Nipsco, and other cases holding that the issue of who is the employer of a borrowed servant is one of fact for the jury, it clearly appears that there was a genuine issue as to material facts. See Rule 56(c), Federal Rules of Civil Procedure, 28 U.S.C.A. In the case at bar, as the trial court observed, the determining factors are the interpretation of the lease contract, hereinabove referred to, a question of law, and consideration of the undisputed facts relating to the “whose work” and “control” factors, above detailed. We agree with the trial court that here the critical facts are undisputed and that “reasonable men could not dispute that both the intent of this contract and the actual field practice were to give control of the truck drivers to the lessee.” We have considered other questions raised by plaintiff and find them without merit or without material relevance to the issues for determination here. We hold that the district court did not err in concluding as a matter of law that O’Brien was exclusively employed by Calumet at the time of the accident in question. We affirm the summary judgment in favor of defendants and the dismissal of plaintiff’s action. 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_counsel2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party Vesta I. WILLIAMS, Appellant, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Appellee. No. 91-1891. United States Court of Appeals, Eighth Circuit. Submitted Dec. 13, 1991. Decided March 27, 1992. Timothy C. Harlan, Columbia, Mo. (Karen Kraus Bill, on brief), for appellant. Claire Schenk, St. Louis, Mo., argued (Stephen B. Higgins, Joseph B. Moore, of counsel), Frank V. Smith, III, and Mary Dey Purcell, Kansas City, Mo., on brief for appellee. Before LAY, Chief Judge, WOLLMAN and HANSEN, Circuit Judges. The Honorable Donald P. Lay was Chief Judge of the United States Court of Appeals for the Eighth Circuit at the time this case was submitted and took senior status on January 7, 1992, before the opinion was filed. WOLLMAN, Circuit Judge. Vesta I. Williams appeals from the district court’s order denying her motion for summary judgment and granting the motion of the Secretary of Health and Human Services for summary judgment. We affirm. I. Williams was sixty years of age at the time of the benefits hearing and had sold Avon products through December of 1985. She has a history of a nervous condition, for which she has taken Ativan since 1963. She was diagnosed in 1980 with esophagitis and in 1987 with gastric ulcers and duoden-itis. These conditions have responded to medication and have not recurred. In December of 1987, Williams underwent a hysterectomy for in situ carcinoma of the endometrium. Williams takes progesterone, which she claims is to prevent the recurrence of the cancer, but which is a medication commonly prescribed to postmenopausal women to prevent adverse symptoms of menopause. Williams applied for disability benefits in 1988, alleging that she was disabled from chronic and acute anxiety, gastric ulcers, cancer of the uterus, and side effects from her “cancer medication.” Her initial application was denied because she was not insured as of the date she claimed the disability began. She amended her income tax returns and was then determined to have additional quarters of eligibility for disability benefits. Upon reconsideration of her application, Williams was determined not to have a condition severe enough to be disabling. Williams then requested a hearing before an administrative law judge (AU). The AU found that Williams’ impairment “resulted in only slight abnormality which ha[d] minimal effect on her physical or mental ability to perform basic work-related activities.” In making this finding, the AU took into account Williams’ work record, her daily activities, and her functional restrictions, as well as her complaints of pain, including precipitating and aggravating factors and the dosage, effectiveness, and side effects of pain medication. The AU concluded that because Williams’ cancer was cured and because Williams remained active and able to care for herself and her home, had not sought treatment for any mental condition, and took no prescription medication for pain, her complaints of incapacitating fatigue and nervousness were not supported by the evidence. Williams’ request for a review of the AU’s decision was denied by the Appeals Council. Thus, the AU’s decision is the final decision of the Secretary. Williams then appealed to the district court, which referred the matter to a magistrate judge. The magistrate judge recommended that the AU’s decision be upheld. The district court adopted the magistrate’s recommendation, denying Williams’ motion for summary judgment and granting the Secretary’s motion for summary judgment. Williams now appeals to this court, claiming that the decision of the AU is not supported by substantial evidence. II. The Social Security Act provides for payment of insurance benefits to persons who have contributed to the program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1)(D). A “disability” is the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment.” Id., § 423(d)(1)(A). The disability must last for a continuous period of at least twelve months or be expected to result in death. Id. An individual is under a disability only if the impairments “are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work.” Id., § 423(d)(2)(A). The Secretary has established a five-step process for determining whether a person is disabled. See 20 C.F.R. § 404.1520. First, the Secretary determines whether an applicant for disability benefits is engaged in “substantial gainful activity.” Id., § 404.1520(b). If the answer is yes, the person is not disabled and benefits are denied; if no, the Secretary moves on to step two in the determination. It was at this step in the process that Williams was denied benefits. At this step, the claimant bears the initial burden of proof to demonstrate that she is unable to perform her past relevant work, part of which is demonstrating a “severe” impairment. See Conley v. Bowen, 781 F.2d 143, 146 (8th Cir.1986); McCoy v. Schweiker, 683 F.2d 1138, 1146-47 (8th Cir.1982). To show a severe impairment, she must show that she has “any impairment or combination of impairments which significantly limits [the applicant’s] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If not, the applicant does not have a severe impairment and benefits are denied. The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do most jobs.” Id., § 404.1521(b). Examples include physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; capacities for seeing, hearing, and speaking; understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, co workers and usual work situations; and dealing with changes in a routine work setting. Id. Step two of this process has been upheld as a valid exercise of the Secretary’s power. Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 2297, 96 L.Ed.2d 119 (1987) (“The severity regulation increases the efficiency and reliability of the evaluation process by identifying at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found to be disabled even if their age, education, and experience were taken into account.”). We will uphold the Secretary’s decision if it is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Whitehouse v. Sullivan, 949 F.2d 1005 (8th. Cir.1991). “Substantial evidence is that which a reasonable mind might accept as adequate to support the Secretary’s conclusion,” Whitehouse, 949 F.2d at 1007 (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)), and “[w]e may not reverse ‘merely because substantial evidence would have supported an opposite decision.’ ” Id. (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.1984)). III. The AU determined that Williams’ impairments did not significantly limit her physical or mental ability to do basic work activities. He applied the examples given in section 404.1521(b) and found that Williams could drive, read, watch television, visit and entertain friends, attend church, shop, do laundry and care for the house with her husband’s help, and cook meals. He found that Williams’ anxiety was situational and had not required counseling, psychiatric treatment or hospitalization, and that Williams had taken Ativan so long that it “probably has minimal effect.” He further found that her alleged weakness and trembling had similarly required no treatment, that Williams took progesterone to prevent menopausal symptoms, and that Williams claimed disability because her husband had retired and she was no longer motivated to work. We find substantial evidence in the record to support the AU’s decision. There is no record of treatment for anxiety save a twenty-eight year history of taking Ativan, a mild anti-anxiety agent. Williams takes no prescription pain medications, and the medication which she claims to take to prevent recurrence of the cancer is commonly prescribed to prevent menopausal symptoms in those women who have had their ovaries removed during a hysterectomy. Williams’ gastric symptoms are controlled by medication. She was told by all of her doctors that she need not return on any regular basis, but that she should return as needed. Accordingly, the judgment of the district court is affirmed. .The Honorable George F. Gunn, United States District Judge for the Eastern District of Missouri. . This is a localized cancer of the mucous membrane in the inner layer of the wall of the uterus. . This includes both women who experience menopause due to natural aging of the reproductive system and women who experience menopause after surgical removal of the ovaries. . The Honorable Robert D. Kingsland, United States Magistrate Judge for the Eastern District of Missouri. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
sc_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. UNITED STATES v. MENDOZA No. 82-849. Argued November 2, 1983 Decided January 10, 1984 Deputy Solicitor General Getter argued the cause for the United States. With him on the briefs were Solicitor General Lee and Joshua I. Schwartz. Donald L. Ungar argued the cause for respondent. With him on the brief was Lawrence N. DiCostanzo. Justice Rehnquist delivered the opinion of the Court. In 1978 respondent Sergio Mendoza, a Filipino national, filed a petition for naturalization under a statute which by its terms had expired 32 years earlier. Respondent’s claim for naturalization was based on the assertion that the Government’s administration of the Nationality Act denied him due process of law. Neither the District Court nor the Court of Appeals for the Ninth Circuit ever reached the merits of his claim, because they held that the Government was collaterally estopped from litigating that constitutional issue in view of an earlier decision against the Government in a case brought by other Filipino nationals in the United States District Court for the Northern District of California. We hold that the United States may not be collaterally estopped on an issue such as this, adjudicated against it in an earlier lawsuit brought by a different party. We therefore reverse the judgment of the Court of Appeals. The facts bearing on respondent’s claim to naturalization are not in dispute. In 1942 Congress amended the Nationality Act, § 701 of which provided that noncitizens who served honorably in the Armed Forces of the United States during World War II were exempt from some of the usual requirements for nationality. In particular, such veterans were exempt from the requirement of residency within the United States and literacy in the English language. Congress later provided by amendment that all naturalization petitions seeking to come under § 701 must be filed by December 31, 1946. Act of Dec. 28, 1945, § 202(c), 59 Stat. 658. Section 702 of the Act provided for the overseas naturalization of aliens in active service who were eligible for naturalization under § 701 but who were not within the jurisdiction of any court authorized to naturalize aliens. In order to implement that provision, the Immigration and Naturalization Service from 1943 to 1946 sent representatives abroad to naturalize eligible alien servicemen. Respondent Mendoza served as a doctor in the Philippine Commonwealth Army from 1941 until his discharge in 1946. Because Japanese occupation of the Philippines had made naturalization of alien servicemen there impossible before the liberation of the Islands, the INS did not designate a representative to naturalize eligible servicemen there until 1945. Because of concerns expressed by the Philippine Government to the United States, however, to the effect that large numbers of Filipinos would be naturalized and would immigrate to the United States just as the Philippines gained their independence, the Attorney General subsequently revoked the naturalization authority of the INS representative. Thus all naturalizations in the Philippines were halted for a 9-month period from late October 1945 until a new INS representative was appointed in August 1946. Respondent’s claim for naturalization is based on the contention that that conduct of the Government deprived him of due process of law in violation of the Fifth Amendment to the United States Constitution, because he was present in the Philippines during part, but not all, of the 9-month period during which there was no authorized INS representative there. The naturalization examiner recommended denial of Mendoza’s petition, but the District Court granted the petition without reaching the merits of Mendoza’s constitutional claim. The District Court concluded that the Government could not relitigate the due process issue because that issue had already been decided against the Government in In re Naturalization of 68 Filipino War Veterans, 406 F. Supp. 931 (ND Cal. 1975) (hereinafter 68 Filipinos), a decision which the Government had not appealed. Noting that the doctrine of nonmutual offensive collateral estoppel has been conditionally approved by this Court in Parklane Hosiery Co. v. Shore, 439 U. S. 322 (1979), the Court of Appeals concluded that the District Court had not abused its discretion in applying that doctrine against the United States in this case. 672 F. 2d 1320, 1322 (1982). The Court of Appeals rejected the Government’s argument that Parklane Hosiery should be limited to private litigants. Although it acknowledged that the Government is often involved in litigating issues of national significance where conservation of judicial resources is less important than “getting a second opinion,” it concluded that litigation concerning the rights of Filipino war veterans was not such a case. 672 F. 2d, at 1329-1330. For the reasons which follow, we agree with the Government that Parklane Hosiery's approval of nonmutual offensive collateral estoppel is not to be extended to the United States. Under the judicially developed doctrine of collateral estop-pel, once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation. Montana v. United States, 440 U. S. 147, 153 (1979). Collateral estoppel, like the related doctrine of res judicata, serves to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Allen v. McCurry, 449 U. S. 90, 94 (1980). In furtherance of those policies, this Court in recent years has broadened the scope of the doctrine of collateral estoppel beyond its common-law limits. Ibid. It has done so by abandoning the requirement of mutuality of parties, Blonder - Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313 (1971), and by conditionally approving the “offensive” use of collateral estoppel by a nonparty to a prior lawsuit. Parklane Hosiery, supra. In Standefer v. United States, 447 U. S. 10, 24 (1980), however, we emphasized the fact that Blonder-Tongue and Parklane Hosiery involved disputes over private rights between private litigants. We noted that “[i]n such cases, no significant harm flows from enforcing a rule that affords a litigant only one full and fair opportunity to litigate an issue, and [that] there is no sound reason for burdening the courts with repetitive litigation.” 447 U. S., at 24. Here, as in Montana v. United States, supra, the party against whom the estoppel is sought is the United States; but here, unlike in Montana, the party who seeks to preclude the Government from relitigating the issue was not a party to the earlier litigation. We have long recognized that “the Government is not in a position identical to that of a private litigant,” INS v. Hibi, 414 U. S. 5, 8 (1973) (per curiam), both because of the geographic breadth of Government litigation and also, most importantly, because of the nature of the issues the Government litigates. It is not open to serious dispute that the Government is a party to a far greater number of cases on a nationwide basis than even the most litigious private entity; in 1982, the United States was a party to more than 75,000 of the 206, 193 filings in the United States District Courts. Administrative Office of the United States Courts, Annual Report of the Director 98 (1982). In the same year the United States was a party to just under 30% of the civil cases appealed from the District Courts to the Court of Appeals. Id., at 79, 82. Government litigation frequently involves legal questions of substantial public importance; indeed, because the proscriptions of the United States Constitution are so generally directed at governmental action, many constitutional questions can arise only in the context of litigation to which the Government is a party. Because of those facts the Government is more likely than any private party to be involved in lawsuits against different parties which nonetheless involve the same legal issues. A rule allowing nonmutual collateral estoppel against the Government in such cases would substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue. Allowing only one final adjudication would deprive this Court of the benefit it receives from permitting several courts of appeals to explore a difficult question before this Court grants certiorari. See E. I. du Pont de Nemours & Co. v. Train, 430 U. S. 112, 135, n. 26 (1977); see also Califano v. Yamasaki, 442 U. S. 682, 702 (1979). Indeed, if nonmutual estoppel were routinely applied against the Government, this Court would have to revise its practice of waiting for a conflict to develop before granting the Government’s petitions for certiorari. See this Court’s Rule 17.1. The Solicitor General’s policy for determining when to appeal an adverse decision would also require substantial revision. The Court of Appeals faulted the Government in this caseN for failing to appeal a decision that it now contends is erroneous. 672 F. 2d, at 1326-1327. But the Government’s litigation conduct in a case is apt to differ from that of a private litigant. Unlike a private litigant who generally does not forgo an appeal if he believes that he can prevail, the Solicitor General considers a variety of factors, such as the limited resources of the Government and the crowded dockets of the courts, before authorizing an appeal. Brief for United States 30-31. The application of nonmutual estoppel against the Government would force the Solicitor General to abandon those prudential concerns and to appeal every adverse decision in order to avoid foreclosing further review. In addition to those institutional concerns traditionally considered by the Solicitor General, the panoply of important public issues raised in governmental litigation may quite properly lead successive administrations of the Executive Branch to take differing positions with respect to the resolution of-a particular issue. While the Executive Branch must of course defer to the Judicial Branch for final resolution of questions of constitutional law, the former nonetheless controls the progress of Government litigation through the federal courts. It would be idle to pretend that the conduct of Government litigation in all its myriad features, from the decision to file a complaint in the United States district court to the decision to petition for certiorari to review a judgment of the court of appeals, is a wholly mechanical procedure which involves no policy choices whatever. For example, in recommending to the Solicitor General in 1977 that the Government’s appeal in 68 Filipinos be withdrawn, newly appointed INS Commissioner''Castillo commented that such a course “would be in keeping with the policy of the [new] Administration,” described as “a course of compassion and amnesty.” Brief for United States 11. But for the very reason that such policy choices are made by one administration, and often reevaluated by another administration, courts should be careful when they seek to apply expanding rules of collateral estoppel to Government litigation. The Government of course may not now undo the consequences of its decision not to appeal the District Court judgment in the 68 Filipinos case; it is bound by that judgment under the principles of res judicata. But we now hold that it is not further bound in a case involving a litigant who was not a party to the earlier litigation. The Court of Appeals did not endorse a routine application of nonmutual collateral estoppel against the Government, because it recognized that the Government does litigate issues of far-reaching national significance which in some cases, it concluded, might warrant relitigation. But in this case it found no “record evidence” indicating that there was a “crucial need” in the administration of the immigration laws for a redetermination of the due process question decided in 68 Filipinos and presented again in this case. 672 F. 2d, at 1329-1330. The Court of Appeals did not make clear what sort of “record evidence” would have satisfied it that there was a “crucial need” for redetermination of the question in this case, but we pretermit further discussion of that approach; we believe that the standard announced by the Court of Appeals for determining when relitigation of a legal issue is to be permitted is so wholly subjective that it affords no guidance to the courts or to the Government. Such a standard leaves the Government at sea because it cannot possibly anticipate, in determining whether or not to appeal an adverse decision, whether a court will bar relitigation of the issue in a later case. By the time a court makes its subjective determination that an issue cannot be relitigated, the Government’s appeal of the prior ruling of course would be untimely. We hold, therefore, that nonmutual offensive collateral es-toppel simply does not apply against the Government in such a way as to preclude relitigation of issues such as those involved in this case. The conduct of Government litigation in the courts of the United States is sufficiently different from the conduct of private civil litigation in those courts so that what might otherwise be economy interests underlying a broad application of collateral estoppel are outweighed by the constraints which peculiarly affect the Government. We think that our conclusion will better allow thorough development of legal doctrine by allowing litigation in multiple forums. Indeed, a contrary result might disserve the economy interests in whose name estoppel is advanced by requiring the Government to abandon virtually any exercise of discretion in seeking to review judgments unfavorable to it. The doctrine of res judicata, of course, prevents the Government from relitigating the same cause of action against the parties to a prior decision, but beyond that point principles of nonmutual collateral estoppel give way to the policies just stated. Our holding in this case is consistent with each of our prior holdings to which the parties have called our attention, and which we reaffirm. Today in a companion case we hold that the Government may be estopped under certain circumstances from relitigating a question when the parties to the two lawsuits are the same. United States v. Stauffer Chemical Co., post, p. 165; see also Montana v. United States, 440 U. S. 147 (1979); United States v. Moser, 266 U. S. 236 (1924). None of those cases, however, involve the effort of a party to estop the Government in the absence of mutuality. The concerns underlying our disapproval of collateral es-toppel against the Government are for the most part inapplicable where mutuality is present, as in Stauffer Chemical, Montana, and Moser. The application of an estoppel when the Government is litigating the same issue with the same party avoids the problem of freezing the development of the law because the Government is still free to litigate that issue in the future with some other party. And, where the parties are the same, estopping the Government spares a party that has already prevailed once from having to relitigate — a function it would not serve in the present circumstances. We accordingly hold that the Court of Appeals was wrong in applying nonmutual collateral estoppel against the Government in this case. Its judgment is therefore Reversed. Mendoza sought naturalization pursuant to §§ 701-705 of the Nationality Act of 1940, 54 Stat. 1137, added by the Second War Powers Act, 1942, 56 Stat. 182, as amended, 8 U. S. C. §§1001-1005 (1940 ed., Supp. V). In 68 Filipinos, the District Court considered the naturalization petitions of 68 Filipino World War II veterans filed pursuant to §§ 701-702 of the Nationality Act. Fifty-three of those veterans, whom the District Court designated as Category II veterans, like Mendoza, had made no effort to become naturalized before the expiration of the statutory provisions. Like Mendoza, they claimed that the failure of the United States to station an INS representative in the Philippines for the entire period of time in which rights under § 702 were available to them discriminated against Filipinos as a class. Rejecting the Government’s arguments that INS v. Hibi, 414 U. S. 5 (1973) (per curiam), was controlling, that the issue was nonjusticiable, and that petitioners were not protected by the Federal Constitution during the period at issue, the court applied strict scrutiny to petitioners’ claim and held that the Government had not offered sufficient justification for its conduct. 406 F. Supp., at 940-951. Although the Government initially docketed an appeal from that decision, the Court of Appeals granted the Government’s motion to withdraw the appeal on November 30, 1977. The Government made that motion after a new administration and a new INS Commissioner had taken office. Eventually the Government reevaluated its position and decided to take appeals from all orders granting naturalization to so-called Category II petitioners, with the exception of orders granting naturalization to petitioners who filed petitions prior to the withdrawal of the appeal in 68 Filipinos. Brief for United States 11-12, and n. 13; Olegario v. United States, 629 F. 2d 204, 214 (CA2 1980), cert. denied, 450 U. S. 980 (1981). Mendoza’s petition for naturalization was filed after the Government withdrew its appeal in 68 Filipinos. Under res judicata, a final judgment on the merits bars further claims by parties or their privies on the same cause of action. Montana v. United States, 440 U. S., at 153; Parklane Hosiery Co. v. Shore, 439 U. S. 322, 326, n. 5 (1979). The Restatement of Judgments speaks of res judi-cata as “claim preclusion” and of collateral estoppel as “issue preclusion.” Restatement (Second) of Judgments § 27 (1982). Offensive use of collateral estoppel occurs when a plaintiff seeks to foreclose a defendant from relitigating an issue the defendant has previously litigated unsuccessfully in another action against the same or a different party. Defensive use of collateral estoppel occurs when a defendant seeks to prevent a plaintiff from relitigating an issue the plaintiff has previously litigated unsuccessfully in another action against the same or a different party. Parklane Hosiery, supra, at 326, n. 4. In Montana we held that the Government was estopped from relitigat-ing in federal court the constitutionality of Montana’s gross receipts tax on contractors of public construction firms. That issue had previously been litigated in state court by an individual contractor whose litigation had been totally financed and controlled by the Federal Government. Montana v. United States, supra, at 151, 155; see n. 9, infra. The Attorney General has delegated discretionary authority to the Solicitor General to determine when to appeal from a judgment adverse to the interests of the United States. 28 CFR § 0.20(b) (1983). The Government does not base its argument on the exception to the doctrine of collateral estoppel for “unmixed questions of law” arising in “successive actions involving unrelated subject matter.” Montana v. United States, 440 U. S., at 162; see United States v. Stauffer Chemical Co., post, p. 165; United States v. Moser, 266 U. S. 236, 242 (1924). Our holding in no way depends on that exception. In Nevada v. United States, 463 U. S. 110 (1983), we applied principles of res judicata against the United States as to one class of claimants who had not been parties to an earlier adjudication, id., at 143-144, but we recognized that this result obtained in the unique context of “a comprehensive adjudication of water rights intended to settle once and for all the question of how much of the Truckee River each of the litigants was entitled to.” Id., at 143. In Montana an individual contractor brought an initial action to challenge Montana’s gross receipts tax in state court, and the Federal Government brought a second action in federal court raising the same challenge. The Government totally controlled and financed the state-court action; thus for all practical purposes, there was mutuality of parties in the two cases. “[T]he United States plainly had a sufficient ‘laboring oar’ in the conduct of the state-court litigation,” 440 U. S., at 155, to be constituted a “party” in all but a technical sense. 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_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". HUDSON RIVER SLOOP CLEARWATER, INC., The Sierra Club, Inc., Friends of the Earth, Inc., American Littoral Society, Inc., Physicians For Social Responsibility/NYC, Inc., New York Public Interest Research Group, Inc., New York Lawyers Alliance For Nuclear Arms Control, Miriam Friedlander, Member of the New York City Council, Ruth W. Messinger, Member of the New York City Council, Carol Greitzer, Member of the New York City Council, Julia Harrison, Member of the New York City Council, Arthur Katzman, Member of the New York City Council, Carolyn B. Maloney, Member of the New York City Council, Stanley E. Michels, Member of the New York City Council, Dr. E. Thomas Henkel, Robert McAndrew, and John Worlock, Plaintiffs-Appellants, v. DEPARTMENT OF the NAVY, William L. Ball, III, as Secretary of the Department of the Navy, Everette Pyatt, as Assistant Secretary of the Department of the Navy, Admiral Carisele A.H. Trost, as Chief of Naval Operations, Department of Defense, Frank Carlucci, as Secretary of the Department of Defense and Jack Katzen, as Assistant Secretary of the Department of Defense, Defendants-Appellees. No. 188, Docket 89-6121. United States Court of Appeals, Second Circuit. Argued Sept. 11, 1989. Decided Dec. 5, 1989. Leonard M. Marks, New York City (Alan R. Friedman, Thomas P. McCaffrey; Gold, Farrell & Marks, New York City, of counsel), for plaintiffs-appellants. Robin Greenwald, Asst. U.S. Atty., E.D. N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for defendants-appellees. Henry Mark Holzer, Brooklyn Law School, Brooklyn, N.Y. (Local Counsel); Daniel J. Popeo, Paul D. Kamenar, Washington Legal Foundation, Washington, D.C., filed a brief for amici curiae Washington Legal Foundation and Allied Educational Foundation in Support of appellees. Before CARDAMONE and MAHONEY, Circuit Judges and POLLACK, District Judge. Honorable Milton Pollack, United States District Judge for the Southern District of New York, sitting by designation. CARDAMONE, Circuit Judge: With visions of the tragic consequences that eventuated in December 1941 when an entire naval fleet congregated in one harbor, the Navy has since emphasized dispersal. In 1982 it adopted the Strategic Homeport Concept that effectively divides the U.S. fleet into smaller action groups and places them in ports and harbors scattered geographically. The hope is that this approach will improve the Navy’s ability to respond and decrease its vulnerability. Whether or not the action group harbored at Staten Island, New York carries nuclear weapons is the gnawing question that prompted this lawsuit. BACKGROUND Appellants — Hudson River Sloop Clear-water, Inc., the Sierra Club, Inc., Friends of the Earth, Inc., et al. — are a coalition of environmental and arms control groups, seven members of the New York City Council, and individual homeowners (collectively plaintiffs or appellants) who live in the area surrounding the site of the U.S. Navy’s proposed New York Harbor Home-port. Appellees are the U.S. Department of the Navy, U.S. Department of Defense, the Secretaries of the Navy and Defense and other high ranking officials with those Departments (collectively Navy or appel-lees). On July 29, 1983 the Navy announced that it had chosen the Stapleton-Fort Wadsworth Complex in Staten Island, New York as its preferred site for the new homeport for an American battleship, the U.S.S. Iowa, and its accompanying six ship surface action group that includes an aircraft carrier, three destroyers and two frigates. Some of the ships to be berthed at the Staten Island Homeport are capable of carrying nuclear weapons. The Navy issued a Draft Environmental Impact Statement (DEIS) for the Homeport plan in October 1984 and, after permitting the required public comment period, issued its Final Environmental Impact Statement (FEIS) on February 1, 1985. Most of the public comments received expressed serious concerns regarding the risks attendant upon the deployment of U.S. Navy warships armed with nuclear weapons in New York City’s harbor, of which Staten Island is a part. Neither the DEIS nor the FEIS discussed nuclear weapons or the environmental impact of deploying them at the Homeport, except to state that national security interests preclude the Navy from confirming or denying the presence of nuclear weapons aboard any particular U.S. Navy ship. See Chief of Naval Operations (OPNAV) Instructions (s)5513.9B, 5721.ID (27 July 1984). The effect of these instructions, the Navy asserts, is to deny any potential enemy important information regarding American weapons and their location, and similarly to deny information to a potential saboteur who may intend to destroy, incapacitate or capture such weapons. On March 14, 1985 the Navy issued a Record of Decision announcing its intention to proceed with the Homeport project as set forth in the FEIS. On December 27, 1985 it issued a supplemental FEIS addressing the decision to construct housing facilities for Homeport personnel. Its supplemental FEIS was released on March 21, 1986 and a final decision regarding the construction and operation of the Home-port issued on August 20, 1986. Six weeks later — on October 3, 1986 — appellants commenced the instant litigation in the United States District Court for the Eastern District of New York (Sifton, J.). The major allegations in the complaint relate to the decision to proceed with the construction and operation of the Home-port. Plaintiffs assert that the Navy did not comply with either the Fish and Wildlife Coordination Act, 16 U.S.C. § 662(b), or with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321. Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), requires federal agencies to consider the environmental impact of proposals for legislation and other major federal actions. The NEPA claims allege that the Navy failed to consider adequately: (i) the effects of the construction of the Homeport on archaeologically sensitive areas, (ii) the effects of construction on historic properties, (iii) a safety zone between conventional weapons and populated areas, (iv) the effects of the storage and transportation of conventional explosives, and that it had failed to comply with NEPA’s public disclosure requirement in its FEIS by failing to discuss the environmental impact of stationing nuclear weapons at the Home-port. This last claim (the “public disclosure” claim) is one of the two NEPA claims before us. On April 28, 1987 Judge Sifton granted the Navy’s motion for partial summary judgment on the public disclosure claim. Hudson River Sloop Clearwater, Inc. v. Department of Navy, 659 F.Supp. 674, 687 (E.D.N.Y.1987). On September 23, 1988 the district court granted appellants’ motion for leave to file a supplemental amended complaint alleging that the Navy failed to comply with NEPA — independently of its public disclosure requirements — when it allegedly neglected to integrate environmental concerns respecting the presence of nuclear weapons into its internal, non-public decisionmaking process. This “internal decision” claim is the second NEPA claim raised on this appeal. In an order dated May 1, 1989, the district court dismissed the internal decision cause of action for lack of subject matter jurisdiction, holding that the “national security doctrine,” Totten v. United States, 92 U.S. 105, 23 L.Ed. 605 (1875), barred plaintiffs from bringing an action on that claim in federal court. Memorandum and Order at 12-13, Hudson River Sloop Clearwater, Inc., et al. v. Department of Navy, No. 86-3292 (E.D.N.Y. May 4, 1989). On May 25, 1989, Judge Sifton then entered judgment on both the public disclosure and internal decision claims, certifying them under Fed.R.Civ.P. 54(b) as final for purposes of appeal. Memorandum and Order at 2-3, Hudson River Sloop Clearwater, Inc., et al. v. Department of Navy, No. 86-3292 (E.D.N.Y. May 25, 1989). This appeal and cross-appeal followed. We affirm. DISCUSSION I. Rule 54(b) Certification Before analyzing the merits of the public disclosure and internal decision claims raised by appellants, we first consider ap-pellees’ challenge to our subject matter jurisdiction to entertain this appeal. Because the district court certified its judgment as final under Fed.R.Civ.P. 54(b), we begin discussion there. Rule 54(b) permits the district court to “direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” Id. Appellees urge that the decision to grant Rule 54(b) certification was deficient on three grounds: (1) that the claims on appeal are not distinct and separate claims from those that remain to be litigated in the district court; (2) that appellants face no threat of hardship or injustice that would be caused by delaying this appeal; (3) that the district court failed to include a reasoned explanation, required by Rule 54(b), as to why immediate appeal is appropriate. A. Does More Than One Claim Exist? In deciding whether the district court correctly determined that more than one claim exists for purposes of Rule 54(b), our scope of review is broad. See Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 10, 100 S.Ct. 1460, 1466, 64 L.Ed.2d 1 (1980); Avondale Indus., Inc. v. The Travelers Indemnity Co., 887 F.2d 1200 (2d Cir.1989); 10 Wright, Miller & Kane, Federal Practice and Procedure, Civil 2d § 2655, at 42-43 (1983). The wide deference accorded a trial court under Rule 54(b) is usually reserved for its determination that no just cause for delay exists. See Curtiss-Wright, 446 U.S. at 10, 100 S.Ct. at 1466. Therefore, we must examine de novo the relationship between plaintiffs’ claims to determine whether they are sufficiently separate and distinct as to lend themselves to review as single units, or whether they are so interrelated and dependent upon each other as to be one indivisible whole. In Gottesman v. General Motors Corp., 401 F.2d 510, 512 (2d Cir.1968), we defined the word “claim” in the context of Rule 54(b) as “ ‘the aggregate of operative facts which give rise to a right enforceable in the courts.’ ” (quoting Original Ballet Russe v. Ballet Theatre, 133 F.2d 187, 189 (2d Cir.1943)). Gottesman was a stockholders’ derivative suit that contained 14 causes of action. These causes of action together alleged, in essence, that E.I. duPont de-Nemours & Co. had dominated and controlled General Motors in the purchase of duPont products, including automotive fabrics and finishes, Freon refrigerant, refrigerator finishes, and tetraethyl lead. The trial court decided to litigate each allegation of coercion separately, and rendered final judgment on the question of automotive fabrics and finishes first. We held that Rule 54(b) certification was proper, and that there were separate claims, since: “Each product involves separate markets and commercial considerations. Different exhibits, proof and witnesses will be necessary; different sets of operative facts will determine the result.” Id. at 512. In Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297 (1956), the Supreme Court held that separate counts of a plaintiff’s four-count complaint were separate claims for purposes of Rule 54(b) in a case where plaintiff’s first count sought damages under the antitrust laws for injury to three of his commercial ventures, and the remaining counts sought recovery on common law grounds for the injury sustained by each individual venture. Id. at 436, 76 S.Ct. at 900. In contrast, the cases upon which appel-lees rely to show that only one claim exists involve judgments on claims which were dependent upon other claims remaining in the litigation. See Cinerama, Inc. v. Sweet Music, S.A., 482 F.2d 66 (2d Cir.1973) (claim for prejudgment interest dependent upon liability for principal); Aetna Casualty & Sur. Co. v. Giesow, 412 F.2d 468 (2d Cir.1969) (claim for attorney’s fees dependent upon underlying claim for damages and therefore not separate for Rule 54(b) purposes); see also Minority Police Officers Ass’n v. City of South Bend, Indiana, 721 F.2d 197 (7th Cir.1983) (claims not sufficiently separate for purposes of Rule 54(b) if the facts they depend on are “largely the same”). When the certified claims are based upon factual and legal questions that are distinct from those questions remaining before the trial court the certified claims may be considered separate claims under Rule 54(b). The separate and distinct test is satisfied in the case at hand. None of the causes of action remaining in the district court are concerned with the deployment of nuclear weapons or information declared classified by the Navy. Although the claims on appeal stem from the same general objection that appellants make against the Navy (that it failed to consider adequately the environmental impacts of building and operating the proposed Homeport), they involve a unique factual scenario — deployment of nuclear weapons — and raise legal issues wholly distinct from those that remain for trial. Further, it is important to keep in mind the purposes and policies behind the distinct and separate claims requirement of Rule 54(b), namely the desire to avoid redundant review of multiple appeals based on the same underlying facts and similar issues of law. See Curtiss-Wright, 446 U.S. at 8, 100 S.Ct. at 1465. In this case, any subsequent appeals on the remaining claims (those denied summary judgment) will involve questions of fact and law entirely distinct from the issues now before us. B. The District Court’s Determination That There Was No Just Reason for Delay The other aspect of the Rule 54(b) certification — that there was no just reason for delaying final judgment on the appealed claims — is one concerning which we accord considerable deference to the district court because of its more intimate knowledge of the factual circumstances of the case. See Curtiss-Wright, 446 U.S. at 10, 100 S.Ct. at 1466; Avondale, 887 F.2d 1200. In entering final judgment on the internal decision claim based on the May 1 order, Judge Sifton stated that “given the nature of the issues presented, there is reason for expedited review of the novel legal issues presented, given their public import.” He also found that there was no just reason for delay in entering a final judgment in his decision of April 28, 1987 granting summary judgment against appellants’ public disclosure claim since that claim is integrally connected to the internal decision claim, and thus, “[ejntry of final judgment on both claims together, rather than only on the second claim ... would promote rather than frustrate ‘the policy against piecemeal appeals’ and serve ‘[t]he interests of sound judicial administration and efficiency....’” Memorandum and Order, at 3 (E.D.N.Y. May 25, 1989) (citations omitted). We agree that the issues on appeal are unique and that their resolution is of public import. Whether or not the Navy actually plans on deploying these weapons, or even whether appellants are ultimately unsuccessful on appeal, are not factors that should be considered in determining the issue of no just cause for delay. The very threat that appellants seek to enjoin through litigating the certified claims — the threat of the alleged presence of nuclear weapons in New York Harbor — could become a reality in the time it takes to try the remaining claims in the district court. Appellees argue, relying on Brunswick Corp. v. Sheridan, 582 F.2d 175 (2d Cir.1978), that “there must be some danger of hardship or injustice through delay which would be alleviated by immediate appeal” before Rule 54(b) certification is appropriate, and that it should be granted only in “the infrequent harsh case.” Id. at 183. Curtiss-Wright rejected such a restricted scope for Rule 54(b): “However accurate it may be as a description of cases qualifying for Rule 54(b) treatment, the phrase ‘infrequent harsh case’ in isolation is neither workable nor entirely reliable as a benchmark for appellate review.” 446 U.S. at 10, 100 S.Ct. at 1466. Although hardship and injustice are not thereby eliminated as factors that should be considered when a district court decides whether to grant certification under Rule 54(b), the Supreme Court cautions us to review the sufficiency of these factors within the broad scope of the district court's discretion to see if certification is in the “interest of sound judicial administration.” Id. We need not now decide if Curtiss-Wright has eliminated the requirement for some showing of hardship, since we believe that a sufficient showing of hardship were the appeal delayed has been made. Hence, the district court’s finding that these two claims were ripe for final judgment was not an abuse of its discretion, and its certification to that affect will not be disturbed. C. Rule 54(b)’s Requirement of a Reasoned Explanation Although the district court’s explanation for granting Rule 54(b) certification was brief, it was sufficient. Obviously, mere recitation of the language of the rule that “there is no just reason for delay” is insufficient to certify a claim under Rule 54(b). See Cullen v. Margiotta, 811 F.2d 698, 711 (2d Cir.), cert. denied, 483 U.S. 1021, 107 S.Ct. 3266, 97 L.Ed.2d 764 (1987). But here Judge Sifton referred to the public import of the issue on appeal, and explained that sound judicial administration warranted Rule 54(b) certification because the certified claims were easily separated from those remaining. Where, as here, the certified judgments are based entirely upon distinct questions of law and the hardship to appellants that would result from delaying their appeal is conspicuous, brief remarks by the district court are sufficient to invoke the obvious. II. The Public Disclosure Claim Plaintiffs raise two arguments respecting the public disclosure claim. From the April 28 grant of partial summary judgment, they contend that on the merits summary judgment was not warranted, and that their Rule 56(f) motion to conduct discovery should have been granted before the district court granted appellees’ motion for summary judgment. We cannot agree with either of these arguments. A. Summary Judgment Discussion of the merits of granting summary judgment on the public disclosure claim must be guided by Weinberger v. Catholic Action of Hawaii/Peace Educ. Project, 454 U.S. 139, 102 S.Ct. 197, 70 L.Ed.2d 298 (1981). There, the Supreme Court identified two obligations that NEPA § 102(2)(C) places on government agencies: (1) “to inject environmental considerations into the federal agency’s decisionmaking process,” and (2) “to inform the public that the agency has considered environmental concerns in its decisionmaking process.” Id. at 143 (emphasis added). Appellants’ public disclosure claim is based on the second requirement of § 102(2)(C), i.e., that the Navy failed to include in its public FEIS any analysis of the impact of deploying nuclear weapons at the Homeport. Relying on the Supreme Court’s decision in Catholic Action, the district court granted partial summary judgment for the appel-lees. In Catholic Action plaintiffs sought an injunction to block the construction of a nuclear weapons capable storage facility until the Navy issued an EIS addressing the risks of that sort of storage. The district court held that the Navy did not need to disclose whether it intended to deploy nuclear weapons at the facility and that it therefore need not issue an EIS addressing nuclear deployment. Catholic Action of Hawaii/Peace Educ. Project v. Brown, 468 F.Supp. 190, 193 (D.Hawaii 1979). The Ninth Circuit reversed the district court concluding that § 102(2)(C) requires the Navy to prepare a “Hypothetical Environmental Impact Statement” when it proposes construction of a facility capable of storing nuclear weapons. 643 F.2d 569, 572 (1980). It further held that requiring a hypothetical EIS did not breach the Navy’s policy of “nuclear ambiguity” because it did not reveal anything “of which the public is not already aware,” namely, that nuclear weapons might be stored in a nuclear capable facility. The Supreme Court reversed the Ninth Circuit stating that Congress, in enacting § 102(2)(C), had already set the balance between the public’s need to be informed and the government’s need for secrecy. NEPA provides, the Court noted, that any information kept from the public under the exemptions in the Freedom of Information Act (FOIA), 5 U.S.C. § 552, need not be disclosed. 454 U.S. at 145, 102 S.Ct. at 202-03. FOIA’s exemption (1), 5 U.S.C. § 552(b)(1), allows the government to deny public disclosure of matters properly classified pursuant to an executive order in the interest of national defense. The Court held that “virtually all information relating to the storage of nuclear weapons is classified” pursuant to Executive Order No. 12065 and thus is exempt from NEPA’s public disclosure requirements. The Court also concluded that the Navy was not required to include in a publicly disclosed EIS any reference to the presence of nuclear weapons when their presence was merely “contemplated.” It was only required to do so when deployment of such weapons was actually “proposed” publicly. Id. at 146, 102 S.Ct. at 203. The Court nonetheless found that even when the Navy is not required to issue a public EIS concerning undisclosed and classified deployment of nuclear weapons, the first requirement of NEPA § 102(2)(C) — that the agency inject environmental considerations into its decisionmaking process — requires the Navy to assess the impact of deploying nuclear weapons in its own internal environmental impact analysis. This internal decisionmaking process, and the findings regarding classified aspects of the proposal, need not be publicly disclosed. Id. Finally, the Court noted that the Ninth Circuit’s hypothetical EIS requirement created an extra-legislative requirement to prepare “a document that would not exist save for what [the Court of Appeals] thought to be NEPA’s public disclosure requirements.” Id. at 145, 102 S.Ct. at 202-03. In the case at bar, the Navy asserted that information related to its deployment of nuclear weapons is exempted from public disclosure under FOIA exemptions codified at § 552(b)(1) and (b)(3). Exemption (3) is similar to exemption (1), except that (3) applies to information classified by statute rather than by executive order. Appel-lees assert that the Atomic Energy Act, 42 U.S.C. § 2014(y), exempts from public disclosure information concerning “the design, manufacture, or utilization” of nuclear weapons, and that exemption (3) therefore bars public disclosure. The district court did not decide this issue, finding a sufficient foundation for summary judgment in exemption (1). Claiming that Catholic Action does not require summary judgment for the Navy in the instant case, appellants contend that the Navy waived its “neither confirm nor deny” policy with respect to the New York Harbor Homeport through the admissions of Navy officials testifying publicly before Congress, and through the unofficial statements of a retired Rear Admiral. See 659 F.Supp. at 681. Thus, they urge that FOIA exemptions (1) and (3) are inapplicable since the Navy has “declassified” the fact that nuclear weapons will in fact be deployed at the Homeport. In making this argument appellants rely on a series of cases holding that FOIA exemptions (1) and (3) no longer support exemption when the information sought has previously been made public through official disclosures. See, e.g., Afshar v. Department of State, 702 F.2d 1125, 1130-33 (D.C.Cir.1983); Nuclear Control Institute v. U.S. Nuclear Regulatory Comm’n, 563 F.Supp. 768, 771 (D.D.C.1983); Fitzgibbon v. Central Intelligence Agency, 578 F.Supp. 704, 715 (D.D.C.1983); see also National Lawyers Guild v. Attorney General, 96 F.R.D. 390, 402 (S.D.N.Y.1982) (evi-dentiary privilege). These cases hold that the recited exemptions may not be invoked to prevent public disclosure when the government has officially disclosed the specific information being sought. See Afshar, 702 F.2d at 1130 (plaintiff bears the burden of showing specific information in the public domain that duplicates the information withheld); Fitzgibbon, 578 F.Supp. at 715 (plaintiff must show that information in public domain is as specific as that which is being sought, relates to the same time period, and has been the result of an official disclosure (citing Afshar, 702 F.2d at 1133)); National Lawyers Guild, 96 F.R.D. at 402 (prior disclosure of similar, as opposed to specific, information to that being sought does not waive the state secrets privilege). The district court ruled that the official statements upon which appellants rely to show that the Navy waived its FOIA exemptions did not disclose the specific information which they presently seek. It found that the testimony of various high-ranking Navy officials before Congress did not establish that the Navy has officially proposed to deploy nuclear weapons at the New York Harbor Homeport, but confirm only what the Navy already admits: that the ships to be stationed at the Homeport are capable of carrying nuclear weapons. 659 F.Supp. at 681. We agree. Appellants also relied upon the affidavit of retired Rear Admiral Carroll to establish that the Navy has publicly disclosed information making FOIA national security exemptions not pertinent. As the district court aptly pointed out, Admiral Carroll’s statements cannot effect an official disclosure of information since he is no longer an active naval officer. See Afshar, 702 F.2d at 1133-34. Admiral Carroll’s affidavit expresses only his personal conclusions based on speculation. We grant that his speculations are founded on many years of experience in the Navy where he served as a high-ranking officer, and for that reason perhaps deserve credit beyond that afforded the conclusions of those not formerly privy to official information. Yet, however credible these insights, they do not translate into official disclosures. See Laine v. Weinberger, 541 F.Supp. 599, 602-03 (C.D.Cal.1982) (speculation based on the nuclear capability of a facility insufficient to establish that Navy disclosed deploying nuclear weapons there, Navy may rely on FOIA exemptions (1) and (3)). Officials no longer serving with an executive branch department cannot continue to disclose official agency policy, and certainly they cannot establish what is agency policy through speculation, no matter how reasonable it may appear to be. As a consequence, Admiral Carroll’s disclosures did not affect the applicability of the FOIA exemption, and summary judgment was properly granted on the merits of the public disclosure claim. B. Rule 56(f) Prior to the district court’s granting of summary judgment to appellees on the public disclosure claim, appellants requested time to conduct discovery, pursuant to Fed.R.Civ.P. 56(f). The district court denied this request, observing that the information appellants sought was not material to their stated opposition. 659 F.Supp at 684. Rule 56(f) states that when it appears that the party opposing a motion for summary judgment cannot “present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit ... discovery to be had ” Thus, a party seeking such discovery must file an affidavit explaining (1) what facts are sought and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort the affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts. Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir.1985). Plaintiffs submitted an affidavit stating that they intended to seek discovery “from [the Navy], from past and present state, local and regional officials, and from other third-party witnesses who have had communications with the Navy and [congressional] representatives about the New York homeport.” 659 F.Supp. at 684. They stated that discovery would reveal that the Navy had disclosed that it was going to deploy nuclear weapons at the Homeport in unclassified statements. Yet, even if plaintiffs had obtained what they stated would be uncovered, the information would have been insufficient to defeat summary judgment. To defeat the motion for summary judgment, appellants would have had to produce information confirming that the Navy had officially stated that it would deploy nuclear weapons at the Homeport. Any unofficial statements allegedly made by the Navy to third parties which were not a matter of public record would either be classified and given only to individuals with proper security clearance or unauthorized “leaks.” Because official statements by definition would therefore have to have been matters of public record, the discovery plaintiffs sought would not reveal anything new requiring denial of summary judgment. Insofar as the effort was to uncover official disclosures, appellants made no showing that they did not have reasonable access to such disclosures prior to bringing their Rule 56(f) request. The public nature of any proposal to deploy nuclear weapons would have made it easily discoverable prior to appellants’ request for additional discovery. Thus, the Rule 56(f) request was properly denied. III. The Internal Decision Claim The internal decision claim alleges that the Navy violated the first requirement of NEPA § 102(2)(C)-that it inject environ- mental considerations into its internal deci- sionmaking process. See Catholic Action, 454 U.S. at 143, 102 S.Ct. at 201. This claim was made in a supplemental amended complaint, after appellants “discovered” new evidence that allegedly supports it. The new evidence&emdash;found in a classified report issued by the United States General Accounting Office (GAO Report)&emdash;was pre- Office (GAO Report) — was prepared at the request of New York City Congressman Weiss, who holds the proper security clearance to read it. Though not a party to this suit, Congressman Weiss has been an active opponent of the New York Harbor Homeport proposal and brought the existence of the report to appellants’ attention. Although they have never seen the GAO Report, appellants state that it contains information that the Navy violated NEPA by failing adequately to consider in its internal decisionmaking process the environmental impacts of certain “classified aspects” of the Homeport proposal. This allegation is based upon statements made by Congressman Weiss that suggest that the GAO Report reflects that insufficient consideration was given by the Navy to the environmental impact of the classified aspects of the Homeport. This claim was dismissed by the trial court’s order of May 1, 1989 for lack of subject matter jurisdiction. The Supreme Court over a century ago explained in Totten v. United States that public policy prevents the maintenance of such a lawsuit which, were it tried, would “inevitably lead to the disclosure” of confidential matters. 92 U.S. 105, 107, 23 L.Ed. 605 (1875). Relying on the Totten “national security” doctrine and the reference made to Totten in Catholic Action, 454 U.S. at 146-47, 102 S.Ct. at 203-04, the district court believed it lacked jurisdiction to entertain the internal decision claim. The district judge reasoned that a judgment in appellants’ favor necessarily would imply that nuclear weapons were being deployed, thus compromising the Navy’s policy of strategic ambiguity. We agree with this result, but think that the issue need not be resolved on whether judicial proceedings would necessarily divulge classified information to the public. Rather, a careful reading of Catholic Action teaches that though NEPA requires an agency to consider environmental considerations — even when disclosure is not permitted — an internal EIS need not be prepared when a project is simply contemplated. It is only when such a project is proposed — though not publicly announced — that the Navy is required to prepare an internal EIS. 454 U.S. at 146, 102 S.Ct. at 203. In Catholic Action the Court stated that it cannot be established that the Navy has proposed to deploy nuclear weapons so long as it relies on a policy of neither confirming nor denying such deployment. Id. In this case, too, appellants cannot establish that the Navy has proposed to deploy nuclear weapons at the Homeport until the Navy officially discloses such a proposal. As discussed above, no official disclosure has been made. Appellants claim that they can demonstrate through information contained in the GAO Report that the Navy actually proposed to deploy nuclear weapons. Nevertheless, though this sort of classified information may occasionally be admissible as evidence — and even sometimes the subject of specially constructed litigation — plaintiff still has the burden 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_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. Lester COX, Appellant, v. CITY OF FREEMAN, MISSOURI, and C. Kenneth Maib, Appellees. No. 17196. United States Court of Appeals Eighth Circuit. July 19, 1963. Rodger J. Walsh Linde, Thomson, Van Dyke, Fairchild & Langworthy, Kansas City, Mo., for appellant. Charles V. Garnett, Kansas City, Mo., for appellees. Don F. Whitcraft, Harrisonville, Mo., for appellee City of Freeman. Charles V. Garnett and Dan Boyle, Kansas City, Mo., for appellee Maib. Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and YOUNG, District Judge. YOUNG, District Judge. This is a diversity action brought by Cox, a citizen of Kansas, against the City of Freeman, Missouri, and Maib, a citizen of Missouri. This action arises out of an agreement between the appellant, Lester Cox, and the City of Freeman, Missouri, under which Cox contracted to build the City a waterworks. This contract was let in four parts; an agreement to build Parts I, II, and IV of the waterworks was entered into on the 28th day of April, 1959, and the contract to build Part III was dated June 10, 1959. Part I was the distribution system or water lines in the city. Part II was the earth-filled dam for the lake, Part III was for the purification plant, and Part IV was for the water storage standpipe or water tower. There is some dispute as to whether Cox had 90 days to finish the whole contract or 90 days for each Part, but, at any rate, Cox received written notice to proceed with portions of the contract on August 5, 1959, and he then had 15 days to commence work on the job; the State Department of Health approved the waterworks on May 4, 1960, and an extension of time to paint was granted until August 5, 1960. Sometime around the middle of June 1960 it became obvious that the parties were in disagreement about the amount of money which the City owed Cox; Cox contending that the City owed him $10,-303.34, and the City demanding that the bill be reduced because of delays in the completing of the job. On June 19, 1960, the City officials, Maib (City Engineer) , and Cox attended a meeting to negotiate a final settlement. At this meeting an “Agreement” was entered into which stipulated, inter alia, the City owed Lester Cox $73,315.20 on the contract less $68,188.05 already paid, leaving a balance due of $5,127.15 subject to certain conditions which were then set out; included in this list was a qualification referring to provision No. 1.18 of the original construction contract. This provision provided for a deduction from the final payment to Cox damages incurred by the City caused by the contractor’s delay in completing the waterworks. On September 28, 1960, the defendant Maib wrote Cox a letter in which he said: “In keeping with the General Conditions of the Agreement and supplement agreement dated June 15, 1960, relative to the captioned project I have certified to the owner final payment to you as follows: * * Maib then went on to list the debits against the $5,127.15 mentioned in the June 15th instrument; included in this list are charges against Cox for painting, minor repairs, and one unexplained entry to “Troth Plumbing Co.,” which come to a total of $468.00, but by far the largest debit is the “penalty” due for the alleged four and one-fifth months’ overtime, which amounts to $3,-956.40. The debits listed, subtracted from the $5,127.15, leave a “Net amount due Cox Trenching” of $702.75. Maib enclosed three checks made out to Cox and, in two cases, other parties, which totaled the $702.75 which Maib alleged that the City owed Cox. At the trial Cox testified that he received the checks just mentioned and “cashed them or paid the indicated checks to suppliers.” On September 29, 1960, Cox filed a complaint against the City and Maib. Cox sued the City, alleging that it still owed him on the contract, and in tort for negligently hiring Maib and for the alleged negligence of Maib under the doctrine of respondeat superior. Cox sues Maib in tort contending that Maib, acting as the agent, servant, and employee of the City, was negligent in that he caused, while acting as engineer, certain “unnecessary delays to the plaintiff in completing the contract * * These alleged delays were that Maib: “ (a) Caused an unnecessary delay on the completion of the line to the lake by his failure to have the necessary engineering completed before the City gave the written notice to start work and damaged the plaintiff in the amount of Six Thousand Four Hundred ($6,400.00) Dollars; "(b) Caused an unnecessary delay on the location of the tower site by his failure to have the necessary engineering completed before the City gave the written notice to start work, and damaged the plaintiff in the amount of Two Thousand ($2,-000.00) Dollars; “(c) Caused an unnecessary delay on the location of the plant site by his failure to have the necessary engineering completed before the City gave the written notice to start work, and damaged the plaintiff in the amount of One Thousand Three Hundred Thirty-two ($1,332.00) Dollars; “(d) Caused an unnecessary delay on the trenching of rock near Highway 2 by his failure to have the necessary engineering completed before the City gave the written notice to start work, and damaged the plaintiff in the amount of One Thousand Seven Hundred Four ($1,704.-00) Dollars; “(e) Caused an unnecessary delay on the completion of the contract by his negligence and carelessness in over-pressuring the water lines, in. rupturing the lines by putting pressure in the lines exceeding the amount specified in testing, in failing to engineer a surge chamber for the high service pump and damaged the plaintiff in the amount of Two-Thousand ($2,000.00) Dollars; “(f) Caused an unnecessary delay on the completion of the contract by failing to appoint qualified resident engineers or inspectors and by failing to be present on the project or to. be located, the numerous discrepancies in the contract, drawings and. specifications could not be resolved: and the plaintiff was damaged thereby.” It is apparent that almost~the entire dispute between the parties concerns, whether or not Maib or the City, through Maib, acted with such negligence that. Cox was delayed in his work and was-thereby damaged. It is true that if there was negligence on the part of Maib,. both he and the City would be liable except for the possibility of an accord and' satisfaction, Maib as a tort-feasor and: the City under the doctrine of respondeat, superior. On March 8,1962, the defendants separately moved for summary judgment, alleging that the June 15th agreement and: the September 28, 1960 letter, with, cheeks attached, from Maib to Cox amounted to an accord and satisfaction. Judge Gibson overruled the motions for summary judgment primarily because-the June 15th document was without, “sufficient specificity” to be capable of enforcement. The Court went on to hold that the letter of September 28, 1960, along with the checks enclosed, could amount to an accord and satisfaction if plaintiff had accepted the checks as full payment of the obligation, but, Judge Gibson went on to say, “the mere retention of a check by a creditor will not amount to an accord and satisfaction, without some use or cashing of the check by the debtor.” At this time there was no evidence that Cox had cashed or otherwise used the three checks enclosed in .Maib’s letter. The case went to trial, and at the end 'of the plaintiff’s case the trial court directed a verdict against the plaintiff. Cox has appealed the District Court’s decision. Plaintiff contends that the trial court erred in directing a verdict for the defendant because it deprived him •of right of trial by jury which is guaranteed by the Seventh Amendment to the United States Constitution. This argument is not legally nor practically sound. A directed verdict does not deprive the plaintiff of any right guaranteed to him by the Seventh Amendment to the United States Constitution. Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458 (1943), see Part III of the opinion. Further, Cox is precluded from raising this Constitutional issue here, as he failed to do so below. Sutton v. Settle, 302 F.2d 286 (8th Cir. 1962). Plaintiff next contends that the defendants did not state specific grounds for their motions for a directed verdict as required under Rule 50(a) of the Federal Rules of Civil Procedure, and the City did not allege the accord and satisfaction nor did the City plead the document entered into on June 15, 1960, or the letter from Maib to Cox on September 28, 1960. For authority to support this contention the plaintiff relies upon a line of cases which hold that when a movant fails to state specific grounds for the motion he cannot contest the denial upon appeal. 2B Barron and Holtzoff § 1073 n. 11. In the next sentence, however, Barron and Holtzoff declare that: “Conversely, if such a motion is granted, the adverse party who did not object to failure of the motion to state specific grounds therefor cannot raise such objection in the appellate court.” 2B Barron and Holtzoff § 1073, n. 12. Quint v. Kallaos, 161 F.2d 605 (8th Cir., 1947) is cited as authority for this proposition. This would appear to be the soundest doctrine; it would certainly be an unfair and dilatory practice to allow a plaintiff to raise this issue at the appellate level after remaining silent when the trial judge makes his decision. In addition, it would abrogate the settled rule that issues which are not raised at trial cannot be presented on appeal. See Kern v. Prudential Insurance Company of America, 293 F.2d 251 (8th Cir. 1961); Sutton v. Settle, supra. We hold that an adverse party who does not object at trial to his opponent’s failure to state a specific grounds for a motion for a directed verdict will not be heard to complain of this lack of specificity on appeal. Although the record is not completely clear with regard to the reason for trial judge’s decision to grant the defendants’ motions for a directed verdict, we think it is apparent that the District Judge felt that there had been an accord and satisfaction. The plaintiff contends strenuously that no accord and satisfaction was reached in this case. He argues that the June 15th agreement was not sufficiently specific nor did it have sufficient consideration to support it; we find ourselves in agreement with this argument, but it is also our opinion that both the June 15th document, the letter from Maib to Cox on September 28, 1960, and Cox’s subsequent use of the checks enclosed should all be considered in determining whether or not there is an accord and satisfaction. This court, is, of course, bound by the law of Missouri in this, a diversity action, and Brent v. Westerman, 123 F.Supp. 835 (W.D.Mo.1954), states the Missouri rule with clarity: « * * * jg settled law in Missouri that if there be a controversy between a claimant or creditor and a tortfeasor or debtor and, after discussion of the substance of the claim, the tortfeasor or debtor tenders to the claimant or creditor some amount, upon the condition that its acceptance will be in full settlement of all claims, and the claimant or creditor accepts the tender, an accord and satisfaction results as a matter of law (even though the creditor may protest the adequacy of the amount, or even state other conditions of his acceptance), for the simple and good reason that one who accepts a conditional tender assents to the conditions of the tender, Gulfport Wholesale Lumber Co. v. Boeckeler Lumber Co., Mo.App., 287 S.W. 799, 800, as he must accept the tender as made or not at all.” The June 15th agreement proves conclusively that there was an argument with regard to Cox’s claim and that the parties met and discussed the substance of the claim. The letter of September 28, 1960, establishes the tender to the claimant, who in this case was, of course, Cox. And Cox’s use of the checks for his own advantage presents indisputable evidence that he accepted the tender. It is therefore the judgment of this Court that an accord and satisfaction resulted between Cox and the City. Plaintiff urges that the District Judge changed his mind as to the accord and satisfaction and therefore prejudiced him. We cannot accept this argument; another element of fact was added after the trial court’s dismissal of the motion for summary judgment — the evidence established that Cox had received the benefit of the payment of the checks. Counsel for plaintiff was well aware that the District Judge had specifically mentioned that the September 28th letter might be an accord and satisfaction, but that there was no evidence that the plaintiff had ever “cashed or otherwise used the checks,” and that under Missouri law (citing Brent v. Westerman, supra) “the mere retention of a check by a creditor will not amount to an accord and satisfaction, without some use or cashing of the check by the debtor,” and he was, therefore, certainly advised that if the additional element of cashing or using the checks crept into the case the Court might find an accord and satisfaction. By far the most difficult question presented in this case arises from the plaintiff’s contention that the accord and satisfaction between the City and Cox did not absolve Maib since he was not a party to the accord and satisfaction. Assuming without deciding that Maib was not a party to the accord and satisfaction, it is our opinion that the release of the principal — the City of Freeman — also released Maib, the agent of the principal. A judgment in favor of the principal absolves the agent when the only issues to be tried in each case are negligence and contributory negligence. Cf., Brown v. Wabash Ry. Co., 222 Mo.App. 518, 281 S.W. 64 (1926). Although there is an accord and satisfaction instead of a judgment, we think that this is an analogous situation; however, it is not necessary that we stop here. In Annot., 126 A.L.R. 1199 (1940) entitled Release-of (or covenant not to sue) master or principal as affecting pliability of servant or agent for tort, or vice versa, we learn that: “The great weight of authority supports the proposition that where both master and servant are liable to a third party for a tort of the servant, a valid release of either master or servant from, liablity for the tort operates to release the other, although in some of the cases-it is conceded that the master and servant are not, strictly speaking, ‘joint tortfeasors,’ in view of the fact that the-master’s only liability rests upon the doctrine of respondeat superior.” Although we have not found any Missouri cases on all fours with the circumstances in the case at bar, it does appear that the Missouri Supreme Court has recently aligned itself — by way of dictum — with the “great weight of authority.” In Max v. Spaeth, 349 S.W.2d 1 (Mo.Sup.Ct.1961), the Missouri Supreme Court held that: “ * * * A valid release of a servant from liability for tort operates to release the master. 35 Am.Jur. 963, Master and Servant, Sec. 535; (this is what the case is authority for) Annotation, 126 A.L.R. 1199; Restatement of Agency, Sec. 217A; Restatement of Torts, Secs. 883, 885; likewise release of the master releases the servant; see also Geib v. Slater, 320 Mich. 316, 31 N.W.2d 65; Minery v. Fenton, 29 N.J. 409, 149 A.2d 245; Mid-Continental Pipeline Co. v. Crauthers, Okl., 267 P.2d 568; Terry v. Memphis Stone & Gravel Co., 6 Cir., 222 F.2d 652.” (Emphasis supplied) The contract of accord and satisfaction entered into by the City and Cox certainly dealt not only with the City’s alleged contractual liability but its liability under the theory of respondeat superior for the alleged acts of negligence by Maib (as has been mentioned earlier, there is absolutely no evidence that the City was negligent in hiring Maib). Therefore, the accord and satisfaction covered the allegedly negligent acts of Maib, and under the theory espoused by the above authorities, the defendant Maib was absolved by the accord and satisfaction contract between Cox and the City of Freeman. There is yet another reason why we feel that the District Court should be affirmed. As Judge Blaekmun said in Campbell v. Village of Silver Bay, 315 F.2d 568, 575 (8th Cir. 1963): “ * * * the standard for review here on a doubtful question of state law is only whether the trial court has reached a permissible conclusion; * * The Court in the Campbell case went on to say that the party seeking to overthrow the District Court’s judgment with regard to the applicable state law is faced with a heavy burden. We think the decision of the lower court was correct, but even if the State of Missouri law is in doubt on the issues involved, the appellant has failed to sustain his burden and establish that Judge Gibson did not reach a permissible conclusion. The judgment of the District Court is affirmed. . “Whereas, the City of Freeman, Missouri and Lester R. Cox entered into a written contract on 4-28-59 for the construction of a water supply system for the City of Freeman, and whereas a dispute has arisen as to the amount due Lester R. Cox upon completion of said construction work, now therefore, in mutual consideration, one to the other, it is agreed that Lester R. Cox has a sum of $73,315.20 •due on said contract, less $68,188.05 already paid, leaving a balance due of '$5,127.15 subject to the following conditions in keeping with general conditions, with plans and specifications: 1. Lester R. Cox to paint and letter water tower. 2. Lester R. Cox to complete cleaning up. 3. Total net amount due Lester R. Cox subject to General Conditions provision No. 1.18. 4. City of Freeman to check wiring at plant to see if it conforms with specification, if not, then Lester R. Cox to alter the. wiring so it will comply with specifications. 5. Lester R. Cox to furnish pressure gauge on Chlorinator as specified in specifications. f>. Lester R. Cox to furnish and install one additional fuse in the Syntron Feeder as required by specifications. 7. Lester R. Cox to furnish and install locking devise on clear well lid as provided by specifications. '8. The clear well was set higher than called for in specifications, necessitating installing electrical controls on felat valves by the City, resolving the question as to who pays for this additional item, the engineer, the City or Mr. Cox. “Signed this 15th day of June, I960. “City of Freeman, Mo. by /s/ Melvin L. Doyle Mayor ,/s/ Lester R. Cox Lester R. Cox” . “1.18 EXTRA ENGINEERING. Incase the contractor shall fail to complete the work herein contemplated within the time, herein provided, he shall have deducted from the final payment for the work herein contemplated an amount equal to the cost of the engineer to the City after the period herein provided for doing the work, which shall be at the rate of Six Hundred Dollars ($600.00) per month per resident engineer and/or inspector maintained on the project during the period of overtime construction. It is provided further that in the event that the Contractor shall fail to complete this contract as per schedule, an amount equal to the total interest costs for the period of overrun for all bonds issued for this project, shall also be deducted from the contract price.” . “1. Painting of the Standpipe ...................$ 225.00 2. Lettering of the Standpipe .................. 21.00 3. Pressure Gauge on Chlorinator ............ 2.00 4. Credit for 2 ea. Stainless Steel Floats to be returned in good condition @ $25 ea........... 50.00 5. Wiring correction in Plant.................. 40.00 6. Penalty — four and one-fifth (4%) months overtime ............... 3956.40 7. Troth Plumbing Co...... 130.00” . Check No. 120, Lester Cox Trenching Co., $25.34; Check No. 121, Universal Mfg. Co., $582.47; Check No. 122, Lester Cox Trenching Co. & Uhriek Supply, $94.94. . It should be. noted that the City was not charged with any independent negligence in delaying the construction of the project except that it was negligent in hiring the defendant Maib. There was absolutely no evidence that the City was negligent in hiring Maib, nor that Maib was not a qualified engineer, and this issue passes out of the case. . As I have mentioned earlier, it is now admitted by Cox that he did cash or use the checks to his own personal advantage. . The appropriate portions of Rule 50(a) of the F.R.C.P. provide that: “ * * * A motion for a directed verdict shall state the specific grounds therefor.” . It must be. remembered here that the September 28th letter, which made up an integral part of the accord and satisfaction, stated that the checks enclosed were in “full payment” of all claims. Therefore, the claims of Cox with regard to Maib’s alleged negligence had to be included in this settlement and the City would be liable for them under respondeat superior. 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_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. W. T. GRANT CO. v. DUGGAN. No. 151. Circuit Court of Appeals, Second Circuit. Feb. 14, 1938. Wollman & Wollman, of New York City (Edward S. Seidman and Achilles H, Kohn, both of New York City, of counsel), for appellant. Lamar Hardy, U. S. Atty., of New York City (George B. Schoonmaker, Asst. U. S. Atty., of New York City, of counsel), for appellee. Before L. HAND, SWAN, and CHASE, Circuit Judges; SWAN, Circuit Judge. The plaintiff is a Delaware corporation which had outstanding 538,900 shares of no-par value stock in October, 1929. During that month it issued a, like number of new shares to its stockholders, share for share. To comply with the requirements of -Delaware law $1 for each share of the new issue was transferred from surplus account to capital account on the books of the corporation on October 25, 1929, the date on which certificates for the new shares were issued. On that date stock of the company sold on the New York Stock Exchange at $56 per share, but the complaint alleges that the actual' value of the stock was only $20.76 per share, based on the value of the company’s net tangible assets and good will. The plaintiff voluntarily paid a stamp tax of" $269.45 (apparently taking the value of the new issue as $1 per share) and the Commissioner assessed an additional stamp tax - of $14,824.58, based on a valuation of $56 per share. The additional assessment having been paid under protest and a claim for refund having been denied, this action was instituted. On motion of the defendant, Judge Patterson dismissed the complaint for failure to state a cause of action. From the resulting judgment the plaintiff has taken this appeal. Two questions are presented: Whether the additional stock was an “original issue” subject to stamp tax; and, .if it was, whether its “actual value” may be measured by market quotations in October, 1929, just prior to the great slump. Section 800, title 8, of the Revenue Act of 1926, 44 Stat. 99, 101, lays a stamp tax upon certificates of stock and other documents mentioned in Schedule A, of which the second subdivision reads as follows : “2. Capital stock, isstte: On each original issue, whether on organization or reorganization, of certificates of stock, or of profits, or of interest in property or accumulations, by any corporation, on each $100 of face value or fraction thereof, 5 cents: ' Provided, That where a certificate is issued without face value, the tax shall be 5 cents per share, unless the actual value is in excess of $100 per share, in which case the tax shall be 5 cents.on each $100 of actual value or fraction thereof, or unless the actual value is less than $100 per share, in which case the tax shall be 1 cent on each $20 of actual value, or fraction thereof.” Substantially similar language appears in prior revenue acts back to War Revenue Act of 1917, 40 Stat. 322. Since 1919 the Treasury Regulations have provided thatj an issue of a stock dividend is subject to the tax, T.R. 40, art. 4(f) ; T.R. 71, art* 28(f); and, in the case of stock without) par value, that the actual value is to bej determined by the market price of each' share, T.R. 40, art. 3(d); T.R. 71, art.'. 27(d). In the case of an issue of stock which amounts merely to a “split-up,” as where a corporation, without changing its capital, issues five $20 shares in place of each $100 share, the courts have consistently held that the substituted shares are not taxable as an “original issue.” American Laundry Machinery Co. v. Dean, 292 F. 620, D.C. S.D.Ohio; Trumbull Steel Co. v. Routzahn, 292 F. 1009, D.C.N.D.Ohio; Bowers v. West Va. Pulp & Paper Co., 2 Cir., 297 F. 225; Standard Mfg. Co. v. Heiner, 300 F. 252, D.C.W.D.Pa.; Cuba R. Co. v. United States, 60 .Ct.Cl. 272. So, too, where one kind of stock was exchanged for another. Edwards v. Wabash Ry. Co., 2 Cir., 264 F. 610; In re Grant Lees Gear Co., 1 F.2d 393, D.C.N.D. Ohio; Cleveland Provision Co. v. Weiss, 4 F.2d 408, D.C.N.D.Ohio. The appellant contends that in the present case the additional issue merely doubled the number of shares outstanding, and should be treated like a “split-up.” But here the issue did effect a change in the capitalization of the company; the capital was increased by the sum of $538,900 and the surplus correspondingly decreased. The rights of shareholders were altered accordingly. It was a stock dividend. See United States v. Siegel, 8 Cir., 52 F.2d 63, 65. The Treasury Regulations have long classified a stock dividend as an “original issue.” This accords, we believe, with common usage, for most people would regard shares issued as a dividend as a new issue, and not the same as a “split-up.” So far as we are informed, no court has ruled upon the taxability of a stock dividend issue, although dicta in favor of it can be found. See American Laundry Machinery Co. v. Dean, 292 F. 620, 622, D.C.S.D.Ohio; Cleveland Provision Co. v. Weiss, 4 F.2d 408, 412, D.C.N.D.Ohio. The validity of the regulation appears too clear for dispute; and subsequent re-enactment of the stamp tax provisions indicates that Congress was content with the departmental interpretation. United States v. Safety Car Heating & Lighting Co., 297 U.S. 88, 95, 56 S.Ct. 353, 356, 80 L.Ed. 500. There remains the question of the amount of the tax. The appellant argues 'that, if a stock dividend issue i's taxable at all, the tax must be measured by the sum set aside for the stock dividend; namely, the $538,900 converted from surplus to capital. But the statute does not provide any such basis for the amount of the tax. It lays a tax upon the actual value thereof. See Commercial Credit Co. v. Tait, 2 F.2d 862, D.C.Md. As already stated, the Commissioner measured the actual value by the market value as evidenced by sales on the New York Stock Exchange on the date the certificates were issued, October 25, 1929.' In so doing he acted in conformity with the regulation then in effect. T.R. 71, art. 27(d). The appellant contends that this regulation is void. It was so held in Intercoast Trading Co. v. McLaughlin, 18 F.Supp. 149, D.C.N.D.Cal. But we cannot agree that, where a fair and ready market exists, the market price does not establish the value of the article. “Actual” adds nothing. Cummings v. Merchants’ National Bank, 101 U.S. 153, 162, 25 L.Ed. 903; Sanford v. Peck, 63 Conn. 486, 27 A. 1057, 1058. The value or “actual value” of the plaintiff’s stock was what a seller could readily get for it in cash from willing purchasers. The complaint disclosed that trades upon the Exchange ran into thousands of shares each week during several months before and after October 25th. The allegation of facts establishing the existence of a fair and ready market and the market price of the plaintiff’s stock on the critical date left no issue to be tried, despite the further allegations that prices on the Exchange were greatly inflated during the boom market of 1929 and were in excess of the actual value of the stocks dealt in thereon. Nor is it material that shortly after October 25th the market crashed. As Judge Patterson well said in his opinion: “The actual value of property is what a purchaser in fair and free market conditions would have given for it in fact, not what a court at a later time may think a purchaser would have been wise to give.” See New York v. Sage, 239 U.S. 57, 61, 36 S.Ct. 25, 60 L.Ed. 143; Ithaca Trust Co. v. United States, 279 U.S. 151, 155, 49 S.Ct. 291, 73 L.Ed. 647; United States v. New River Collieries Co., 3 Cir., 276 F. 690, 693, affirmed, 262 U.S. 341, 43 S.Ct. 565, 67 L.Ed. 1014; compare Rogers v. Strong, 3 Cir., 72 F.2d 455, 457. In our opinion, the regulation did not conflict with the statute but established a valid “measuring rod” of value — at least as applied to the facts of this case. Judgment affirmed. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_respond1_5_2	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant. Ronald MAY, Appellant, v. Donald WYRICK, Warden, Appellee. No. 80-1731. United States Court of Appeals, Eighth Circuit. Submitted Jan. 12, 1981. Decided Jan. 15, 1981. Vernon R. Dawdy, Fenton, Mo., for appellant. John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, Mo., for appellee. Before HEANEY, ROSS and ARNOLD, Circuit Judges. PER CURIAM. Ronald May appeals the district court’s denial of his application for a writ of habe-as corpus. In June 1977, petitioner was convicted of manslaughter in the State of Missouri and was sentenced to ten years imprisonment. Petitioner alleges that the state trial court committed four errors of constitutional magnitude. The four errors raised are as follows: (1) the trial court allowed a key state witness to testify that she had received threats, as an attempt to explain her prior inconsistent statements; (2) the evidence was insufficient to constitute a submissible case; (3) the trial court refused to allow petitioner to call a certain defense witness; (4) the trial court refused to give a requested self-defense instruction. These claims are the same four raised by petitioner on direct appeal in state court. State v. May, 587 S.W.2d 331 (Mo.App.1979). The United States Magistrate also reviewed the same four issues under federal law and recommended that the application for a writ of habeas corpus be denied. The district court adopted the findings and recommendation of the magistrate. We have carefully studied the record, including the magistrate’s findings and the briefs of the parties to this action. We find no merit to petitioner’s arguments, and accordingly affirm pursuant to Rule 14 of the Rules of this court on the basis of the magistrate’s findings as adopted by the district court. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant? A. legislative B. executive/administrative C. bureaucracy providing services D. bureaucracy in charge of regulation E. bureaucracy in charge of general administration F. judicial G. other Answer:
songer_jurisdiction	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer". PHILLIPS PETROLEUM CO. et al. v. JENKINS. No. 10859. Circuit Court of Appeals, Eighth Circuit. June 28, 1937. Rayburn L. Foster, of Bartlesville, Okl. (R. H. Hudson, of Bartlesville, Okl., Marsh & Marsh and Mahony & Yocum, all of El Dorado, Ark., and Franklin E. Kennamer, Jr., of Tulsa, Okl., on the brief), for appellants. Robert C. Knox, of El Dorado, Ark. (L. B. Smead, of Camden, Ark., and J. V. Spencer, of El Dorado, Ark., on the brief), for appellee. Before WOODROUGH, THOMAS, and FARIS, Circuit Judges. WOODROUGH, Circuit Judge. In June, 1934, Roy O. Jenkins, an employee of the Phillips Petroleum Company residing in Arkansas, sued that company and Joe H. Myers, a locally resident coemployee, in the circuit court of Ouachita county, Ark., for damages for personal injury occasioned by negligence and obtained judgment for $50,000, which was modified on appeal to the Supreme Court of the state in May, 1935, by reducing the amount to $30,000. A further appeal to the Supreme Court of the United States resulted in affirmance of the judgment in that amount. 297 U.S. 629, 56 S.Ct. 611, 80 L.Ed. 943. The petroleum company and the bonding companies which had become liable on supersedeas bonds brought this suit in equity in the federal District Court, in May, 1936, to obtain relief from the judgment, claiming, (1) that they were entitled to have Jenkins enjoined from executing his judgment because he had obtained it by the practice of extrinsic fraud, in that he had fraudulently simulated an injury which he had not received and a disability, when he was not disabled at all, but only pretended to be, and in that he had conspired with a doctor who had instructed and helped him so that he was able to and did deceive physicians who examined him and testified in the case, and deceived the court and jury into unjustified belief that he had been seriously injured; and, (2), that they were entitled to be relieved from the judgment under the provisions of the statutes of Arkansas on the ground of newly discovered evidence set out in the bill. The coemployee, Joe H. Myers, who had become a resident of Oklahoma, intervened in the case and joined in the allegations, and prayer of the plaintiffs. On the trial of the equity suit findings of fact and conclusions of law were made favorable to Jenkins and the suit was dismissed. The petroleum company, Joe H„ Myers, and the bonding companies, have appealed. The points argued on the appeal under the assignments of error are (1) that the findings of the trial court are against the weight of the evidence; (2)> that “the false history related by Jenkins, to examining physicians and their conclusions based thereon, together with his false testimony before the court and jury as to the extent of his injury constituted extrinsic fraud warranting a federal court of equity in enjoining the enforcement of the judgment”; and (3) that “even though the fraud established by the evidence should be deemed intrinsic and not extrinsic, the substantive right to relief against such judgment, created by the statutes of Arkansas, should be applied and enforced in the federal court. * * * ” The findings of the trial court were: “Finding of Fact No. 1. “On April 5, 1934, the defendant, R. O. Jenkins, and Intervener Joe H. Myers, while engaged in the performance of their duties as employees of plaintiff Phillips Petroleum Company, were carrying a joint of line pipe, each having one end of said pipe on his shoulder, the defendant Jenkins carrying the front end of said pipe and walking ahead, and intervener Myers carrying the rear end of said pipe and walking behind. Before they had traversed the required distance, Myers suddenly and without warning shifted his end of the pipe from one shoulder to the other, jerking Jenkins off balance, causing him to fall, and the end of the pipe which he was carrying struck him in the small of his back, actually injuring him — the nature and extent of such injury being one of the issues tried in the State Court. Immediately after said injury Jenkins was taken by another employee to a physician who was in the employ of Phillips Petroleum Company, and said Physician caused an X-ray picture of defendant’s spinal column to be made, and for a week or two thereafter treated Jenkins, when his case was transferred to another physician, who was also employed by Phillips Petroleum Company, and who sent Jenkins to a hospital where he was confined under the care of said second physician for some ten days or two weeks, and thereafter for several weeks Jenkins was under the treatment of said second physician. “Finding of Fact No. 2. “On June 16, 1934, Jenkins filed suit in the Circuit Court of Ouachita County, Arkansas, against Phillips Petroleum Company and Joe H. Myers, alleging that on account of negligence of Myers he had suffered the following injuries: “(a) That first and second lumbar vertebrae were separated with attendant severe impact and concussion of the spinal cord in the region of the first and second lumbar vertebrae, and the ligaments in the region of the spinal cord near the first and second lumbar vertebrae were bruised and torn with attendant adhesions, bleeding and swelling; all of which caused severe pressure upon the spinal cord and resulted in Myeletic softening of the lower end of the spinal cord, causing injury and degeneration of the nerves of the spinal cord and the nerves running therefrom, with resulting motor and sensory paresis, loss of sensation in the lower extremities and loss of free locomotion in the legs, back and hips of the plaintiff and causing partial paralysis of the hips, legs-and back of the plaintiff of the progressive type which will gradually grow worse until complete paralysis will exist. “(b) A severe injury to the Sacro Iliac joint with contusions of the Sacro Iliac surfaces, resulting in a traumatic Sacro Iliac Arthritis; “(c) A severe injury to the pelvic bone; his right pelvic is tilted and the muscles and ligaments of the region thereof are strained, torn and bruised; “(d) A curvature of the spine; “(e) A total loss of his sexual functions and powers; “(f) The bladder and rectal centers of the plaintiff are involved; the control of the plaintiff over the action of his bowels and the passing of his urine are impaired; this condition will progress until plaintiff will completely lose control of the action of his bowels and the passing of urine and will lose complete control of the impulse to urinate or to stool; “(g) That on account of his said injuries the health of the plaintiff has become greatly impaired, and his nervous system has been damaged and impaired; that all of his injuries are permanent and progressive and will continually grow worse; that on account of his said injuries the plaintiff suffered severe physical pain and mental anguish, and will continue so to suffer for the balance of his lifetime; “Phillips Petroleum Company in due time filed its separate answer, and among other things denied that Jenkins was injured in any manner and to any extent whatever, and particularly denied that he had received any of the injuries set out in his complaint. Joe H. Myers, thereupon adopted the answer of his co-defendant Phillips Petroleum Company. “Finding of Fact No. 3. “On June 6th, 1934, Jenkins was examined by Dr. J. B. Jameson and R. B. Robbins of Camden, Arkansas, and on September 24, 1934, he was examined by Dr. Leslie A. Purifoy of El Dorado, Arkansas. The purpose of said examinations was to enable said physicians to testify in the trial, and each of them did appear in the State Court, and testify as witnesses on behalf of Jenkins. Since said trial in the State Court Dr. Purifoy has died, but both Dr. Jameson and Dr. Robbins testified at the hearing in this Court. “At the time of said examination by said physicians, the defendant Jenkins gave to each of them a history of his case, and made physical responses to, and answers to questions asked him concerning, certain tests of the reflexes made by said physicians during the course of said examinations. “An X-ray picture of the spinal column, showing the first and second vertebrae of the lumbar region, was taken-by Dr. Jame-son, who testified at the trial in the State Court, and also here, that said picture showed a separation between these vertebrae. “Plaintiffs and intervener have failed to show by a preponderance of the testimony that defendant made any false statements or answers to said physicians, 'or either of them, or that he could, and did, control his responses to the various tests made upon him, so that said physicians, or either of them, were misled or deceived, and induced to believe that he had suffered an injury which did not exist in fact. On the contrary Dr. Jameson and Dr. Robbins both testified at the hearing in this court, and Dr. Jameson so testified in the trial in the State Court, that disregarding all subjective symptoms and relying solely on the objective symptoms, they could and did reach the conclusion that defendant had suffered an injury to his spinal cord. “Finding of Fact No. 4. “On September 26, 1936, (the day before the commencement of the trial in the State Court: The defendant Jenkins, at the request of attorneys for plaintiffs Phillips Petroleum Company and Intervener Joe H. Myers, submitted to an examination by Drs. Fletcher of Hot Springs, Mahony and White of El Dorado, Arkansas (Dr. White being the second physician of Phillips Petroleum Co. who had previously treated Jenkins). Said physicians caused several X-ray pictures to be taken by Dr. Levine and Jenkins was thoroughly examined by the other three physicians. During the course of said examination Jenkins was asked and answered several questions touching the history of his case, and made physical responses to, and answers to questions asked him concerning, certain tests of the reflexes made by said physicians during the course of said examination. “Plaintiffs and Intervener have failed to show by a preponderance of the testimony’: “(a). That the statements and answers made by Jenkins to said physicians were false; “(b). That Jenkins could and did so control the physical responses to the tests made, that such responses did not correctly reflect his true reaction to said tests. “Plaintiffs and Intervener have failed to establish by a preponderance of the testimony that by reason of any false statement made or answer given by Jenkins to said physicians or by reason of any false response which he simulated to any test made upon him by them, they or any of them were cartsed to arrive at the conclusion that he was, or might be, suffering from any of the injuries as set out in his complaint, but on the contrary the court finds that as a result of said examination said physicians, and each of them, arrived at the conclusion that Jenkins had not suffered any of the injuries set out in his complaint, and said physicians immediately after said examination so reported to the attorneys for plaintiffs and intervener, and appeared as witnesses and so testified before the jury. “Finding of Fact No. 5. “The evidence fails to show that either plaintiff Phillips Petroleum Company or intervener Joe H. Myers were prevented by fraud or concealment practiced upon them, their attorneys or witnesses, by Jenkins, or any one for him, from presenting any defense which they, or either of them, may have had to the action in the State Court. “Finding of Fact No. 6. “The evidence fails to show that either Jenkins, or any one acting for him, was guilty of extrinsic fraud practiced in the procurement of the judgment of the State Court. “Finding of Fact No. 7. “The allegations upon which plaintiff and intervener base their prayer for equitable relief here may be summarized as follows: That Jenkins fraudulently simulated an injury which had no basis in fact, and that he fraudulently concealed his true condition from .plaintiff and intervener. The court finds that one of the defenses interposed by the plaintiff and intervener in the State Court was that Jenkins was not in any manner injured, and that he was fraudulently simulating an injury which had no basis in fact. And the court finds that such defense was tried in the State Court. “Finding of Fact No. 8. “Plaintiff and intervener have failed to establish by preponderance of the evidence that there was a conspiracy between Jenkins and Dr. Henry as alleged in the Bill of Complaint. “Finding of Fact No. 9. “The evidence offered by plaintiffs and intervener in support of the second count of the complaint, which relates to Newly Discovered Evidence, would not be sufficient to support a petition for such relief filed in the State Court under the provisions of section 1316 of Crawford & Moses Digest, for the reasons that such evidence (1) tends only to impeach the testimony Qf Jenkins (2) relates only to the measure of damages and (3) would not likely change the result. “Finding of Fact No. 10. “All issues of fact not specifically covered by Findings of Fact No. 1 to 9 inclusive above are decided in favor of the defendant and against the plaintiffs and intervener.” In our study of the evidence we have been aided by the thorough analysis and discussion at the bar and in the briefs. To set out all of the testimony would be unreasonable and to omit parts would obscure the claims and the arguments upon them. We have reached the conclusion that .the trial court has set out the substantial and controlling facts in its findings and that the findings are in conformity with the preponderance of the evidence. In the preparation of the bill in equity the allegations were assimilated closely to the facts which this court found sufficient to justify equitable relief against a state court judgment obtained by fraud in the case of Chicago, Rock Island & Pacific Ry. Co. v. Callicotte (C.C.A.) 267 F. 799, 16 A.L.R. 386. The effort of the plaintiffs on the trial of this case was to make proof that would bring their case within the doctrine laid down in that case. But we think they failed to sustain the burden under the applicable rules of law. Such rules of law which the trial court found applicable to the case and determinative of the insufficiency of the testimony for the plaintiffs were declared by the trial court as follows: “Conclusion of Law No. 1. “The acts for which a Court of the United States, sitting in equity, will on account of fraud deprive a party of the benefit of a judgment rendered, between the same parties, by a State Court of competent jurisdiction have relation to frauds, extrinsic or collateral, to the matter tried by the State Court, and not to a fraud in the matter on which the judgment was rendered. Extrinsic fraud operates not upon matters pertaining to the judgment itself, but relates to the manner in which it is procured. Extrinsic fraud is any fraudulent conduct of the successful party which is practiced outside of an actual adversary trial, and which is practiced directly and affirmatively upon the defeated party, or his agents, attorneys or witnesses, whereby such defeated party is prevented from presenting fully and fairly his side of the case. “Conclusion of Law No. 2. “Courts of the United States, sitting in equity, will not deprive a party of the benefit of a judgment, rendered between the same parties, by a State Court of competent jurisdiction, on account of intrinsic fraud, such as forged instruments, or perjured testimony, introduced as evidence in the actual adversary trial, or other fraudulent conduct which was practiced during the course of the trial, but which had no effect to mislead the defeated party to his injury after he announced that he was ready to proceed with the trial, and which did not prevent such party from fully presenting his side of the case. “Conclusion of Law No. 4. “Jenkins was under no duty to furnish' evidence to plaintiff and intervener to weaken his ówn case. The plaintiff and intervener had no reason to depend upon Jenkins for evidence to assist them in proving their case, other than what might be disclosed by a medical examination. “Conclusion of Law No. 5. “A defense cannot be set up in equity which has already been fully and fairly tried at law; and this court cannot by way of review, or otherwise, allow plaintiff and intervener to relitigate issues which have been fully and fairly tried and determined against them. It must appear that the fraud charged really prevented plaintiff and intervener from making a full and fair defense, and, since such fact does not appear, but on the contrary the record discloses that the State Court had before it the same issue of fraud as is presented here, the proof of the ultimate fact, to-wit; that the judgment was obtained by fraud fails.” We find no error in the conclusions of law so stated. Continental Nat. Bank v. Holland Banking Co. (C.C.A.8) 66 F.(2d) 823, 835; Toledo Scale Co. v. Computing Scale Co. (C.C.A.7) 281 F. 488, 494, affirmed 261 U.S. 399, 43 S.Ct. 458, 67 L.Ed. 719; Moffett v. Robins, (C.C.A.10) 81 F.(2d) 431; United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93; Vance v. Burbank, 101 U.S. 514, 519, 25 L.Ed. 929; Estes v. Lucky, 133 Ark. 97, 102, 201 S.W. 815; Bank of Pine Bluff v. Levi, 90 Ark, 166, 118 S.W. 250. The trial court also made the following declaration of law: “Conclusion of Law No. 3. “Courts of the United States, sitting in equity, will not deprive a party of the benefit of a judgment, rendered between the same parties, by a State Court of competent jurisdiction, nor require such party to submit to a new trial, where the bill of complaint and the evidence in support thereof tends only to present a case of ‘Newly Discovered Evidence,’ unmixed with extrinsic fraud.” On this point the appellants contend the court should have declared the law: “Under the provisions of sections 6290, 6292, 1311 and 1316, Crawford & Moses’ Digest of the Statutes of Arkansas, this court has power to and should compel the defendant to submit to a new trial or enjoin the enforcement of the state court judgment, even though the proof shows that the judgment was procured by intrinsic and not extrinsic fraud.” The relevant provisions of the Arkansas statutes, as found in Crawford & Moses’ Digest of the Statutes of Arkansas are appended in the footnote. The position of appellants is that the Arkansas statutes create a substantive right to relief against a judgment obtained by intrinsic, as distinguished from extrinsic fraud, to be secured in an independent action, and, therefore, the same should be applied and enforced in the federal courts. We think the law was stated with substantial accuracy in the declaration No. 3 of the trial court, supra, and that appellants' contention should not be sustained, because: (1) The proceedings to obtain a new trial for newly discovered evidence or intrinsic fraud under the Arkansas statutes are not, in any broad or general sense, an independent action, but they are incidental or supplemental proceedings tantamount to a bill of review for newly discovered evidence in an equity case, and the questions that are brought forward for determination arise from the pleadings, proceedings, and adjudication in the former case. 1 Freeman on Judgments (5th Ed.) § 209, p. 405; Marshall v. Holmes, 141 U.S. 589, 12 S.Ct. 62, 35 L.Ed. 870; Milwaukee & Minn. R. R. Co. v. Soutter, 2 Wall. (69 U.S.) 609, 17 L.Ed. 886; Killion v. Killion, 98 Ark. 15, 135 S.W. 452. (2) Section 265 of the Judicial Code (28 U.S.C.A. § 379) prohibits the federal courts from enjoining or staying proceedings in any court of a state except in cases where such injunction may be authorized by any law relating to bankruptcy. The prohibition extends not only to the proceedings in a state court up to and including the final judgment, but to the entire proceedings from the commencement of the suit until the execution issued on the judgment or decree. Wayman v. Southard, 10 Wheat. 1, 6 L.Ed. 253; Fenwick Hall Co. v. Old Saybrook (C.C.) 66 F. 389; Leathe v. Thomas (C.C.A.) 97 F. 136; Security Trust Co. v. Union Trust Co. (C.C.) 134 F. 301; Union Pac. R. Co. v. Flynn (C.C.) 180 F. 565; W. E. Stewart Land Co. v. Arthur (C.C.A.) 267 F. 184; Higgins v. California Prune Co., etc., Growers (C.C.A.) 282 F. 550, reversed on other grounds (C.C.A.) 3 F.(2d) 896; Hill v. Martin, 296 U.S. 393, 56 S.Ct. 278, 80 L.Ed. 293. One of the recognized exceptions to the prohibition of this statute is a suit to enjoin a judgment obtained by extrinsic fraud practiced by the successful party on his adversary, preventing the latter from making a full defense. United States v. Throckmorton, 98 U.S. (8 Otto) 61, 25 L.Ed. 93; Marshall v. Holmes, 141 U.S. 589, 12 S.Ct. 62, 35 L.Ed. 870; Chicago, R. I. & P. Ry. Co. v. Callicotte, supra; Continental Nat. Bank v. Holland Banking Co., supra; and other exceptions are also recognized. See note 28 U.S.C.A. § 379. But we cannot find any suggestion in any of the reports that a bill for a new trial for newly discovered evidence is one of the exceptions. We think the section precludes the awarding of such relief in the federal courts. See Henrietta Mills v. Rutherford County, 281 U.S. 121, 127, 50 S.Ct. 270, 272, 74 L.Ed. 737; Engelhard v. Shroeder (C.C.A.) 278 F. 341, affirmed 258 U.S. 610, 42 S.Ct. 382, 66 L.Ed. 789. (3) Strong proof that federal courts have considered themselves without power to grant new trials for newly discovered evidence in cases which have been brought to judgment in state courts is to be found in the meticulous care with which such federal courts have always distinguished between extrinsic and intrinsic fraud. Engelhard v. Shroeder, supra; Luikart v. Farmers’ Lumber Co. (C.C.A. 10) 38 F.(2d) 588, 589; Bailey v. Willeford (C.C.A.4) 136 F. 382, 385; International Indemnity Co. v. Peterson (D.C.Minn.) 6 F.(2d) 230, 232; Marshall v. Holmes, supra; Barrow v. Hunton, 99 U.S. 80, 25 L.Ed. 407. It is not to be assumed that jurisdiction could be conferred on the federal courts merely by changing a description from “intrinsic fraud” to “newly discovered evidence.” The appellants have relied strongly upon Cowley v. Northern Pac. R. Co., 159 U.S. 569, 16 S.Ct. 127, 130, 40 L.Ed. 263. The federal court was there held to have power to grant relief against a judgment obtained by fraud in the territorial court of Washington Territory,-and procedure similar to that provided by the Arkansas statutes was held to be the proper and applicable procedure in the case after it had been transferred to the federal court of the new state of Washington. But it is evident from consideration of the report of the case in (C.C.) 46 F. 325, read in connection with the opinion of the Supreme Court, that the act of Congress which granted statehood to the territory operated, under the circumstances shown, to “transfer” the whole case, that is, the original suit and the proceedings to set aside the judgment for fraud, to the federal court. See 25 United States Statutes at Large 683, § 23. Therefore, the federal court had jurisdiction of the whole case, including the supplemental and incidental proceedings to obtain a new trial, that it would have had if the original suit had been brought in the federal court in the first instance. We do not find the case to be authority for the doctrine contended for by the appellants. We "think, on the contrary, that the opinion made plain the distinction between the power of the federal courts to relieve against state court judgments obtained by extrinsic fraud and against those obtained by intrinsic fraud. The court said: “It was said by Mr. Justice Bradley, in delivering the opinion of the court, that the question presented was whether the proceeding was a separate suit, or a supplementary proceeding so connected with the original suit as to form an incident to it, and substantially a continuation of it. ‘If the proceeding is merely tantamount to the common-law process of moving to set aside a judgment for irregularity, or to a writ of error, or to a bill of review, or an appeal, it would belong to the latter category, and the United States court could not properly entertain jurisdiction of the case.” National Surety Company v. State Bank of Humboldt (C.C.A.) 120 F. 593, 61 L.R.A. 394, and Commissioners of Road Improvement District No. 2. v. St. Louis Southwestern Ry. Co., 257 U.S. 547, 42 S.Ct. 250, 66 L.Ed. 364, were cited and have been considered, but they do not sustain the position of appellants. We find no error in the proceedings or decree of the district court. Affirmed. “1311. Causes for. A new trial is a re-examination in the same court of an issue of fact after a verdict by a jury or a decision by the court. The former verdict or decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party: * * * “Seventh. Newly-discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.” “1316. Grounds discovered after term. Where grounds for new trial are discovered after the term at which the verdict or decision was rendered, the application may be made by petition filed with the clerk not later than the second term after the discovery, on which summons shall issue, as on other complaints, requiring the adverse party to appear and answer it on or before the first day of the next term. The application shall stand for hearing at the term to which the summons is returned executed, and shall be summarily decided by the court. The evidence may either be by depositions or by witnesses examined in court. But no such application shall be made more than three years after the final judgment was rendered. Civil Code, § 375.” “6290. Grounds for vacating or modifying. The court in which a judgment or final order has been rendered or made shall have power, after the expiration of the term, to vacate or modify such judgment or order: “First. By granting a new trial for the cause, and in the manner prescribed in § 1316. * * * “Fourth. For fraud practiced by the successful party in the obtaining of the judgment.” “6292. Procedure to vacate or modify. The proceedings to vacate or modify the judgment or order on the grounds mentioned in the fourth, fifth, sixth, seventh and eighth subdivisions of § 6290 shall be by complaint, verified by affidavit, setting forth' the judgment or order, the grounds to vacate or modify it, and the defense to the action, if the party applying was defendant. On the complaint, a summons shall issue and be served, and other proceedings had as in an action by proceedings at law. Id. § 573.” Question: Did the court determine that it had jurisdiction to hear this case? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_r_bus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. William D. BEETLER, d/b/a Klein’s Beauty Salon and Sandra Roehm Moore, Plaintiffs-Appellants, v. ZOTOS, a Division of Sales Affiliates, Inc., a corporation, Defendant-Appellee. No. 16131. United States Court of Appeals Seventh Circuit. Dec. 14, 1967. Rehearing Denied Jan. 29, 1968. John E. Cassidy, Jr., Cassidy, Cassidy, Quinn & Lindholm, Peoria, 111., for plaintiffs-appellants, Jack Cassidy, Peoria, 111., of counsel. Lyle W. Allen, Heyl, Royster, Voelker & Allen, Peoria, 111., for defendant-appel-lee, Gary M. Peplow, Peoria, 111., of counsel. Before SCHNACKENBERG, CASTLE and FAIRCHILD, Circuit Judges. CASTLE, Circuit Judge. The plaintiffs-appellants, William D. Beetler and Sandra Roehm Moore, instituted this action in an Illinois state court seeking to recover from Zotos, a division of Sales Affiliates, Inc., the defendant-appellee, monies the' plaintiffs paid to satisfy a judgment against them awarded to Joanne L. Horan. The action was removed to. the District Court on the ground of diversity of citizenship. The summons issued from the state court had been served on the defendant, a New York corporation, at its New York office by a New York deputy sheriff. The service was made in reliance upon the applicability of the out-of-state service provisions of Ill.Rev.Stat.1965, ch. 110, § 17. Contemporaneously with its petition for removal Zotos filed a motion to quash the service and the return, and to dismiss the action. The District Court granted the motion and entered a judgment order dismissing the action. Plaintiffs appealed. The sole contested issue on appeal is the validity of the out-of-state service of summons on the defendant pursuant to § 17(1) (b), the Illinois “long-arm” statute, which insofar as is here pertinent provides: “(1) Any person, whether or not a citizen or resident of this State, who in persor or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State, as to any cause of action arising from the doing of any of such acts: ****** (b) The commission of a tortious act within this State; * * * ”. Plaintiffs’ complaint was filed on May 20, 1966. It alleges, in substance, that on February 16, 1966, the plaintiffs paid $13,658.04 in satisfaction of an Illinois state court judgment against them awarded to Joanne L. Horan in an action brought by the latter, a patron of plaintiff Beetler’s beauty salon, for injuries sustained by her on March 14, 1956, which resulted from the application to her hair of a defective product manufactured by Zotos; that plaintiff Moore, a beauty operator in the employ of Beetler, used the product from and as received in its original package, and in conformity with Zotos’ directions and recommendations; that the product was unreasonably dangerous or defective, and that such condition existed at the time it left the control of Zotos; that when used by the plaintiffs the product caused serious and permanent injuries to Joanne L. Horan for which liability was imposed .upon plaintiffs as a matter of law, and for which they were found liable and held obligated to pay; and that the injury to Joanne L. Horan and the ensuing damages sustained by the plaintiffs were a result of the alleged condition of Zotos’ product. Zotos’ motion to quash and dismiss negates the existence of any contact with Illinois other than the presence of its products which are sent by mail from New York, the state of its incorporation, to beauty supply jobbers in Illinois. The District Court filed an opinion in which it appears to have grounded its judgment on its conclusions that Zotos did not commit a tort against the plaintiffs on February 16,1966, the date plaintiffs satisfied the Horan judgment against them, and that if plaintiffs’ action is construed “as indemnity, rather than tort” § 17(1) (b) does not authorize the out-of-state service of summons here made. In this connection the court refers to Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673, and to Insull v. New York World-Telegram Corporation, (N.D.Ill.E.D.) 172 F.Supp. 615. In Nelson v. Miller, supra, it is said (11 Ill.2d 378, at p. 393, 143 N.E.2d at p. 681): It is unnecessary to interpret section 17(1) (b) as conferring jurisdiction only where the defendant’s conduct in the State gives rise to liability to the plaintiff in tort. A similar question was considered by the Vermont court in Smyth v. Twin Cities Improvement Corp., 116 Vt. 569, 80 A.2d 664, 25 A.L.R.2d 1193 (1951). The statute there involved confers jurisdiction if the defendant 'commits a tort’ within the State. The trial court had dismissed the action on the ground that the complaint did not allege the requisite jurisdictional facts. The Supreme Court of Vermont reversed, finding that the complaint was sufficient to state a cause of action in tort. Clearly, the Vermont court was of the opinion that the jurisdictional requirements of such a statute are met when the defendant, personally or through an agent, is the author of acts or omissions within the State, and when the complaint states a cause of action in tort arising from such conduct. We adopt that view. In Insull it is observed (172 F.Supp. 615, at p. 631); The Illinois Supreme Court has specifically considered the burdens put upon a non-resident defendant who appears specially to contest Section 17 (1) (b) submission jurisdiction. Nelson v. Miller, supra, 11 Ill.2d at pages 391-395, 143 N.E.2d 673, 680. That court rejected the contention that the issue is ‘whether upon the facts the defendant is liable to the plaintiff as a matter of substantive law’. The test, then, is not whether ‘all of the elements that combine to spell ultimate liability in tort are present.’ Rather, the court said, the 17(1) (b) jurisdictional requirements are met (1) ‘when the defendant, personally or through an agent, is the author of acts or omissions within the State,’ and (2) ‘when the complaint states a cause of action in tort arising from such conduct.’ On the basis of these eases the court concluded that the cause of action asserted must be in tort before a non-resident defendant can be properly served under § 17(1) (b). And in this connection Zotos urges that inasmuch as the plaintiff’s action against it is a suit for indemnity it does not qualify for service of summons pursuant to § 17(1) (b) for the reason that a right to indemnity and the obligation to indemnify springs from contract, either express or implied — rather than from tort. But it has been long recognized that an indemnitee, where he seeks to recover for damages paid for injuries caused by the negligent or wrongful act of the indemnitor, may proceed by action ex delicto, as by an action on the case— a tort action. 42 C.J.S. Indemnity § 28, p. 609; Pennsylvania Steel Co. v. Washington & Berkeley Bridge Co., (D.C.W. Va.) 194 F. 1011. Thus, in Chicago v. Robbins, 67 U.S. 418, 17 L.Ed. 298; Robbins v. Chicago, 71 U.S. 657, 18 L.Ed. 427; Severin v. Eddy, 52 Ill. 189; Pfau v. Williamson, 63 Ill. 16; and Gridley v. City of Bloomington, 68 Ill. 47, all actions seeking indemnification for monies paid on a judgment resulting from the negligent act of the person sued as indemnitor, the declaration was in case, a tort action, rather than in assumpsit, a contract action. Here the action alleged in plaintiffs’ complaint not only meets the test of § 17(1) (b) that it is one “arising from” an alleged tortious act of Zotos within Illinois (Gray v. American Radiator & Sanitary Corporation, 22 Ill.2d 432, 176 N.E.2d 761) but it meets the further requirement set forth in Nelson v. Miller, supra, that the action is predicated on allegations sounding in tort. This conclusion is reinforced by the rationale of Suvada v. White Motor Co., 32 Ill.2d 612, 621, 210 N.E.2d 182, 187, an action for indemnity against a manufacturer and a supplier of a component part based on product liability in which it was held that such liability is governed by the law of strict liability in tort and is imposed by operation of law as a matter of public policy. The judgment order appealed from is reversed, and the cause is remanded to the District Court for further proceedings. Reversed and remanded. . Sometimes referred to herein as “Zotos”. . A cold permanent wave solution called “Lustron Instant Peer Wave”. . The complaint, in addition to the amount paid to satisfy the Horan judgment, alleges and seeks recovery of attorneys’ fees, investigation costs, and appeal and printing costs expended in defending the Horan suit. That suit was filed on March 12, 1958; was tried in 1964; affirmed on appeal October 6, 1965 by the Appellate Court of Illinois for the Third District, rehearing denied November 9, 1965; and petition for leave to appeal denied by the Supreme Court of Illinois on January 20, 1966. . The complaint and the motion to quash, together with the affidavit in support of the motion, present nothing which on its face establishes that the maintenance of the suit in Illinois will offend “traditional notions of fair play and substantial justice”. Cf. International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95; National Gas Appliance Corporation v. AB Electrolux, 7 Cir., 270 F.2d 472, 475. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
sc_issuearea	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. SURE-TAN, INC., et al. v. NATIONAL LABOR RELATIONS BOARD No. 82-945. Argued December 6, 1983 Decided June 25, 1984 Michael R. Flaherty argued the cause for petitioners. With him on the briefs were John A. McDonald and Robert A. Creamer. Edwin S. Kneedler argued the cause for respondent. With him on the brief were Solicitor General Lee, Deputy Solicitor General Wallace, Norton J. Come, and Linda Sher Briefs of amici curiae urging affirmance were filed for the American Federation of Labor and Congress of Industrial Organizations by J. Albert Woll, Laurence Gold, and George Kaufmann; for the Asian American Legal Defense and Education Fund et al. by Kenneth Kimerling; for the California Agricultural Labor Relations Board by Manuel M. Medeiros, Nancy C. Smith, and Daniel G. Stone; for the California Rural Legal Assistance Foundation by Mary K. Gillespie; for the Mexican American Legal Defense and Education Fund et al. by Peter R. Taft, Allen M. Katz, Joaquin G. Avila, John E. Huerta, and Morris J. Bailer; and for the United Farm Workers of America, AFL-CIO, by Carlos M. Alcala and Ira L. Gottlieb. Justice O’Connor delivered the opinion of the Court. At issue in this case are several questions arising from the application of the National Labor Relations Act (NLRA or Act) to an employer’s treatment of its undocumented alien employees. We first determine whether the National Labor Relations Board (NLRB or Board) may properly find that an employer engages in an unfair labor practice by reporting to the Immigration and Naturalization Service (INS) certain employees known to be undocumented aliens in retaliation for their engaging in union activity, thereby causing their immediate departure from the United States. We then address the validity of the Board’s remedial order as modified by the Court of Appeals. I Petitioners are two small leather processing firms located in Chicago that, for purposes of the Act, constitute a single integrated employer. In July 1976, a union organization drive was begun. Eight employees signed cards authorizing the Chicago Leather Workers Union, Local 431, Amalgamated Meatcutters and Butcher Workmen of North America (Union), to act as their collective-bargaining representative. Of the 11 employees then employed by petitioners, most were Mexican nationals present illegally in the United States without visas or immigration papers authorizing them to work. The Union ultimately prevailed in a Board election conducted on December 10, 1976. Two hours after the election, petitioners’ president, John Surak, addressed a group of employees, including some of the undocumented aliens involved in this case. He asked the employees why they had voted for the Union and cursed them for doing so. He then inquired as to whether they had valid immigration papers. Many of the employees indicated that they did not. Petitioners filed with the Board objections to the election, arguing that six of the seven eligible voters were illegal aliens. Surak executed an accompanying affidavit which stated that he had known about the employees’ illegal presence in this country for several months prior to the election. On January 19, 1977, the Board’s Acting Regional Director notified petitioners that their objections were overruled and that the Union would be certified as the employees’ collective-bargaining representative. The next day, Surak sent a letter to the INS asking that the agency check into the status of a number of petitioners’ employees as soon as possible. In response to the letter, INS agents visited petitioners’ premises on February 18, 1977, to investigate the immigration status of all Spanish-speaking employees. The INS agents discovered that five employees were living and working illegally in the United States and arrested them. Later that day, each employee executed an INS form, acknowledging illegal presence in the country and accepting INS’s grant of voluntary departure as a substitute for deportation. By the end of the day, all five employees were on a bus ultimately bound for Mexico. On February 22 and March 23, 1977, the Board’s Acting Regional Director issued complaints alleging that petitioners had committed various unfair labor practices. On March 29, 1977, petitioners sent letters to the five employees who had returned to Mexico offering to reinstate them, provided that doing so would not subject Sure-Tan to any violations of United States immigration laws. The offers were to remain open until May 1, 1977. The unfair labor practice charges were heard by an Administrative Law Judge (ALJ), whose findings and conclusions as to the merits of the complaints were affirmed and adopted by the Board. Specifically, the Board affirmed the ALJ’s conclusion that petitioners had violated §§ 8(a)(1) and (3) by requesting the INS to investigate the status of their Mexican employees “solely because the employees supported the Union” and “with full knowledge that the employees in question had no papers or work permits.” Sure-Tan, Inc., 234 N. L. R. B. 1187 (1978). The Board, therefore, agreed with the ALJ’s finding that “the discriminatees’ subsequent deportation was the proximate result of the discriminatorily motivated action by [petitioners] and constitutes a constructive discharge.” Id., at 1191. As a remedy for the § 8(a)(3) violations, the Board adopted the ALJ’s recommendation that petitioners be ordered to cease and desist from their various unfair labor practices, including notifying the INS of their employees’ status because of the employees’ support of the Union. However, the Board declined to adopt the ALJ’s specific recommendations as to the appropriate remedy. The ALJ had recommended that petitioners be ordered to offer the discharged employees reinstatement and that the offers be held open for six months. In addition, the ALJ had concluded that since, under past Board precedent, backpay is normally tolled during those periods in which employees are not available for employment, an ordinary backpay award could not be ordered in this case. Nevertheless, the ALJ had invited the Board to consider awarding backpay for a minimum 4-week period both to provide some measure of relief to the illegally discharged employees and to deter future violations of the NLRA. The Board, however, concluded that the ALJ’s analysis of the remedy was “unnecessarily speculative.” 234 N. L. R. B., at 1187. Since the record contained no evidence that the employees had not since returned to the United States, the Board modified the ALJ’s order by substituting the “conventional remedy of reinstatement with backpay,” thereby leaving until subsequent compliance proceedings the determination whether the employees had in fact been available for work. Ibid. On appeal, the Court of Appeals enforced the Board’s order. 672 F. 2d 592 (CA7 1982). The court fully agreed that petitioners had violated the NLRA by constructively discharging their undocumented alien employees. It also concurred in the Board’s judgment that the usual remedies of reinstatement and backpay were appropriate in these circumstances. The Court of Appeals did, however, modify the Board’s order in several significant respects. First, it concluded that reinstatement would be proper only if the discharged employees were legally present and free to be employed in the United States when they presented themselves for reinstatement. The court also decided that the reinstatement offers in their present form were deficient since they did not allow a reasonable time for the employees to make arrangements for legal reentry. The court therefore ordered that the offers be left open for a period of four years. It further concluded that the offers must be written in Spanish, and delivered so as to allow for verification of receipt. As for backpay, the court required that the discharged employees should be deemed unavailable for work during any period when they were not legally entitled to be present and employed in the United States. Recognizing that the discharged employees would most likely not have been lawfully available for employment and so would receive no backpay award at all, the court decided that “it would better effectuate the policies of the Act to set a minimum amount of backpay which the employer must pay in any event, because it was his discriminatory act which caused these employees to lose their jobs.” Id., at 606. Believing that six months' backpay would be the minimum amount appropriate for this purpose, the court suggested that the Board consider this remedy. The Board accepted the court’s suggestion, and the final judgment order approved by the court included the minimum award of six months’ backpay. We granted cer-tiorari, 460 U. S. 1021 (1983). We now affirm the judgment of the Court of Appeals insofar as it determined that petitioners violated the Act by constructively discharging their undocumented alien employees, but reverse the judgment as to some of the remedies ordered and direct that the case be remanded to the Board. A We first consider the predicate question whether the NLRA should apply to unfair labor practices committed against undocumented aliens. The Board has consistently held that undocumented aliens are “employees” within the meaning of §2(3) of the Act. That provision broadly provides that “[t]he term ‘employee’ shall include any employee,” 29 U. S. C. § 152(3), subject only to certain specifically enumerated exceptions. Ibid. Since the task of defining the term “employee” is one that “has been assigned primarily to the agency created by Congress to administer the Act,” NLRB v. Hearst Publications, Inc., 322 U. S. 111, 130 (1944), the Board’s construction of that term is entitled to considerable deference, and we will uphold any interpretation that is reasonably defensible. See, e. g., Ford Motor Co. v. NLRB, 441 U. S. 488, 496-497 (1979); NLRB v. Iron Workers, 434 U. S. 335, 350 (1978); NLRB v. Erie Resistor Corp., 373 U. S. 221, 236 (1963). The terms and policies of the Act fully support the Board’s interpretation in this case. The breadth of § 2(3)’s definition is striking: the Act squarely applies to “any employee.” The only limitations are specific exemptions for agricultural laborers, domestic workers, individuals employed by their spouses or parents, individuals employed as independent contractors or supervisors, and individuals employed by a person who is not an employer under the NLRA. See 29 U. S. C. § 152(3). Since undocumented aliens are not among the few groups of workers expressly exempted by Congress, they plainly come within the broad statutory definition of “employee.” Similarly, extending the coverage of the Act to such workers is consistent with the Act’s avowed purpose of encouraging and protecting the collective-bargaining process. See Hearst Publications, Inc., supra, at 126. As this Court has previously recognized: “[Acceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens; and employment of illegal aliens under such conditions can diminish the effectiveness of labor unions.” De Canas v. Bica, 424 U. S. 351, 356-357 (1976). If undocumented alien employees were excluded from participation in union activities and from protections against employer intimidation, there would be created a subclass of workers without a comparable stake in the collective goals of their legally resident co-workers, thereby eroding the unity of all the employees and impeding effective collective bargaining. See NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 33 (1937). Thus, the Board’s categorization of undocumented aliens as protected employees furthers the purposes of the NLRA. B Counterintuitive though it may be, we do not find any conflict between application of the NLRA to undocumented aliens and the mandate of the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U. S. C. § 1101 et seq. This Court has observed that “[t]he central concern of the INA is with the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.” De Canas v. Bica, 424 U. S., at 359. The INA evinces “at best evidence of a peripheral concern with employment of illegal entrants.” Id., at 360. For whatever reason, Congress has not adopted provisions in the INA making it unlawful for an employer to hire an alien who is present or working in the United States without appropriate authorization. While it is unlawful to “concea[l], harbo[r], or shiel[d] from detection” any alien not lawfully entitled to enter or reside in the United States, see 8 U. S. C. § 1324(a)(3), an explicit proviso to the statute explains that “employment (including the usual and normal practices incident to employment) shall not be deemed to constitute harboring.” Ibid. See De Canas v. Bica, supra, at 360, and n. 9. Moreover, Congress has not made it a separate criminal offense for an alien to accept employment after entering this country illegally. See 119 Cong. Rec. 14184 (1973) (remarks of Rep. Dennis). Since the employment relationship between an employer and an undocumented alien is hence not illegal under the IN A, there is no reason to conclude that application of the NLRA to employment practices affecting such aliens would necessarily conflict with the terms of the IN A. We find persuasive the Board’s argument that enforcement of the NLRA with respect to undocumented alien employees is compatible with the policies of the IN A. A primary purpose in restricting immigration is to preserve jobs for American workers; immigrant aliens are therefore admitted to work in this country only if they “will not adversely affect the wages and working conditions of the workers in the United States similarly employed.” 8 U. S. C. § 1182(a)(14). See S. Rep. No. 748, 89th Cong., 1st Sess., 15 (1965). Application of the NLRA helps to assure that the wages and employment conditions of lawful residents are not adversely affected by the competition of illegal alien employees who are not subject to the standard terms of employment. If an employer realizes that there will be no advantage under the NLRA in preferring illegal aliens to legal resident workers, any incentive to hire such illegal aliens is correspondingly lessened. In turn, if the demand for undocumented aliens declines, there may then be fewer incentives for aliens themselves to enter in violation of the federal immigration laws. The Board’s enforcement of the NLRA as to undocumented aliens is therefore clearly reconcilable with and serves the purposes of the immigration laws as presently written. III Accepting the premise that the provisions of the NLRA are applicable to undocumented alien employees, we must now address the more difficult issue whether, under the circumstances of this case, petitioners committed an unfair labor practice by reporting their undocumented alien employees to the INS in retaliation for participating in union activities. Section 8(a)(3) makes it an unfair labor practice for an employer “by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” 29 U. S. C. § 158(a)(3). The Board, with the approval of lower courts, has long held that an employer violates this provision not only when, for the purpose of discouraging union activity, it directly dismisses an employee, but also when it purposefully creates working conditions so intolerable that the employee has no option but to resign — a so-called “constructive discharge.” See, e. g., NLRB v. Haberman Construction Co., 641 F. 2d 351, 358 (CA5 1981) (en banc); Cartwright Hardware Co. v. NLRB, 600 F. 2d 268, 270 (CA10 1979); J. P. Stevens & Co. v. NLRB, 461 F. 2d 490, 494 (CA4 1972); NLRB v. Holly Bra of California, Inc., 405 F. 2d 870, 872 (CA9 1969); Atlas Mills, Inc., 3 N. L. R. B. 10, 17 (1937). See also 3 T. Kheel, Labor Law § 12.05[1][a] (1982). Petitioners do not dispute that the antiunion animus element of this test was, as expressed by the lower court, “flagrantly met.” 672 F. 2d, at 601. “The record is replete with examples of Sure-Tan’s blatantly illegal course of conduct to discourage its employees from supporting the Union.” Id., at 601-602. Petitioners contend, however, that their conduct in reporting the undocumented alien workers did not force the workers’ departure from the country; instead, they argue, it was the employees’ status as illegal aliens that was the actual “proximate cause” of their departure. See Brief for Petitioners 13-15. This argument is unavailing. According to testimony by an INS agent before the ALJ, petitioners’ letter was the sole cause of the investigation during which the employees were taken into custody. This evidence was undisputed by petitioners and amply supports the ALJ’s conclusion that “but for [petitioners’] letter to Immigration, the discriminatees would have continued to work indefinitely.” 234 N. L. R. B., at 1191. And there can be little doubt that Surak foresaw precisely this result when, having known about the employees’ illegal status for some months, he notified the INS only after the Union’s electoral victory was assured. See supra, at 887; 672 F. 2d, at 601. We observe that the Board quite properly does not contend that an employer may never report the presence of an illegal alien employee to the INS. See, e. g., Bloom/Art Textiles, Inc., 225 N. L. R. B. 766 (1976) (no violation of Act for employer to discharge illegal alien who was a union activist where the evidence showed that the reason for the discharge was not the employee’s protected collective activities, but the employer’s concern that employment of the undocumented worker violated state law). The reporting of any violation of the criminal laws is conduct which ordinarily should be encouraged, not penalized. See In re Quarles, 158 U. S. 532, 535 (1895). It is only when the evidence establishes that the reporting of the presence of an illegal alien employee is in retaliation for the employee’s protected union activity that the Board finds a violation of § 8(a)(3). Absent this specific finding of antiunion animus, it would not be an unfair labor practice to report or discharge an undocumented alien employee. See Bloom/Art Textiles, Inc., supra. Such a holding is consistent with the policies of both the IN A and the NLRA. Finally, petitioners claim that this Court’s recent decision in Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U. S. 731 (1983), mandates the conclusion that their request for enforcement of the federal immigration laws is an aspect of their First Amendment right “to petition the Government for a redress of grievances” and therefore may not be burdened under the guise of enforcing the NLRA. In Bill Johnson’s Restaurants, the Court held that an employer’s filing of a state court suit against its employees seeking damages and injunctive relief for libelous statements and injury to its business is not an enjoinable unfair labor practice unless the suit is filed for retaliatory purposes and lacks a reasonable basis. The Court stressed that the right of access to courts for redress of wrongs is an aspect of the First Amendment right to petition the government, concluding that the NLRA must be construed in such a way as to be “sensitive” to these First Amendment values. Id., at 741. The Court also noted that the States had a compelling interest in maintaining domestic peace by providing employers with such civil remedies for tortious conduct during labor disputes. If the Board were allowed to enjoin a state lawsuit simply because of retaliatory motive, the employer would “be totally deprived of a remedy for an actual injury,” and the strong state interest in providing for such redress would therefore be undermined. Id., at 742. The reasoning of Bill Johnson’s Restaurants simply does not apply to petitioners’ situation. The employer in that case, though similarly motivated by a desire to discourage the exercise of NLRA rights, was asserting in state court a personal interest in its own reputation that was protected by state law. If the Court had upheld the Board in the case, it would have left the employer with no forum in which to pursue a remedy for an “actual injury.” Id., at 741. The First Amendment right protected in Bill Johnson’s Restaurants is plainly a “right of access to the courts . . . ‘for redress of alleged wrongs.’” Ibid. Petitioners in this case, however, have not suffered a comparable, legally protected injury at the hands of their employees. Petitioners did not invoke the INS administrative process in order to seek the redress of any wrongs committed against them. Cf. California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508 (1972). Indeed, private persons such as petitioners have no judicially cognizable interest in procuring enforcement of the immigration laws by the INS. Cf. Linda R. S. v. Richard D., 410 U. S. 614, 619 (1973). Finally, Bill Johnson’s Restaurants was concerned about whether the Board’s interpretation of the NLRA would work to pre-empt the State from providing civil remedies for conduct touching interests “‘deeply rooted in local feeling and responsibility.’” 461 U. S., at 741 (quoting San Diego Building Trades Council v. Garmon, 359 U. S. 236, 244 (1959)). Here, where there is no conflict between the Board’s unfair labor practice finding and any asserted state interest, such federalism concerns are simply not at stake. In short, Bill Johnson’s Restaurants will not support petitioners’ efforts to avoid their obligations under the NLRA by reporting their employees to the INS. I There remains for us to consider petitioners’ challenges to the remedial order entered in this case. Petitioners attack those portions of the Court of Appeals’ order which modified the Board’s original order by providing for an irreducible minimum of six months’ backpay for each employee and by detailing the language, acceptance period, and verification method of the reinstatement offers. We find that the Court of Appeals exceeded its narrow scope of review in imposing both these modifications. A Section 10(c) of the Act empowers the Board, when it finds that an unfair labor practice has been committed, to issue an order requiring the violator to “cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies” of the NLRA. 29 U. S. C. § 160(c). The Court has repeatedly interpreted this statutory command as vesting in the Board the primary responsibility and broad discretion to devise remedies that effectuate the policies of the Act, subject only to limited judicial review. See, e. g., NLRB v. J. H. Rutber-Rex Mfg. Co., 396 U. S. 258, 262-263 (1969); Fibreboard Paper Products Corp. v. NLRB, 379 U. S. 203, 216 (1964); Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 194 (1941). Although the courts of appeals have power under the Act “to make and enter a decree . . . modifying, and enforcing as so modified” the orders of the Board, 29 U. S. C. §§ 160(e), (f), they should not substitute their judgment for that of the Board in determining how best to undo the effects of unfair labor practices: “Because the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the allowable area of the Board’s discretion and must guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy.” Phelps Dodge Corp., supra, at 194. See also NLRB v. Seven-Up Bottling Co., 344 U. S. 344, 346 (1953) (power to fashion remedies “is for the Board to wield, not for the courts”). Here, the Court of Appeals impermissibly expanded the Board’s original order to provide that each discriminatee would receive backpay for at least six months on the ground that “six months is a reasonable assumption” as to the “minimum [time] during which the discriminatees might reasonably have remained employed without apprehension by INS, but for the employer’s unfair labor practice.” 672 F. 2d, at 606. We agree with petitioners that this remedy ordered by the Court of Appeals exceeds the limits imposed by the NLRA. Not only did the court overstep the limits of its own reviewing authority, see NLRB v. Seven-Up Bottling Co., supra, at 346-347, but it also effectively compelled the Board to take action that simply does not lie within the Board’s own powers. Under § 10(c), the Board’s authority to remedy unfair labor practices is expressly limited by the requirement that its orders “effectuate the policies of the Act.” Although this rather vague statutory command obviously permits the Board broad discretion, at a minimum it encompasses the requirement that a proposed remedy be tailored to the unfair labor practice it is intended to redress. Quite early on, the Court established that “the relief which the statute empowers the Board to grant is to be adapted to the situation which calls for redress.” NLRB v. MacKay Radio & Telegraph Co., 304 U. S. 333, 348 (1938). See D. McDowell & K. Huhn, NLRB Remedies for Unfair Labor Practices 8-15 (1976). Of course, the general legitimacy of the back-pay order as a means to restore the situation “as nearly as possible, to that which would have obtained but for the illegal discrimination,” Phelps Dodge Corp., 313 U. S., at 194, is by now beyond dispute. Yet, it remains a cardinal, albeit frequently unarticulated assumption, that a backpay remedy-must be sufficiently tailored to expunge only the actual, and not merely speculative, consequences of the unfair labor practices. Id., at 198 (“[0]nly actual losses should be made good . . To this end, we have, for example, required that the Board give due consideration to the employee’s responsibility to mitigate damages in fashioning an equitable backpay award. See, e. g., NLRB v. Seven-Up Bottling Co., supra, at 346; Phelps Dodge Corp. v. NLRB, supra, at 198. Likewise, the Board’s own longstanding practice has been to deduct from the backpay award any wages earned in the interim in another job, see Pennsylvania Greyhound Lines, Inc., 1 N. L. R. B. 1, 51 (1935), enf’d, 91 F. 2d 178 (CA3 1937), rev’d on other grounds, 303 U. S. 261 (1938). By contrast, the Court of Appeals’ award of a minimum amount of backpay in this case is not sufficiently tailored to the actual, compensable injuries suffered by the discharged employees. The court itself admitted that although it sought to recompense the discharged employees for their lost wages, the actual 6-month period selected was “obviously conjectural.” 672 F. 2d, at 606. The court’s imposition of this minimum backpay award in the total absence of record evidence as to the circumstances of the individual employees constitutes pure speculation and does not comport with the general reparative policies of the NLRA. We generally approve the Board’s original course of action in this case by which it ordered the conventional remedy of reinstatement with backpay, leaving until the compliance proceedings more specific calculations as to the amounts of backpay, if any, due these employees. This Court and other lower courts have long recognized the Board’s normal policy of modifying its general reinstatement and backpay remedy in subsequent compliance proceedings as a means of tailoring the remedy to suit the individual circumstances of each discriminatory discharge. See NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U. S., at 260; Nathanson v. NLRB, 344 U. S. 25, 29-30 (1952); Trico Products Corp. v. NLRB, 489 F. 2d 347, 353-354 (CA2 1973). Cf. Teamsters v. United States, 431 U. S. 324, 371 (1977) (individual Title VII claims to be resolved at remedial hearings held by District Court on remand). These compliance proceedings provide the appropriate forum where the Board and petitioners will be able to offer concrete evidence as to the amounts of backpay, if any, to which the discharged employees are individually entitled. See NLRB v. Mastro Plastics Corp., 354 F. 2d 170 (CA2 1965), cert. denied, 384 U. S. 972 (1966); 3 NLRB Casehandling Manual §10656 et seq. (1977) (preparation of backpay specification). Nonetheless, as the Court of Appeals recognized, the implementation of the Board’s traditional remedies at the corn-pliance proceedings must be conditioned upon the employees’ legal readmittance to the United States. In devising remedies for unfair labor practices, the Board is obliged to take into account another “equally important Congressional ob-jectiv[e],” Southern S.S. Co. v. NLRB, 316 U. S. 31, 47 (1942) — to wit, the objective of deterring unauthorized immigration that is embodied in the INA. By conditioning, the offers of reinstatement on the employees’ legal reentry, a potential conflict with the INA is thus avoided. Similarly, in computing backpay, the employees must be deemed “unavailable” for work (and the accrual of backpay therefore tolled) during any period when they were not lawfully entitled to be present and employed in the United States. Cf. 3 NLRB Casehandling Manual §§10612, 10656.9 (1977). The Court of Appeals assumed that, under these circumstances, the employees would receive no backpay, and so awarded a minimum amount of backpay that would effectuate the underlying purposes of the Act by providing some relief to the employees as well as a financial disincentive against the repetition of similar discriminatory acts in the future. 672 F. 2d, at 606. We share the Court of Appeals’ uncertainty concerning whether any of the discharged employees will be able either to enter the country lawfully to accept the reinstatement offers or to establish at the compliance proceedings that they were lawfully available for employment during the backpay period. The probable unavailability of the Act’s more effective remedies in light of the practical workings of the immigration laws, however, simply cannot justify the judicial arrogation of remedial authority not fairly encompassed within the Act. Any perceived deficiencies in the NLRA’s existing remedial arsenal can only be addressed by congressional action. By directing the Board to impose a minimum backpay award without regard to the employees’ actual economic losses or legal availability for work, the Court of Appeals plainly exceeded its limited authority under the Act. B The Court of Appeals similarly exceeded its limited authority of judicial review by modifying the Board’s order so as to require petitioners to draft the reinstatement offers in Spanish and to ensure verification of receipt. While such requirements appear unobjectionable in that they constitute a rather trivial burden, they represent just the type of informed judgment which calls for the Board’s superior expertise and long experience in handling specific details of remedial relief. See, e. g., NLRB v. J. Weingarten, Inc., 420 U. S. 251, 266-267 (1975); NLRB v. Erie Resistor Corp., 373 U. S., at 236. If the court believed that the Board had erred in failing to impose such requirements, the appropriate course was to remand back to the Board for reconsideration. NLRB v. Food Store Employees, 417 U. S. 1 (1974). Such action “best respects the congressional scheme investing the Board and not the courts with broad powers to fashion remedies that will effectuate national labor policy.” Id., at 10; see 2 T. Kheel, Labor Law §7.04[3][e] (1984). The court’s requirement that the reinstatement offers be held open for four years is vulnerable to similar attack. The court simply had no justifiable basis for displacing the Board’s discretionary judgment about the proper time period for acceptance of the reinstatement offers. Rather than enlarging the Board’s remedial order in this fashion, the court was required to remand for the Board to consider the alternative grounds on which the court believed the offers to have been deficient and to decide upon new forms for the reinstatement offers. NLRB v. Food Store Employees, supra. V For the reasons given above, we reverse the judgment of the Court of Appeals insofar as it imposed a minimum backpay award and mandated certain specifics of the reinstatement offers. We therefore remand the case to the Court of Appeals with instructions to remand it back to the Board to permit formulation of an appropriate remedial order consistent with this Court’s opinion. It is so ordered. Sections 8(a)(1) and (3) of the Act, 61 Stat. 140, as amended, 29 U. S. C. §§ 158(a)(1) and (3), make it an “unfair labor practice” for an employer “(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title” or “(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:
sc_issuearea	C	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. LOCKE, GOVERNOR OF WASHINGTON, et al. v. DAVEY No. 02-1315. Argued December 2, 2003 Decided February 25, 2004 Rehnqtjist, C. J., delivered the opinion of the Court,’ in which Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 726. Thomas, J., filed a dissenting opinion, post, p. 734. Narda Pierce, Solicitor General of Washington, argued the cause for petitioners. With her on the briefs were Christine 0. Gregoire, Attorney General, William Berggren Collins, Senior Assistant Attorney General, and Michael J. Shinn, Assistant Attorney General. Jay Alan Sekulow cause With him on the brief were Stuart J. Roth, Colby M. May, James M. Henderson, Sr., Walter M. Weber, David A. Cort-man, Alan E. Sears, and Benjamin W. Bull. Solicitor General Olson argued the cause States as amicus curiae urging affirmance. With him on the brief were Assistant Attorney General Acosta, Deputy Solicitor General Clement, Gregory G. Garre, David K. Flynn, and Eric W. Treene. Briefs of amici curiae urging reversal were filed for the State of Vermont et al. by William H. Sorrell, Attorney General of Vermont, and Timothy B. Tomasi, Chief Assistant Attorney General, by Anabelle Rodriguez, Secretary of Justice of Puerto Rico, and by the Attorneys General for their respective jurisdictions as follows: Thomas F. Reilly of Massachusetts, Jeremiah W. (Jay) Nixon of Missouri, Hardy Myers of Oregon, Lawrence E. Long of South Dakota, and Clyde Lemons, Jr., of the Northern Mariana Islands; for the American Civil Liberties Union et al. by Aaron H. Caplan, Steven R. Shapiro, Julie E. Sternberg, Ayesha N. Khan, Elliot M. Mincberg, and Susan L. Sommer; for the American Jewish Congress et al. by Marc D. Stern, K. Hollyn Hollman, Jeffrey Sinensky, Kara Stein, and David Strom; for the Anti-Defamation League et al. by David Lash, Steven M. Freeman, Steven C. Sheinberg, Martin E. Karlinsky, Erwin Chemerinsky, and Frederick M. Lawrence; for the National Educa- • tion Association by Robert H. Chanin, Andrew D. Roth, and Laurence Gold; and for the National School Boards Association et al. by David H. Remes and Julie Underwood. Briefs of amici curiae urging were Alabama by William H. Pryor, Jr., Attorney General of Alabama, Nathan A. Forrester, Solicitor General, and Margaret L. Fleming, Assistant Attorney General; for the State of Florida et al.- by Charles J. Crist, Jr., Attorney General of Florida, Christopher M. Kise, Solicitor General, Raquel A. Rodriguez, and Daniel Woodring; for the State of Texas et al. by Greg Abbott, Attorney General of Texas, Barry R. McBee, First Assistant Attorney General, Edward D. Burbach, Deputy Attorney General, Rafael Edward Cruz, Solicitor General, Joseph D. Hughes and Cassandra Robertson, Assistant Solicitors General, Mike Moore, Attorney General of Mississippi, and Mark L. Shurtleff, Attorney General of Utah; for the Association of Southern Baptist Colleges and Schools et al. by Carter G. Phillips, Gene C. Schaerr, and Nicholas P Miller; for the Becket Fund for Religious Liberty et al. by Kevin J. Hasson, Roman P. Storzer, and Anthony R. Picarello, Jr.; for the Black Alliance for Educational Options by Samuel Estreicher and Brett M. Schuman; for the Council for Christian Colleges & Universities et al. by Gregory S. Baylor and Thomas C. Berg; for the Fairness Foundation by Kenneth W. Starr, Robert R. Gasaway, and Ashley C. Parrish; for the Institute for Justice et al. by Richard D. Komer, Clint Bolick, and William H. Mellor; for the Landmark Legal Foundation by Richard P Hutchison and Michael J. O’Neill; for Liberty Counsel by Mathew D. Staver and Rena M. Lindevaldsen; for the National Jewish Commission on Law and Public Affairs by Nathan Lewin, Dennis Rapps, David Zwiebel, Richard B. Stone, and Nathan J. Diament; for the National Legal Foundation by Barry C. Hodge; for the Solidarity Center for Law and Justice, P. C., by James P. Kelly III; and for Teresa M. Becker by Richard Thompson. Briefs of amici curiae were filed for the Common Good Legal Defense Fund et al. by John G. Stepanovich and Keith A Fournier; for the United States Conference of Catholic Bishops et al. by Mark E. Chopko and Jeffrey Hunter Moon; and for Robert S. Alley et al. by Steven K. Green. Chief Justice Rehnquist delivered the opinion of the Court. The State of Washington established the Promise Scholarship Program to assist academically gifted students with postsecondary education expenses. In. accordance with the State Constitution, students may not use the scholarship at an institution where they are pursuing a degree in devotional theology. We hold that such an exclusion from an otherwise inclusive aid program does not violate the Free Exercise Clause of the First Amendment. The Washington State Legislature found that “[s]tudents who work hard . . . and successfully complete high school with high academic marks may not have the financial ability to attend college because they cannot obtain financial aid or the financial aid is insufficient.” Wash. Rev. Code Ann. §28B.119.005 (West Supp. 2004). In 1999, to assist these high-achieving students, the legislature created the Promise Scholarship Program, which provides a scholarship, renewable for one year, to eligible students for postsecond-ary education expenses. Students may spend their funds on any education-related expense, including room and board. The scholarships are funded through the State’s general fund, and their amount varies each year depending on the annual appropriation, which is evenly prorated among the eligible students. Wash. Admin. Code §250-80-050(2) (2003). The scholarship was worth $1,125 for academic year 1999-2000 and $1,542 for 2000-2001. To be eligible for the scholarship, a student must meet academic, income, and enrollment requirements. A student must graduate from a Washington public or private high school and either graduate in the top 15% of his graduating class, or attain on the first attempt a cumulative score of 1,200 or better on the Scholastic Assessment Test I or a score, of 27 or better on the American College Test. §§250-80-020(12)(a) to (d). The student’s family income must be less than 135% of the State’s median. §250-80-020(12)(e). Finally, the student must enroll “at least half time in an eligible postsecondary institution in the state of Washington,” and may not pursue a degree in theology at that institution while receiving the scholarship. §§250-80-020(12)(f) to (g); see also Wash. Rev. Code Ann. §28B. 10.814 (West 1997) (“No aid shall be awarded to any student who is pursuing a degree in theology”). Private institutions, including those religiously affiliated, qualify as “ ‘[eligible postsecondary institution[s]’ ” if they are accredited by a nationally recognized accrediting body. See Wash. Admin. Code §250-80-020(13). A “degree in theology” is not defined in the statute, but, as both parties concede, the statute simply codifies the State’s constitutional prohibition on providing funds to students to pursue degrees that are “devotional in nature or designed to induce religious faith.” Brief for Petitioners 6; Brief for Respondent 8; see also Wash. Const., Art. I, § 11. A student who applies for the scholarship and meets the academic and income requirements is notified that he is eligible for the scholarship if he meets the enrollment requirements. E. g., App. 95. Once the student enrolls at an eligible institution, the institution must certify that the student is enrolled at least half time and that the student is not pursuing a degree in devotional theology. The institution, rather than the State, determines whether the student’s major is devotional. Id., at 126, 131. If the student meets the enrollment requirements, the scholarship funds are sent to the institution for distribution to the student to pay for tuition or other educational expenses. See Wash. Admin. Code §250-80-060. Respondent, Joshua Davey, was awarded a Promise Scholarship, and chose to attend Northwest College. Northwest is a private, Christian college affiliated with the Assemblies of God denomination, and is an eligible institution under the Promise Scholarship Program. Davey had “planned for many years to attend a Bible college and to prepare [himself] through that college training for a lifetime of ministry, specifically as a church pastor.” App. 40. To that end, when he enrolled in Northwest College, he decided to pursue a double major in pastoral ministries and business management/administration. Id., at 43. There is no dispute that the pastoral ministries degree is devotional and therefore excluded under the Promise Scholarship Program. At the beginning of the 1999-2000 academic year, Davey met with Northwest’s director of financial aid. He learned for the first time at this meeting that he could not use his scholarship to pursue a devotional theology degree. He was informed that to receive the funds appropriated for his use, he must certify in writing that he was not pursuing such a degree at Northwest. He refused to sign the form and did not receive any scholarship funds. Davey then brought an action under Rev. Stat. § 1979, 42 U. S. C. § 1983, against various state officials (hereinafter State) in the District Court for the Western District of Washington to enjoin the State from refusing to award the scholarship solely because a student is pursuing a devotional theology degree, and for damages. He argued the denial of his scholarship based on his decision to pursue a theology degree violated, inter alia, the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment, as incorporated by the Fourteenth Amendment, and the Equal Protection Clause of the Fourteenth Amendment. After the District Court denied Davey’s request for a preliminary injunction, the parties filed cross-motions for summary judgment. The District Court rejected Davey’s constitutional claims and granted summary judgment in favor of the State. A divided panel of the United States Court of Appeals for the Ninth Circuit reversed. 299 F. 3d 748 (2002). The court concluded that the State had singled out religion for unfavorable treatment and thus under our decision in Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993), the State’s exclusion of theology majors must be narrowly tailored to achieve a compelling state interest. 299 F. 3d, at 757-758. Finding that the State’s own antiestablishment concerns were not compelling, the court declared Washington's Promise Scholarship Program unconstitutional. Id., at 760. We granted certiorari, 538 U. S. 1031 (2003), and now reverse. The Religion Clauses of the First Amendment provide: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two Clauses, the Establishment Clause and the Free Exercise Clause, are frequently in tension. See Norwood v. Harrison, 413 U. S. 455, 469 (1973) (citing Tilton v. Richardson, 403 U. S. 672, 677 (1971)). Yet we have long said that “there is room for play in the joints” between them. Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 669 (1970). In other words, there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause. This case involves that “play in the joints” described above. Under our Establishment Clause precedent, the link between government funds and religious training is broken by the independent and private choice of recipients. See Zelman v. Simmons-Harris, 536 U. S. 639, 652 (2002); Zobrest v. Catalina Foothills School Dist., 509 U. S. 1, 13-14 (1993); Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481, 487 (1986); Mueller v. Allen, 463 U. S. 388, 399-400 (1983). As such, there is no doubt that the State could, consistent with the Federal Constitution, permit Promise Scholars to pursue a degree in devotional theology, see Witters, supra, at 489, and the State does not contend otherwise. The question before us, however, is whether Washington, pursuant to its own constitution, which has been authoritatively interpreted as prohibiting even indirectly funding religious instruction that will prepare students for the ministry, see Witters v. State Comm’n for the Blind, 112 Wash. 2d 363, 369-370, 771 P. 2d 1119, 1122 (1989) (en banc); cf. Witters v. State Comm’n for the Blind, 102 Wash. 2d 624, 629, 689 P. 2d 53, 56 (1984) (en banc) (“It is not the role of the State to pay for the religious education of future ministers”), rev’d, 474 U. S. 481 (1986), can deny them such funding without violating the Free Exercise Clause. Davey urges us to answer' that question in the negative. He contends that under the rule we enunciated in Church of Lukumi Babalu Aye, Inc. v. Hialeah, supra, the program is presumptively unconstitutional because it is not facially neutral with respect, to religion. We reject his claim of presumptive unconstitutionality, however; to do otherwise would extend the Lukumi line of cases well beyond not only their facts but their reasoning. In Lukumi, the city of Hialeah made it a crime to engage in certain kinds of animal slaughter. We found that the law sought to suppress ritualistic animal sacrifices of the Santería religion. . 508 U. S., at 535. In the present case, the State’s disfavor of religion (if it can be called that) is of a far milder kind. It imposes neither criminal nor civil sanctions on any type of religious service or rite. It does not deny to ministers the right to participate in the political affairs of the community. See McDaniel v. Paty, 435 U. S. 618 (1978). And it does not require students to choose between their religious beliefs and receiving a government benefit. See ibid.; Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U. S. 136 (1987); Thomas v. Review Bd. of Indiana Employment Security Div., 460 U. S. 707 (1981); Sherbert v. Verner, 374 U. S. 398 (1963). The State has merely chosen not to fund a distinct category of instruction. Justice Scalia argues, however, that generally available benefits are part of the “baseline against which burdens on religion are measured.” Post, at 726 (dissenting opinion). Because the Promise Scholarship Program funds training for .all secular professions, Justice Scalia contends the State must also fund training for religious professions. See post, at 726-727. But training for religious professions and training for secular professions are not fungible. Training someone to lead a congregation is an essentially religious endeavor. Indeed, majoring in devotional theology is akin to a religious calling as well as an academic pursuit. See Calvary Bible Presbyterian Church v. Board of Regents, 72 Wash. 2d 912, 919, 436 P. 2d 189, 193 (1967) (en banc) (holding public funds may not be expended for “that category of instruction that resembles worship and manifests a devotion to religion and religious principles in thought, feeling, belief, and conduct”); App. 40 (Davey stating his “religious beliefs [were] the only reason for [him] to seek a college degree”). And the subject of religion is one in which both the United States and state constitutions embody distinct views — in favor of free exercise, but opposed to establishment — that find no counterpart with respect to other callings or professions. That a State would deal differently with religious education for the ministry than with education for other callings is a product of these views, not evidence of hostility toward religion. Even though the differently worded Washington Constitution draws a more stringent line than that drawn by the United States Constitution, the interest it seeks to further is scarcely novel. In fact, we can think of few areas in which a State’s antiestablishment interests come more into play. Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an “established” religion. See R. Butts, The American Tradition in Religion and Education 15-17, 19-20, 26-37 (1950); F. Lambert, The Founding Fathers and the Place of Religion in America 188 (2003) (“In defending their religious liberty against overreaching clergy, Americans in all regions found that Radical Whig ideas best framed their argument that state-supported clergy undermined liberty of conscience and should be opposed”); see also J. Madison, Memorial and Remonstrance Against Religious Assessments, reprinted in Everson v. Board of Ed. of Ewing, 330 U. S. 1, 65, 68 (1947) (appendix to dissent of Rutledge, J.) (noting the dangers to civil liberties from supporting clergy with public funds). Most States that sought to avoid an establishment of religion around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry. E. g., Ga. Const., Art. IV, §5 (1789), reprinted in 2 Federal and State Constitutions, Colonial Charters, and Other Organic Laws 789 (F. Thorpe ed. 1909) (reprinted 1993) (“All persons shall have the free exercise of religion, without being obliged to contribute to the support of any religious profession but their own”); Pa. Const., Art. II (1776), in 5 id., at 3082 (“[N]o man ought or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent”); N. J. Const., Art. XVIII (1776), in id., at 2597 (similar); Del. Const., Art. I, § 1 (1792), in 1 id., at 568 (similar); Ky. Const., Art. XII, § 3 (1792), in 3 id., at 1274 (similar); Vt. Const., Ch. I, Art. 3 (1793), in 6 id., at 3762 (similar); Tenn. Const., Art. XI, §3 (1796), in id., at 3422 (similar); Ohio Const., Art. VIII, § 3 (1802), in 5 id., at 2910 (similar). The plain text of these constitutional provisions prohibited any tax dollars from supporting the clergy. We have found nothing to indicate, as Justice Scalia contends, post, at 728, n. 1, that these provisions would not have applied so long as the State equally supported other professions or if the amount at stake was de minimis. That early state constitutions saw no problem in explicitly excluding only the ministry from receiving state dollars reinforces our conclusion that religious instruction is of a different ilk. Far from evincing the hostility toward religion which was manifest in Lukumi, we believe that the entirety of the Promise Scholarship Program goes a long way toward including religion in its benefits. The program permits students to attend pervasively religious schools, so long as they are accredited. As Northwest advertises, its “concept of education is distinctly Christian in the evangelical sense.” App. 168. It prepares all of its students, “through instruction, through modeling, [and] through [its] classes, to use . . . the Bible as their guide, as the truth,” no matter their chosen profession. Id., at 169. And under the Promise Scholarship Program’s current guidelines, students are still eligible to take devotional theology courses. Davey notes all students at Northwest are required to take at least four devotional courses, “Exploring the Bible,” “Principles of Spiritual Development,” “Evangelism in the Christian Life,” and “Christian Doctrine,” Brief for Respondent 11, n. 5; see also App. 151, and some students may have additional religious requirements as part of their majors. Brief for Respondent 11, n. 5; see also App. 150-151. In short, we find neither in the history or text of Article I, § 11, of the Washington Constitution, nor in the operation of the Promise Scholarship Program, anything that suggests animus toward religion. Given the historic and substantial state interest at issue, we therefore cannot conclude that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect. Without a presumption of unconstitutionality, Davey’s claim must fail. The State’s interest in not funding the pursuit of devotional degrees is substantial and the exclusion of such funding places a relatively minor burden on Promise Scholars. If any room exists between the two Religion Clauses, it must be here. We need not venture further into this difficult area in order to uphold the Promise Scholarship Program as currently operated by the State of Washington. The judgment of the Court of Appeals is therefore Reversed. The State does not require students to certify anything or sign any forms. App. 86, 89. The relevant provision of the Washington Constitution, Art. I, §11, states: “Religious Freedom. Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state. No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment.” Davey, relying on Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995), contends that the Promise Scholarship Program is an unconstitutional viewpoint restriction on speech. But the Promise Scholarship Program is not a forum for speech. The purpose of the Promise Scholarship Program is to assist students from low- and middle-income families with the cost of postsecondary education, not to “‘encourage a diversity of views from private speakers.’” United States v. American Library Assn., Inc., 539 U. S. 194, 206 (2003) (plurality opinion) (quoting Rosenberger, swpra, at 834). Our cases dealing with speech forums are simply inapplicable. See American Library Assn., supra; Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 805 (1985). Davey also argues that the Equal discrimination on the basis of religion. Because we hold, infra, at 725, that the program is not a violation of the Free Exercise Clause, however, we apply rational-basis scrutiny to his equal protection claims. Johnson v. Robison, 415 U. S. 361, 375, n. 14 (1974); see also McDaniel v. Paty, 435 U. S. 618 (1978) (reviewing religious discrimination claim under the Free Exercise Clause). For the reasons stated herein, the program passes such review. Promise Scholars may still use their scholarship to pursue a secular degree at a different institution from where they are studying devotional theology. Justice Scalia notes that the State’s “philosophical preference” to protect individual conscience is potentially without limit, see post, at 730; however, the only interest at issue here is the State’s interest in not funding the religious training of clergy. Nothing in our opinion suggests that the State may justify any interest that its “philosophical preference” commands. Perhaps the most famous example of public backlash is the defeat of “A Bill Establishing A Provision for Teachers of the Christian Religion” in the Virginia Legislature. The bill sought to assess a tax for “Christian teachers,” reprinted in Everson v. Board of Ed. of Ewing, 330 U. S. 1, 72, 74 (1947) (supplemental appendix to dissent of Rutledge, J.); see also Rosenberger, supra, at 853 (Thomas, J., concurring) (purpose of the bill was to support “clergy in the performance of their function of teaching religion”), and was rejected after a public outcry. In its stead, the “Virginia Bill for Religious Liberty,” which was originally written by Thomas Jefferson, was enacted. This bill guaranteed “that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.” A Bill for Establishing Religious Freedom, reprinted in 2 Papers of Thomas Jefferson 546 (J. Boyd ed. 1950). The amici contend that Washington’s Constitution was born of religious bigotry because it contains a so-called “Blaine Amendment,” which has been linked with anti-Catholicism. See Brief for United States as Amicus Curiae 23, n. 5; Brief for Becket Fund for Religious Liberty et al. as Amici Curiae; see also Mitchell v. Helms, 530 U. S. 793, 828 (2000) (plurality opinion). As the State notes and Davey does not dispute, however, the provision in question is not a Blaine Amendment. Tr. of Oral Arg. 5; see Reply Brief for Petitioners 6-7. The enabling Act of 1889, which authorized the drafting of the Washington Constitution, required the state constitution to include a provision “for the establishment and maintenance of systems of public schools, which shall be ... free from sectarian control.” Act of Feb. 22, 1889, ch. 180, §4, ¶ Fourth, 25 Stat. 676. This provision was included in Article IX, § 4, of the Washington Constitution (“All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence”), and is not at issue in this case. Neither Davey nor amici have established a credible connection between the Blaine Amendment and Article I, § 11, the relevant constitutional provision. Accordingly, the Blaine Amendment’s history is simply not before us. Washington has also been solicitous in ensuring not hostile toward religion, see State ex rel. Gallwey v. Grimm, 146 Wash. 2d 445, 470, 48 P. 3d 274, 286 (2002) (en banc) (“[I]t was never the intention that our constitution should be construed in any manner indicating any hostility toward religion” (internal quotation marks omitted)), and at least in some respects, its constitution provides greater protection of religious liberties than the Free Exercise Clause, see First Covenant Church of Seattle v. Seattle, 120 Wash. 2d 203, 223-229, 840 P. 2d 174, 186-188 (1992) (en banc) (rejecting standard in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), in favor of more protective rule); Munns v. Martin, 131 Wash. 2d 192, 201, 930 P. 2d 318, 322 (1997) (en banc) (holding a city ordinance that imposed controls on demolition of historic structures inapplicable to the Catholic Church’s plan to demolish an old school building and build a new pastoral center because the facilities are intimately associated with the church’s religious mission). We have found nothing in Washington’s overall approach that indicates it “single[s] out” anyone “for special burdens on the basis of. . . religious calling,” as Justice Scalia contends, post, at 731. The State notes that it is an open question whether the Washington Constitution prohibits nontheology majors from taking devotional theology courses. At this point, however, the Program guidelines only exclude students who are pursuing a theology degree. Wash. Admin. Code § 250— 80-020(12)(g) (2003). Although we have sometimes characterized the Establishment Clause as prohibiting the State from “disapproving] of a particular religion or of religion in general,” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532 (1993) (citing cases), for the reasons noted supra, the State has not impermissibly done so here. 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_casetyp1_1-3-1	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 "criminal - federal offense". Kelly KIDD, Appellant, v. UNITED STATES of America, Appellee. No. 13420. United States Court of Appeals District of Columbia Circuit. Argued Jan. 23, 1957. Decided March 7, 1957. Mr. D. A. St. Angelo, Washington, D. C. (appointed by the District Court), with whom Mr. William Joseph Dixon, Washington, D. C. (also appointed by the District Court) and Mr. Garner J. Cline, Washington, D. C., were on the brief, for appellant. Mr. E. Tillman Stirling, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Lewis Carroll, A. L. Stevas and Harry T. Alexander, Asst. U. S. Attys., were on the brief, for appellee. Before EDGERTON, Chief Judge, and WASHINGTON and DANAHER, Circuit Judges. PER CURIAM. This appeal is from a conviction of arson. We find no error affecting substantial rights. Affirmed. Question: What is the specific issue in the case within the general category of "criminal - federal offense"? A. murder B. rape C. arson D. aggravated assault E. robbery F. burglary G. auto theft H. larceny (over $50) I. other violent crimes J. narcotics K. alcohol related crimes, prohibition L. tax fraud M. firearm violations N. morals charges (e.g., gambling, prostitution, obscenity) O. criminal violations of government regulations of business P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery) Q. other crimes R. federal offense, but specific crime not ascertained Answer:
songer_usc1	42	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. Sandra RICHARDSON, Plaintiff-Appellant, v. The CITY OF ALBUQUERQUE, a municipal corporation; Harry Kinney, Mayor of the City of Albuquerque; Frank A. Kleinhenz, Chief Administrative Officer of the City of Albuquerque; Shirley Harris, Director of Personnel Services of the City of Albuquerque; Albuquerque Police Department; E.L. Hansen, Chief of the Albuquerque Police Department; Larry Michalsheck, Director of Training of the Albuquerque Police Academy; William Blankenship, individually and as Lieutenant in the Albuquerque Police Department; Paul T. Williams, individually and as former Director of Training for the Albuquerque Police Academy; Rudy Vigil, individually and as former Administrative Officer of the Albuquerque Police Academy; William Riley, individually and as former Training Sergeant of the Albuquerque Police Academy; Grady Taute, individually and as former Staff Instructor of the Albuquerque Police Academy; and Tom Valdez, individually and as former Class Officer of the Albuquerque Police Academy, Defendants-Appellees. No. 86-1501. United States Court of Appeals, Tenth Circuit. Sept. 22, 1988. Alice G. Hector of Hector & Associates, P.A., Albuquerque, for plaintiff-appellant. Judy K. Kelley, Asst. City Atty. (James H. Foley, City Atty., and John W. Pope, Asst. City Atty., with her on the briefs), Albuquerque, N.M., for defendants-appel-lees. Before HOLLOWAY, Chief Judge, McWILLIAMS, Senior Circuit Judge, and BRORBY, Circuit Judge. BRORBY, Circuit Judge. Sandra Richardson brought claims of sex, age, and handicap discrimination under 42 U.S.C. § 1983 against the City of Albuquerque and defendant police officers arising out of her termination as a police cadet. Richardson further claimed her termination, without notice and hearing, denied her due process in violation of the Fourteenth Amendment. Richardson also asserted pendent state claims of breach of contract, wrongful discharge, intentional interference with contract, outrageous conduct, and defamation. At the conclusion of Richardson’s case, the trial court directed a verdict for the defendants on her due process claim. The jury returned a verdict for the defendants on all other claims. Richardson asserts on appeal that the trial court erred in denying her motion for a new trial because the jury’s verdict for the defendants is against the weight of the evidence. She also asserts the trial court erred in directing a verdict on her due process claim because its ruling ignored her assertion that she had a property interest in her position as a probationary employee. We AFFIRM. Plaintiffs Evidence At trial, Richardson presented the following evidence. Richardson was a thirty-nine year old female at the time she applied for admission to the Albuquerque police cadet academy. During the application process, she learned that her uncorrected eyesight did not meet minimum requirements for admission. .The City and Richardson entered into an agreement conditioning her admission to the police academy upon her ability to perform all duties with special contact lenses and “[i]f said contacts do not remain attached during all duties or training or Richardson is unable to wear these special lenses for extended periods including all duty or training times, she agrees that she may be immediately terminated.” Richardson also learned that in order to be admitted to the police academy she must pass a state-mandated agility test which included a timed 440-yard run, an obstacle course, a 150-pound body drag, and a car push. For over six months Richardson did personal physical training designed to enable her to pass the agility test. In June 1982, Richardson passed the initial physical agility test and was admitted to the academy class beginning in November. At the beginning of the academy, all cadets were given a physical fitness test. Cadets who did not perform well were placed in the “fat squad,” a remedial training program that met at the end of other regular activities. Richardson was rated “excellent” for aerobic condition, and “fair” for dynamic strength. She was placed on the “fat squad.” Nearly all the cadets in Richardson’s class were placed on the “fat squad” at some time during the academy. The defendant police instructors yelled at Richardson during physical training and during every run. Instructors told Richardson she was “blind as a bat” and would get people killed. They accused her of having sexual problems with her husband and having a sexual preference for other women. Instructors called her an “old hag,” and laughed at remarks that she was older than other cadets’ mothers. During physical training, the instructors yelled at Richardson for not doing exercises, although she testified that she was doing the exercise required. The instructors refused to give her credit for exercises which they felt she did incorrectly. During a practice agility test in December, Richardson failed three of the four timed events. During a boxing match at which Richardson’s nose was broken, she lost one of her contact lenses. When she reported this to the instructor, he told her not to worry about it. The instructor then attempted to terminate Richardson based upon breach of her agreement. The chief of police decided she would not be terminated. Two weeks later, Richardson was removed from class and terminated. She received a disciplinary charge sheet which stated: Between 11-16-82 and 12-15-82, you failed to adequately complete the entire physical tasks required in your physical training at the Albuquerque Police Academy. Your inability to pass these physical requirements as outlined in the attached documentation is now resulting in your termination, effective immediately. The attached documentation indicated Richardson had failed to physically improve, constantly fell behind on runs, and failed a physical agility test. Also attached were cadet counseling forms documenting Richardson’s inability to perform various physical tasks. During the processing of her termination, Richardson contested the charge sheet’s supporting documentation. She stated her inability to progress in running was due to instructors’ continual harassment, and the low count on push-ups and sit-ups was due to the instructors refusing to count her exercises. At trial, Richardson presented testimony of her athletic trainers that she was physically fit at the time she entered the academy. Exercise physiologists testified that the academy training program was not designed to improve cadets’ physical performance nor were the levels of expected performance gauged to the individual’s sex or age. They also testified on the adverse effect of stress on physical performance. Defendants’ Evidence At trial, the defendants presented the following evidence. The police academy instructors testified that verbal harassment was part of the high-stress training to prepare cadets for real life work on the streets. The purpose of this military-type training was to mold the individuals into one unit. Cadets from Richardson’s class testified that they all received harassment like Richardson and that this high level of stress prepared them well for their current duties as police officers. Lieutenant Williams stated that Richardson told him the stress of having to perform physically in the academy was having a negative psychological impact on her performance. The defendants testified Richardson was terminated solely because she was unable to perform the physical requirements set by the academy. Richardson was unable to perform the same number of sit-ups and push-ups as the rest of the class. She always fell behind during runs, sometimes finishing ten minutes late. Women were not treated differently from men because both had to perform the same job. Defendants testified they were actively recruiting women for the academy. They had no reason to terminate women, because they can perform well in the field. All cadets were required to reach the same level of performance regardless of age. Cadets who were age thirty and forty have graduated from the academy. Just before Richardson was admitted to the academy, the police department removed the age limit, because it had determined older applicants brought more maturity to the job. The defendants also testified they were not happy with Richardson’s waiver of the vision requirements, but they did not treat her differently as a result of it. The jury returned a verdict for the defendants on all counts. I. SUFFICIENCY OF THE EVIDENCE Richardson asserts the jury’s verdict for the defendants on her claims of sex, age, or handicap discrimination is not supported by substantial evidence. Following trial, Richardson filed a motion for new trial, alleging the verdict for the defendants was against the weight of the evidence. The trial court denied the motion finding the defendants vigorously defended against the plaintiff’s claims and the jury could have reasonably concluded the plaintiff failed to prove by a preponderance of the evidence her claims of discrimination. A motion for a new trial made on the ground that the verdict of the jury is against the weight of the evidence normally presents a question of fact and not of law and is addressed to the discretion of the trial court. Black v. Hieb’s Enterprises, Inc., 805 F.2d 360, 363 (10th Cir.1986); Brown v. McGraw-Edison Co., 736 F.2d 609, 617 (10th Cir.1984); Harris v. Qui-nones, 507 F.2d 533, 535 (10th Cir.1974); Community Nat’l Life Ins. Co. v. Parker Square Sav. & Loan Ass’n, 406 F.2d 603, 605 (10th Cir.1969); Champion Home Builders v. Shumate, 388 F.2d 806, 808 (10th Cir.1967). On review, the trial court’s decision to deny a motion for new trial will stand absent a showing of a manifest abuse of discretion. Brown, 736 F.2d at 617; Howard D. Jury, Inc. v. R. & G. Sloane Mfg. Co., 666 F.2d 1348, 1352 (10th Cir.1981); Walter v. Warner, 298 F.2d 481, 484 (10th Cir.1962). Our inquiry focuses on whether the verdict is “clearly, decidedly, or overwhelmingly” against the weight of the evidence. Black, 805 F.2d at 360; Champion Home Builders, 388 F.2d at 808; Locke v. Atchison, Topeka & Santa Fe Ry. Co., 309 F.2d 811, 817 (10th Cir.1962); Prebble v. Brodrick, 535 F.2d 605, 617 (10th Cir.1976). We have carefully reviewed the entire trial record in assessing Richardson’s challenge to the sufficiency of the evidence on her claims of discrimination. We are not convinced the jury’s verdict for the defendants was clearly, decidedly, or overwhelmingly against the weight of the evidence. We are satisfied there was sufficient evidence for the jury to find the defendants did not discriminate against Richardson based on her sex, age, or visual handicap. Richardson presented testimony which established that defendant police officers harassed her about her sex life, being an “old hag,” and that her inability to see without corrective lenses was a safety hazard. The defendants presented considerable evidence that all police cadets received harassment as part of the high-stress training program regardless of their age or sex. The defendants also testified they did not treat Richardson differently because of her visual handicap. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be clearly erroneous. Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985); United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179-80, 94 L.Ed. 150 (1949). The evidence in Richardson’s favor does not clearly, decidedly, or overwhelmingly establish discrimination. The trial court did not abuse its discretion when it accepted the jury’s verdict for the defendants and denied a new trial. II. DUE PROCESS The second issue Richardson raises is that the trial court erred in directing a verdict against her claim of denial of due process in violation of the Fourteenth Amendment. At trial, Richardson claimed denial of due process on both liberty and property grounds. The trial court directed a verdict against her on both claims of denial of due process. It found Richardson had no property interest in her position as a probationary employee and no liberty interest was implicated because the reasons for her termination were not stigmatizing and were not published. On appeal, she addresses denial based only on her alleged property interest. Upon review of a directed verdict, we must view the evidence and reasonable inferences therefrom in the light most favorable to the party opposing the motion. Martin v. Unit Rig & Equipment Co., 715 F.2d 1434, 1438 (10th Cir.1983); Miller v. City of Mission, 705 F.2d 368, 373 (10th Cir.1983). A directed verdict may not be granted unless the evidence points but one way and is. susceptible to no reasonable inferences which may sustain the position of the party against whom the motion is made. Ewers v. Board of County Comm’rs, 802 F.2d 1242, 1247 (10th Cir. 1986), cert. denied, — U.S. -, 108 S.Ct. 704, 98 L.Ed.2d 655 (1988); Casias v. City of Raton, 738 F.2d 392, 394-95 (10th Cir.1984). Richardson has the burden of specifically demonstrating the clear errors in the findings of the trial court. Butler v. Hamilton, 542 F.2d 835, 838 (10th Cir.1976). A trial court’s findings are presumed correct. Koch v. City of Hutchinson, 814 F.2d 1489, 1495 (10th Cir.1987). Procedural due process requires a pretermination hearing where liberty or property interests protected by the Fourteenth Amendment are implicated. Board of Regents v. Roth, 408 U.S. 564, 567, 92 S.Ct. 2701, 2704, 33 L.Ed.2d 548 (1972). A plaintiff must first establish, however, that there is a protected interest at stake. A public employee facing discharge is entitled to the safeguards of procedural due process only if he can demonstrate that the termination implicates a property or liberty interest protected by the Due Process Clause; if a property or liberty interest is not implicated, “he must settle for whatever procedures are provided by statute or regulation.” Sipes v. United States, 744 F.2d 1418, 1420 (10th Cir.1984). The trial court concluded Richardson had no property interest because she was a probationary employee terminable at will under New Mexico law. To establish a property interest in a particular benefit, one must have a “legitimate claim of entitlement” to it. Roth, 408 U.S. at 577, 92 S.Ct. at 2709; see, Graff v. Glennen, 106 N.M. 668, 748 P.2d 511 (1988). However, a claim of entitlement need not be grounded on a specific statutory or contractual provision. “A person’s interest in a benefit is a ‘property’ interest for due process purposes if there are such rules or mutually explicit understandings that support [her] claim of entitlement to the benefit and that [she] may invoke at a hearing.” Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). The sufficiency of such á claim of entitlement is determined by reference to state law. Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); Lovato v. City of Albuquerque, 106 N.M. 287, 742 P.2d 499 (1987). Richardson asserts her property interest arises out of an implied contract created by the State merit statute, N.M. Stat.Ann. § 3-13-4 (1978); the City Merit System Ordinance; and personnel regulations, which she asserts provide that a probationary employee may only be terminated for justifiable cause. New Mexico has recognized that a contract of employment may be implied from a personnel policy guide, Forrester v. Parker, 93 N.M. 781, 606 P.2d 191 (1980), or merit system ordinance, Casias, 738 F.2d at 395. We must now determine whether these statutes, ordinances and rules grant probationary employees a legitimate claim of entitlement. Viewed in the light most favorable to Richardson, the record reveals the following facts. Richardson was admitted to the police cadet academy for the normal probationary period of twelve months. N.M. Stat.Ann. § 3-13-4 (1978) allows municipalities to establish a merit system. The City of Albuquerque adopted a merit system to regulate hiring, promotion, and discharge. The merit system places police officers in the classified service which entitles them to all the rights and benefits provided by the Merit System Ordinance after completion of the probationary period. The Merit System Ordinance section on probationary employees states in pertinent part: All original appointments to the classified service shall be tentative and subject to a probationary period. Such probationary period shall be twelve (12) months after the original appointment date for all ... policemen_ Original appointment as a policeman ... shall be tentative and subject to a probationary period of twelve (12) months from the date of entrance into the Police Academy. At any time during the probationary period, an employee whose performance does not meet the required work standards or who is found not to be suitable employee shall be terminated. The change from probationary to non-probationary status shall require positive action by the department head and failure to take positive action at the end of the probationary period shall constitute dismissal of the employee. An employee on probationary status is not entitled to the rights and benefits provided for in Section 25 [the grievance procedure]. The employee handbook states “[i]f the supervisor reports unsatisfactory progress at any time during probation, the employee may be separated from the City service.” The Merit System Ordinance also makes the following provisions for disciplinary actions: [A] department head may ... dismiss any employee without pay for any justifiable cause including, but not limited to inadequate performance of an employee’s duties. A written statement of the reasons for any ... dismissal shall be submitted to the employee affected within a reasonable time after the effective date of the ... dismissal. The rules and regulations promulgated upon the Merit System Ordinance contain similar provisions. Richardson asserts these provisions create a property right because she can only be removed for “justifiable cause.” In determining whether Richardson can be terminated from her probationary position only for justifiable cause, we must consider the Merit System Ordinance and other rules and regulations promulgated thereunder as a whole. We construe the “justifiable cause” provision for disciplinary actions as applying only to nonproba-tionary employees. A different standard for termination of probationary employees is stated in the Merit System Ordinance as “performance [which] does not meet the required work standards or [if the employee] is found not to be suitable.” Reading the Merit System Ordinance and the rules and regulations in their entirety leads us to conclude the section governing probationary employees was clearly designed to offer a lesser expectation of continued employment than that offered to permanent employees. Blanton v. Griel Memorial Psychiatric Hosp., 758 F.2d 1540, 1543 (11th Cir.1985); Walker v. United States, 744 F.2d 67, 68 (10th Cir.1984); cf. Forrester, 606 P.2d at 192. Richardson has failed to establish a legitimate claim of entitlement to her probationary position in light of the Merit System Ordinance provisions that a probationary police officer’s appointment is tentative; may be terminated at any time during the probationary period if the employee is not suitable; and the change from probationary to nonprobationary status requires positive action at the end of the period or the employee is dismissed. We conclude that the Merit System Ordinance and other rules and regulations promulgated thereunder do not create a property interest in probationary employees, and therefore do not trigger the due process protections asserted by Richardson. The trial court’s directed verdict on Richardson’s due process claims was correct. 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_typeiss	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. UNITED STATES v. BALANCE. No. 5509. Court of Appeals of the District of Columbia. Argued May 31, 1932. Decided June 20, 1932. Leo A. Rover, John W. Wood, C. L. Dawson, and W. C. Pickett, all of Washington, D. C., for the United States. Warren E. Miller and Robert H. McNeill, Tooth of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and HITZ and GRONER, Associate Justices. GRONER, Associate Justice. This is a war risk insurance case. 38 US CA § 421 et seq. Plaintiff obtained a verdict and judgment in the court below, and the government appeals. There are 39 assignments of error, 18 of which relate to the admission in evidence of War Department records and reports of physical examinations made by physicians and of hospitalization of plaintiff from time to time over a period of 12 or 13 years. There are between five and-six hundred war risk insurance eases pending and untried in the Supreme Court of the District. That court, in order to expedite trial of these cases, some timo ago appointed a commissioner with authority to settle issues upon proper pleadings, subject to review by the motions judge. In this case the commissioner so appointed made a summary of the facts shown in the War Department and Veterans’ Bureau records. On the filing of the report, the parties stipulated as follows: “That the annexed summary of record evidence relating to plaintiff on file in the War Department and the IT. S. Veterans’ Bureau, prepared by the commissioner, is a, correct summary of tho records therein referred to, so far as material to the issue presented in the above entitled ease, and that said summary may be received by the court and the jury in the trial of this case with the same force and effect as if the .records summarized had been introduced in evidence.” Appellee (plaintiff) insists that by reason of this stipulation defendant (appellant) was precluded from objecting' on any ground to the admissibility of tho report or of any part of it. We think the stipulation does not have that effect. It authorizes the use by the plaintiff of the report in the place and stead of the original records; that is to say, it waives the necessity of the production of the official records or of verified copies, and agrees to give to tho report precisely the same effect as could be claimed for the original, hut does not waive objection to the competency of the records or any part of them. In other words, the stipulation did not go so far as to hind the government to an agreement that tho report should be read in evidence on tho trial of the cause. It was, therefore, subject to all objections which could properly be made to the admissibility of the original records, and the government retained the right to object to all or any part of it to the same extent as it might properly do if the records had been brought into court and offered in evidence. See State v. Leuhrsman, 123 Iowa, 476, 477, 99 N. W. 140; Robbins v. Spencer, 140 Ind. 483, 38 N. E. 522, 524, 40 N. E. 263. At the trial of the ease, the government did not object to the report in its entirety, but mainly objected to those portions containing personal statements of tho plaintiff of his physical condition made from time to time to various physicians in connection with medical examinations of him, on the ground that these statements were self-serving, and also because when made there was an incentive to untruth or exaggeration because made in connection with a claim on his part for iompensation under the several acts of Con-gross in relation to compensation and hospitalization for disabled veterans of the World War. The report of the commissioner covers 34 dosely printed pages of the record, and contains an epitome of the data on file in the War Department and in the Veterans’ Bureau from November 2,1917, to April 1,1930. That part covering the period from enlistment to discharge shows no record of disability or illness, except a 3 days’ attack of influenza in 1918 and an acute attack of bronchitis in the same year, and this is not objected to. But a little more than a year and a half after discharge, that is to say, in February, 1921, the report shows that, on an application for hospitalization, plaintiff made the following statement: “Enlisted Novembei-2, 1917. At Chateau Thierry, June, 1918, he acted as donor for transfusion of blood and contracted ‘fin’ and was in evacuation hospital No. 4 for five weeks, then returned to duty. Never felt real good after that.” And also the following : “Coughs considerable and has severe coughing spells about throe times weekly when he spits up blood and gets hoarse. Has lost twenty pounds in the past six months. Gets tired after working a couple of hours.” A year later the following statement attributable to plaintiff appears: “Cough in morning and night. Losing voice gradually. Losing weight. Night sweats at times. Vomits occasionally. Appetite variable. Has spit-blood in sputum in morning. Tires and gets out of breath shortly. Pains in chest.” A little later: “Cough and expectoration; loss of weight; hoarse; pains in chest.” And so on from year to year covering this 8 or 9 year period tho report which the court allowed to be introduced in evidence contained 12 or 35 statements made by the plaintiff with relation to his impaired physical condition pri- or to and at these various times. Objection was properly made before trial to the admissibility of these statements, and it would have been a simple matter to have deleted from the report all these self -serving declarations, and tho failure to do so and the admission of the entire report in evidence was, we think, mor of such prejudicial character as makes it our duty to reverse tho judgment and send the case back for a new trial. The report, so far as it contained an abstract of tho observations and opinions of the medical officers, verified by their signatures, was admissible. Nor do we think the fact that these examinations were made on application for compensation affects admissibility. They were all made by physicians employed by the government, and were a part of the official records of a department of the government. They were made in the performance of official duty, and were presumably correct, and in the circumstances we think it would be unreasonable to require plaintiff: in a war” risk insurance case always to summon the government doctors personally, for that frequently would be impossible, or at least abortive. The Bureau is vested with authority to examine claimants under the Veterans’ Act, and the records made are public records which section 30 of the Veterans’ Act (38 USCA § 456) provides may be examined by a claimant under that act. There was, therefore, no error in admitting the official reports of the physicians based on- their examinations of plaintiff, but this is very far from saying that self-serving declarations found in reports of the Bureau’s physicians are likewise admissible in evidence. The courts have gone very far in liberalizing the rules in favor of claimants under war relief acts, and this policy has in large measure grown out of the benevolent relation which the government occupies to its veterans. The underlying purpose of the act and its amendments is to afford protection and relief to those who served in the military and naval service. The legislation is remedial and should be liberally construed, but, after all, the right to recover under a war risk insurance policy is subject to the ordinary rules of evidence obtaining between parties to a contract, and to entirely ignore the “hearsay” rule would be to open the door to fraud and in many eases to make the government the victim rather than the guardian. In the case under consideration, the statements made by plaintiff, especially the early statement relating to his physical condition while still serving in the Army and before the lapse of the policy, were the connecting link through which he sought to establish his total disability as of the time of discharge. The statement was therefore vital, and it is no answer to say that plaintiff himself when he took the witness stand testified to the same facts. Third National Bank v. United States (C. C. A.) 53 F.(2d) 599, 601. Whatever may be the merits of the ease under consideration, we deem it our duty to correct the record so that in the trial of this and of other similar cases in the future the error, which here we think was prejudicial, may be avoided. Reversed and remanded for a new trial in accordance with this opinion. Reversed and remanded. 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:

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