Split (2)

train · 553k rows

task stringclasses 260 values	output stringlengths 2 5	instruction stringlengths 576 44k
songer_const1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Edward Branch GREEN, Plaintiff-Appellant, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellee. No. 73-3117. United States Court of Appeals, Fifth Circuit. Sept. 9, 1974. Fred J. Rafes, J. D. Rutland, Beaumont, Tex., for plaintiff-appellant. Roby Hadden, U. S. Atty., Tyler, Tex., Robert H. Nicholas, Jr., Asst. U. S. Atty., Beaumont, Tex., Kathryn H. Baldwin, Thomas G. Wilson, Atty. Dept, of Justice, Washington, D. C., for defendant-appellee. . Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges. THORNBERRY, Circuit Judge: Since 1960 appellant has filed six applications with the Social Security Administration asking for disability benefits. In each instance his application was denied. We must decide whether the District Court correctly dismissed appellant’s action seeking review of the denial of his sixth application. We affirm. For purposes of this appeal, only two of appellant’s six applications require discussion. On October 9, 1963, Green filed his third application for disability benefits; it was denied initially and on reconsideration. A hearing was requested and held, and on August 23, 1965, the hearing examiner denied the application on the grounds that appellant was not under any disability as of June 30, 1963, the last day on which he met the special earnings requirements for disability purposes. The Appeals Council denied relief and so notified Green, as well as informing him of his right to seek judicial review of the denial. Despite this notice, Green took no action within the sixty days allowed for filing in District Court, and the hearing examiner’s decision thereby became final. 20 C.F.R. § 404.951. On July 8, 1968, appellant filed his sixth application for benefits. Like the others, it was denied initially and on reconsideration. Green then sought a hearing on the application, but this request was dismissed on the grounds that the decision of August 23, 1965, was final and should not be l’eopened. The Appeals Council denied review. Appellant then brought this action in the court below seeking review of the Secretary’s disposition of his application. 20 C.F.R. § 404.937, enacted pursuant to Social Security Act § 205(a), 42 U.S.C. § 405(a) provides: The hearing examiner may, on his own motion, dismiss a hearing request, either entirely or as to any stated issue, under any of the following circumstances: (a) Res judicata. Where there has been a previous determination or decision by the Secretary with respect to the rights of the same party on the same facts pertinent to the same issue or issues which has become final, either by judicial affirmance or, without judicial consideration, upon the claimant’s failure timely to request reconsideration, hearing, or review, or to commence a civil action with respect to such determination or decision Appellant does not attempt to avoid the effect of this regulation by claiming that his sixth application involved facts different from those involved in the decision of August 23, 1965. He urges instead that his failure- to seek review of the 1965 decision should be excused, for res judicata purposes, by his limited intellectual faculties and by his lack of counsel during and after the hearing on his third application. Although mental illness may in some circumstances destroy the res judicata effect of a prior administrative determination, see Leviner v. Richardson, 443 F.2d 1338, 1343 (4th Cir. 1971), appellant alleges no disability that approaches the level of mental illness. Likewise, he has pointed out no material harm or prejudice arising from his lack of counsel at the earlier hearing. Several courts have noted the particular importance of the res judicata principle to the fair and efficient handling of claims under the Social Security Act. Stuckey v. Weinberger, 488 F.2d 904 (9th Cir. 1973); Easley v. Finch, supra. Congress’ concern for the finality of the agency’s decisions is evident from the Act itself. See 42 U.S.C. § 405(g), (h). Thus, the District Court’s refusal to consider the merits of appellant’s application must be affirmed. As appellant notes, however, the strict requirements of res judicata have been modified in this administrative context by regulations that under some circumstances allow prior determinations to be reopened. 20 C.F.R. §§ 404.956-404.958. Accordingly, appellant asks us to consider his application as a request to reopen the hearing examiner’s decision on his October 1963 application and to reverse the District Court’s refusal to review the examiner’s denial of that request. The record affirmatively shows, however, that appellant’s petition for reopening was not timely filed under 20 C.F.R. § 404.957(b). Cf. Craig v. Finch, 416 F.2d 721 (5th Cir. 1969). Nevertheless, citing Torres v. Sec’y of Health, Educ. & Welfare, 475 F.2d 466 (1st Cir. 1973), appellant argues that the running of the four year limitation in § 404.957(b) should be tolled because his limited mental abilities prevented him from understanding the necessity of seeking reopening within the four year period. Here appellant alleges nothing like the major mental disability at issue in Torres, so we reject this contention while expressing no opinion on the holding in that case. We likewise find no basis for appellant’s assertion that the four year limitation in § 404.957(b) is “arbitrary.” The regulation represents a permissible resolution of the conflict between the need to give some finality to prior factual determinations and the desire to accord claimants all procedural rights consistent with reasonably efficient agency operation. Accord, Stuck-ey v. Weinberger, supra. Appellant thus offers no reason why we should find the limitations in § 404.957(b) inapplicable to him. Appellant also claims that he is entitled to reopening of the 1965 decision under 20 C.F.R. § 404.957(c) (8), which allows reopening at any time “but only for the purpose of correcting clerical error or error on the face of the evidence on which such determination or decision was based.” See Craig v. Finch, supra. Appellant’s claim of new and material evidence patently is not the type of “error” with which this section was designed to deal. See Grose v. Cohen, 406 F.2d 823 (4th Cir. 1969) (arithmetical miscalculation in a prior decision is error on the face of the evidence). Accordingly, the District Court correctly refused to review the agency’s decision not to reopen the 1965 determination. In light of the disposition we make of appellant’s contentions, we need not reach the question whether the District court lacked jurisdiction to review the agency’s decision not to reopen the 1965 decision. Compare Wallace v. Weinberger, 488 F.2d 606 (9th Cir. 1973), cert. denied, 417 U.S. 913, 94 S.Ct. 2612, 41 L.Ed.2d 217 (1974), and Stuckey v. Weinberger, supra, with Maddox v. Richardson, 464 F.2d 617 (6th Cir. 1972); Davis v. Richardson, 460 F.2d 772 (3d Cir. 1972); Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966). Judgment affirmed. . That is, appellant does not argue that he suffered under some disability whose existence was not litigated and decided in the 1963-65 proceedings. He bases his request for relief in part on alleged new evidence concerning the claimed disabilities that were the subject of the 1965 decision. Although going primarily to his claim of “good cause” for reopening the earlier decision, appellant’s new evidence argument obviously is also relevant to whether the decision should be given res judicata effect. Since the hearing examiner expressly found that the new evidence was merely cumulative of the evidence considered in the 1965 decision, however, it does not prevent the application of res judi-cata to his sixth'request for benefits. . The courts appear unanimous in holding that lack of counsel at the earlier hearing does not affect the validity of the resulting decision unless the claimant shows “clear prejudice or unfairness.” See, e. g., Davis v. Richardson, 460 F.2d 772 (3d Cir. 1972); Easley v. Finch, 431 F.2d 1351 (4th Cir. 1970); cf. Cross v. Finch, 427 F.2d 406 (5th Cir. 1970). Hearings before the agency are not adversary in nature, and the vast majority of claimants are not represented by counsel. Easley v. Finch, supra. Hence, appellant must meet a considerable burden to show prejudice or unfairness. Having shown no specific harm arising from his lack of counsel at the earlier hearing, as distinguished from general allegations of unfairness, appellant has failed to meet that burden. . 20 C.F.R. § 404.957 provides in relevant part: An initial or reconsidered determination of the Administration or a decision of a hearing examiner or of the Appeals Council which is otherwise final under § 404.-908, § 404.916,- § 404.940, or § 404.951 may be reopened: * * * * * (b) . within 4 years after the date of the notice of the initial determination (see § 404.907) to the party to such determination, upon a finding of good cause for reopening such determination or decision Notice of the initial determination of appellant’s October 1963 claim was sent to appellant on January 22, 1964. He did not file his sixth application until July 8, 1968. Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Answer:
songer_const1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Philip ROOTBERG and Edward W. Ross, as trustees under the Liquidating Trust Agreement of M.P. Electric, Inc., Plaintiffs-Appellees, v. CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, et al., Defendants-Appellants. No. 87-2873. United States Court of Appeals, Seventh Circuit. Argued June 2, 1988. Decided Aug. 19, 1988. Terence G. Craig, Central States Pension Fund, Chicago, Ill., for defendants-appellants. Marc O. Beem, Miller, Shakman, Nathan & Hamilton, Chicago, Ill., for plaintiffs-ap-pellees. Before POSNER, COFFEY, and KANNE, Circuit Judges. POSNER, Circuit Judge. An employer who withdraws from a mul-tiemployer pension fund, such as the teamsters pension fund involved in this case, is required by the Multiemployer Pension Plan Amendments Act of 1980, 29 U.S.C. §§ 1381 et seq., to compensate the fund by reimbursing it for his pro rata share of the fund’s vested but unfunded pension liability. The idea is to prevent an employer from shifting to other employers its pension obligations to its employees. In 1981 M.P. Electric, Inc., a participant in the teamsters’ Central States multiemployer pension fund, sold the part of its business (electric supply) covered by the Central States pension fund. The fund assessed withdrawal liability of some $165,000 against M.P. It based the assessment on the 14-month history of contributions to the fund by the company from which M.P. had bought the electric-supply business that it had just sold. See 29 U.S.C. § 1382. M.P. contested the assessment, claiming that its predecessor’s contribution history was insufficient to impose withdrawal liability on a successor corporation. See 29 U.S.C. § 1389. “Any dispute between an employer and the plan sponsor of a multiemployer plan concerning a determination [of withdrawal liability] shall be resolved through arbitration,” 29 U.S.C. § 1401(a)(1), so on March 22,1984, the trustees of M.P. (the firm is in liquidation) filed a demand for arbitration. The demand was timely, but the arbitration was delayed while Central States gave further consideration to M.P.’s arguments. On May 9,1985, with the arbitration still in abeyance by mutual consent, M.P.’s trustees filed the present suit, seeking a declaratory judgment that M.P. has no withdrawal liability to the Central States fund. Central States asked the district court to dismiss the suit for want of subject-matter jurisdiction and failure to exhaust administrative remedies (i.e., arbitration), and told the American Arbitration Association that it wanted to proceed immediately with the arbitration over M.P.’s withdrawal liability. M.P.’s trustees responded in August by asking the court to stay the arbitration. On September 4, 1985, before the district judge had ruled on these motions, another district judge, Judge Shadur, in another suit challenging Central States’ theory of successor liability, held that the theory had no basis in the statute. Richland Industries Ltd. v. Robbins, 617 F.Supp. 639 (N.D.Ill.1985). Persuaded of the correctness of Judge Shadur’s decision, Central States on September 21, 1985, wrote the M.P. trustees that it had decided that M.P. had no withdrawal liability to the fund after all. The trustees then moved to drop this suit, and for an award of attorney’s fees. The district court granted both of these motions, and, analogizing the trustees to prevailing plaintiffs in civil rights suits, awarded them almost $36,000 in attorney’s fees. Central States appeals, contending that the trustees are entitled to no fee. The MPPAA authorizes an employer adversely affected by an act or omission with respect to a multiemployer plan to bring suit in federal court for appropriate legal or equitable relief. See 29 U.S.C. §§ 1451(a)(1), (c). And in any such suit “the court may award all or a portion of the costs and expenses incurred in connection with [the suit], including reasonable attorney’s fees, to the prevailing party.” 29 U.S.C. § 1451(e). This section has no recorded legislative history except for a statement by the floor manager of the bill in the House of Representatives, Congressman Thompson, that if an employer fails to make timely withdrawal-liability payments required by the MPPAA “the court must award the plan ... attorneys’ fees.” 126 Cong.Rec. 23039 (1980). This language seems overemphatic in view of what section 1451(e) actually says (“the court may award all or a portion of the costs and expenses incurred”), but in any event does not address the case where the employer is the prevailing party. There are few reported cases under this section; but since the MPPAA is an amendment to ERISA (the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq.), which has a similarly worded provision on attorney’s fees (in any suit under ERISA “by a participant, beneficiary, or fiduciary [which would include an employer, such as M.P.], the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party,” 29 U.S.C. § 1132(g)(1))—and such differences in wording between the two provisions as there are appear to be inadvertent—we hold that the standards for awarding attorney’s fees are the same. See Central States, Southeast & Southwest Areas Pension Fund v. 888 Corp., 813 F.2d 760, 767 (6th Cir.1987); Cuyamaca Meats, Inc. v. San Diego & Imperial Counties Butchers’ & Food Employers’ Pension Trust Fund, 827 F.2d 491, 500 (9th Cir.1987). We can therefore treat decisions interpreting section 1132(g) as precedents for the interpretation of section 1451(e). In one of the few decisions interpreting section 1451(e), the Third Circuit held that an employer who prevails, either as plaintiff or defendant, in a suit under the MPPAA is entitled to an award of attorney’s fees only if the pension fund’s litigating position was frivolous. Dorn’s Transportation, Inc. v. Teamsters Pension Trust Fund, 799 F.2d 45 (3d Cir.1986). The court reached this conclusion by analogizing the employer to a defendant in a civil rights suit. (No court before the district court in this case had ever suggested that the victorious employer should be analogized to the prevailing plaintiff in a civil rights suit and should therefore recover attorney’s fees virtually as a matter of course.) We had rejected the analogy in interpreting section 1132(g) in Bittner v. Sadoff & Rudoy Industries, 728 F.2d 820, 829 (7th Cir.1984), and had gone on to hold that the employer was entitled to its attorney’s fees if the plaintiff’s litigating position had lacked substantial justification. See also Van Boxel v. Journal Co. Employees’ Pension Trust, 836 F.2d 1048, 1054 (7th Cir.1987). If we are correct that sections 1451(e) and 1132(g) should be interpreted the same way, then Dorn’s is not the standard in this circuit. But it will soon become clear that the choice of standard would not change the outcome of this case. Central States argues that M.P.’s trustees did not prevail, for it withdrew its assessment of withdrawal liability not because of this suit but because of Judge Shadur’s decision in Richland. Yet a party can prevail, in a common-sense interpretation of this term, through luck as well as sweat. If you bring a suit, and incur expense in its prosecution, and then the defendant throws in the towel for reasons entirely unrelated to your efforts, still you have won, and if your expense was prudent, should it not be reimbursed? The problem lies in determining whether or in what sense the plaintiff has prevailed as a litigant. Suppose the plaintiffs suit was frivolous and would surely have gone down to defeat if litigated, but the defendant, for reasons extrinsic to the suit, decided to cure the plaintiffs grievance; then in no sense relevant to a statutory scheme for reimbursing the expenses of prevailing parties could the plaintiff be entitled to reimbursement. The problem arises frequently in cases that are settled. See, e.g., Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2574-75, 65 L.Ed.2d 653 (1980). The plaintiff has got something for his efforts, but does it follow that he prevailed? It does not. The suit may have been groundless, and settled merely because it had some nuisance value; in such a case the plaintiff will not receive an award of attorney’s fees. Harrington v. DeVito, 656 F.2d 264, 266-67 (7th Cir.1981); Palmer v. City of Chicago, 806 F.2d 1316, 1323 (7th Cir.1986); EEOC v. Madison Community Unit School District No. 12, 818 F.2d 577, 590 (7th Cir.1987). (Conversely, if the suit is not frivolous and does produce results— which could be a favorable settlement, or even a judgment in another forum than the one in which the suit was brought — an award of attorney’s fees is permissible. See, e.g., Hewitt v. Helms, — U.S. —, 107 S.Ct. 2672, 2676, 96 L.Ed.2d 654 (1987); Sullivan v. Commonwealth of Pennsylvania Department of Labor, Etc., 663 F.2d 443, 449 (3d Cir.1981).) The case before us presents the reverse situation: not the mer-itless ease that produces some benefit for the plaintiff but the possibly meritorious case that, because of supervening events, has no effect. The courts uniformly reject the plaintiff’s claim for reimbursement unless he can show that the suit was a cause (or “catalyst,” as the cases often say) of the victory, the assumption being that “causing” is as prerequisite to an award of attorney’s fees as “prevailing,” or perhaps is implied by the latter word. Our most recent statement of this position is in Hendricks v. Bowen, 847 F.2d 1255, 1258 (7th Cir.1988), and there are many others. See, e.g., In re Burlington Northern, Inc. Employment Practices Litigation, 832 F.2d 422, 425 (7th Cir.1987); Janowski v. International Brotherhood of Teamsters Local No. 710 Pension Fund, 812 F.2d 295, 298 (7th Cir.1987); Gekas v. Attorney Registration & Disciplinary Comm’n, 793 F.2d 846, 849 (7th Cir.1986) (per curiam); Illinois Welfare Rights Organization v. Miller, 723 F.2d 564, 568-69 (7th Cir.1983); Disabled in Action of Pennsylvania v. Pierce, 789 F.2d 1016, 1019 (3d Cir.1986); Othen v. Ann Arbor School Bd., 699 F.2d 309, 313 (6th Cir.1983). This assumption spells doom for the trustees’ claim to fees, since it is apparent that the defendants reconsidered their position on withdrawal liability because of Judge Shadur’s forceful opinion in Richland and not because of the trustees’ lawsuit. The assumption could be questioned. It could be argued that an award of attorney’s fees is justifiable if the plaintiff prudently incurred reasonable fees in pursuit of a meritorious claim and then had the claim fall into its lap because the defendant, for reasons wholly unrelated to the suit, dropped its objections. Cf. Hendricks v. Bowen, supra, 847 F.2d at 1259-61 (concurring opinion). For what is a plaintiff to do who has a meritorious suit yet knows there is some chance that the defendant will buckle irrespective of the suit? There is a bare hint in Coalition for Basic Human Needs v. King, 691 F.2d 597, 600 (1st Cir.1982), that the First Circuit might be sympathetic to such a plaintiff’s claim for attorney’s fees, yet of the many cases that hold that the plaintiff’s suit must be the catalyst of the defendant’s remedial actions only two actually discuss our question and both denied attorney’s fees. In Truax v. Bowen, 842 F.2d 995 (8th Cir.1988) (per curiam), a divided panel of the Eighth Circuit held that, even though the plaintiff had to file suit in order to obtain certain benefits under the Social Security Act, he could not obtain attorney’s fees, because while his suit was pending Congress had passed a statute that established his right to those benefits. “[Although it is true that had [the plaintiff] not filed his lawsuit he would not have obtained relief, we fail to see how this ‘but for' argument establishes a causal connection between the litigation and the Secretary’s remedial action.” Id. at 997. It doesn’t, but the question is whether the plaintiff should be denied attorney’s fees when he could not have prevailed without suing, even though his suit was not what caused the defendant to cave. The second case, however, is our own Hendricks v. Bowen, supra, and there a panel of this court (though divided on this question) adopted the reasoning and result in Truax. For now, at least, that is the law of this circuit. And even if we were minded to reexamine Hendricks, this would not be the right case in which to do so, since in any event the trustees’ claim must fail because of a peculiarity of the Multiem-ployer Pension Plan Amendments Act. The arbitration of disputes over withdrawal liability is, as we have seen, mandatory; and a regulation of the Labor Department bars the arbitrator-the parties agree-from awarding attorney’s fees in the absence of bad faith or misconduct, neither of which is suggested here. See 29 C.F.R. § 2641.9(c) (“the arbitrator may require a party that initiates or contests an arbitration in bad faith or engages in dilatory, harassing, or other improper conduct during the course of the arbitration to pay reasonable attorney’s fees of other parties”). So if the trustees had stayed with the arbitration they demanded rather than file this lawsuit, they could not have gotten attorney’s fees. The trustees argue that since the issue of the withdrawal liability of successor corporations is a pure issue of statutory interpretation, and since (unlike the case of normal arbitration) judicial review of the arbitrator’s resolution of issues of law is plenary under the MPPAA (or so at least the Ninth Circuit held in Board of Trustees v. Thompson Building Materials, Inc., 749 F.2d 1396, 1405-06 (9th Cir.1984), by inference from section 1401(c), and neither side in our case questions that holding), they were entitled to proceed in the district court in the first instance. And if they were entitled to bypass arbitration, then surely, they argue, the provision governing the award of attorney’s fees in arbitration can have no application. There is no question that the MPPAA authorizes this suit for declaratory judgment; the only question is whether the statute establishes a requirement of exhausting arbitral remedies that is so broad and absolute that it applies even to cases in which the more efficient course would be to proceed directly to court. The statutory language, quoted earlier, is broad, and the right of either party to demand arbitration, even if the only issue between them is a pure issue of law, is not questioned. The trustees’ argument that Central States based its decision on withdrawal liability not on the MPPAA but on common law notions .of successor liability, and therefore the decision was not arbitrable, is frivolous. The statute requires arbitration of determinations made under the MPPAA, and a determination of withdrawal liability is such a determination regardless of the pension fund’s reasoning process. It doesn’t follow, however, that just because issues of law are arbitrable, the parties must arbitrate them. Most cases hold, and we have agreed, that section 1401(a)(1) is not jurisdictional. See, e.g., Robbins v. Admiral Merchants Motor Freight, Inc., 846 F.2d 1054, 1056 (7th Cir.1988); Central States Southeast & Southwest Areas Pension Fund v. T.I.M.E.-DC, Inc., 826 F.2d 320, 325-28 (5th Cir.1987); Grand Union Co. v. Food Employers Labor Relations Ass’n, 808 F.2d 66, 69 (D.C. Cir.1987); but see Marvin Hayes Lines, Inc. v. Central States, Southeast & Southwest Areas Pension Fund, 814 F.2d 297, 300 (6th Cir.1987). And the statement by Congressman Thompson that “the role of the arbitrator under this Act will be similar to that of a judge applying applicable law to the facts presented,” 126 Cong. Rec. 23039 (1980), relied on in Teamsters Pension Trust Fund v. Allyn Transport, Co., 832 F.2d 502, 504 n. 3 (9th Cir.1987), to demonstrate that arbitration is indeed mandatory even though only legal questions are involved, is actually irrelevant. Congressman Thompson’s point (as the words that follow the quotation make clear) was not that issues of law ought always to be submitted to the arbitrators in the first instance but that arbitrators under the MPPAA should resist the common impulse of commercial and labor arbitrators to compromise disputes rather than enforce entitlements. The question whether the MPPAA requires arbitration of pure issues of law has divided the circuits. The Second Circuit in T.I.M.E.-DC, Inc. v. Management-Labor Welfare & Pension Funds, 756 F.2d 939, 945 (2d Cir.1985), held it does not. In like vein the District of Columbia Circuit held in I.A.M. National Pension Fund Benefit Plan C v. Stockton Tri Industries, 727 F.2d 1204, 1210 (D.C.Cir.1984), that arbitration is not required if the dispute between the parties involves no issue within the expertise of arbitrators, while the Third Circuit held in Dorn’s Transportation, Inc. v. Teamsters Pension Trust Fund, 787 F.2d 897, 903 (3d Cir.1986), that arbitration can be bypassed when there are no factual issues. Lately, however, most courts, including both the D.C. Circuit and the Third Circuit, have been busy narrowing Stockton; and Align may reflect an emerging consensus. See Grand Union Co. v. Food Employers Labor Relations Ass’n, supra; I.A.M. National Pension Fund v. Clinton Engines Corp., 825 F.2d 415, 418 (D.C.Cir.1987); Flying Tiger Line v. Teamsters Pension Trust Fund, 830 F.2d 1241, 1253-55 (3d Cir.1987); Mason & Dixon Tank Lines, Inc. v. Central States, Southeast & Southwest Areas Pension Fund, 852 F.2d 156, 164-65 (6th Cir.1988). Yet the Second Circuit recently reaffirmed its contrary position. See Park South Hotel Corp. v. New York Hotel Trades Council, 851 F.2d 578, 582 (2d Cir.1988). This is not the right case for us to take sides in this dispute, since even if M.P.’s trustees were entitled to bypass arbitration it still would be anomalous to allow them to obtain, by virtue of their action, an award of attorney’s fees that they concede they could not obtain if they had proceeded in the normal fashion, that is, by staying with the arbitration that they demanded and by prevailing before the arbitrator, as undoubtedly they would have done. By making the judicial option cheaper to the plaintiff than the arbitral, an award of attorney’s fees in this case would encourage the bypassing of arbitration despite the strong preference for arbitration that the statute expresses, and would encourage the multiplication of proceedings. The trustees started down the arbitration route; they should have continued on that route rather than switch to the courts. The regulation we have quoted makes clear that in resolving disputes over withdrawal liability each party shall bear its own fees in the absence of bad conduct. In light of the considerations just discussed, we hold that the spirit of the regulation requires that this principle be enforced whichever forum is selected by the party seeking an award of attorney’s fees. M.P.’s trustees were therefore not entitled to reimbursement of the fees they incurred —futilely, as it turned out — in the district court. The same conclusion is reached by reflecting once again on the requirement of proving a causal connection between suit and victory. This requirement can, as we have said, be questioned in cases such as Truax or Hendricks where the plaintiff had to sue in order to get his benefits, even though he got those benefits for reasons unrelated to his efforts in the suit. The present case is different, for while M.P.’s trustees may well have had to institute some form of litigation in order later to take advantage of the change of heart induced by Judge Shadur’s decision in Rich-land, they didn’t have to file a suit. All they had to do was demand — and they did demand — arbitration. The lawsuit was superfluous. It not only did not cause Central States’ change of heart; it was not even a necessary condition of that change, as Truax’s suit was a necessary condition (though the majority in Hendricks held that it was not a “proximate cause,” 847 F.2d at 1258) of his obtaining the benefit of the new social security amendments. The judgment of the district court is reversed with directions to dismiss the request for attorney’s fees. REVERSED. Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Answer:
songer_initiate	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN et al., Appellants, v. FLORIDA EAST COAST RAILWAY COMPANY et al., Appellees. No. 21060. United States Court of Appeals Fifth Circuit. June 8, 1965. Thomas W. McAliley, Alan R. Schwartz, Nichols, Gaither, Beckham, Colson & Spence, Miami, Fla., for appellant. William P. Simmons, Jr., Shutts, Bowen, Simmons, Prevatt, Boureau & White, Miami, Fla., for appellee, Florida East Coast Ry. Co. Granville M. Alley, Jr., Denzil Y. Causey, Jr., Tampa, Fla., Neal Rutledge, Miami, Fla., for appellee, Broward County Port Authority, Fowler, White, Gillen, Humkey & Trenam, Tampa, Fla., of counsel. Before JONES and BELL, Circuit Judges, and HUNTER, District Judge. GRIFFIN B. BELL, Circuit Judge: This is an appeal by employees of the Broward County (Florida) Port Authority and their unions from an order of the District Court enjoining the Port Authority and its employees from refusing to switch cars of the Florida East Coast Railway. The controlling question presented is whether the injunction as against the employees represented by appellants is barred by the NorrisLaGuardia Act, 29 U.S.C.A. § 101 et seq. We hold that it is and reverse. In January 1963, certain employees of the Florida East Coast Railway went out on strike. The strikers set up picket lines at various points on FEC property. One area picketed was FEC’s interchange track which connects FEC’s tracks with those of the Broward County Port Authority. The Port Authority operates an independent belt line for the purpose of transferring cars from trunk lines to the dock facilities owned and operated by the Authority at Port Everglades. The Port Authority is under contract with FEC to switch FEC cars from the interchange track to the docks. After the picket lines went up at the interchange track, the Port Authority switching crews refused to cross the lines to pick up FEC cars. The FEC, which was continuing to operate despite the strike against it, sought to compel the Port Authority to carry out its contractual obligations and its duty under the interchange section of the Interstate Commerce Act, 49 U.S. C.A. § 3(4). The Port Authority itself commenced a suit to compel its employees to service FEC tracks, but this action was dismissed without prejudice. The FEC then brought the present action against the Port Authority seeking an injunction requiring the Port Authority to switch its cars. The District Court entered a preliminary injunction prohibiting the Port Authority “and all of its officers, agents, servants, employees and attorneys, and all persons acting in concert and participation with them” from refusing to service the FEC tracks in accordance with the interchange agreement between the two railroads. The effect of the injunction was to require the Port Authority’s switching crews to cross the FEC picket line. Consequently, individual members of the switching crews and their unions were permitted to intervene. A second hearing was held at which the intervenors urged, inter alia,, that the injunction was barred by the Norris-LaGuardia Act. The District Court refused to dissolve the injunction, and the intervening employees and unions have brought the case here. The Norris-LaGuardia Act, 29 U.S. C.A. § 104, provides: “No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts: “(a) Ceasing or refusing to perform any work * * We begin by noting that the effect of the injunction entered below was to prohibit employees of the Port Authority, including appellants, from refusing to perform work, i. e., refusing to cross the FEC picket line. The injunction specifically binds the Port Authority “and all of its * * * employees.” Secondly, there is concededly a labor dispute between FEC and its employees. Under 29 U.S.C.A. § 113(c), the definitional section of the Norris-LaGuardia Act, the term “labor dispute” is broadly defined as any controversy over the terms or conditions of employment regardless of whether or not the disputants stand in the proximate relation of employer and employee. We also think it is clear that this case involves or grows out of the labor dispute at FEC and that the Port Authority employees are persons interested in that dispute. The Port Authority employees refused to service the FEC interchange track solely because of the strike and picketing at FEC. This litigation would never have arisen were it not for the labor dispute at FEC. The Authority’s employees are interested in the dispute in that they are members of the same trade or industry as the striking FEC workers, see 29 U.S.C.A. § 113(b), and desire to make common cause with them by honoring their lawful picket line. Thus, the literal language of the Norris-LaGuardia Act covers the situation presented here. The oft-stated congressional policy of that act was to prevent injunctive interference in labor disputes and to allow such controversies to be settled through negotiation and the free play of economic forces. 29 U.S.C.A. § 102; Sinclair Refining Co. v. Atkinson, 1962, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440; Order of Railroad Telegraphers v. Chicago & N. W. R. Co., 1960, 362 U.S. 330, 80 S.Ct. 761, 4 L.Ed.2d 774. This policy finds plain application here, since the effect of the injunction is to nullify the picket line and give FEC an advantage in the dispute it has with its employees. See Lee Way Motor Freight v. Keystone Freight Line, Inc., 10 Cir., 1942, 126 F.2d 931, cert. den., 317 U.S. 645, 63 S.Ct. 37, 87 L.Ed. 519, applying the Norris-LaGuardia Act in a comparable factual situation, and cf. Marine Cooks & Stewards, AFL v. Panama S.S. Co., 1960, 362 U.S. 365, 80 S.Ct. 779, 4 L.Ed.2d 797. FEC’s primary contention is that even if the Norris-LaGuardia Act would otherwise be applicable, that enactment is superseded by the provisions of the Railway Labor Act, 45 U.S.C.A. § 151 et seq., requiring compulsory arbitration of minor disputes. The Supreme Court held in Brotherhood of Railroad Trainmen v. Chicago River & Indiana Railroad Co., 1957, 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622, that Congress intended that compulsory arbitration under § 3, First, 45 U.S.C.A. § 153(i), of the Railway Labor Act should be the exclusive mode of settling minor disputes, and that consequently a strike over a minor dispute may be enjoined notwithstanding the Norris-LaGuardia Act. Under the Railway Labor Act, minor disputes involve grievances or questions of interpretation of an existing collective bargaining contract; major disputes arise from efforts to change working conditions through the making of a new agreement. 45 U.S.C.A. § 152, sixth, seventh; Elgin, J. and E. R. Co. v. Burley, 1945, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886, 1894-1895. FEC argues that this case actually involves a minor dispute between the Port Authority and its employees, rather than a major dispute at FEC, and that consequently the refusal to cross the picket line may be enjoined. In our view, this argument ignores the realities of the factual situation before us. It is the FEC that seeks the injunction, not the Port Authority. Neither the Port Authority nor its switching crews have submitted the controversy to the Railroad Adjustment Board for arbitration, and the switching employees are in no way defeating the jurisdiction of that body. Consequently, the injunction entered below does not operate to preserve the jurisdiction of the Board over any minor dispute between the Port Authority and its employees; it operates to impede the strike over the major dispute at FEC. Thus, the injunction in no way serves the policy of the Railway Labor Act, whereas, as noted supra, it is in direct conflict with the policy of the Norris-LaGuardia Act. In the present case, the Norris-LaGuardia Act and the Railway Labor Act can be easily accommodated, and this accommodation requires that the injunction entered by the District Court be dissolved. See Northwest Airlines, Inc. v. Transport Workers Union, W.D.Wash., 1961, 190 F.Supp. 495, holding that the Norris-LaGuardia Act prohibited an injunction to require one group of employees to cross a picket line set up by another group of employees of the same employer, and where the refusal to cross the picket line was treated as being a part of the major dispute. But see International Association of Machinists AFL-CIO v. Northwest Airlines, 8 Cir., 1962, 304 F.2d 206, where the major dispute and minor dispute were separated for purposes of the Norris-LaGuardia Act. We hold under the facts of the instant case that the refusal to cross the picket line is a part of the major dispute at FEC. FEC also argues that the NorrisLaGuardia Act has been amended pro tanto by the interchange section of the Interstate Commerce Act, 49 U.S.C.A. § 3(4), quoted at note 1 supra. This contention is without merit. Cf. Texas & New Orleans R.R. v. Brotherhood of Railroad Trainmen, 5 Cir., 1962, 307 F.2d 151. Section 3(4) merely imposes a duty on earners to provide adequate connecting facilities without discrimination, and does not purport to regulate labor conditions in any manner whatsoever. Again, the clear language of the NorrisLaGuardia Act must control. In sum, we hold that the Norris-LaGuardia Act is applicable to the present case and is not preempted by any other federal legislation. It follows that the order of the District Court refusing to dissolve the injunction to the extent it is binding on appellants here must be and it is Reversed. . “§ 3, par. (4). Interchange of traffic. All carriers subject to the provisions of this chapter shall, according to their respective powers, aiford all reasonable, proper, and equal facilities for the interchange of traffic between their respecting lines and connecting lines, and for the receiving, forwarding, and delivering of passengers or property to and from connecting lines; and shall not discriminate in their rates, fares, and charges between connecting lines, or unduly prejudice any connecting line in the distribution of traffie that is not specifically routed by tbe shipper. As used in this paragraph the term ‘connecting line’ means the connecting line of any carrier subject to the provisions of this chapter or any common carrier by water subject to chapter 12 of this title.” . See. Chicago & Illinois Midland Railway Co. v. Brotherhood of Railroad Trainmen, 8 Cir., 1963, 315 F.2d 771, vacated as moot, 375 U.S. 18, 84 S.Ct. 61, 11 L.Ed.2d 39 on the question which would he presented should the Port Authority seek an injunction. See particularly the dissenting opinion on the problem of separating the major dispute from the minor dispute, and accommodating this difficulty with the more specific provisions of the NorrisLaGuardia Act. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_usc1sect	322	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". Evert L. HAGAN, Administrator of the Estate of J. A. Hagan, Deceased, Appellant, v. UNITED STATES of America, Appellee. No. 14957. United States Court of Appeals Ninth Circuit. Nov. 13, 1956. Rehearing Denied Dec. 3, 1956. Evert L. Hagan, in pro. per., Jesse A. Hamilton, Los Angeles, Cal., for appellant. Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, Helen A. Buckley, Sp. Assts. to Atty. Gen., Laughlin E. Waters, U. S. Atty., Edward R. McHale, Bruce I. Hochman, Asst. U. S. Attys., Los Ange-les, Cal., for appellee. Before BONE, ORR and HAMLEY, Circuit Judges. HAMLEY, Circuit Judge. The administrator of the estate of a deceased taxpayer appeals from a judgment dismissing his action for the recovery of income taxes alleged to have been overpaid. The judgment was entered after the filing of the first amended complaint. The single question pre-sentéd here is whether, under the facts alleged in the complaint, appellant’s claims for refund were timely filed. According to the complaint, decedent taxpayer, J. A. Hagan, and his brother, Evert L. Hagan, had been partners in 1945 and 1946, doing business as the El Rey Cheese Company. On March 15, 1946, decedent made an income tax return for the calendar year 1945, indicating a tax of $592.04 due on net income from the business, which amount was remitted with the return. A like return was made on March 15, 1947, for the calendar year 1946, the income tax then remitted being $3,181.95. On January 9, 1950, the Commissioner of Internal Revenue filed notices of jeopardy delinquent tax assessments against Evert L. Hagan, personally, for the years 1945 and 1946, based upon the asserted net income of the El Rey Cheese Company. Evert filed a petition in the United States Tax Court for a redeter-mination of his tax liability for those years. A reaudit of the books of the El Rey Cheese Company for those years, which was then made, disclosed that there was no actual net income from that business. The reaudit was checked by an agent of the Internal Revenue Service. Thereafter, a stipulation was entered in Evert’s proceeding before the United States Tax Court, to the effect that there was no tax liability upon Evert for the years 1945 and 1946, on account of the net income arising out of the operation of the El Rey Cheese Company. This stipulation was adopted by the United States Tax Court in entering its decision of January 19, 1953. The decision ordered and decided: “That there are no deficiencies in income taxes or penalties due from, or overpayment due to, petitioner for the taxable years 1945 and 1946.” In the meantime, Evert, as administrator of the estate of J. A. Hagan, filed claims with the Collector of Internal Revenue for the refund of income taxes paid by J. A. Hagan for 1945 and 1946 on net income from the business. These claims, filed on September 6, 1952, were grounded upon the same reaudit which the Internal Revenue Service and the United States Tax Court apparently accepted as the basis for the stipulation and decision mentioned above. On December 10, 1953, appellant, as administrator, wrote to the audit division of the Los Angeles office of the Internal Revenue Service, calling attention to the stipulation, and to the tax court decision of January 19, 1953. He there stated: “My brother’s liability as associate or partner [in the cheese business] could be no greater than mine. Therefore if I owed nothing then he overpaid.” Conferences and correspondence followed. The Internal Revenue Service took the position that the claims for refund had not been timely filed. On May 17, 1954, appellant for the first time expressly asserted, in writing, that the bar of the statute of limitations had been removed by the effect of § 3801, Internal Revenue Code of 1939, 26 U.S.C.A. § 3801. This view being rejected, appellant brought the instant action on February 15, 1955. Under the Internal Revenue Code of 1939, which is applicable here, a claim for refund must be filed within three years from the time the return was filed, or within two years from the time the tax was paid. The claims for refund filed on September 6, 1952, with respect to returns filed and taxes paid on March 15, 1946, and March 15, 1947, were therefore barred by this statute of limitations. Appellant argues, however, that the alleged circumstances are such that § 3801 of the Internal Revenue Code of 1939, removing the bar of this statute of limitations in certain cases, should be given effect. Under § 3801, the bar of the statute of limitations is removed if it appears that: (1) A “determination” has been made; (2) such determination concerns the tax liability of a “related” taxpayer; (3) this determination adopts one of the seven circumstances of adjustment described in subsection (b); and (4) except where the determination adopts a circumstance of adjustment described in paragraphs (6) and (7) of subsection (b), such determination adopts a position maintained by the Commissioner of Internal Revenue which is inconsistent with the tax treatment the complaining taxpayer has received. We may assume, for present purposes, that the decision of the United States Tax Court in Evert L. Hagan’s case is a “determination,” and that Evert and J. A. Hagan are “related” taxpayers, within the meaning of § 3801. This fulfills the first two requirements of § 3801, as enumerated above. We must next consider whether, under the facts pleaded, one of the seven circumstances of adjustment, as described in subsection (b), is present in this case. It is not denied that the only one of the seven circumstances of adjustment described in subsection (b) which is here pertinent is that which is described in paragraph (1) thereof. This circumstance is that the determination under the income tax laws “requires the inclusion in gross income of an item which was erroneously included in the gross income of the taxpayer for another taxable year or in the gross income of a related taxpayer * * Under the facts of this case, this statutory “circumstance” would not exist unless the determination of the tax court required the inclusion, in the gross income of Evert L. Hagan, of an item which was erroneously included in the gross income of J. A. Hagan for the same taxable year. It appears from the complaint that the tax court determination with respect to Evert’s tax liability did not require the inclusion in Evert’s gross income of an item which was erroneously included in the gross income of J. A. Hagan. The tax court decision, quoted in full above, does not require the inclusion of any item in the gross income of Evert. Quite to the contrary, it is there stated that there are no deficiencies in income taxes due from Evert for the years in question. It follows that, under the facts alleged, appellant has failed to bring his case within § 3801. The bar of the statute of limitations governing the filing of refund claims therefore applies. It was accordingly correct to dismiss the action. Affirmed. . The due filing of a claim for refund is a prerequisite to the maintenance of such an action. Section 7422(a), Internal Revenue Code of 1954, 26 U.S.C.A. § 7422(a). . Section 322(b), Internal Revenue Code of 1939, 26 U.S.C.A. (I.R.C.1939) § 322(b). . While § 3801, if applicable, removes the bar of this statute of limitations, it, in effect, establishes a new one-year statute of limitations running from the date of the “determination” referred to in that section, gee 26 U.S.C.A. (I.R.C.1939) § 3801(c). Appellee argues that appellant did not effectively act within this new one-year period, but we find it unnecessary to explore this contention. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26? Answer with a number. Answer:
songer_genresp1	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. Abdulaziz A. ALFADDA, Abdullah Abbar, Abdulla Kanoo, Abdulaziz Kanoo, Yusif Bin Ahmed Kanoo (a partnership company), and Ahmed A. Zainy, Plaintiffs-Appellants, v. Richard A. FENN, Jamal Radwan, Saudi European Investment Corporation N.V., Saudi European Bank, S.A., Alef Investment Corporation N.V., and Alef Bank, S.A., Defendants-Appellees. No. 1291, Docket 90-9129. United States Court of Appeals, Second Circuit. Argued April 18, 1991. Decided June 5, 1991. Geoffry D.C. Best, New York City (Le-Boeuf, Lamb, Leiby & MacRae, New York City, Gwenellen P. Janov, Elena M. Naugh-ton, Anthony M. Sabino, of counsel), Craig B. Glidden, Houston, Tex. (Beirne, Maynard & Parsons, Houston, Tex., Jeffrey R. Parsons, of counsel), for plaintiffs-appellants. George A. Davidson, New York City (Hughes Hubbard & Reed, New York City, Daniel H. Weiner, of counsel), for defendant-appellees Jamal Radwan, Saudi European Inv. Corp. N.V., Alef Inv. Corp. N.V., and Alef Bank, S.A. Thomas J. Kavaler, New York City (Ca-hill Gordon & Reindel, New York City, Patrick L. Rocco, of counsel), for defendant-appellee Richard A. Fenn. Joseph F. Haggerty, New York City (Shearman & Sterling, New York City, Danforth Newcomb, Peter L. Lindseth, of counsel), for defendant-appellee Societe de Banque Privee, S.A., formerly Saudi European Bank, S.A. Before LUMBARD, FEINBERG, and McLAUGHLIN, Circuit Judges. LUMBARD, Circuit Judge: Plaintiffs appeal from the November 26, 1990 order of the Southern District of New York, Lawrence M. McKenna, Judge, dismissing their amended complaint for lack of subject matter jurisdiction. Plaintiffs, investors in defendant, Saudi European Investment Corporation N.V. (SEIC) allege that they were defrauded when their stake in SEIC was diluted by sales in contravention of an offering prospectus, and that defendants diverted the proceeds from the sales for their personal benefit and the benefit of certain favored SEIC shareholders. The district court held that it had no jurisdiction as it found that the alleged fraud was perpetrated outside the United States. We reverse and remand for further proceedings because of plaintiffs’ largely uncontested allegations that fraudulent conduct occurred in the United States. Plaintiffs, Abdulaziz Alfadda, Abdullah Abbar, Ahmed Zainy, and Abdulla Kanoo, Abdulaziz Kanoo and Yusif Bin Ahmed Ka-noo (the latter three plaintiffs referred to as “the Kanoos”), all residents and nationals of Saudi Arabia or Bahrain, filed their complaint in September 1989 naming SEIC, a closely held Netherlands Antilles company ; Saudi European Bank, S.A. and Alef Bank, S.A., both French banks; Alef Investment Corporation N.V., a Netherlands Antilles corporation; Jamal Radwan, chairman of SEIC, and Richard Fenn, former vice-chairman of SEIC, both United States citizens, as defendants. The Amended Complaint alleges that on or about February 4, 1979, Radwan invited Alfadda to become a shareholder in a proposed company, SEIC. The original stock offering consisted of 20,000 shares at a price of $1,000 per share. In July 1979, Alfadda purchased 1,000 shares of SEIC for $1,000,000. Pursuant to the terms of the 1979 offering, Alfadda and the other holders of the original 20,000 shares distributed were to be given a preference in the offering of new shares, in proportion to the number of original shares held by them. Around October 1983, Radwan and Fenn planned a second offering of SEIC stock. The original shares were to be subject to a thirty to one split, creating 600,000 shares. The prospectus for the second offering stated that another 600,000 shares (which represented the 20,000 shares which were not issued in the original offering split thirty to one) were to be sold at $100 per share. In the event of an oversubscription, up to 1,800,000 non-voting shares were to be issued. The Kanoos purchased 10,000 shares of SEIC for $1,000,000 on April 9, 1984. On April 2 and 10, 1984, Zainy and Abbar each paid $1,000,000 for 10,000 shares of SEIC, respectively. Plaintiffs allege that despite representations made in the 1984 offering prospectus upon which they relied, 1,200,000 voting shares were sold, thereby diluting their voting interests in SEIC. In addition, Al-fadda claims that, despite his reliance upon the representations made to him when he purchased the shares in the original 1979 offering, defendants never informed him of the second offering, thus depriving him of his preferential right to purchase new shares. Plaintiffs contend, and the defendants do not dispute, that sales to a subsidiary of American Continental Corp. and Abdulrah-man Al-Turki, which resulted in the alleged dilution of plaintiffs’ voting interests, occurred almost entirely in the United States. In his deposition, Fenn admitted to meeting Charles Keating, chairman of Phoenix-based American Continental, in New York City where Keating informed Fenn that “he would like to take a stake in [SEIC’s] capital offering.” On May 2, American Continental notified SEIC that its savings and loan subsidiary, Lincoln Savings and Loan Association, wanted to purchase 15% of SEIC’s voting shares. Six days after the offer, SEIC telexed American Continental in Phoenix directing it to deposit payment for the shares in a New York bank account. Toward the end of May 1984, Fenn, Radwan and Ronald Reilly, president of Capital International, Inc., met with Keating and other representatives of American Continental in Phoenix. Although it is not known what was discussed at the meeting, approximately one week later, Fenn telexed Reilly that the $18,000,000 “from American Continental has finally arrived.” Because the prospectus had stated that the shares of SEIC would “not be offered or sold directly or indirectly in the United States,” American Continental created a subsidiary off-shore shell company, Lincoln American Investments N.Y., to purchase the SEIC shares. Plaintiffs also allege that on or around June 20, 1984, Radwan telephoned Al-Turki in Houston to advise him that American Continental agreed to purchase 15% of SEIC’s outstanding stock and that if Al-Turki agreed to a large subscription, he, along with Radwan, Keating and another original SEIC investor would control SEIC. On June 22, Reilly telexed Al-Turki to inquire if SEIC could expect an “agreement” on the SEIC offering. Al-Turki sent a return telex to Reilly in which he accepted SEIC’s offer to purchase 150,000 voting shares for $15,000,000. On June 26, SEIC telexed Al-Turki in Houston accepting his offer and directing him to deposit his payment in a New York bank account. In dismissing plaintiffs’ securities law claims for lack of subject matter jurisdiction, the district court held that “the fraud was perpetrated by placing the misleading prospectus into the plaintiffs’ hands outside the United States.” 751 F.Supp. 1114, 1118 (S.D.N.Y.1990). Apparently considering plaintiffs’ allegations of SEIC stock sales to Lincoln American Investments and Al-Turki as irrelevant to the question of jurisdiction, the district court did not consider the import of this alleged conduct in the United States. Accepting plaintiffs’ largely uncontested allegations of conduct consummating the fraud in the United States as true, see Wright and Miller, Federal Practice and Procedure § 1350 at 220 (2d ed. 1990) (uncontroverted factual allegations in the body of the complaint taken as true on disposition of motion to dismiss for lack of subject matter jurisdiction), we reverse and remand for further proceedings. The Securities Exchange Act is silent as to its extraterritorial application. Cf. 15 U.S.C. § 78aa (1988) (vesting federal district courts with exclusive original jurisdiction for violations of the Act). Thus, in addressing transnational frauds, courts must ascertain “whether Congress would have wished the precious resources of the United States courts” to be devoted to such transactions. Psimenos v. E.F. Hutton & Co., 722 F.2d 1041, 1045 (2d Cir.1983) (quoting Bersch v. Drexel Firestone, Inc., 519 F.2d 974, 985 (2d Cir.), cert. denied, 423 U.S. 1018, 96 S.Ct. 453, 46 L.Ed.2d 389 (1975)). Under our decisions, two tests have emerged for determining whether a federal court has subject matter jurisdiction over a foreign plaintiff’s claim under the antifraud provisions of the securities laws. Under the “conduct” test, a federal court has subject matter jurisdiction if the defendant’s conduct in the United States was more than merely preparatory to the fraud, and particular acts or culpable failures to act within the United States directly caused losses to foreign investors abroad. See Psimenos, 722 F.2d at 1046 (citing Bersch, 519 F.2d at 993). A federal court also has jurisdiction under the “effects” test where illegal activity abroad causes a “substantial effect” within the United States. See Consolidated Gold Fields PLC v. Minorco, S.A., 871 F.2d 252, 261-62 (2d Cir.1989). As we find that the allegations are sufficient to show that there is jurisdiction under the conduct test, we reverse. In employing the conduct test, Judge Friendly wrote that subject matter jurisdiction could be based upon the “perpetration of fraudulent acts themselves [but] does not extend to mere preparatory activities or the failure to prevent fraudulent acts where the bulk of the activity was performed in foreign countries, such as in Bersch.” ITT v. Vencap, Ltd., 519 F.2d 1001, 1018 (2d Cir.1975). In Psimenos, we held that lawsuits by aliens alleging securities fraud should be entertained in American courts “only where conduct material to the completion of the fraud occurred in the United States.” 722 F.2d at 1046. In this case, we find that the negotiations with and sales to American Continental and AlTurki constituted conduct resulting in the consummation of the securities law fraud. We disagree with the district court’s finding that “nothing further had to be done to complete the fraud after plaintiffs paid for their SEIC shares in reliance upon the prospectus.” 751 F.Supp. at 1118. Plaintiffs, except Alfadda, purchased their shares in April 1984. The sales to Lincoln and Al-Turki were not finalized until June. Thus, the prospectuses did not become fraudulent until additional voting shares were sold to Lincoln and Al-Turki. At the very least, the negotiations and communications of Radwan, Fenn and Reilly with American Continental officers and Al-Turki constituted “conduct material to the completion of the fraud ... ”, Psimenos, 722 F.2d at 1046, and hence are a basis for subject matter jurisdiction. The fact that American Continental’s investment was structured so that its subsidiary, Lincoln American Investments, a Netherlands Antilles shell company created for the purpose of holding the SEIC shares, was the nominal purchaser does not detract from the import of the United States meetings and negotiations which preceded the sale. See Restatement (Second) of Foreign Relations Law of the United States § 416(d) (1987) (“The United States may generally exercise jurisdiction to prescribe with respect to conduct occurring predominantly in the United States that is related to a transaction in securities, even if the transaction takes place outside the United States.”). Defendants also argue that Al-Turki negotiated for and decided to purchase SEIC stock while in several non-United States locations prior to the June telexes Al-Turki received in Houston. However, in the district court, Al-Turki averred that “[a]s of June 22, 1984, I had not agreed to participate in the SEIC Stock Offering.” The district court did not resolve this factual dispute. Viewing the evidence in the light most favorable to the plaintiffs, as we must on appeal of the dismissal of a complaint for lack of subject matter jurisdiction, we find that negotiations for the sale of SEIC stock to Al-Turki transpired in Houston in late June. The district court also dismissed plaintiffs’ RICO claims for lack of subject matter jurisdiction. Like the Securities Exchange Act, the RICO statute is silent as to its extraterritorial application. Thus, we must ascertain whether Congress would have intended that federal courts should be concerned with specific international controversies. See Brilmayer, The Extraterritorial Application of American Law: A Methodological and Constitutional Appraisal, 50 Law & Contemp. Probs. 11, 14 nn. 18-21 (Summer 1987) (collecting cases). Relative to subject matter jurisdiction for international securities transactions, there is a dearth of Second Circuit precedent regarding the extraterritorial application of RICO. However, in United States v. Parness, 503 F.2d 430 (2d Cir.1974), cert. denied, 419 U.S. 1105, 95 S.Ct. 775, 42 L.Ed.2d 801 (1975), we rejected arguments circumscribing RICO’s extraterritorial application to foreign enterprises: On its face the proscription [against acquiring an “enterprise”] is all inclusive. It permits no inference that the [RICO] Act was intended to have a parochial application. The legislative history, moreover, indicates the intent of Congress that this provision be broadly con-strued_ In short, we find no indication that Congress intended to limit Title IX [RICO] to infiltration of domestic enterprises. On the contrary, the salutary purposes of the Act would be frustrated by such construction. Id. at 439. The mere fact that the corporate defendants are foreign entities does not immunize them from the reach of RICO. As the Supreme Court has stated, “the heart of any RICO complaint is the allegation of a pattern of racketeering activity.” Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143, 154, 107 S.Ct. 2759, 2766, 97 L.Ed.2d 121 (1987) (emphasis in original). Among the predicate acts alleged by plaintiffs are the securities fraud violations consummated by the sales of SEIC shares to Lincoln American Investments and Al-Turki. Reilly and defendants Radwan and Fenn, all American citizens, participated in many of the United States communications and negotiations preceding the sales. Nevertheless, the district court dismissed the RICO claims because it considered these predicate acts to “constitute the after-the-event working out of an already completed fraud....” 751 F.Supp. at 1121. As discussed supra, we disagree with the district court’s holding that the alleged fraud was complete upon delivery of the misrepresentations contained in the prospectuses and the subsequent purchases of SEIC stock by plaintiffs Abbar, Zainy and the Kanoos in April 1984. The sales to Lincoln American Investments and Al-Turki were predicate acts which occurred primarily in the United States, and hence, serve as a basis of subject matter jurisdiction for the RICO claims. Reversed and remanded for further proceedings. . The Amended Complaint sets forth causes of action for violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(a)-(d) (1988), violations of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1988), and Rule 10b-5 of the Securities and Exchange Commission, 17 C.F.R. § 240.10b-5 (1990) (plaintiff Alfadda does not join in this count), common law fraud, breach of fiduciary duty and recision of contract. . SEIC operated as a holding and/or controlling company of the other corporate defendants. . Although SEIC had authorized 40,000 shares of its stock, only 20,000 shares were distributed in the 1979 offering. . Although the defendants disputed the legal significance of the events transpiring in the United States during argument before us, they did not contest their occurrence. .Capital International was hired by SEIC to market its private offering. . Fenn averred that while the meeting concerned topics unrelated to the SEIC offering, he did not remember what those topics were. . Al-Turki, a foreign national and resident of Saudi Arabia, owned a Saudi enterprise with offices in Houston. . Both Al-Turki and Lincoln’s successor in interest, the Resolution Trust Corp., have filed separate lawsuits against these defendants in the Southern District making allegations similar to those in the present case. In the Resolution Trust lawsuit, Gadsby & Hannah, Ronald Reilly and Mario Diaz-Cruz III were named as defendants in addition to the defendants in this case. 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_direct2	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. C. M. KIRTLEY, Trustee of Automatic Washer Company, Debtor in Corporate Reorganization Proceedings, Appellee, v. Joseph ABRAMS and Richland Securities, Inc., Appellants, Sydney L. Albert, John W. Chamberlin and Louis G. Carmick, Defendants. No. 3, Docket 26089. United States Court of Appeals Second Circuit. Argued Nov. 27, 1961. Decided Jan. 17, 1962. On Petition for Modification Feb. 13, 1962. Samuel Gottlieb, Howard Henig, New York City (Murray L. Lewis, Harry Giesow and Seymour S. Howard, New York City, of counsel), for appellants. Lester Kissel, New York City (Meyer, Kissel, Matz & Seward), New York City (Sydney J. Schwartz and Clayton P. Wood, New York City, of counsel), for appellee. Before CLARK, FRIENDLY and KAUFMAN, Circuit Judges. FRIENDLY, Circuit Judge. Defendants, Richland Securities, Inc., a New York corporation, and Joseph Abrams, a citizen of New York and its dominant stockholder, appeal from a judgment of Chief Judge Bruchhausen in the District Court for the Eastern District of New York, after a trial without a jury. The action was brought against them, and others not served, by C. M. Kirtley, a citizen of Iowa, who had been appointed trustee of Automatic Washer Company in a proceeding for reorganization under Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq., in the Southern District of Iowa. Jurisdiction was rested on diversity of citizenship. The action stemmed from a writing which we quote in the margin, the subsequent issuance of 50,000 shares of Automatic to Richland thereunder, and the non-delivery to Automatic of the “presses, production equipment and rubber machinery,” hereafter “the rubber machinery,” mentioned therein. The amended complaint set forth six causes of action, several of them repetitious : a conspiracy by Richland, Abrams and other defendants to cause Automatic to issue the 50,000 shares without receipt of any money or property therefor; knowingly false representation by Richland and Abrams of an intention to furnish the rubber machinery; breach by Richland of its contract to deliver the rubber machinery; wrongful taking possession of the 50,000 shares by Richland and Abrams and conversion of the proceeds; obtaining of the 50,000 shares by Richland and Abrams through fraudulent misrepresentation of intention to deliver the rubber machinery; and Abrams’ causing Richland to enter into the contract and then to fail to perform it. In the first, second and fourth causes of action Kirtley sought to recover the fair value of the 50,000 shares as of the time of their issue, alleged to be $400,-000; in the third and sixth he claimed damages of $300,000 on the contract. The fifth cause of action asserted that the stock had a value when issued “of at least $400,000” and apparently was the basis for the prayer that a trust be impressed upon the proceeds of sale of the shares by Richland and Abrams. The court found that Kirtley had established all causes of action in the complaint, awarded judgment against Rich-land and Abrams for $425,000 with interest from March 1, 1956, and impressed a trust upon $154,000 the proceeds of the 50,000 shares, which Abrams was directed to pay into court. The defense was presented in such a confused and diffuse fashion, partially excused by a torrent of objections to rather patently proper questions, that we can readily comprehend the trial judge’s failure to perceive its true thrust. This was that everyone had known from the outset that Richland neither could nor would deliver rubber machinery, and that Automatic was to look for the machinery solely to Sydney L. Albert or one of his family of corporate enterprises. Early in 1955, Albert had acquired control of Bellanca Aircraft Corporation, then a small manufacturer of aircraft parts having the asset of a listing on the American Stock Exchange, by transferring the property of L. Albert & Son, a family firm engaged in the rebuilding and sale of used rubber mill machinery, in exchange for a large amount of Beilanea stock. He embarked Bellanca on a program of acquiring interests in other companies. Abrams was a “finder,” who brought Albert propositions from time to time. One such proposition resulted in an agreement for the purchase, in December, 1955, of 330,000 shares of Automatic Washer, at $2.55 per share, by Pierce Governor Company, Incorporated, in which Albert had a controlling interest. Bellanca owned 97% of the stock of N. O. Nelson Company, a heating and plumbing supply firm which it had acquired for some $4,850,000 in March, 1955 Perhaps as a sequel to the Pierce transaction, Abrams, along with one Shindler, who, according to Abrams, had been “standing by” with him to supply the needed funds to Automatic Washer if the Pierce transaction had not closed, found for Albert another proposition involving Automatic Washer, this time in connection with Bellanca’s Nelson stock. This proposition, which was ultimately embodied in an agreement between Bellanca and Automatic Washer, dated December 23, 1955, as was the contract in suit, “subject to the approval of the respective Boards of Directors of the parties hereto,” provided that Automatic would purchase the Nelson stock from Bellanca for 950,000 shares of Automatic stock and the surrender to Bellanca of a $1,525,000 note of Bellanca in favor of Albert which Automatic Washer was simultaneously acquiring from him. Defendants asserted that the initial understanding was that Bellanca should receive 1,000,000 shares of Automatic rather than 950,000 and that Abrams and Shindler claimed a finders’ commission of 10%, to wit, 100,000 shares, which, under usual practice, would be paid by Bellanca, the seller. Albert testified that “I objected strenuously to paying any commission at that percentage, as it was in my knowledge unheard of to pay more than five per cent”; that accordingly “the deal appeared to be stymied”; that, because the market price of Automatic had risen, “I felt that I could readily reduce the selling price from the one million shares to 950,000 shares giving my company, Bellanca Aircraft, the equivalent or more dollarwise and pay the maximum brokerage that I felt I could pay, namely fifty thousand shares on a 950,000 selling price”; and that “the balance of the fifty thousand shares would remain with Automatic Washer, which I could assume they could in turn pay as their commission to Richland or whoever the brokers may have been.” Although this, testimony was not disputed, it still left the question why the 50,000 shares thus, “remaining” with Automatic Washer to be paid as commission were not issued, as such. Defendants’ explanation was. that Abrams told Chamberlin, the president of Automatic, that, due to the rise in the price of Automatic stock, he “was very worried” about getting 50,000' shares which would be taxed as ordinary income, with only a $1,000 deduction if' the shares were thereafter sold at a loss, and that “Mr. Chamberlin suggested' that rubber machinery which was to be-supplied, which he stated was being supplied by Sydney Albert, could be the basis upon which I could receive the 50.000 shares of stock, and suggested that some written agreement be made so-that he could substantiate the issuance-of the 50,000 shares for machinery and equipment, provided I would not receive the 50,000 shares on a subsequent date-as commission.” Shindler, who received' 50.000 shares as commission from Bellanca, told the same story, adding that Chamberlin said “he had a need for machinery, lots of rubber machinery” whereas Albert “had tremendous quantities of rubbery machinery,” and that Albert “stated that he would be more than happy to give the Automatic Washer Company all the machinery that they needed regardless of the amount because he was in control of that company.” Whatever the veracity of this and other evidence we have not stopped to summarize, it created an issue that defendants should have been given latitude to develop — just as plaintiff was properly permitted to rebut defendants’ story by evidence that the rubber machinery was never delivered by anyone. It is altogether plain that as to the causes of action claiming fraudulent misrepresentation, on which the court based its award of damages, it was essential to determine whether Automatic, henceforth to be controlled by Albert in a degree defendants were never allowed to prove, ever expected Richland to make good on the representations and agreements contained in the writing of December 23, 1955. “The essential element of fraud that must exist in any case properly brought within that designation is a mistake of one party as to a material fact, wrongfully induced by the other in order that it might be acted upon * * 5 Williston, Contracts (rev. ed. 1937), p. 4153; see also 1 Harper and James, The Law of Torts (1956), p. 584. We know of no authority that embodiment of a misrepresentation in a purported contract relieves a plaintiff suing on a theory of fraud from these requirements, and we see no possible reason for any such extension of the “parol evidence rule.” Indeed, even as to the third and sixth causes of action, which were on the contract, that rule did not preclude defendants from attempting to show that there never was any agreement such as the writing purported to be. The basic distinction, in New York as in many other jurisdictions, is, as stated a century ago by Mr. Justice Erie in Pym v. Campbell, El. & Bl. 370, 374, 119 Eng.Rep. 903, 905 (1856), “that evidence to vary the terms of an agreement in writing is not admissible, but evidence to shew that there is not an agreement at all is admissible.” Grierson v. Mason, 60 N.Y. 394, 397 (1875); Thomas v. Scutt, 127 N.Y. 133, 137-138, 27 N.E. 961, 962 (1891); Smith v. Dotterweich, 200 N.Y. 299, 305, 93 N.E. 985, 987, 33 L.R.A.,N.S., 892 (1911); Saltzman v. Barson, 239 N.Y. 332, 146 N.E. 618 (1925); Bernstein v. Kritzer, 253 N.Y. 410, 171 N.E. 690 (1930); New York Trust Co. v. Island Oil & Transport Corp., 34 F.2d 655 (2 Cir. 1929); In re H. Hicks & Son, Inc., 82 F.2d 277 (2 Cir. 1936); Zell v. American Seating Co., 138 F.2d 641 (2 Cir. 1943), rev’d, 322 U.S. 709, 64 S.Ct. 1053, 88 L.Ed. 1552 (1944); Kind v. Clark, 161 F.2d 36, 46 (2 Cir.), cert. denied, 332 U.S. 808, 68 S.Ct. 107, 92 L.Ed. 385 (1947). The only respect in which the instant case differs from most of those cited is that Richland does not deny that any contract existed; it admits it was to get 50,000 shares but says the consideration for them was not its agreement to furnish rubbery machinery but the services rendered as “finder” and the promise not to assert any further claim for such services against either party to the Bellanca-Automatic deal. Still, it may be argued, Richland would thus be seeking “to vary the terms” of the agreement, which expressly stated that the stock was to be issued “in exchange for” the rubber machinery. This would be reading Mr. Justice Erie’s language too literally. The case is not like one where Richland would seek to show that it needed to supply only $250,000 worth of machinery instead of $300,000, or that it was entitled to some relief because the machinery had gone up in price or the stock down — here its claim is that the whole rubber machinery business was a sham, intended to deceive the tax authorities and perhaps to improve Automatic’s balance sheet, but not supposed by anyone to give rise to any obligation on its part. As said by Judge Learned Hand in the Hicks case, supra, 82 F.2d at 279, the parties’ “actual understanding may always be shown except in so far as expressly or implicitly they have agreed that the writing alone shall control. * * * [T]hey will not be bound if they agree that their words, however coercive in form, shall not bind them.” See the useful discussion in 3 Corbin, Contracts (1960 ed.), § 577, and § 572B, “Some Tentative Working Rules of Substantive Law,” items 8 and 9. Although the trial judge did receive a good deal of evidence in support of defendants’ theory, he improperly circumscribed their proof. It was important for the defendants to show fully their version of how the transaction developed, and particularly, in view of the judge’s proper skepticism as to the credibility of Abrams (who at the time of the trial was serving a prison sentence for a different transaction, United States v. Fabric Garment Co., Inc., 262 F.2d 631 (2 Cir. 1958), cert. denied, 359 U.S. 989, 79 S.Ct. 1117, 3 L.Ed.2d 978 (1959), had previously pleaded guilty to filing a false income tax return for 1952, and, on his own theory of the instant case, had filed and caused Richland to file false ones for 1956), to buttress the testimony of Abrams, Shindler and Albert with that of outside witnesses. One such was Kahn, a Trenton, N. J., attorney, who had been representing Albert and Bellanea. Defendants sought to examine him and to introduce in evidence correspondence between him and Albert, in February and March, 1956, so much of which was sent to Abrams or brought to his attention that none of it could be regarded as confidential and therefore privileged in the absence of appropriate proof as to some particular item; the examination of Kahn was seriously curtailed and the letters were excluded. These were admissible for a variety of purposes — as tending to show that the Bellanca-Automatic deal, in Kahn’s words, “is probably not an arms length transaction,” to substantiate defendants’ claim that the arrangements were considered fluid long after December 23, 1955, and to corroborate defendants’ contention that the 50,000 shares were to be issued “as a commission or a gratuity or whatever else we desire to label it” and that the rubber machinery was to be Albert’s, not Richland’s. Another such witness was Purcell. The “rubber machinery” agreement was prepared by him as attorney for Automatic, allegedly in the course of a conference concerning the Bellanca-Automatic transaction on December 23, 1955, attended by Albert, Abrams, Chamberlin, Shindler, and Hayutin, and its relationship to earlier drafts of the Bellanca-Automatic agreement and to later developments was of crucial importance. Yet his testimony that Chamberlin had told him in January, 1956, that the rubber machinery had been selected and ticketed, was stricken as irrelevant, and objections to questions as to conversation with Albert about rubber machinery at the conference on December 23 were sustained. Later Purcell was allowed to testify, subject to a motion to strike, as to conversations at the same conference wherein Chamberlin agreed he could use rubber machinery and Albert said “there would be no difficulty substantiating a price of —a value of three hundred thousand dollars” — apparently without any indication that anyone was to pay Albert for it. However, at the end of the case the judge struck this testimony as immaterial. Purcell was also prevented from testifying as to an earlier draft agreement providing a consideration of 1,000,000 shares for Bellanca’s Nelson stock. The ruling to strike at the end of the case also carried with it the testimony of Hayutin as to a January, 1956, telephone call by Albert in the presence of Chamberlin, Shindler, Abrams and Purcell, wherein Albert “set up some type of an appointment” with his Akron office “so that Mr. Chamberlin and some of his people would go down and select the machinery that was discussed by Mr. Albert and Mr. Chamberlin at that meeting.” The ruling that testimony of such probative value as Purcell’s and Hayutin’s was immaterial shows that the judgment was not based merely on disbelief in Abrams’ testimony but upon a view, which we hold erroneous, that the entire defense was without basis in law. Whether it had a basis in fact is quite another matter. We need not discuss other contentions of appellants, save to indicate that on the retrial much greater freedom should be allowed in the introduction of evidence of the true value of the 50,000 shares, if that issue should be reached. The judgment is reversed and a new trial ordered. The provision directing the payment of $154,000 into Court shall remain in effect pending the outcome of the new trial; this intimates no view on our part as to the proper result. On Petition for Modification Counsel for appellants has questioned our power to order that the provision of the judgment directing payment of $154,-000 into court shall remain in effect pending the outcome of a new trial, and also has called our attention to the fact that another panel, on November 9, 1961, had stayed a proceeding in the District Court to punish appellant Abrams for contempt for failure to make the said pay* ment on condition that a $50,000 appeal bond be posted. Appellee’s counsel contends that our order is soundly rested on F.R.Civ.Proc. 62(g), 28 U.S.C.A. and raises questions relating to amounts collected by appellee on execution against bank deposits and as to a lien perfected against a residence owned by Abrams and his wife. F.R.Civ.Proc. 62(g) is without bearing. However, it is established that, on reversing a plaintiff’s judgment for a new trial, an appellate court is not bound to order restitution of amounts collected, when the plaintiff may ultimately recover and such restitution may prevent his then obtaining satisfaction; in such cases moneys that have been collected may be ordered to be paid into court to await a new trial, 5B C.J.S. Appeal & Error § 1949, at p. 510; American Law Institute, Restatement of Restitution § 74, comments b, c; 3 Am.Jur. Appeal and Error § 1243; 2 Freeman, Judgments (1925) § 1171, at p. 2427; Marvin v. Brewster Iron Mining Co., 56 N.Y. 671 (1874); Britton v. Phillips, 24 How.Prac. Ill (N.Y.Sup.Ct. 1862); Young v. Brush, 28 N.Y. 667, 675 fn. 1 (1864). See Finkelstein, The Case of the Recalcitrant Debtor: A Study in Creditors’ Rights, 30 St. John’s L.Rev. 200 (1956), and Lader v. 128 West 48th St. Holding Corp., 125 N.Y.L.J. 898, col. 5 (Sup.Ct. March 13, 1951), quoted in 30 St. John’s L.Rev. at 208-209. Compare Goltra v. Weeks, 271 U.S. 536, 550, 46 S.Ct. 613, 70 L.Ed. 1074 (1926) and United States v. Morgan, 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211 (1939). In the light of the circumstances and the authorities, we believe the proper disposition to be as follows: (1) Appellee shall deposit with the Clerk of the District Court all amounts that he has collected under his judgment, to abide the event of a new trial; (2) The lien of the judgment previously rendered shall remain in effect, but no further executions shall be levied thereon; (3) The direction for the payment of $154,000 (reduced by the amounts already collected by the appellee) into court shall remain in effect, except that it shall be stayed if appellants post a bond or other security in the amount of $50,000 to secure the payment of any judgment that may be rendered on a new trial. Our previous order is modified to that extent. . “December 23, 1955 “Richland Securities Corporation “Great Neck, Long Island “New York “Gentlemen: “This letter will serve to outline the agreement had between Richland Securities Corporation (hereinafter referred to as Richland) and the undersigned Automatic Washer Company (hereinafter referred to as Automatic). “Automatic agrees to issue and deliver to Richland 50,000 shares of its $1.50 par value common stock in exchange for $300,000 worth of presses, production equipment and rubber machinery. You have represented that you have a quantity of such machinery and equipment stored at Akron, Ohio and you have agreed that we will be allowed to select the presses, production equipment and rubber machinery we deem useful for our purposes, it being understood that the value of the quipment so selected by us will be not less than $300,000. “If this correctly sets forth the understanding had between us, kindly sign the enclosed copy of this letter on the line marked ‘Accepted. “Very truly yours, “AUTOMATIC WASHER COMPANY “By: JOHN W. CHAMBERLIN President “ACCEPTED: “RICHLAND SECURITIES CORPORATION “By: JOSEPH ABRAMS “President” . An outline of some of Albert’s activities at the time can be found in Bellanca Corporation, 38 SEC 405 (1958). . Abrams testified that, prior to the Pierce contract, Automatic Washer had 292,594 shares outstanding, Tr. 716. It is not clear whether this reflects the issuance, also in December, 1955, of 228,000 shares for the assets of Washer-Dryer Corporation; Chamberlin, who became president of Automatic, received 180,572 of these shares, of which he turned 25,000 over to Purcell and another 25,000 to Hayutin, mentioned below. Neither is it clear whether Pierce acquired all the 330,000 shares; according to the Trustee’s report, they were initially issued to Richland, which sold 230,000 to Pierce. In December, 1955, options for Automatic Washer shares were issued to Chamberlin, Purcell and Hayutin. . We learn from the SEC’s report, 38 SEC at 408-409, that Abrams had guaranteed a loan made by Bellanca to finance this purchase, to the extent of $500,000, until the loan was redu&ed by $2,000,000, Albert indemnifying him against loss. . For this note, executed by Albert on behalf of Bellanca purportedly to reimburse himself for loans in connection with the acquisition of the Nelson stock, Automatic was to issue 305,000 shares to Albert. Kahn, Albert’s lawyer, pointed out, in a letter dated February 20, 1956, that the outstanding balance on the note was only $1,220,000; later it was said that the balance was only $915,000. However, no reduction was made in the consideration to Albert from Automatic. Before the closing of the Bellanca-Automatic transaction on April 6, 1956, the number of Automatic shares to be issued for the Nelson stock was reduced by 262,500, but Bellanca was to receive that same number of shares in exchange for 100,000 shares of its own. For reasons developed below, defendants should have been allowed fully to explore all these backings and fillings in support of their contention that the transactions were not at arm’s, length, but were shifted around to meet the convenience of Albert, Abrams, Chamberlin, et al. It is also to be noted that Automatic’s purchase of the Nelson shares, which Bellanca had bought for $4,850,000, was after the declaration of a $3,600,000 dividend by Nelson. On the valuation of' $8.50 per share which the judge found for the Automatic shares here in suit, the total value of the 1,255,000 Automatic-shares to be issued for the ex-dividend; Nelson shares would have been $10,667,--500. Litigation between the Trustee of Automatic Washer and Albert relating to the-305,000 shares was settled by Albert’s-, payment of $15,000; the Trustee entered' into a covenant not to sue Albert with, respect to the claim asserted on that action “or otherwise arising out of or in-connection with any purchase, sale or-transfer of Automatic Washer Company stock.” . A New York court would first have to consult the New York conflict of laws to determine what state’s contract law applies. The law governing application of the parol evidence rule is the same as that chosen to determine the validity of the contract. American Law Institute, Restatement of the Law Second, Conflict of Laws, Tentative Draft No. 6, § 346, comment d. Applying the principle of Auten v. Auten, 308 N.Y. 155, 124 N.E. 2d 99, 50 A.L.R.2d 246 (1954), New York would select itself as the state having the most significant contacts on that issue. Although Automatic is a Delaware corporation with its manufacturing plant in Iowa, it maintained an oflice in New York, where Chamberlin, its president, spent most of his time, and held special board meetings in New York, including the meeting that acted on the contract here in suit. Richland is a New York corporation and Abrams a citizen of New York. The negotiations leading up to the Bellanca-Automatic transaction took place in New York, and the writing dated December 23, 1955, was prepared by Francis J. Purcell, a New York lawyer, in a New York law oflice, where Abrams and representatives of Automatic and Bellanca were present, and was signed there. These contacts are more significant than those of Ohio, where the rubber machinery was, or of Iowa, where, arguably, it was to be sent. All this is especially so when the issue is whether Richland made any contract as to rubber machinery at all. If Federal jurisdiction were rested on § 23, sub. b, of the Bankruptcy Act, 11 IT.S.C.A. § 46, sub. b, the analysis would be the same, Harris v. Standard Accident and Insurance Co., 297 F.2d 627, 630 fn. 4 (2 Cir. 1961). . Although the authority of the learned opinion of Judge Frank, for Judges L. Hand, Swan and himself, is shaken on the particular facts by the Supreme Court reversal, in which four Justices thought that “proof of the contract alleged in respondent’s affidavits on the motion for summary judgment is precluded by the applicable state parol evidence rule,” Michigan’s, and only two Justices clearly approved this court’s contrary ruling, the other three apparently not reaching the question, the case is distinguishable from the instant one. Zell was attempting to enforce an alleged agreement for compensation additional to that provided in the writing; Richland says the true agreement was altogether different from the writing and that the latter was mere window-dressing. Cf. Grierson v. Mason, 60 N.Y. 394 (1875). . Abrams’ tax return showed a purchase of machinery for $10,000 and a sale to Richland for $127,500; Richland’s showeu a purchase of machinery for $127,500 and a sale for stock which produced $154,000. . In view of the letter of Purcell’s firm dated Feb. 10, 1956, giving its opinion that the 50,000 shares would be validly issued to Richland “in exchange for $300,000 worth of presses, production equipment and rubber machinery * Purcell was scarcely disposed to strengthen defendants’ contention tbat everyone knew Richland was not going to supply the machinery and that the “agreement” was in fact as unreal as it appears to be; the need for giving the defendants full latitude to examine Mm as a hostile witness was thus all the greater. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. 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 DINGMAN v. UNITED STATES. No. 11186. Circuit Court of Appeals, Ninth Circuit. June 4, 1946. Writ of Certiorari Denied Oct. 14, 1946. See 67 S.Ct. 86. Clarence E. Rust, of Oakland, Cal., for appellant. Frank J. Hennessy, U. S. Atty., of San Francisco, Cal., and Emmet J. Seawell and Harlan M. Thompson, Asst. U. S. Attys., both of Sacramento, Cal., for appellee. Before GARRECHT, MATHEWS and ORR, Circuit Judges. ORR, Circuit Judge. His Selective Service Board, having allowed appellant’s claim that he is a conscientious objector, gave him a draft status of IV-E. He was thereafter directed to report to a camp set up under the selective service regulations where he was to perform work of national importance under civilian direction. Appellant reported at the camp to which he was assigned and remained there until on or about the 22nd day of July, 1945. He then left said camp without permission and refused to return. In August, 1945, appellant was indicted for a violation of the provisions of the Selective Training Service Act of 1940, as amended, 50 U.S.C.A.Appendix, § 301 et seq., the charging part of said indictment reading as follows: “That Daniel Bermeli Dingman * * * in violation of the provisions of the selective training and service act of 1940, as amended, hereinafter called the Act, did knowingly, wilfully and feloniously absent himself without authority from Civilian Public Service Camp No. 14-8, the said defendant being then and there a male person residing in the United States and between the ages of 18 and 45 at the time fixed for his registration pursuant to said Act and under the duly to present himself for and submit to registration under the provisions of said Act, and thereafter to comply with the rules and regulations of said Act, and who, prior to the date herein-above set forth was classified by local Selective Service Board No. 120, City of Palmer, State of Massachusetts, in class IV-E, as defined by said Act and the regulations thereunder, and by the Director of Selective Service assigned to said camp for work of national importance under civilian direction, and by said local Selective Service Board ordered to report for work of national importance, said local Selective Service Board having, prior to said date hereinabove set forth, been duly created and existing in conformity with the provisions of said Act as a Selective Service Board having jurisdiction within the City of Palmer, State of Massachusetts (50 U.S.C.A.Appendix, § 311).” Appellant was tried before a jury and found guilty as charged in the indictment. Appellant demurred to the indictment and after conviction moved for an arrest of judgment. The demurrer was overruled and the motion denied. The contention presented to the court by the demurrer and motion was that the indictment failed to state facts sufficient to constitute a crime against the United States. Appellant urges, 1, that there is nothing in the Selective Training and Service Act of 1940, as amended, or in any other law, which creates or impliedly authorizes camps of any kind for conscientious objectors, and that therefore the creation of these camps is simply a gratuitous assumption of power by the Director of Selective Service; and that, 2, in any event, since appellant has served more than one year in the camp, he is free to leave since Congress never extended the term of service for conscientious objectors beyond one year. There is no merit in either contention. As to the first, it has been settled by repeated decisions both in this and other circuits that, since no constitutional exemption from armed service exists for conscientious objectors, Congress clearly has the power to exact unarmed service from them in public service camps under civilian direction. Further, the delegation of this power by Congress to the President and by him to the Director of Selective Service is a constitutional delegation of legislative power. As was said in the Roodenko case [147 F.2d 754], “The contention that the Act does not authorize the President to set up civilian public service camps for conscientious objectors is without merit.” Section 5(g) of the Act provides that conscientious objectors shall be assigned to work of national importance under civilian direction and section 10(a) (l) authorizes the President to make all necessary rules and regulations to carry out the Act. The cases previously cited uniformly hold that the system of national public service camps set up in the Selective Service Regulations under the Act is immune from attack on constitutional grounds. In support of the second contention it is argued that the Act provides for one year’s training and service and that subsequent acts extending this period to the duration of the war and six months thereafter, apply only to members of the Army, Navy, Marine Corps and Coast Guard. Selective Service Regulation 652.-14, in force prior to and at the time of appellant’s desertion from his camp, reads: “652.14. Period of Service. A registrant in Class IV-E who has been assigned to a camp shall be engaged in work oF national importance under civilian direction during the existence of any war in which the United States is engaged and during the six months immediately following the termination of any such war, unless sooner released by the Director of Selective Service.” This regulation is a proper exercise of properly delegated authority. The same contention made here was advanced in Wolfe v. United States, 6 Cir., 149 F.2d 391, 393. The Sixth Circuit Court of Appeals, in rejecting the contention and affirming the conviction, stated: “The Act does not limit the service of a "conscientious objector in works of national importance to twelve months * * Time of service for a conscientious objector is not limited to one year. It is for the duration of the war and six months thereafter unless sooner released by the Director of Selective Service. During the oral argument appellant contended that the indictment was also faulty in that, 1, it failed to allege that the Public Service ’Camp which appellant deserted was a duly organized camp, set up under the Selective Service Act, and, 2, that the indictment failed to state when appellant was assigned to the camp. No such allegations were necessary to properly charge the offense. If appellant considered the information of importance in order to permit him to properly defend he should have moved for a bill of particulars. The judgment is affirmed. 50 U.S.C.A. Appendix, § 301 et seq. Selective Draft Act Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A. 1918C, 361, Ann.Cas.1918B, 856; MacIntosh v. United States, 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302. Hopper v. United States, 9 Cir., 142 F.2d 181, 186; Lowrance v. United States, 9 Cir., 142 F.2d 192; Weightman v. United States, 1 Cir., 142 F.2d 188; Brooks v. United States, 2 Cir., 147 F.2d 134, certiorari denied 324 U.S. 878, 89 L.Ed. 1430, 65 S.Ct. 1027; Kramer v. United States, 6 Cir., 147 F.2d 756, certiorari denied 324 U.S. 878, 65 S.Ct. 1026, 89 L.Ed. 1429; Roodenko v. United States, 10 Cir., 147 F.2d 752, certiorari denied 324 U.S. 860, 65 S.Ct. 867, 89 L.Ed. 1418; Wolfe v. United States, 6 Cir., 149 F.2d 391. See Note 3. 50 U.S.C.A.Appendix, § 305(g). 50 U.S.C.A.Appendix, § 310(a) (1). See Note 3. The Service Extension Act of 1941, Public Law 213, 77th Congress, approved August 18, 1941, 50 U.S.C.A.Appendix, §§ 303, 351 et scq.; Public Law 338, 77th Congress, approved December 13, 1941, 50 U.S.C.A.Appendix, §§ 731-733; and Public Law 360, 77th Congress, approved December 20, 1941, 50 U.S.C.A.Appendix, § 302 et seq. See Note 3. See Hopper v. United States, 9 Cir., 142 F.2d 181, 185; United States v. Polakoff, 2 Cir., 112 F.2d 888, 890. 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_adminaction_is	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. UNITED STATES v. THOMPSON/CENTER ARMS CO. No. 91-164. Argued January 13, 1992 Decided June 8, 1992 Souter, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and O’Connor, J., joined. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined, post, p. 619. White, J., filed a dissenting opinion, in which Blackmun, Stevens, and Kennedy, JJ., joined, post, p. 623. Stevens, J., filed a dissenting opinion, post, p. 625. James A. Feldman argued the cause for the United States. On.fhe briefs were Solicitor General Starr, Assistant Attorney General Peterson, Deputy Solicitor General Wallace, Kent L. Jones, Gilbert S. Rothenberg, and Steven W. Parks. Stephen P. Halbrook argued the cause and filed a brief for respondent. Richard E. Gardiner filed a brief for Senator Larry E. Craig et al. as amici curiae urging affirmance. Justice Souter announced the judgment of the Court and delivered an opinion, in which The Chief Justice and Justice O’Connor join. Section 5821 of the National Firearms Act (NFA or Act), see 26 U. S. C. § 5849, levies a tax of $200 per unit upon anyone “making” a “firearm” as that term is defined in the Act. Neither pistols nor rifles with barrels 16 inches long or longer are firearms within the NFA definition, but rifles with barrels less than 16 inches long, known as short-barreled rifles, are. § 5846(a)(3). This case presents the question whether a gun manufacturer “makes” a short-barreled rifle when it packages as a unit a pistol together with a kit containing a shoulder stock and a 21-inch barrel, permitting the pistol’s conversion into an unregulated long-barreled rifle, or, if the pistol’s barrel is left on the gun, a short-barreled rifle that is regulated. We hold that the statutory language may not be construed to require payment of the tax under these facts. I The word “firearm” is used as a term of art in the NFA. It means, among other things, “a rifle having a barrel or barrels of less than 16 inches in length . . . .” § 5845(a)(3). “The term ‘rifle’ means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed cartridge.” § 5845(c). The consequence of being the maker of a firearm are serious. Section 5821(a) imposes a tax of $200 “for each firearm made,” which “shall be paid by the person making the firearm,” § 5821(b). Before one may make a firearm, one must obtain the approval of the Secretary of the Treasury, § 5822, and §5841 requires that the “manufacturer, importer, and maker . . . register each firearm he manufactures, imports, or makes” in a central registry maintained by the Secretary of the Treasury. A maker who fails to comply with the NFA’s provisions is subject to criminal penalties of up to 10 years’ imprisonment and a fine of up to $10,000, or both, which may be imposed without proof of willfulness or knowledge. §5871. Respondent Thompson/Center Arms Company manufactures a single-shot pistol called the “Contender,” designed so that its handle and barrel can be removed from its “receiver,” the metal frame housing the trigger, hammer, and firing mechanism. See 27 CFR § 179.11 (1991) (definition of frame or receiver). For a short time in 1985, Thompson/Center also manufactured a carbine-conversion kit consisting of a 21-inch barrel, a rifle stock, and a wooden fore-end. If one joins the receiver with the conversion kit’s rifle stock, the 21-inch barrel, and the rifle fore-end, the product is a carbine rifle with a 21-inch barrel. If, however, the shorter, pistol-length barrel is not removed from the receiver when the rifle stock is added, one is left with a 10-inch or “short-barreled” carbine rifle. The entire conversion, from pistol to long-barreled rifle takes only a few minutes; conversion to a short-barreled rifle takes even less time. In 1985, the Bureau of Alcohol, Tobacco and Firearms advised Thompson/Center that when its conversion kit was possessed or distributed together with the Contender pistol, the unit constituted a firearm subject to the NFA. Thdmpson/Center responded by paying the $200 tax for a single such firearm, and submitting an application for permission under 26 U. S. C. § 5822 “to make, use, and segregate as a single unit” a package consisting of a serially numbered pistol, together with an attachable shoulder stock and a 21-inch barrel. Thompson/Center then filed a refund claim. After more than six months had elapsed without action on it, the company brought this suit in the United States Claims Court under the Tucker Act, 28 U. S. C. § 1491, arguing that the unit registered was not a firearm within the meaning of the NFA because Thompson/Center had not assembled a short-barreled rifle from its components. The Claims Court entered summary judgment for the Government, concluding that the Contender pistol together with its conversion kit is a firearm within the meaning of the NFA. 19 Cl. Ct. 725 (1990). The Court of Appeals for the Federal Circuit reversed, holding that a short-barreled rifle “actually must be assembled” in order to be “made” within the meaning of the NFA. 924 F. 2d 1041, 1043 (1991). The Court of Appeals expressly declined to follow the decision of the Court of Appeals for the Seventh Circuit in United States v. Drasen, 845 F. 2d 731, cert. denied, 488 U. S. 909 (1988), which had held that an unassembled “complete parts kit” for a short-barreled rifle was in fact a short-barreled rifle for purposes of the NFA. We granted certiorari to resolve this conflict. 502 U. S. 807 (1991). II The NFA provides that “[t]he term ‘make’, and the various derivatives of such word, shall include manufacturing (other than by one qualified to engage in such business under this chapter), putting together, altering, any combination of these, or otherwise producing a firearm.” 26 U. S. C. § 5845(i). But the provision does not expressly address the question whether a short-barreled rifle can be “made” by the aggregation of finished parts that can readily be assembled into one. The Government contends that assembly is not necessary; Thompson/Center argues that it is. A The Government urges us to view the shipment of the pistol with the kit just as we would the shipment of a bicycle that requires some home assembly. “The fact that a short-barrel rifle, or any other ‘firearm,’ is possessed or sold in a partially unassembled state does not remove it from regulation under the Act.” ■ Brief for United States 6. The Government’s analogy of the partially assembled bicycle to the packaged pistol and conversion kit is not, of course, exact. While each example includes some unassembled parts, the crated bicycle parts can be assembled into nothing but a bicycle, whereas the contents of Thompson/Center’s package can constitute a pistol, a long-barreled rifle, or a short-barreled version. These distinctions, however, do define the issues raised by the Government’s argument, the first of which is whether the aggregation and segregation of separate parts that can be assembled only into a short-barreled rifle and are sufficient for that purpose amount to “making” that firearm, or whether the firearm is not “made” until the moment of final assembly. This is the issue on which the Federal and Seventh Circuits are divided. We think the language of the statute provides a clear answer on this point. The definition of “make” includes not only “putting together,” but also “manufacturing ... or otherwise producing a firearm.” If as Thompson/Center submits, a firearm were only made at the time of final assembly .(the moment the firearm was “put together”), the additional language would be redundant. Congress must, then, have understood “making” to cover more than final assembly, and some disassembled aggregation of parts must be included. Since the narrowest example of a combination of parts that might be included is a set of parts that could be used to make nothing but a short-barreled rifle, the aggregation of such a set of parts, at the very least, must fall within the definition of “making” such a rifle. This is consistent with the holdings of every Court of Appeals, except the court below, to consider a combination of parts that could only be assembled into an NFA-regulated firearm, either under the definition of rifle at issue here or under similar statutory language. See United States v. Drasen, supra; United States v. Endicott, 803 F. 2d 506, 508-509 (CA9 1986) (unassembled silencer is a silencer); United States v. Luce, 726 F. 2d 47, 48-49 (CA1 1984) (same); United States v. Lauchli, 371 F. 2d 303, 311-313 (CA7 1966) (unas-sembled machineguns are machineguns). We thus reject the broad language of the Court of Appeals for the Federal Circuit to the extent that it would mean that a disassembled complete short-barreled rifle kit must be assembled before it has been “made” into a short-barreled rifle. The fact that the statute would serve almost no purpose if this were the rule only confirms the reading we have given it. We also think that a firearm is “made” on facts one step removed from the paradigm of the aggregated parts that can be used for nothing except assembling a firearm. Two courts to our knowledge have dealt in some way with claims that when a gun other than a firearm was placed together with a further part or parts that would have had no use in association with the gun except to convert it into a firearm, a firearm was produced. See United States v. Kokin, 365 F. 2d 595, 596 (CA3) (carbine together with all parts necessary to convert it into a machinegun is a machinegun), cert. denied, 385 U. S. 987 (1966); see also United States v. Zeidman, 444 F. 2d 1051, 1053 (CA7 1971) (pistol and attachable shoulder stock found “in different drawers of the same dresser” constitute a short-barreled rifle). Here it is true,, of course, that some of the parts could be used without ever assembling a firearm, but the likelihood of that is belied by the utter uselessness of placing the converting parts with the others except for just such a conversion. Where the evidence in a given case supports a finding of such uselessness, the case falls within the fair intendment of “otherwise producing a firearm.” See 26 U. S. C. §5845(i). B Here, however, we are not dealing with an aggregation of parts that can serve no useful purpose except the assembly of a firearm, or with an aggregation having no ostensible utility except to convert a gun into such a weapon. There is, to be sure, one resemblance to the latter example in the sale of the Contender with the converter kit, for packaging the two has no apparent object except to convert the pistol into something else at some point. But the resemblance ends with the fact that the unregulated Contender pistol can be converted not only into a short-barreled rifle, which is a regulated firearm, but also into a long-barreled rifle, which is not. The packaging of pistol and kit has an obvious utility for those who want both a pistol and a regular rifle, and the question is whether the mere possibility of their use to assemble a regulated firearm is enough to place their combined packaging within the scope of “making” one. 1 Neither the statute’s language nor its structure provides any definitive guidance. Thompson/Center suggests guidance may be found in some subsections of the statute governing other types of weapons by language that expressly covers combinations of parts. The definition of “machine-gun,” for example, was amended by the Gun Control Act of 1968 to read that “[t]he term shall also include ... any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.” 26 U. S. C. § 5845(b). In 1986, the definition of “silencer” was amended by the Firearms Owners’ Protection Act to “includ[e] any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer . . . .” See 26 U. S. C. § 5845(a)(7); 18 U. S. C. § 921(a)(24). Thompson/Center stresses the contrast between these references to “any combination of parts” and the silence about parts in the definition of rifle in arguing that no aggregation of parts can suffice to make the regulated rifle. This argument is subject to a number of answers, however. First, it sweeps so broadly as to conflict with the statutory definition of “make,” applicable to all firearms, which implies that a firearm may be “made” even where not fully “put together.” If this were all, of course, the conflict might well be resolved in Thompson/Center’s favor. We do not, however, read the machinegun and silencer definitions as contrasting with the definition of rifle in such a way as to raise a conflict with the broad concept of “making.” The definition of “silencer” is now included in the NFA only by reference, see 26 U. S. C. § 5845(a)(7), whereas its text' appears only at 18 U. S. C. § 921(a)(24), in a statute that itself contains no definition of “make.” Prior to 1986 the definition of “firearm” in the NFA included “a muffler or a silencer for any firearm whether or not such firearm is included within this definition.” 26 U. S. C. § 5845(a)(7) (1982 ed.). Two Courts of Appeals held this language to include unassembled silencers that could be readily and easily assembled. See United States v. Endicott, 803 F. 2d, at 508-509; United States v. Luce, 726 F. 2d, at 48-49. In 1986, Congress replaced that language with “any silencer (as defined in section 921 of title 18, United States Code).” Pub. L. 99-308, § 109(b), 100 Stat. 460. The language defining silencer that was added to 18 U. S. C. § 921 at that same time reads: “The terms ‘firearm silencer’ and ‘firearm muffler’ mean any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication.” Pub. L. 99-308, §101, 100 Stat. 451. Thompson/Center argues that if, even before the amendment, a combination of parts was already “made” into a firearm, the “any combination of parts” language would be redundant. While such a conclusion of redundancy could suggest that Congress assumed that “make” in the NFA did not cover unassembled parts, the suggestion (and the implied conflict with our reading of “make”) is proven false by evidence that Congress actually understood redundancy to result from its new silencer definition. Congress apparently assumed that the statute reached complete-parts kits even without the “combination” language and understood the net effect of the new definition as expanding the coverage of the Act beyond complete-parts kits. “The definition of silencer is amended to include any part designed or redesigned and intended to be used as a silencer for a firearm. This will help to control the sale of incomplete silencer kits that now circumvent the prohibition on selling complete kits.” H. R. Rep. No. 99-495, p. 21 (1986). Because the addition of the “combination of parts” language to the definition of silencer does not, therefore, bear the implication Thompson/Center would put on it, that definition cannot give us much guidance in answering the question before us. We get no more help from analyzing the machinegun definition’s reference to parts. It speaks of “any combination” of them in the possession or control óf any one person. Here the definition sweeps broader than the aggregation of parts, clearly covered by “making” a rifle. The machinegun parts need not even be in any particular proximity to each other. There is thus no conflict between definitions, but neither is much light shed on the limits of “making” a short-barreled rifle. We can only say that the notion of an unassembled machinegun is probably broader than that of an unassembled rifle. But just where the line is to be drawn on short-barreled rifles is not demonstrated by textual considerations. 2 Thompson/Center also looks for the answer in the purpose and history of the NFA, arguing that the congressional purpose behind the NFA, of regulating weapons useful for criminal purposes, should caution against drawing the line in such a way as to apply the Act to the Contender pistol and carbine kit. See H. R. Rep. No. 1337, 83d Cong., 2d Sess., A395 (1954) (the adoption of the original definition of rifle was intended to preclude coverage of antique guns held by collectors, “in pursuance of the clearly indicated congressional intent to cover under the National Firearms Act only such modern and lethal weapons, except pistols and revolvers, as could be used readily and efficiently by criminals or gangsters”). It is of course clear from the face of the Act that the NFA’s object was to regulate certain weapons likely to be used for criminal purposes, just as the regulation of short-barreled rifles, for example, addresses a concealable weapon likely to be so used. But when Thompson/Center urges us to recognize that “the Contender pistol and carbine kit is not a criminal-type weapon,” Brief for Respondent 20, it does not really address the issue of where the line should be drawn in deciding what combinations of parts are “made” into short-barreled rifles. Its argument goes to the quite different issue whether the single-shot Contender should be treated as a firearm within the meaning of the Act even when assembled with a rifle stock. Since Thompson/Center’s observations on this extraneous issue shed no light on the limits of unassembled “making” under the Act, we will say no more about congressional purpose. Nor are we helped by the NFA’s legislative history, in which we find nothing to support a conclusion one way or the other about the narrow issue presented here. I — I I — I h — I After applying the ordinary rules of statutory construction, then, we are left with an ambiguous statute. The key to resolving the ambiguity lies in recognizing that although it is a tax statute that we construe npw in a civil setting, the NFA has criminal applications that carry no additional requirement of willfulness. Cf. Cheek v. United States, 498 U. S. 192, 200 (1991) (“Congress has ... softened the impact of the common-law presumption [that ignorance of the law is no defense to criminal prosecution] by making specific intent to violate the law an element of certain federal criminal tax offenses”); 26 U. S. C. §§7201, 7203 (criminalizing willful evasion of taxes and willful failure to file a return). Making a firearm without approval may be subject to criminal sanction, as is possession of an unregistered firearm and failure to pay the tax on one, 26 U. S. C. §§5861, 5871. It is proper, therefore, to apply the rule of lenity and resolve the ambiguity in Thompson/Center’s favor. See Crandon v. United States, 494 U. S. 152, 168 (1990) (applying lenity in interpreting a criminal statute invoked in a civil action); Commissioner v. Acker, 361 U. S. 87, 91 (1959). Accordingly, we conclude that the Contender pistol and carbine kit when packaged together by Thompson/Center have not been “made” into a short-barreled rifle for purposes of the NFA. The judgment of the Court of Appeals is therefore Affirmed. Unregulated, that is, under the NFA. The phrase “other than by one qualified to engage in such business under this chapter” apparently refers to those manufacturers who have sought and obtained qualification as a firearms manufacturer under 26 U. S. C. § 5801(a)(1), which requires payment of a $1,000 occupational tax. Rather than seek such qualification, Thompson/Center applied for permission to make a firearm as a nonqualified manufacturer under § 6822, which requires payment of the $200 per firearm “making tax” under § 5821(a). In Drasen, a complete-parts kit was sold with a flash suppressor, which, if affixed to the rifle barrel, would have extended it beyond the regulated length. See Drasen, 846 F. 2d, at 737. Because the Drasen court concluded that such a flash suppressor was not a part of the rifle’s barrel, see ibid., its holding is consistent with ours. We do not accept the Government’s suggestion, however, that complete-parts kits must be taxable because otherwise manufacturers will be able to “avoid the tax.” Brief for United States 11. Rather, we conclude that such kits are within the definition of the taxable item. Failure to pay the tax on such a kit thus would amount to evasion, not avoidance. In our system, avoidance of a tax by remaining outside the ambit of the law that imposes it is every person’s right. “Over and over again courts have said that there is nothing sinister in so arranging one’s affairs as to keep taxes as low as possible. Everybody does so, rich of poor; and all do right, for nobody owes any public duty to pay more than the law demands: taxes are enforced exactions, not voluntary contributions. To demand more in the name of morals is mere cant.” Commissioner v. Newman, 169 F. 2d 848, 860-851 (CA2) (L. Hand, J., dissenting), cert. denied, 331 U. S. 869 (1947). Contrary to Justice Scalia’s suggestion, see post, at 522, our understanding of these aggregations of parts, shared by a majority of the Court (those who join this opinion and the four Members of the Court in dissent, see post, p. 523 (White, J., joined by Blackmun, Stevens, and Kennedy, JJ., dissenting) (any aggregation of parts necessary to assemble a firearm is a firearm)), applies to all the provisions of the Act, whether they regulate the “making” of a firearm, e. g., 26 U. S. C. § 5821(a), or not, see, e. g., § 5842(b) (possession of a firearm that has no serial number); § 5844 (importation of a firearm); § 5811 (transfer of a firearm). Since, as we conclude, such a combination of parts, or of a complete gun and an additional part or parts, is “made” into a firearm, it follows, in the absence of some reason to the contrary, that all portions of the Act that apply to “firearms” apply to such a combination. Justice Scalia does not explain how we would be free to construe “firearm” in a different way for purposes of those provisions that do not contain the verb “to make.” Our normal canons of construction caution us to read the statute as a whole, and, unless there is a good reason, to adopt a consistent interpretation of a term used in more than one place within a statute. Thompson/Center suggests that further enquiry could be avoided when it contends that the Contender and carbine kit do not amount to a “rifle” of any kind because, until assembled into a rifle, they are not “ ‘made’ and ‘intended to be fired from the shoulder.’ ” Brief for Respondent 8. From what we have said thus far, however, it is apparent that, though disassembled, the parts included when the Contender and its carbine kit are packaged together have been “made” into a rifle. The inclusion of the rifle stock in the package brings the Contender and carbine kit within the “intended to be fired from the shoulder” language contained in the definition of rifle in the statute. See 26 U. S. C. § 5845(c). The only question is whether this combination of parts constitutes a short-barreled rifle. Surely Justice Scalia’s argument would take us over the line between lenity and credulity when he suggests that one who makes what would otherwise be a short-barreled rifle could escape liability by carving a warning into the shoulder stock. See post, at 523 (ScaliA, J., concurring in judgment). At the same time, the definition of “destructive device” was amended to include “any combination of parts either designed or intended for use in converting any device into a destructive device . . . and from which a destructive device may readily be assembled.” 26 U. S. C. § 5845(f). This appears to envision by its terms only combinations of parts for converting something into a destructive device. Justice Scalia upbraids us for reliance on legislative history, his “St. Jude of the hagiology of statutory construction.” Post, at 521. The shrine, however, is well peopled (though it has room for one more) and its congregation has included such noted elders as Justice Frankfurter: “A statute, like other living organisms, derives significance and sustenance from its environment, from which it cannot be severed without being mutilated. Especially is this true where the statute, like the one before us, is part of a legislative process having a history and a purpose. The meaning of such a statute cannot be gained by confining inquiry within its four corners. Only the historic process of which such legislation is an incomplete fragment — that to which it gave rise as well as that which gave rise to it — can yield its true meaning.” United States v. Monia, 317 U. S. 424, 432 (1943) (dissenting opinion). The Government has urged us to defer to an agency interpretation contained in two longstanding Revenue Rulings. Even if they were entitled to deference, neither of the rulings, Rev. Rul. 61-45, 1961-1 Cum. Bull. 663, and Rev. Rul. 61-203,1961-2 Cum. Bull. 224 (same), goes to the narrow question presented here, addressing rather the question whether pistols with short barrels and attachable shoulder stocks are short-barreled rifles. We do not read the Government to be relying upon Rev. Rul. 54-606, 1954-2 Cum. Bull. 33, which was repealed as obsolete in 1972, Rev. Rul. 72-178, 1972-1 Cum. Bull. 423, and which contained broader language that “possession or control of sufficient parts to assemble an operative firearm ... constitutes the possession of a firearm.” Reply Brief for United States 10. Justice Stevens contends that lenity should not be ápplied because this is a “ ‘tax statute,’ ” post, at 626, rather than a “criminal statute,” see post, at 625, n. 1, quoting Crandon v. United States, 494 U. S. 162, 168 (1990). But this tax statute has criminal applications, and we know of no other basis for determining when the essential nature of a statute is “criminal.” Surely, Justice Stevens cannot mean to suggest that in order for the rule of lenity to apply, the statute must be contained in the Criminal Code. See, e. g., United States v. Universal C. I. T. Credit Corp., 344 U. S. 218, 221-222 (1952) (construing the criminal provisions of the Fair Labor Standards Act, 29 U. S. C. §§215, 216(a)). Justice Stevens further suggests that lenity is inappropriate because we construe, the statute today ‘“in a civil setting,’” rather than a “criminal prosecution.” Post, at 526. The rule of lenity, however, is a rule of statutory construction whose purpose is to help give authoritative meaning to statutory language. It is not a rule of administration calling for courts to refrain in criminal cases from applying statutory language that would have been held to apply if challenged in civil litigation. Question: Did administrative action occur in the context of the case? A. No B. Yes 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. ONE PARCEL OF REAL ESTATE AT 1012 GERMANTOWN ROAD, PALM BEACH COUNTY, FLORIDA also known as “D’s” Grocery, Defendant-Appellant, Roberto Chang, Claimant-Appellant. No. 89-5590. United States Court of Appeals, Eleventh Circuit. June 26, 1992. James L. Eisenberg, West Palm Beach, Fla., Joel Kaplan, Miami, Fla., for defendant-appellant. Dexter Lehtinen, U.S. Atty., Lynn M. Summers, Linda Collins Hertz, Anne M. Hayes, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee. Before KRAVITCH, Circuit Judge, HILL and SMITH, Senior Circuit Judges. See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit. Honorable Edward S. Smith, Senior U.S. Circuit Judge for the Federal Circuit, sitting by designation. KRAVITCH, Circuit Judge: In a special verdict rendered in the United States District Court for the Southern District of Florida, a jury determined that the property of claimant Roberto Chang was subject to forfeiture pursuant to 21 U.S.C. § 881(a)(7). Chang appeals this verdict challenging a) the district court’s decision to allow the jury to overhear hearsay evidence and b) a special interrogatory equating consent with a property owner’s failure to take all reasonable efforts to prevent illicit use of his property. Because the district court committed reversible error when it allowed the jury to overhear inadmissible hearsay evidence, we remand for a new trial at which the judge should thoroughly instruct the jury on the legal definition of consent. I. THE FACTS The defendant real estate is a parcel of land situated at the intersection of 10th Street and Germantown Road, Delray Beach, Palm Beach County, Florida (1012 Germantown Road). Located on this real estate is a convenience store where such items as fresh coffee, soda, beer, bread and canned foods are sold. The store is referred to as “D’s Grocery,” and is owned, along with the accompanying real estate, by Roberto Chang (“claimant”), the proprietor of the store. Claimant purchased the property in 1979 or 1980 following a period during which he leased the store from the prior owner. In January, 1987, a task force was formed to address the drug trafficking problems plaguing the greater German-town Road area. The force consisted of agents from the Federal Bureau of Investigation and other federal agencies, as well as officers from the local police and sheriffs offices. The local law enforcement agencies had proposed the creation of such a task force after realizing that their increased commitment of resources had led to even less success in controlling the drug traffic. The initial focus of the task force was the source of supply of narcotics in the targeted areas, including the 10th Street/Germantown Road neighborhood. Because street arrests had proven ineffective, the strategy of the task force was to incapacitate the source of the drug supply. The local agencies, prior to the formation of the task force, had developed an intelligence base that indicated that an individual named Deniz Fernandez and an associate were the source of the narcotics in the area. The FBI agent assigned to head the task force used this information to identify specific locations in the 10th Street/German-town Road area associated with the sale of cocaine and other drugs. Two of these properties were identified as “The Hole” and D’s Grocery. The Hole was owned by Deniz Fernandez, Abraham Oliva, and Roberto Rodriguez, and D’s Grocery was owned by claimant. As a result of the task force investigation, Deniz Fernandez, Abraham Oliva, Roberto Rodriguez, and others were indicted. Civil forfeiture actions commenced on numerous properties in the 10th Street/Ger-mantown area, including D’s Grocery. The indictment was received into evidence. The government presented numerous witnesses who testified to buying and selling drugs at the 1012 Germantown location. Many of these witnesses discussed the relationship between The Hole and the parking lot of D’s Grocery. According to these witnesses, the sale would commence on the grounds of the grocery, but the supplies were stored at The Hole. Often the dealers would run from the parking lot to The Hole to obtain more drugs for sale. The government offered no witnesses who admitted selling or buying drugs inside of D’s Grocery or who ever saw drugs within the Grocery. Claimant Chang was aware of the drug activity occurring on and around his property. He testified, however, that he never saw drugs or drug transactions occurring within his store. Chang also introduced corroborating testimony from fourteen witnesses who were either residents of the area or otherwise familiar with the Ger-mantown location. Chang and several of his witnesses testified that he tried constantly to halt the drug traffic. On numerous occasions he or one of his employees would call the police. Often, he would personally leave the store to chase away the dealers. He placed large yellow signs in both front windows of the store which said “No Loitering.” He installed cameras and mirrors inside his store to detect illegal activity. He removed the telephones on the north side of his building because he suspected they were being used to facilitate drug sales. He paved over the dirt parking lot to prevent drug dealers from burying their drugs in the dirt. He erected tall fences, installed a burglar alarm and kept watchdogs. He asked several of his friends and some drug dealers to assist him in moving the drug traffic off his property. The government claims that Chang made insufficient efforts to prevent drug dealings on his property. They question the number of calls he made to police, arguing that claimant should have obtained phone logs to prove his calls. In addition, they claim that Chang only chased away the drug dealers when the police were able to observe him doing so. Finally, the government suggested, during closing arguments, that Chang should have released his dogs to drive away the loiterers. Through the task force investigation, the police compiled information linking Roberto Chang with the convicted drug supplier, Deniz Fernandez. A search of Fernandez’ home uncovered an album containing a photograph of Deniz Fernandez, Abraham Oliva and claimant Roberto Chang in an obviously social setting. In addition, Fernandez’ business (a plant nursery) had originally been located in a shed on claimant’s property that Fernandez had leased from Chang. In the past, Chang had lent money to Fernandez to start his nursery business, and Fernandez had paid him back completely. Chang acknowledged that Fernandez was his friend due to their connections in Cuba but denied that he knew of Fernandez’ involvement in drug dealing. II. COURSE OF PROCEEDINGS On June 1, 1988, the government filed a claim against D’s Grocery, alleging that the property was subject to forfeiture under 21 U.S.C. § 881(a)(7) as real property used to commit, or facilitate, the commission of a violation of Title 21. Claimant requested a jury trial. Following argument of counsel on the order of proof and the admissibility of hearsay evidence during the government’s initial probable cause case, the district court issued a ruling concerning the appropriate procedure to be utilized during the trial. The district court ruled that: (1) the issue of probable cause was a question for the court; (2) the government’s probable cause evidence would be heard in the “presence of the jury because, otherwise, the case [would not] make any sense at all to let the defendant go forward with proof, and disprove something not at issue”; (3) the government would present its probable cause evidence first, then the court would make a legal determination of probable cause;’ and (4) if probable cause was established, then claimant would have the burden of proving his defense, and the government would be permitted to offer rebuttal evidence. Trial commenced pursuant to this procedure. The government presented its evidence before the jury, and the district court ruled that the government had met its probable cause burden. Chang then presented his case, and the government had the opportunity to rebut. After completion of the closing arguments, the judge instructed the jury concerning the issues on which a verdict was necessary. The judge specifically modified Requested Jury Instruction No. 18 to eliminate the language requiring claimant to do “all he could do to prevent the illegal use of the defendant real estate” in order to prevent a section 881(a)(7) forfeiture. The jury was instructed to make its determination in the form of a special verdict, consisting of four interrogatories. The claimant made no objection to the jury instructions but objected to the last special interrogatory. The jury returned a verdict in favor of the United States. The special interrogatory verdict form stated the jury’s findings that claimant had not proven: (1) that the property had not been used to commit drug violations; (2) that claimant did not know of the illegal use of the property; (3) that claimant did not consent to the illegal use of the property; and (4) that claimant did not do everything that he could reasonably be expected to do to prevent the illegal use of the property. The district court subsequently entered a final judgment of forfeiture in accordance with the jury verdict. Claimant now appeals. III. THE CLAIMS Claimant raises four issues on appeal. First he argues that the district court erred when it chose to hear the government’s probable cause hearsay evidence in the presence of the jury. Second, he claims that the district court erred by submitting the fourth special interrogatory to the jury in which the jury was asked whether claimant had proven that he had taken all reasonable actions to prevent his property from being used in violation of the drug laws. The other two issues raised by claimant are without merit, and in any case, need not be addressed given our decision to remand for a new trial on the basis of Chang’s first claim. IV. STANDARD OF REVIEW The propriety of procedures involved in a 21 U.S.C. § 881 case where an innocent owner defense is presented is a question of law and is consequently reviewed de novo. United States v. One Single Family Residence, 894 F.2d 1511 (11th Cir.1990). The content of a special interrogatory is reviewed for abuse of discretion. Stewart & Stevenson Services, Inc. v. Pickard, 749 F.2d 635, 641 (11th Cir.1984). V. THE STATUTE 21 U.S.C. § 881 provides for forfeiture of property used to facilitate illicit acts. Section 881(a)(7) deals specifically with the forfeiture of real property. Such property shall be subject to forfeiture if it: is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this title punishable by more than one year’s imprisonment, except that no property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner. This circuit has noted that “[t]he language of section 881(a)(7) reflects two interrelated aims of Congress: to punish criminals while ensuring that innocent persons are not penalized for their unwitting association with wrongdoers.” United States v. 15621 S.W. 209th Avenue, 894 F.2d 1511, 1513 (11th Cir.1990) (finding no forfeiture of property owned in the entire-ties by an innocent spouse). The latter purpose, the protection of innocent owners, is guaranteed by the statutory language exempting owners who have no knowledge of or do not consent to the illegal activity affecting their property. This protection of innocent owners goes beyond the language of section 881. In evaluating forfeiture actions, courts must not only consider the statutory limitations, but the constitutional guarantees of core individual rights. See United States v. $38,000 in United States Currency, 816 F.2d 1538, 1548-49 (11th Cir.1987). This court has explicitly cautioned against the overzealous prosecution of drug related crimes at the expense of constitutional rights: We are not unsympathetic to the government’s strong desire to eradicate drug trafficking: we recognize that illegal drugs pose a tremendous threat to the integrity of our system of government. We must not forget, however, that at the core of this system lies the Constitution, with its guarantees of individuals’ rights. We cannot permit these rights to become fatalities of the government’s war on drugs. Id. at 1548-49. See also Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 689-690, 94 S.Ct. 2080, 2094-95, 40 L.Ed.2d 452 (1974). Accordingly, courts must cautiously balance the government’s strong desire to eradicate illicit drug trafficking against constitutional guarantees of individual rights. VI.PROCEDURE The structure of a section 881 forfeiture proceeding is well settled by statute and case law. First, a claimant must establish standing as an owner of the contested property. United States v. Certain Real Property, 724 F.Supp. 908, 913 (S.D.Fla.1989). In this case, claimant’s ownership is uncontested. Once a claimant has established standing, the burden shifts to the government to prove probable cause for the institution of the forfeiture action. 19 U.S.C. § 1615; United States v. One 1979 Porsche Coupe, 709 F.2d 1424, 1426 (11th Cir.1983). The trial court bears the responsibility for determining whether the government has proven probable cause. 19 U.S.C. § 1615. The government must convince the judge that it had a “reasonable ground for belief of guilt, supported by less than prima facie proof, but more than reasonable suspicion.” United States v. A Single Family Residence, 803 F.2d 625, 628 (11th Cir.1986). In presenting its case, the government is permitted to present otherwise inadmissible hearsay evidence. Id. at 629 n. 2. Once probable cause is established, the burden shifts to the claimant to prove by a preponderance of the evidence a defense to the forfeiture. United States v. 15603 8th Avenue North, Lake Park, 933 F.2d 976, 979 (11th Cir.1991). It is a “statutory requirement” that the claimant, and not the government, bear the burden of proving an innocent owner defense. 19 U.S.C. § 1615; United States v. Four Million Two Hundred Fifty-five Thousand Dollars, 162 F.2d 895, 906-07 (11th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 772 (1986). The question of whether a claimant has sufficiently established an innocent owner defense is a question of fact to be determined by the fact finder. United States v. 5000 Palmetto Drive, 928 F.2d 373 (11th Cir.1991); United States v. Hayes, 943 F.2d 1292 (11th Cir.1991). VII. BIFURCATION Because the government is permitted to use hearsay evidence to prove its probable cause case to the court, A Single Family Residence, 803 F.2d at 629, n. 2, an issue arises concerning the propriety of allowing the jury to overhear this evidence. Usually, this situation is easily resolved because forfeiture cases are typically tried as bench trials, making it relatively easy for the judge as factfinder to sort out the hearsay evidence from the admissible evidence before making a factual determination. In the instant case, a potential for prejudice arose because Chang exercised his right to a jury trial. In an attempt to avoid such prejudice, claimant Chang asked the district court to bifurcate the trial into a) a bench trial to determine probable cause and b) a subsequent jury trial on the issue of the innocent owner defense. The trial judge refused the request, reasoning that it would not “make any sense at all to let the defendant go forward with proof, and disprove something not at issue.” By allowing the government to present hearsay evidence before the jury, the court committed reversible error. A. Case Law Two other district courts and one other circuit court have dealt with similar requests to bifurcate a section 881 forfeiture trial in order to shield the jury from prejudicial hearsay. In each of these cases, the courts found that a trial must be bifurcated in order to avoid reversible error. In United States v. $150,000 In Currency, 686 F.Supp. 133 (E.D.Va.1988), the “claimants ask[ed] the court to conduct the probable cause hearing outside the presence of the jury to avoid infecting the jury with inadmissible hearsay relating to probable cause.” Id. at 134. The government in $150,000 In Currency contested claimant’s bifurcation request. Finding no case law and no principle in favor of allowing hearsay into the jury’s consideration of the government’s forfeiture claim, the court honored the claimant’s request: “there is no reason to distinguish a civil forfeiture proceeding from any other civil proceeding. Absent an exception under Rules 803 or 804, Fed.R.Evid., hearsay is not admissible for the truth of the matters asserted. Fed.R.Evid. 801(c), 802.” Id. at 134. Similarly, a different district court held that “[p]roperly admitted hearsay evidence on the issue of whether there was probable cause to find that the property was used to further trafficking of illegal narcotics is inadmissible in a forfeiture case on the issue of whether an owner falls within the innocent owner exception.” United States v. Property Identified as 908 T Street, N. W., 770 F.Supp. 697, 702-03 (D.D.C.1991). The Third Circuit has held that even in a bench trial, the improper use of hearsay evidence during the innocent owner portion of the trial is grounds for remand. “It is well settled law that evidence which is relevant and admissible as to one issue, here probable cause, can be inadmissible as to another.” United States v. 6109 Grubb Road, 886 F.2d 618, 622 (3rd Cir.1989). In Grubb, the district court relied on hearsay as well as other evidence to find that claimant had failed to sufficiently establish that he was an innocent owner. Because the use of hearsay depositions to rebut claimant’s innocent owner defense was an “improper use of hearsay evidence” that had been admitted for the purpose of establishing probable cause, the Third Circuit was compelled to remand. Id. at 623. B. Curative Instruction Not Sufficient The government contends that the judge’s curative instruction was sufficient to erase any prejudice created by the admission of hearsay evidence. The judge had instructed the jury, on claimant’s request that: Obviously, if he’s telling you what he personally observed and saw, of course you can consider that. But when he’s telling you about his sources, that’s only offered for the purpose of giving background, and you’re not to consider that as evidence against the defendant, because it’s hearsay. That is, he can’t say of his own personal knowledge what somebody told him. We’re receiving that totally for the — so you can put it in some context. (Emphasis added). This instruction fails to erase the prejudice for several reasons. First, a curative instruction is not tantamount to deletion of prejudice. “[Tjhere are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968). In this case, it would be unreasonable to expect a jury to not only ignore the hearsay evidence, but to remember which bits of information they acquired from hearsay evidence rather than from admissible evidence. The error from exposure to this much hearsay evidence cannot be fixed by curative instructions. See $150,000 In Currency, 686 F.Supp. at 134. Second, the hearsay evidence was not an accidental slip on the part of counsel or a witness. All parties and the judge knew well in advance that the testimony would contain a great deal of hearsay. Failure to reverse on this issue, will lend credibility to the argument that judges need not avoid prejudicing the jury — even when avoidance does not impose hardship on any party or the court — because an instruction can undo the harm. The district court in $150,000 In Currency recognized this rationale when it noted that: a curative instruction [would not] be sufficient to dispel any prejudice to claimants flowing from the admission of hearsay. To conclude otherwise would be to create a new rule that hearsay is admissible if accompanied by a curative instruction. No such rule exists. Accordingly, the issue of probable cause for forfeiture will be heard by the Court prior to the jury trial on the issue of whether claimants are innocent owners of the seized property. $150,000 In Currency, 686 F.Supp. at 134 (emphasis added). Third, the judge’s instruction was inadequate. He did not tell the jury that it could not use hearsay for the truth of the matter asserted. It merely told them to use the hearsay as background evidence. This instruction tells the jury to use the information, but to weigh it less heavily than other information. Such an instruction is insufficient to cure the prejudice incurred, especially when the prejudice could have been easily and appropriately avoided by bifurcation. Finally, the judge never itemized the hearsay for the jury. In effect he told them, after hearing numerous witnesses and affidavits, to remember what each witness said and then to remember whether the witness said he saw something or whether the witness was recounting what he had heard from other sources. From reading the record it is obvious that this is an impossible task for any jury. There were many witnesses talking about numerous other individuals. It is unreasonable to expect the jury, without guidance, to remember which of its impressions were created by direct evidence and which were created by hearsay. Clearly, the best way to have prevented prejudice was bifurcation and the judge’s instructions did not mitigate the damage caused by the court’s failure to bifurcate the trial. C. Remedy Admission of hearsay evidence can constitute reversible error. In Bruton, a new trial was necessary because inadmissible hearsay was presented to the jury, and the curative instruction was not sufficient to outweigh prejudice. 391 U.S. at 126, 88 S.Ct. at 1622. Similarly, this circuit has reversed district courts for improperly admitting certain hearsay statements. Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1562 (11th Cir.1991). The hearsay evidence presented in this case was sufficiently prejudicial to merit remand. This circuit’s predecessor has held that admission of hearsay requires a new trial if the jury may have relied upon it in reaching its verdict, Elizarraras v. Bank of El Paso, 631 F.2d 366, 375 (5th Cir.1980). In this case, the hearsay evidence admitted to show probable cause contained references to Chang’s supposed financial backing of Fernandez, a known and convicted drug lord. It also contained references to a large number of reports detailing incidents of drug dealing near the 1012 address. The jury may well have relied on this improperly admitted evidence in returning a verdict in favor of the government. In addition, remand is warranted if a jury is invited to consider the truth of the hearsay. Gulbranson v. Duluth, Missabe and Iron Range Railway Company, 921 F.2d 139 (8th Cir.1990). As mentioned previously, the Chang jury was specifically invited to consider the hearsay evidence, albeit as mere “background” and “contextual” evidence. In sum, the district court erred in refusing to bifurcate the trial. Given this failure to bifurcate, the inadequacy of the cautionary instruction, and the extent and importance of the hearsay statements, we are compelled to remand for a new trial in which the jury will not overhear the government’s probable cause hearsay evidence. VIII. INNOCENT OWNER DEFENSE In Chang’s second claim, he challenges the implied definition of consent contained in the fourth special interrogatory presented to the jury. Because this court has not specifically defined consent for the purposes of establishing an innocent owner defense under section 881(a)(7), we now resolve this issue so that it can be properly addressed on remand. Section 881(a)(7) explicitly permits a defense to forfeiture for those owners who can prove that they had no knowledge of illegal activity occurring on their property or who did not consent to that activity. Therefore, an owner can avoid forfeiture by proving either ignorance or non-consent. At trial, Chang admitted that he was aware of the drug activity occurring on and around his property, but asserted an innocent owner defense based on his lack of consent to this activity. After closing arguments, the jury was presented with the following four special interrogatories concerning the innocent owner defense: I. Did the claimant, Roberto Chang, prove by a preponderance of the evidence that the subject property was not used to commit or to facilitate the commission of violation of the drug laws? II. Did the claimant, Roberto Chang, prove by a preponderance of the evidence that he had no knowledge that the subject property was being used to commit, or to facilitate the commission of violation of the drug laws? III. Did the claimant, Roberto Chang, prove by a preponderance of the evidence that he did not consent to the subject property being used to commit, or to facilitate the commission of violation of the drug laws? IV. Did the claimant, Roberto Chang, prove by a preponderance of the evidence that he did everything that he could reasonably be expected to do to prevent the subject property from being used to commit, or to facilitate the commission of violation of the drug laws? (Emphasis added). The jury answered “no” to all four questions. Consequently, the court ruled that claimant had failed to avoid forfeiture as an innocent owner. Chang argues that the district court erred by presenting the fourth interrogatory to the jury because this interrogatory implies that a claimant can only avoid a section 881 forfeiture by proving that he made “all reasonable efforts” to prevent the illicit use of his property. Chang challenges the application of this standard, claiming that he is not required to make an “all reasonable efforts” showing in order to avoid an 881 forfeiture as an innocent owner. We disagree with Chang’s interpretation of the standard. However, we agree with Chang that the district court failed to adequately instruct the jury as to the definition of consent. A. Calero-Toledo Standard The “all reasonable efforts” language is derived from Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 686, 689-90, 94 S.Ct. 2080, 2094-95, 40 L.Ed.2d 452 (1974), in which property had been seized pursuant to a Puerto Rican forfeiture statute. In that case, the Supreme Court noted, in dictum, that it might be “difficult” to reject the constitutional claim of an owner whose property has been subject to forfeiture, when that owner has proven not only that he was uninvolved in and unaware of wrongful activity, but who has proven that he has done all that reasonably could be expected to prevent the proscribed use of his property. Id. Although the Calero-Toledo dicta is not binding, it nevertheless indicates a definition of consent which this court may choose to apply to the 881(a)(7) innocent owner defense. Recently, this court chose to adopt the Calero-Toledo standard for purposes of defining the innocent owner exception contained in section 881(a)(6): “a claimant who has actual knowledge of the commingling of legitimate and drug funds may be spared forfeiture as an innocent owner if the claimant can prove that everything reasonably possible was done” to disentangle the property from the illegal activity. United States v. 15603 85th Avenue North, 933 F.2d 976, 982 (11th Cir.1991) (emphasis added). See also 141st Street Corporation, 911 F.2d 870, 879 (2nd Cir.1990) (Given the extent of the current drug problem, “defining ‘consent’ in section 881(a)(7) as the failure to take all reasonable steps to prevent illicit use of premises once one acquires knowledge of that use is entirely appropriate.”). 15603 85th Avenue North dealt exclusively with a section 881(a)(6) forfeiture and did not directly address the issue of the appropriate standard to apply in a section 881(a)(7) situation. However, section 881(a)(6) parallels section 881(a)(7), providing for forfeiture of “moneys” and other valuable properties and containing an identically worded innocent ownership exception. Indeed, when the innocent owner defense of 881(a)(7) is discussed in the legislative history, the 881(a)(6) defense is mentioned by way of comparison. It is, therefore, appropriate to apply the section 881(a)(6) definition of consent to a section 881(a)(7) proceeding. Thus, the district court did not err by presenting the jury with a special interrogatory asking the jury whether Chang had done “everything that he could reasonably be expected to do to prevent the subject property from being used to commit, or to facilitate the commission of violation of the drug laws.” That question accurately reflects the law of this circuit: proof of non-consent for the purposes of 881(a)(7) requires a claimant to show that he took all reasonable steps to prevent the illegal use of his property. B. Jury Instructions Re: Consent At the time of Chang’s trial, the Eleventh Circuit had not yet adopted the Calero-Toledo standard as it pertains to the innocent owner exceptions of 881(a)(6) and 881(a)(7). Therefore, when claimant questioned the legal propriety of the fourth interrogatory, the district judge himself was unsure what standard applied to 881(a)(7). Presumably because of this ambivalence over the appropriate standard, the trial judge failed to instruct the jury on the definition of consent. He did not allude to a “reasonable efforts” standard anywhere in his jury instructions. In fact, the judge modified a requested jury instruction to eliminate the language requiring claimant to do “all he could do to prevent the illegal use of the defendant real estate.” In the end, the judge merely stated that the burden is on the claimant to prove that the “real property was used to facilitate the illegal trafficking of narcotics without the knowledge or consent of Roberto Chang.” He then defined “facilitate” and ‘.‘knowledge” but did not further discuss “consent.” The only time “reasonable efforts” was mentioned was in the fourth interrogatory. The ultimate determination of consent and the “reasonableness” of a claimant’s actions are questions of fact to be answered by the factfinder, in this case, the jury. United States v. 418 57th Street, 922 F.2d 129, 132 (2nd Cir.1990). However, the trial judge bears the exclusive burden of properly instructing the jury as to any relevant legal principles necessary to the proper determination of the case. Jones v. Miles, 656 F.2d 103, 107 n. 6 (5th Cir. Unit B, 1981). In the instant case, the trial judge failed to fulfill this duty, leaving the jury inadequately instructed concerning the definition of consent and the “all reasonable efforts” requirement. The district court should have defined consent for the jury as a failure to take all reasonable steps to prevent the illicit use of one’s property. Further, that court should have made clear that the Calero standard does not require that the claimant make all efforts, he need merely make all reasonable efforts. Although an innocent, knowledgeable owner must affirmatively demonstrate his lack of consent, “reasonableness limits the burden.” United States v. Forfeiture, Stop Six Center, 781 F.Supp. 1200, 1209 n. 6 (N.D.Texas 1991). Indeed, an owner cannot “reasonably” be expected to succeed at preventing illegal use of his property when the police have been incapable of doing the same. Courts “do not expect the common land owner to eradicate a problem which our able law enforcement organizations cannot control.” Id. See also United States v. 171-02 Liberty Avenue, 710 F.Supp. 46, 51 (E.D.N.Y.1989); U.S. v. Sixty Acres in Etowah County, 930 F.2d 857, 861, n. 2 (11th Cir.1991). The reasonable efforts criteria can be satisfied by contacting and cooperating with law enforcement authorities, especially when a claimant is unable to halt the drug traffic on his own. “Although we do not require claimants to work alongside these agents in their effort to combat drug dealers, we insist that claimants under no immediate threat of reprisal either communicate their knowledge to police, or attempt to remove themselves from Question: What is the total number of appellants in the case? Answer with a number. 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. PELL et al. v. PROCUNIER, CORRECTIONS DIRECTOR, et al. No. 73-918. Argued April 16-17, 1974 Decided June 24, 1974 StewaRT, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and RehNQuist, JJ., joined and in Part I of which Powell, J., joined. Powell, J., filed an opinion concurring in part and dissenting in part, post, p. 835. Douglas, J., filed a dissenting opinion, in which BreNNAN and Marshall, JJ., joined, post, p. 836. Herman Schwartz argued the cause for appellants in No. 73-918. With him on the briefs were Alvin J. Bron-stein and Melvin L. Wulf. John T. Murphy, Deputy Attorney General of California, argued the cause for appellees in No. 73-918 and for appellants in No. 73-754. With him on the briefs were Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O’Brien, Assistant Attorney General, and Jean M. Bordon, Deputy Attorney General. Stanley A. Bass argued the cause for appellees in No. 73-754. With him on the brief were Jack Greenberg and Charles Stephen Ralston. Together with No. 73-754, Procunier, Corrections Director v. Hillery et al., also on appeal from the same court. Briefs of amici curiae in No. 73-918 were filed by Joseph A. Cali-jano, Jr., Charles H. Wilson, Jr., Richard M. Cooper, Daniel P. S. Paul, James W. Rodgers, and Robert C. Lobdell for the Washington Post Co. et al., and by Glen E. Clover and Robert J. King for the Houston Chronicle Publishing Co. Don H. Reuben and Lawrence Gunnels filed a brief for the Chicago Tribune Co. as amicus curiae in both cases. Mr. Justice Stewart delivered the opinion of the Court. These cases are here on cross-appeals from the judgment of a three-judge District Court in the Northern District of California. The plaintiffs in the District Court were four California prison inmates — Booker T. Hillery, Jr., John Larry Spain, Bobby Bly, and Michael Shane Guile — and three professional journalists — Eve Pell, Betty Segal, and Paul Jacobs. The defendants were Raymond K. Procunier, Director of the California Department of Corrections, and several subordinate officers in that department. The plaintiffs brought the suit to challenge the constitutionality, under the First and Fourteenth Amendments, of § 415.071 of the California Department of Corrections Manual, which provides that “[p]ress and other media interviews with specific individual inmates will not be permitted.” They sought both injunctive and declaratory relief under 42 U. S. C. § 1983. Section 415.071 was promulgated by defendant Procunier under authority vested in him by § 5058 of the California Penal Code and is applied uniformly throughout the State’s penal system to prohibit face-to-face interviews between press representatives and individual inmates whom they specifically name and request to interview. In accordance with 28 U. S. C. §§ 2281 and 2284, a three-judge court was convened to hear the case. The facts are undisputed. Pell, Segal, and Jacobs each requested permission from the appropriate corrections officials to interview inmates Spain, Bly, and Guile, respectively. In addition, the editors of a certain periodical requested permission to visit inmate Hillery to discuss the possibility of their publishing certain of his writings and to interview him concerning conditions at the prison. Pursuant to § 415.071, these requests were all denied. The plaintiffs thereupon sued to enjoin the continued enforcement of this regulation. The inmate plaintiffs contended that § 415.071 violates their rights of free speech under the First and Fourteenth Amendments. Similarly, the media plaintiffs asserted that the limitation that this regulation places on their newsgathering activity unconstitutionally infringes the freedom of the press guaranteed by the First and Fourteenth Amendments. The District Court granted the inmate plaintiffs’ motion for summary judgment, holding that § 415.071, insofar as it prohibited inmates from having face-to-face communication with journalists, unconstitutionally infringed their First and Fourteenth Amendment freedoms. With respect to the claims of the media plaintiffs, the court granted the defendants’ motion to dismiss. The court noted that “[e]ven under § 415.071 as it stood before today’s ruling [that inmates’ constitutional rights were violated by § 415.071] the press was given the freedom to enter the California institutions and interview at random,” and concluded “that the even broader access afforded prisoners by today’s ruling sufficiently protects whatever rights the press may have with respect to interviews with inmates.” 364 F. Supp. 196, 200. In No. 73-754, Corrections Director Procunier and the other defendants appeal from the judgment of the District Court that § 415.071 infringes the inmate plaintiffs’ First and Fourteenth Amendment rights. In No. 73-918, the media plaintiffs appeal the court’s rejection of their claims. We noted probable jurisdiction of both appeals and consolidated the cases for oral argument. 414 U. ¡3. 1127, 1155. I In No. 73-754, the inmate plaintiffs claim that § 415.071, by prohibiting their participation in face-to-face communication with newsmen and other members of the general public, violates their right of free speech under the First and Fourteenth Amendments. Although the constitutional right of free speech has never been thought to embrace a right to require a journalist or any other citizen to listen to a person's views, let alone a right to require a publisher to publish those views in his newspaper, see Avins v. Rutgers, State University of New Jersey, 385 F. 2d 151 (CA3 1967); Chicago Joint Board, Clothing Workers v. Chicago Tribune Co., 435 F. 2d 470 (CA7 1970); Associates & Aldrich Co. v. Times Mirror Co., 440 F. 2d 133 (CA9 1971), we proceed upon the hypothesis that under some circumstances the right of free- speech includes a right to communicate a person’s views to any willing listener, including a willing representative of the press for the purpose of publication by a willing publisher. We start with the familiar proposition that “[1] awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U. S. 266, 285 (1948). See also Cruz v. Beto, 405 U. S. 319, 321 (1972). In the First Amendment context a corollary of this principle is that a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Thus, challenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law. An important function of the corrections system is the deterrence of crime. The premise is that by confining criminal offenders in a facility where they are isolated from the rest of society, a condition that most people presumably find undesirable, they and others will be deterred from committing additional criminal offenses. This isolation, of course, also serves a protective function by-quarantining criminal offenders for a given period of time while, it is hoped, the rehabilitative processes of the corrections system work to correct the offender’s demonstrated criminal proclivity. Thus, since most offenders will eventually return to society, another paramount objective of the corrections system is the rehabilitation of those committed to its custody. Finally, central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves. It is in the light of these legitimate penal objectives that a court must assess challenges to prison regulations based on asserted constitutional rights of prisoners. The regulation challenged here clearly restricts one manner of communication between prison inmates and members of the general public beyond the prison walls. But this is merely to state the problem, not to resolve it. For the same could be said of a refusal by corrections authorities to permit an inmate temporarily to leave the prison in order to communicate with persons outside. Yet no one could sensibly contend that the Constitution requires the authorities to give even individualized consideration to such requests. Cf. Zemel v. Rusk, 381 U. S. 1, 16-17 (1965). In order properly to evaluate the constitutionality of § 415.071, we think that the regulation cannot be considered in isolation but must be viewed in the light of the alternative means of communication permitted under the regulations with persons outside the prison. We recognize that there “may be particular qualities inherent in sustained, face-to-face debate, discussion and questioning,” and “that [the] existence of other alternatives [does not] extinguis[h] altogether any constitutional interest on the part of the appellees in this particular form of access.” Kleindienst v. Mandel, 408 U. S. 753, 765 (1972). But we regard the available “alternative means of [communication as] a relevant factor” in a case such as this where “we [are] called upon to balance First Amendment rights against [legitimate] governmental . . . interests.” Ibid. One such alternative available to California prison inmates is communication by mail. Although prison regulations, until recently, called for the censorship of s+atements, inter alia, that “unduly complain” or “magnify grievances,” that express “inflammatory political, racial, religious or other views,” or that were deemed “defamatory” or “otherwise inappropriate,” we recently held that “the Department’s regulations authorized censorship of prisoner mail far broader than any legitimate interest of penal administration demands,” and accordingly affirmed a district court judgment invalidating the regulations. Procunier v. Martinez, 416 U. S. 396, 416 (1974). In addition, we held that “[t]he interest of prisoners and their correspondents in uncensored communication by letter, grounded as it is in the First Amendment, is plainly a 'liberty’ interest within the meaning of the Fourteenth Amendment even though qualified of necessity by the circumstance of imprisonment.” Accordingly, we concluded that any “decision to censor or withhold delivery of a particular letter must be accompanied by minimal procedural safeguards.” Id., at 418, 417. Thus, it is clear that the medium of written correspondence affords inmates an open and substantially unimpeded channel for communication with persons outside the prison, including representatives of the news media. Moreover, the visitation policy of the California Corrections Department does not seal the inmate off from personal contact with those outside the prison. Inmates are permitted to receive limited visits from members of their families, the clergy, their attorneys, and friends of prior acquaintance. The selection of these categories of visitors is based on the Director’s professional judgment that such visits will aid in the rehabilitation of the inmate while not compromising the other legitimate objectives of the corrections system. This is not a case in which the selection is based on the anticipated content of the communication between the inmate and the prospective visitor. If a member of the press fell within any of these categories, there is no suggestion that he would not be permitted to visit with the inmate. More importantly, however, inmates have an unrestricted opportunity to communicate with the press or any other member of the public through their families, friends, clergy, or attorneys who are permitted to visit them at the prison. Thus, this provides another alternative avenue of communication between prison inmates and persons outside the prison. We would find the availability of such alternatives unimpressive if they were submitted as justification for governmental restriction of personal communication among members of the general public. We have recognized, however, that “[t]he relationship of state prisoners and the state officers who supervise their confinement is far more intimate than that of a State and a private citizen,” and that the “internal problems of state prisons involve issues . . . peculiarly within state authority and expertise.” Preiser v. Rodriguez, 411 U. S. 475, 492 (1973). In Procunier v. Martinez, supra, we could find no legitimate governmental interest to justify the substantial restrictions that had there been imposed on written communication by inmates. When, however, the question involves the entry of people into the prisons for fáce-to-face communication with inmates, it is obvious that institutional considerations, such as security and related administrative problems, as well as the accepted and legitimate policy objectives of the corrections system itself, require that some limitation be placed on such visitations. So long as reasonable and effective means of communication remain open and no discrimination in terms of content is involved, we believe that, in drawing such lines, “prison officials must be accorded latitude.” Cruz v. Beto, 405 U. S., at 321. In a number of contexts, we have held “that reasonable 'time, place and manner’ regulations [of communicative activity] may be necessary to further significant governmental interests, and are permitted.” Grayned v. City of Rockford, 408 U. S. 104, 115 (1972); Cox v. New Hampshire, 312 U. S. 569, 575-576 (1941); Poulos v. New Hampshire, 345 U. S. 395, 398 (1953); Cox v. Louisiana, 379 U. S. 536, 554-555 (1965); Adderley v. Florida, 385 U. S. 39, 46-48 (1966). “The nature of a place, the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.” Grayned, supra, at 116 (internal quotation marks omitted). The “normal activity” to which a prison is committed — the involuntary confinement and isolation of large numbers of people, some of whom have demonstrated a capacity for violence — necessarily requires that considerable attention be devoted to the maintenance of security. Although they would not permit prison officials to prohibit all expression or communication by prison inmates, security considerations are sufficiently paramount in the administration of the prison to justify the imposition of some restrictions on the entry of outsiders into the prison for face-to-face contact with inmates. In this case the restriction takes the form of limiting visitations to individuals who have either a personal or professional relationship to the inmate — family, friends of prior acquaintance, legal counsel, and clergy. In the judgment of the state corrections officials, this visitation policy will permit inmates to have personal contact with those persons who will aid in their rehabilitation, while keeping visitations at a manageable level that will not compromise institutional security. Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters. Courts cannot, of course, abdicate their constitutional responsibility to delineate and protect fundamental liberties. But when the issue involves a regulation limiting one of several means of communication by an inmate, the institutional objectives furthered by that regulation and the measure of judicial deference owed to corrections officials in their attempt to serve those interests are relevant in gauging the validity of the regulation. Accordingly, in light of the alternative channels of communication that are open to prison inmates, we cannot say on the record in this case that this restriction on one manner in which prisoners can communicate with persons outside of prison is unconstitutional. So long as this restriction operates in a neutral fashion, without regard to the content of the expression, it falls within the “appropriate rules and regulations” to which “prisoners necessarily are subject,” Cruz v. Beto, supra, at 321, and does not abridge any First Amendment freedoms retained by prison inmates. II In No. 73-918, the media plaintiffs ask us to hold that the limitation on press interviews imposed by § 415.071 violates the freedom of the press guaranteed by the First and Fourteenth Amendments. They contend that, irrespective of what First Amendment liberties may or may not be retained by prison inmates, members of the press have a constitutional right to interview any inmate who is willing to speak with them, in the absence of an individualized determination that the particular interview might create a clear and present danger to prison security or to some other substantial interest served by the corrections system. In this regard, the media plaintiffs do not claim any impairment of their freedom to publish, for California imposes no restrictions on what may be published about its prisons, the prison inmates, or the officers who administer the prisons. Instead, they rely on their right to gather news without governmental interference, which the media plaintiffs assert includes a right of access to the sources of what is regarded as newsworthy information. We note at the outset that this regulation is not part of an attempt by the State to conceal the conditions in its prisons or to frustrate the press’ investigation and reporting of those conditions. Indeed, the record demonstrates that, under current corrections policy, both the press and the general public are accorded full opportunities to observe prison conditions. The Department of Corrections regularly conducts public tours through the prisons for the benefit of interested citizens. In addition, newsmen are permitted to visit both the maximum security and minimum security sections of the institutions and to stop and speak about any subject to any inmates whom they might encounter. If security considerations permit, corrections personnel will step aside to permit such interviews to be confidential. Apart from general access to all parts of the institutions, newsmen are also permitted to enter the prisons to interview inmates selected at random by the corrections officials. By the same token, if a newsman wishes to write a story on a particular prison program, he is permitted to sit in on group meetings and to interview the inmate participants. In short, members of the press enjoy access to California prisons that is not available to other members of the public. The sole limitation on newsgathering in California prisons is the prohibition in § 415.071 of interviews with individual inmates specifically designated by representatives of the press. This restriction is of recent vintage, having been imposed in 1971 in response to a violent episode that the Department of Corrections felt was at least partially attributable to the former policy with respect to face-to-face prisoner-press interviews. Prior to the promulgation of § 415.071, every journalist had virtually free access to interview any individual inmate whom he might wish. Only members of the préss were accorded this privilege; other members of the general public did not have the benefit of such an unrestricted visitation policy. Thus, the promulgation of § 415.071 did not impose a discrimination against press access, but merely eliminated a special privilege formerly given to representatives of the press vis-á-vis members of the public generally. In practice, it was found that the policy in effect prior to the promulgation of § 415.071 had resulted in press attention being concentrated on a relatively small number of inmates who, as a result, became virtual “public figures” within the prison society and gained a disproportionate degree of notoriety and influence among their fellow inmates. Because of this notoriety and influence, these inmates often became the source of severe disciplinary problems. For example, extensive press attention to an inmate who espoused a practice of noncooperation with prison regulations encouraged other inmates to follow suit, thus eroding the institutions’ ability to deal effectively with the inmates generally. Finally, in the words of the District Court, on August 21, 1971, “[d]uring an escape attempt at San Quentin three staff members and two inmates were killed. This was viewed by the officials as the climax of mounting disciplinary problems caused, in part, by its liberal posture with regard to press interviews, and on August 23 § 415.071 was adopted to mitigate the problem.” 364 F. Supp., at 198. It is against this background that we consider the media plaintiffs’ claims under the First and Fourteenth Amendments. The constitutional guarantee of a free press “assures the maintenance of our political system and an open society,” Time, Inc. v. Hill, 385 U. S. 374, 389 (1967), and secures “the paramount public interest in a free flow of information to the people concerning public officials,” Garrison v. Louisiana, 379 U. S. 64, 77 (1964). See also New York Times Co. v. Sullivan, 376 U. S. 254 (1964). By the same token, “'[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.’ ” New York Times Co. v. United States, 403 U. S. 713, 714 (1971); Organization for a Better Austin v. Keefe, 402 U. S. 415 (1971); Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 70 (1963); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931). Correlatively, the First and Fourteenth Amendments also protect the right of the public to receive such information and ideas as are published. Kleindienst v. Mandel, 408 U. S., at 762-763; Stanley v. Georgia, 394 U. S. 557, 564 (1969). In Branzburg v. Hayes, 408 U. S. 665 (1972), the Court went further and acknowledged that “news gathering is not without its First Amendment protections/’ id., at 707, for “without some protection for seeking out the news, freedom of the press could be eviscerated,” id., at 681. In Branzburg the Court held that the First and Fourteenth Amendments were not abridged by requiring reporters to disclose the identity of their confidential sources to a grand jury when that information was needed in the course of a good-faith criminal investigation. The Court there could “perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings [was] insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial,” id., at 690-691. In this case, the media plaintiffs contend that § 415.071 constitutes governmental interference with their news-gathering activities that is neither consequential nor uncertain, and that no substantial governmental interest can be shown to justify the denial of press access to specifically designated prison inmates. More particularly, the media plaintiffs assert that, despite the substantial access to California prisons and their inmates accorded representatives of the press — access broader than is accorded members of the public generally — face-to-face interviews with specifically designated inmates is such an effective and superior method of newsgathering that its curtailment amounts to unconstitutional state interference with a free press. We do not agree. “It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally. . . . Despite the fact that news gathering may be hampered, the press is regularly excluded from grand jury proceedings, our own conferences, the meetings of other official bodies gathering in executive session, and the meetings of private organizations. Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded.” Branzburg v. Hayes, supra, at 684-685. Similarly, newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public. The First and Fourteenth Amendments bar government from interfering in any way with a free press. The Constitution does not, however, require government to accord the press special access to information not shared by members of the public generally. It is one thing to say that a journalist is free to seek out sources of information not available to members of the general public, that he is entitled to some constitutional protection of the confidentiality of such sources, cf. Branzburg v. Hayes, supra, and that government cannot restrain the publication of news emanating from such sources. Cf. New York Times Co. v. United States, supra. It is quite another thing to suggest that the Constitution imposes upon government the affirmative duty to make available to journalists sources of information not available to members of the public generally. That proposition finds no support in the words of the Constitution or in any decision of this Court. Accordingly, since § 415.071 does not deny the press access to sources of information available to members of the general public, we hold that it does not abridge the protections that the First and Fourteenth Amendments guarantee. For the reasons stated, we reverse the District Court’s judgment that § 415.071 infringes the freedom of speéeh of the prison inmates and affirm its judgment that that regulation does not abridge the constitutional right of a free press. Accordingly, the judgment is vacated, and the cases are remanded to the District Court for further proceedings consistent with this opinion. It is so ordered. This litigation was first initiated before a single judge and proceeded for nearly a year with the court’s attention focused on the interview practice at San. Quentin State Penitentiary, where all the inmate plaintiffs are confined, where the interviews sought by the media plaintiffs were to occur, and where all the defendants, except Mr. Procunier, are employed. After the matter was briefed and argued, the single judge preliminarily enjoined the enforcement of § 415.071. Only then did the defendants bring to the court’s attention that § 415.071 was a regulation of statewide application. Thereafter a three-judge court was convened to pass on the constitutional validity of the regulation. The periodical has since ceased publication and its editors did not join the media plaintiffs in this litigation. There is some question as to whether the interview between Hil-lery and the magazine editors was denied under the authority of §415.071. Department of Corrections interview policy permits, on a case-by-case basis, meetings between inmate authors and their publishers. The defendants contend that the interview was denied here because the officials made an individualized determination that the meeting was not in fact necessary to effectuate the publication of Hillery’s works. Hillery, on the other hand, notes that the editors had indicated to the prison officials that they also wished to discuss with him the conditions in the prison in order to publish an article on that subject. Thus, it appears that the denial was in all likelihood based at least in part on § 415.071. This policy does not appear to be codified or otherwise expressly articulated in any generally applicable rule or regulation. The statement of visiting privileges for San Quentin State Penitentiary indicates that all visitors must be approved by the corrections officials and must be either “members of the family or friends of long standing.” It also permits visits by attorneys to their clients. Although nothing is said in this statement about visits by members of the clergy, there is no dispute among the parties that the practice of the Department of Corrections is to permit such visits. There is also no disagreement among the parties that this visitation policy is generally applied by the Department throughout the state corrections system. It is suggested by the inmate appellees that the use of the mails as an alternative means of communication may not be effective in the case of prisoners who are inarticulate or even illiterate. There is no indication, however, that any of the four inmates before the Court suffer from either of these disabilities. Indeed, the record affirmatively shows that two of the inmates are published writers. Although the complaint was filed as a class action, the plaintiffs never moved the District Court to certify the case as a class action as required by Fed. Rules Civ. Proc. 23 (b)(3) and (c). Thus, the short answer to the inmates’ contention is that there is neither a finding by the District Court nor support in the record for a finding that the alternative channels of communication are not an effective means for the inmate appellees to express themselves to persons outside the prison. Even with respect to inmates who may not be literate or articulate, however, there is no suggestion that the corrections officials would not permit such inmates to seek the aid of fellow inmates or of family and friends who visit them to commit their thoughts to writing for communication to individuals in the general public. Cf. Johnson v. Avery, 393 U. S. 483 (1969). Merely because such inmates may need assistance to utilize one of the alternative channels does not make it an ineffective alternative, unless, of course, the State prohibits the inmate from receiving such assistance. The inmates argue that restricting their access to press representatives unconstitutionally burdens their First and Fourteenth Amendment right to petition the government for the redress of grievances. Communication with the press, the inmates contend, provides them with their only effective opportunity to communicate their grievances, through the channel of public opinion, to the legislative and executive branches of the government. We think, however, that the alternative means of communication with the press that are available to prisoners, together with the substantial access to prisons that California accords the press and other members of the public, see infra, at 830-831, satisfies whatever right the inmates may have to petition the goverment through the press. We also note that California accords prison inmates substantial opportunities to petition the executive, legislative, and judicial branches of government directly. Section 2600 of the California Penal Code permits an inmate to correspond confidentially with any public officeholder. And various rules promulgated by the Department of Corrections explicitly permit an inmate to correspond with the Governor, any other elected state or federal official, and any appointed head of a state or federal agency. Similarly, California has acted to assure prisoners the right to petition for judicial relief. See, e. g., In re Jordan, 7 Cal. 3d 930, 500 P. 2d 873 (1972); In re Van Geldern, 5 Cal. 3d 832, 489 P. 2d 578 (1971); In re Harrell, 2 Cal. 3d 675, 470 P. 2d 640 (1970). Section 845.4 of the California Government Code also makes prison officials liable for intentional interference with the right of a prisoner to obtain judicial relief from his confinement. This policy reflects a recognition that the conditions in this Nation’s prisons are a matter that is both newsworthy and of great public importance. As The Chief Justice has commented, we cannot “continue ... to brush under the rug the problems of those who are found guilty and subject to criminal sentence. ... It is a melancholy truth that it has taken the tragic prison outbreaks of the past three years to focus widespread public attention on this problem.” Burger, Our Options are Limited, 18 Vill. L. Rev. 165, 167 (1972). Along the same lines, The Chief Justice has correctly observed that “[i]f we want prisoners to change, public attitudes toward prisoners and ex-prisoners must change. ... A visit to most prisons will make you a zealot for prison reform.” W. Burger, For Whom the Bell Tolls, reprinted at 25 Record of N. Y. C. B. A. (Supp.) 14, 20, 21 (1970). It cannot be contended that because California permits family, friends, attorneys, and clergy to visit inmates, it cannot limit visitations by the press. No member of the general public who does not have a personal or professional relationship to the inmate is permitted to enter the prison and name an inmate with whom he would like to engage in face-to-face discourse. Thus, the press is granted the same access in this respect to prison inmates as is accorded any member of the general public. Indeed, as is noted in the text, the aggregate access that the press has to California prisons and their inmates is substantially greater than that of the general public. As Mr. Chief Justice Warren put the matter in writing for the Court in Zemel v. Rusk, 381 U. S. 1, 16-17 (1965), “[t]here are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow. For example, the prohibition of unauthorized entry into the White House diminishes the citizen’s opportunities to gather information he might find relevant to his opinion of the way the country is being run, but that does not make entry into the White House a First Amendment right. The right to speak and publish does not carry with it the unrestrained right to gather information.” Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_appfed	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 "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Alan E. ASHCRAFT, Jr. and Jean J. Ashcraft, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 12171. United States Court of Appeals Seventh Circuit. Feb. 20, 1958. Rehearing Denied March 17, 1958. Edwin R. Armstrong, Sol R. Friedman, I. S. Friedman, Chicago, 111., for petitioner. Charles K. Rice, Asst. Atty. Gen., S. Dee Hanson, Atty., Tax Division, Lee A. Jackson, I. Henry Kutz, Attys., Dept, of Justice, Washington, D. C., for respondent. Before FINNEGAN and HASTINGS, Circuit Judges, and WHAM, District Judge. HASTINGS, Circuit Judge. This appeal involves the liability of the taxpayer, Alan E. Ashcraft, Jr., for the deficiency in income taxes as determined and asserted against him by the Commissioner of Internal Revenue (respondent) and redetermined by the United States Tax Court in the sum of $1881.92 for the calendar year 1951. The taxpayer had been married to his’ former wife, Ruth, from 1930 until their divorce on January 6, 1944, and one child was born to this marriage. He subsequently married his present wife, Jean J. Ashcraft, who is a petitioner herein solely because she filed a joint return with taxpayer for the year 1951. On January 3, 1944, the taxpayer and his wife, Ruth, entered into a separation agreement which made provision for certain transfers of property in full settlement of their respective property lights, and further agreed that taxpayer would pay to Ruth the sum of $210 per month “as permanent alimony” and the further sum of $40 per month for the support of their infant child during his minority. On January 6, 1944, the Superior Court of Cook County, Illinois, entered a decree of divorce and approved the property settlement and payment of alimony to Ruth and support for the child as provided in the agreement. On June 29, 1951, the taxpayer and his former wife, Ruth, entered into an agreement modifying and supplementing their separation agreement of January 3, 1944, and their rights and duties under their divorce decree of January 6, 1944. This agreement contained the following provisions: “1. Ruth waives all right to further payment of alimony or support, pursuant to a decree of divorce entered January 6, 1944, in a cause then pending in the Superior Court of Cook County, Illinois, entitled Ruth T. Ashcraft vs. Alan E. Ashcraft, Jr., being general number 43-S 14678, and agrees that said decree of divorce may be amended in accordance with this Paragraph 1. Ruth understands that she may never thereafter apply to said Court for alimony or support. “2. Ruth waives all her right to the continuance of the insurance provided for in the separate agreement mentioned in said decree for divorce and agrees to execute all necessary papers and documents for the release to Alan of all her interest in and to the policy of insurance issued pursuant to that said separate agreement, by the Penn Mutual Life Insurance Company in the sum of $20,000, being policy No. 2-626- ' 738. “3. Alan will pay to Ruth $6200.00, contemporaneously with the execution of this agreement and the further sum of $2,000.00, within 70 days. “4. Alan will provide a policy or policies of straight life insurance insuring his life in the amount of $9,500.00, and assign all his right, title and interest in and to such policy or policies to Ruth absolutely. All dividend payments on such policy or policies shall be applied in payment of premiums and the balance of such premiums shall be paid by Alan. The marriage or death of Ruth shall relieve Alan of making any further premium payments on such policy or policies.” On June 29, 1951, the Superior Court of Cook County, Illinois, entered a sup-plimental decree containing the following provisions: “This day came again the parties hereto by their respective attorneys and it appearing to the Court that the said parties have entered into an agreement by which the plaintiff, for good and valuable considerations, has waived the payment of further alimony and support, and the Court having read said agreement and being advised in the premises doth order:. “1. That the decree of divorce heretofore entered herein be and the same is hereby amended by striking therefrom all its provisions in reference to alimony and custody and support of the minor child of the said parties. “2. That defendant be and he is hereby forever relieved of all obligation to contribute to the support of or any alimony to the plaintiff and all the provisions in said decree of divorce in reference to alimony and child support are hereby satisfied of record. “3. That the parties hereto shall have joint custody of their minor child and he shall remain, until the further order of the Court, in his present school and the defendant shall maintain and support him.” In their return for the year 1951, petitioners claimed a deduction of $9887.55 with an explanation written on their return that such deduction was for “[a]limony pursuant to divorce decree and periodic payments under written agreement incident to decree paid to former wife, Ruth T. Ashcraft.” The above amount of $9887.55 is the sum of the amounts paid by taxpayer to his former wife pursuant to the original decree and the modification agreement and supplemental decree in 1951. In determining the deficiency for the taxable year 1951, the Commissioner disallowed $8758.41 of the claimed deduction of $9887.55. The amount disallowed consisted of the taxpayer’s cash payments of $6200 and $2000 made to his former wife and the cash surrender value ($558.41) of the $9500 insurance policy transferred to her under the agreement of June 29, 1951. Deductions for the amount of $1050, being five monthly payments of $210 each paid in 1951 under the January 6, 1944 divorce decree and for $79.14, the amount of premium paid on the life insurance policy, were allowed. The Tax Court sustained the Commissioner’s determination and held (28 T.C. 356) that the payments of $6200 and $2000 and the cash surrender value of $558.41 of the insurance policy did not constitute statutory periodic payments includible in the former wife’s gross income for 1951 under Section 22 (k) of the 1939 Code, 26 U.S.C.A. § 22 (k), and therefore were not deductible from the taxpayer’s gross income for that year under Section 23 (u) of that Code. 26 U.S.C.A. § 23 (u). The Tax Court entered its decision accordingly on May 23, 1957, from which the taxpayer and his present wife petition this court for review. We are concerned primarily with Sections 22(k) and 23 (u) of the 1939 Code which in general provide that periodic payments made by a husband to his divorced wife, in discharge of a legal obligation incurred or imposed pursuant to a court decree or written agreement incident to the divorce, are to be included in the gross income of the former wife, and are in turn deductible by the husband in computing his taxable net income. See also Sections 29.22(k)-l(a) and 29.23 (u)-l of Treasury Regulations 111. By its terms, however, Section 22 (k) provides an exception, the pertinent part of which follows: “Installment payments discharging a part of an obligation the principal sum of which is, in terms of money or property, specified in the decree or instrument shall not be considered periodic payments for the purposes of this subsection; * * * ” Here, then, the contested issue finally resolves itself into a question of whether the payments and transfers made by the taxpayer to his former wife were periodic payments in discharge of a legal obligation incurred or imposed pursuant to the decree or written agreement incident to the divorce, or installment payments discharging a part of his obligation, the principal sum of which is, in terms of money or property, specified in the decree or agreement incident to the divorce. The taxpayer contends that the three disputed items represent adjustment and re-arrangement of his original obligation incurred by virtue of the 1944 divorce decree to contribute to the support of his former wife, and, as such, are incident to the divorce and are not in the nature of a property settlement or installment payments discharging parts of a specified sum, but are periodic payments within the meaning of Section 22 (k). He cites several cases in support of this contention. In Myers v. Commissioner, 9 Cir., 1954, 212 F.2d 448, pursuant to a settlement agreement and divorce decree the husband was required to pay his wife, for her support, maintenance and care, the sum of $250 per month for six years, without regard to her remarriage but necessarily terminable on her death. These payments were held to be “periodic payments,” and deductible by the husband, and not installments discharging a principal sum. The court properly determined that no principal sum was specified. Similarly, Baker v. Commissioner, 2 Cir., 1953, 205 F.2d 369, involved a separation agreement incorporated in a divorce decree. The husband was to pay his wife $300 per month for one year and $200 per month for five years thereafter, the payments to cease on the death or remarriage of the wife. The court, placing emphasis upon the contingent nature of the payments, held that no principal sum was stated and the payments were “periodic payments” and deductible. To the same effect is Birdwell v. Commissioner, 5 Cir., 1956, 235 F.2d 112 also cited by taxpayer. In that case support for the former wife was decreed in the sum of $14,600, payable $2,000 at the time of the decree and the balance in monthly installments of $167 in five years and seven months, the payments to cease upon her death or remarriage. Such payments were held to be “periodic payments” and deductible by the husband. Finally, in Burton v. United States, D.C.C.D.Utah 1956, 139 F.Supp. 121, periodic monthly payments of alimony by the husband to his former wife, subject to reduction in amount and terminable at a later date in the event of her remarriage, were held to be “periodic payments” and deductible by the husband. Again, no principal sum was specified. In all of the above cases we find situations clearly involving periodic payments for the support of the former wife in discharge of a legal obligation incurred or imposed pursuant to the decree or written agreement incident to the divorce. We agree with the Tax Court that these cases do not support the taxpayer’s position here. In the instant case a specified sum of money was to be paid, subject to no contingency, and in two installments, along with an assignment of the insurance policy. The taxpayer further contends that since the periodic payments set out in the original 1944 divorce decree were for the support of his former wife, the modification agreement and supplemental decree of 1951 did not change their nature or character. We do not agree. In the modification agreement it is set out that the former wife expressly waived “all right to further payment of alimony or support, pursuant to a decree of divorce entered January 6, 1944,” and “understands that she may never thereafter apply to said Court for alimony or support.” The decree follows to the same effect that “defendant be and he is hereby forever relieved of all obligation to contribute to the support of or any alimony to the plaintiff and all provisions in said decree of divorce in reference to alimony and child support are hereby satisfied of record.” (Our emphasis.) It is quite clear to us that the supplemental decree completely supersedes the original decree in this respect. See also Chapter 40, Section 19, of the Illinois Revised Statutes which provides in pertinent part that where “the decree recites that there has been an express waiver of alimony or a money or property settlement in lieu of alimony or where the court by its decree has denied alimony * * * ” it may not subsequently enter an order for alimony and maintenance for the spouse. We agree with the Commissioner that the three disputed items were clearly installment payments the taxpayer became absolutely obligated to make in lieu of any further alimony or support as specified in the modification agreement and supplemental decree and not subject to any contingency. Such payments are held to be “installment payments” made by taxpayer in discharge of his principal sum obligation specified in the supplemental decree and amended agreement incident to the divorce. Commissioner of Internal Revenue v. Senter, 4 Cir., 1957, 242 F.2d 400, 403, affirming 25 T.C. 1204; Fidler v. Commissioner, 9 Cir., 1956, 231 F.2d 138, 142, modifying in part 20 T.C. 1081; Baer v. Commissioner, 8 Cir., 1952, 196 F.2d 646, 648, affirming 16 T.C. 1418; and Norton v. Commissioner, 8 Cir., 1951, 192 F.2d 960, 961, affirming 16 T.C. 1216. The payment of the insurance premiums on the $9500 life insurance during the former wife’s life and until her remarriage are conceded by both parties to be includible in her income as “periodic payments” and deductible by the taxpayer. We find nothing in that arrangement to bring the three disputed items within the terms of Section 22 (k) as periodic payments. Cf. Seligmann v. Commissioner, 7 Cir., 1953, 207 F.2d 489, and Carmichael v. Commissioner, 1950, 14 T.C. 1356, 1362. The burden is on the taxpayer in all such cases to bring himself squarely within the provisions of the statute under which he claims such a deduction, it being allowable only as a matter of legislative grace. Norton v. Commissioner, supra, and cases cited therein. This he has not been able to do in this cause. We conclude that the Tax Court properly sustained the Commissioner on the issue here involved, and the judgment of the Tax Court is Affirmed. . The petitioners are Alan E. Ashcraft, Jr. and Jean J. Ashcraft (appellants), husband and wife. Petitioner, Alan E. Ashcraft, Jr. will be referred to herein as the “taxpayer.” Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_district	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". NATIONAL LABOR RELATIONS BOARD, Petitioner. v. PEARL BOOKBINDING COMPANY, INC., Respondent. No. 75-1002. United States Court of Appeals, First Circuit. Argued May 6, 1975. Decided June 13, 1975. Corina Lothar Metcalf, Atty., Washington, D. C., with whom Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Assoc. Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., were on brief for petitioner. Julius Kirie, Boston, Mass., for respondent. LEVIN H. CAMPBELL, Circuit Judge. The National Labor Relations Board, pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), petitions for enforcement of two Board decisions and orders issued against Pearl Bookbinding Company for violations of sections 8(a)(5) and (1) of the Act. The Company urges that enforcement be denied on the merits of the Board’s decisions and on the ground that the company has complied with the Board orders. The company is engaged in the binding of pamphlets for the printing trade at its plant in South Boston, Massachusetts. Following a Board-conducted election on January 21, 1972, the Board on January 31 certified Local 16 of the International Brotherhood of Bookbinders as the bargaining agent for the company’s maintenance and production employees. The subsequent bargaining sessions resulted in an impasse, and on April 25, 1972, the union went on strike. Negotiations during the next month failed. The strike continued for several months without further bargaining sessions, and during that time there was an active picket line. Sporadic incidents of violence occurred. A company foreman, accompanied by the company lawyer, filed criminal charges against a union functionary (not an employee at the company) for pointing a gun at several persons on the company’s shipping dock from his car in an outside parking lot. Also the company filed an unfair labor practice charge against the union for strike misconduct under section 8(b)(1)(A) of the Act. There were a number of contacts between the company and union concerning these matters, as well as the question of reinstating certain employees still on strike. These matters were largely resolved by the end of August, 1972. The criminal charges were dropped on August 22, the unfair labor practice charge was dropped on August 25, the union called off the strike on August 25, and the question of reinstatement remained unresolved. In a letter dated September 10, 1972, but not mailed until October 10, 1972, the union requested that the company resume negotiations. The company received the letter and made no response. The union filed an unfair labor practice charge against the company for refusing to bargain. At the hearing the company took the position that although an employer normally must bargain with a Board-certified union for a year in the absence of unusual circumstances, Brooks v. NLRB, 348 U.S. 96, 98, 75 S.Ct. 176, 99 L.Ed. 125 (1954), two circumstances here relieved it of that duty: first, the Bookbinders had merged with the Lithographers and Photoengravers International Union with the result that Local 16 became Graphic Arts Local 16B; and, second, during the strike the union had abandoned and disclaimed its status as bargaining representative for the company employees. Rejecting both defenses, the administrative law judge found the company to be in violation of sections 8(a)(5) and (1) and recommended that the Board order the company to bargain. The Board adopted the administrative judge’s findings and conclusions and issued the recommended order on October 31, 1973. 206 N.L.R.B. No. 192. On December 5, 1973, the union received notice from the Board regional office of the company’s compliance with the order. On December 7, 1973, union president Carlsen phoned and then wrote a request that the company provide the names, addresses, rates of pay, and classification of all employees (numbering about 32) prior to the first negotiating session. The company took no position on the union’s request then, nor at the first bargaining session on December 21, 1973. Carlsen inquired as to which employees on the pre-strike list (the union had this list) were still employees, and company lawyer Kirie thereafter gave the names of 16 on the pre-strike list who were no longer employees. On December 30, Kirie phoned Carlsen and stated the company would not provide the current list of employees because the company did not wish them harassed. Carlsen responded that he would keep the information in confidence. Kirie later provided the classifications and rates of pay of each employee, but not the names and addresses. The company did not offer to assist the union in communicating with bargaining unit employees, such as by posting notices, permitting handbilling on its property, or giving the names and addresses to an independent mailing service. The union filed an unfair labor practice charge. The administrative law judge found that the company did not have any good-faith fear of violence or harassment and did not offer a feasible alternative to names and addresses, that the information was relevant and necessary to the union in performing its duties as bargaining agent, and that alternative means of communicating with the employees were not available. The Board, affirming the administrative judge’s findings, held the company to be in violation of sections 8(a)(5) and (1) and ordered the company to provide the information presently and on a continuing basis and to bargain with the union. 213 N.L.R.B. No. 87 (Sept. 25, 1974). Since the issuance of the order, the company has furnished the list, and negotiations have resumed. The Board has sought enforcement of this order and the earlier one, on the ground that without a judicial decree and the threat of contempt, the company might repeat its past misconduct. The company contests this argument, as well as the merits. Thus, we are called upon to review the Board’s findings of unfair labor practices in the two proceedings, and then to determine whether under the circumstances court enforcement of the Board’s orders is appropriate. With respect to the first proceeding, the company contends that it had no duty to bargain for two reasons. First, it argues that after the merger the local lost its identity as the representative of the employees. The company points out that at the time of the merger referendum vote in February, 1972, employees at the company were not yet members of the local and thus did not have an opportunity to vote on the merger. This fact, in the company’s view, is significant because the local after merger was subordinate to a new international with a new president and constitution. We believe the company must fail on this issue. Although the employees did not actually vote on the change of affiliation to a merged international, they were informed in English and Spanish of the possibility of the merger and its consequences prior to the timé of the representation vote. On the basis of undisputed evidence, the Board found that 21 of the 27 unit employees signed authorization cards reflecting sponsorship by the Lithographers (the other union in the merger) in case the merger antedated certification of the Bookbinders Local 16. Cf. NLRB v. Franks Bros. Co., 137 F.2d 989, 992 (1st Cir. 1943), aff’d, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 435 (1944). But see Dickey v. NLRB, 217 F.2d 652, 655 (6th Cir. 1954). More significantly, the company has failed to show that the successor union is substantially different — other than in name and affiliation — from the prior union. See NLRB v. Commercial Letter, Inc., 496 F.2d 35 (8th Cir. 1974); Retail Clerks Int’l Assn. v. NLRB, 125 U.S.App.D.C. 389, 373 F.2d 655 (1967); Carpenteria Lemon Assn. v. NLRB, 240 F.2d 554, 557 (9th Cir. 1956); Franks Bros., supra. To the contrary, the Board found, and its finding is supported by substantial evidence from the record as a whole, 29 U.S.C. § 160(e), that Local 16 underwent no change. It did not merge with another .local; its structure, administration, officers, assets, membership, autonomy, bylaws, size, and territorial jurisdiction remained the same; and the local continued to negotiate contracts with employers on behalf of employees it represented, and to administer collective-bargaining agreements to which it was a party. In similar circumstances, where the new local was found to be basically a continuation of the old bargaining representative, but involved a merger of two locals as well as of two internationals, one court recently has held that there is no requirement that prospective members be allowed to vote on the changes, at least in the absence of a showing that the votes of those employees could have changed the result of the election. Commercial Letter, supra, 496 F.2d at 40-41. We conclude that the merger of the two internationals was not attended by any of the “unusual circumstances” cited in Brooks, supra, which would terminate the duty to bargain — such as a dissolution of the bargaining representative, transfer of affiliation as a result of a schism, or change in the size of the bargaining unit. Given the substantial continuity found to exist here, it would be inimical to the purpose of industrial peace relied on in Brooks were a company allowed to refuse to bargain on the ground advanced. The company’s second reason for disavowing any duty to bargain is that the union disclaimed or abandoned its position as the employees’ bargaining representative. At the Board hearing, company counsel Kirie testified that on several occasions in early August, 1972, union president Carlsen and union counsel Cappellano said the union was going to withdraw from the negotiations. The company observes that such an attitude by the union would be reasonable to expect, since a majority of the strikers had gone back to work and others had been replaced, and the union wanted the criminal and unfair labor practice charges dropped. To a limited extent Kirle’s testimony was corroborated by that of company president Liebman. However, Carlsen and Cappellano denied making the alleged statements of disclaimer or abandonment. The administrative law judge reviewed the entire background of the strike-related disputes, as well as the conflicting testimony, and credited the testimony of the union officials rather than that of Kirie. The judge’s findings make it inappropriate for us to inquire whether a disclaimer such as is alleged could have absolved the company from its duty to bargain within a year of certification. This court’s function is limited to deciding whether on the record as a whole there is substantial evidence to support the Board’s findings. Here there was ample supporting evidence. We have said that Board findings on credibility must stand unless they are beyond the bounds of reason. See, e. g., NLRB v. Universal Packaging Corp., 361 F.2d 384, 387—88 (1st Cir. 1966). It was not unreasonable for the Board to find that the union’s one-month delay in mailing the September 10 letter requesting further negotiations was due to Kirle’s suggestion to Carlsen that bargaining should be delayed until the heat from the criminal charge had subsided. Nor, in light of the respective postures of the company and union on the abandonment claim, was it beyond the bounds of reason for the Board to credit the testimony of the union officials rather than Kirie on each critical factual issue. The fact that the administrative judge’s opinion did not rebut every statement made by Kirie to support his recollections, does not establish that the Board failed to consider the entire record, including the unfavorable matter, under Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The company’s final claim on the merits is that the Board, in the second proceeding, erred in finding the company in violation of the Act for refusing to supply the union with the names and addresses of the unit employees. The company does not dispute that the union must be able to communicate with the bargaining unit employees in order to bargain for them, but argues that adequate alternative means of communication existed which justified the company’s refusal to provide the list of names and addresses. In addition the company contends that its fear of employee harassment justified its refusal to supply the list. See Shell Oil Co. v. NLRB, 457 F.2d 615 (9th Cir. 1972). There is no general rule requiring an employer to give the bargaining agent a list of the unit employees’ names and addresses. However, courts have imposed such a requirement when the information is relevant and necessary to the union’s performance of its duties. See United Aircraft Corp. v. NLRB, 434 F.2d 1198, 1204-05 (2d Cir. 1970), cert. denied, 401 U.S. 993, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971); Prudential Ins. Co. v. NLRB, 412 F.2d 77, 83-84 (2d Cir.), cert. denied, 396 U.S. 928, 90 S.Ct. 263, 24 L.Ed.2d 226 (1969); Standard Oil Co. of Cal. v. NLRB, 399 F.2d 639, 640 (9th Cir. 1968). The existence of a duty thus depends on the factual circumstances in each case. The company asserts that the union could have distributed handbills to employees from a public street 160 feet from the employee entrance. However, the Board found that handbilling was not a feasible means to communicate in view of the past difficulty in getting walking and riding employees to take handbills, a difficulty which continued during the company’s effective isolation of the employees from the union during litigation over the company’s refusal to bargain. It is true that the union’s own diligence is questionable. Moreover, the union had the names of 16 employees and only tried to enlist the aid of one of them. However, the turnover rate in the company was high, and none of the current employees was a member of the union. We believe that the Board’s judgment that the list of names and addresses was necessary, there being no adequate alternative means of communication, is sufficiently supported in the record. The company further contends that even if the list were relevant and necessary to the union’s duty, the company’s fear of violence and harassment justified its refusal to provide the list. The company relies on Shell Oil, supra, 457 F.2d at 619, where the court held the employer to have a reasonable, good-faith concern over abuses of an employee list, in view of “a clear and present danger of harassment and violence”. Here, by contrast, the Board found that there was no similar evidence of violence or harassment during the 16-month period between the end of the strike and the union’s request for the names and addresses. The only evidence of post-strike harassment was an alleged statement about one employee, ambiguous on its face, which might be taken as a veiled threat. There is substantial evidence in the record to support the Board’s finding that the company had no good-faith fear of violence or harassment, but rather was seeking to continue to isolate the employees from the union. Having found no error in the Board’s decision on the merits, we turn to the question of the appropriateness of enforcing the Board’s orders with which, for the time being at least, the company is complying. The company has not conceded the illegality of its conduct, and the Board’s orders impose requirements which the company might at some future time disavow. The case is not moot nor does present compliance deprive this court of power to decide the disputed issues. See NLRB v. Mexia Textile Mills, 389 U.S. 563, 567 and n.4, 70 S.Ct. 826, 94 L.Ed. 1067 (1950). Here the company’s refusal to bargain and furnish information has been seen as part of a studied effort to erode the union’s position and insulate employees from their bargaining agent. The tactics apparently met with success for several years. On this history the Board may reasonably desire the finality of judicial resolution of its own decisions as well as a court order to serve as a pointed deterrent against resumption of the illegal practices. Enforcement granted. . The Board extended the initial year for bargaining following certification to include a period equivalent to the time between the company’s refusal to bargain and the initial expiration date of the certification year. . The year of certified status was again extended to compensate for the time lost during the unfair labor practice. See note 1 supra. . The vote of the approximately 28 company employees would not have affected the outcome of the referendum on the merger, which was approved by a vote of about 24,000 to 6,000. . The Board found that at no time before or since the merger had any dissident group appeared or claimed to be the old Bookbinders Local 16. . The company also contends that it was under no obligation to bargain with the local after merger because the company received no official notification of the change. In view of the company’s admitted knowledge of the proposed merger, this argument is without merit. . It is undisputed that the company received a letter from the union on October 11, 1972, requesting resumption of negotiations, and that the company made no response. . The company would require the drawing of an inference against the union from the NLRB General Counsel’s failure to call a Board agent, who had been attempting to settle the strike, to testify as an impartial observer as to what was said relating to abandonment. We see no reason to draw any such inference. We are told that it is Board policy, for various practical reasons, not to call its agents unless their conduct is impugned. We cannot say that the policy is so unreasonable as to require the sanction sought by the company. It is not represented that the company made a timely request to call the agent as its own witness or that the Board would have declined to cooperate had such a request been made. See 29 C.F.R. §§ 101.10(a) and (b)(2). Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_initiate	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. David K. RICHARDS, Plaintiff-Appellee, v. ATTORNEYS’ TITLE GUARANTY FUND, INC., Defendant-Appellant, H. Ray Christman and Platte Valley Bank, Defendants. No. 85-2656. United States Court of Appeals, Tenth Circuit. Feb. 14, 1989. Rehearing Denied March 22, 1989. Steven J. Merker of Davis, Graham & Stubbs, Denver, Colo., for plaintiff-appel-lee. Mark R. Davis (John A. Criswell of Bran-ney, Hillyard & Criswell, Englewood, Colo., with him, on the briefs), of Wood, Ris & Hames, P.C., Denver, Colo., for defendant-appellant. Before SEYMOUR, McWILLIAMS, and BRORBY, Circuit Judges. BRORBY, Circuit Judge. Plaintiff Richards brought a civil action based upon diversity of citizenship against defendant, Attorneys’ Title Guaranty Fund, Inc. (Attorneys’ Title), a title insurance company. 28 U.S.C. § 1332 (1966). Richards sought to recover from Attorneys’ Title $430,000 in funds that the president of Centennial Escrow Services, Inc. (Centennial) embezzled from Centennial’s trust account. Richards alleged Centennial was an agent of Attorneys’ Title and Attorneys’ Title should be held responsible for the intentional conversion by Centennial’s president. The jury returned a verdict against Attorneys’ Title. Attorneys’ Title appeals, alleging the district court improperly instructed the jury because: (1) the general liability instruction based on the Restatement (Second) of Agency § 261 (1958) was not the law of Colorado; (2) the court improperly refused an instruction on the element of reliance; and, (3) the instruction defining agency did not contain the necessary element of control. We find the district court properly instructed the jury on the law and AFFIRM the district court’s judgment against Attorneys’ Title. Richards owned thirteen “7-Eleven” stores which he leased to the Southland Corporation. He was approached by a real estate agent regarding sale of the stores to Snyder. Richards negotiated a sale with Snyder. Richards agreed to provide title insurance. Richards then contacted the Attorneys’ Title office in Utah and requested they issue title insurance on the properties. Attorneys’ Title referred him to their Colorado office to prepare the title insurance on the three properties located in Colorado. Richards requested that the Colorado Attorneys’ Title office prepare the title insurance policies on the three properties, asked if that office could handle the closing on the entire transaction, and asked if they could hold the sale proceeds check until all transaction documents were properly recorded. Attorneys’ Title agreed to perform these services. The closing date was postponed from December 10, 1982, to December 30, 1982. Richards learned the Attorneys’ Title office manager would be out of town on December 30. An Attorneys’ Title employee told Richards that Walter, an employee of Centennial, would perform the closing. At the closing, Walter refused to release the sales proceeds check to Richards before the transactions documents were recorded. The buyer, Snyder, and Richards’ attorney, in fact agreed to reissue the sales proceeds check to Centennial to be held in Centennial’s escrow account until the transaction documents were recorded. Walter took the sales proceeds check for $430,000 to Centennial’s office and prepared a deposit slip to the escrow account. She then left the check and deposit slip for Centennial’s president, Marshall, to deposit. Marshall deposited the check in Centennial’s trust account at Platte Valley Bank on January 3, 1983. On January 5, 1983, Marshall asked the bank to release the $430,-000 to him in cash, which the bank was unable to do because its cash on hand did not amount to $430,000. Marshall then instructed the bank to wire transfer the $430,000 to United Bank of Denver where Marshall received the money in cash and left the state. Richards contacted Walter at Centennial and requested transfer of the sales proceeds because all the transaction documents had been properly recorded. Walter then learned that Centennial’s president had taken the proceeds and she informed Richards. Richards brought this diversity suit to recover the $430,000 against Attorneys’ Title and Platte Valley Bank. 28 U.S.C. § 1332 (1966). The jury returned a verdict against both defendants. Each defendant has appealed. Our opinion on Platte Valley Bank’s appeal is reported at Richards v. Platte Valley Bank, 866 F.2d 1576 (10th Cir.1988). In diversity cases, the federal court must apply the law of the forum state, in this case, Colorado. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Brady v. Hopper, 751 F.2d 329 (10th Cir.1984). I. Attorneys’ Title asserts the trial court improperly instructed the jury on the theory of liability based upon § 261 of the Restatement (Second) of Agency (1958) because this section is not the law of Colorado. We have been unable to find, and neither party has cited us to a Colorado case which has discussed § 261. Our task is to predict whether the Colorado Supreme Court would apply this provision in a case like the one presented to this court. Daitom, Inc. v. Pennwalt Corp., 741 F.2d 1569, 1574 (10th Cir.1984). The district court instructed the jury on the liability of Attorneys’ Title stating: In order for the plaintiff, David K. Richards, to recover from the Defendant Attorneys’ Title Guaranty Fund on his claim that Attorneys’ Title Guaranty Fund is responsible for the theft of the escrow proceeds by Duane Marshall, you must find — you must find all of the following have been proved by a preponderance of the evidence. (1) In connection with the sale of the 13 7-Eleven stores and the escrow of the funds, Centennial Escrow Services, Inc., was an agent of Attorneys’ Title Guaranty Fund; (2) Attorneys’ Title Guaranty Fund put Centennial Escrow Services in a position that permitted its president, Duane Marshall, to commit the theft of the $430,000; (3) At the time of the theft, Centennial Escrow Services was apparently acting within its authority as an agent of Attorneys’ Title. If you find any of these propositions has not been proved by a preponderance of the evidence, then your verdict must be for the defendant. On the other hand, if you find that all of these propositions have been proved by a preponderance of the evidence, then your verdict must be for the plaintiff. This instruction is based on the Restatement (Second) of Agency § 261. This section states: A principal who puts a servant or other agent in a position which enables the agent, while apparently acting within his authority, to commit a fraud upon third persons is subject to liability to such third persons for the fraud. Attorneys’ Title objected to this instruction as being an inappropriate theory of law. On appeal, Attorneys’ Title asserts § 261 is not the law of Colorado because this section improperly imposes liability upon a principal solely upon an agent’s intentional misrepresentation not authorized or consented to by the principal. Attorneys’ Title contends this instruction is contrary to the holdings in Schuette v. Winternitz, 498 P.2d 1183 (Colo.App.1972) (not selected for official publication); and Erisman v. McCarty, 77 Colo. 289, 236 P. 777 (1925). We do not find this argument persuasive. The general rule that a principal is liable for the torts of his agent is not grounded on agency principles, but rather the maxim of “respondeat superior.” Simpson v. Townsley, 283 F.2d 743, 746 (10th Cir.1960) (applying Kansas law); Dyer v. Johnson, 757 P.2d 178, 181 (Colo.App.1988). Liability is determined by considering, from a factual standpoint, whether the tortious act was done while the employee, whether an agent or servant, was acting within the scope of employment. Id. at 180; Crosswaith v. Thomason, 95 Colo. 240, 35 P.2d 849 (1934). The principal’s knowledge of the agent’s tort is not a necessary element of liability. See Stockwell v. United States, 80 U.S. 531, 546, 20 L.Ed. 491 (1871). In Gilmore v. Constitution Life Ins. Co., 502 F.2d 1344 (10th Cir.1974), this court construed Colorado law and held a principal liable for the fraudulent acts of its agent who was acting within the scope of his apparent authority. The court distinguished the holding in Schuette, which denied a principal’s liability without proof of consent or knowledge of the agent’s misrepresentations, because that case did not discuss the agent’s apparent authority to perpetrate the alleged fraud. Likewise Er-isman is distinguishable. The Colorado Court of Appeals has also recognized this exception for an agent’s false representations made with apparent authority. See Dyer, 757 P.2d at 180. After hearing each party’s arguments, the district judge concluded the instruction based on § 261 was the correct law. This instruction based on § 261 is consistent with the legal principle recognized by the courts of Colorado that, when one of two innocent persons must suffer from the acts of a third, he must suffer who put it in the power of the wrongdoer to inflict the injury. Bemel Assocs., Inc. v. Brown, 164 Colo. 414, 435 P.2d 407, 411 (1968) (Sutton, J., dissenting) (citing Burck v. Hubbard, 104 Colo. 83, 88 P.2d 955, 957-58 (1939)); see also Gordon v. Pettingill, 105 Colo. 214, 96 P.2d 416, 418 (1939). This court has applied § 261 to principal-agent liability cases arising in Colorado. See Thomas v. Colorado Trust Deed Funds, Inc., 366 F.2d 140, 143 (10th Cir.1966); L.J. Dreiling Motor Co. v. Peugeot Motors, 605 F.Supp. 597, 610-11 (D.Colo.1985), aff'd, 850 F.2d 1373 (10th Cir.1988). We agree with the district judge’s instruction based on § 261. We believe the Colorado Supreme Court would apply § 261 if placed in the position of the district court in this case. Attorneys’ Title next contends if § 261 is an accurate statement of the law of Colorado, the district court improperly substituted “theft” for “fraud” as one of the elements of proof. Attorneys’ Title asserts § 261 was not intended to make a principal liable for every theft committed by a non-employee agent. Attorneys’ Title argues that liability attaches to the principal only by the agent’s misrepresentation or fraud and not simply by the agent’s theft. We have not been referred to, nor do we find, any cases where “theft” has been substituted for “fraud” in an instruction based on § 261. However, there are several cases in which § 261 has been applied to thefts. See, Stone & Webster Eng’g Corp. v. Hamilton Nat’l Bank, 199 F.2d 127, 132 (6th Cir.1952) (business liable for employee’s theft from bank, where business placed employee in position to commit theft); First Nat’l Bank v. United States, 653 F.Supp. 1312, 1320 (N.D. Ill.1987) (bank is liable to third party because its choice of agent exposed third party to loss); Lucas v. Liggett & Myers Tobacco Co., 50 Haw. 477, 442 P.2d 460, 463 (1968) (§ 261 applied to theft of cigarettes); Draemel v. Rufenacht, Bromagen & Hertz, Inc., 223 Neb. 645, 392 N.W.2d 759 (1986) (§ 261 applied to conversion by agent of commodities firm); but see Lou-Con, Inc. v. Gulf Bldg. Servs., Inc., 287 So.2d 192 (La.App.1973) (while § 261 may impose liability on a principal for an agent’s theft, it will not impose liability for arson which is not reasonably foreseeable by the principal); O’Malley v. Putnam Safe Deposit Vaults Inc., 17 Mass.App.Ct. 332, 458 N.E.2d 752 (1983) (claim based on § 261 against principal for agent’s conversion of gold coins dismissed for failure to prove agent acted within apparent authority). Section 261 has also been applied as a basis to impose liability on a principal for an agent’s offensive bodily contact. Bowman v. Home Life Ins. Co., 243 F.2d 331, 334 (3d Cir.1957). Attorneys’ Title cites in support of its proposition that an employer will not be liable for the thefts of its employees, Roth v. First Nat’l State Bank, 169 N.J.Super. 280, 404 A.2d 1182 (1979). In Roth, a customer brought suit against a bank to recover money he lost in a robbery because a bank teller disclosed the customer’s banking practices to a third party. Roth is not persuasive because the basis for the principal’s liability was not § 261, but rather vicarious liability based upon respondeat superior. The court found no liability because the employee’s tortious acts were outside the scope of her employment. In this case the jury was instructed and found Centennial “was apparently acting within its authority as an agent of Attorney’s Title” at the time of the theft. The trial judge is given substantial latitude in tailoring the instructions so long as they fairly and adequately cover the issues presented. United States v. Pack, 773 F.2d 261, 267 (10th Cir.1985); United States v. James, 576 F.2d 223, 226 (9th Cir.1978). A party has no vested interest in any particular form of instructions. The language of the instructions is for the court to determine. United States v. Garcia-Rodriguez, 558 F.2d 956, 965 (9th Cir.1977), cert. denied, 434 U.S. 1050, 98 S.Ct. 900, 54 L.Ed.2d 802 (1978); see also Tucker v. United States, 151 U.S. 164, 170, 14 S.Ct. 299, 301, 38 L.Ed. 112 (1894). Challenges which merely pertain to the trial judge’s language or formulation of the charge are reversible only for an abuse of discretion. James, 576 F.2d at 227, citing United States v. Park, 421 U.S. 658, 673-76, 95 S.Ct. 1903, 1912-14, 44 L.Ed.2d 489 (1975). The principal’s liability under § 261 is not based on the nature of the agent’s act, i.e., whether it is a misrepresentation or a theft, but rather is based upon the principal placing the agent in the position to interact with the third party who is harmed. The agent is acting in the place of the principal. The district court’s substitution of “theft” for “fraud” in the instruction based on § 261 was not an abuse of discretion. Attorneys’ Title next asserts the trial court erred in failing to direct the verdict because Richards failed to prove Attorneys’ Title placed Centennial in a position to harm Richards. Attorneys’ Title contends Centennial was given possession of the down payment by the agreement of Richards and the property purchaser, Snyder, and not by any action of Attorneys’ Title. The applicable standard of review in passing on the propriety of a motion for directed verdict is the same as that used by the trial court. Swearngin v. Sears Roebuck & Co., 376 F.2d 637, 639 (10th Cir.1967). We must conduct a de novo review of the evidence and the reasonable inferences therefrom in the light most favorable to the party opposing the motion. A scintilla of evidence is not sufficient to justify submitting a case to the jury, id., but a verdict may not be directed unless the evidence points all one way and is susceptible of no reasonable inferences that would 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). Attorneys’ Title’s argument fails to consider the following evidence presented by Richards. Richards contacted Attorneys’ Title and requested they issue title policies on the three Colorado properties, perform the closing on this transaction, and hold the proceeds until all documents were recorded. Attorneys’ Title agreed. On the day of the closing an employee of Attorneys’ Title told Richards that Walter, an employee of Centennial, would perform the closing. Closing services generally include holding the proceeds of the sale until all the documents are recorded. There is sufficient evidence in the record to support a conclusion by the jury that Centennial was acting as Attorneys’ Title’s agent in performing the closing and that Centennial’s authority included holding the proceeds. The authority to hold the proceeds included authority to accept a cheek made payable to Centennial for placement in its escrow account, and later to disburse the fee to the real estate agent and the net proceeds to the property seller. We conclude the district court did not err in denying Attorneys’ Title’s motion for directed verdict. II. The next issue Attorneys’ Title raises is the district court’s refusal of its tendered instruction on the issue of reliance. Attorneys’ Title offered tendered instruction No. 15 which outlines the elements of liability of Attorneys’ Title under § 261. It is substantially the same as the instruction given by the district court. Supra, at 1572. Tendered instruction No. 15 contains the added element that: “Dave Richards relied upon the fact Centennial Escrow was acting within its apparent authority for Attorneys’ Title.” Attorneys’ Title asserts the failure of the district court to give tendered instruction No. 15 removed the issue of reliance from the jury’s consideration. The admission or exclusion of a jury instruction is within the discretion of the trial court. United States v. Zang, 703 F.2d 1186, 1196 (10th Cir.1982), cert. denied, 464 U.S. 828, 104 S.Ct. 103, 78 L.Ed.2d 107 (1983). The sufficiency of the instructions is not determined by giving or not giving particular instructions, but rather by viewing the instructions as a whole. United States v. Beitscher, 467 F.2d 269, 273 (10th Cir.1972). Generally, the court satisfies its duty by giving instructions that sufficiently cover the case and that are correct. United States v. Gurule, 437 F.2d 239, 242 (10th Cir.1970), cert. denied, 403 U.S. 904, 91 S.Ct. 2202, 29 L.Ed.2d 679 (1971); United States v. Burns, 624 F.2d 95, 105 (10th Cir.), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980). Attorneys’ Title asserts apparent authority requires (1) the principal make statements or act in a manner to make a third party believe the agent is authorized to act and, (2) the third party relies on the apparent authority to its detriment. The district court’s instruction on apparent authority is taken from the standard Colorado Jury Instructions 2d Civil 7:14 (1980). In order to establish apparent authority, the principal’s words or conduct must cause another reasonably to believe that the agent is authorized to act. See Kuehn v. Kuehn, 642 P.2d 524 (Colo.App.1981); Russell v. First American Mtg. Co., 39 Colo.App. 360, 565 P.2d 972, 975 (1977); Zambruk v. Perlmutter 3rd Generation Builders, Inc., 32 Colo.App. 276, 510 P.2d 472, 475 (1973); but cf. Bemel, 435 P.2d at 409-10 (to establish agency by estoppel reliance must be proven). Reliance is defined as a belief which motivates an act. See Colorado Jury Instructions 2d Civil 19:7 (1980). The reasonable belief element of reliance is contained in the district court’s instruction on apparent authority. The jury’s determination that Centennial had apparent authority to act as Attorneys’ Title’s agent is also a finding that Richards reasonably believed Centennial was authorized to act. After viewing the instructions as a whole, we find the district court’s refusal to include the reliance element in the general liability instruction based on § 261 is not error because the court’s instruction on apparent authority properly placed the issue before the jury. Attorneys’ Title also asserts Richards did not rely on Centennial’s authority to receive the sale proceeds in escrow because the closing instructions prepared by Richards did not discuss escrow of the proceeds. We find no merit to this argument because it fails to recognize the general rule that an agent’s instructions come from the principal and not from the third party dealing with the agent. Bank of British N. Am. v. Cooper, 137 U.S. 473, 478, 11 S.Ct. 160, 161, 34 L.Ed. 759 (1890). III. Attorneys’ Title next asserts the district court improperly instructed the jury on the elements of an agency relationship because the instruction did not include the element that an agent is “subject to the control of the principal.” Attorneys’ Title concedes the instruction the court gave is the standard Colorado jury instruction defining agency. “Control” is not an element in this instruction. This instruction is based on the Colorado Supreme Court’s holding in Pouppirt v. Greenwood, 48 Colo. 405, 110 P. 195, 196 (1910). This instruction has been cited with approval by the Colorado Court of Appeals in Cheney v. Hailey, 686 P.2d 808 (Colo.App.1984). See also Shriver v. Carter, 651 P.2d 436 (Colo.App.1982). Attorneys’ Title has failed to cite any cases in support of its theory that in Colorado a court’s instruction defining agency must discuss the element of “control.” We hold the district court did not err in refusing to instruct the jury that an agency relationship is based upon control. The instruction given sufficiently defines “agency” and is correct. IV. We conclude the district court properly instructed the jury based on § 261. The court did not err in refusing Attorneys’ Title’s instructions on “reliance” and “control.” The district court’s judgment is AFFIRMED. .Attorneys’ Title tendered instruction No. 15 states: In order for the Plaintiff, David K. Richards, to recover from the Defendant, Attorneys’ Title Guaranty Fund, Inc., on his claim that Attorneys' Title Guaranty Fund is responsible for the theft of the escrow proceeds by Duane Marshall, you must find all of the following have been proved by a preponderance of the evidence: 1. Centennial Escrow was the agent for Attorneys’ Title. 2. At the time of the theft, Duane Marshall was an employee of Centennial Escrow Services, Inc. 3. In stealing the funds, Mr. Marshall was acting in the course and scope of his employment for Centennial Escrow Services, Inc. 4. Attorneys’ Title Guaranty Fund placed Centennial Escrow in a position which enabled Duane Marshall to steal the funds. 5. At the time of the theft Centennial Escrow was apparently acting within its authority as agent of Attorneys’ Title. 6. Dave Richards relied upon the fact Centennial Escrow was acting within its apparent authority for Attorneys’ Title. If you find that any one of these propositions has not been proved by a preponderance of the evidence, then your verdict must be for the Defendant, Attorneys’ Title Guaranty Fund, Inc. On the other hand, if you find that all of these propositions have been proved by a preponderance of the evidence, then your verdict must be for the Plaintiff, unless you should also find that Duane Marshall was also the agent for David Richards in holding the escrow funds, in which event your verdict must be for the Defendant. . Instruction 7:14 on apparent authority states: When a principal by his words or conduct has caused another reasonably to believe that the principal has authorized his agent to take certain action on the principal's behalf, though in fact the principal may not have done so, such words or conduct constitute apparent authority, and as to the other person is the same as if the principal had authorized such action. . Instruction 19:7 defines reliance as: The plaintiff relied on the claimed representation if, believing it to be true, he took action he otherwise would not have taken, or decided against taking action he otherwise would have taken. . Colorado Jury Instructions 2d Civil 7:3 AGENCY reads: An agency is created by an agreement, written or oral, express or implied, by which the persons agree that one of them is to act for, or in the place of, the other. The person who agrees to act for another is called the agent, and the other is called the principal. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_appbus	2	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "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. CENTURY INDUSTRIES, INC., Plaintiff-Appellee, v. WIEBOLDT STORES, INC., Defendant-Appellant, and Marsel Mirror & Glass Products, Inc., Intervening Defendant-Appellant. No. 12423. United States Court of Appeals Seventh Circuit. March 3, 1959. Warren C. Horton, Malcolm McCaleb, and Horton, Davis & McCaleb, Chicago, Ill., for appellant. James R. McKnight, Chicago, Ill., for appellee. Before SCHNACKENBERG, HASTINGS and KNOCK, Circuit Judges. HASTINGS, Circuit Judge. This is an action for patent infringement by Century Industries, Inc., plaintiff-appellee, against Wieboldt Stores, Inc., defendant-appellant, and Marsel Mirror & Glass Products, Inc., intervening defendant-appellant. The patent in suit, No. 2,677,990, was issued on May 11,1954 to Arthur Bienen-f eld and Harvey L. Hurwitz and is owned by plaintiff under assignment from the patentees. The patent is for a “Mirror Kit for Home Decoration,” designed for a “do-it-yourself” installation, the kit being made and sold by plaintiff. Defendant Wieboldt is charged with having infringed through the retail sale of sectional mirrors manufactured by intervening defendant Marsel. Each defendant filed an answer denying infringement and alleging invalidity of plaintiff’s patent, together with a counter-claim. Following a trial requiring a part of two days the district court found for plaintiff and rendered judgment holding the patent valid and infringed, permanently enjoining defendants from further infringement and referring the cause to a master for the determination of damages. This appeal followed, the contested issues being those of validity and infringement. At the outset it is apparent that the findings of fact adopted by the trial court are wholly inadequate to support the conclusions of law and judgment in this case. The findings are six in number, the first three merely reciting the names and residences of the parties and the fourth that plaintiff is the owner of the patent in suit. The remaining two findings are: “5. Plaintiff has extensively made and sold Mirror kits made in accordance with said Patent No. 2,677,990 and is prepared to supply the demand therefor. “6. Defendant, Marsel Mirror & Glass Products, Inc., has made and sold and defendant, Wieboldt Stores, Inc., has sold mirror kits subsequent to May 11, 1954 in accordance with said Patent No. 2,677,990.” We need not elaborate upon their insufficiency to sustain a conclusion of validity and infringement. The oral testimony was brief and limited to plaintiff’s general manager, Hoyne Greenberg, and defendant Wie-boldt’s secretary, Otto E. Haedike. No expert testimony was taken. Plaintiff also read portions of two discovery depositions, taken in New York, of defendant Marsel’s president, Marvin Leopold, and its treasurer, Selton Barlow. In addition there are a number of exhibits in evidence, including the patent in suit and its file wrapper, a sample of the patented kit and the accused mirror set, plaintiff’s notice of infringement to each defendant, various advertisements of the parties and a number of prior art patents. On this state of the record, rather than remand the case at this juncture for additional findings, we have read and considered the entire record and are prepared to dispose of this appeal on its merits. The file wrapper discloses that the original application was filed June 13, 1952 and contained three claims. On December 10, 1952 the application was examined by Acting Examiner Anderson who rejected all three claims, citing as references Dieter Patent No. 2,289,634, dated July 14, 1942, and Downham, et al., British Patent No. 609,691, dated October 5, 1948. The first ground of rejection was that the claims failed to claim statutorily patentable matter. The second ground of rejection was that the claims were indefinite and aggregative, and that each was a mere catalogue of parts “without any coaction between the components being positively provided for.” The final ground of rejection was that the claims were in any event un-patentable over the Dieter and Downham patent references. Following the rejection of the claims the applicants, on May 4, 1953, filed several amendments to each claim in order “more definitely to set forth the cooperation between the parts.” On March 3, 1954 Examiner Gonsalves rejected all three claims. Claim 1 was rejected as “vague and indefinite,” and Claims 2 and 3 were rejected once more as unpatenta-ble over the same references, Dieter and Downham. On March 8, 1954, the applicants filed a further amendment canceling Claims 2 and 3. Claim 1 was amended .by striking out the last two words in the phrase, “a supply of mastic applied be applied.” The patent was then allowed by a third Examiner with only Claim 1 as finally amended, which now reads as follows: “A mirror kit for home decoration ■comprising twelve square body members formed of mirror glass, a supply of mastic applied to the backs of said body members for bonding them to an appropriate vertical surface, said mastic being free from ingredients deleterious to mirrors, a plurality of clip tabs comprising a piece of cloth gummed on one side, said cloth bent back upon itself on the gummed side along a transverse line, said cloth having an opening positioned at the center of said line, a metallic T-shaped clip having its upper portion positioned along said line, said cloth bent back upon and sealed to itself above said clip to hold said clip in place, said clip having a downwardly extending portion extending through said opening, said downwardly extending portion having a hook at the bottom thereof, said hook extending outwardly from said cloth at a right angle, said clip tabs attached to the vertical surface by moistening said gummed cloth and pressing it against said surface, whereby said hooks support the bottom edges of said body members and prevent said body members from slipping while said mastic is drying, and a plurality of long, narrow, cardboard spacer strips, said spacer strips temporarily inserted edgewise between the adjacent edges of said body members at the time said body members are adapted to the vertical surface, said spacer strips upon their removal provided space between said body members for heat expansion of said body members without the glass cracking, said kit adapted to be used by the home occupant himself without additional tools or specialized skill of any kind.” The Patent Ofiice considered only the Dieter and Downham, et al., patents as references. Dieter shows structural glass fastened to a wall of building blocks by mechanical fasteners or clip members. Downham, et al., shows it to be old in the art to provide a plurality of metal clips to hold a lateral or base edge of a “splash-back” mirror when mounting it on the wall. The first Examiner pointed out that, “[n]o invention is seen in further securing the mirror by means of adhesive material and providing a plurality of mirrors for ornamental purposes as taught by Downham, et al.” The second Examiner made substantially the same comment and added that, “[mjere assembly of these parts into a kit is not seen to be invention.” We are unable to find any basis for differentiating between Claim 1 and Claims 2 and 3 (abandoned by applicants in their second amendment) so as to bring Claim 1 outside these patent references. Likewise, we fail to see how the elimination of the two words in Claim 1 on its second amendment could be construed as an appreciable or material change. At the trial the court had before it Defendant’s Exhibit No. 4, a series of patents showing that frames for mirrors, name holders and other articles were commonly mounted upon a wall or object by providing spaced-apart channel members into which the article could be slida-bly mounted. We have considered this exhibit and find that such teachings are old in the art. We fail to see invention in the use of a mastic (adhesive) to hold a mirror on a wall. The use of metal hooks or clips is certainly old and the temporary use of paper strips between the mirror sections to prevent chipping while the mastic dries is not invention. To say that the use of a specific number of mirrors (twelve in this case) adds anything to inventiveness is without merit. b In analyzing this single claim it is clear to us that the catalogue of the various elements as a whole do not attain the stature of statutorily patentable matter. In our view this is a narrow patent claim which merely recites a combination or aggregation of old elements in which each performed the same function that it had been known to perform. “This patentee has added nothing to the total stock of knowledge, but has merely brought together segments of the prior art and claims them in congregation as a monopoly.” Great Atlantic & Pac. Tea Co. v. Supermarket Equipment Corp., 1950, 340 U.S. 147, 152, 153, 71 S.Ct. 127, 130, 95 L.Ed. 162. This is not invention. See also Pleatmaster Inc. v. J. L. Golding Mfg. Co., 7 Cir., 1957, 240 F.2d 894, 897. We are cognizant of the presumption of validity which attaches to a patent, 35 U.S.C.A. § 282, but we have concluded that, in this case, such presumption “was overcome by clear and convincing evidence on the part of the defendants * * Goldman v. Bobins, 7 Cir., 1957, 245 F.2d 840, 844. It is urged that because of the advantages inherent in the “do-it-yourself” method of installing the mirror set it has enjoyed substantial commercial success and that this lends strength to the presumption of validity. But, as the Supreme Court pointed out in Great Atlantic & Pac. Tea Co. v. Supermarket Equipment Corp., supra, at page 153 of 340 U.S., at page 130 of 71 S.Ct. “ * * commercial success without invention will not make patentability.” See also Toledo Pressed Steel Co. v. Standard Parts, Inc., 1939, 307 U.S. 350, 356-357, 59 S.Ct. 897, 83 L.Ed. 1334. Furthermore, the use of the “do-it-yourself” technique cannot, in and of itself, make that which is otherwise unpatentable the subject of invention. Having determined that the patent in suit is invalid, the question arises whether we should pass upon the issue of infringement. Although in such a situation this court has in some cases seen fit to do so, we see no good purpose, here, in pursuing this matter further. The judgment of the district court is Reversed. 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_usc1sect	1331	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". Walter JACONSKI, Appellant, v. AVISUN CORPORATION and W. V. Pangborne & Co., Inc. No. 15420. United States Court of Appeals Third Circuit. Argued Jan. 3, 1966. Decided April 13, 1966. Avram G. Adler, Abraham E. Freedman, Freedman, Borowsky & Lorry, Philadelphia, Pa., for appellant. John Francis Gough, Thomas Raeburn White, Jr., White & Williams, Philadelphia, Pa., for appellee, W. V. Pang-borne & Co., Inc. Martin A. Heckscher, James J. McCabe, Jr., Duane, Morris & Heckscher, Philadelphia, Pa., for appellee, Avisun Corp. Before BIGGS, GANEY and FREEDMAN, Circuit Judges. BIGGS, Circuit Judge. This appeal is taken from a pretrial order entered by the court below dismissing the plaintiff’s, Jaconski’s, case, based on diversity and jurisdictional amount for “lack of jurisdiction.” The operative facts as they appear from the record follow. On January 23, 1962, Jaconski brought suit to recover damages for personal injuries allegedly sustained by him on the afternoon of August 1, 1961, while he was employed as a pipefitter and welder for Bechtel Corporation. Bechtel was the general contractor in connection with the erection of a polypropylene manufacturing plant for the defendant, Avisun Corporation, Avisun. At the time of the accident the defendant, W. Y. Pangborne & Co., Inc., Pangborne, was engaged in electrical-installation work at Avisun’s plant under a subcontract from Bechtel. At the time of the accident Jaconski was assisting in the construction of a gas line on a “pipe bridge.” When Jaconski attempted to get a length of pipe into place it came into contact with an overhead wire. This contact caused 12,000 volts of electricity to run through the pipe and into and through the body of the plaintiff, throwing him some ten feet. In March 1962 Avisun and Pangborne served separate but similar interrogatories requiring Jaconski to furnish information regarding the nature and extent of his injuries. On July 26, 1962, Jaconski filed answers to Pangborne’s interrogatories only, which stated that as a result of the accident he had suffered severe electrical burns on both his hands and feet, aggravation of a prior injury to his left foot, and severe shock to his nervous system with residual anxiety neuroses. He also stated that he still suffered “from residual muscle and tendon damage to right hand and increasing difficulty with left foot.” The extent of Jaconski’s alleged injuries is set out more fully in his deposition taken on April 11, 1963. This deposition, however, was not filed in the court below until after the pretrial order dismissing the case was filed and was not considered by the court below. The use of this deposition will be discussed at a later point in this opinion. Jaconski’s answers to the interrogatories further alleged only $400 in special damages. On December 28, 1964 the plaintiff’s pretrial memorandum, then filed, alleged a permanent partial disability and listed as special damages in the amount of $58,-500, for loss of past earnings and estimated loss of future earnings, and $200, for medical bills. Avisun, on March 1, 1965, filed a motion to compel the plaintiff to furnish to it up-to-date information regarding the claimed injuries. At a hearing held on March 17, 1965, the plaintiff’s attorney agreed to furnish such information before the pretrial conference or be barred from showing additional damages at the trial. No further answers to the interrogatories were filed and, aside from Jaconski’s deposition, no further information as to his injuries has been furnished by Jaeonski. Avisun’s answer and the pretrial mem-oranda of both Pangborne and Avisun raised the defense of lack of necessary amount in controversy. 28 U.S.C. § 1332(a). On April 8, 1965, the pretrial conference was held, but no stenographic report was made of the proceedings and it appears that none is available. At the close of the conference the order dismissing the action for lack of jurisdiction was entered. The problem of ascertaining the “sum or value” of the matter in controversy in a suit based on diversity jurisdiction has puzzled the courts for many years. The problem arises, of course, from the fact that lower federal courts possess only that jurisdiction which has been specifically conferred upon them by Congress. United States Constitution, Art. Ill; Sheldon v. Sill, 8 How. 440, 49 U.S. 440, 12 L.Ed. 1147 (1850). In order to comply with the Federal Rules of Civil Procedure in respect to jurisdictional amount all that is necessary is that the complaint contain “a short and plain statement of the grounds upon which the court’s jurisdiction depends * * Rule 8(a)(1), Fed.R.Civ.Proc., 28 U.S.C. An uncontroverted allegation that the requisite jurisdictional amount exists is deemed sufficient ordinarily to comply with Rule 8(a) (1). See 2 Moore, Federal Practice § 8.11 at 1666 (2d ed. 1965). However, where the amount in controversy is challenged, the burden of proving the matter in controversy exceeds the jurisdictional minimum rests upon the party alleging the sufficiency of the amount in controversy. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189-190, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Wade v. Rogala, 270 F.2d 280, 284 (3 Cir. 1959). Moreover, in McNutt the Supreme Court stated that even if the jurisdictional amount is not challenged by an adversary “the court may still insist that the jurisdictional facts be established or the case be dismissed, and for that purpose the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence.” See 298 U.S. at 189, 56 S.Ct. at 785. There is small difficulty in applying this rule when the damages claimed are liquidated, but when the damages are unliquidated, as in the instant case, there is no exact yardstick to measure recovery even when most, if not all the operative facts are known. One of the tools developed for determining the intangible factors relating to the amount in controversy is the requirement that a plaintiff must claim the necessary amount in “good faith”. Norwood Lumber Corporation v. McKean, 153 F.2d 753 (3 Cir. 1946). On its face, the phrase “good faith” would seem to imply that the relevant consideration is the plaintiff’s state of mind and that, therefore, it is a subjective test. In fact one of the expressions of the rule, whether the demand is colorable and laid for the purpose of giving jurisdiction to the federal court, would suggest this conclusion. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Barry v. Edmunds, 116 U.S. 550, 561, 6 S.Ct. 501, 29 L.Ed. 729 (1886). But it is obvious that the plaintiff’s actual mental state can never be satisfactorily measured without recourse to objective facts. Thus the basic criterion for determining “good faith” is that “It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 288-289, 58 S.Ct. 590 (1938). See also Horton v. Liberty Mutual Insurance Co., 367 U.S. 348, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961); Brough v. Strathmann Supply Co., Inc., 358 F.2d 374 (3 Cir. 1966). The test then is not what amount the plaintiff claims in the ad damnum clause of his complaint, but rather, whether it appears to a “legal certainty” that he cannot re-cover an amount above the jurisdictional minimum. Cumberland v. Household Research Corp. of America, 145 F.Supp. 782 (D.Mass.1956); Cohen v. Proctor & Gamble Distributing Co., 16 F.R.D. 128 (D.Del.1954). It follows, therefore, that in order to find a plaintiff’s claim lacking in “good faith”, the court must be able to conclude from the record before him that the plaintiff cannot recover a sum by way of damages above the $10,000 jurisdictional floor. We entertain no doubt that a trial judge has the power to determine whether the facts requisite to jurisdiction exist. Wetmore v. Rymer, 169 U.S. 115, 18 S.Ct. 293, 42 L.Ed. 682 (1898). However, the determination of jurisdictional issues must always be such as to enable a reviewing court to ascertain whether the evidence supports the trial court’s finding. Id. at 121-122, 18 S.Ct. 293; Shaffer v. Coty, Inc., 183 F.Supp. 662, 665 (S.D.Cal.1960). The record before us is meager, and the court below did not state the basis for its conclusion that the jurisdictional amount does not exist. Moreover, our review of the record does not permit us to conclude that it is apparent to a “legal certainty” that Jaconski could not recover sufficient damages to constitute the requisite amount. We are not unmindful of the mounting caseloads in our heavily burdened metropolitan courts and of the very substantial number of cases awaiting trial. In fact the attempt to limit these burgeoning caseloads was one of the major reasons for increasing the jurisdictional amount. S.Rep. 1830, U.S.Code Cong, and Admin.News, 85th Cong.2d Sess. pp. 3099, 3101 (1958). But despite that increase in the jurisdictional amount the statistics published by the Director of the Administrative Office of the United States Courts show that no reduction in private civil litigation, including tort cases, has been effected. It has been contended that the reason for this unfortunate result is the inflexibility of the applicable “good faith-legal certainty” test. But Congress was aware of this test and had been advised that an increase in the jurisdictional amount would undoubtedly be followed by an increase in the damages claimed in tort cases. Congress was surely aware of this difficulty and intended to afford some degree of relief therefrom by enacting Section 1332(b), Title 28, U.S.C. This provision states that when a plaintiff is adjudged to be entitled to less than the jurisdictional amount the court may deny him costs and, in addition, may impose costs on him. Congress “aimed” Section 1332(b) “at deterring the filing of inflated claims made in order to bring the actions in the district courts.” Section 1332(b) has not reduced the number of inflated claims, perhaps because it has not been often applied, but because Congress did enact this section it would seem to follow that it did not attempt to change the “good faith-legal certainty” test. It remains the rule, and the reason for its rather strict application resides, we believe, in the fear of depriving a plaintiff of his right to a jury trial. Except in the plainest cases the issue of jurisdictional amount should not be decided if the ruling constitutes at the same time a decision on the merits. Ordinarily the desirable, indeed the necessary, choice is to permit the case to proceed to trial. Cf. Wade v. Rogala, supra. The grounds for the trial court’s decision in the instant case are far from plain. Can it be said that in the case at bar on the present record, prior to trial, that the jurisdictional amount is lacking ? We are without a statement by the trial court as to the basis for a conclusion of law, in fact unstated by the trial court, that the plaintiff’s allegations of jurisdictional amount were not made in “good faith”. We are dissatisfied with the record here. Counsel for Jaconski was lax. The judge presiding at the March 17th hearing, who was not the judge who presided at the actual pretrial hearing, pointed out to Jaconski’s counsel clearly that it was his duty to bring up to date the operative facts relating to his client’s damages. Jaconski’s counsel replied: “That’s my responsibility and I accept that responsibility.” He failed in that clearly stated obligation. Jaconski’s deposition was taken on April 11, 1963. The deposition was not filed until May 3, 1965, more than two years later. This was a long delay. May 3, 1965 was the day on which the notice of the appeal was filed. But the court below did not inform Jaconski’s counsel that it would dismiss the action if information concerning the nature, character and extent of Jaconski’s injuries were not brought up to date by the time of the pretrial conference on April 8, 1965, though Jaconski’s counsel could, and perhaps should have drawn an inference that since the court was of the view that the record as constituted then and now would not sustain the allegation of the jurisdictional amount and that therefore the action might possibly be dismissed for lack of jurisdiction. The trial memoranda of Avisun and Pangborne made the jurisdictional amount an issue in the case. But Jaconski’s counsel filed no answering memorandum so far as we are aware. On the other hand, neither Avisun nor Pangborne moved to dismiss the action for lack of jurisdiction. The court aparently entered the order of dismissal sua sponte. Perhaps the unrecorded proceedings at the pretrial conference would disclose an oral motion but without that record we are uninformed as to what transpired and, as has been stated, we are entitled to know on what basis the court below dismissed the case. Cf. Arnold v. Troccoli, 344 F.2d 842 (2 Cir. 1965). The trial court must examine all available evidence. Gilbert v. David, 235 U.S. 561, 568, 35 S.Ct. 164, 59 L.Ed. 360 (1915). Cf. Sansone v. Ocean Accident and Guarantee Corp., 228 F.Supp. 554 (E.D.La. 1964). Moreover, we cannot conclude that the arguments of Avisun and Pang-borne based on the failure of Jaconski to make use of Rule 75 (n) is a factor requiring the determination of this case in their favor. The use of Rule 75 (n) is permissive, not mandatory. In the instant case we must deal with the jurisdictional facts as they are presently on the record. The court below on remand must seek to have counsel make available on the record, for the information of the reviewing tribunal, sufficient facts to determine the good faith of the allegations of the complaint. Another pretrial conference should be held and pretrial to be effective must be full and adequate. If it were not for the unusual procedural difficulties presented by this case we would deem it unnecessary to comment further. We point out, however, that the court below on remand should determine the issue as to whether or not Jaconski’s attorney’s failure to update the answers to the interrogatories or otherwise to bring up to date on this record the operative facts as to the extent of Jaconski’s injuries should limit Jaconski’s proof as to the extent of those injuries. See 4 Moore Fed.Praetice j[ 33.28, at 2340-41 (2d ed. 1963); Michigan Window Cleaning Co. v. Martino, 173 F.2d 466 (6 Cir. 1949); Fisher v. Underwriters at Lloyd’s London, 115 F.2d 641 (7 Cir. 1940). Cf. United States v. 42 Jars, More or Less, 264 F.2d 666 (3 Cir. 1959). Cf. Rules 33 and 37, Fed.R.Civ. Proc., 28 U.S.C. If such a limitation be imposed by the trial judge it will not affect the necessity of making a determination of the jurisdictional amount in controversy which is to be ascertained, not by the amount which Jaconski is able to prove, but by the amount demanded by him, if that demand is found to have been made in good faith. Miller-Crenshaw Co. v. Colorado Mill & Elevator Co., 84 F.2d 930, 932 (8 Cir. 1936); National Surety Corporation v. City of Excelsior Springs, 123 F.2d 573, 156 A.L.R. 422 (8 Cir. 1941). The order of the court below will be vacated and the cause will be remanded with instructions to proceed in accordance with this opinion. . The grounds for dismissal are not set out specifically in the pretrial order of dismissal which reads as follows: “And now, this 8th day of April, 1965, this case is dismissed for lack of jurisdiction.” There is, however, no question of diversity of citizenship since the complaint and answer reveal that the plaintiff is a citizen of New Jersey and the defendant, Avisun Corp., is incorporated under the laws of Delaware and has its principal place of business in Philadelphia, Pennsylvania and the defendant, W. V. Pang-borne & Co., Inc., is incorporated under the laws of Pennsylvania and has its principal place of business in Philadelphia, Pennsylvania. . Bechtel Corporation is not a party to the present litigation. . The practice in laying the gas line required Jaconski to stand on the “pipe bridge” while his working partner handed up 20-foot lengths of pipe to him. As soon as a pipe length was in place Jaeonski’s partner would come on the “pipe bridge” and assist him in welding the pipe into place. . Jaconski’s answers to the interrogatories state: (1) that he was treated at the Delaware Hospital, Wilmington, on the afternoon of the accident but that he was not hospitalized at any other time; (2) that he reported to work the morning after the accident and lost no wages while finishing his job with Bechtel; (3) that during the eleven months after the accident he worked for five separate employers and claimed only the loss of one week’s wages in the amount of $168 in November, 1961, and (4) that his total out-of-pocket expenses totalled less than $400, including approximately $200 in medical expenses. . The following colloquy took place between counsel in the presence of the court: “Mr. Heckscher (counsel for Avisun): The other motion [by Avisun] is to compel the filing of either answers to our [Avisun’s] interrogatories which have never been filed or up-to-date answers to Pangborne’s interrogatories which stated that they [the interrogatories] were continuing and inasmuch as this case is about to reach pretrial conference we felt that we should have up-to-date information. “Mr. Adler (counsel for Jaeonski): Tour Honor when they furnished their interrogatories I submitted the answers to Pangborne which were almost identical interrogatories, sworn to and— “Mr. Heckscher: No question about that, we don’t care which interrogatories are up to date, but the pretrial memorandum has alleged damages which did not appear to be supported by the previous answers filed, and we would like up-to-date, whether they are our interrogatories that are answered or whether up-to-date information is supplied in answer to Pangborne’s interrogatories. “The Court: Well, at the time of the pretrial conference it will be up to the parties concerned to have their interrogatories up to date. If not up to date at the time of the pretrial conference plaintiff will be limited— “Mr. Adler: That’s right. “The Court: —and you won’t be able to prove it. “Mr. Adler: That’s my responsibility and I accept that responsibility. “The Court: I don’t think you need more than that. “Mr. Heckscher: Thank you, Tour Honor. “The Court: So that the second order in the petition [sic.] will not be signed. “Mr. Heckscher: Nor need it be listed as I understand it from what Tour Hon- or has said. “The Court: No, because the responsibility is on plaintiff’s attorney to amend if he chooses to go forward on some phase of damages that are not in the original pretrial memorandum.” The second order requested by Avisun’s motion, referred to by the court below as a “petition” is not relevant here. . The first Act limiting federal jurisdiction required a $500 minimum amount in controversy. Act of Sept. 24, 1789, ch. 20, § 11, 1 Stat. 78. Since 1789, Congress has increased this amount three times. Act of March 3,1887, 24 Stat. 552 ($2,000); Act of March 3, 1911, ch. 231, § 24, 36 Stat. 1091 ($3,000); and Act of July 25, 1958, 72 Stat. 415 (now 28 T7.S.C. §§ 1331, 1332) ($10,000). . See the statistics cited in Arnold v. Troe-coli, 344 F.2d 842, 844-845 (2 Cir. 1965) and the Annual Reports of the Director of the Administrative Office of the United States Courts for the fiscal years 1957— 64, Table C 2. . See Report of Committee on Jurisdiction and Venue of the Judicial Conference of the United States, U.S.Code Cong, and Admin.News, 8th Cong.2d Sess. 3114, 3123 (1958). . S.Rep. 1830, U.S.Code Cong, and Admin. News, 85th Cong.2d Sess. pp. 3099-3100 (1958). . The plaintiff in the instant ease demanded a jury trial in his complaint. . We cannot and do not consider the contents of JaconsM’s deposition in connection with the issue sub judice. We can consider the record only as it existed at the time the court below made the order dismissing the action. Of. Williams v. Murdoch, 330 F.2d 745 (3 Cir. 1964) , note 3 cited to the text. See Dictograph Products Co. v. Sonotone Corporation, 231 F.2d 867 (2 Cir. 1956), appeal dismissed by stipulation, 352 U.S. 883, 77 S.Ct. 104, 1 L.Ed.2d 82 (1956). . See Section 753(b), Title 28, U.S.C. The desirability of having a court reporter present at pretrial conferences and causing the reporter to record verbatim the proceedings is demonstrated by the instant case. In this connection compare United States v. Sigal, 341 F.2d 837 (3 Cir. 1965) . . Rule 75 (n), Eed.R.Civ.Proc., 28 U.S.O., provides: “Appeals When No Stenographic Report Was Made. In the event no stenographic report of the evidence or proceedings at a hearing or trial was made, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection, for use instead of a stenographic transcript. This statement shall be served on the appellee who may serve objections or propose amendments thereto within 10 days after service upon him. Thereupon the statement, with the objections or proposed amendments, shall be submitted to the district court for settlement and approval and as settled and approved shall be included by the clerk of the eourt in the record on appeal.” . Avisun and Pangborne cite two cases in support of their position. The first case, Murphy v. St. Paul Fire and Marine Insurance Company, 314 F.2d 30 (5 Cir. 1963), the recording discs of the court reporter had melted. It was impossible, therefore, for the Court of Appeals to pass on an alleged error in the trial judge’s charge on the doctrine of res ipsa loquitur. In the second case, Kayo Oil Company v. Sammons, 321 F.2d 729 (5 Cir. 1963), the alleged error concerned prejudicial statements allegedly made in the closing argument to the jury which were not recorded. It is obvious that if an error had occurred in either of the cited cases it would appear in a record prepared under Rule 75 (n). . See note 5, supra. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28? Answer with a number. Answer:
songer_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). Otis C. TOLBERT, Plaintiff-Appellant, v. Elliott LEIGHTON, Defendant-Appellee. No. 78-1038. United States Court of Appeals, Ninth Circuit. May 29, 1980. Otis C. Tolbert, in pro per. Elliott Leighton, in pro per. Before ELY, TRASK and CHOY, Circuit Judges. CHOY, Circuit Judge: The district court, finding that Tolbert had failed to prosecute his legal malpractice suit, dismissed the action with prejudice. See Fed.R.Civ.P. 41(b). We reverse. Tolbert’s only offense was failing to appear at a status conference set for a date less than seven months after the complaint was filed. The record indicates that Leigh-ton and his attorney did not appear at the conference either. (Indeed, they apparently have not participated in the case in any way either in the district court or here.) Sua sponte dismissals for failure to prosecute will be affirmed unless the district court abused its discretion. Link v. Wabash R.R., 370 U.S. 626, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962). In Link, the Supreme Court upheld such a dismissal for failure to attend a pretrial conference in a case already six years old, where there was evidence that the plaintiff “had been deliberately proceeding in dilatory fashion.” Id. But the Court made clear that it was not deciding “whether unexplained absence from a pretrial conference would alone justify a dismissal with prejudice if the record showed no other evidence of dilatoriness on the part of the plaintiff.” Id. at 634, 82 S.Ct. at 1391. The question that Link reserved is before us today. Other courts of appeals have held that such an absence, alone, does not justify the drastic sanction of dismissal. Moreno v. Collins, 362 F.2d 176 (7th Cir. 1966) (counsel missed status call three months after complaint filed); Meeker v. Rizley, 324 F.2d 269 (10th Cir. 1963) (out-of-state plaintiff, pro se, missed pretrial conference three months after complaint filed); accord, Flaksa v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir.) (counsel twice failed to appear at or send prepared substitute to pretrial conferences, and was guilty of other delay, in case less than a year old; dismissal was abuse of discretion), cert. denied, 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1968). We agree that it is an abuse of discretion to dismiss a plaintiff’s case for failure to prosecute where (1) the only evidence of dilatoriness is his or his attorney’s failure to attend a pretrial conference; (2) the court has not warned that failure to attend will create a risk of dismissal; and (3) the case is still “young.” Especially where one or more of these factors is present, before dismissing a case a district court must consider some of the less drastic alternative sanctions at its disposal. Anderson v. Air West, Inc., 542 F.2d 522, 525-26 (9th Cir. 1976); Von Poppenheim v. Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1053-54 (9th Cir. 1971), cert. denied, 404 U.S. 1039, 92 S.Ct. 715, 30 L.Ed.2d 731 (1972); see Industrial Building Materials, Inc. v. Interchemical Corp., 437 F.2d 1336, 1339 (9th Cir. 1970). There is no indication that the district court here did so; necessarily, then, the court failed to exercise any discretion in choosing among the alternatives. Nothing in this opinion should deter district courts from entering orders of dismissal if, after weighing the applicable law and policies, the facts of the case, and the alternatives to dismissal, they determine in the exercise of their sound discretion that dismissal is warranted. See generally United States v. Sumitomo Marine & Fire Insurance Co., 617 F.2d 1365 (9th Cir. 1980) (preclusion order, equivalent to dismissal, entered under Fed.R.Civ.P. 37(b) for violation of discovery orders); Citizens Utilities Co. v. AT&T, 595 F.2d 1171 (9th Cir.) (dismissal under Fed.R.Civ.P. 41(b)), cert. denied, 444 U.S. 931, 100 S.Ct. 273, 62 L.Ed.2d 188 (1979). Under the present case’s circumstances, however, dismissal for failure to prosecute was an abuse of discretion. REVERSED. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_appel1_1_2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. 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". REDEVELOPMENT AUTHORITY OF the CITY OF PHILADELPHIA, for the Use and Benefit of, Grinnell Fire Protection Systems Company, Inc., Appel-lee, v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Appellant. No. 81-1632. United States Court of Appeals, Third Circuit. Argued Nov. 12, 1981. Decided Dec. 3, 1981. Daniel Mungall, Jr. (argued), Stradley, Ronon, Stevens, & Young, Philadelphia, Pa., Michael J. Kearney, Jr., Weis & Weis, Pittsburgh, Pa., for appellant. David G. Klaber (argued), Thomas E. Bir-sic, Kirkpatrick, Lockhart, Johnson & Hutchinson, Pittsburgh, Pa., for appellee Grinnell Fire Protection Systems Company, Inc. Before SEITZ, Chief Judge, GARTH, Circuit Judge, and POLLAK, District Judge. Honorable Louis H. Poliak, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. OPINION OF THE COURT SEITZ, Chief Judge. This is an appeal by Fidelity and Deposit Company of Maryland (F&D) from a final judgment of the district court granting the motion of appellee Grinnell Fire Protection Systems Company, Inc. for summary judgment. Jurisdiction in the district court was based upon diversity of citizenship, and this court has jurisdiction under 28 U.S.C. § 1291 (1976). I. W.M. Anderson Company, as principal, and F&D, as surety, executed and delivered a Labor and Materials Payment Bond to the Redevelopment Authority of the City of Philadelphia (the Authority) in connection with a construction contract between Anderson and the Authority. The payment bond stated that “[i]n no event shall the surety be . . . subject to any suit, action or proceeding thereon that is instituted later than one year after the complete performance of said contract and final settlement thereof.” Grinnell was a subcontractor of Anderson. Anderson currently owes Grin-nell $30,227.12. All adjustments made in the contract price between the Authority and Anderson were agreed upon by August 1978 with the exception of three items that were ultimately contained in the last change order. This change order was signed by Anderson on October 14. All three items, however, had been submitted to and considered by the Authority prior to August, and the Authority apparently reached a judgment before October 14 about what it considered should be the adjustments to the contract price because of those three items. On September 25, Anderson wrote the Authority inquiring whether the Authority would agree to process Anderson’s account if Anderson withdrew certain other claims against the Authority. A schedule was submitted showing amounts and items in dispute, as well as amounts that the Authority had offered with respect to the three adjustments in the last change order. The letter indicates that Anderson was willing to accept the figures offered by the Authority, and they were ultimately encompassed in the change order. The Authority’s construction manager approved the last change order on November 17, and the architect approved it on November 28, 1978. On November 15, Anderson signed the Application and Certificate for Payment (the Certificate), which included the adjustments from the last change order. The architect approved the Certificate on December 20, and the Authority’s construction manager signed it on January 2, 1979. Grinnell instituted this action for the balance on October 5, 1979. The parties filed cross-motions for summary judgment. These motions posed the question whether Grinnell’s suit against F&D was timely brought. The question was two-fold: (1) whether the Pennsylvania statute of limitations barred the suit for reason that it had not been brought within a year from the date on which Grinnell concluded the provision of labor and material; and (2) whether the suit was barred because F&D had not been sued within the limitation period contained in the performance bond. Grinnell argues that “final settlement” in the payment bond’s limitation period refers to the date of execution by the architect of the Certificate. F&D asserts that “final settlement” refers to the time when the Authority determined the amount the contractor was entitled to receive under the contract and that this determination had been made by the Authority more than a year prior to the institution of the suit. The district court granted summary judgment in favor of Grinnell. F&D appeals. II. Under controlling Pennsylvania law, the parties may agree on appropriate limitation periods. See Insurance Co. of North Amer-ica v. Carnahan, 446 Pa. 48, 51, 284 A.2d 728, 729 (1971). F&D contends, however, that the contractual limitation provision, by its terms, was not intended to lengthen Pennsylvania’s statute of limitations, which F&D argues began running after Grinnell’s work was completed and accepted, and thus had run prior to the commencement of this action. F&D maintains that the language of the payment bond was not intended to change the period which Grinnell may have under statutory limitation provisions to bring suit, but merely establishes an additional prohibition against suits brought more than one year after performance and final settlement. The Pennsylvania statute of limitations measurement is clear, definite, and based upon factors known to and under the control of the supplier, and F&D argues that there is no need to distort the definition of final settlement to serve policy considerations. In a word, F&D’s contention is that final settlement is a term of art that does not have any particular significance to the Authority, to the obligors on the bond, or to the suppliers, and that under such circumstances, there can hardly be any meaningful effort to ascertain objective intent or purpose to be served by the clause. We reject F&D’s argument for two reasons. First, the terms of the payment bond only relieve F&D from liability on suits instituted more than one year after completion and final settlement of Anderson’s contract with the Authority. It is undisputed that the phrase “final settlement” is a term of art with origins in federal statutory and decisional law, and occurred when the Authority administratively determined the amount it considered to be due to Anderson upon the completion of the contract. We think that it is reasonable that the parties would agree to start the period of limitations from the date of that event, which Anderson, its surety, and its subcontractors are readily able to ascertain. Second, F&D’s construction would render the contractual limitation language a nullity. Its construction would determine the timeliness of suits on the payment bond strictly by reference to the limitation period set forth in Pennsylvania law, thereby making the contractual limitation provision superfluous. III. F&D’s primary contention is that the district court incorrectly found that the contractual limitation period in the payment bond began when the architect determined the amount due Anderson (December 20, 1978) or when an Authority representative approved the Certificate (January 2, 1979). F&D raises three objections to this determination: (1) the stipulated record permits a conclusion on the basis of uncon-troverted facts that the Authority’s determination of the amount due Anderson had been made more than a year prior to the institution of this action; (2) even if such a conclusion is not permissible on this record, summary judgment is impermissible because the record is not sufficiently complete to support a determination as to when the Authority’s approval was made; and (3) in any event, the conclusion of the Court below was not supported by the record. The basis of these objections is F&D’s contention that the facts relating to the time of “final settlement” were not stipulated and cannot be obtained from documents. The information that F&D argues should have been before the district court includes evidence on how the Authority administratively determines the amount considered by it to be due to the contractor. However, F&D’s arguments are irrelevant, and summary judgment was correct, if the district court correctly concluded that the architect possessed the authority to determine the amount due Anderson, because then evidence concerning the Authority’s administrative procedures is immaterial. Both parties agree that the district court correctly concluded that the principles of Illinois Surety Co. v. United States, 240 U.S. 214, 36 S.Ct. 321, 60 L.Ed. 609 (1916), apply in interpreting the term “final settlement”. See Commonwealth v. Globe Indemnity Co., 312 Pa. 244, 247-48, 167 A. 576, 577 (1933) (concluding after citing a number of federal cases, including Illinois Surety, “that ‘final settlement’ refers to the computation by the proper governmental authority of the amount which is finally owing under the contract”). Thus, there are two issues before us: (1) under Illinois Surety, does the architect possess the authority to determine finally and administratively the amount due Anderson? and (2) if so, is there any dispute as to a material fact that precluded the district court from establishing December 20, 1978 as the date of final settlement? Illinois Surety involved a suit brought under a federal statute by laborers upon the payment bond of a public contractor building a post office. At issue was whether the plaintiffs commenced suit more than six months but less than one year after the date of complete performance and final settlement of the contract between the principal contractor and the. government. In ascertaining the proper date of final settlement, the United States Supreme Court said: The pivotal words are not “final payment,” but “final settlement,” and in view of the significance of the latter term in administrative practice, it is hardly likely that it would have been used had it been intended to denote payment. We think that the words “final settlement” in the [federal statute] had reference to the time of this determination when, so far as the government was concerned, the amount which it was finally bound to pay or entitled to receive was fixed administratively by the proper authority. It is manifestly of the utmost importance that there should be no uncertainty in the time from which the six months’ period runs. The time of the final administrative determination of the amount due is a definite time, fixed by public record and readily ascertained. As an administrative matter, it does not depend upon the consent or agreement of the other party to the contract or . account. The authority to make it may not be suspended, or held in abeyance, by refusal to agree. Whether the amount so fixed is due, in law and fact, undoubtedly remains a question to be adjudicated, if properly raised in judicial proceedings, but this does not affect the running of the time for bringing action under the statutory provision. Id. at 218-19, 221, 36 S.Ct. at 322-23. Accord, Globe Indemnity Co. v. United States, 291 U.S. 476, 54 S.Ct. 499, 78 L.Ed. 924 (1933). The Illinois Surety Court interpreted final settlement as a definite, ministerial act performed in accordance with established administrative procedures by the person authorized to determine amounts due the contractor. The Court expressly stated that the Government’s administrative determination of the amount did not depend upon the agreement of the contractor or upon whether that determination was ultimately correct. See 240 U.S. at 221, 36 S.Ct. at 323-24. It is the administrative determination alone that constitutes final settlement. The Court also recognized that the date of final settlement must be a clear and readily ascertainable event to ensure the protection of subcontractors’ rights through adequate notice. The subcontractor typically has no direct contractual or other relationship with the owner and is, therefore, not generally privy to the status of negotiations and communications between the principal contractor and the owner. Having a clear date of final settlement helps to achieve one of the principal objectives to be accomplished through the posting of a payment bond— the financial protection of subcontractors, who are typically excluded from the protections offered by local mechanic’s lien laws. See Visor Builders, Inc. v. Devon E. Tran-ter, Inc., 470 F.Supp. 911, 919 (M.D.Pa. 1978). In this case, the parties did not stipulate to a description of the procedure followed by the Authority to determine the amount due Anderson on the completion of the work. The administrative procedure by which the architect approves the work, however, is set forth in subparagraph 9.7.2 of the American Institute of Architect’s (A.I.A.’s) General Conditions, which were incorporated into the contract. Subpara-graph 9.7.2 provides: Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Architect will promptly make such inspection and, when he finds the Work acceptable under the Contract Documents and the Contract fully performed, he will promptly issue a final Certificate for Payment stating that to the best of his knowledge, information and belief, and on the basis of his observations and inspections, the Work has been completed in accordance with the terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor, and noted in said Final Certificate, is due and payable. For purposes of judging the appropriateness of summary judgment, we must assume that the Authority had made its administrative determination as to what it would do with respect to the Anderson claims prior to September 25, 1978. It does not follow, however, that a final settlement as that term is used in the contract had been made by that date. We believe that the procedures set forth in the contract, especially subparagraph 9.7.2, fulfill completely and precisely the requirements for final settlement enunciated by the Court in Illinois Surety. The contract expressly delegates the authority to determine the amount of payments due Anderson under the contract: “The Architect shall determine the amounts owing to [Anderson] and shall issue Certificates of Payment in such amounts.” Subparagraph 2.2.9 expressly provides that “[t]he Architect shall conduct inspections to determine the Dates of Substantial Completion and Final Completion . . . and shall issue a final Certificate for Payment.” The architect is the representative of the Authority formally charged with the administrative responsibility and authority regarding final completion and the final amount due the contractor. Furthermore, the documentation provided by the Certificate satisfies the requirement that final settlement be at a “definite time, fixed by public record and readily ascertainable.” Illinois Surety, 240 U.S. at 221, 36 S.Ct. at 324. While agreeing that Illinois Surety pronounces the controlling rule of law, F&D seeks to distinguish the facts of Illinois Surety on two grounds. In Illinois Surety, the Secretary of the Treasury was in charge of the construction of a post office, and an architect exercised general supervision over the project. The Secretary was authorized to remit the whole or any part of the contract amount to the contractor. On the day that the architect was advised of the completion of the work, he recommended to the Secretary that a voucher should be issued to the contractor for a stated amount. On that same day, the Secretary approved this recommendation. The Supreme Court held that final settlement within the meaning of the statute occurred on that day. F&D’s first argument is that the role of the Certificate is far different in this case than any documentation issued in Illinois Surety: the Certificate is used here to obtain progress payments and then the final payment, and the Authority had decided long before its execution the amount it considered to be due Anderson. F&D also argues that the architect here did not have the authority to make the administrative determination of the kind and character contemplated by the Court, primarily relying on the fact that the Authority deleted from the contract much of the A.I.A.’s General and Supplementary Conditions that give the architect broad powers in the administration of a contract. We find little significance, however, in these distinctions. Assuming, as we must, that the architect’s role in approving the Certificate and thus making the final determination was minor and purely ministerial, we believe that it was necessary for final settlement. Second, F&D argues that neither Illinois Surety nor Globe Indemnity suggests that a contractual provision has any bearing on the time of final settlement. Those cases focus on the internal administrative governmental process by which the government made its determination as to the balance it considered due under the contract. We believe, however, that, although the administrative procedures necessary for determining the amounts due could have been defined by reference to administrative practice, here they were defined by the contract. Thus, we hold that the architect’s execution of the Certificate satisfies Illinois Surety’s requirement for final settlement. We also conclude that the contractual procedures in this case constitute the sole administrative procedure to be followed in making a final settlement. We reach this conclusion for two reasons. First, under the contract, the architect, not the Engineering Department of the Authority, was the representative of the Authority empowered, at least formally, to determine final completion and the amounts due the contractor, including the final amounts. F&D argues that the substance of the procedure described in subparagraph 9.7.2 was not followed in this case. Specifically, change orders with respect to additions to or deletions from the contract were prepared originally by the Engineering Department of the Authority and then submitted to the contractor for execution. The Authority’s representatives determined the fact of completion and the amount payable to Anderson without participation of the architect. Presumably, F&D is arguing from this fact that the architect played an insignificant role. However, we have already determined that the ministerial nature of the architect’s role is not insignificant and that his approval of the Certificate is necessary for final settlement. Second, F&D’s argument that final settlement had been made before September 25, 1978 fails to persuade us that a date could be discovered before the Certificate is approved by the architect which is a “definite time, fixed by public record and readily ascertainable” as required by Illinois Surety. The ad hoc procedure suggested by F&D effectively removes the requisite elements of reasonable certainty and finality from the decisionmaking process of the Authority and, therefore, deprives subcontractors and materialmen of any reasonable notice as to when the limitation period begins. In effect, F&D is asking this Court to deprive subcontractors such as Grinnell of the very bond protection that the Authority sought to provide for them and for which F&D was compensated. Its argument implies that Grinnell should be omniscient— that Grinnell should be able to sense when a decision is reached in the mind of a public official, perhaps not even an official named in the governing contract, or at a private meeting of public officials, and act accordingly at its peril. Such a position is not only contrary to law and fundamental fairness, but it defeats the strong public policy of protecting subcontractors on public projects. Moreover, the position advocated by F&D would encourage subcontractors to file suit against corporate sureties as soon as the subcontractors complete work on a site to be certain that they would not be foreclosed from recovery by an unknown and unascertainable “decision.” A grant of summary judgment should be upheld if it is apparent that no genuine issue of fact exists under the proper legal interpretation or analysis. See Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 848 (3d Cir. 1974). Given the undisputed contractual terms present in this case, this standard is satisfied here, because no genuine issue of material fact exists. It is undisputed that Anderson did not submit its subparagraph 9.7.2 Certificate to the Authority until November 15, 1978 and that the architect approved and executed Anderson’s Certificate on December 20. Since Grinnell’s suit was instituted on October 5, 1979, within one year of the approval and execution date of Anderson’s Certificate, its action was timely filed, and summary judgment for Grinnell was appropriate. IV. The order of the district court granting Grinnell’s motion for summary judgment will be affirmed. . F&D did not participate in the selection of the bond form. The Authority took the language for its payment bond from the federal and state precedent where the clause “complete performance of said contract and final settlement thereof’ had come to have an accepted meaning. It took subparagraph 9.7.2 from the American Institute of Architect’s (A.I.A.’s) form book. F&D asks us to take judicial notice of the fact that the one-year limitation period provided in the A.I.A.’s suggested bond form is measured from the date of the last work by the contractor. F&D thus argues that subpara-graph 9.7.2 should not be used as a means for interpreting the payment bond clause taken from an entirely different context. We believe, however, that it is irrelevant to our review of the district court’s decision in this case which bond form the A.I.A. suggests. . F&D argues that a fair reading of both Illinois Surety and Globe Indemnity indicates that the Court’s statements concerning readily ascertainable dates were descriptive observations made by the Court with respect to the event which it determined to be the final settlement and were not necessary criteria for identifying the event. We disagree. The language of those cases indicates that, in establishing a date for final settlement, the Court chose one that was readily ascertainable. See, e.g., Illinois Surety, 240 U.S. at 221, 36 S.Ct. at 324 (quoted supra). In Globe Indemnity, the Court, in foreclosing a supplier’s action because it had improperly assumed that the determination of the General Accounting Office rather than the Department of Interior was the time of final settlement for limitation purposes, stated: The policy of the statute to afford protection to the interests of laborers and material-men would not be effected unless .. . the date of final settlement which fixes the time within which suit is permitted could be ascertained with reasonable certainty and finality. A determination, made and recorded in accordance with established administrative practice by the administrative officer or department having the contract in charge, that the contract has been completed and the final payment is due, fulfills these requirements. 291 U.S. at 483, 54 S.Ct. at 501 (citations omitted). . F&D argues that the contention that the date of execution by the architect of the Certificate is the date of final settlement is subject to the same infirmity which led the Court in Illinois Surety to reject “final payment” as the equivalent of final settlement: The terms are different. It is certainly true that the parties could have used a more descriptive term than they did to show the intention that the one-year period start from the date of the Certificate. We are not persuaded, however, that the parties’ failure to use more descriptive language undermines our interpretation of the words that they chose. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_initiate	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. GENERAL ELECTRIC COMPANY, General Electric Environmental Services, Inc., Plaintiffs-Appellees, v. SARGENT & LUNDY, Lowell E. Ackmann, William A. Chittenden, David C. McClintock, Wilbert G. Hegener, Richard I. Gavin, George C. Kuhlman, Eugene V. Abraham, Robert F. Scheibel, Richard X. French, Donald L. Leone, Robert J. Mazza, John M. McLaughlin, Henry M. Sroka, Kenneth T. Kostal, John A. Werhane, Carment M. Chiappetta, Paul L. Wattelet, Donald E. Wolniak, Defendants-Appellants. Nos. 89-5291, 89-5738. United States Court of Appeals, Sixth Circuit. Argued Jan. 30, 1990. Decided Oct. 24, 1990. Rehearing and Rehearing En Banc Denied Dec. 14, 1990. Charles S. Cassis, Victor B. Maddox (argued), John L. Dotson, Brown, Todd & Heyburn, Louisville, Ky., for General Elec. Co. Charles S. Cassis, Victor B. Maddox, Louisville, Ky., for General Elec. Environmental Services, Inc. James D. Ishmael, Jr., Wyatt, Tarrant & Combs, Lexington, Ky., Steven P. Handler (argued), James E. Betke, Lawrence E. Za-binski, Jane M. Simon, McDermott, Will & Emery, Chicago, Ill., for defendants-appellants. Before KEITH and KRUPANSKY, Circuit Judges, and ENGEL, Senior Circuit Judge. ENGEL, Senior Circuit Judge. This diversity action controlled by Kentucky law is based upon a tort generally known as “injurious falsehood.” Sargent & Lundy, an engineering firm, and its individual partners appeal a judgment entered upon a jury verdict awarding $500,000 plus interest and costs to General Electric Company and General Electric Environmental Services, Inc. (“GEESI”) on their claims of injurious falsehood. In the district court, General Electric and GEESI essentially claimed that a third party, Kentucky Utilities Company, filed suit against them as a result of misrepresentations by Sargent & Lundy which blamed them for damage to Kentucky Utilities’ power-generating facilities. General Electric and GEESI, a wholly owned subsidiary of General Electric, sought punitive damages and compensatory damages to recover the cost of defending against Kentucky Utilities’ suit allegedly brought in reliance on Sargent & Lun-dy’s false statements. Sargent & Lundy primarily argues on appeal that the statements were absolutely privileged, or immune, since they were made preliminary to a judicial proceeding. Sargent & Lundy contends that the district court therefore erred in denying its pre-trial motion to exclude the evidence. The controlling issue in this appeal is whether Kentucky applies an absolute immunity from suit to statements made preliminary to but in anticipation of litigation. We hold that it does and that it applies under the facts of this litigation. Accordingly, we reverse. I. On January 27, 1976, Sargent & Lundy, the principal architect-engineer for Kentucky Utilities since 1910, entered into an agreement with Kentucky Utilities. Sargent & Lundy agreed to furnish all architectural and engineering designs, studies, estimates, specifications, and contracts to put in operation electrostatic dust precip-itators for Units 3 and 4 of Kentucky Utilities’ coal power-generating station in Ghent, Kentucky. Under this agreement, Sargent & Lundy recommended that the Ghent facilities use hot-side electrostatic dust precipitators as the system for controlling the pollution produced during the generation of power. A precipitator removes fly ash or particulate matter from gas produced from burning coal. Impure flue gas flows from the boiler through inlet ductwork to the precipitator where the dust or fly ash is removed. The “clean” gas then flows through outlet ductwork to the chimney. Kentucky Utilities also contracted with the Buell Division of Envirotech Corporation to supply the electrostatic precipitators and to perform model air flow studies of the proposed facilities. Sargent & Lundy prepared the specifications and the contracts for the design, development, manufacture, and delivery of the precipitators from Buell and also designed the inlet and outlet ductwork associated with these pre-cipitators. In July 1978, prior to the construction of the facility, Buell performed the model study known as the “Buell Test.” The study, which used a scale plexiglass model of the precipitator and the inlet and outlet ductwork, was conducted largely to demonstrate that the ductwork designed by Sargent & Lundy would provide uniform gas flow distribution. Rather than using fly ash, Buell introduced cork dust into the model precipitator and the associated duct-work to simulate the conditions of an actual unit. At that time, Buell and Sargent & Lundy were satisfied with the test results. In April 1981, after the model tests were conducted and Unit 3 was manufactured and in the testing phase, General Electric purchased the Buell Division of Envirotech. General Electric, pursuant to a letter agreement, accepted responsibility for certain obligations to Kentucky Utilities with respect to the Ghent project. Kentucky Utilities permitted the arrangement with the understanding that Envirotech would remain liable for the project along with General Electric. General Electric then incorporated the Buell Division into GEESI, a wholly-owned subsidiary (collectively, “General Electric”). In May 1981, Kentucky Utilities placed Unit 3 of the coal-burning plant in operation. By September 1981, however, approximately three to five feet of fly ash had accumulated in the inlet ductwork of Unit 3, which forced a shutdown. Tears and cracks were observed in the metal inlet and outlet ductwork of the precipitator as well as in the precipitator itself. The repair and redesign of Unit 3 and Unit 4 cost Kentucky Utilities approximately $6 million. In September 1981, Sargent & Lundy, at the request of Kentucky Utilities, undertook to investigate the cause of the damage. Kentucky Utilities and Sargent & Lundy also retained Boyle Laboratories in October 1981 to perform further model studies designed to determine possible remedies. In late December 1981, after reviewing the results of tests conducted by Boyle Laboratories, Sargent & Lundy met with Kentucky Utilities in January 1982 to present a report outlining the cause of the damage. Sargent & Lundy reported that an unexpected buildup of fly ash in the ductwork acted as an insulator and caused temperature differentials in the ductwork. Sargent & Lundy concluded that the duct-work failed because the thermal stresses had exceeded design limits. Although Sargent & Lundy admitted that it had not designed for these temperature differentials, General Electric states that “Sargent & Lundy told Kentucky Utilities that a host of factors had united to cause [the] damage including Sargent & Lundy’s design deficiencies and that although Kentucky Utilities had expended several million' dollars on the repair and redesign of the Ghent facilities, significant backcharges would not be possible.” In August 1982, Kentucky Utilities informed Sargent & Lundy that it was considering litigation against Sargent & Lun-dy, GEESI and Envirotech to recover the costs of the repair and redesign of the Ghent facilities. Kentucky Utilities then requested from Sargent & Lundy a waiver of the statute of limitations, which Kentucky Utilities believed might expire in September 1982. Sargent & Lundy executed the waiver on August 26, 1982. General Electric alleges that at this point Sargent & Lundy began to “head off a possible lawsuit” by convincing Kentucky Utilities management that Sargent & Lundy’s work was done in accordance with generally accepted engineering principles, but that the work of the Buell Division of Envirotech was negligent. On October 27, 1982, Sargent & Lundy made a second presentation to Kentucky Utilities concerning the cause of the damage and responsibility for the repairs to the Ghent facilities. General Electric claims Sargent & Lundy’s presentation differed dramatically from the earlier January presentation, and that rather than accepting responsibility for the damage, Sargent & Lundy blamed Envirotech. General Electric argues that Sargent & Lundy accomplished the deception by concealing the differences between the Buell Test conducted prior to the construction of the Ghent facilities and the Boyle Test designed to determine what went wrong with the constructed facilities. General Electric claims that Sargent & Lundy represented that the subsequent Boyle Test had predicted that fly ash would accumulate in the inlet ductwork and that the Buell Test was negligently conducted since it did not similarly predict this result. General Electric alleges that Sargent & Lundy therefore misled Kentucky Utilities by not informing them that the Boyle model had been “forced” to accumulate ash so that remedies could be tested, unlike the pre-construction Buell Test. Sargent & Lundy denies that any false statements were made, and contends that Kentucky Utilities was aware of the differences in the two model studies. General Electric states, however, that Kentucky Utilities relied upon Sargent & Lundy for the interpretation of the two model studies and that Sargent & Lundy intentionally misrepresented that Envirotech and GEESI were liable for the damages. In May 1984, Kentucky Utilities retained another architect and engineering firm, Black & Yeatch, to review the design of the precipitators and ductwork. Although the August report was critical of both Sargent & Lundy and Envirotech, the parties appear to agree that Kentucky Utilities’ decision to sue pre-dated the report. In August 1984, Kentucky Utilities filed suit against General Electric, GEESI, Envi-rotech, and Sargent & Lundy seeking recovery of the $6 million in repairs. General Electric and GEESI cross-claimed against Sargent & Lundy as the designer of the facility. Through discovery, Kentucky Utilities allegedly learned that Sargent & Lundy had misrepresented who was at fault for the damage to the facility and that Sargent & Lundy was solely responsible. On February 23, 1988, Kentucky Utilities voluntarily dismissed its claims with prejudice against General Electric, GEESI, and Envirotech. On March 3, 1988, the district court granted Kentucky Utilities’ motion to amend its complaint to assert a breach of fiduciary duty claim against Sargent & Lundy. The district court also granted motions by General Electric and GEESI to amend their cross-claims against Sargent & Lundy to plead their injurious falsehood theories. Shortly before trial, Sargent & Lundy settled with Kentucky Utilities and Envirotech. On December 2, 1988, several days before the trial on General Electric’s cross-claim, Sargent & Lundy filed a motion in limine to exclude documents and statements to Kentucky Utilities after August 26, 1982, the date on which Sargent & Lundy provided Kentucky Utilities with a statute of limitations waiver. Sargent & Lundy contended that statements in connection with its report and investigation at Kentucky Utilities’ request were absolutely privileged since they were made in contemplation of litigation. The district court denied the motion, concluding that the statements were not privileged and that even if they initially were, they lost privileged status because they were made in furtherance of a fraud. The district court also concluded that the motion actually was a motion for judgment on the pleadings, which the court held was untimely. The jury trial began on December 7, 1988. On December 19, 1988, the jury returned its verdict awarding General Electric and GEESI $500,000, plus interest and costs. On February 9, 1989, the district court denied Sargent & Lundy’s motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. II. On appeal, Sargent & Lundy alleges numerous errors by the district court. First, Sargent & Lundy alleges that the district court erred in denying its pre-trial motion in limine to exclude testimony and documents relating to Sargent & Lundy’s post-August 26, 1982 investigation. Second, Sargent & Lundy contends that the district court erred in denying the JNOV since there is insufficient evidence from which a jury could reasonably conclude (a) that Sargent & Lundy made false statements about General Electric and GEESI; (b) that Kentucky Utilities relied on any false statements in bringing suit against General Electric and GEESI; and (c) that the allegations in Kentucky Utilities’ complaint were all related to Sargent & Lundy’s alleged false statements. Third, Sargent & Lundy argues that the cross-claims were barred by statute of limitations. Fourth, Sargent & Lundy argues that the district court erred in refusing to instruct the jury (a) that General Electric was required to prove the elements of its injurious falsehood claim by clear and convincing evidence; (b) that General Electric's injurious falsehood claim was subject to a statute of limitations defense; (c) that General Electric had to prove that Kentucky Utilities, in filing suit against General Electric, relied upon false statements made by Sargent & Lundy about General Electric; and (d) that a verdict against Sargent & Lundy required a finding that the allegations in Kentucky Utilities’ complaint against General Electric were all related to Sargent & Lundy’s alleged false statements about General Electric. Fifth, Sargent & Lundy claims that the district court denied it a fair trial by refusing to allow Sargent & Lundy to depose witnesses or obtain documents that directly related to the trial testimony of key General Electric witnesses. Finally, Sargent & Lundy argues that General Electric’s bill of costs was untimely and they further object to particular costs. III. Injurious falsehood generally “consists] of the publication of matter derogatory to the plaintiff's title to his property, or its quality, or to his business in general ... of a kind calculated to prevent others from dealing with him, or otherwise to interfere with his relations with others to his disadvantage.” W. Keeton, Prosser and Keeton on the Law of Torts § 128, at 967 (5th ed. 1984) (footnote omitted). The Restatement further describes this tort: § 623A. Liability for Publication of Injurious Falsehood — General Principle One who publishes a false statement harmful to the interests of another is subject to liability for pecuniary loss resulting to the other if (a) he intends for publication of the statement to result in harm to interests of the other having a pecuniary value, or either recognizes or should recognize that it is likely to do so, and (b) he knows that the statement is false or acts in reckless disregard of its truth or falsity. Restatement (Second) of Torts § 623A, at 334 (1977). This ill-defined tort is related to various other torts such as defamation, libel, trade libel, slander, slander of title, and interference with commercial or economic relations. See W. Keeton, Law of Torts § 128, at 962-64; cf. Gray v. Central Bank & Trust Co., 562 S.W.2d 656 (Ky.App.1978). One commentator has indicated that “the injurious falsehood claim should be regarded merely as one form of intentional interference with economic relations rather than as a branch of the more general harm to reputation involved in libel and slander, even though, under the impact of Constitutional decisions, the rules governing the two torts may often prove to be much the same.” W. Keeton, Law of Torts § 128, at 964 (footnotes omitted). This court recently stated that special damages in the form of pecuniary loss must be pleaded and proved in an injurious falsehood suit. See Falls v. Sporting News Pub. Co., 834 F.2d 611, 617 (6th Cir.1987); see also Restatement § 623A comment f, at 340. The district court concluded, upon a review of Kentucky law, that Kentucky would in fact recognize such a tort and denied Sargent & Lundy’s motion to dismiss. The district court’s decision partially was based upon Kentucky’s recognition of related torts, Kentucky’s reliance upon the Restatement as authority, and a Kentucky court’s quotation of Prosser, which identified an injurious falsehood tort. See Gray v. Central Bank & Trust Co., 562 S.W.2d at 657 (concluding that an absolute privilege conferred by statute to members of city legislative body applied equally to actions founded upon defamation or the tort of interference with prospective economic relations). The issue of whether Kentucky would recognize such a tort has not been raised in this appeal, and we have no opportunity to review this conclusion. The ultimately dispositive issue in this appeal is whether the district court erred in denying Sargent & Lundy’s motion in li-mine to exclude post-August 1982 statements made in connection with the investigation of the damage to the Ghent units. In deciding this question, we follow the law of Kentucky as announced by that state’s supreme court. See Commissioner v. Estate of Bosch, 387 U.S. 456, 462-66, 87 S.Ct. 1776, 1781-83, 18 L.Ed.2d 886 (1967); Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Where “the highest court has not spoken, the federal court must ascertain from all available data what the state law is and apply it.” Bailey v. V & O Press Co., Inc., 770 F.2d 601, 604 (6th Cir.1985). The “data” considered by federal courts when the highest state court has not spoken include “relevant dicta from the state supreme court, decisional law of appellate courts, restatements of law, law review commentaries, and the ‘majority rule’ among other states.” Angelotta v. American Broadcasting Corp., 820 F.2d 806, 807 (6th Cir.1987) (citing Bailey, 770 F.2d at 604); see also 19 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 4507 (2nd ed. 1982). The parties do not dispute that Kentucky courts have not considered whether an absolute privilege applies to statements made preliminary to a judicial proceeding. Our review of this issue begins with the Restatement (Second) of Torts, particularly since Kentucky courts frequently refer to this resource for guidance. See, e.g., Yancey v. Hamilton, 786 S.W.2d 854, 857 (Ky.1989) (specifically adopting Restatement § 566, and that section’s distinction between “pure” opinion and “mixed” expressions of opinion in the context of a libel suit); McCall v. Courier-Journal & Louisville Times, 623 S.W.2d 882, 887 (Ky. 1981) (in a suit for libel and invasion of privacy, the court adopted the false light aspect of the tort of invasion of privacy reflected in Restatement § 652A); see also Prewitt v. Sexton, 111 S.W.2d 891, 894 (Ky.1989) (relying extensively on Chapter 30 of the Restatement, entitled “Wrongful Use of Civil Proceedings”). See generally Garrison v. Jervis B. Webb Co., 583 F.2d 258, 262 n. 6 (6th Cir.1978) (“It is appropriate for federal courts in diversity cases to look to the Restatements when there is no controlling state law on point [and] when the state has indicated, as has Kentucky, that it considers the Restatements to be persuasive authority.”) (citations to Kentucky courts omitted). The Restatement takes the position that the rules on absolute privilege to publish defamatory matter apply to the publication of an injurious falsehood. Restatement § 635, at 361. In other words, the “circumstances under which there is an absolute privilege to publish an injurious falsehood are in all respects the same as those under which there is an absolute privilege to publish matter that is personally defamatory.” Id. § 635 comment a, at 362. The absolute privileges in the context of defamation are based chiefly upon a recognition of the necessity that certain persons, because of their special position or status, should be as free as possible from fear that their actions in that position might have an adverse effect upon their own personal interests. To accomplish this, it is necessary for them to be protected not only from civil liability but also from the danger of even an unsuccessful civil action. To this end, it is necessary that the propriety of their conduct not be inquired into indirectly by either court or jury in civil proceedings brought against them for misconduct in their position. Therefore the privilege, or immunity, is absolute and the protection that it affords is complete. It is not conditioned upon the honest and reasonable belief that the defamatory matter is true or upon the absence of ill will on the part of the actor. ... Restatement, introductory note to “Title B. Absolute Privilege Irrespective of Consent,” at 243. The protection of the absolute privilege to publish defamatory material may be conferred upon judicial officers, attorneys, parties, witnesses, and jurors, among others. See Restatement §§ 585-89, at 244-51. Kentucky courts have long recognized that statements in judicial proceedings, if relevant to the issues involved, are absolutely privileged, even though it may be claimed that they are false and alleged with malice. See, e.g., Massengale v. Lester, 403 S.W.2d 701, 702 (Ky.App.1966); Schmitt v. Mann, 291 Ky. 80, 163 S.W.2d 281, 283-84 (App.1942); Lisanby v. Illinois Cent. R. Co., 209 Ky. 325, 272 S.W. 753, 754 (App.1925). General Electric contends, however, that Kentucky would not recognize an absolute privilege for communications 'preliminary to judicial proceedings, or prior to the initiation of suit, an issue the Kentucky courts have not had the opportunity to address. General Electric’s argument is not well taken. Under the Restatement, a party’s communications are absolutely privileged to the extent that they are made preliminary to a judicial proceeding and in contemplation of litigation. Section 587 provides that A party to a private litigation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding. Restatement § 587, at 248 (emphasis supplied). The privilege for communications preliminary to a proposed judicial proceeding, however, applies only “when the communication has some relation to a proceeding that is contemplated in good faith and under serious consideration. The bare possibility that the proceeding might be instituted is not to be used as a cloak to provide immunity for defamation when the possibility is not seriously considered.” Restatement § 587 comment e, at 250. The limitation of the privilege is similarly stated in the context of communications by other potential participants in the judicial proceedings, including witnesses. See, e.g., Restatement § 588 comment e, at 251. Kentucky courts in fact have cited provisions of the original Restatement which recognize the application of the absolute privilege in the context of communications preliminary to a judicial proceeding. See Massengale, 403 S.W.2d at 702 (citing Restatement of Torts § 587, covering parties); Schmitt, 163 S.W.2d at 284 (quoting Restatement of Torts § 588, covering witnesses). In Schmitt, the Kentucky appellate court cited with approval a section of the original Restatement which recognized a witness’ absolute privilege to publish defamatory matter in communications preliminary to a proposed judicial proceeding: The doctrine of privileged communications rests upon public policy “which looks to the free and unfettered administration of justice, though, as an incidental result, it may, in some instances, afford an immunity to the evil-disposed and malignant slanderer.” ... In the American Law Institute’s Restatement of the Law of Torts, volume 3, section 588, the rule is stated: “A witness is absolutely privileged to publish false and defamatory matter of another in communications preliminary to a proposed judicial proceeding and as a part of a judicial proceeding in which he is testifying, if it has some relation thereto.” Schmitt, 163 S.W.2d at 284. Although Schmitt and Massengale involved the application of the privilege to communications made in judicial proceedings by witnesses and parties, respectively, the tacit endorsement of the privilege as applied to communications preliminary to a judicial proceeding is persuasive. See generally W. Haynes, Kentucky Jurisprudence, Torts § 8-7, at 185-86 (1987) (recognizing that the view expressed by the Restatement on the absolute privilege is “in harmony with the Kentucky view”). From all of this, we must conclude that Kentucky would in the proper case apply the absolute privilege to communications by a party made preliminary to a seriously considered judicial proceeding. The conclusion is informed by Kentucky’s historical acceptance of the absolute privilege, Kentucky’s citation to provisions of the Restatement which recognize that the privilege applies to communications preliminary to a proposed judicial proceeding, and the persuasiveness of the Restatement itself as an indicator of the “majority rule.” Having concluded that Kentucky recognizes the privilege, the question then is whether the privilege applies in this case. The question turns upon a two-part analysis. First, the occasion of the communication must be examined to determine if the statement was made “preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of a judicial proceeding.” Restatement § 587, at 248. Second, a court must evaluate the content of the statement to determine if it “has some relation to a proceeding that is contemplated in good faith and under serious consideration.” Restatement § 587 comments c and e, at 249-50. See generally, Asay v. Hallmark Cards, Inc., 594 F.2d 692, 697 (8th Cir.1979). While Sargent & Lundy contends that all of its statements to Kentucky Utilities after the execution of the statute of limitations waiver are privileged, it most vigorously argues that the privilege applies to the statements at the October 1982 meeting. General Electric does not seriously dispute that Sargent & Lundy’s statements at the October 1982 meeting were made when Kentucky Utilities was considering litigation. The company acknowledges as much in its brief: “In August, 1982 ... Kentucky Utilities indicated to Sargent & Lundy that it was considering litigation against Sargent & Lundy and against GEESI and Envirotech to recover the costs of the repair and redesign of the Ghent facilities.” General Electric further admits that Kentucky Utilities asked Sargent & Lundy to execute a statute of limitations waiver several months earlier, and that Sargent & Lundy actually executed that waiver in late August, 1982. We therefore have little difficulty in concluding that the statements post-dating the statute of limitations waiver were “communications preliminary to a proposed judicial proceeding” which was “under serious consideration.” Restatement (Second) of Torts § 587 and comment e, at 250. Kentucky Utilities specifically requested that Sargent & Lundy investigate what went wrong at the Ghent facilities so that it could determine liability. These statements clearly were made in contemplation of a lawsuit. General Electric also admits that Sargent & Lundy’s statements, particularly at the October 1982 meeting, were relevant to the contemplated judicial proceeding. Scott Wendelsdorf, an attorney for Kentucky Utilities, testified that he extensively relied upon the October statements by Sargent & Lundy to Kentucky Utilities to prepare the complaint against General Electric. Further, General Electric’s entire case is pinned upon the argument that Sargent & Lundy’s statements were a substantial factor in causing the judicial proceeding. If we believe Sargent & Lundy, then the statements were intended simply to apportion blame for the damage and to advise Kentucky Utilities in its litigation strategy. If we believe General Electric, Sargent & Lundy sought to avoid liability and, of necessity, place the blame upon the other contractors. In either case, the statements have “some relation” to the contemplated judicial proceeding. See Restatement § 587 comment e, at 250. These statements would therefore appear to fall easily within Restatement § 587 and the scope of the absolute privilege as applied to parties. Without directly disputing that the statements were made preliminary to a proposed judicial proceeding, the district court nevertheless held that the privilege did not apply. In so holding, the district court sought to distinguish Western Technologies v. Sverdrup & Parcel, 154 Ariz. 1, 739 P.2d 1318 (1986), relied upon by Sargent & Lundy to demonstrate the application of the privilege. In Western Technologies, Sverdrup successfully raised an absolute privilege in defense of plaintiffs injurious falsehood suit. Sverdrup, an engineering firm, was hired by the Arizona Board of Regents to determine who was at fault for structural damage to a newly expanded stadium. Sverdrup’s report partially blamed an engineering firm, Western Technologies, which had been retained by the Board to perform engineering testing prior to the expansions on the stadium. Western Technologies later sued Sverdrup claiming, among other things, that Sverdrup’s report to the Board amounted to fraudulent and negligent misrepresentation and intentional interference with prospective contractual relations. 154 Ariz. at 3, 739 P.2d at 1320. In affirming the dismissal of the injurious falsehood claim, the Arizona Court of Appeals concluded that Sverdrup’s statements were absolutely privileged since the Board was seriously contemplating litigation: Sverdrup made its statements while the Board was seriously contemplating litigation. Furthermore, because the Board could not assert Western’s liability until it obtained an expert assessment of Western’s fault, Sverdrup’s reports constituted “a necessary step in taking legal action.” [W. Keeton, Law of Torts § 114, at 820.] Finally, the Board actually relied upon the reports in bringing suit. Consequently, Sverdrup’s reports and recommendations are absolutely privileged and Sverdrup’s motives are irrelevant. 154 Ariz. at 5, 739 P.2d at 1322. The conclusions of Western Technologies would appear to be equally applicable here, particularly since Kentucky Utilities retained Sargent & Lundy to assist in the investigation of the damage to the Ghent facilities, so that it could bring suit against the responsible parties. General Electric argues, however, that the district court here correctly distinguished Western Technologies on the ground that Sverdrup “was a totally objective consultant, hired after the completion of the project.” The court further stated that “Sverdrup was an independent actor, unlike Sargent & Lundy, and had no interest in any eventual litigation, other than producing an unbiased analysis and opinion of the underlying problem.” General Electric and the district court cite no authority for the proposition that the absolute privilege applies only to so-called “independent” consultants. General Electric nevertheless argues that the privilege should not apply since Sargent & Lundy was “engaged in a scheme to cover up its own liability and to shift the responsibility onto innocent parties.” General Electric and the district court, however, misperceive the effect of an absolute privilege. The Restatement, as well as Kentucky courts, recognizes that a court may not inquire into the motives of the speaker. See, e.g., Restatement, introductory note to “Title B. Absolute Privilege Irrespective of Consent,” at 243; Stewart v. Williams, 309 Ky. 706, 218 S.W.2d 948, 949-50 (App.1949) (when a communication is privileged, defamatory words maliciously spoken will not give rise to a cause of action for defamation); Schmitt, 163 S.W.2d at 283 (same); W. Haynes, Kentucky Jurisprudence, Torts § 8-3, at 182 (same); id. § 8-6, at 175 (same). The absolute privilege, unlike a qualified privilege, renders the speaker’s motives and intent irrelevant in light of the public policy favoring freedom to speak freely and without fear of civil suit and financial hazard. The application of the privilege therefore cannot turn on whether Sargent & Lundy had an “interest in any eventual litigation,” as the district court concluded. The district court’s misunderstanding appears to lie in its focus upon the absolute privilege as it applies to witnesses. The district court concluded that it “seems that the rationale of the Western Technologies court in recognizing the absolute privilege defense was to protect the expert, consultant or witness from being subjected to claims based on independent reports, testimony or other communications. Sargent & Lundy’s reports, testimony and other communications were anything but independent.” (Order dated December 9, 1988, at 3). The privilege not only applies to witnesses, however, but it equally applies to a party’s communications made preliminary to a seriously considered judicial proceeding. See Restatement § 587. Even though the privilege may arise under different circumstances, the public policy justification underlying the privilege in either the case of the witness or the party is the same. Communications by parties and witnesses are protected to promote the development and free exchange of information and to foster judicial and extra-judicial resolution of disputes. It is therefore immaterial whether Sargent & Lundy claims this absolute privilege because of its special relationship as an investigator of the damage to the Ghent facilities or as a party protecting its own interests preliminary to a seriously contemplated judicial proceeding. In either ease, these statements are absolutely privileged and may not form the basis for General Electric’s injurious falsehood suit. The late Senior Judge Thomas F. McAl-lister of our court perhaps stated it best: “It is cold comfort to the appellant to be told that although statements made about him are libelous or slanderous, he can bring no action for defamation, even if the person making the statements knows they are false; and that, since they were made in reference to impending litigation, they are privileged. But that is the law.” See Theiss v. Scherer, 396 F.2d 646, 650 (6th Cir.1968) (McAllister, J. concurring). IY. One last related issue remains. As an alternative basis for denying the motion, the district court held that Sargent & Lun-dy’s motion in limine was untimely. The December 2, 1988 motion certainly was filed on the eve of the scheduled trial date of December 5. In denying the motion, the district court appears to have been persuaded by two arguments. First, the district court stated that the motion seeking to invoke the absolute privilege was actually an affirmative defense. The court therefore treated the motion as a motion to amend, which it deemed untimely, and concluded that the defense had been waived. Second, the district court stated that although the motion was “styled as a motion in limine, in reality it is a motion for judgment on the pleadings because if Sargent & Lundy were to prevail on this motion, GEE-SI would effectively be barred from intro-during any evidence to prove its claim against Sargent & Lundy.” (Order dated December 9, 1988, at 2.) Sargent & Lundy does not dispute here that the invocation of the absolute privilege is an affirmative defense. See Restatement § 651(2) at 372 (the defendant has the burden of proving that the absolute privilege applies). Rather, Sargent & Lun-dy argues that the district court erred in not permitting an amendment. Under Fed. R.Civ.P. 15(a), leave to amend pleadings “shall be freely given when justice so requires.” The decision whether or not to permit the amendment is committed to the discretion of the trial court. See, e.g., Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-32, 91 S.Ct. 795, 802-03, 28 L.Ed.2d 77 (1971); Estes v. Kentucky Util. Co., 636 F.2d 1131, 1133 (6th Cir.1980). This discretion, however, is “limited by Fed.R.Civ.P. 15(a)’s liberal policy of permitting amendments to ensure the determination of claims Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_appbus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. ADERHOLD, Warden, v. ASHLOCK. No. 1660. Circuit Court of Appeals, Tenth Circuit. Sept. 22, 1938. Homer Davis, Asst. U. S. Atty., and Summerfield S. Alexander, U. S. Atty., both of Topeka, Kan., for appellant. No appearance for appellee. Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges. PHILLIPS, Circuit Judge. Charles Ashlock was charged by indictment returned in the District Court of the United States for the Eastern District of Kentucky with a violation of 26 U.S.C.A. § 692, now 26 U.S.C.A. § 1043. He pleaded guilty and was sentenced to a term of imprisonment of two years from November 13, 1933. On June 21, 1935, he was conditionally released from the Penitentiary Annex, at Leavenworth, Kansas, by .the United State Parole Board. ' . , , , , . ,. , Thereafter, he was charged by indictment returned m the District Court of the United States for the Southern District of West Virginia with a violation of the Harrison Anti-Narcotic Act. He pleaded guilty to the charge and on September 18, 1935, he was sentenced to serve k term of three years in the United States Penitentiary Annex, at Leavenworth, Kansas. He was delivered to the Penitentiary Annex on September 28, 1935. A warrant for his arrest, based on a violation of his parole was issued, and upon completion of his second sentence he was arrested and recommitted to the Penitentiary Annex to serve the unexpired portion of his first sentence. Ashlock filed an application for a writ of habeas corpus in the District Court of the United States for the District of Kansas, predicated on the contention that upon his commitment to the penitentiary on the second sentence, hé immediately began service of the unexpired term of his first sentence and that both sentences had been fully served ' The trial court sustained Ashiock’s contention and entered its judgment discharging him'from custody. The Warden has appealed, Section 723c, 18 U.S.C.A., reads in part as follows: “The Board of Parole * * * or any member thereof, shall have the exclusive authority to issue warrants for the retaking of any United States prisoner who has vio!ated. his' Parole; The ^expired term of imprisonment of any such prisoner shall be-g¡¡n run fr0m the date he is returned to the institution, and the time the prisoner was on parole shall not diminish the time he was originally sentenced to serve.” in Zerbst v. Kidwell, 304 U.S. 359, 362, 363, 58 S.Ct. 872, 873, 82 L.Ed. 1399, 116 A. L.R. 808, the Supreme Court of the United States in construing the above provision in connection with facts identical with those presented here, said: . . . ro Obviously, this provision [Sec. 723c,. suPra^ does ?ot require that a parole violator s onSmal> unexpired sentence shall be-gm to run from the date he is imprisoned for a new and separate offense. It can only refer t0 reimprisonment on the original sentence under order of the paroIe Board. “Since service of the original sentence was interrupted by parole violation, the full term of that sentence has not been com-pleted. Just as respondent’s own misconduct (parole violation) has prevented com-pletion of the original sentence, so has it continued the authority of the board over respondent until that sentence is completed and expb es. * * * “If the parole laws should be construed as respondent contends, parole might be more reluctantly granted, contrary to the broad humane purpose of Congress to grant relief from imprisonment to deserving prisoners, “Respondents have not completed servjce 0£ Bieir original sentences and were not entitled to realese.” . .... "b'b.e cause is reversed with instructions vacate the order of discharge, to order *-b.at Ashlock be redelivered to the custody of the Warden, and to issue and execute suc,h writ °r PTOCtsJ as. may be necessary t0 make sudl order effectlve’ Reversed. 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_othcrim	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". GLASSCOCK et al. v. SINCLAIR PRAIRIE OIL CO. et al. No. 13161. United States Court of Appeals Fifth Circuit. Dee. 21, 1950. W. M. Lewriglit, Corpus Ohristi, Tex., for appellants. C. Brien Dillon, J. C. Hutcheson, III., Houston, Tex., Paul A. McDermott, Fort Worth, Tex., for appellees. Before HOLMES, BORAH and RUSSELL, Circuit Judges. HOLMES, Circuit Judge. This appeal involves the construction of an oil and gas lease on approximately 8420 acres of land in Texas. It was taken by appellants from a summary judgment that dismissed their complaint and confirmed the validity of said lease in its entirety, declaring it to be still in effect as to all of the property therein described. The lease is for a primary term of 5i/£ years and so long thereafter as oil or any of the other specified minerals are produced from said land. It contains the usual provisions for the payment of royalty and delay rental, with proportionate reduction of the latter if the lessor has less than a fee simple title to the leased premises. It is admitted that all royalties and rentals due thereunder have been fully paid. So far as pertinent here, the parties differ only in their interpretation of paragraph 4 of the lease, which in general deals with the subject of the payment of delay rentals, and provides for their annual payment during the primary term, to cover the privilege of deferring the commencement of drilling operations. Thereafter the lease contains the following provision, the correct interpretation of which is the issue now presented for decision: “Operations for the drilling of a well or reworking operations on any well on said land or production from any well thereon shall continue this lease in force only in so far as this lease covers a tract for each such well with respect to which operations for drilling are being conducted, or on which reworking operations are being conducted, or from which production is being obtained, containing not more than 640 acres of land (for each such well) to he designated by Lessee, such respective tracts of not more than 640 acres to be of such shape or configuration as may he designated by Lessee with the well on any part thereof. Each and every such designation shall be made by Lessee by filing for record in the office of the Clerk of the County Court of Colorado County, Texas, a description of such tract of not more than 640 acres. The aforementioned rental payable by Lessee to cover the privilege of deferring commencement of operations for the drilling of a well for periods of twelve (12) months each during the primary term shall be reduced by an amount equal to One Dollar ($1) per acre for each acre of land included within any tract or tracts which Lessee is holding or entitled to hold on the due date of the rental payment in question, by virtue of the designation by Lessee prior to such due date of a tract or tracts as above provided and the conduct of drilling or reworking operations thereon or obtaining production therefrom.” It is not contended by appellants that the lease was terminated in any respect during its primary term; nor is it denied by them that there has been continuous production under the lease since its primary term. Appellants’ contention is that the primary term of the lease is subject to its subsequent provisions, which include paragraph 4 above quoted; they argue that the term of years and “so long thereafter as oil * * * or other mineral is produced” is subject to paragraph 4, which is a further limitation on the estate granted by the lease. The lessees contend, and the court below held, that paragraph 4 concerns only the payment of delay rentals during the primary term; and that, at the expiration of the primary term, the production of oil in paying quantities from a single well was sufficient to hold in effect the entire lease. We find no ambiguity in the lease, and no occasion to resort to arbitrary rules of construction to ascertain the intention of the parties. The basic question is whether the language above quoted should be held to impose an additional limitation upon the determinable estate granted by the lease. The answer is ascertainable from the lease itself, the granting clause of which is subject to the other provisions therein; but the only other provision relied on by appellants to work a termination of the appellees’ interest upon the expiration of the primary term is in paragraph 4 of the lease. This paragraph deals with the payment of the initial bonus and the delay rentals. It first provides for the payment of a fixed sum on or before a certain date upon pain of termination of the lease; it next provides for annual delay rentals of $8423 each; it then contains the above quoted paragraph, which provides for reduction of the rental by one dollar per acre upon each designated 640-acre tract whereon a producing well is located. These provisions apply only to the primary term; their purpose was to assure to the lessor during that period a continuance of the rental payments with a reduction instead of a cessation thereof in the event of production or drilling under the lease. If the parties had ended the paragraph after prescribing the bonus and rentals, the effect would have been that no further rentals would have been payable after production was obtained; but the tract was large and the rentals substantial, approximately $8420 per year. Therefore, if the parties had so ended paragraph 4, one producing well completed during the first year would have been the equivalent of payment of $8420 on each of the four succeeding rental dates, or $33,680. To prevent this effect, the parties added the section above quoted, thereby limiting the amount of delay-rental equivalency of one producing well to $640, a possible saving to the lessor of $7,780 per year, or a total of $31,120. The parties were not dealing with the period subsequent to the primary term, when the payment of delay rentals could not keep the lease alive. This construction is in accord with that given similar provisions by the courts of Texas. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27; Lido Oil Co. v. W. T. Wag-goner Estate, Tex.Civ.App., 31 S.W.2d 154; Johnson v. Montgomery, Tex.Civ.App. 1930, 31 S.W.2d 160, err. refused. Under paragraph 11, in the event of cancellation or termination, the lessee shall retain twenty acres around each producing well that it then may be operating. If the lease terminated at the expiration of the primary term, in spite of production in paying quantities, paragraph 11 would appear to be applicable and to entitle the lessee to retain only twenty acres around each producing well, thus conflicting with appellants’ claim under paragraph 4 that the lease was terminated except that the lessee was entitled to hold 640 acres around each well. This conflict is avoided by construing the applicable portion of paragraph 4 as a rental reduction clause, and as meaning that a producing well shall be equivalent to the rental payment on 640 acres around it. We find no reversible error in the record, and the judgment appealed from is affirmed. Affirmed. RUSSELL, Circuit Judge, dissents. Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim. A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_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 Gabriel Salgado FUENTES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 83-7662. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 14, 1985. Decided July 10, 1985. Teresa Bright, Redwood City, Cal., for petitioner. Dept, of Justice, Marshall Tamor Golding, Washington, D.C., for respondent. Before PREGERSON and FERGUSON, Circuit Judges, and GILLIAM, District Judge. The Honorable Earl B. Gilliam, United States District Judge for the Southern District of California, sitting by designation. FERGUSON, Circuit Judge: Gabriel Salgado Fuentes, a native and citizen of Mexico, petitions for review of the denial by the Board of Immigration Appeals (BIA) of his motion to reopen his deportation proceedings. Petitioner Fuentes had unsuccessfully petitioned the BIA to reopen his deportation case so that he could apply for the exercise of the Attorney General’s discretionary authority to suspend deportation. See 8 U.S.C. § 1254(a)(1). We grant the petition so that the BIA can exercise its equitable discretion in a manner consistent with the facts explained below. I. Our task, like that of the BIA before us, is hampered by a less than plenary development of the factual record in this case. The primary reason for the inchoate state of the record lies in the procedure used by the Immigration and Naturalization Service (INS) in fulfilling its statutory duty to conduct a hearing on the petitioner’s immigration status. The petitioner was subjected to a “mass deportation” hearing, along with several of his co-workers, in which the immigration judge conceded that the simultaneous consideration of so many cases would inevitably cause difficulties for the development of the facts of an individual case. Piecing the record together as best we can, we can relate the following facts and issues. The petitioner, Gabriel Salgado Fuentes, is a twenty-seven-year-old male currently residing in California. Mr. Fuentes entered the United States without inspection in February 1974. A native and citizen of Mexico, Mr. Fuentes had been sent to the United States by his parents at the age of seventeen. Upon his arrival in the United States, Mr. Fuentes began working at the Ano Nuevo Ranch in Pes-cadero, California, as a farmworker. During the three years of his employment at Ano Nuevo Ranch, petitioner was paid wages of approximately $70 per week. In 1977, some three years after he began working at the Ano Nuevo Ranch, Mr. Fuentes joined thirteen of his co-workers at the ranch and filed suit against his employer for violation of the minimum wage laws. In retaliation, their employer reported Mr. Fuentes and other members of the group to the INS as deportable aliens. In other words, the petitioner’s deportation proceeding was proximately caused by his employer’s retaliation for filing a lawsuit seeking the protection of this country’s labor laws from his employer’s unfair labor practices. The record is silent as to the outcome of Mr. Fuentes’ labor lawsuit. The record does reflect, however, that the petitioner was released “on his own recognizance” after he was taken into custody in September 1977. In May 1980, the District Director of the INS “decided to go forward with the deportation hearing on the grounds that the [petitioner] had been given more than enough time to seek judicial resolution of his employment claim.” At the conclusion of the mass deportation hearing, the immigration judge found the petitioner deportable after the petitioner conceded deportability but sought the exercise of the Attorney General’s discretion to suspend deportation under 8 U.S.C. § 1254. The petitioner and the respondent disagree on what transpired at the hearing. According to the petitioner, the immigration judge informed petitioner’s former counsel that because of the aggregate nature of the proceedings and the burden this placed on a full presentation of the facts, the judge would grant any subsequently filed motions to reopen if supported by a showing of seven years' continuous presence. See 8 U.S.C. § 1254(a)(1) (permitting Attorney General to suspend deportation on showing of seven years’ continuous residence, good moral character, and extreme hardship from deportation); 8 C.F.R. 3.2 (establishing criteria for motions to reopen as presentation of material evidence establishing prima facie case based on new information not previously available). The petitioner also claims that the INS trial attorney accepted this procedure. The respondent denies that the immigration judge promised that because of the mass hearing he would grant future motions to reopen based solely on seven years’ residency. The INS contends that the immigration judge’s promises aimed at mitigating the harms associated with the truncated record of a mass deportation hearing are the subject of a second motion to reopen and therefore are not currently before this court. We agree that we cannot decide the factual dispute as to the promises made by the immigration judge or the INS trial attorney in this petition. Nonetheless, we recognize that any inducement offered to expedite the administrative hearing will have had an effect on the state of the administrative record. The immigration judge denied the motion to reopen because the petitioner allegedly had not met the seven-year residency requirement and “also ... for the reasons cited by the Government’s Attorney in their [sic] brief.” Decision of September 1, 1982. The petitioner appealed this decision. On appeal, the BIA declined to address the residency question and instead dismissed the appeal based on a lack of evidence on extreme hardship sufficient to establish “additional equities.” II. This case involves a reconciliation of competing legislative directives concerning the enforcement of our nation’s labor and immigration laws. On the one hand, Congress has enacted various labor laws to foster peace, security, and equal treatment in our nation’s labor force. See 29 U.S.C. § 151. As the Supreme Court recently noted, “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.” Sure-Tan, Inc. v. NLRB, — U.S.-, 104 S.Ct. 2803, 2809, 81 L.Ed.2d 732 (1984). Beyond question, the Attorney General is charged with the responsibility of insuring that the labor laws of this country are duly enforced in such a manner as to prevent the creation of this type of employee subclass. “If the [federal labor laws] were inapplicable to workers who are illegal aliens, we would leave helpless the very persons who most need protection from exploitative employer practices such as occurred in this case.” NLRB v. Apollo Tire Co., 604 F.2d 1180, 1184 (9th Cir.1979) (Kennedy, J., concurring). On the other hand, we are well aware of the magnitude of the Attorney General’s separate responsibility to enforce the immigration laws of this country. In keeping with the Constitution’s mandate that the executive branch “take Care that the Laws be faithfully executed,” art. II, § 3, the Attorney General must simultaneously enforce both the labor and immigration laws of this country. . On some occasions the demands of the labor laws may conflict with the dictates of the immigration laws. We have no doubt that, in many cases, fulfillment of this “dual responsibility,” see United States v. Valenzuela-Bernal, 458 U.S. 858, 864, 102 S.Ct. 3440, 3444, 73 L.Ed.2d 1193 (1982), will prove a difficult task. The deportation of illegal aliens who have relied on our nation’s courts and labor laws places the Attorney General in the unenviable position of either advertently or inadvertently suborning the efforts of those who would violate the labor laws of this country. In addressing this latter petition for review of the denial of the motion to reopen, our inquiry is limited to the latter possibility. Moreover, the resolution of the Attorney General’s executive responsibilities regarding aliens may place the Attorney General in conflict with the executive duties of the Secretary of Labor regarding the enforcement of the labor laws of the United States. See 29 U.S.C. §§ 202, 216, 551. We are conscious of the narrow role ascribed to the federal judiciary in matters relating to the enforcement of this country’s immigration laws. We cannot sit in judgment of the Attorney General’s substantive exercise of his discretion in meeting the competing demands of the nation’s labor and immigration laws. If the Attorney General, or Congress, chooses to elevate the enforcement of one set of laws over another, we are in no position to interpose a “chancellor’s foot” veto. United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366 (1973). In passing on a motion to reopen, the immigration judge and, in turn, the BIA must look to the proffered record to determine whether the petitioner has presented evidence which is both “material” and could not have been presented in the prior deportation hearing. 8 C.F.R. § 3.2. At oral argument, counsel for the INS conceded that if deportation proceedings were proximately caused by an employer’s retaliation for his employees’ report of illegal conduct by the employer, then this fact would be an important factor in the exercise of the Attorney General’s discretion in deportation proceedings. Stated more simply, this fact would be material to the immigration judge’s exercise of the discretion vested in him by delegation of the Attorney General. Counsel for the INS also acknowledged that the import of this material fact was never specifically addressed in either the deportation proceeding itself or in the consideration of the petitioner’s motion to reopen. The Supreme Court has recently acknowledged that the Attorney General’s discretion in considering a motion to reopen is broad enough to encompass factors not within the plain language of the immigration laws. See INS v. Rios-Pineda, — U.S.-,---, 105 S.Ct. 2098, 2101-2103, 85 L.Ed.2d 452, 53 U.S.L.W. 4537, 4538-39 (May 13, 1985). As the Court held in Rios-Pineda, the Attorney General has the discretion to consider factors such as the “flagrancy and nature” of the alien’s immigration violations among the many considerations that are properly weighed in the INS’s “legitimate concerns about the administration of the immigration laws.” Id. at-, 105 S.Ct. at 2103. This broad view of the discretion vested in the Attorney General and his delegates is consistent with the position taken by respondent’s counsel that the Attorney General has the discretion to consider an alien’s beneficial service to the laws of this country. We are also aware of another route available to the INS for the recognition of an alien’s service to the enforcement of the laws of this country. Under regulations promulgated by the INS, the pertinent INS District Director could place the petitioner’s case on deferred action status. More specifically, Operating Instruction 242.-l(a)(22) provides: The district director may, in his or her discretion, recommend consideration of deferred action, an act of administrative choice to give some cases lower priority and in no way an entitlement, in appropriate cases. The deferred action category recognizes that the Service has limited enforcement resources and that every attempt should be made administratively to utilize these resources in a manner which will achieve the greatest impact under the immigration laws. In making deferred action determinations, the following factors, among others, should be considered: (B) the presence of sympathetic factors which, while not legally precluding deportation, could lead to unduly protracted deportation proceedings, and which, because of a desire on the part of the administrative authorities or the courts to reach a favorable result, could result in a distortion of the law with unfavorable implications for future cases; (C) the likelihood that because of the sympathetic factors in the case, a large amount of adverse publicity will be generated which will result in a disproportionate amount of Service time being spent in responding to such publicity or justifying actions By its own terms, the Operating Instruction confers some measure of administrative discretion on the District Director to take into consideration factors that are not readily apparent in the statutory constellation of the immigration laws. Again, however, we recognize that the role of the courts in the review of this discretion is extremely limited. Nonetheless, the petitioner's effort to vindicate the labor laws of this country reveals a “substantial basis in the record upon which the district director could place' the petitioner in the deferred action category and thus allow him to remain in this country on humanitarian grounds.” In re Guerrero-Morales, 512 F.Supp. 1328, 1331 (D.Minn.1981). We need not speculate on the likely disposition of a deferred action request or on any subsequent role by this court in reviewing such disposition. Instead, we simply observe that the respondent has the discretion to consider the petitioner’s service in the form of a request for deferred action status. Accordingly, in remanding this case to the BIA to permit an informed exercise of the Attorney General’s administrative discretion, we also note the suitability of the petitioner’s case for consideration of deferred action status. CONCLUSION In order to permit the Attorney General to consider the import of the facts in this case, we will grant the petition and remand this case to the BIA “with instructions to reconsider the motion to reopen and to articulate the underlying reasons and basis for any rulings it makes.” Sida v. INS, 665 F.2d 851, 855 (9th Cir.1981). We reiterate, however, that we do so not because we consider ourselves empowered to sit in judgment on the ultimate exercise of the Attorney General’s discretionary decisions on this matter. We remand only to preclude the possibility that the Attorney General’s decision on this matter was inadvertent. For the reasons stated in the foregoing discussion, the petition for review is GRANTED and the cause is REMANDED to the BIA. 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_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. Willie GLINSEY, Appellant, v. H. L. PARKER, Superintendent Shelby County Jail, Appellee. Arthur FRANKLIN, Appellant, v. H. L. PARKER, Superintendent Shelby County Jail, Appellee. Euan BAILEY, Appellant, v. H. L. PARKER, Superintendent Shelby County Jail, Appellee. Nos. 73-1806 to 73-1808. United States Court of Appeals, Sixth Circuit. Argued Dec. 4, 1973. Decided Feb. 13, 1974. Ural B. Adams, Jr. (Court-appointed), Memphis, Tenn., on brief, for appellants. James H. Allen, Asst. Dist. Atty. Gen., Memphis, Tenn., on brief, for appellee; David M. Pack, Atty. Gen. of Tenn., Nashville, Tenn., of counsel. Before PHILLIPS, Chief Judge and PECK and LIVELY, Circuit Judges. LIVELY, Circuit Judge. The petitioners, Glinsey, Franklin and Bailey, appeal the orders of the district court which denied them habeas corpus relief. All are serving penitentiary sentences imposed in state court proceedings in which they were found guilty by a jury of committing armed robbery. Following a two-day evidentiary hearing, the district court filed an opinion in which three constitutional issues that had been raised by petitioners were considered. In denying habeas corpus writs the district court found that the arrests, interrogation and state court proceedings which resulted in the petitioners’ imprisonment did not violate their constitutional rights. In order to deal with the issues presented on appeal it is necessary to make a brief statement of the facts surrounding the arrest and trial of petitioners. On the evening of December 8, 1969 the Memphis police picked up two young men named Hurd and Harris in connection with a holdup which had taken place earlier that evening. Hurd and Harris admitted their participation in the December 8 robbery and divulged to the police the fact that they had also been involved in approximately 13 other armed robberies which were unsolved at the time. In discussing the other robberies, Hurd and Harris implicated all three of the petitioners and one Frederick Johnson. Beginning shortly after 3:00 a. m. on December 9, 1969, the police, led by Lieutenant Hadaway who was then a detective lieutenant in the robbery bureau, arrested each of the petitioners and Frederick Johnson. Each petitioner was arrested at his home in the presence of an adult and all were taken to police headquarters and then to juvenile court where their names, addresses, telephone numbers and family information were recorded. A juvenile court attendant notified the parents of each petitioner of the arrests, the charges and the fact that they were not eligible for release because of the seriousness of the charges. Each one was checked physically to determine if any beating or mistreatment had taken place. All three petitioners and Frederick Johnson were taken back to the police station and placed in a room with Hurd and Harris. Another youth who had been implicated by Hurd and Harris was released by the police when it was learned that he had only loaned a gun to Hurd and Harris and had not actually participated in any of the holdups. By the time the petitioners were first brought to the police station, Hurd and Harris had already admitted the armed robbery of a liquor store on November 29, 1969 and had implicated all three petitioners and Frederick Johnson. The six suspects were questioned intermittently for approximately 12 hours beginning about 5:00 a. m. Since the three petitioners were 17 years of age, they were taken back to juvenile court for nearly two hours around the middle of the day on December 9 for preliminary disposition of their cases. Food was available to them during this period. The juvenile judge entered an order bringing them within the protective custody of the court but ordering detention pending a hearing which was set for December 15. Between 3:00 and 5:00 p. m. on December 9 all six suspects signed written confessions in the presence of each other in which they admitted taking part in the November 29 liquor store robbery. Before the petitioners and Johnson had made any statements they requested the police to leave them alone in the room with Hurd and Harris. This was done, and it was following a discussion among all six of the suspects that petitioners and Johnson agreed to give statements. Many statements were taken by the police. At first the six suspects, while together, were asked about a number of separate robberies. An officer would describe the date and place of the robbery and ask which ones of the suspects had taken part in that robbery. Those who had taken part would raise their hands, and notes were taken by another officer recording the names of those who admitted participation in each ’ of the crimes. After the group session was completed, the officers began taking statements from each individual suspect concerning specific robberies. These statements were written in long hand, signed by the suspects and were referred to by the police as “I” statements. Each of the petitioners made such a confession with respect to the November 29 liquor store robbery. Following their return from juvenile court at about 2:00 p. m. on December 9, the petitioners and Johnson, Hurd and Harris were questioned in the presence of a stenographer who typed all the questions and answers. In the presence of each other all six suspects admitted certain robberies, including the one involving the liquor store on November 29, and typed statements were signed. These were referred to by the police as “We” statements. Each statement contained a Miranda type warning above the body of the confession. On December 15, 1969 juvenile court ordered the petitioners remanded to the sheriff for disposition of the charges under the criminal laws of Tennessee on a finding of probable cause that they had committed the crimes charged. All were subsequently indicted for armed robbery in connection with the November 29 liquor store holdup and the court ordered all six defendants to be tried together. Bach defendant moved for a severance, but the motions were denied. Prior to the trial, Hurd and Harris had agreed to plead guilty and the State offered to recommend a 25-year sentence if all six defendants would plead guilty. Armed robbery was a capital offense in Tennessee at that time. The petitioners and Johnson refused this proposition and entered not guilty pleas. After the jury had been impanelled, Hurd and Harris pled guilty in the presence of the jury and the other four defendants pled not guilty. Because the jury fixes punishment under Tennessee criminal practice, Hurd and Harris remained as defendants and their cases were submitted to the jury for the purpose of fixing punishment along with those of the other defendants. Before the end of the trial, Frederick Johnson changed his plea to guilty. All three petitioners took the stand and repudiated the confessions which they had made on December 9, 1969. Hurd, Harris and Johnson did not testify, but the “We” statements of all six defendants confessing the November 29 robbery and implicating the others were introduced at the trial. The jury was instructed both at the time the statements were introduced and in the final charge that admissions could not be considered as evidence against any defendant other than the one who had made the admission. The jury determined the guilt of the petitioners and fixed their punishment at the same time that it fixed the punishment of Hurd and Harris and Johnson. After exhausting their state remedies the three petitioners brought this action, alleging that the confessions introduced at the trial were not freely and voluntarily given, but were the result of coercion; that they were denied their Sixth and Fourteenth Amendment rights to confront and cross-examine witnesses against them; and, that the denial of a severance and subsequent use of the “We” statements in the trial was a violation of due process under the Fourteenth Amendment. In addition to conducting a hearing, the district judge had before him the entire record of proceedings in the state courts. The district court found that at the time of arrest and prior to interrogation the petitioners were clearly advised of their rights and that they never requested counsel nor were deprived of their right to counsel. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). The court found that there were no threats or promises and that the confessions of the petitioners were freely and voluntarily given. It was pointed out in the court’s memorandum that the petitioners had confessed to the November 29 liquor store robbery in the morning of December 9 and shortly thereafter had signed “I” statements. The “We” statements which were introduced at the trial of the petitioners, although taken near the end of twelve hours of interrogation, were consistent with the oral confessions and the “I” statements which were taken near the beginning of the period of interrogation. We are mindful of the extreme care which must be exercised in determining whether a confession given by a juvenile charged with a serious crime is voluntary or coerced. Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948); Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962). We believe from examining this record that the experienced and able district judge did closely scrutinize the facts and circumstances surrounding these confessions and that his findings and conclusions that the admission into evidence against them of the petitioners’ own confessions was not a violation of their federal constitutional rights are fully supported by the record. Waddy v. Heer, 383 F.2d 789, 793 (6th Cir. 1967), cert. denied, 392 U.S. 911, 88 S.Ct. 2069, 20 L.Ed.2d 1369 (1968). The second issue in the case arises under the confrontation clause of the Sixth Amendment which provides in part as follows: “In all criminal prosecutions, the accused shall enjoy the right . to be confronted with the witnesses against him . . In Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), the Supreme Court held that the right to confront witnesses and cross-examine them is essential to a fair trial and is made applicable to the states by the Fourteenth Amendment. Petitioners maintain that the introduction of the “We” confessions of Hurd and Harris at the joint trial constituted a violation of their right of confrontation and cross-examination under the Supreme Court holding in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). There the Supreme Court held that a statement of one defendant who does not testify and which implicates another defendant in the crime for which they are on trial may not be introduced in a joint trial since the right of confrontation and cross-examination is denied the co-defendant. The Court held that even clear instructions to disregard such a statement as evidence against the co-defendant, as were given in the present case, do not make it admissible. The Court reasoned that the jury was likely to believe the portions of the statement implicating Bruton and that thus substantial weight was added to the prosecution’s case against him by the use of inadmissible evidence. In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), the Supreme Court held that the confrontation clause does not preclude the use of all hearsay evidence in a criminal trial and upheld the admission of testimony which recounted a statement of an alleged co-conspirator. This testimony had been permitted in evidence under a state rule which allowed statements of co-conspirators to be introduced as evidence against other members of a conspiracy. The case is distinguishable from Bruton in that it involved a separate rather than a joint trial and the witness who related the alleged statement of the co-conspirator was cross-examined at length. In Campbell v. United States, 415 F.2d 356 (6th Cir. 1969), this court held that an out-of-court statement of a co-conspirator could be admitted in a joint trial because of a federal rule permitting such testimony to be received as evidence against other members of the conspiracy. This court held that the Bruton rule is limited to situations where the out-of-court statements are inadmissible hearsay and has no application to situations where the extrajudicial statement is admissible under the narrowly defined co-conspirator exception to the hearsay rule. In considering this issue in the present case the district judge found that the “We” confessions of Hurd and Harris were actually admissible as to the petitioners because the six suspects each adopted the statements given by the others as the officers questioned them as a group. The district court thus reasoned that the state trial court could have received the “We” statements of Hurd and Harris as evidence against these petitioners the same as the statements which petitioners themselves had given because they were “adoptive statements.” The petitioners were present when Hurd and Harris gave the statements which were introduced at the trial. Their adoption of such statements was inferred from the similarity between the statements of Hurd and Harris and their own statements and the failure of petitioners to object or specifically disavow the statements of Hurd and Harris at the time they were made. This court has had occasion to deal with the issue of an adoptive statement in a recent case. In Miller v. Cardwell, 448 F.2d 186 (6th Cir. 1971), cert. denied, 405 U.S. 1033, 92 S.Ct. 1295, 31 L.Ed.2d 490 (1972), one Swiger made a statement in Miller’s presence which was recorded on an electric device. Following the completion of Swiger’s statement, Miller was asked by the officers whether the statement was true and he eventually ratified Swiger’s statement and this was recorded as well. At Miller’s trial the recording was played following correct instructions to the jury to the effect that it should consider Swiger’s statement as evidence against Miller only if the jury found that Miller had accepted Swiger’s statement as his own. Following conviction, Miller sought a writ of habeas corpus asserting that he was denied his right to confront witnesses and cross-examine them by the admission of Swiger’s out-of-court statement. We held that Miller’s consitutional rights had not been violated since he adopted the statement of Swiger as his own and thus made it admissible against him. The case before us now raises the issue of whether petitioners can be held to have adopted the statements of Hurd and Harris by reason of their silence upon hearing such statements given. Of course all were in custody when the statements were given and this court has long held that no derogatory inferences may be drawn from the silence of a person who is in custody and accused of crime. McCarthy v. United States, 25 F.2d 298 (6th Cir. 1928). One in custody has the right to remain silent and it would violate rights guaranteed by the Fifth Amendment to hold that such a person, by his silence, has acquiesced in a statement made by another in his presence which implicates him in a crime. See Miranda v. Arizona, supra, 384 U.S. 436 at 468, n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694. In reversing the conviction in the McCarthy case, the court noted that the defendants later took the stand and denied all connection with the crime as was done here. The holding of McCarthy v. United States, supra, was reaffirmed in a recent case where it was held that an admission by silence, made while the defendant on trial and the maker of an inculpatory statement were undergoing police interrogation and at the time when they were obviously accused of having committed an offense, may not be received in evidence. To permit the jury to treat silence of one accused and in custody as an admission of guilt would contravene that person’s rights under the Fifth Amendment to remain silent. United States v. McKinney, 379 F.2d 259 (6th Cir. 1967). In United States v. Brinson, 411 F.2d 1057 (6th Cir. 1969), the decisions in McCarthy and McKinney were relied upon in holding that the use of the fact that a person accused of a crime remains silent against such person is an error of constitutional magnitude. Hurd and Harris did not testify at the joint trial. Thus there was no opportunity for the petitioners’ counsel to cross-examine Hurd and Harris concerning the contents of the statements. As the Supreme Court said in Pointer v. Texas, supra, “. . .a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him.” 380 U.S. 400 at 406-407, 85 S.Ct. 1065 at 1069, 13 L.Ed.2d 923. The petitioners cannot be held to have waived their right of confrontation and cross-examination by their silence in the police station when Hurd and Harris made statements which implicated them. The right to confrontation and cross-examination is meaningful only if it can be exercised in the presence of the jury which is charged with deciding the question of guilt or innocence. We therefore hold that the silence of petitioners in the face of incriminating statements of Hurd and Harris cannot constitutionally be held to be an adoption of such statements under the circumstances of this case. On the basis of the finding that each of the defendants had adopted the statements of the others, the district court also held that it was not a violation of due process for the trial court to refuse to sever the Hurd and Harris cases from those of petitioners, stating, “If the guilty pleas of Hurd and Harris can be said to be an assertion of guilt as to petitioners such assertion of guilt was encompassed by the confessions of Hurd and Harris that could have, though they were not, admitted in evidence against petitioners.” While we do not agree that the petitioners adopted the confessions of Hurd and Harris, this nevertheless is not dispositive of the issue of severance. The matter of severance is always addressed to the sound discretion of the trial judge and accordingly is only reviewable for abuse. United States v. Ethridge, 424 F.2d 951 (6th Cir. 1970), cert. denied, 400 U.S. 993, 91 S.Ct. 463, 27 L.Ed.2d 442 (1971). Though there appears to be little reason for joining guilty-pleading defendants with those pleading not guilty even under Tennessee practice where the jury must set the punishment of those pleading guilty, still we cannot say that thisjoinder standing alone was prejudicial to the petitioners. Compare Crampton v. Ohio, 402 U.S. 183, 208-222, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). It is conceivable that such a joint trial could be conducted without the use of the Hurd and Harris confessions and, if so, it would not be an abuse of discretion to deny severance. One other point needs to be considered in this case. The district court found that all of the “We” statements were in substance the same concerning the November 29 liquor store robbery. Since the petitioners’ own statements were found to be admissible against them, if the statements of Hurd and Harris which were admitted were identical with those of the petitioners in every material detail, such statements might be considered merely cumulative evidence and their admission harmless error. In Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), while holding that the rule of Bruton applies to state prosecutions, the Supreme Court refused to set aside a conviction where the other co-defendants were tried jointly with Hárrington over his objection that there should be a severance. The confessions of each of the four defendants were introduced into evidence with limiting instructions and one of them took the stand and was cross-examined. The other two co-defendants did not testify. The Supreme Court affirmed the conviction of Harrington, holding that in view of the other evidence of guilt the introduction of statements of co-defendants was merely cumulative evidence and was harmless beyond a reasonable doubt. At a joint murder trial where neither defendant took the stand, a police officer in Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972), testified to certain admissions by each of the defendants implicating both of them in a murder. Both were convicted and the conviction of one defendant (Snell) was reversed by the Florida Supreme Court after remand from the United States Supreme Court. Nevertheless, the Supreme Court affirmed the conviction of the other defendant (Schneble) on the ground that any violation of the Bruton doctrine which had occurred at the trial was, as to him, harmless beyond a reasonable doubt. The admissions of Schneble were held to be voluntary and admissible against him, but he contended that the introduction of his co-defendant’s out-of-court statement deprived him of a constitutional right. The Court held that there was independent evidence of guilt which was overwhelming and that the allegedly inadmissible statement of the co-defendant merely tended to corroborate details of the petitioner’s own comprehensive confession. Holding that there was no rational hypothesis on which the jury could have found Schneble guilty without reliance on his own confession the Court stated “In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.” 405 U.S. at 430, 92 S.Ct. at 1059. We have examined the trial transcript of the state proceedings against the appellants. Aside from the statements which were introduced, there is no evidence linking Glinsey or Bailey with the November 29 robbery. Franklin was positively identified by an employee of the liquor store as one of the holdup men. The same witness identified Hurd, but was unable to identify either of the other participants, though the statements of all agreed that Hurd and the three appellants took part in the robbery inside the store while the other two z’emained in the car. We find the error in the introduction of the Hurd and Harris statements to be harmless beyond a reasonable doubt insofar as it affected the trial of Franklin. His own confession in conjunction with the positive . identification by a victim of the robbery constituted overwhelming evidence of guilt. Schneble v. Florida, supra. We find no such overwhelming evidence of guilt outside of the improperly admitted statements with respect to Glinsey and Bailey. The judgment of the district court is affirmed in No. 73-1807; it is vacated in Nos. 73-1806 and 73-1808 and these cases are remanded with directions to grant writs of habeas corpus to the petitioners Glinsey and Bailey unless the State of Tennessee shall grant them new trials within a reasonable time to be fixed by 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_circuit	L	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. UNITED STATES of America v. Gregory L. HARRIS, Appellant. No. 23254. United States Court of Appeals, District of Columbia Circuit. Argued Sept. 18, 1970. Decided Nov. 27, 1970. Mr. Robert F. Sagle, Washington, D. C. (appointed by this Court) for appellant. Mr. Robert J. Higgins, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry and David C. Woll, Asst. U. S. Attys., were on the brief, for appellee. Before MacKINNON and WILKEY, Circuit Judges, and CHRISTENSEN U. S. District Judge, District of Utah. Sitting by designation pursuant to 28 U.S.C. § 292(c). CHRISTENSEN, District Judge: Appellant Harris was found guilty by jury verdict and sentenced on two counts of armed robbery and eleven counts of assault with a dangerous weapon. He was indicted with five other persons following the robbery of a Sears, Roebuck & Co. branch store in the northeast section of the District. He seeks reversal of his conviction claiming that his in-court identification by a government witness was tainted by an improper line-up identification, that hearsay testimony impermissibly undermined his defense of alibi, and that he was prejudiced by comments of the trial court to the jury concerning two defendants who had entered pleas of guilty during the trial. The record is somewhat complicated as it touches upon all of the parties and issues initially undertaken. Details to the extent deemed necessary will be referred to in the discussion of each point, but the background facts essential to an understanding of any focused discussion are these: The holdup in question occurred at about 2:00 p. m. on September 26, 1968, when four armed men entered the store. While one remained inside the door at the top of some steps and covered several employees with his gun, the other three descended the steps, spread out, and through threats to employees of the store rifled two cash registers. After rejoining the fourth on the steps, they backed out of the store with $312 from the registers. Even before the men left the police had been contacted by one of the employees. In addition, James Mahoney, another employee, followed the gunmen from the store and observed several men speeding away in a Chevrolet. It may be inferred that they were the robbers, or some of them, although Mahoney did not identify them in the car. The details of the subsequent chase by Maho-ney and another employee, and an independent pursuit by a special policeman, need not be recounted. It is enough to note that the Chevrolet was found with its passenger door open against a curb. Four men were seen to proceed rapidly from the vicinity into an apartment building. Two men shortly afterwards came down the stairs to the apartments and were immediately arrested at the entrance to the building. They were later identified as Harry Brown and Lauren Wood. Neither of the latter carried a gun or money at the time of his arrest. In seeking entrance to a third floor apartment in the vicinity of which the men had been seen, by means of a key supplied by a custodian, the police were impeded because the door had been chained. Looking past the door, however, they saw occupants running to the rear of the apartment. The door was then kicked in and the apartment searched. In a children’s bedroom they found Rowan Pinkett, the lessee of the apartment, seated on a chest of drawers, and the appellant Harris lying on a bed. Samuel Savage was hiding in a closet in the same bedroom. Across the hall in the master bedroom the police found Clifton Jones, and in another closet, Walter Fleming. Three operable guns, two of them loaded and one bearing Fleming’s fingerprints, were found. Money discovered in the apartment by the police, some secreted in a tennis racket, totaled $285. All five men in the apartment were arrested and taken to the Robbery Squad office along with Brown and Wood. A few hours after the holdup the witnesses to the robbery were brought to the Robbery Squad office. After some delay a Legal Aid attorney arrived to represent the defendants. A line-up identification followed at which several of the suspects were identified by various witnesses. James Mahoney was the only one to positively identify the appellant as one of the robbers. Only the seven suspects were in the line-up, and it was common knowledge among the witnesses that they were the ones under arrest in connection with the case. Brown, Wood, Jones, Savage, Fleming and appellant Harris were later charged with the commission of related offenses. Prior to the trial the government dismissed its case against Jones, and after the swearing of the jury Fleming and Savage elected to plead guilty. The jury acquitted Wood and Brown while convicting the appellant, Harris. The government’s successful case against him was based significantly upon his in-court identification by Mahoney and the circumstances of his apprehension immediately following the robbery, together with other suspects, in the apartment of Pinkett. First, appellant says that “it was prejudicial error for the court to permit the only witness who placed the defendant at the robbery to make an in-court identification where the government did not establish by clear and convincing evidence that such identification was based upon observations of the defendant untainted by the improper lineup identification.” The trial court was observant of the procedure taught by Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). On facts elicited out of the presence of the jury it ruled that the line-up identification was unduly suggestive because only the seven suspects were presented for possible identification. Having found this a violation of due process, the court considered whether the tendered in-court identifications had an untainted and independent source and thus were admissible. Under this test it concluded that some were not but that Mahoney’s in-court identification of appellant was admissible. The court nonetheless did not preclude appellant from bringing out circumstances in the pre-trial confrontation which could have affected the weight the jury accorded the in-court identification. Given a line-up adjudged by the trial court to be illegal, it was incumbent upon the government to establish by clear and convincing evidence that the in-court identification was based upon observation of the suspect other than at the line-up identification. United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Hawkins v. United States, 137 U.S.App.D.C. 103, 420 F.2d 1306 (1969). The on-the-scene observation by Mahoney was based upon substantial opportunity for observation, and the testimony concerning the resulting identification was unequivocal. In addition, the lineup was arranged within hours after the robbery and there is nothing to suggest that it was a significant factor for the in-court identification, or that both the in-court and line-up identifications were not the result of the on-the-scene observation. Mahoney testified that he was positive appellant was the gunman who remained at the top of the stairs, that the latter’s image had remained in his mind, that he based his identification upon his observation at the time of the holdup, and that while he had identified the same suspect at the line-up, he would have been able to make the in-court identification had he not attended the lineup. We are of the opinion that the evidence was sufficient to establish an independent, untainted source. There is nothing to suggest that the court did not properly measure the burden of proof and all relevant factors. In the absence of an indication to the contrary, there is a presumption that the trial judge knew the proper standard to apply and applied it. Hightower v. United States, 117 U.S.App.D. C. 43, 325 F.2d 616 (1963), cert. denied, 384 U.S. 994, 86 S.Ct. 1903, 16 L.Ed.2d 1009 (1966). The absence of formal findings on each point of inquiry does not militate against its conclusion. Hawkins v. United States, 137 U.S.App.D.C. 103, 420 F.2d 1306 (1969), supra. We conclude that the trial court did not err in determining that the in-court identification by Mahoney had a source independent from the line-up and in receiving .it in evidence before the jury. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), supra; United States v. Terry, 137 U.S.App.D.C. 267, 422 F.2d 704 (1970); Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230, cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969), supra; Hawkins v. United States, 137 U.S.App.D.C. 103, 420 F.2d 1306 (1969), supra; Gregory v. United States, 133 U.S.App.D.C. 317, 410 F.2d 1016, cert. denied, 396 U.S. 865, 90 S.Ct. 143, 24 L.Ed.2d 119 (1969). Cf. Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280, cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969). Appellant next asserts that, notwithstanding the absence of any objection at the trial, the receipt in evidence of a hearsay declaration by the apartment lessee, Pinkett, to Detective Carpenter was fundamental error which should be noticed here. At the trial appellant claimed an alibi. He testified that at the time the robbery was said to have occurred he was already at the Pinkett apartment, having arrived there alone for the purpose of borrowing some money. According to his version, when he heard other persons enter the apartment he had been asleep in the children’s bedroom and had had no connection with them. Detective Carpenter, called by the government, testified on direct examination that immediately upon his entering the apartment he proceeded into a child’s bedroom where he found one man (Harris) lying on a bed and one man (Pink-ett) on a chest of drawers. He was not asked by the prosecution about any conversation with Pinkett, but during cross-examination by Mr. Shorter, counsel for the defendant Wood, the following exchange occurred: Q. Now, did you have a conversation with Mr. Pinkett in the apartment? A. Yes, sir, I did. Q. Did he tell you anything about the four men who were there ? A. Yes, sir, he did. Q. What did he say? A. I asked him first if he — who was the owner of the apartment, and he stated that he was. I asked him if he had heard us knocking on the door and announcing the voice. Q. I am speaking about what he said about the other four men, not what the conversation he had about the knocking at the door. A. He stated that the four men who were friends of his entered his apartment while he was lying on the couch, and the door was unlocked. Three of the men were carrying guns. He told him that the police were after them, and shortly after that I heard you knocking on the door. Q. And the four had come in together ? A. Yes, sir. There was no further clarification or examination by anyone concerning this phase of the testimony. It was not developed by appellant’s counsel that his client was not present during the conversation between Detective Carpenter and Pinkett, notwithstanding the context of the examination tended to indicate he was; the conversation was of a nature to have occurred during preliminary contact, and Harris and Pinkett were in the same room when Carpenter first saw them. The absence of any objection to Pinkett’s declaration no doubt tended to shunt a further exploration of these circumstances. Nor was any objection or motion made as to this testimony at a subsequent bench conference and hearings out of the presence of the jury when it would have been natural to discuss the matter if counsel had not desired to do so in the presence of the jury. On the contrary, in the context of subsequent discussions between court and counsel an impression can be gathered not only that there was no objection but that the propriety of the testimony was recognized. Under these circumstances it is difficult to perceive how the receiving of this evidence was, on the part of the court, error at all. Hearsay evidence is not wholly alien to the judicial process and in the absence of objection may be accorded within reason its natural probative effect. Newsom v. United States, 335 F.2d 237 (5th Cir. 1964); United States v. Rosenberg, 195 F.2d 583 (2d Cir.), cert. denied, 344 U.S. 838, 73 S.Ct 20, 97 L.Ed. 687, rehearing denied, 344 U.S. 889, 73 S.Ct. 134, 97 L.Ed. 652 (1952); Petro v. United States, 210 F.2d 49 (6th Cir.), cert. denied, 347 U.S. 978, 74 S.Ct. 790, 98 L.Ed. 1116 (1954). Moreover, it appears probable from the portion of the record referred to in the margin that Harris was actually present during the conversation between Carpenter and Pinkett, in which event the declaration of Pinkett to Detective Carpenter might have been receivable even over timely objection. See 29 Am.Jur.2d, Evidence § 610; Osborne v. United States, 371 F.2d 913 (9th Cir.), cert. denied, 387 U.S. 946, 87 S.Ct. 2082, 18 L.Ed.2d 1335 (1967). We are mindful that plain or fundamental defects or errors affecting substantial rights may be noticed here although they were not brought to the attention of the trial court. Rule 52(b), Fed.R.Crim.P. Under different circumstances this court has reversed for related errors or defects, even though they had not been brought to the attention of the trial court. Bartley v. United States, 115 U.S.App.D.C. 316, 319 F.2d 717 (1963); Pinkard v. United States, 99 U.S.App.D.C. 394, 240 F.2d 632 (1957). In other cases the overruling of objections to hearsay evidence has been held to be prejudicial error. See Cannady v. United States, 122 U.S. App.D.C. 99, 351 F.2d 796 (1965); Wright v. United States, 53 U.S.App.D.C. 74, 288 F. 428 (1923). We have carefully considered the point raised here, but under the facts of this case have concluded that appellant has not demonstrated any plain error or defect in the receipt of Pinkett’s declaration which would warrant reversal. Butler v. United States, 122 U.S.App.D.C. 5, 350 F.2d 788 (1965), cert. denied, 384 U.S. 992, 86 S.Ct. 1899, 16 L.Ed.2d 1009 (1966); Harris v. United States, 112 U.S.App.D.C. 100, 299 F.2d 931 (1962); Newsom v. United States, 335 F.2d 237 (5th Cir. 1964). We reach a similar conclusion on appellant’s final contention that, notwithstanding the absence of any objection, the trial court’s comments concerning two defendants who entered pleas of guilty during the trial constituted reversible error. It is obvious since the jury knew of their involvement at the start that the court was required to make some explanation concerning the sudden absence of Fleming and Savage from the trial. It did so by telling the jury that the cases of these defendants, Savage and Fleming, had been disposed of and the jury was not to speculate on what that disposition was. Later the court deemed it necessary in order to avoid possible confusion arising from the testimony— since there was no dispute that Savage was the man who jumped over the counter and Fleming was the one between the counters — to give some explanation as to the part played by these men. After obtaining the approval of counsel at the bench to so advise the jury, the court made an appropriate explanation and reiterated it when the proceedings justified such repetition, adding that the jury was being so told for the benefit of the three remaining defendants. Whatever was stated by the court about Savage and Fleming was justified by the circumstances, was checked in advance with counsel for all parties, who indicated they had no objection and could from some viewpoints have been interpreted as tactically advantageous to appellant. Appellant now says these statements by the trial judge “prejudicially equated [appellant] with Savage and Fleming” and are therefore plain and prejudicial error “even though agreed to by counsel for defendants.” The cases relied upon by appellant are readily distinguishable, as they present neither the justification for reference to eliminated defendants which we find in this case nor the mixture of approval and tactical hopes of the parties as indicated by this record. See Gaynor v. United States, 101 U.S.App.D.C. 177, 247 F.2d 583 (1957); Payton v. United States, 96 U.S.App.D.C. 1, 222 F.2d 794 (1955). The comments of the trial court in the unusual evidential situation which confronted it were appropriate, fully consented to if not invited by the parties, and did not constitute plain or fundamental error. See Butler v. United States, 122 U.S.App.D.C. 5, 350 F.2d 788 (1965), supra; United States v. Crosby, 294 F.2d 928 (2d Cir. 1961), cert. denied, 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523 (1962). For the reasons indicated the judgment of conviction is Affirmed. . The jury was instructed, among other things, that if the circumstances of identification were not convincing beyond a reasonable doubt it must find the defendants not guilty. All counsel announced that they were satisfied with the charge. . Cross-examination by Mr. Shorter: Q. Detective Carpenter, when you went to — when you finally gained access to Apartment 11, by force, was it not? A. Yes, sir. Q. And was any apartment occupant found? A. Yes, sir. Q. Mr. Pinkett, was that his name? A. That is correct. * % * * * Q. Which two did you see there? A. The occupant of the apartment, Mr. Pinkett, and the defendant Harris. Q. And later you saw someone else? A. Yes, sir. Q. Who was that? A. That was Mr. Savage who was found hiding in the closet underneath clothing. [The questions were then directed to the finding of two other persons in another room and, following brief inquiry concerning them, the cross-examination returned to Pinkett and the testimony quoted in the text above was given.] . Immediately following Carpenter’s testimony a bench conference was held concerning a stipulation ns to the corporate existence of Sears, Roebuck & Co. No mention was made of the testimony in question. Thereupon, it was announced that the government rested. Counsel for defendants then argued motions for acquittal. Counsel for Harris, among other things, himself referred to the testimony of Carpenter hut erroneously mentioned three as the number of persons said to have entered the apartment rather than four. Again there was no claim that the testimony was improperly before the jury or that it could not be considered in the case. Later, out of the presence of the jury, the trial judge referred to the same testimony as indicating that four men entered the Pinkett apartment, and noted that this testimony had been un-objected to. Even at this point there was no objection or motion to strike by appellant’s counsel or anyone else. 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_oththres	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". HUTCHINSON et al. v. CHASE & GILBERT, Inc., et al. No. 38. Circuit Court of Appeals, Second Circuit. Nov. 10, 1930. Merrill, Rogers, Gifford & Woody, of New York City (Joshua D. Jones and Wilson B. Brice, both of New York City; of counsel), for appellants. Boyd, Chapman & Vreeland, of New York City (John S. Chapman, Jr., of New York City, of counsel), for appellee. Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.- L. HAND, Circuit Judge. The plaintiffs sued the defendant, a Massachusetts corporation, in the state court; the defendant removed for diversity of citizenship, and moved to set aside the service, because it was not doing business within the state of New York. The judge so held, and dismissed the complaint. The plaintiffs do not complain because the judgment was not limited to setting aside the service, and for this reason we treat it as though it had gone no further. The plaintiffs alleged that the defendant promised in New York to pay for their services in the purchase by it of certain shares of stock, and that they had performed in' that state; they demand the contract price, and, by an alternative count, a quantum meruit. Process was served in New York upon the defendant’s vice president, who chanced tq be there, and the only question is whether the defendant was “present” in such sense that it could be reached in a cause of action arising upon a contract, made in the course of the same activities on. which the defendant’s supposed “presence” depends. For this rea^ son we have not before us the question discussed in Old Wayne Mut. Life Ass’n v. McDonough, 204 U. S. 8, 27 S. Ct. 236, 51 L. Ed. 345; Simon v. Southern Ry. Co., 236 U. S. 115, 130-132, 35 S. Ct. 255, 59 L. Ed. 492; that is, whether without express consent a foreign corporation may be sued upon transactions arising outside the state of the forum. ICjie defendant’s business is that of an “engineering manager” of public utility corporations, of whose shares it owns a controlling interest, either directly, or through a holding company. These it supervises, looking after their property, and acting as engineer, so far as may be necessary to keep them in operation, and to extend their service. Only one of these is a New York corporation, and this has never been actually engaged in business; the defendant’s control of it is by the ownership of a majority of the shares of a company which in turn owns its shares. The defendant leases an office in New York at a small rental, keeps a small bank account there, on which it draws from Boston, where all its work is done, and employs a stenographer. It uses these facilities only upon occasional visits to New York, when its officers wish to bargain for the purchase of company shares. These negotia^ tions never result in closing contracts, because all such are referred to the home office, though at times the formal exchange of papers takes place in New York. Its directors and shareholders have always met in Boston, except that once on two successive days the directors met in New York, and on one of these, the shareholders. This was necessary because of the negotiations for the purchase of shares on that occasion. Its name appears in the telephone book, and of course on the office door. On the other hand the contract in suit was made in New York, and certain bonds of a subsidiary company were once offered for sale here by an underwriter or selling agent, whose prospectus was accompanied by a letter, dated at New York and signed by the defendant. In general, the business is conducted in Boston, where are all its records, and where all its officers and directors reside. The theory of personal jurisdiction in an action in personam is, ordinarily at any rate, derived from the power over the defendant, consequent upon his presence within the state of the forum. McDonald v. Mabee, 243 U. S. 90, 37 S. Ct. 343, 61 L. Ed. 608, L. R. A. 1917F, 458. The service of a capias subjects him de facto to such commands as its courts may utter, though in its stead a notice will usually serve. Such a theory is not really apposite to a corporation, however conceived, §nd it is only by analogy that it can be used. So long as it was thought of as a fictitious personality, created by the.státe of its origin, there were logical difficulties—or at least there were thought' to be,—in treating it as existent outside the limits of that state. Bank of Augusta v. Earle, 13 Pet. 519, 10 L. Ed. 274. As to jurisdiction, the express consent of a corporation to be sued elsewhere avoided its territorial limitations (Lafayette Ins. Co. v. French, 18 How. 404, 15 L. Ed. 451; Pennsylvania F. I. Co. v. Gold Issue Mining Co., 243 U. S. 93, 37 S. Ct. 344, 61 L. Ed. 610; Louisville & N. Ry. Co. v. Chatters, 279 U. S. 320, 323, 49 S. Ct. 329, 73 L. Ed. 711), and beginning with Lafayette Ins. Co. v. French, supra, this has been extended to eases where the corporate activities within the foreign state are such as empower that state to exact such a consent. We are not here troubled by the question whether the foreign state had power to exclude the corporation from the activities relied upon. International Harvester Co. v. Kentucky, 234 U. S. 579, 34 S. Ct. 944, 58 L. Ed. 1479. It scarcely advances the argument to say that a corporation must be “present” in the foreign state, if we define that word as demanding such dealings as will subject it to jurisdiction, for then it does no more than put the question to be answered. Indeed, it is doubtful whether it helps much in any event. It is difficult, to us it seems impossible, to impute the idea of locality to a corporation, except by virtue of those acts which realize its purposes. The shareholders, officers and agents are not individually the corporation, and do not carry it with them in all their legal transactions. It is only when engaged upon its affairs that they can be said to rep>resent it, and we can see no qualitative distinction between one part of its doings and another, so they carry out the common plan. If wo are to attribute locality to it at all, it must be equally present wherever any part of its work goes on, as much in the little as in the great. When we say, therefore, that a corporation may be sued only where it is “present,” we understand that the word is used, not literally, but as shorthand for something else. It might indeed be argued that it must stand suit upon any controversy arising out of a legal transaction entered into where the suit was brought, but that would impose upon it too severe a burden. On the other hand, it is not plain that it ought not, upon proper notice, to defend suits arising out of foreign transactions, if it conducts a continuous business in the state of the forum. At least, the Court of Appeals of New York seems still to suppose this to be true, in spite of the language in Old Wayne Mut. Life Ass’n v. McDonough, 204 U. S. 8, 27 S. Ct. 236, 51 L. Ed. 345, and Simon v. So. Ry., 236 U. S. 115, 35 S. Ct. 255, 59 L. Ed. 492. Tauza v. Susquehanna Coal Co., 220 N. Y. 259, 115 N. E. 915. And see Missouri, K. & T. Ry. v. Reynolds, 255 U. S. 565, 41 S. Ct. 446, 65 L. Ed. 788. But a single transaction is certainly not enough, whether a substantial business subjects the corporation to jurisdiction generally, or only as to local transactions. There must be some continuous dealings in the state of the forum; enough to demand a trial away from its home. This last appears to us to be really the controlling consideration, expressed shortly by the word “presence,” but involving an estimate of the inconveniences which would result from requiring it to defend, where it has been sued. We are to inquire whether the extent and continuity of what it has done in the state in question makes, it reasonable to bring it before one of its courts. Nor is it anomalous to make the question of jurisdiction depend upon a practical test. This for example is avowedly the case as to corporations engaged in interstate commerce. Davis v. Farmers’ Co-operative Equity Co., 262 U. S. 312, 43 S. Ct. 556, 67 L. Ed. 996. No doubt there are governmental reasons for protecting such corporations from local interference; yet, as mere matter of municipal law, the loss and inconvenience to ordinary companies from being sued wherever they may chance to have any dealings whatever, cannot properly be ignored, and may constitute a test of jurisdiction, just as they do of venue, really a kindred matter. If so, it seems to us that nothing is gained by concealing what we do by a word which suggests an inappropriate analogy, that is, the presence of an individual who may be arrested and compelled to obey. This does not indeed avoid the uncertainties, for it is as hard to judge what dealings make it just to subject a foreign corporation to local suit, as to say when it is “present,” but at least it puts the real question, and that is something. In its solution we can do no more than follow the decided cases. Possibly the maintenance of a regular agency for the solicitation of business will serve without - more. The answer made in Green v. C., B. & Q. R. R. Co., 205 U. S. 530, 27 S. Ct. 595, 51 L. Ed. 916, and People’s Tob. Co. v. Amer. Tobacco Co., 246 U. S. 79, 38 S. Ct. 233, 62 L. Ed. 587, Ann. Cas. 1918C, 537, perhaps becomes somewhat doubtful in the light of International Harvester Co. v. Kentucky, 234 U. S. 579, 34 S. Ct. 944, 58 L. Ed. 1479, and, if it still remains true, it readily yields to slight additions. In Tauza v. Susquehanna Coal Co., supra, there was no more, but the business was continuous and substantial. Purchases, though carried on regularly, are not enough (Rosenberg Co. v. Curtis Brown Co., 260 U. S. 516, 43 S. Ct. 170, 67 L. Ed. 372), nor are the activities of subsidiary corporations (Peterson v. Chicago, R. I. & P. Ry. Co., 205 U. S. 364, 27 S. Ct. 513, 51 L. Ed. 841; Cannon Mfg. Co. v. Cudahy Packing Co., 267 U. S. 333, 45 S. Ct. 250, 69 L. Ed. 634), or of connecting carriers (Philadelphia & Read. Co. v. McKibbin, 243 U. S. 264, 37 S. Ct. 280, 61 L. Ed. 710). The maintenance of an office, though always a make-weight, and enough, when accompanied by continuous negotiation, to settle claims (St. Louis S.W. Ry. v. Alexander, 227 U. S. 218, 33 S. Ct. 245, 57 L. Ed. 486), is not of much significance (Davega, Inc., v. Lincoln Furniture Co., 29 F.(2d) 164 (C. C. A. 2)]. It is quite impossible to establish any rule from the decided cases; we must step from tuft to tuft across the morass. In the ease at bar, the defendant has never done any continuous business in New York. It has -come here on occasion, when it found likely opportunities to buy control in a company which would fit in with its general plans. Had its business been primarily in dealing in the shares of public utility companies, and had it had a local agent, whose duty it was to bargain for these, it may be that it could not escape, merely because he had no power to dose purchases here, but must refer them to the home office. This was not the case. The acquisition of a new company whose business the defendant might supervise was of necessity sporadic; it was no part of its ordinary ’ activity. While the chief holding company controlled by the defendant in turn controls indirectly nearly a hundred smaller companies, it by no means follows that to acquire all of these the officers had to go to New York. On the contrary, it is extremely likely that in case of most of them the shares were locally held. , Only one of them was in New York and this had never done any business. So far as appears, the visits bo. New York were infrequent, and concerned only the holding units, which are few. There is no evidence that it ever borrowed money in New York, if that be material ; the sale of certain bonds of -a holding company, in the control of another co-m.pany which the defendant in turn controlled, was immaterial, and no more was shown. None of this, and not all of it, seems to us a good reason'for drawing the defendant into a suit away from its home state. In the end there is nothing more to be said than that all the defendant’s local activities, taken together, do not make it reasonable to impose such a burden upon it. It is fairer that the plain-tiffs should go to Boston than that the defendant should come here. Certainly such a standard is no less vague than any that the courts have hitherto set up; one may look from one end of the decisions to- the other and find no vade meeum. Judgment affirmed. Question: Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_numresp	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. The DUPLAN CORPORATION, Appellee, v. MOULINAGE et RETORDERIE de CHAVANOZ, Appellant, Deering Milliken, Inc., et al., Defendants. No. 73-1618. United States Court of Appeals, Fourth Circuit. Argued June 5, 1973. Decided Oct 23, 1973. Jay Greenfield, New York City (Butler, Means, Evins & Browne, Spartanburg, S. C., Paul, Weiss, Rifkin, Wharton & Garrison, Morgan, Finnegan, Durham & Pine, Simon H. Rifkind, New York City, Thomas A. Evins, Spartanburg, S. C., and Robert S. Smith, New York City, on brief), for appellant. Fletcher C. Mann and O. G. Calhoun, Jr., Greenville, S. C. (Allan Trumbull on brief), for appellee. Before BRYAN, Senior Circuit Judge, and FIELD and WIDENER, Circuit Judges. FIELD, Circuit Judge: We entertained this appeal upon the narrow question whether upon the termination of litigation the work product documents prepared incident thereto lose the qualified immunity extended to them under Rule 26(b)(3), Federal Rules of Civil Procedure, and become freely discoverable in subsequent and unrelated litigation. In this multidistrict patent-antitrust proceeding, resolution of this question is of vital importance with respect both to depositions and requests for production of documents. The district judge initially concluded “that once the privilege attaches it remains regardless, of the litigation in which discovery is sought.” However, in the course of the extensive discovery proceedings he reconsidered his position and concluded “that (1) when a case in litigation is finally terminated; (2) by either a decision of the court or by settlement among the parties; (3) the work product privilege is also terminated ; and (4) the work product of attorneys in the prior litigation is therefore subject to discovery in subsequent litigation.” Recognizing the importance of his ruling the district judge certified his order for interlocutory consideration pursuant to 28 U.S.C. § 1292(b) and we granted the appeal. We disagree with the conclusion of the district judge and reverse. From the time the Federal Rules were first adopted one of the most litigated questions relative to the scope of discovery has been the extent to which a party may obtain disclosure and inspection of the documents and information developed during the course of an opponent’s preparation for trial. As a result of the flood of inconsistent decisions in this area, in June of 1946 the Advisory Committee on Rules proposed an amendment to Rule 30(b). The Supreme Court did not adopt the proposed amendment but dealt with the problem in the landmark case of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). In Hickman the Court recognized a qualified immunity for what it characterized as the “work product of the lawyer” and held that it was discoverable only upon a substantial showing of “necessity or justification.” Unfortunately, in the succeeding years the. courts failed to apply the principles of Hickman in a definitive or uniform manner, and one court went so far as to state that the decision had opened a veritable “Pandora’s box.” With the decisions of the district courts going off in different directions, the Advisory Committee once again turned its attention to the troublesome subject of work product. In a preliminary draft in 1967, the Committee suggested á new Rule 26(b)(3) defining work product and allowing discovery thereof “only upon a showing of good cause therefor.” The proposal was roundly criticized especially by those who felt that the test of “good cause” would not provide sufficient protection for work product material, and it was suggested that the “badly tarnished good cause test of Rule 34” would lower the barrier set in Hickman. See Freund, Work Product, 1968, 45 F.R.D. 493, 495. Responsive to this widespread criticism the proposal was altered and finally cast in the form in which it was adopted by the Supreme Court in 1970. It is generally conceded that the new Rule reflects the rationale of Hickman, and Professor Wright characterizes it as “an accurate codification of the doctrine announced in the Hickman case * * There is, of course, nothing in the Rule itself that suggests a specific answer to the question before us, nor is there any indication in the Advisory Committee Note to Rule 26(b)(3) that the Committee gave any particular thought to this problem. However, since the Rule tracks Hickman the answer must, primarily, be gleaned from that decision. The theme of Hickman is succinctly stated in Mr. Justice Murphy’s prefatory statement: “Examination into a person’s files and records, including those resulting from the professional activities of an attorney, must be judged with care. It is not without reason that various safeguards have been established to preclude unwarranted excursions into -the privacy of a man’s work. At the same time, public policy supports reasonable and necessary inquiries. Properly to balance these competing interests is a delicate and difficult task.” 329 U.S. at 497, 67 S.Ct. 385, at 387, 91 L.Ed. 451. And disapproval of carte blanche incursions is manifest in the now classic statement: “Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. . The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.” 329 U.S. at 511, 67 S.Ct. 385, at 393, 91 L.Ed. 451. Hicktnan clearly stands for the principle that the integrity of the adversary process must be safeguarded in spite of the desirability of the free interchange of information before trial. Its overriding concern is that the lawyer’s morale be protected as he performs his professional functions in planning litigation and preparing his case. This work product immunity is the embodiment of a policy that a lawyer doing a lawyer’s work in preparation of a case for trial should not be hampered by the knowledge that he might be called upon at any time to hand over the result of his work to an opponent. The concern of the Court for the integrity of the practicing bar was made crystal clear in the trenchant concurrence of Mr. Justice Jackson when he stated that “[t]he primary effect of the practice advocated here would be on the legal profession itself,” and “[t]he real purpose and the probable effect of the practice ordered by the district court would be to put trials on a level even lower than a ‘battle of wits’.” Mr. Justice Jackson then proceeded to point out the practical and undesirable professional consequences that'could result from such a broad concept of the discovery process. While, of course, the Court in Hickman was addressing itself to material obtained by an attorney incident to the litigation then in progress, the rationale is scarcely less applicable to a case which has been closed than to one which is still being contested. The decision was not in any manner based upon the rights or posture of the litigants visa-vis each other. Such a basis was expressly disavowed. Rather, the thrust of the decision was the qualified protection of the professional effort, confidentiality and activity of an attorney which transcends the rights of-the litigants. This concern was reiterated in the final words of the Hickman opinion: “We fully appreciate the wide-spread controversy among the members of the legal profession over the problem raised by this case, (footnote omitted) It is a problem that rests on what has been one of the most hazy frontiers of the discovery process. But until some rule or statute definitely prescribes otherwise, we are not justified in permitting discovery in a situation of this nature as a matter of unqualified right. When Rule 26 and the other discovery rules were adopted, this Court and the members of the bar in general certainly did not believe or contemplate that all the files and mental processes of lawyers were thereby opened to the free scrutiny of their adversaries. And we refuse to interpret the rules at this time so as to reach so harsh and unwarranted a result.” 329 U. S. at 514, 67 S.Ct. 385, 395, 91 L.Ed. 451. This is strong judicial language and we find no indication that the Court intended to confine the protection of the work product to the litigation in which it was prepared or to make it freely discoverable in a subsequent law suit. To so interpret Hickman would in our opinion elide the broad rationale of the Court’s decision. Assuredly, the intrusion upon the attorney and the possibility of the demeaning professional consequences envisioned by Mr. Justice Jackson are just as objectionable in one case as the other. We are well aware of the divergent conclusions reached in similar eases but in all deference we think that those courts which permitted unqualified disclosure misread the basic teaching of Hickman. On balance, we think the legal profession and the interests of the public aré better served by recognizing the qualified immunity of work product materials in a subsequent case as well as that in which they were prepared, and this in our opinion comports with the statement in Hickman: “But the general policy against invading the privacy of an attorney’s course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order. That burden, we believe is necessarily implicit in the rules as now constituted.” 329 U.S. at 512, 67 S.Ct. 385, at 394, 91 L.Ed. 451. Our decision will not in any way frustrate the ends of justice. If the party seeking discovery can demonstrate the substantial need and undue hardship specified in the Rule and recognized in Hickman, the district court will order production. We think it appropriate and desirable that the district judge determine whether a party has made a showing sufficient to justify such an intrusion upon the privacy of an attorney’s files. The order appealed from will be reversed and we remand to the district court for further consideration consistent with this opinion. Reversed and remanded. . Rule 26(b)(3), Fed.R.Civ.P., reads as follows : Trial Preparation: Materials. Subject to the provisions of subdivision (b) (4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b) (1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the material by other means. In ordering discovery of such materials when the required showing has been made, the court . shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. . It appears to be conceded that the documents claimed by Moulinage et Retorderie de Chavanoz [hereinafter referred to as Chav-anoz] to be work product were generated incident to (1) a series of lawsuits in the early 1960s in which Leesona Corporation claimed that United States patents owned by it were infringed by the sale and operation of machines manufactured by a licensee of Chav-anoz, or (2) a series of proceedings in foreign countries relative to the validity and infringement of foreign counterparts to the Chavanoz patents here in issue. It is further conceded that each of these litigations was terminated prior to the commencement of the present case. Counsel for appellant submitted to this court copies of three “illustrative documents,” the first of which appears to be notes of a meeting attended by four representatives of Chavanoz, two French patent counselors, a British solicitor and a patent agent. The document states that the purpose of the meeting was to “discuss the possible mounting of an infringement action against Klinger Manufacturing Co. * * and such litigation was later instituted. The second document is a working draft, including handwritten notes, of a memorandum prepared by Leo Soep, patent counselor for Chavanoz, relative to infringement litigation between Chavanoz and Leesona. The third document is a legal opinion from an attorney specializing in antitrust matters directed to an attorney specializing in patent matters relative to litigation against Leesona Corporation then pending in the District Court of Massachusetts. . Report of Proposed Amendments, June, 1946. Reprint, 5 F.R.D. 433, 456. . 329 U.S. at 510, 67 S.Ct. 385, 91 L.Ed. 451. . Viront v. Wheeling & Lake Erie Ry. Co., 10 F.R.D. 45, 47 (N.D.Ohio 1950). . Preliminary Draft of Proposed Amendments to Rules of Civil Procedure relating to Depositions and Discovery, November, 1967. Reprint, 43 F.R.D. 225. . 8 Wright & Miller, Federal Practice and Procedure, p. 193. . See Federal Rules of Civil Procedure, Amended Rules, March 30, 1970. Reprint, 48 F.R.D. 459, 497. See Radiant Burners, Inc. v. American Gas Association, 207 F.Supp. 771, 776 (N.D.Ill. 1962). . Hickman v. Taylor, supra, 329 U.S. at 514, 67 S.Ct. 385, 395, 91 L.Ed. 451. . Id. 329 U.S. 495 at 516, 67 S.Ct. 385, at 396, 91 L.Ed. 451. . In Hickman the Court recognized that the materials sought fell outside the scope of the attorney client privilege. That privilege is for the protection and benefit of the client and not of the attorney. On the other hand, the attorney “work product” privilege is traditionally a privilege of the attorney and not of the client, and it has been held that waiver of the attorney-client privilege does not con-stituté a waiver of an objection that the information falls within the qualified immunity from discovery provided by the work product rule. Vilastor-Kent Theatre Corp. v. Brandt, 19 F.R.D. 522 (S.D.N.Y.1956) ; Developments in the Law, Discovery, 1961, 74 Harvard Law Review 940-1044, 45. . 329 U.S. at 507, 67 S.Ct. 385, 91 L.Ed. 451. . The Court in Hiokman adverted to the English concept of “professional privilege.” 329 U.S., n. 9, p. 510, 67 S.Ct. 385, 91 L.Ed. 451. In England the privilege, which includes all documents prepared by or for counsel in pending or anticipated litigation, is recognized in subsequent litigation as well as the law suit in which it is prepared. Lord Justice Bowen in Lyell v. Kennedy, 27 Ch.Div. 1 (C.A.1884), stated the basis of the English privilege: “Then comes the point as to documents, and as to the documents, I agree with everything that has been said by the Lord Justice. We are not dealing now with documents which the XJarty has procured himself; we are dealing with documents which have been procured at the instigation of a solicitor; and, bearing in mind the rule of privilege which the law gives in respect of information obtained by a solicitor, it seems to me we cannot make the order asked for by Mr. MacClymont without doing very serious injustice in this case. A collection of records may be the result of professional knowledge, research and skill, just as a collection of curiosities is the result of the skill and knowledge of the antiquarian or virtuoso, and even if the solicitor has employed others to obtain them, it is his knowledge and judgment which have probably indicated the source from which they could be obtained. It is his mind, if that be so, which has selected the materials, and those materials, when chosen, seem to me to represent the result of his professional care and skill, and you cannot have disclosure of them without asking for the key to the labour which the solicitor has bestowed in obtaining them.” In Pearce v. Foster, 15 Q.B. Div. 114 (C.A. 1885) the documents sought had been prepared for use in an action which did not ultimately proceed. The court recognized that the documents fell within the scope of the privilege delineated in Lyell v. Kennedy, supra, and went on to state at page 119: “Then the question arises whether, assuming them to be within this privilege, the privilege is any the less applicable because in the present case the inquiries with regard to the documents are being made in an action other than that in regard to which they were originally brought into existence. I do not think, if they were privileged in relation to the first action, that the privilege ceases in relation to another action. The case of Bullock v. Corry (1) seems to me to be an authority for that conclusion, and the judgment of Cockburn, O. J., in that case, lays down a most valuable principle on this subject. There the documents in question were being inquired about in a different action from that in relation to which they originally came into existence, and the Lord Chief Justice said: ‘The privilege which attaches by the invariable practice of our Courts to communications between solicitor and client ought to be carefully preserved. In my opinion the rule is, once privileged always privileged. This will apply a fortiori where the succeeding action is substantially the same as that in which the documents were used.’ ” . See Tobacco & Allied Stocks, Inc. v. Transameriea Corp., 16 F.R.D. 537 (D.Del.1954) ; Hanover Shoe, Inc. v. United Shoe Machinery Corp., 207 F.Supp. 407 (M.D.Pa.1962) ; Honeywell, Inc. v. Piper Aircraft Corp., 50 F.R.D. 117 (M.D.Pa.1970). Cf. Insurance Company of North America v. Union Carbide Corp., 35 F.R.D. 520 (D.Colo.1964) ; LaRocca v. State Farm Mutual Automobile Insurance Co., 47 F.R.D. 278 (W.D.Pa.1969). See also Republic Gear Co. v. Borg Warner Corp., 381 F.2d 551 (2 Cir. 1967). In some cases the courts have held that documents prepared for one case are protected in a second case only if the two cases are “closely related.” In our opinion to dispose of this delicate and important question by such a technical touchstone is incompatible with the essential basis of the Hiclcman decision. . In their brief counsel for appellee contend that they had satisfied the “substantial need” and “undue hardship” requirements of Rule 26(b)(3). This issue is not properly before us on this interlocutory appeal and we express no opinion on this phase of the controversy. This, of course, is a matter which properly should be considered and determined by the district judge upon remand. . See 8 Wright & Miller, Federal Practice and Procedure, p. 202. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_source	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 825, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Respondent. No. 14216. United States Court of Appeals Third Circuit. Argued Oct. 10, 1963. Decided Jan. 8, 1964. , Solomon Hirsh, N. L. R. B., Washington, D. C. (Stuart Rothman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, James McC. Hark-less, Attorney, N. L. R. B., on the brief) for petitioner. John J. Mooney, New York City (Michael Breitkopf, Newark, N. J., on the brief), for respondent. Before STALEY, HASTIE and SMITH, Circuit Judges. STALEY, Circuit Judge. The National Labor Relations Board has found that respondent violated § 8 (b) (4) (i) and (ii) (B) of the National Labor Relations Act, as amended. The operative facts which formed the basis for that finding have been fully set forth in our opinion, filed this day, in the companion case of National Labor Relations Board v. Local 825, International Union of Operating Engineers, APL-CIO, 326 F.2d 213 (C.A.3, 1964), in which the Board concluded that respondent had also violated the jurisdictional-dispute section of the Act. Accordingly, we will not restate those facts in this opinion except where essential to discussion of the issues raised herein. Prom an examination of the provisions of § 8(b) (4) (i) and (ii) (B), it will be seen that a violation of that section requires two elements, i. e., the union must engage in conduct proscribed therein, and an object of that conduct must be “forcing or requiring any person * * * to cease doing business with any other person.” The Board found that by its actions of May 3 and May 9, 1961, respondent had induced or encouraged the employees of Elmhurst Contracting Company and Selby Drilling Company to engage in a work stoppage or strike and had thereby threatened, restrained, and coerced those employers. More important, the Board concluded that an object of this conduct was to force or require Elmhurst and Selby to cease doing business with Nichols Electric Company. Respondent denies both that the actions of May 3 and May 9 constituted a strike or work stoppage, and that it threatened, restrained, and coerced Elmhurst and Selby. More fundamentally, respondent argues that the record is devoid of evidence that the union’s conduct was for an object proscribed by § 8(b) (4) (i) and (ii) (B). We find it unnecessary to consider respondent’s initial contention, for we agree that there is a lack of substantial evidence to support the Board’s conclusion that an object of the work stoppage was to force Elmhurst and Selby to cease doing business with Nichols. In its decision the Board noted that there was no explicit demand upon Elmhurst and Selby for this purpose. Indeed, there is no evidence that any union representative ever discussed the possibility of such an alternative with either employer. There was no communication of any kind between respondent and those employers relating to the work stoppage; Elmhurst’s project manager testified that he was informed of the work stoppage indirectly, and Selby’s superintendent stated that he was notified of it by O’Brien, Nichols’ foreman. Nonetheless, the Board concluded that the surrounding circumstances established that an object of respondent’s conduct was to force these employers to cease doing business with Nichols. It reasoned: “ * * * Thus, Selby and Elmhurst, in order to keep their employees at work, were faced with the choice of ceasing to do business with Nichols or having the work done in some other manner. Although the work was finally accomplished manually by Nichols at the request of Selby’s superintendent, Kangas, there is no indication that Respondent suggested this or any other alternative. We conclude, then, that an object of the strike was to force Selby and Elmhurst to cease doing-business with Nichols. Even, assuming, arguendo, that Respondent merely intended by its strike to-force Selby and Elmhurst to require Nichols to change its method of operation, this in itself would have disrupted or seriously curtailed the existing business relationship between Nichols and these two other contractors, which would have been tantamount to causing the latter employers to cease doing business with Nichols.” But the undisputed evidence, as set: forth in our opinion in 326 F.2d 213,. shows that the operating engineers left their jobs for the purpose of preventing-the electricians employed by Nichols, from operating the power auger and winch. There is simply no evidence that an object of this action was to force-their own employers to cease doing business with Nichols. To put the matter another way, the record conclusively demonstrates that the work stoppage was-merely an incidental consequence of the-efforts of the engineers to prevent the-operation of the power equipment by the-electricians, and to compel Nichols to assign the work to them. In order to do-this they had to leave their jobs, but this-does not mean that in doing so they sought to compel their employers to cease-doing business with Nichols. In short,, the conduct of the union was directed', against Nichols and only incidentally did! it affect Elmhurst and Selby. In its brief the Board argues that “by virtue of the pressure put upon Nichols by the secondary employees’ work stoppage, Nichols was forced to forsake the efficiency and economies offered by the power-driven auger, and had to fall back upon the slower and costlier method of digging each hole with manual labor.” This argument misses the mark, for co-constitute unlawful secondary activity the union must exert pressure upon the secondary employer with an object of forcing him to cease doing business with the primary employer. Absent this, direct pressure upon the primary employer is not a violation of § 8(b) (4) (i) and (ü) (B). At oral argument, the only evidence which counsel for the Board was able to cite as showing threats, coercion, and restraint upon the secondary employers for the prohibited object was the statements by various union members that their contract with Elmhurst and Selby required that the work be assigned to them. But these statements' were made, not to Elmhurst and Selby, but to Nichols in support of the engineers’ claim that they were entitled to the work. In these circumstances they cannot be viewed as evidence of threats, coercion, and restraint upon the secondary employers to force them to cease doing business with Nichols. In support of its position the Board cites Retail Clerks Union Local 770 v. National Labor Relations Board, 11 U.S. App.D.C. 246, 296 F.2d 368 (1961). But that case aids the position of respondent, for there the court held it essential that the Board provide factual support for its conclusion that an object of the work stoppage was to force a cessation of business. In sum, respondent’s activities against Nichols constituted a violation of the jurisdictional-dispute section of the statute. The Board so found, and we have already stated that we will enforce its decree in that regard. National Labor Relations Board v. Local 825, International Union of Operating Engineers, 326 F.2d 213. But the Board has gone further in this case and has attempted to convert that activity into a violation of § 8(b) (4) (i) and (ii) (B). The record will not support the attempt. The petition for enforcement will be denied. . “§ 158. Unfair labor practices “(b) It shall be an unfair labor practice for a labor organization or its agents — ■ ***** “(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to * * * perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is— ***** “(B) forcing or requiring any person . * * * to cease doing business with any other person * * 29 U.S.O.A. § 158(b) (4) (i) & (ii) (B). . In this court respondent has abandoned its argument that the persons alleged to have induced the work stoppage were not its agents. . Respondent also argues that, assuming, arguendo, that an object of the work stoppage was to force Elmhurst and Selby to cease doing business with Nichols, such conduct is lawful under § 8(e) of the Act. 29 U.S.C.A. § 15S(e). In view of our determination, we need not examine that argument here. However, the same contention was advanced in 326 F. 2d 213, and was there rejected. Of course, in doing so, we did not hold that an object of the work stoppage was to force a cessation of business. . The Board also cites New York Mailers’ Union No. 6 v. National Labor Relations Board, 114 U.S.App.D.C. 370, 316 F.2d 371 (1963) ; Los Angeles Mailers Union No. 9 v. National Labor Relations Board, 114 U.S.App.D.C. 72, 311 F.2d 121, (1962); National Labor Relations Board v. Amalgamated Lithographers of America (Ind.), 309 F.23 31 (C.A.9, 1962). However, in each of these cases the evidence before the Board amply supported the inference which it drew. Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:
sc_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. UNITED STATES v. JIM et al. No. 71-1509. Decided November 20, 1972 Together with No. 71-1612, Utah et al. v. Jim et al., on appeal from the same court. Per Curiam. The motion of the Navajo Tribe of Indians for leave to file a brief as amicus curiae in No. 71-1509, is granted. These cases are here on appeal from a judgment of the District Court for the District of Utah that declared an Act of Congress to be unconstitutional. Jurisdiction in this Court is conferred by 28 U. S. C. §§ 1252 and 2101 (a). In 1933, the Congress withdrew certain lands in Utah, known as the “Aneth Extension,” from the public domain and added them to the Navajo Reservation. Though no oil or gas was believed to be located on these lands, it was provided that should such mineral resources be produced in commercial quantities, “37% per centum of the net royalties accruing therefrom derived from tribal leases shall be paid to the State of Utah: Provided, That said 37% per centum of said royalties shall be expended by the State of Utah in the tuition of Indian children in white schools and/or in the building or maintenance of roads across the lands described in section 1 hereof, or for the benefit of the Indians residing therein.” 47 Stat. 1418. The remaining 62%% of the royalties generated by any such tribal mineral leases were, by implication, to go to the Navajo tribe. After the passage of the Act, oil and gas were discovered on the Aneth Extension, and royalties were divided pursuant to the statute. The State of Utah created an Indian Affairs Commission to manage and expend the funds received by the State under the Act. As time went on, the language of the 1933 Act came to create administrative problems regarding the expenditure of the funds channeled through the State. A report of the Senate Committee on Interior and Insular Affairs noted in 1967 that the word “tuition” in the 1933 Act had created uncertainty as to the breadth of the educational program the State was authorized to finance from the royalty funds. The report also noted a difficulty in discerning precisely who was properly a beneficiary of the funds, since “many Navajo families do not live permanently within the lands set aside in 1933, but move back and forth between this area and other locations.” S. Rep. No. 710, 90th Cong., 1st Sess., 2 (1967). To make the administration of these funds more flexible and to spread the benefits of the royalties more broadly among the Navajo community, the Congress enacted a statute in 1968 that directed the State to expend the 37%% of royalties “for the health, education, and general welfare of the Navajo Indians residing in San Juan County.” 82 Stat. 121. This statutory change expanded the pool of beneficiaries substantially, and a class action was brought on behalf of the residents of the Aneth Extension, seeking inter alia a declaration that the statute was an unconstitutional taking of property without just compensation. The District Court concluded that the 1933 Act vested certain property rights in the plaintiffs, and held the 1968 Act, with its changed pool of beneficiaries, to be unconstitutional. The judgment of the District Court is in error. Congress in 1933 did not create constitutionally protected property rights in the appellees. The Aneth Extension was added to a tribal reservation, and the leases which give rise to mineral royalties are tribal leases. It is settled that “[w]hatever title the Indians have is in the tribe, and not in the individuals, although held by the tribe for the common use and equal benefit of all the members.” Cherokee Nation v. Hitchcock, 187 U. S. 294, 307; Delaware Indians v. Cherokee Nation, 193 U. S. 127, 136. To be sure, the 1933 Act established a pattern of distribution which benefited the appellees more than other Indians on the Navajo Reservation. But it was well within the power of Congress to alter that distributional scheme. In Gritts v. Fisher, 224 U. S. 640, this Court approved a congressional enlargement of the pool of Indians who were to benefit from a distribution of tribal property. There, too, an earlier statute had established a more limited entitlement. “But it is said that the act of 1902 contemplated that they [the beneficiaries under the first enactment] alone should receive allotments and be the participants in the distribution of the remaining lands, and also of the funds, of the tribe. No doubt such, was the purport of the act. But that, in our opinion, did not confer upon them any vested right such as would disable Congress from thereafter making provision for admitting newly born members of the tribe to the allotment and distribution. The difficulty with the appellants’ contention is that it treats the act of 1902 as a contract, when 'it is only an act of Congress and can have no greater effect.’ ... It was but an exertion of the administrative control of the Government over the tribal property of tribal Indians, and was subject to change by Congress . . . .” Id., at 648. Congress has not deprived the Navajo of the benefits of mineral deposits on their tribal lands. It has merely chosen to re-allocate the 37%% of royalties which flow through the State in a more efficient and equitable manner. This was well within the power of Congress to do. As no “property,” in a Fifth Amendment sense, was conferred upon residents of the Aneth Extension by the 1933 Act, no violation of the Fifth Amendment was effected by the 1968 legislation. The judgment of the District Court is Reversed. The decision of the District Court is unreported. While the 1933 Act remained in effect, the District Court properly insisted that the Utah State Indian Affairs Commission comply with the statutory formula for disbursements. See Sakezzie v. Utah Indian Affairs Comm’n, 198 F. Supp. 218 (declaratory judgment); 215 F. Supp. 12 (supplemental relief). We intimate no view as to the rights a tribe might have if Congress were to deprive it of the value of mineral royalties generated by tribal lands. 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_genapel1	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. UNITED STATES of America, Appellee, v. Fred BULL, Jr., Appellant. No. 77-1315. United States Court of Appeals, Fourth Circuit. Argued Aug. 10, 1977. Decided Nov. 23, 1977. Brian K. Miller, Richmond, Va., for appellant. Alexandra E. Divine, Third-Year Law Student (William B. Cummings, U. S. Atty., Alexandria, Va., and David A. Schneider, Asst. U. S. Atty., Richmond, Va., on brief) for appellee. Before RUSSELL, WIDENER and HALL, Circuit Judges. PER CURIAM: The appellant was found guilty by a jury of possession of a firearm in violation of App., § 1202(a)(1), 18 U.S.C. He has appealed, alleging that the court erred in finding that the “stop and frisk” conducted by the police officer, during which the firearm was discovered, was reasonable or proper and in failing to suppress evidence of the discovery of the weapon. We affirm. The critical issue is whether the “stop and frisk” of the defendant, which resulted in the discovery of the concealed weapon and the subsequent arrest, was a “stop and frisk” or an actual arrest and, whether if a “stop and frisk” it was reasonable under the circumstances. This is so because, if the “stop and frisk” was valid, the confiscation of the weapon on which the prosecution rested, was necessarily valid since it was abandoned by the defendant in open view of the accosting officer. The officer involved testified that his initial accosting of the defendant was a “stop and frisk” and not an arrest. All the circumstances, save the one cited by the defendant, support this testimony of the officer. The oné circumstance on which the defendant relies for his contention that the action of the officer constituted an arrest was the use of his gun when he accosted the defendant. This fact, standing alone, however, is not sufficient to constitute the action of the officer as an arrest; it is but one circumstance, along with all the others surrounding the incident, to be weighed in determining the character of the officer’s action. Considering all the circumstances, as the district judge did, the conclusion that the action of the officer in stopping the defendant was not an arrest is amply supported in the record. Accepting the finding that the action of the officer was a “stop and frisk,” the next issue is whether the “stop and frisk” was proper, i. e., did the officer have a reasonable and “founded” suspicion that criminal activity might be afoot. If he had such a “founded” suspicion, he had a right to stop the defendant in order to question him, and, in connection with that questioning, to conduct a limited search for weapons provided the officer reasonably feared that the one to be questioned might be armed. Terry v. Ohio (1968) 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889; Adams v. Williams (1972) 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612. Among the circumstances to be considered in connection with this issue are the “characteristics of the area” where the stop occurs, the time of the stop, whether late at night or not, as well as any suspicious conduct of the person accosted such as an obvious attempt to avoid officers or any nervous conduct on the discovery of their presence. See United States v. Brignoni-Ponce (1975) 422 U.S. 873, 884-85, 95 S.Ct. 2574, 45 L.Ed.2d 607. In evaluating or assessing such circumstances — particularly the conduct of the suspect the officer is entitled to draw upon his own experience as an officer. Terry v. Ohio, supra, 392 U.S. at 27, 88 S.Ct. 1868. This is so because “[c]onduct innocent in the eyes of the untrained may carry entirely different ‘messages’ to the experienced or trained observer.” Davis v. United States (1969) 133 U.S.App.D.C. 172, 174, 409 F.2d 458, 460, cert. denied 395 U.S. 949, 89 S.Ct. 2031, 23 L.Ed.2d 469. United States v. Purry (1976) 178 U.S.App.D.C. 139, 142, 545 F.2d 217, 220. In this case, the officer had long been engaged in investigating night-time burglaries in shopping areas such as that involved here. While he was traveling in an unmarked car, the car was one well known in the community to be of the type used by plain-clothes detectives, such as the officer in this case. The time was late and most of the stores in the area had long since been closed. The defendant and his companion were the only ones observable in the area where they were seen by the officer, and there was no vehicular traffic. They seemed to be wandering aimlessly about the area, looking the area over. When they saw the officer approaching, they turned their backs and bent over as if they were tying their shoes, in an apparent effort to avoid having their faces observed by the officer. When the officer passed, he looked in his rear-view mirror and observed that the defendant and his companion promptly looked up in order to observe carefully where the officer went. Because of the suspicious conduct of the defendant and his companion, the officer proceeded beyond the sight of the defendant, stopped his ear, got out and hid behind some bushes to observe the defendant and his companion as they proceeded in his direction. When the defendant and his companion drew near, the officer stopped the two of them, and at this point, he noticed that they had on hats from beneath which protruded panty hose, and with companion officers whom he had called to the scene for assistance, he instructed them to turn around for frisking preparatory to questioning them. His determination to frisk them was prompted, he explained, by the fact that one of the parties had on a jacket on a warm night under which he feared a weapon might be concealed. At this point, he observed the defendant remove a firearm from his belt, drop it to the ground and kick it under the police car, in plain view of the officer. The officer later seized the weapon which the defendant had dropped and the arrest of the defendant followed. We are satisfied that, under the circumstances there was probable cause for the “stop and frisk.” Since the “stop and frisk” was reasonable, the seizure of the weapon, abandoned by the defendant in plain view of the accosting officer, in turn was proper. Harris v. United States (1968) 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067. See, United States v. McLaughlin (9th Cir. 1975) 525 F.2d 517, 519, cert. denied 427 U.S. 904, 96 S.Ct. 3190, 49 L.Ed.2d 1198; United States v. Maryland (5th Cir. 1973) 479 F.2d 566, 568; Robinson v. Parratt (D.Neb.1976) 421 F.Supp. 664, 668-69, aff’d., 8th Cir., 546 F.2d 764. The judgment of the district court is accordingly AFFIRMED. . United States v. Worthington (5th Cir. 1977) 544 F.2d 1275, 1280, n. 3, U.S. appeal pending; United States v. Maslanka (5th Cir. 1974) 501 F.2d 208, 213, n. 10, cert. denied 421 U.S. 912, 95 S.Ct. 1567, 43 L.Ed.2d 777 (“[t]o require an officer to risk his life in order to make an investigatory stop would run contrary to the intent of Terry v. Ohio * * *.”); United States v. Russell (9th Cir. 1976) 546 F.2d 839, 841 (Wright, J., concurring); United States v. Richards (9th Cir. 1974) 500 F.2d 1025, 1028, cert. denied 420 U.S. 924, 95 S.Ct. 1118, 43 L.Ed.2d 393. . See, United States v. Magda (2d Cir. 1976) 547 F.2d 756, 758: “The Terry Court found that the governmental interest in crime prevention and detection would permit a police officer in appropriate circumstances to ‘approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an 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:
songer_appfed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. HELVERING, Commissioner of Internal Revenue, v. ELKHORN COAL CO. No. 4158. Circuit Court of Appeals, Fourth Circuit. Oct. 18, 1937. On Rehearing April 5, 1938. HENRY H. WATKINS, District Judge, dissenting. Arnold Raum, Sp. Asst, to Atty. Gen. (James W. Morris, Asst. Atty. Gen., and Sewall Key and Ellis N. Slack, Sp. Assts. to Atty. Gen., on the brief), for petitioner. Leo H. Hoffman, of New York City (Hoffman & Knox, Robert W. Knox, and Francis C. Moore, all of New York City, on the brief), for respondent. • Hugh Satterlee, Logan Morris, and Weill, Satterlee, Green & Morris, all of Washington, D. C., amici cur», on rehearing. Before PARKER and NORTHCOTT, Circuit Judges, and HENRY H. WATKINS, District Judge. PARKER, Circuit Judge. This is a petition to review a decision of the Board of Tax Appeals holding profit realized by the Elkhorn Coal & Coke Company upon a transfer of certain mining properties to the Mill Creek Coal & Coke Company to be nontaxable. The ground of the decision was that the transfer was made pursuant to a plan of reorganization within the meaning of section 203(h) (1) (A) of the Revenue Act of 1926, 44 Stat. 12. The facts were stipulated and are set forth at length in the findings of the Board which are reported with its opinion in Elkhorn Coal Co. v. Com’r, 34 B.T. A. 845. Those material to the question presented by the petition are in substance as follows: Prior to December 18, 1925, the Elkhorn Coal & Coke Company, to- which we shall hereafter refer as the old company, owned certain coal mining properties in West Virginia and certain stocks in other mining companies engaged in business in that state. It was closely associated with the Mill Creek Coal & Coke Company, which owned neighboring property; and a majority of the directorate of both corporations consisted of the same persons. Early in December, 1925, a plan was formed whereby the old company was to transfer its mine, mining plant, and mining equipment at Maybeury, W. Va., to the Mill Creek Company in Exchange for 1,000 shares of the capital stock of that company. This exchange was accomplished on December 31, 1925, at which time, it is stipulated, the stock received by the old company had a fair market value of $550,000 which is in excess of the deficiency asserted by the Commissioner. There is no contention that the transfer by the old company was to a corporation controlled by it or by its stockholders and therefore within the nonrecognition provision of section 203(h) (1) (B) of the act; but the argument of the taxpayer is that the transfer was of all the properties of one corporation for the stock of another, and therefore within the nonrecognition provision of section 203(h) (1) (A). The contention that the transfer in question was of all the properties of the old company depends upon the.legal conclusion to be drawn from certain evidentiary facts relating to the prior organization of another corporation and the transfer to it of all the property of the old company which was not to be transferred to the Mill Creek Company. These facts, which were found by the Board and are undisputed, are as follows: At the time that the transfer to the Mill Creek Company was decided upon, the officers of the old company caused another corporation to be organized under the name of the Elkhorn Coal Company, which we shall refer to hereafter as the new company, and on December 18, 1925, transferred to it, in exchange for 6,100 shares of its stock, all of the property of the old company which was not to be transferred to the Mill Creek Company except certain accounts, which were transferred to the new company on December 28, 1931, in consideration of its assuming the liabilities of the old company. The 6,100 shares of stock in the new company were promptly distributed by the old company as a dividend to its stockholders. This left the old company owning only the property which was to be transferred to the Mill Creek Company under the plan and which was transferred to that company on December 31st, as mentioned in the preceding paragraph. Following that transfer and the receipt by the old company of the 1,000 shares of the stock of the Mill Creek Company pursuant thereto, the new company proceeded to place itself in the same position relative to the stockholders of the old company that the old company had occupied, and then to wind up its affairs. It accomplished that result in the following manner: On January 22, 1926, it exchanged 1,440 shares of its capital stock for the 7,540 shares of the outstanding capital stock of the old company, making the exchange with the stockholders of that company. This gave those who had been stockholders in the old company the same interest in the new company that they had had in the old, and gave to the new company the ownership of all of the stock in the old. The 1,000 shares of stock received from the Mill Creek Company were then transferred to the new company and the old company was dissolved. No business whatever was done by the old company after the transfer of assets to the Mill Creek Company on December 31st; and no reason appears for the organization (of the new company except to provide a transferee to take over and hold the assets which were not to be transferred to the Mill Creek Company so that the transfer to that company when made would be a transfer of all the assets of the old company. The Board was of opinion that all of these transactions were carried through pursuant to prearranged plan, saying: “We do not doubt that before a single step was taken a plan had been formulated for regrouping the corporate assets”; and “The stipulated facts justify the inference that one of the motives which the stockholders of Elkhorn had in organizing the new corporation and causing the three corporations to adopt the several steps or plans of reorganization which were adopted and carried out, was to make the transfer of the mining properties from Elkhorn to Mill Creek without resulting tax liability to Elkhorn or to themselves.” The Board thought, however, with five members dissenting, that because the transfers from the old company to the new were genuine and were separate and distinct from the transfer to the Mill Creek Company, the latter must be treated as a transfer of substantially all of the properties of the corporation within the meaning of the reorganization statute, summing up its conclusions as follows: “In our-opinion, the facts show affirmatively that the transfer to Mill Creek was completely separate and distinct from the earlier transfer by Elkhorn to the new corporation. The transfer made on December 18 was complete within itself, regardless of what Elkhorn planned to do later, or did subsequently do. It was not a sham or a device intended to obscure the character'of the transaction of December 31. The stipulated facts do not suggest other than a bona fide business move. The transfer made on December 31 was also complete within itself, and was made for reasons germane to the business of both corporations. This transfer falls within the terms of clause (A) of section 203(h) (1), whether or not Elkhorn was dissolved.” While we are bound by the Board’s findings of evidentiary facts, we are not bound by the foregoing conclusion set forth in the opinion and embodying a mixed question of law and fact. As said by the Supreme Court in the recent case of Helvering v. Tex-Penn Oil Co., 300 U.S. 481, 57 S.Ct. 569, 574, 81 L.Ed. 755: “The ultimate finding is a conclusion of law or at least a determination of a mixed question of law and fact. It is to be distinguished from the findings of primary, evidentiary, or circumstantial facts. It is subject to judicial review and, on such review, the court may substitute its judgment for that of the Board.” A careful consideration of the evidentiary facts discloses no purpose which could have been served by the creation of the new company and the transfer of the assets to it, except to strip the old company of all of its properties which were not to be transferred to the Mill Creek Company, in anticipation of that transfer. The creation of the new company and its acquisition of the assets of the old was not a corporate reorganization, therefore, within the meaning of the statute or within any fair meaning of the term “reorganization.” It did not involve any real transfer of assets by the business enterprise or any rearranging of corporate structure, but at most a mere shifting of charters, having no apparent purpose except the avoidance of taxes on the transfer to the Mill Creek Company which was in contemplation. To use in part the language of the Supreme Court in Gregory v. Helvering, 293 U.S. 465, 469, 55 S.Ct. 266, 267, 79 L.Ed. 596, 97 A.L.R. 1355, it was1 “simply an operation having no business or corporate purpose — a mere device which put on the form of a corporate reorganization as a disguise for concealing its real character, and the sole object and accomplishment of which was the consummation of a preconceived plan, not to reorganize a business or any part of a business,” but to give to the intended transfer to the Mill Creek Company the. appearance of a transfer of all the corporate assets so as to bring it within the nonrecognition provision of section 203(h) (1) (A). Under such circumstances we think that the decision in Gregory v. Helvering, supra, is controlling. In that case, for the purpose of avoiding taxes on a liquidating dividend of shares of stock held by a corporation, a subsidiary was organized within the terms of the reorganization statute and the shares were transferred to it. The' stock of the subsidiary was then delivered to the sole stockholder of the original corporation and shortly thereafter the subsidiary was dissolved and the shares which had been transferred to it were delivered to the stockholder. The court held that although the organization of the subsidiary came within the .letter of the reorganization statute, such corporate manipulation would be ignored when it fulfilled no proper corporate function and was not in reality a reorganization within the meaning of the statute. The court said: “In these circumstances, the facts speak for themselves and are susceptible of but one interpretation. The whole undertaking, though conducted 'according to the terms of subdivision (B), was in fact an elaborate and devious form of conveyance masquerading as a corporate reorganization, and nothing else. The rule .which excludes from consideration the motive of tax avoidance is not pertinent to the situation, because the transaction upon its face lies outside the plain intent of the statute. To hold otherwise would be to exalt artifice above reality and to deprive the statutory provision in question of all serious purpose.” We do not see how that case can be distinguished from this. If the property which was to be transferred to Mill Creek had been transferred to a new company created for the purpose and had been by that company transferred to Mill Creek, no one would contend that there was a distinction ; and certainly there is no difference in principle between creating a subsidiary to take and convey the property to the intended transferee and creating' a subsidiary to take over the other assets and having the old company make the transfer. In either case, the apparent reorganization is a mere artifice; and it can make no difference which of the affiliated corporations makes the transfer of assets which it is desired to bring within the nonrecognition provisions of the statute. It is suggested in the opinion of the Board that the case before us is analogous to that which would have been presented if the old company, prior to the transfer to Mill Creek, had distributed to its stockholders all of the assets except those destined for such transfer; but the distinction is obvious. In the case supposed, the business enterprise would have definitely divested itself of the property distributed. Here it did not divest itself of the property at all, but merely made certain changes in the legal papers under which it enjoyed corporate existence. No rule is better settled than that in tax matters we must look to substance and not to form; and no one who looks to substance can see in the mere change of charters, which is all that we have here, any reason for permitting a, transfer of a part of the corporate assets to escape the taxation to which it is subject under the statute. Congress has seen fit. to grant nonrecognition of profit in sale or exchange of assets only under certain conditions, one of which is that one corporation shall transfer “substantially all” of its properties for stock in another. If nonrecognition of profit can be secured by the plan adopted in this case, the exemption is broadened to cover all transfers of assets for stock, whether “substantially all” or not, if only the transferor will go to the slight trouble and expense of getting a new charter for his corporation and making the transfer of assets to the new corporation thus created in such way as to leave in the old only the assets to be transferred at the time the transfer is to be made. We do not think the statutory exemption may be thus broadened by such an artifice. Having reached this conclusion, it is unnecessary to decide whether the unity of the plan under which the transfer was made brings it, without a unifying contract, within the principles laid down in Starr v. Commissioner (C.C.A.4th) 82 F.(2d) 964, 968, wherein we said: “Where transfers are made pursuant to such a plan of reorganization, they are ordinarily parts of one transaction and should be so treated in application of the well-settled principle that, in applying income tax laws, the substance, and not the form, of the transaction shall control. First Seattle D. H. Nat. Bank v. Commissioner (C.C.A.9th) 77 F.(2d) 45; Prairie Oil & Gas Co. v. Motter (C.C.A.10th) 66 F.(2d) 309; Howard v. Commissioner (C.C.A.6th) 56 F.(2d) 781; American Security & Trust Co. v. Tait (D.C.) 5 F.Supp. 337. This is demanded also by the principle, equally well settled, that a single transaction may not be broken up into various elements to avoid a tax. Ahles Realty Corporation v. Commissioner (C.C.A.2d) 71 F.(2d) 150, 151; West Texas Refining & Development Co. v. Commissioner (C.C.A.10th) 68 F.(2d) 77, 79, 80; Prairie Oil & Gas Co. v. Motter, supra (C.C.A.10th) 66 F.(2d) 309, 311; Tulsa Tribune Co. v. Commissioner (C.C.A.10th) 58 F.(2d) 937.” For the reasons stated, the decision of the Board will be reversed, and the cause will be remanded to it for further proceedings in accordance with this opinion. Reversed. Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_respond1_3_3	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "agency whose first word is "federal"". Your task is to determine which specific federal government agency best describes this litigant. SOUTHERN INDIANA BROADCASTING, LTD., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Posey County Broadcasting Corporation, Intervenor. No. 90-1492. United States Court of Appeals, District of Columbia Circuit. Argued May 16, 1991. Decided June 21, 1991. James A. Kline, IV, with whom Donald J. Evans, Washington, D.C., was on the brief for appellant. Roberta L. Cook, Counsel, F.C.C., with whom Robert L. Pettit, Gen. Counsel, and Donald M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., were on the brief for appellee. Harry C. Martin and Troy F. Tanner, Washington, D.C., entered appearances for intervenor. Before EDWARDS, BUCKLEY, and RANDOLPH, Circuit Judges. Opinion for the Court filed by Circuit Judge RANDOLPH. RANDOLPH, Circuit Judge: Southern Indiana Broadcasting seeks review of a Federal Communications Commission order granting Posey County Broadcasting Company authority to construct a new FM broadcast station. Southern challenges the AU’s refusal to admit certain deposition testimony and the Commission’s decision that if the AU erred in this respect, the error was harmless. Southern also objects to the AU’s refusal to consider whether Posey violated Commission rules prohibiting ex parte communications with decision-making staff. When more than one person seeks a construction permit for a new FM station, the Commission chooses among the applicants in light of its goals of providing “the best practicable service to the public” and maximizing “diffusion of control of the media of mass communications.” See Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 394 (1965). The Commission considers it important if an applicant will participate actively in the daily management of the proposed radio station. The Commission will enhance the credit given for such integration of ownership with management if the applicant possesses certain other characteristics, such as broadcast experience, civic participation or minority status. Policy Statement, 1 F.C. C.2d at 396. The Commission also may enhance the credit if the applicant is the licensee of a “daytime-only AM station,” WBEN, Inc. v. United States, 396 F.2d 601, 605-06 (2d Cir.), cert. denied, 393 U.S. 914, 89 S.Ct. 238, 21 L.Ed.2d 200 (1968), provided the applicant has spent more than 20 hours each week for the past three years participating in the daily management of the AM station and satisfies four other criteria not relevant here. See National Black Media Coalition v. FCC, 822 F.2d 277, 279-80 (2d Cir.1987). Much of the dispute in this case centers on the AU’s exclusion of evidence relating to whether Posey should receive enhanced credit for owning and managing AM station WPCO in Mount Vernon. Ann M. Nussel, who owns Posey with her husband, testified during the comparative hearing that she had participated in the day-to-day management of WPCO. To impeach this testimony, Southern sought to introduce into evidence the deposition of Richard Grogg, station manager at WPCO. The ALJ sustained Posey’s hearsay objection to the deposition on the ground that Grogg was not going to testify and therefore would not be available for cross-examination by Posey. Southern argues that the Grogg deposition was admissible under 47 C.F.R. § 1.321(d)(2). That subsection, when read in conjunction with 47 C.F.R. § 1.321(b), generally tracks the language of Rule 32(a)(2), Fed.R.Civ.P. Rule 32(a)(2) states that at trial, a deposition “so far as admissible under the rules of evidence applied as though the witness were then present and testifying,” may be used against a party if that party was present at the taking of the deposition or had reasonable notice of it. The quoted language represents an exception to the hearsay rule; it means that a party cannot properly object to admission of a deposition on the ground that the deponent is absent and that his out-of-court statement is being introduced. 8 C. Wright & A. Miller, Federal Practice and Procedure § 2143, at 453 (1970). Southern may be correct that section 1.321(d)(2) has the same meaning as Rule 32(a)(2), but the Commission did not resolve that issue. It assumed that section 1.321(d)(2) would have rendered Grogg’s deposition admissible and that Southern had properly relied on this ground although it did not mention the section to the AU (cf. United States v. Peak, 856 F.2d 825, 832-33 (7th Cir.), cert. denied, 488 U.S. 969, 109 S.Ct. 499, 102 L.Ed.2d 535 (1988)). We shall make the same assumptions, which brings us to Southern’s argument against the Commission’s determination that the error, if there was one, was harmless. On this score Southern makes the rather feeble claim that the deposition was not formally part of the record for decision, that it did not anticipate the Commission’s looking at the deposition (which was part of the official correspondence file), and that the Commission should not have done so. Southern does not say how the Commission could have decided whether the deposition’s exclusion affected the outcome without reviewing the deposition itself. Aside from that, the Commission never passed on the argument Southern makes in this court. Southern could have, but did not, raise the argument in a petition for reconsideration. Yet when a party seeking judicial review “relies on questions of fact or law upon which the Commission ... has been afforded no opportunity to pass, that party must file a petition for reconsideration as “a condition precedent to judicial review.” 47 U.S.C. § 405(a). Although we have treated this as an “exhaustion” requirement, rather than a jurisdictional prerequisite, and have allowed exceptions, Action for Children’s Television v. FCC, 564 F.2d 458, 469 (D.C.Cir.1977), there is no reason to do so here. Had Southern raised its objection on reconsideration, the Commission could have held that the deposition was part of the record since it was in the official correspondence file (47 C.F.R. § 3.318(f)). Cf. National Ass’n for Better Broadcasting v. FCC, 830 F.2d 270, 274 (D.C.Cir.1987). Or it could have responded to Southern’s argument by supplementing the formal record with the deposition, as Southern had asked the AU to do. See 47 C.F.R. § 1.203. In either event, on a petition for reconsideration the Commission might have satisfied Southern’s problem; at the least, the Commission would have had an opportúnity to respond. 830 F.2d at 274 & n. 30. Southern’s failure to comply with 47 U.S.C. § 405(a) therefore forecloses judicial review of this question of law. Southern’s remaining claim is that the AU should have determined whether Po-sey improperly initiated ex parte communications with the Commission, or solicited and encouraged others to do so on its behalf (see 47 C.F.R. §§ 1.1202, 1.1208 & 1.1210). Southern did not assert this claim before the Commission and it is therefore not properly before us for review. Rogers Radio Communications Services v. FCC, 751 F.2d 408, 413 n. 14 (D.C.Cir.1985). The petition for review therefore is denied. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "agency whose first word is "federal"". Which specific federal government agency best describes this litigant? A. Federal Aviation Administration B. Federal Bureau of Investigation (FBI) C. Federal Coal Mine Safety Board D. Federal Communications Commission E. Federal Deposit Insurance Corporation and FSLIC F. Federal Election Commission G. Federal Energy Agency (Federal Power Commission) H. Federal Energy Regulatory Commission I. Federal Home Loan Bank Board J. Federal Housing Authority (FHA) K. Federal Labor Relations Authority L. Federal Maritime Board M. Federal Maritime Commission N. Federal Mine Safety & Health Administration O. Federal Mine Safety & Health Review Commission P. Federal Reserve System Q. Federal Trade Commission 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. MASON v. BROWN. No. 6194. United States Court of Appeals, Fourth Circuit. Argued Jan. 9, 1951. Decided Jan. 31, 1951. Ashby B. Allen, Richmond, Va. (George E. Allen, and Allen, Allen & Allen, Richmond, Va., on the brief), for appellant. Alexander H. Sands, Jr., Richmond, Va. (Sands, Marks & Sands, Richmond, Va., on the brief), for appellee. Before PARKER, Chief Judge, DOBIE, Circuit Judges, and WEBB, District Judge. DOBIE, Circuit Judge. This action was brought in the United States District Court for the Eastern District of Virginia by plaintiff Mason, a citizen of Virginia, against defendant Brown, a citizen of North Carolina. The jury returned a verdict of $5,000.00 for the plaintiff which, on motion of defendant, was set aside by the District Judge as unsupported by the evidence and a verdict was directed for defendant. Final judgment was accordingly entered for defendant, and plaintiff has appealed. This case arose out of personal injuries suffered February 11, 1950, by plaintiff when she was run down by defendant’s car. Defendant admits that there is substantial evidence to support the jury’s finding that he was negligent. We shall assume that plaintiff was also negligent in darting out from between two parked cars to cross the street in the middle of the block. Our only concern, then, is to determine whether plaintiff, in spite of her negligence, presented substantial evidence to support the verdict of the jury on the theory of “last clear chance.” We must view the evidence as favorably as possible to conform to the jury’s verdict. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed 916; Bell v. United States, 4 Cir., 1950, 185 F.2d, 302; Traders & General Insurance Co. v. Powell, 8 Cir., 177 F.2d 660. The scene of the accident was Grove Avenue, in a residential district of Richmond, Virginia, 42 feet wide, amply ranked on both sides with parked cars, and traversed by occasional traffic. Shortly after seven P.M., plaintiff, for the purpose of crossing the street, stepped from between two parked cars onto the north side of this street at a point about 75 feet west of the intersection of Grove and Allen Avenues. Hurrying to catch a bus, she walked quickly to the center of the street, where she paused to avoid a car approaching ffom her right. The course of defendant’s car was from plaintiff's left and rear; he was driving at an excessive speed and stopped almost, but not quite, short of plaintiff. Defendant’s car left skid marks 54 feet in length, stopping at the point where plaintiff had theretofore been standing and was then lying. Plaintiff was visible from at least 200 feet distant and there was evidence tending to show that plaintiff had stopped in the middle of the street before defendant entered this range. Defendant argues that plaintiff stopped for no good reason at all. But the contrary could have been inferred from plaintiff’s testimony: “A * * * I walked to the middle of the street and stood there for this sedan to pass. That is all I know. “Q. Where were you when you were struck? A. In the middle of the street standing still.” The fact that plaintiff’s companion on this unfortunate trip contradicted her in testifying that this car had already passed is beside the point. Where, as in plaintiff’s testimony, there is an evidentiary basis for the jury’s verdict, the jury is free to disregard whatever evidence is inconsistent with its conclusion. Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 90 L.Ed. 916. An eyewitness, Watkins, who was in his parked car about 200 feet from the scene of the accident, testified that defendant passed him and: “A. I saw Mrs. Mason when his car was with my car. Mrs. Mason was in the middle of the street at the time. * * * * * * “A. I saw Mrs. Mason there when 'he was practically beside me. # * * # * * “Q. When he started to pass you, you saw Mrs. Mason at that time? A. About in the middle of the street.” Plaintiff testified that she saw no car closer than the middle of the next block when she stepped from between the two .parked cars. Both parties agree that under the last clear chance doctrine, when a plaintiff has been and is negligent but is in a helpless condition immediately preceding the mishap and therefore unable to avoid it, plaintiff may nevertheless recover if the defendant saw or should have seen plaintiff in time to avoid the collision by the use of reasonable care. Anderson v. Payne, 189 Va. 712, 722, 54 S.E.2d 82, 87. Virginia has gone far in adopting the humanitarian approach to the doctrine of last clear chance, allowing recovery in spite of a plaintiff’s continuing negligence, if the plaintiff is unable to save himself and if the defendant should discover, by the exercise of reasonable care, the plaintiff’s plight in time to avoid the accident. Harris Motor Lines v. Green, 184 Va. 984, 37 S.E.2d 4, 171 A.L.R. 359; State of Maryland, for use of Joynes v. Coard, 175 Va. 571, 9 S.E.2d 454. See §§ 479, 480, Restatement of the Law of Torts, Virginia Annotations, by Dean William T. Muse, T. C. Williams School of Law. From the facts, we think the jury could properly have drawn the conclusion that plaintiff was unable by her own efforts to escape from the dangerous situation into which she had negligently put herself. Going back, across the path of defendant’s car, even were she aware of its presence, was clearly out of the question. And going forward, as she testified, into the path of the eastbound car was no remedy. In our opinion the jury could also have found, on any one of the following theories, that defendant had a last clear chance to avoid this accident: (1) That defendant should have seen plaintiff from at least 200 feet, and could have stopped before striking her. The jury was not bound to accept the testimony as to the speed of the car — fifty miles per hour, and could have settled on a lesser figure. But even at a speed of fifty miles per hour, and if we take into account the 75 feet that defendant would have traveled during a reaction time of one second, the jury could have found the remaining distance, at least 125 feet, sufficient for stopping; (2) That there was sufficient space between plaintiff and the parked cars to permit defendant to avoid both. This fact is supported not only by direct testimony, but also by subtracting from 21 feet (the street was 42 feet wide) the sum of the widths of plaintiff, defendant’s car, and the cars parked. And that defendant should have seen the situation and taken this action; (3) And we think the jury could have gone so far as to find that defendant should have chosen to drive into the parked cars rather than into plaintiff. Defendant had come to an almost complete stop, and this action could have been taken without serious danger of injury to anyone. For these reasons the order of the District Court is reversed, and this case is remanded to that court with instructions to reinstate the verdict of the jury and enter final judgment for plaintiff. Reversed and remanded. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_genapel1	H	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. Mrs. Charlotte L. WORLEY, Adm’x, and C. H. Worley, Jr., a Minor, Appellants, v. Ross V. DUNN, Trustee, et al., Appellees (three cases). Mrs. Charlotte L. WORLEY, Adm’x, and C. H. Worley, Jr., a Minor, Appellants, v. FIRST AMERICAN NATIONAL BANK et al., Appellees. Mrs. Charlotte L. WORLEY, Adm’x, and C. H. Worley, Jr., a Minor, Appellants, v. Robert W. STURDIVANT et al., Appellees. Nos. 13271-13273,13301,13302. United States Court of Appeals Sixth Circuit. March 3, 1958. Charlotte L. Worley, per se. Robert W. Sturdivant, Elkin Garfinkle and Bass, Berry & Sims, Nashville, Tenn., for First American Nat. Bank et al. Robert W. Sturdivant and Elkin Gar-finkle, Nashville, Tenn., for Sturdivant et al. Robert W. Sturdivant, Fred Elledge, Jr., Andrew M. Gant, Jr., J. O. Bass, Elkin Garfinkle, William Berry, Nashville, Tenn., for Dunn et al. Before ALLEN and MILLER, Circuit Judges, and JONES, District Judge. SHACKELFORD MILLER, Jr., Circuit Judge. The several proceedings in the District Court, in which these five appeals were taken, arise out of the bankruptcy of the National Specialty Company. These bankruptcy proceedings, which started in 1951, have had our consideration in three prior appeals. United States v. Worley, 6 Cir., 213 F.2d 509, certiorari denied, 348 U.S. 917, 75 S.Ct. 301, 99 L.Ed. 719, rehearing denied, 1955, 348 U.S. 940, 75 S.Ct. 361, 99 L.Ed. 736; Worley v. Elliott, 6 Cir., 231 F.2d 526, certiorari denied, 352 U.S. 855, 77 S.Ct. 82, 1 L.Ed.2d 66, rehearing denied, 1956, 352 U.S. 937, 77 S.Ct. 229, 1 L.Ed.2d 170; Worley v. National Specialty Co., 6 Cir., 243 F.2d 165. The factual situation is set out in those opinions and need not be repeated here. The present five appeals, prosecuted in forma pauperis, have been heard and considered together by the Court upon the records and briefs and arguments of appellant, Mrs. Charlotte Worley, individually, and as Admin-istratrix of the estate of Claude Henry Worley, deceased, pro se, and the attorneys for the appellees. The voluminous records, in the form presented to us, are very unsatisfactory. The numerous motions, briefs and reply briefs filed by the appellants, obviously drafted and written without the assistance of an attorney, largely fail to clearly present and meet the real issues involved. Our consideration of the records and briefs, however, results in the following conclusions. Following the denial of petition for certiorari in United States v. Worley, supra, the appellants filed in the District Court on April 21, 1955, a petition for a new trial in said cause, which motion the Trustee in Bankruptcy moved to strike. Following a hearing before Judge Martin, a member of this Court, sitting as a District Judge by designation, an order was entered on May 6, 1957, denying the motion for a new trial and sustaining the motion to strike. An order was also entered directing the Referee to schedule a final meeting of creditors and report his actions therein to the District Court. Appeals No. 13,301 and No. 13,302 complain of these orders. Favorable consideration by this Court of these appeals is foreclosed by our previous rulings in United States v. Worley, supra, Worley v. Elliott, supra, and Worley v. National Specialty Co., supra, which has become the law of the case. We expressly stated in Worley v. Elliott, supra, 231 F.2d 526, 527, referring to our ruling in United States v. Worley, supra, 213 F.2d 509, “Our decision has become the law of the case in this respect and will not be reconsidered by us nor relitigated in the District Court.” We closed the opinion in that case with the statement, “The decrees of the bankruptcy court are affirmed and it is directed to proceed as expeditiously as possible with the final liquidation of the estate.” Appellants’ motion for a new trial filed in the District Court after denial of certiorari by the Supreme Court was properly overruled by the District Judge. In addition to the lack of merit in the motion, obviously, it was not timely. The order directing a final meeting of creditors looking to the closing of the bankruptcy proceedings was clearly proper and in keeping with the directive of this Court in Worley v. Elliott, supra. We now repeat that directive and call appellants’ attention to the fact that there should be an end to a case in litigation, and that when litigants have had their day in court and a final judgment rendered, the successful party and the court should not be burdened with successive efforts thereafter to relitigate the same issues. Baldwin v. Iowa State Traveling Men’s Association, 283 U.S. 522, 525-526, 51 S.Ct. 517, 75 L.Ed. 1244. See also our previous opinion in Worley v. National Specialty Co., 243 F.2d 165, 166. Appeals Nos. 13,271, 13,272 and 13,273 arise out of actions filed by the appellants in the District Court. Motions to dismiss on behalf of the appellees in each case were sustained by the District Judge, who filed a written explanation of the ruling. The claim in No. 13,271 was for salary alleged by Mrs. Worley to be due and owing her by the bankrupt corporation. The District Judge ruled that the exclusive remedy was to file the claim with the Referee in the bankruptcy proceeding; that the United States had not given its consent to the type of action being asserted against it, Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427; United States v. Worley, supra; and that the allegations were insufficient to establish liability against the other individual appellees. The claim in No. 13,272 was for recovery by appellants personally of corporate funds of the bankrupt alleged to have been misappropriated. The District Judge ruled that a stockholder has no personal cause of action against an officer of the corporation for misappropriation of assets, which right of action accrues to the trustee in bankruptcy, and that the proper procedure for the assertion of an unliquidated claim against a bankrupt estate was to file the claim with Referee in Bankruptcy. The claim in No. 13,273 was the alleged improper settlement of claims by the Trustee in Bankruptcy. The District Judge ruled that the settlements complained of had been expressly approved by the Court in other proceedings after examination of the facts pertaining thereto. Orders of dismissal were entered on March 4, 1957, in the two cases first above referred to, and on February 26, 1957, in the third case above referred to. Notice of appeal was filed in each case on March 8, 1957. On March 18, 1957, appellants filed in the District Court in each case a motion to dismiss the appeal and that the Court alter and amend its judgment. These motions were also argued before Judge Martin who on May 6, 1957, entered an order in each case which stated that upon consideration of the entire record in the cause and the arguments of the attorneys appointed by the Court to represent the appellants, it appeared that insofar as the motion sought to alter and amend the judgment previously entered, it raised matters that had previously been adjudicated adversely to the appellants, and no error appearing in the judgment, the motion was denied. The present appeals were taken on June 6, 1957, from these orders of May 6, 1957. In our opinion, the three actions were properly dismissed by the District Judge in the orders of February 26, 1957, and March 4, 1957, and there was no error in the entry of the subsequent orders on May 6, 1957, denying the appellants’ motion to alter and amend the judgment in each ease. The judgment in each of the five appeals 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_source	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. GEORGE v. PROTECTIVE LIFE INS. CO. No. 8261. Circuit Court of Appeals, Sixth Circuit. April 8, 1940. Grover N. McCormick, of Memphis, Tenn., for appellant. King, Taylor & King, of Memphis, Tenn., for appellee. Before HICKS and SIMONS, Circuit Judges. PER CURIAM. This cause came on this day to be heard upon the motion of the appellee to dismiss the appeal with prejudice, and It appearing to the court from the agreement of counsel that the cases of Columbian Mutual Life Insurance Company v. James O. Martin et al., 136 S.W.2d 52, and the National Life & Accident Insurance Company v. Lela George, et al., have been decided by the Supreme Court of the State of Tennessee, and that the said cases involve the same questions and facts presented by the appeal in this case and the said decisions of the Supreme Court of Tennessee, the cases just mentioned above, are final and are adverse to the contentions of the appellant here, and It further appearing that the defendant tendered with its answer and cross-bill the sum of $127.06, It is accordingly ordered and adjudged that complainant’s appeal and the same is hereby dismissed, with prejudice, at the costs of the complainant. And, The defendant and cross-complainant., having tendered and paid into the hands of the clerk of the United States District Court for the Western Division of the Western District of Tennessee at Memphis the sum of $127.06, being the amount paid the defendant and cross-complainant as premiums on the said policy sued on, and interest on the same, It is, therefore, further ordered and adjudged that the amount of said tender be applied by the clerk to the payment of the costs of this cause, and all of said amount not necessary to pay the costs of this cause the clerk will pay to G. N. McCormick, attorney of record for the appellant. All of which is ordered and adjudged. No opinion for publication. Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:
sc_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. JAPAN WHALING ASSOCIATION et al. v. AMERICAN CETACEAN SOCIETY et al. No. 85-954. Argued April 30, 1986 Decided June 30, 1986 White, J., delivered the opinion of the Court, in which BURGER, C. J., and Powell, Stevens, and O’ConnoR, JJ., joined. Marshall, J., filed a dissenting opinion, in which BRENNAN, Blackmun, and Rehnquist, JJ., joined, post, p. 241. Associate Attorney General Burns argued the cause for petitioners in No. 85-955. With him on the briefs were Solicitor General Fried, Assistant Attorney General Habicht, Deputy Solicitor General Wallace, Peter R. Steenland, Jr., Donald A. Carr, Dianne H. Kelly, and Abraham D. Sofaer. Scott C. Whitney argued the cause for petitioners in No. 85-954. With him on the briefs were Steven R. Perles and William H. Allen. William D. Rogers argued the cause for respondents in both cases. With him on the brief were James A. Beat and Donald T. Hornstein. Together with No. 85-955, Baldrige, Secretary of Commerce, et al. v. American Cetacean Society et al., also on certiorari to the same court. Steven R. Ross, Charles Tiefer, and Michael L. Murray filed a brief for the Speaker of the House of Representatives et al. as amici curiae urging affirmance. Justice White delivered the opinion of the Court. In these cases, we address the question whether, under what are referred to in these cases as the Pelly and Packwood Amendments, 85 Stat. 786, as amended, 22 U. S. C. § 1978; 90 Stat. 337, as amended, 16 U. S. C. § 1821 (1982 ed. and Supp. Ill), the Secretary of Commerce is required to certify that Japan’s whaling practices “diminish the effectiveness” of the International Convention for the Regulation of Whaling because that country’s annual harvest exceeds quotas established under the Convention. I For centuries, men have hunted whales in order to obtain both food and oil, which, in turn, can be processed into a myriad of other products. Although at one time a harrowing and perilous profession, modern technological innovations have transformed whaling into a routine form of commercial fishing, and have allowed for a multifold increase in whale harvests worldwide. Based on concern over the effects of excessive whaling, 15 nations formed the International Convention for the Regulation of Whaling (ICRW), Dec. 2, 1946, 62 Stat. 1716, T. I. A. S. No. 1849 (entered into force Nov. 10, 1948). The ICRW was designed to “provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry,” id., at 1717, and today serves as the principal international mechanism for promoting the conservation and development of whale populations. See generally Smith, The International Whaling Commission: An Analysis of the Past and Reflections on the Future, 16 Nat. Resources Law. 543 (1984). The United States was a founding member of the ICRW; Japan joined in 1951. To achieve its purposes, the ICRW included a Schedule which, inter alia, regulates harvesting practices and sets harvest limits for various whale species. Art. I, 62 Stat. 1717, 1723-1727. In addition, the ICRW established the International Whaling Commission (IWC), which implements portions of the Convention and is authorized to amend the Schedule and set new harvest quotas. See Art. Ill, 62 Stat. 1717-1718; Art. V, 62 Stat. 1718-1719. See generally Smith, supra, at 547-550. The quotas are binding on IWC members if accepted by a three-fourths’ majority vote. Art. Ill, 62 Stat. 1717. Under the terms of the Convention, however, the IWC has no power to impose sanctions for quota violations. See Art. IX, 62 Stat. 1720. Moreover, any member country may file a timely objection to an IWC amendment of the Schedule and thereby exempt itself from any obligation to comply with the limit unless and until the objection is withdrawn. Art. V, 62 Stat. 1718-1719. All nonobjecting countries remain bound by the amendment. Because of the IWC’s inability to enforce its own quota and in an effort to promote enforcement of quotas set by other international fishery conservation programs, Congress passed the Pelly Amendment to the Fishermen’s Protective Act of 1967. 22 U. S. C. § 1978. Principally intended to preserve and protect North American Atlantic salmon from depletion by Danish fishermen in violation of the ban imposed by the International Convention for the Northwest Atlantic Fisheries, the Amendment protected whales as well. See 117 Cong. Rec. 34752 (1971) (remarks of Rep. Pelly); H. R. Rep. No. 92-468, p. 6 (1971). The Amendment directs the Secretary of Commerce to certify to the President if “nationals of a foreign country, directly or indirectly, are conducting fishing operations in a manner or under circumstances which diminish the effectiveness of an international fishery conservation program . . . .” 22 U. S. C. § 1978(a)(1). Upon certification, the President, in his discretion, may then direct the Secretary of the Treasury to prohibit the importation of fish products from the certified nation. § 1978(a)(4). The President may also decline to impose any sanctions or import prohibitions. After enactment of the Pelly Amendment, the Secretary of Commerce five times certified different nations to the President as engaging in fishing operations which “diminish[ed] the effectiveness” of IWC quotas. H. R. Rep. No. 95-1029, p. 9 (1978); 125 Cong. Rec. 22084 (1979) (remarks of Rep. Oberstar). None of the certifications resulted in the imposition of sanctions by the President. After each certification, however, the President was able to use the threat of discretionary sanctions to obtain commitments of future compli- ’ anee from the offending nations. Although “the Pelly Amendment . . . served the useful function of quietly persuading nations to adhere to the decisions of international fishery conservation bodies,” H. R. Rep. No. 95-1029, supra, at 9, Congress grew impatient with the- Executive’s delay in making certification decisions and refusal to impose sanctions. See 125 Cong. Rec. 22083 (1979) (remarks of Rep. Murphy); id., at 22084 (remarks of Rep. Oberstar). As a result, Congress passed the Packwood Amendment to the Magnuson Fishery Conservation and Management Act, 16 U. S. C. § 1801 et seq. (1982 ed. and Supp. III). This Amendment requires the Secretary of Commerce to “periodically monitor the activities of foreign nationals that may affect [international fishery conservation programs],” 22 U. S. C. § 1978(a)(3)(A); “promptly investigate any activity by foreign nationals that, in the opinion of the Secretary, may be cause for certification . . . ,” § 1978(a)(3)(B); and “promptly conclude; and reach a decision with respect to; [that] investigation.” § 1978(a)(3)(C). To rectify the past failure of the President to impose the sanctions authorized — but not required — under the Pelly Amendment, the Packwood Amendment removes this element of discretion and mandates the imposition of economic sanctions against offending nations. Under the Amendment, if the Secretary of Commerce certifies that “nationals of a foreign country, directly or indirectly, are conducting fishing operations or engaging in trade or taking which diminishes the effectiveness of the International Convention for the Regulation of Whaling,” 16 U. S. C. § 1821(e)(2)(A)(i), the Secretary of State must reduce, by at least 50%, the offending nation’s fishery allocation within the United States’ fishery conservation zone. § 1821(e)(2)(B). Although the Amendment requires the imposition of sanctions when the Secretary of Commerce certifies a nation, it did not alter the initial certification process, except for requiring expedition. It was also provided that a certificate under the Packwood Amendment also serves as a certification for the purposes of the Pelly Amendment. § 1821(e)(2)(A)(i). In 1981, the IWC established a zero quota for the Western Division stock of Northern Pacific sperm whales. The next year, the IWC ordered a 5-year moratorium on commercial whaling to begin with the 1985-1986 whaling season and last until 1990. In 1982, the IWC acted to grant Japan’s request for a 2-year respite — for the 1982-1983 and 1983-1984 seasons — from the IWC’s earlier decision banning sperm whaling. Because Japan filed timely objections to both the IWC’s 1981 zero quota for Northern Pacific sperm whales and 1982 commercial whaling moratorium, under the terms of the ICRW, it was not bound to comply with either limitation. Nonetheless, as the 1984-1985 whaling season grew near, it was apparently recognized that under either the Pelly or Packwood Amendment, the United States could impose economic sanctions if Japan continued to exceed these whaling quotas. Following extensive negotiations, on November 13, 1984, Japan and the United States concluded an executive agreement through an exchange of letters between the Chargé d’Affaires of Japan and the Secretary of Commerce. See App. to Pet. for Cert, in No. 85-955, pp. 102A-109A. Subject to implementation requirements, Japan pledged to adhere to certain harvest limits and to cease commercial whaling by 1988. Id., at 104A-106A. In return and after consulting with the United States Commissioner to the IWC, the Secretary determined that the short-term continuance of a specified level of limited whaling by Japan, coupled with its promise to discontinue all commercial whaling by 1988, “would not diminish the effectiveness of the International Convention for the Regulation of Whaling, 1946, or its conservation program.” Id., at 107A. Accordingly, the Secretary informed Japan that, so long as Japan complied with its pledges, the United States would not certify Japan under either Amendment. See id., at 104A. Several days before consummation of the executive agreement, several wildlife conservation groups filed suit in District Court seeking a writ of mandamus compelling the Secretary of Commerce to certify Japan. Because in its view any taking of whales in excess of the IWC quotas diminishes the effectiveness of the ICRW, the District Court granted summary judgment for respondents and ordered the Secretary of Commerce immediately to certify to the President that Japan was in violation of the IWC sperm whale quota. 604 F. Supp. 1398, 1411 (DC 1985). Thereafter, Japan’s Minister for Foreign Affairs informed the Secretary of Commerce that Japan would perform the second condition of the agreement-withdrawal of its objection to the IWC moratorium— provided that the United States obtained reversal of the District Court’s order. App. to Pet. for Cert, in No. 85-955, pp. 116A-118A. A divided Court of Appeals affirmed. 247 U. S. App. D. C. 309, 768 F. 2d 426 (1985). Recognizing that the Pelly and Packwood-Magnuson Amendments did not define the specific activities which would “diminish the effectiveness” of the ICRW, the court looked to the Amendments’ legislative history and concluded, as had the District Court, that the taking by Japanese nationals of whales in excess of quota automatically called for certification by the Secretary. We granted certiorari, 474 U. S. 1053 (1986), and now reverse. rH i — j We address first the Japanese petitioners’ contention that the present actions are unsuitable for judicial review because they involve foreign relations and that a federal court, therefore, lacks the judicial power to command the Secretary of Commerce, an Executive Branch official, to dishonor and repudiate an international agreement. Relying on the political question doctrine, and quoting Baker v. Carr, 369 U. S. 186, 217 (1969), the Japanese petitioners argue that the danger of “embarrassment from multifarious pronouncements by various departments on one question” bars any judicial resolution of the instant controversy. We disagree. Baker carefully pointed out that not every matter touching on politics is a political question, id., at 209, and more specifically, that it is “error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” Id., at 211. The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. The Judiciary is particularly ill suited to make such decisions, as “courts are fundamentally underequipped to formulate national policies or develop standards for matters not legal in nature.” United States ex rel. Joseph v. Cannon, 206 U. S. App. D. C. 405, 411, 642 F. 2d 1373, 1379 (1981) (footnote omitted), cert. denied, 455 U. S. 999 (1982). As Baker plainly held, however, the courts have the authority to construe treaties and executive agreements, and it goes without saying that interpreting congressional legislation is a recurring and accepted task for the federal courts. It is also evident that the challenge to the Secretary’s decision not to certify Japan for harvesting whales in excess of IWC quotas presents a purely legal question of statutory interpretation. The Court must first determine the nature and scope of the duty imposed upon the Secretary by the Amendments, a decision which calls for applying no more than the traditional rules of statutory construction, and then applying this analysis to the particular set of facts presented below. We are cognizant of the interplay between these Amendments and the conduct of this Nation’s foreign relations, and we recognize the premier role which both Congress and the Executive play in this field. But under the Constitution, one of the Judiciary’s characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones. We conclude, therefore, that the present cases present a justiciable controversy, and turn to the merits of petitioners’ arguments. HH I — I I — I The issue before us is whether, in the circumstances of these cases, either the Pelly or Packwood Amendment required the Secretary to certify Japan for refusing to abide by the IWC whaling quotas. We have concluded that certification was not necessary and hence reject the Court of Appeals’ holding and respondents’ submission that certification is mandatory whenever a country exceeds its allowable take under the ICRW Schedule. Under the Packwood Amendment, certification is neither permitted nor required until the Secretary makes a determination that nationals of a foreign country “are conducting fishing operations or engaging in trade or taking which diminishes the effectiveness” of the ICRW. It is clear that the Secretary must promptly make the certification decision, but the statute does not define the words “diminish the effectiveness of” or specify the factors that the Secretary should consider in making the decision entrusted to him alone. Specifically, it does not state that certification must be forthcoming whenever a country does not abide by IWC Schedules, and the Secretary did not understand or interpret the language of the Amendment to require him to do so. Had Congress intended otherwise, it would have been a simple matter to say that the Secretary must certify deliberate taking of whales in excess of IWC limits. Here, as the Convention permitted it to do, Japan had filed its objection to the IWC harvest limits and to the moratorium to begin with the 1985-1986 season. It was accordingly not in breach of its obligations under the Convention in continuing to take whales, for it was part of the scheme of the Convention to permit nations to opt out of Schedules that were adopted over its objections. In these circumstances, the Secretary, after consultation with the United States Commissioner to the IWC and review of the IWC Scientific Committee opinions, determined that it would better serve the conservation ends of the Convention to accept Japan’s pledge to limit its harvest of sperm whales for four years and to cease all commerical whaling in 1988, rather than to impose sanctions and risk continued whaling by the Japanese. In any event, the Secretary made the determination assigned to him by the Packwood Amendment and concluded that the limited taking of whales in the 1984 and 1985 coastal seasons would not diminish the effectiveness of the ICRW or its conservation program, and that he would not make the certification that he would otherwise be empowered to make. The Secretary, of course, may not act contrary to the will of Congress when exercised within the bounds of the Constitution. If Congress has directly spoken to the precise issue in question, if the intent of Congress is clear, that is the end of the matter. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984). But as the courts below and respondents concede, the statutory language itself contains no direction to the Secretary automatically and regardless of the circumstances to certify a nation that fails to conform to the IWC whaling Schedule. The language of the Pelly and Packwood Amendments might reasonably be construed in this manner, but the Secretary’s construction that there are circumstances in which certification may be withheld, despite departures from the Schedules and without violating his duty, is also a reasonable construction of the language used in both Amendments. We do not understand the Secretary to be urging that he has carte blanche discretion to ignore and do nothing about whaling in excess of IWC Schedules. He does not argue, for example, that he could refuse to certify for any reason not connected with the aims and conservation goals of the Convention, or refuse to certify deliberate flouting of schedules by members who have failed to object to a particular schedule. But insofar as the plain language of the Amendments is concerned, the Secretary is not forbidden to refuse to certify for the reasons given in these cases. Furthermore, if a statute is silent or ambiguous with respect to the question at issue, our longstanding practice is to defer to the “executive department’s construction of a statutory scheme it is entrusted to administer,” Chevron, supra, at 844, unless the legislative history of the enactment shows with sufficient clarity that the agency construction is contrary to the will of Congress. United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, 131 (1985). See Chemical Mfrs. Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 125 (1985). » — I <! Contrary to the Court of Appeals’ and respondents views, we find nothing in the legislative history of either Amendment that addresses the nature of the Secretary’s duty and requires him to certify every departure from the IWC’s scheduled limits on whaling. The Pelly Amendment was introduced in 1971 to protect Atlantic salmon from possible extinction caused by overfishing in disregard of established salmon quotas. Under the International Convention for the Northwest Atlantic Fisheries (ICNAF), zero harvest quotas had been established in 1969 to regulate and control high seas salmon fishing, 117 Cong. Rec. 34751 (1971) (remarks of Rep. Dingell). Denmark, Germany, and Norway, members of the ICNAF, exercised their right to file timely objections to the quotas, however, and thus were exempt from their limitations. Although respondents are correct that Congress enacted the Pelly Amendment primarily as a means to enforce those international fishing restrictions against these three countries, particularly Denmark, they fail to establish that the Amendment requires automatic certification of every nation whose fishing operations exceed international conservation quotas. Both the Senate and House Committee Reports detail the “conservation nightmare” resulting from Denmark’s failure to recognize the ICNAF quota; a position which “effectively nullified” the ban on high seas harvesting of Atlantic salmon. S. Rep. No. 92-582, pp. 4-5 (1971); H. R. Rep. No. 92-468, pp. 5-6 (1971). In addition, Danish operations were seen as leading to the “eventual destruction of this valuable sports fish,” a matter of “critical concern” to both the Senate and House Committees. S. Rep. No. 92-582, at 4; H. R. Rep. No. 92-468, at 5. There is no question but that both Corn-mittees viewed Denmark’s excessive fishing operations as “diminish[ing] the effectiveness” of the ICNAF quotas, and envisioned that the Secretary would certify that nation under the Pelly Amendment. The Committee Reports, however, do not support the view that the Secretary must certify every nation that exceeds every international conservation quota. The discussion on the floor of the House by Congressman Pelly and other supporters of the Amendment further demonstrates that Congress’ primary concern in enacting the Pelly Amendment was to stave off the possible extermination of both the Atlantic salmon as well as the extinction of other heavily fished species, such as whales, regulated by international fishery conservation programs. 117 Cong. Rec. 34752-34754 (1971) (remarks of Reps. Pelly, Wylie, Clausen, and Hogan). The comments of Senator Stevens, acting Chairman of the reporting Senate Committee and the only speaker on the bill during the Senate debate, were to the same effect. See id., at 47054 (if countries continue indiscriminately to fish on the high seas, salmon may become extinct). Testimony given during congressional hearings on the Pelly Amendment also supports the conclusion that Congress had no intention to require the Secretary to certify every departure from the limits set by an international conservation program. Subsequent amendment of the Pelly Amendment in 1978 further demonstrates that Congress used the phrase, “diminish the effectiveness,” to give the Secretary a range of certification discretion. The 1978 legislation expanded coverage of the Pelly Amendment “to authorize the President to embargo wildlife products from countries where nationals have acted in a manner which, directly or indirectly, diminishes the effectiveness of any international program for the conservation of endangered or threatened species.” H. R. Rep. No. 95-1029, p. 8 (1978). This extension was premised on the success realized by the United States in using the Amendment to convince other nations to adhere to IWC quotas, thus preserving the world’s whale stocks. Id., at 9. In the House Report for the 1978 amendment, the Merchant Marine and Fisheries Committee specifically addressed the “dimmish the effectiveness” standard and recognized the Secretary’s discretion in making the initial certification decision: “The nature of any trade or taking which qualifies as diminishing the effectiveness of any international program for endangered or threatened species will depend on the circumstances of each case. In general, however, the trade or taking must be serious enough to warrant the finding that the effectiveness of the international program in question has been diminished. An isolated, individual violation of a convention provision will not ordinarily warrant certification under this section.” Id., at 15. This statement makes clear that, under the Pelly Amendment as construed by Congress, the Secretary is to exercise his judgment in determining whether a particular fishing operation “diminishes the effectiveness” of an international fishery conservation program like the IWC. The Court of Appeals held that this definition applies only to the 1978 addition to the Pelly Amendment, designed to enforce the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Mar. 3, 1973, 27 U. S. T. 1087, T. I. A. S. No. 8249, and not to the ICRW. We are unpersuaded. Congress perceived the two Conventions as seeking the same objectives. Both programs are designed to conserve endangered or threatened species, whether it be the sperm whale or the stumptail macaque. See H. R. Rep. No. 95-1029, pp. 9-10 (1978). This explains why the House Report noted that the purpose behind the 1978 extension of the Pelly Amendment was “to expand the success the United States has achieved in the conservation of whales to the conservation of endangered and threatened species.” Id., at 9. Both Conventions also operate in a similar, and often parallel, manner, and nothing in the legislative history of the 1978 amendment shows that Congress intended the phrase “diminish the effectiveness” to be applied inflexibly with respect to departures from fishing quotas, but to be applied flexibly vis-á-vis departures from endangered species quotas. Without strong evidence to the contrary, we doubt that Congress intended the same phrase to have significantly different meanings in two adjoining paragraphs of the same subsection. See Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 488-489 (1985); Morrison-Knudsen Constr. Co. v. Director, OWCP, 461 U. S. 624, 633 (1983). Congress’ explanation of the scope of the Secretary’s certification duty applies to both the original Pelly Amendment and the 1978 amendment: the Secretary is empowered to exercise his judgment in determining whether “the trade or taking [is] serious enough to warrant the finding that the effectiveness of the international program in question has been diminished.” H. R. Rep. No. 95-1029, supra, at 15. Enactment of the Packwood Amendment did not negate the Secretary’s view that he is not required to certify every failure to abide by ICW’s whaling limits. There were hearings on the proposal but no Committee Reports. It was enacted as a floor amendment. It is clear enough, however, that it was designed to remove executive discretion in imposing sanctions once certification had been made — as Senator Packwood put it, “to put real economic teeth into our whale conservation efforts,” by requiring the Secretary of State to impose severe economic sanctions until the transgression is rectified. 125 Cong. Rec. 21742 (1979). But Congress specifically retained the identical certification standard of the Pelly Amendment, which requires a determination by the Secretary that the whaling operations at issue diminish the effectiveness of the ICRW. 16 U. S. C. § 1821(e)(2)(A)(i). See 125 Cong. Rec. 21743 (1979) (remarks of Sen. Magnuson); id., at 22083 (remarks of Rep. Breaux); id., at 22084 (remarks of Rep. Oberstar). We find no specific indication in this history that henceforth the certification standard would require the Secretary to certify each and every departure from ICW’s whaling Schedules. It may be that in the legislative history of these Amendments there are scattered statements hinting at the per se rule advocated by respondents, but read as a whole, we are quite unconvinced that this history clearly indicates, contrary to what we and the Secretary have concluded is a permissible reading of the statute, that all departures from IWC Schedules, regardless of the circumstances, call for immediate certification. V We conclude that the Secretary’s construction of the statutes neither contradicted the language of either Amendment, nor frustrated congressional intent. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S., at 842-843. In enacting these Amendments, Congress’ primary goal was to protect and conserve whales and other endangered species. The Secretary furthered this objective by entering into the agreement with Japan, calling for that nation’s acceptance of the worldwide moratorium on commercial whaling and the withdrawal of its objection to the IWC zero sperm whale quota, in exchange for a transition period of limited additional whaling. Given the lack of any express direction to the Secretary that he must certify a nation whose whale harvest exceeds an IWC quota, the Secretary reasonably could conclude, as he has, that, “a cessation of all Japanese commercial whaling activities would contribute more to the effectiveness of the IWC and its conservation program than any other single development.” Affidavit of Malcolm Baldrige, Brief for Petitioners in No. 85-955, Addendum III, pp. 6A-7A. We conclude, therefore, that the Secretary’s decision to secure the certainty of Japan’s future compliance with the IWC’s program through the 1984 executive agreement, rather than rely on the possibility that certification and imposition of economic sanctions would produce the same or better result, is a reasonable construction of the Pelly and Packwood Amendments. Congress granted the Secretary the authority to determine whether a foreign nation’s whaling in excess of quotas diminishes the effectiveness of the IWC, and we find no reason to impose a mandatory obligation upon the Secretary to certify that every quota violation necessarily fails that standard. Accordingly, the judgment of the Court of Appeals is Reversed. The details of the Japanese commitments were explained in a summary accompanying the letter from the Chargé d’Affaires to the Secretary. First, the countries agreed that if Japan would withdraw its objection to the IWC zero sperm whale quota, Japanese whalers could harvest up to 400 sperm whales in each of the 1984 and 1985 coastal seasons without triggering certification. Japan’s irrevocable withdrawal of that objection was to take place on or before December 13, 1984, effective April 1, 1988. App. to Pet. for Cert, in No. 85-955, pp. 104A-105A. Japan fulfilled this portion of the agreement on December 11, 1984. Id., at 110A, 112A-114A. Second, the two nations agreed that if Japan would end all commercial whaling by April 1,1988, Japanese whalers could take additional whales in the interim without triggering certification. Japan agreed to harvest no more than 200 sperm whales in each of the 1986 and 1987 coastal seasons. In addition, it would restrict its harvest of other whale species — under limits acceptable to the United States after consultation with Japan — through the end of the 1986-1987 pelagic season and the end of the 1987 coastal season. The agreement called for Japan to announce its commitment to terminate commercial whaling operations by withdrawing its objection to the 1982 IWC moratorium on or before April 1, 1985, effective April 1, 1988. Id, at 105A-106A. The original plaintiffs to this action are: American Cetacean Society, Animal Protection Institute of America, Animal Welfare Institute, Center for Environmental Education, The Fund for Animals, Greenpeace U. S. A., The Humane Society of the United States, International Fund for Animal Welfare, The Whale Center, Connecticut Cetacean Society, Defenders of Wildlife, Friends of the Earth, and Thomas Garrett, former United States Representative to the IWC. In addition, plaintiffs also requested (1) a declaratory judgment that the Secretary’s failure to certify violated both the Pelly and Packwood Amendments, because any whaling activities in excess of IWC quotas necessarily “diminishes the effectiveness” of the ICRW; and (2) a permanent injunction prohibiting any executive agreement which would violate the certification and sanction requirements of the Amendments. 604 F. Supp. 1398, 1401 (DC 1985). The Japan Whaling Association and Japan Fishing Association (Japanese petitioners), trade groups representing private Japanese interests, were allowed to intervene. We also reject the Secretary’s suggestion that no private cause of action is available to respondents. Respondents brought suit against the Secretary of Commerce, the head of a federal agency, and the suit, in essence, is one to “compel agency action unlawfully withheld,” 5 U. S. C. § 706(1), or alternatively, to “hold unlawful and set aside agency action . . . found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” § 706(2)(A). The “right of action” in such cases is expressly created by the Administrative Procedure Act (APA), which states that “final agency action for which there is no other adequate remedy in a court [is] subject to judicial review,” § 704, at the behest of “[a] person. . . adversely affected or aggrieved by agency action.” § 702 (1982 ed., Supp. III). A separate indication of congressional intent to make agency action reviewable under the APA is not necessary; instead, the rule is that the cause of action for review of such action is available absent some clear and convincing evidence of legislative intention to preclude review. See, e. g., Block v. Community Nutrition Institute, 467 U. S. 340, 345 (1984); Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 410 (1971); Abbott Laboratories v. Gardner, 387 U. S. 136, 141 (1967). It is clear that respondents may avail themselves of the right of action created by the APA. First, the Secretary’s actions constitute the actions of an agency. See 5 U. S. C. § 551(1); Citizens to Preserve Overton Park v. Volpe, supra, at 410. In addition, there has been “final agency action,” in that the Secretary formally has agreed with the Japanese that there will be no certification, and this appears to be an action “for which there is no other adequate remedy in a court,” as the issue whether the Secretary’s failure to certify was lawful will not otherwise arise in litigation. Next, it appears that respondents are sufficiently “aggrieved” by the agency’s action: under our decisions in Sierra Club v. Morton, 405 U. S. 727 (1972), and United States v. SCRAP, 412 U. S. 669 (1973), they undoubtedly have alleged a sufficient “injury in fact” in that the whale watching and studying of their members will be adversely affected by continued whale harvesting, and this type of injury is within the “zone of interests” protected by the Pelly and Packwood Amendments. See Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150 (1970). Finally, the Secretary has failed to point to any expressed intention on the part of Congress to foreclose APA review of actions under either Amendment. We find, therefore, that respondents are entitled to pursue their claims under the right of action created by the APA. The Court of Appeals relied upon the statement in S. Rep. No. 92-582 that the purpose of the Amendment was “ ‘to prohibit the importation of fishery products from nations that do not conduct their fishing operations in a manner that is consistent with international conservation programs. It would accomplish this by providing that whenever the Secretary of Commerce determines that a country’s nationals are fishing in such a manner 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_numresp	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. McCANN v. COMMISSIONER OF INTERNAL REVENUE. No. 7031. Circuit Court of Appeals, Sixth Circuit. Jan. 11, 1937. Laurence Graves, of Washington, D. C., G. W. A. Wilmer, of Middletown, Ohio, Ike Lanier, of Cincinnati, Ohio, and Pick-rel, Schaeffer, Harshman & Young, of Dayton, Ohio, for petitioner. Harry Marselli, of Washington, D. C. (Frank J. Wideman, Sewall Key, and Norman D. Keller, all of Washington, D. C., on the brief), for respondent. Before MOORMAN, SIMONS, and ALLEN, Circuit Judges. MOORMAN, Circuit Judge. This is a proceeding to review an orl der of the Board of Tax Appeals sustaining a deficiency assessment of an estate tax made by the Commissioner of Internal Revenue against the estate of Lucy C. Shartle, who died in November of 1926. The facts found by the Board are: The decedent’s husband, Charles Shartle, owned and operated a machine repair shop and was also engaged in perfecting inventions relating to machinery for the manufacture of paper. In 1911, being in debt and fearing litigation over patents which he held, he incorporated his business under the name of the Shartle Bros. Machine Company and issued the majority of the stock of the corporation to his wife, the decedent. The decedent paid nothing for the stock. In 1912 Shartle organized another company, to which he conveyed title to his patents. The capital stock of this company was issued- to the holders of the stock of the machine company, and the decedent received her proportionate share. Later this company was taken over by the machine company and paid for by a new issue of the latter company’s capital stock. The decedent, as holder of a majority of the stock of the selling company, received her proportion of the new issue of stock. None of the certificates for this or the original stock issued in her name was ever delivered to her. They were all placed in the office of the machine company under the control of her husband, who with her consent 'continued to control and operate the company as though he were the sole owner of it. Decedent was made a director of the company, but she attended none of the directors’ meetings and took no part in the company’s affairs. The dividends on the stock held in her name, when declared, were credited to her account on the books of the company and then transferred to her husband’s account. This was done pursuant to her husband’s instructions and with her approval. On November 6, 1926, Shartle sold the machine company without consulting the decedent. The buyer issued a check to the decedent for $1,070,086.11 in part payment for the stock standing in her name. The check was delivered to her husband, and the following day it was taken to the bank and the decedent, by direction of the husband, indorsed it in blank and delivered it to him. He placed it in the bank to his own credit, and later invested the proceeds in government bonds, which he held at the time of her death on November 26. After her death the deferred payments on the stock standing in her name, with payments for other assets of the company, were made to him as executor of her estate. In making an estate tax return as executor of her estate, he included neither these amounts nor the original payment of more than a million dollars in her taxable estate. The Commissioner held that all of these sums, together with dividends paid on the stock for the years 1925 and 1926, were a part of the decedent’s estate, and assessed the estate tax accordingly. The ground on which he held that the amount represented by the check was a part of her estate was that the indorsement and delivery of the check to the husband was a transfer made in contemplation of death. The Board of Tax Appeals held that the check was not indorsed and delivered to decedent’s husband as a gift in contemplation of death, but sustained the assessment on the ground that as the stock in the machine company was issued to the decedent by her husband in order to cheat, hinder, or delay his creditors, it became her absolute property, with the result that so much of the proceeds of its sale as was represented by the check, notwithstanding its transfer to the husband, remained such at the time of her death. It is true that where property is transferred by a husband to his wife without consideration there is a presumption that it is a gift, but it is also true that such presumption is one of fact and may be rebutted by a showing of the real intention of the parties. Smithsonian Institution v. Meech, 169 U.S. 398, 18 S.Ct. 396, 42 L. Ed. 793. The facts found by the Board clearly rebut the presumption of a gift of the stock to the decedent. They show that it was contemplated by the parties that the stock should be held by the wife for the husband, and that both thereafter regarded it, with the dividends thereon and proceeds from its sale, as his property and as nbt belonging to her. There can be no question that the indorsement and delivery of the check for over a million dollars ei fected a transfer of title thereto to the husband. Although reaching that conclusion, the Board was apparently of opinion that it did not transfer the funds represented by the check, since there was no intent on the part of the decedent to transfer or on the part of the husband to accept the check as a gift. We agree that there was no gift of the check, but we are of the opinion that there was a valid transfer to the husband of so much of the proceeds of the sale of the stock as was represented by the check, and that a .sufficient consideration therefor was the moral obligation of the decedent to retransfer or restore the stock to the husband upon his request. While it is true that where property has been transferred by a husband to his wife in order to cheat, hinder, or delay creditors, equity will not compel 'a re-transfer to the wrongdoer, it is also true that there is no rule of law or equity which prohibits the transferee from voluntarily making restoration. Knight v. Dalton, 72 Kan. 131, 83 P. 124; Olson v. Peterson, 88 Kan. 350, 128 P. 191; Springfield Homestead Association v. Roll, 137 Ill. 205, 27 N.E. 184, 31 Am.St.Rep. 358; First Nat. Bank of Appleton v. Bertschy, 52 Wis. 438, 451, 9 N.W. 534; Fargo v. Ladd and Reed, 6 Wis. 106; Cartledge v. McCoy, 98 Ga. 560, 25 S.E. 588; Second Nat. Bank of Lafayette v. Brady, 96 Ind. 498; White v. Brocaw, 14 Ohio St. 339. Compare Smith v. Ellison, 80 Ark. 447, 97 S.W. 666. Similarly, when that has been done, it is a valid transaction as between the parties and as to other parties ex-, cept those who may have extended credit'' to the wife in reliance on her ostensible ownership. Hyde v. Chapman, 33 Wis. 391. The government in attempting to assess an estate tax does not occupy the position of a creditor relying on such ownership. The transfer was voluntarily and lawfully consummated prior to the event which brought into operation the estate tax statute (Revenue Act 1926, tit. 3, § 31)0 et seq., 44 Stat. 69), and as found by the Board, was not made in contemplation of the decedent’s death. We conclude, therefore, that the fund represented by the check was not a part of the decedent’s estate at the time of her death, but was the property of the husband. For like reasons, the dividends of 1925 and 1926 transferred to the husband’s account with decedent’s consent became his property and were not a part of her taxable estate. Since, however, there was no restoration to him prior to the death of the wife of so much of the stock as was represented by the deferred payments, they are to be treated as a part of her estate. The order of the Board is reversed and the cause remanded for proceedings consistent herewith. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_appnatpr	17	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. LIBERTARIAN PARTY OF MAINE, et als., Plaintiffs, Appellants, v. G. William DIAMOND, Etc., Defendant, Appellee. (Two Cases). Nos. 92-2026, 92-2061. United States Court of Appeals, First Circuit. Heard Jan. 4, 1993. Decided April 30, 1993. Glenn S. Eddy with whom Berman & Simmons, P.A., Lewiston, ME, was on brief for plaintiffs, appellants. Cabanne Howard, Deputy Atty. Gen., with whom Michael E. Carpenter, Atty. Gen., Augusta, ME, was on brief for defendant, appellee. Before TORRUELLA and CYR, Circuit Judges, and BOWNES, Senior Circuit Judge, CYR, Circuit Judge. The Libertarian Party of Maine (“Party”) and seventeen of its candidates for elective office (“appellant candidates”) challenge a district court ruling upholding the constitutionality of Maine’s ballot-access requirements, 21-A M.R.S.A. § 301 et seq. We affirm. I Under Maine law, a group of voters seeking recognition as a new political party may “qualify” in either of two ways. First, the voter group may petition the Secretary of State to participate as a political party in the primary election; the petition must be signed by voters numbering at least 5% of the votes cast in the preceding gubernatorial election. See 21-A M.R.S.A. § 303(1). Second, the group may organize a political party around a prior candidate for the office of Governor or President who (1) was not affiliated with a registered party; (2) consents in writing; and (3) received more than 5% of the total Maine vote cast for the office of Governor or President, as the case may be, in the immediately preceding gubernatorial or presidential election. See id. at § 302(1). A party which organizes itself under § 302(1), on the “coattails” of a prior independent candidate for office, need not demonstrate contemporaneously the level of voter support defined in § 303(1), but the party’s candidates remain subject to the numerical voter-support requirements for later listing on the general election ballot. See id. at § 304. Party recognition entails certain benefits, including public exposure, the prestige of “official” status, automatic listing of the party’s presidential candidate on the election ballot, see id. at § 331(2)(A), and the right to raise funds by means of a special check-off box on the Maine income tax form. See 36 M.R.S.A. § 5283. With these benefits come certain responsibilities, including the obligation to hold municipal caucuses during election year, 21-A M.R.S.A. §§ 301(1)(A), 311; to hold a biennial state convention, id. at § 301(1)(B), 321; and to nominate candidates for office through a primary election process, id. at § 331(1). The primary election process is intended to control “ballot clutter” by ensuring that each political party nominates only one candidate for any particular office, and that the party nominee possesses the prescribed levels of support within his or her party and the general electorate. See Opinion of Justices of the Supreme Judicial Court, 578 A.2d 183, 186 (Me.1990). To qualify for the primary election ballot, a party candidate must present the Secretary of State, not later than April 1, with a petition signed by enough enrolled party members to demonstrate the level of party support prescribed for the particular “electoral division” to which the candidate seeks election. Id. at § 335(5). The required levels of petition support are shown in Table I. ' TABLE 1 Number of Signatures Required to Qualify For Primary Ballot (Registered Party Candidates) President of the United States 2000 signatures United States Senator 2000 signatures State Governor 2000 signatures United States Representative 1000 signatures County offices (other than County Commissioner) 150 signatures State Senator 100 signatures County Commissioner 50 signatures State Representative 25 signatures A party candidate who does not obtain the signatures required to qualify for the primary election ballot may still qualify for the general election ballot by winning a plurality of the party’s primary election write-in vote. Id. at § 723(1)(A). The write-in voting process is not restricted to members of the candidate’s political party, but is open to any registered voter who is eligible to participate in the party primary. Id. at § 340. On the other hand, a successful write-in candidate must obtain votes totalling twice the number of signatures which would have been required to qualify for listing on the primary ballot under § 335(5). See id. at 723(1)(A). TABLE II Number of Signatures Required to Qualify For General Election Ballot by Nomination Petition or by Write-In Vote in Party Primary Presidential elector 4000 signatures United States Senator 4000 signatures Governor 4000 signatures United States Representative 2000 signatures County office (other than County Commissioner) 300 signatures State Senator 200 signatures County Commissioner 100 signatures State Representative 50 signatures Candidates who are not enrolled in a “qualified” party, or who withdraw their party affiliation at least three months in advance, see id. at § 353, may qualify for Maine’s general election ballot through a third process, a nomination petition. Id. at § 351. The nomination petition must bear the names, signatures and addresses of enough registered voters, regardless of party affiliation, to meet the prescribed level of support for the particular “electoral division” to which the candidate aspires. Id. at § 354(1) — (2). Generally speaking, the number of signatures required on a nomination petition for any particular office is the same as that required for a write-in candidate to qualify at a party primary, see Table II, supra; and totals twice the number of signatures a party candidate would be required to obtain on a primary petition. See id. at § 354(5). A prospective candidate may list a party name (or “political designation”) of up to three words on the nomination petition, id. at § 354(1), and on the general election ballot if s/he qualifies. Id. at § 602(2)(B). II For some time, the Libertarian Party has participated in Maine elections, apparently without achieving the level of voter support needed to qualify as an official political party under § 303. In January 1991, however, Andrew Adam, an independent candidate who won 9% of the vote in the 1990 Maine gubernatorial election, permitted the Party to use his name to bypass the nomination-petition process and qualify automatically as a political party under the “coattail” provisions of § 302(1). Following its certification as an “official” party, the Party made diligent efforts to attract members. By the date of the primary election on June 9, 1992, it had enrolled 1,048 registered voters statewide, but did not have sufficient concentrations of membership support to satisfy the signature requirements under § 335 for getting the appellant candidates on the primary election ballots in their respective districts. The appellant candidates participated as write-in candidates in the Party primary, and in some instances won a plurality of the write-in votes cast in their respective districts, but the total number of their write-in votes was insufficient to qualify the appellant candidates for the general election ballot under § 723(1)(A) Anticipating its candidates’ inability to qualify for the general election ballot through the prescribed statutory process, the Party amended its by-laws on May 17, 1992, to permit its candidates in the general election to be nominated at the Party convention. Following their nomination, the names of the appellant candidates were submitted to defendant-appellee, Secretary of State William Diamond (“Secretary”), who declined to place their names on the general election ballot, citing the mandatory language of the Maine election code. See id. at § 331(1) (“a party’s nomination of a candidate for federal, state or county office shall be made by primary election”) (emphasis added); § 7 (“[w]hen used in this Title, the words ‘shall’ and ‘must’ are used in a mandatory sense to impose an obligation to act or refrain from acting”). On August 10, 1992, the Party brought an action for injunctive relief against the Secretary, challenging, inter alia, the constitutionality of Maine’s ballot-access restrictions. Following an expedited hearing, the district court dismissed the action. See Libertarian Party of Maine v. Diamond, 799 F.Supp. 1 (D.Me.1992). We denied injunc-tive relief pending appeal, on the ground that appellants had not shown a likelihood of success on the merits of their constitutional claim. In the 1992 general election, no Party candidate was elected to any state office. The Party’s presidential candidates, Andrew Marrou and Nancy Lord, who were “automatically” listed on the general election ballot, received approximately one-quarter of one percent of the Maine popular vote. Reiterating their constitutional claims on appeal, appellants note that a Party candidate may be denied access to the general election ballot under the Maine election code, even if s/he commands the support of a plurality of the voters participating in the Party’s district primary, unless s/he also shows that the Party itself has sufficient support, in the particular electoral subdivision, to enable the candidate (1) to gather the requisite signatures from Party members to qualify for the primary ballot under § 335(5); or (2) to qualify for the general election ballot by obtaining sufficient voter participation in a write-in election under § 723(1)(A). Appellants assert that these additional requirements are unnecessary and unconstitutionally burdensome, since the Party has already qualified, under 21-A M.R.S.A. § 302, as an organization possessing “statewide support.” Furthermore, appellants assert, if any additional showing of support is necessary, the Party should be able to rely on demonstrations of support from other voters outside the Party ranks. III Limitations upon ballot access may impinge two fundamental constitutional rights: “the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” See Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968); see also, e.g., Munro v. Socialist Workers Party, 479 U.S. 189, 193, 107 S.Ct. 533, 536, 93 L.Ed.2d 499 (1987); Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979). Where ballot access restrictions fall unequally on similarly situated parties or candidates, the Fourteenth Amendment right to “equal protection of the laws” may be threatened as well. See Anderson, 460 U.S. at 786 n. 7, 103 S.Ct. at 1569 n. 7; Lubin v. Panish, 415 U.S. 709, 713-14, 94 S.Ct. 1315, 1318-19, 39 L.Ed.2d 702 (1974); Bullock v. Carter, 405 U.S. 134, 141, 92 S.Ct. 849, 855, 31 L.Ed.2d 92 (1972); Williams, 393 U.S. at 30-34, 89 S.Ct. at 10-12. The Supreme Court has recognized, nevertheless, that “as a practical matter, there must be substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974). This legitimate interest in reasonable regulation is based not only on “common sense,” Burdick v. Takushi, — U.S. —, —, 112 S.Ct. 2059, 2063, 119 L.Ed.2d 245 (1992), but also on the Article I reservation to the States of the power to prescribe “Times, Places, and Manner of holding Elections for Senators and Representatives.” U.S. Const., Art. I, § 4, cl. 1. Accordingly, courts have attempted a constitutional equilibrium between the legitimate constitutional interests of the States in conducting fair and orderly elections and the First Amendment rights of voters and candidates, balancing “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs rights.” Burdick, — U.S. at —, 112 S.Ct. at 2063 (quoting Anderson, 460 U.S. at 789, 103 S.Ct. at 1570). “Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.” Anderson, 460 U.S. at 789, 103 S.Ct. at 1570. A. “Substantial Support” As the Supreme Court repeatedly has held, States have a legitimate interest in “protecting] the integrity of the electoral process” by ensuring that “all candidates for nomination make a preliminary showing of substantial support” among voters in the relevant electoral districts. Over the years, the Court has articulated the “support” requirement in various ways, but its broad outlines are clear. See, e.g., Munro, 479 U.S. at 193, 107 S.Ct. at 536 (“modicum of support among the potential voters for the office”); Anderson, 460 U.S. at 788-89 n. 9, 103 S.Ct. at 1569-70 n. 9 (“preliminary showing of substantial support”); American Party of Texas v. White, 415 U.S. 767, 782, 94 S.Ct. 1296, 1307, 39 L.Ed.2d 744 (1974) (“significant, measurable quantum of community support”); Lubin, 415 U.S. at 715, 94 S.Ct. at 1319 (“serious candidates with some prospects of public support”); Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971) (“significant modicum of support”). The “support” requirement is meant to safeguard the integrity of elections by avoiding overloaded ballots and frivolous candidacies, which diminish victory margins, contribute to the cost of conducting elections, confuse and frustrate voters, increase the need for burdensome runoffs, and may ultimately discourage voter participation in the electoral process. See Illinois State Board of Elections, 440 U.S. at 183-84, 99 S.Ct. at 989-90 (quoting Lubin, 415 U.S. at 715, 94 S.Ct. at 1319); Bullock, 405 U.S. at 145, 92 S.Ct. at 857. A State is permitted to consider a party’s primary-election performance as a relevant factor in its measurement of “significant support.” See, e.g., Munro, 479 U.S. at 196-197, 107 S.Ct. at 538 (upholding requirement that minor parties poll 1% of participating electorate in primary election; observing that “[t]he primary election ... is ‘an integral part of the entire election process ... [that] functions to winnow out and finally reject all but the chosen candidates’ ”). “The State can properly reserve the general election ballot ‘for major struggles.’ ” Id. (quoting Storer, 415 U.S. at 735, 94 S.Ct. at 1281). The Party argues that its qualification as a political party under the § 302 “coattail” provision was enough to demonstrate “substantial support” among the Maine electorate. We do not agree. By choosing to qualify under the “coattail” provision, the Party bypassed the requirement of mustering significant numerical support among eligible voters, rather than demonstrating its capacity to do so. As far as the record shows, the Party has submitted no petitions, enrolled few members, and garnered little support for the candidates who ran under its banner in the 1992 and earlier elections. Indeed, its only significant sponsorship to date has been the endorsement of Andrew Adam, whose 9% showing in the 1990 gubernatorial elections may have suggested an ability to interest independents in Party enrollment, but clearly did not ensure that such support could or would be obtained. In these circumstances, we think the State retained a legitimate interest in ensuring that the Party in fact possessed a minimal level of support among the electorate, as a prerequisite to listing the appellant candidates on the primary and general election ballots. Moreover, even if we were to accept the Party’s premise — that Adam’s coattails invested the Party with some similitude of “statewide support” — more would be required. The Supreme Court recently confirmed that a State possesses a separate, and additional, interest in ascertaining that a political party which nominates candidates for office in an electoral subdivision of a larger political unit demonstrate support in the particular electoral subdivision for which the candidate is nominated. See Norman v. Reed, 502 U.S. —, —, 112 S.Ct. 698, 708, 116 L.Ed.2d 711 (1992) (rejecting “overall” showing of support as basis for nominating local candidate; “[a] Party [may not] cite its success in [one] district as a sufficient condition for running candidates in the [other]”). The Norman requirement makes sound electoral sense: the potential for “confusion and frustration” when statewide election ballots are overloaded with candidacies who lack even a modicum of support among eligible voters poses similar risks in local and district elections. As all appellant candidates sought elective office at the local or district level, rather than statewide, the State had a legitimate interest in ensuring a modicum of candidate support among the relevant voter constituencies, over and above any general support which might be imputed to the Party based on Adam’s “statewide” success in 1990. B. Regulating Primary Participation States possess a comparable interest in ensuring that a party’s nominating process includes sufficient participation by the party’s own members or supporters. Absent some level of participation by party members, the integrity of party nominations might be compromised by “party raiding,” whereby “voters in sympathy with one party ... influence or determine the results of another party’s primary,” Rosario, 410 U.S. at 761-62, 93 S.Ct. at 1251-52, which in turn could threaten the integrity of general elections and dilute the informative function of a party’s label as a description of its collective political purpose. See Tashjian, 479 U.S. at 220-21, 107 S.Ct. at 551-52 (noting “informative function” of party labels as “shorthand designation of the views of [the] party[’s] candidates on matters of public concern”); Rosario, 410 U.S. at 762, 93 S.Ct. at 1252 (noting State’s asserted interest in preventing primary votes which are “not in sympathy with the party’s principles”). Appellants correctly suggest that the Supreme Court, in Tashjian, minimized the significance of the State’s interest in “attempting to act as the ideological guarantor of [a particular] Party’s candidates,” 479 U.S. at 218, 107 S.Ct. at 550, and reaffirmed its “faith in the ability of individual voters to inform themselves about campaign issues,” id. (quoting Anderson, 460 U.S. at 796, 103 S.Ct. at 1574). In arriving at this conclusion, however, the Court specifically noted the state-law requirement that parties maintain a certain level of support among the general electorate, see id. 479 U.S. at 211 n. 2, 107 S.Ct. at 547 n. 2, and that party candidates thereafter “garner substantial minority support” at the Party’s “closed” convention: The Party is not proposing that independents be allowed to choose the Party’s nominee without Party participation; on the contrary, to be listed on the Party’s primary ballot continues to require, under a statute not challenged here, that the primary candidate have obtained at least 20% of the vote at a Party convention, which only Party members may attend. Id. at 220-21, 107 S.Ct. at 552 (emphasis added). In light of the Tashjian Court’s explicit reference 'to a “closed” nomination process, by a Party possessing “substantial support” among the general electorate, we do not think Tashjian signals a retreat from the position that the State may impose reasonable safeguards to ensure active participation by a significant number of a party’s members or supporters in the course of the nominating process. C. Burden on Associational Interests We next consider the burdensomeness of Maine’s electoral scheme. Like all such schemes, Maine’s ballot-access restrictions “inevitably affeet[ ] — at least to some degree — the individual’s right to vote and his right to associate with others for political ends.” Anderson, 460 U.S. at 788, 103 S.Ct. at 1570. After carefully examining the effects of Maine’s nomination procedures, the district court concluded that the challenged ballot-access requirements were neither inappropriate to their purposes nor unconstitutionally burdensome. We agree. As the district court noted, the levels of electoral support Party candidates are required to demonstrate in order to get on the Party’s primary ballot are not high: The record shows that there are approximately 876,000 registered voters in Maine. In Maine there are two Congressional seats, 35 state senate seats, and 151 state representative seats. If each electoral division has an equal number of voters, then each Congressional district would have approximately 438,000 voters, each state senate district would have approximately 25,-000 voters, and each state representative district would have approximately 5,800 voters. The requirements for primary petition signatures for these three districts are 1,000,100 and 25, respectively. Therefore, the numbers [of Party members’ signatures] that an aspiring Libertarian candidate for each of these positions would need amount to 0.22%, 0.4%, and 0.43%, respectively, of the registered voters in each district. 799 F.Supp. at 4. We endorse the district court’s view that these signature requirements indeed are modest in numerical terms. Compare, e.g., American Party, 415 U.S. at 783, 94 S.Ct. at 1307 (upholding requirement that 1% of voters in last gubernatorial election must participate in minor parties’ precinct conventions or sign supplemental nominating petitions for statewide candidates; “[t]o demonstrate this degree of support does not appear either impossible or impractical, and we are unwilling to assume that the requirement imposes a substantially greater hardship on minority party access to the ballot”); see also Burdick, — U.S. at —, 112 S.Ct. at 2064 (1% of all registered voters for party participation in statewide primary); Illinois State Board of Elections, 440 U.S. at 186, 99 S.Ct. at 991 (25,000 signatures for statewide office); Storer, 415 U.S. at 740, 94 S.Ct. at 1284 (325,000 signatures statewide in 24 days); Jenness, 403 U.S. at 431, 91 S.Ct. at 1970 (5% of state’s registered voters). Unlike the statutes under challenge in American Party and other eases, however, the Maine statute requires Party candidates to obtain the signatures of Party members, as opposed to independent voters or voters enrolled in other political parties. Accordingly, the Party insists, the onerousness of the signature requirements must be defined, for constitutional purposes, as a percentage of party membership (the “eligible pool of possible signers”), rather than the entire electorate. See Storer, 415 U.S. at 742-43, 94 S.Ct. at 1285. Any broader view, says the Party, would treat all registered voters as potential Party enrollees, “amounting] to forced political association” violative of First Amendment rights. See Democratic Party v. Wisconsin, 450 U.S. at 122, 101 S.Ct. at 1019 (“the freedom to associate for the ‘common advancement of political beliefs’ necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only”) (quoting Kusper v. Pontikes, 414 U.S. 51, 56, 94 S.Ct. 303, 307, 38 L.Ed.2d 260 (1973)); Consumer Party, 633 F.Supp. at 889-90 (“a party may not be essentially required to broaden its message or appeal in an effort to increase its membership; a group’s associative rights depend on having as members only those who share a particular vision and collective purpose”); see also Roberts v. United States Jaycees, 468 U.S. 609, 623, 104 S.Ct. 3244, 3252, 82 L.Ed.2d 462 (1984) (“freedom of association ... plainly presupposes a freedom not to associate”). Viewed as the Party urges, the Maine scheme indeed would appear onerous; the Party lacks sufficient membership support in many districts and counties to meet the primary-ballot access requirements of § 335. We see the issue somewhat differently, however. We need not decide whether there may be circumstances in which significant constitutional problems would result from a regulatory scheme which precluded candidate access to a party’s ballot by different means than those under challenge in this case. If such limits exist, it suffices to say that they have not been reached under the Maine electoral scheme. First, the burden about which the Party complains is self-imposed, for the most part. Under Maine law, a party which adopts restrictive membership policies is not required to assume “qualified” status under § 301, et seq., or to assume the burdens of the primary nomination requirement imposed by § 331. Indeed, a party can choose to “disqualify” itself at any time up to April 15 of an election year, even after submitting the party designation and consent of its “coattail” candidate under § 302(1), merely by eschewing the municipal caucuses required by § 302(3), or by instructing its party chairman to withhold the signed certificate of caucus participation required by § 301(1)(D). If a party voluntarily chooses — or continues — to pursue the § 302 procedure for electoral participation as a “qualified” party, it must be understood to have assumed the burden of maintaining membership rolls sufficient to nominate candidates through the primary election process. Second, and equally important, a party which chooses not to participate in primary elections as a “qualified” party retains the option to qualify candidates for the statewide election ballot through the § 351 “nomination petition” procedure. The Party has offered no evidence whatever to suggest that this alternate route to the printed ballot is substantially more burdensome for a small party than a primary-qualification procedure. In fact, in the 1992 elections, at least three independent candidates for President— Lenora Fulani, H. Ross Perot, and Howard Phillips — mustered the requisite 4000 signatures and qualified by petition to be listed, along with their chosen “political designation,” on Maine’s general election ballot. As the Supreme Court recognized in Jenness, 403 U.S. at 441-42, 91 S.Ct. at 1975, a nomination petition procedure for ballot access by new or small political parties is not inherently impermissible, merely because it is different from the procedure permitted for larger parties, provided the procedure imposes no undue burden. “There are obvious differences in kind between the needs and potentials of a political party with historically established broad support, on the one hand, and a new or small political organization on the other. [A State is not] guilty of invidious discrimination in recognizing these differences and providing different routes to the printed ballot.” Id.; see also Munro, 479 U.S. at 193, 107 S.Ct. at 536 (“[i]t is now clear that States may condition access to the general election ballot by a minor-party or independent candidate upon a showing of a modicum of support [in a primary election] among the potential voters for the office”); American Party, 415 U.S. at 782, 94 S.Ct. at 1307 (“so long as the larger parties must demonstrate major support among the electorate at the last election, whereas the smaller parties need not, the latter, without being invidiously treated, may be required to establish their position in some other manner”). Finally, even if a small party chooses to “qualify” under § 302, and to nominate its political candidates under the primary election procedure, Maine law provides a means by which party candidates may gain access to the general election ballot by soliciting support from unenrolled registered voters through write-in ballots cast in the primary election. The write-in ballot option ensures that no qualified primary voter is denied the opportunity freely to vote for the candidate of his or her choice, and that a small party which is unable to meet the minimal membership requirements for listing any candidates on its primary ballot, despite “significant support” among the general electorate in a particular district, may nonetheless nominate the candidate who receives a plurality of primary voter support. Unity Party v. Wallace, 707 F.2d 59, 62 (2d Cir.1983) (write-in candidacy is acceptable alternative to ballot listing where ballot access requirement imposes de minimis encumbrance). The one impediment is that the successful primary candidate’s write-in plurality must be sufficient to satisfy the numerical requirements of § 723(1)(A) (which are Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_usc1sect	723	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". BURMAN et al. v. LENKIN CONST. CO. et al. No. 8877. United States Court of Appeals District of Columbia. Argued March 14, 1945. Decided May 14, 1945. Mr. Jacob N. Halper, of Washington, D. C., for appellants. Mr. Leo A. Rover, of Washington, D. C., with whom Mr. Irvin Goldstein, of Washington, D. C., was on the brief, for appellees. Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices. PER CURIAM. Appellant Louis Burman, who was plaintiff below, brought this action for himself and for his wholly owned corporation, Oxon Park Housing Corporation, against Lenkin Construction Company and others for damages for breach of contract and for the recovery of $1,500 paid by him in compromise of the differences between the parties, but which he claims was paid under duress and coercion. The court below entered summary judgment for the defendants (appellees). The controversy grows out of a contract made in October, 1942, in which Burman agreed with Lenkin Company to employ the latter in the construction of not less than fifteen nor more than thirty four-family buildings upon certain unimproved land in the District of Columbia which Burman had agreed to purchase. It was understood that the performance of the contract depended upon obtaining certain priorities for the use of critical materials necessary in the construction of the buildings and the obtaining of commitments from the Federal Housing Administration of loans covering the cost of construction. Oxon Park Housing Corporation, as owner, was awarded the necessary priority permits, which named the Lenkin Company as builder and contractor, but it was claimed by Lenkin that commitments covering first trust loans in an amount sufficient to cover the cost of construction, which the agreement required Burman to obtain, were never secured, and after written notice to Burman, Lenkin declined to go forward until the commitments were had. Burman thereupon, without notice to Lenkin, entered into a contract to sell the entire project to another and agreed as a part of that transaction to obtain from Len-kin and transfer to the new party the priorities covering the necessary building materials. But Lenkin declined to make the transfer, claiming default on Burman’s part. Whereupon Burman and Lenkin entered into an agreement, dated November 28, 1942, to cancel their contract and to settle all their differences. This agreement contemplated the payment by Burman of $1,500 to Lenkin and the release of the latter from any and all claims or demands of Burman, and Lenkin on its part agreed to transfer to Burman the priorities award and to release Burman from any claims of Lenkin in connection with the original project. On this appeal the points relied upon are (1) that, since the pleadings raise the question of duress in obtaining the release, the court erred in entering summary judgment and (2) that the court erred in failing to state separately its findings and conclusions of law in accordance with Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. (1). If the agreement between the parties in which they settled their differences is not subject to the charge that it was obtained by coercion, its terms conclude either of the parties as to any claim of the one against the other in relation to the original agreement. We think the deposition of appellant Burman, the facts of which are admitted by the motion for summary judgment, clearly negatives the charge that the compromise was obtained through coercion. Unquestionably, there were differences between the parties, and it is not difficult to find in the record evidences of failure of performance in minor respects on both sides. But this was known and understood by the parties when the settlement was made. At that time each perfectly understood that the other was surrendering all his claims; and each agreed on the consideration for such surrender. Appellant got what he sought in the transfer of the priorities to purchase the building materials, without which the subsequent sale for which he had already contracted could not have been consummated, and the $1,500 paid by him was then and there understood as fair compensation to the other party for giving up the priorities and relinquishing its rights under the building contract. The deposition indicates clearly that it was Burman who “insisted” on the settlement, rather than yielding to it as a result of the defendant’s coercion. By obtaining the release of the priorities he was able to make a profit on the sale of the land. There is nothing in his testimony which even tends to support his allegation of “duress of property,” or which shows that he entered into the compromise from few or threats, or that, in agreeing to what he did agree to, he was not acting in the full exercise of his business judgment. (2). We have carefully read and1 considered the entire record, and while we-think it is always desirable, on a trial to a judge without a jury, that the facts should be found to aid us in understanding the basis of the decision, we are nevertheless of opinion that here the record considered as a whole does not present a genuine issue as to any material fact — in view of which it would be both a waste of time and a needless expense to send the case back to the District Court for special findings of fact. Affirmed. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28? Answer with a number. Answer:
songer_numresp	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. FLINT RIVER & N. E. R. CO. v. MELLON, Director General of Railroads, etc. Court of Appeals of District of Columbia. Submitted December 5, 1927. Decided February 6, 1928. No. 4570. 1. Railroads <@=>51/2.(23) — Actions under Transportation Act must be brought against presidential agent (Transportation Act 1920 [49 USCA § 71 et seq.]). Actions which may be brought under Transportation Act 1920 (49 USCA § 71 et seq. [Comp. St. § 10071% et seq.]) must be brought against the agent designated by the President. 2. United States <S=»I25(2) — Actions under Transportation Act against presidential agent are in legal effect against United States (Transportation Act 1920 [49 USCA § 71 et seq.]). Actions under Transportation Act 1920 (49 USCA § 71 et seq. [Comp. St. § 10071%.et seq.]) against the agent designated by the President, are in legal effect against the United States. 3. United States <@=> 125(1) — Congressional consent is essential to sue United States. The consent of Congress is essential to the right to maintain a suit against the United States. 4. United States <@=>125(I) — Statute authorizing suit against United States must be strictly followed. The letter of the statute conferring the right to sue the United States must be strictly followed. 5. Railroads <®=>5!/£>-(20) — Presidential agent can be sued only under statute creating office (Transportation Act 1920, § 206 [49 USCA § 74]). The agent for the President of the United States cannot be sued as such, except under provisions of Transportation Act 1920, § 206 (49 USCA § 74 [Comp. St. § KHWl^ce]), creating the office of such agent. 6. Railroads <@=5i/2,(20) — Suit against presidential agent to reform contract with Director General, so as to permit reimbursement of deficits during federal control, held not proceeding. beyond restrictions of Transportation Act, to correct administrative act (Federal Control Act [Comp. St. §§ 3ll5%a~ 31153/ip]; Transportation Act 1920, §§ 204, 206 [49 USCA §§ 73, 74]). Suit by railroad company against presidential agent to modify or reform contract of Director General, appointed under President’s proclamation (40 Stat. 1733), to make specified division of rates, etc., on condition that railroad company accept terms of Federal Control Act (Comp. St. §§ 3115%a-3115%p), so as to permit reimbursement of deficits during federal control under Transportation Act 1920, § 204 (49 USCA § 73 [Comp. St. § 10071%bbb]), held not a proceeding to correct administrative act of Director General by analogy to suit to enjoin administrative official from doing ultra vires or illegal act, or mandamus to require him to conform to statutory mandate, so as to avoid restrictions of section 206 (49 USCA § 74 [Oomp. St. § 10071]4ec]), as to causes of action against such agent. 7. Railroads <@=>5!/2i(20) — No action, not specifically authorized by statute, lies against purely administrative officer, such as presidential agent, for equitable reformation of contract to which United States 'is party (Transportation Act 1920, § 206 [49 USCA § 74]). In absence of specific statutory authority, no action will lie against a purely administrative officer, such as presidential agent, provided for by Transportation Act 1920, § 206 (49 USCA § 74 [Comp. St. § 10071%cc]), to enforce an equitable reformation of a contract to whieh the United States is a party. 8. Railroads <@=>5i/2i(20) — Petition to reform contract with Director Genera!, so as to permit reimbursement of deficits during federal control, must be denied, because of remedy under Federal Control Act (Transportation Act 1920, § 204 [49 USCA § 73]; Federal Control Act, § 3 [Comp. St. § 3115%t>]). • Railroad company’s petition for reformation of contract with Director General of Railroads, appointed under President’s proclamation (40 Stat. 1733), so as to permit reimbursement of deficits during federal control, under Transportation Act 1920, § 204 (49 USCA § 73 [Comp. St. § 10071%bbb]), must be denied in view of provision for remedy under Federal Control Aet, § 3 (Comp. St. § 3115%c), through board of referees and Court of Claims, in event of adverse finding by Interstate Commerce Commission. Appeal from the Supreme Court of the District of Columbia. Suit by the Flint River & Northeastern Railroad Company against A. W. Mellon, Director General of Railroads, as Agent for the President of the United States. From a decree of, dismissal, plaintiff appeals. Affirmed. M. C. Elliott, and G. H. Parker, both of Washington, D. C., for appellant. A. M. Bull, of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. VAN ORSDEL, Associate Justice. Appellant, plaintiff below, filed a bill in equity in the Supreme Court of the District of Columbia, praying for the modification or reformation of a contract entered into by the parties to this suit, whieh plaintiff claims was executed under mutual mistakes of law and fact. From a decree dismissing plaintiff’s bill, the ease comes here on appeal. It appears that the President of the United States took over by proclamation the operation of certain of the railroad systems of the country on December 27, 1917. A Director General was appointed to operate the railroads under government. control. 40 Stat. 1733. By the Aet of Congress of March 21, 1918, 40 Stat. 451 (Comp. St. §§ 3115%a-3115 /ip), known as the Federal Control Act, provision was made for compensation of the railway companies for the use of their properties. By section 204 of the Aet of February 28, 1920, 41 Stat. 456, known as the Transportation Aet (49 USCA § 73 [Comp. St. §' 1007114-bbb]), provision was made for reimbursement of deficits during federal control of 'railroads which had not been in fact operated by the government. The aet provided, however, that these computations should be made by the Interstate Commerce Commission upon application of the railway companies. Pursuant to the authority vested in him, the Director General of Railroads, “acting on behalf of the United States and the President,” entered into the contract here in question with plaintiff, dated May 7, 1919. This contract is similar to the contracts entered into with various short line companies over whieh the control was relinquished on June 29, 1918, and whieh were no longer entitled to compensation under the Federal Control Aet. The Director General, in brief, contracted with these companies to make a specified division of rates, fares, and charges for services performed and to make an equitable allotment of cars. As a condition of entering into the contract, it was provided that “the company accepts the terms and conditions of said Federal Control Aet, and the terms of this agreement, and expressly accepts 'the covenants and obligations of the Director General in this agreement set out, and the rights arising thereunder, in full adjustment, settlement, satisfaction, and discharge of any and all claims and rights, at law or in equity, which it now has or hereafter can have against the United States, the President, the Director General, or any agent or agency thereof, by virtue of anything done or omitted, pursuant to the acts-of Congress herein referred to.” The following provision also appears in the contract: “In view of the foregoing covenants and agreement, and such thereto, the order of relinquishment issued on the 29th day of June, 1918, is hereby rescinded and set aside as of the date when the same was issued; and the said railroad and the properties herein described are hereby brought fully within the terms and under the control of the said Federal Control Act, the same in all respects as if the said order of relinquishment had not been issued. This contract shall become and be effective as of April 1, 1918, with the same effect as if it had been executed and delivered on said date.” Plaintiff applied to the Interstate Commerce Commission for reimbursement under section 204 of the Transportation Act. The Commission in effect held that during the first six months of 1918, plaintiff’s railroad was under federal control, and as such was not entitled to any reimbursement for that time, but issued a certificate to the Secretary of the Treasury covering the remaining period.1 Deficit Settlement with Flint River & Northeastern R. R., 82 Interst. Com. Com’n R. 387. In the present suit, plaintiff asks that the contract “be rescinded, or be construed, and so far as may be necessary modified or reformed, so as to express the intention of the parties.” The contract, it is urged, because of mutual mistakes of law and fact, has operated to prevent the plaintiff from securing compensation to which it claims it is entitled under the Federal Control Act, and also to prevent reimbursement under section 204 of the Transportation Act. This would involve necessarily a determination of the question as to whether or not plaintiff’s railroad was privately operated or was under federal control during the first half of the year 1918. It is apparent that the case was disposed of in the court below upon the question of jurisdiction, to which the motion of defendant to dismiss the bill was chiefly directed. It is settled law that actions which may be brought under the Transportation Act must be brought against the agent designated by the President, and that such actions are in legal effect against the United States. Dupont De Nemours & Co. v. Davis, 264 U. S. 456, 462, 44 S. Ct. 364, 68 L. Ed. 788. It is also true that the-consent of Congress is essential to the right to maintain a suit against the United States, and the letter of the statute conferring that right must be strictly followed. Price v. United States, 174 U. S. 373, 375, 19 S. Ct. 765, 43 L. Ed. 1011; United States ex rel. Rauch v. Davis, 56 App. D. C. 46, 8 F.(2d) 907. The defendant in the present case, and the person summoned, is “A. W. Mellon, Director General of Railroads, as Agent for the President of the United States.” The office of agent is created by section 206 of the Transportation Act (49 USCA § 74 [Comp. St. §' 10071]4ee]), and it follows that the agent cannot be sued as such, except under the provisions of that section. Section 206 provides: “Actions at law, suits in equity and proceedings in admiralty, based on causes of action arising out of the possession, use, or operation by the President of the railroad or system of transportation of any carrier (under the provisions of the Federal' Control Act, or of the Act of August 29, 1916) of such character as prior to federal control could have been brought against such carrier, may, after the termination of federal control, be brought against an agent designated by the President for such purpose.” The record discloses, however, that plaintiff disclaimed in the court below that this suit was brought under section 206 of the Transportation Act. This of itself is sufficient to dispose of the question of jurisdiction, since only under that section can suit be brought against the agent of the President. Counsel for plaintiff, in ' their .brief, seek to avoid the restrictions of the above statute on the theory that this “is a proceeding to correct an administrative act of the Director General, acting as agent for the President, made under mistakes of fact and law. It is somewhat similar in character to a suit to enjoin an administrative official from doing an ultra vires or illegal act, or a suit to mandamus an administrative official to require him to conform to some statutory mandate.” But we think this analogy is incorrect, since it is not here sought to restrain the Director General, as agent, from performing an illegal act, nor is it sought to require him to conform to a statutory mandate. If the right to sue the-agent was not exclusively limited to the specific causes of action stated in section 206 of the Transportation Act, we know of no instance where action would lie against a purely administrative officer, in the absence of specific statutory authority, to enforce an equitable reformation of a contract to which the United States is a party. But a more substantial reason for-denying plaintiff’s petition is found in section 204 of the Transportation Act, under which plaintiff may secure reimbursement, and, in the event of an adverse finding by the Interstate Commerce Commission, a remedy is provided under the Federal Control Act (40 Stat. 454 [Comp. St. § 3115%e]), through the board of referees and the Court of Claims. The mere fact that the Director General refuses to recognize plaintiff as entitled to the benefits of the Federal Control Act, on the ground that its railway was not operated by him, and the Interstate Commerce Commission refuses to recognize its claims on the ground that its railway was privately operated during the federal control period,’ present matters subject to adjudication in a proceeding under the Federal Control Act. The decree is affirmed, with coste. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_appel1_1_4	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant. Ronald ADCOCK, et al., Plaintiffs-Appellants, Cross Appellees, v. The FIRESTONE TIRE AND RUBBER COMPANY, et al., Defendants-Appellees, Cross Appellants. Nos. 85-6031, 85-6067. United States Court of Appeals, Sixth Circuit. Argued Feb. 3, 1987. Decided June 26, 1987. John L. Van Cleave, argued, Robert E. Hoehn, Watkins, McGugin, McNeilly, Rowan, Nashville, Tenn., Lowe Watkins, for plaintiffs-appellants, cross-appellees. William N. Ozier, argued, Bass, Berry and Sims, Nashville, Tenn., for defendantsappellees, cross-appellants. Before LIVELY, Chief Judge; RYAN, Circuit Judge; and JOINER, District Judge. The Honorable Charles W. Joiner, Senior Judge, United States District Court for the Eastern District of Michigan, sitting by designation. JOINER, Senior District Judge. Plaintiffs are non-union salaried employees who worked in defendants’ LaVergne, Tennessee tire plant (“the plant”) at the time of the plant’s sale to Bridgestone Tire and Rubber Company (“Bridgestone”). Plaintiffs brought this action pursuant to the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq., to recover, on account of the sale, reduction in force (“RIF”) termination pay under defendants’ termination pay plan. The district court granted defendants’ motion for summary judgment based on the ground that defendants’ determination that no RIF occurred upon the sale which would entitle plaintiffs to benefits was not arbitrary or capricious, 616 F.Supp. 409 (D.C.Tenn. 1985). Plaintiff appeals from this determination. The district court also held that defendants may become responsible for future benefits should Bridgestone terminate any plaintiff under circumstances that would constitute a RIF under the plan. Defendants cross-appeal from this decision. I. Firestone’s company-wide termination pay policy was set forth in its Salaried Personnel Manual (“SPM”) and Handbook for Salaried Employees (“the Handbook”). The SPM is a comprehensive and confidential document that was distributed only to personnel managers and senior executives, though relevant portions were made available to employees upon request. The Handbook was distributed to all salaried employees. The Handbook stated the employees were entitled to termination pay if they were released from the company because of a RIF. The SPM described a RIF as a termination when “necessary to eliminate a position because of reduced workload or due to economic necessity.” According to the SPM, the goal of this termination pay was to minimize “the economic and mental stress of terminated employees ... between release from Firestone and securing other employment.” Defendants interpreted this plan to mean that if a plant was sold as an ongoing concern, no benefits would be paid. On the other hand, if a plant was not sold as such, and even if the purchaser eventually did decide to hire employees back, benefits would still be paid. Defendants explained that this “presumption of unemployment” was less expensive than the alternative of investigating each employee to see if they had been re-employed, and did not cause as much ill will with employees. Consistent with this policy, Firestone sold two plants (in Conover, North Carolina, and Arlington, Texas) not as ongoing concerns, and in each case RIF benefits were paid. Similarly, in a sale of a plant in Romeo, Michigan, only one-half of the employees could be guaranteed jobs with the purchaser, and the other one-half received RIF benefits. The only aberration dealt with the sale of the Newport, Tennessee, Firestone plant as an ongoing concern, where a one-time Service Recognition Award was paid to all employees. According to defendants, this was done to compensate the employees for the fact that the purchaser provided few benefits, and had no pension plan. The terms of the LaVergne sale were spelled out in a seventy-five page agreement that dealt with the transfer of the plant and the continuing employment of the plant employees. The agreement explicitly stated that Firestone would not terminate any employees before the sale, and Bridge-stone would employ every plant employee. In order to meet its commitment of maintaining the plant work force, Firestone adopted a policy of not permitting transfers of plant employees to other Firestone locations. In addition, due to its interpretation of its termination pay plan as described above, employees who accepted employment with Bridgestone did not receive severance pay due to a lack of unemployment, while those who chose not to accept such employment were treated as having resigned, and would therefore be ineligible for severance pay. Pursuant to this agreement, the plant was sold as an ongoing concern on January 10, 1983, for $55,-000,000. Plaintiffs filed the present case on January 12, 1983, alleging that defendants’ interpretation of the termination pay plan was arbitrary and capricious, and was therefore in violation of ERISA. After the filing of cross-motions for summary judgment pursuant to Fed.R.Civ.P. 56(b), the district court granted defendants’ motion on August 6, 1985. The district court began by noting that the SPM would not be heavily relied on, as its contents had not been communicated to the employees in accordance with the dictates of ERISA. In a similar vein, the district court noted that, by defendants’ own admission, Firestone had not complied with the disclosure requirements of ERISA with regard to the termination pay plan in general, but that this noncompliance was not so severe or intentional as to constitute arbitrary and capricious conduct on defendant’s part. The district court then turned to the language of ERISA, and observed that ERISA did not provide for the vesting of employee welfare benefit plans, and that this “silence” constituted a “gap” which had to be filled by federal common law. The district court determined that plaintiffs had a binding contractual right to termination pay, with the offer being the description of the plan in the Handbook, and the acceptance being plaintiffs continuing to work for Firestone. As such, the district court concluded that plaintiffs’ entitlement to these benefits was vested, and that if Bridge-stone terminated any plaintiff in the future under circumstances that constituted a RIF under the plan, defendants would be responsible for benefits. However, the court also concluded that given defendants’ past practices, it was not improper for them to deny benefit payments at the time of the plant sale, as plaintiffs were not yet unemployed, therefore no RIF had occurred. II. On appeal, plaintiffs contend that defendants’ interpretation of the termination pay plan is arbitrary and capricious for two major reasons. First, plaintiffs argue that defendants’ construction of the plan has not been uniform, and the distinction defendants make between ongoing and non-ongoing concern sales is merely a “smoke screen” for inconsistency, as is demonstrated by the Newport sale. Second, plaintiffs contend that defendants have read in unemployment as a prerequisite for benefits, yet no such requirement can be found in the wording of the plan. As a result, plaintiffs argue that defendants’ approach is not consistent with a fair reading of the termination pay plan. Defendants respond that unemployment as a prerequisite is a reasonable interpretation, as the stated policy behind the plan is to decrease the trauma of unemployment. Defendants also argue that this interpretation is consistent with past readings of the plan, specifically pointing to the Conover and Arlington plant sales. The district court granted summary judgment pursuant to Fed.R.Civ.P. 56(b) and will be affirmed only if it is determined that the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party. Matsushita Electric Industries Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In this context, all inferences from the facts must be viewed in a light most favorable to the non-moving party. Id. However, the movant need not present evidence to negate every aspect of the non-movant’s claim, they need only support their own claim that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). In reviewing the decisions of plan administrators under ERISA; the appropriate standard of review is whether the decision was arbitrary, capricious, or in bad faith. Rhoton v. Central States Pension Fund, 717 F.2d 988, 989 (6th Cir.1983); Blakeman v. Mead Containers, 779 F.2d 1146, 1149 (6th Cir.1985); Cook v. Pension Plan For Salaried Employees, 801 F.2d 865, 870 (6th Cir.1986). While plaintiffs argue for more of a de novo standard, this approach has been rejected in favor of the arbitrary or capricious standard, which adequately protects the interests of employees with respect to employment benefits covered by ERISA. See Crews v. Central States Pension Fund, 788 F.2d 332, 336 (6th Cir.1986). A reading of past cases dealing with similarly-worded termination pay plans reveals that courts have come out both ways on the issue of whether unemployment is a prerequisite for termination pay, with an important factor often being how the employer had interpreted the plan at issue in the past. In the instant case, an examination of Firestone’s past interpretation and application of the plan indicates that their present interpretation is consistent. An analysis of the Conover, Arlington, and Romeo plant sales demonstrates that regardless of whether a particular employee is employed by the plant purchaser or not, no termination benefits are paid when a plant is not sold as an ongoing concern. The only exception to this approach seems to be the Newport sale, but this court agrees with the district court that the Newport sale was a special case, and that the circumstances which lead to an exception being made are not present here. Consequently, based on consistency of interpretation, it cannot be said that defendants’ interpretation of the plan in this instance was arbitrary or capricious. Defendants’ interpretation of the termination pay plan is also consistent with a fair reading of the plan, which as recognized by plaintiffs, is always an important consideration when judging the actions of an administrator of an ERISA plan. Blau v. Del Monte Corp., supra, 1354; Blakeman v. Mead Containers, supra, 1150. In analyzing plans such as the one at issue, courts have often held that unemployment should be a prerequisite for benefits, as severance pay is generally intended to tide an employee over while seeking a new job, and should be considered more of an unemployment benefit. Sly v. PR Mallory & Co. Inc., supra, 1211; Jung v. FMC, supra, 713; Holland v. Burlington Ind., Inc., supra, 1149. This is certainly appropriate in the instant case, as the SPM states that the goal of the plan is to reduce the stress of terminated employees between the time of their release and securing other employment. This court believes that it is a fair reading of the plan to require unemployment as a prerequisite to finding that a RIF occurred which justifies the payment of termination pay. Accordingly, because there is no question that a RIF did not occur in this case, the district court was correct in holding that defendants’ interpretation and application of the plan to plaintiffs was not arbitrary or capricious. III. In their cross-appeal, defendants argue that the district court erred in holding that plaintiffs’ entitlement to termination pay was vested under ERISA. Initially, defendants claim that the fact that ERISA specifically provides for the vesting of pension benefits, but not for employee welfare benefit plans, is an intentional omission which indicates that Congress did not intend for such plans to be vested. It is not a gap, they argue, that requires federal common law interpretation. Defendants then go on to argue that the analysis of the district court that the gap should be filled by a contract analysis has been recently rejected by this court in In re White Farm Equipment Co., 788 F.2d 1186 (6th Cir. 1986). Plaintiffs take the same position the district court did, arguing that the contract approach is appropriate, and that the termination pay plan is the result of a bargained-for exchange. This court will not address this issue, as it is not properly before us, nor was it properly before the district court. The jurisdiction of federal courts is limited by Article III of the United States Constitution to consideration of actual cases and controversies, therefore federal courts are not permitted to render advisory opinions. Princeton University v. Schmid, 455 U.S. 100, 102, 102 S.Ct. 867, 868, 70 L.Ed.2d 855 (1982); Big Rivers Electric Corp. v. Environmental Protection Agency, 523 F.2d 16, 19 (6th Cir.1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1663, 48 L.Ed.2d 175 (1976). The vesting question was not mentioned in the complaint, nor by any party in a motion for summary judgment, and was therefore never before the district court. As such, there was no actual vesting case or controversy for the district court to rule on, so the district court rendered an advisory opinion. This action was clearly improper, and must be vacated. IY. The decision of the district court granting defendants’ motion for summary judgment is AFFIRMED except for that part which holds that plaintiffs’ entitlement to termination pay is vested. As to that part of the district court’s decision, it is VACATED. RYAN, Circuit Judge, concurs in the result and the court’s judgment. . The plan is funded entirely by Firestone, and applies to non-union employees. Union employees subject to collective bargaining agreements have separate termination pay rights under those agreements. . A sale as an ongoing concern is where there is a contractual agreement that all employees of the seller will be employed by the purchaser. . The denial of severance benefits at the plant saved Firestone approximately $2,500,000. . The plant employees left work on Friday working for Firestone, and when they returned to work on the following Monday, they were working for Bridgestone. In the two years following the sale, only two former Firestone employees had been terminated, and both were terminated for cause. . The district court concluded that the termination pay plan constituted an employee welfare benefit plan for the purposes of ERISA, and this conclusion is not disputed on appeal. . According to the district court, defendants would be responsible for benefits accrued up to the date of the plant sale to Bridgestone. . The district court distinguished the Newport sale, stating that while Bridgestone did not offer termination pay, the benefits it did offer were comparable to those offered by Firestone, and were much better than those offered by the purchaser in the Newport case. . For cases holding that unemployment is a prerequisite to entitlement to termination pay, see, Sly v. PR Mallory & Co., Inc., 712 F.2d 1209, 1213 (7th Cir.1983); Jung v. FMC, 755 F.2d 708, 713 (9th Cir.1985); Holland v. Burlington Ind., Inc., 772 F.2d 1140, 1145 (4th Cir.1985), aff’d, - U.S. -, 106 S.Ct. 3267, 91 L.Ed.2d 559 (1986); Blakeman v. Mead Containers, supra, 1151. For cases reaching an opposite conclusion, see Blau v. Del Monte Corp., 748 F.2d 1348, 1356 (9th Cir.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985); Anderson v. CIBA-Geigy Corp., 759 F.2d 1518, 1521 (11th Cir.1985), cert. denied, 474 U.S. 995, 106 S.Ct. 410, 88 L.Ed.2d 360 (1985); Harris v. Pullman Standard, Inc., 809 F.2d 1495 (11th Cir.1987). . This is not to say that an employer may not, if it so desires, provide severance pay without the presence of unemployment, as Firestone does with employees at plants not sold as ongoing concerns. If such an approach is taken, the main concern will then be that the approach is consistently followed in similar cases, and as the above discussion indicates, that consistency is present here. . Plaintiffs argue that this court should not rely on the SPM for any analysis, because it was not properly disseminated to Firestone employees. While it is true that the SPM was not appropriately distributed to all employees, it would be elevating form over substance not to consider the clear intent of the termination pay plan as expressed in the SPM. . Harris v. Pullman Standard, Inc., 809 F.2d 1495 (11th Cir.1987), submitted by plaintiffs after the instant case was argued, is distinguishable. First, unlike the instant plan language, the severance pay plan language in Harris more strongly suggested that unemployment was not a prerequisite to termination pay. 809 F.2d at 1498, 1499. Second, in Harris the plan administrator’s interpretation of the severance pay plan was not consistent with its past practices, 809 F.2d at 1499, while here, defendants have consistently interpreted the plan. . See 29 U.S.C. § 1051(1); McBarron v. S & T Industries, 771 F.2d 94, 97 (6th Cir.1985). . If this court reviewed the district court’s decision, it is likely that it would be reversed in light of In re White Farm Equipment Co., 788 F.2d 1186, 1192-1192 (6th Cir.1986), which rejects the district court’s contract analysis. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant? A. auto B. chemical C. drug D. food processing E. oil refining F. textile G. electronic H. alcohol or tobacco I. other J. unclear Answer:
songer_prejud	A	What follows is an opinion from a United States Court of Appeals. The issue is: "Was there prejudicial conduct by prosecution? (including prosecutor refusing to produce evidence which would aid defendant)" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". UNITED STATES of America, Appellee, v. Anthony Frank GAGGI, Henry Borelli, Peter LaFroscia, Ronald Ustica, Edward Rendini and Ronald Turekian, Defendants-Appellants. Nos. 164 to 169, Dockets 86-1171 to 86-1174 and 86-1184 to 86-1186. United States Court of Appeals, Second Circuit. Argued Oct. 6, 1986. Decided Jan. 21, 1987. Judd Burstein, Michael Rosen, New York City (Judd Burstein, Edward M. Chikofsky, New York City, of counsel), for defendant-appellant Anthony Gaggi. Herald Price Fahringer, New York City (Robert L. Ellis, Edward M. Chikofsky, Judd Burstein, New York City, of counsel), for defendant-appellant Edward Rendini. Robert L. Ellis, New York City, submitted joint brief for defendant-appellant Henry Borelli. Joel Winograd, New York City, submitted joint brief for defendant-appellant Peter LaFroscia. Edward M. Chikofsky, New York City, submitted joint brief for defendant-appellant Ronald Ustica. Judd Burstein, New York City, of counsel on joint brief, for defendants-appellants. David S. Greenfield, New York City (Jonathan J. Silbermann, New York City, of counsel), submitted brief for defendant-appellant Ronald Turekian. Mary Lee Warren, Asst. U.S. Atty., S.D. N.Y. (Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., Michael Kellogg, Walter S. Mack, Jr., Warren Neil Eggleston, Asst. U.S. Attys., S.D.N.Y., of counsel), for appellee, U.S. Before CARDAMONE and PIERCE, Circuit Judges, and BONSAL, District Judge. Hon. Dudley B. Bonsai, Senior Judge, United States District Court for the Southern District of New York, sitting, by designation. CARDAMONE, Circuit Judge: This appeal presents a trial record of a malevolent group of defendants, in the accomplishment of whose violent conspiracies no one was suffered to stand in the way. The problems raised by their trial are varied and complex, not merely on account of the number of those accused, but because two events — one unexpected, one designed — complicated the proceedings immeasurably. Unanticipated was the murder of defendant Paul Castellano on the streets of New York City, during the trial. The planned action was the government's decision to indict two defendants for conspiracy to murder two “persons” under a statute originally enacted in 1870 to protect citizens from discrimination. Although there is no charge that constancy be Congress’ guiding star, it has for over 115 years steadfastly resisted all attempts to change the meaning of the word “citizen”. BACKGROUND Defendants Anthony Gaggi, Henry Borelli, Peter LaFroscia, Ronald Ustica, Ronald Turekian and Edward Rendini appeal their judgments of conviction entered in the United States District Court for the Southern District of New York (Duffy, J.) on April 9 and 11, 1986, after a five and one-half month jury trial. On October 4, 1984, the government filed a 78-count indictment naming 24 defendants and alleging 11 different conspiracies. On September 9,1985, Judge Duffy severed the indictment for the separate trials. The trial at issue on this appeal comprises 23 counts of the original indictment relating to the defendants’ stolen car ring involving ten individuals, six of whom are the defendants presently before us. The six defendants were variously charged with and convicted of one or more violations of 18 U.S.C. §§ 241, 371, 1341 and 2314. Section 371 makes illegal a conspiracy to transport stolen property in interstate and foreign commerce, and § 2314 proscribes the substantive crime of actually transporting such property. Section 241 makes it a crime to deprive any citizen of any right or privilege guaranteed by the Constitution or laws of the United States. Finally, § 1341 proscribes frauds perpetrated through the use of the United States mails. The defendants, the various crimes with which they were charged, and the dispositions of the charges are as follows. The conspiracy under § 371 charged defendants with combining to ship late-model automobiles stolen on the streets of New York to Kuwait and other parts of the Middle East, Puerto Rico and other states in the United States. Gaggi, Ustica, LaFroscia, Rendini and Turekian were convicted of this conspiracy. Ustica, Borelli and Rendini were also convicted on a number of § 2314 counts; while Gaggi, LaFroscia and Turekian were acquitted on these counts. Borelli and Ustica were additionally convicted of conspiracy to deny citizens their civil rights in violation of § 241 for the murders of Ronald Falcaro and Khaled Fahd Darwish Daoud. Finally, Turekian was convicted of mail fraud in violation of § 1341 for submitting fraudulent claims to Aetna Insurance Company. An appendix included at the end of the opinion shows the charges for which each defendant was indicted, whether the charge resulted in a conviction or an acquittal, and the sentence imposed. Two of the six issues raised have already been alluded to — the effect of publicity generated by a murder during trial and the conspiracy to commit murder. For organizational purposes the issues raised by appellants will be discussed in the following order: (I) publicity during trial, (II) civil rights murder conspiracy, (III) government’s claimed misconduct under Brady and Mooney, (IV) evidentiary contentions, (V) jury instructions, and (VI) sentences. DISCUSSION I The Publicity During Trial Two deaths occurred at different times during this lengthy trial prompting motions for mistrial, which were denied on each occasion. Appellants argue that the continued impartiality of the jury was destroyed by these events, and they urge further that the measures taken by the district court were inadequate to protect their rights to a fair trial. It is not an uncommon occurrence for a notorious trial held in Metropolitan New York to engender extensive publicity. The strong public interest in such trials has resulted in procedures to protect defendants’ rights to a fair trial. In United States v. Lord, 565 F.2d 831 (2d Cir.1977), we established guidelines for a district court to follow when the problem of widely disseminated publicity may prejudicially impact an ongoing criminal trial. The simple three-step process is, first, to determine whether the coverage has a potential for unfair prejudice, second, to canvass the jury to find out if they have learned of the potentially prejudicial publicity and, third, to examine individually exposed jurors— outside the presence of the other jurors — to ascertain how much they know of the distracting publicity and what effect, if any, it has had on that juror’s ability to decide the case fairly. Id. at 838-39. Ultimately, the trial judge must examine the “ ‘special facts’ ” of each case, United States v. Persico, 425 F.2d 1375, 1382 (2d Cir.), cert. denied, 400 U.S. 869, 91 S.Ct. 102, 27 L.Ed.2d 108 (1970) (quoting Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1172, 3 L.Ed.2d 1250 (1959) (per curiam)), to determine whether the jurors remained impartial. United States v. Gigante, 729 F.2d 78, 82 (2d Cir.), cert. denied, 467 U.S. 1206, 104 S.Ct. 2390, 81 L.Ed.2d 348 (1984). Absent a clear abuse of the trial court’s discretion, its finding that the jury was impartial should be upheld. United States v. Moon, 718 F.2d 1210, 1219 (2d Cir.1983), cert. denied, 466 U.S. 971, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984); see Marshall, 360 U.S. at 312, 79 S.Ct. at 1172 (trial judge has large discretion in ruling on the issue of prejudice resulting from publicity). With these standards in mind, we turn to the events that occurred during trial and the safeguards taken by the district court. A. The Murder of Paul Castellano On December 16, 1985 two and one-half months into the trial, Paul Castellano — the lead-named defendant in the indictment and one of the named defendants on trial — was gunned down and killed in mid-town Manhattan while out on bail. Almost immediately news of the murder appeared in virtually every newspaper, radio, and television report in New York City. Two leading newspapers reported the incident, for example, as Mafia’s Number One Blown Away, N.Y. Post, Dec. 17, 1985 at 2 and Organized-Crime Chief Shot Dead Stepping From Car on E. 46th St., N.Y. Times, Dec. 17, 1985 at A1, col. 2. The reports of this killing and subsequent investigation did not subside for several weeks. Appellants contend, as they did below, that the jury’s exposure to the concededly broad media coverage of this event required a mistrial. The day after Castellano’s death Judge Duffy conducted a separate voir dire of each juror, asking a number of questions regarding what, if anything, the juror had heard or seen about the murder. All of the jurors knew of it, and approximately six also had heard that Castellano had been a head of an organized crime family. None had heard any comments regarding the nine remaining defendants or about the trial, except that Castellano was a defendant before them. All of the jurors stated that they would be able to decide the case fairly and impartially. United States v. Gaggi, 632 F.Supp. 1019, 1020-21 (S.D.N.Y. 1986). Following arguments heard January 6, 1986, on defendants’ motion for mistrial, Judge Duffy found that the publicity had “a potential for unfair prejudice,” and therefore conducted a second individual voir dire of each juror, including questions suggested by defense counsel. Id. at 1021-22. The trial court concluded that the publicity was collateral in nature, and specifically found that none of the jurors had heard or read anything concerning the remaining defendants. All of the jurors stated unequivocally that their judgment would not be affected by the media reports and that they could decide the case solely on the evidence presented. Id. at 1022-23. As a result, the court ruled — based in part on the jurors’ responses and in part on its own assessment of the jurors’ awareness of their responsibilities and obligations— that the jury had not been prejudiced by the media reports. The record thus reveals that the trial court complied in every respect with this Circuit’s guidelines. For instance, in Lord, we held that the district court should not rely solely on repetitive admonitions when widespread publicity created a strong possibility that some jurors might have been exposed to prejudicial publicity. 565 F.2d at 838. In contrast, the district court here took prompt and effective corrective action. Once it saw “a potential for unfair prejudice,” it held, not one but two, voir dires of each juror outside the presence of other jurors, to determine the extent of the juror’s exposure to the reports and its effect on his or her attitude toward the remaining defendants. Under these circumstances, the measures taken by the district court were adequate to insure a fair trial. Nevertheless, appellants, relying on Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959) (per curiam) and its progeny, insist that given the scope and intensity of the media coverage and despite the precautions taken, nothing short of a mistrial could have preserved their fair trial rights. Appellants stress in particular that the district court had been especially careful throughout the trial to avoid the introduction of references to the “Mafia”, “Gambino family”, and “organized crime”. That precaution was shattered, appellants contend, by the jurors’ exposure to those references in the media reports following Castellano’s murder. We cannot agree. It is the impartiality of the jurors— not the quantum of publicity — that determines whether the trial proceedings may be fairly conducted. Dobbert v. Florida, 432 U.S. 282, 303, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344 (1977). Further, while appellants correctly observe that the jurors were exposed to references that Judge Duffy had properly sought to avoid, they fail to demonstrate how these concerns were not ameliorated by the two individual voir dires. As the Supreme Court has cautioned, “the Constitution 'does not require a new trial every time a juror has been placed in a potentially compromising situation.’ ” Rushen v. Spain, 464 U.S. 114, 118, 104 S.Ct. 453, 455, 78 L.Ed.2d 267 (1983) (per curiam) (quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982)); see United States v. Williams, 568 F.2d 464, 470 (5th Cir.1978) (“Obviously, reversal is not required in every case in which a news story containing facts inadmissible in evidence reaches the jury.”). Marshall is inapposite. There the Supreme Court held that the jurors’ exposure to media coverage regarding the defendant’s own prior criminal conviction, which the trial court had ruled was inadmissible because of its prejudicial effect, mandated a new trial despite assurances by the jurors that they would not be influenced by the information. 360 U.S. at 312-13, 79 S.Ct. at 1172-73. Years later, the Supreme Court restated the Marshall rationale as: “persons who have learned from news sources of a defendant’s prior criminal record are presumed to be prejudiced.” Murphy v. Florida, 421 U.S. 794, 798, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1975). Here the district court made a clear finding that not a single juror had been exposed to information regarding the remaining defendants, and that the publicity therefore was collateral in nature. On that basis it concluded that the jurors were capable of deciding the issues before them fairly and impartially. Appellants’ counsel conceded at oral argument that the publicity generated by the Castellano murder did not relate directly to the issues at stake in the ongoing trial. In contrast with Marshall, the publicity in the instant case did not relate to the remaining defendants’ guilt with respect to the charges against them. The trial court took prompt action to determine the effect of that publicity and gave the jury repeated cautionary instructions. See Gigante, 729 F.2d at 82. Because the trial court is in a much better position to assess the partiality of a juror, it is inappropriate for an appellate court to second-guess that face to face appraisal. B. The Death of Frederick DiNome On February 17,1986, about two months after Castellano’s death — after the trial had been concluded and while the jury was deliberating — there were news reports detailing the apparent suicide of Frederick DiNome, one of the government’s major witnesses who had testified earlier in the trial. As a result, defense counsel again moved for a mistrial or, alternatively, an individual voir dire of the jurors. The district court denied these applications and conducted instead a general inquiry of the jury. In response to the question whether any of them had seen a newspaper that day, the jurors responded by shaking their heads “no”. The court then emphasized repeatedly that they were to avoid media reports “at all costs.” The trial judge believed that a deeper inquiry would only “fuel speculation” and “distract the jurors” from their deliberations. 632 F.Supp. at 1024. Appellants now argue that the district court abused its discretion by not examining each juror individually. In support of this argument they mistakenly rely upon cases in which actual exposure to demonstrated prejudicial publicity required the district court to conduct an individualized voir dire of the jury. See, e.g., United States v. Betner, 489 F.2d 116, 118 (5th Cir.1974). United States v. Rattenni, 480 F.2d 195, 197 (2d Cir.1973); United States ex rel. Owen v. McMann, 435 F.2d 813, 815 (2d Cir.1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1971); United States v. Kum Seng Seo, 300 F.2d 623, 624 (3d Cir.1962); Coppedge v. United States, 272 F.2d 504, 507-08 (D.C.Cir.1959), cert. denied, 368 U.S. 855, 82 S.Ct. 92, 7 L.Ed.2d 52 (1961); United States v. Titsworth, 422 F.Supp. 587, 589-90 (D.Neb.1976). Yet, appellants also point to Lord where only a “strong possibility” of exposure existed, 565 F.2d at 838, and where we noted that in such cases something more than mere admonitions was required. Id. Here, the district court did “something more”. It conducted a general inquiry satisfying itself that no actual jury exposure to prejudicial information had occurred. Thus, under our three-step process an individualized voir dire was unnecessary. Moreover, we agree with the district court, 632 F.Supp. at 1024, that the jury’s ability to render an impartial verdict is confirmed by the care which it took in its deliberations. See United States v. Aiello, 771 F.2d 621, 631 (2d Cir.1985); Gigante, 729 F.2d at 82. Deliberations continued from February 13 through March 5, 1986. The jury made 56 requests asking for re-readings of testimony, exhibits, stipulations, and instructions. Its verdict “ran the gamut” with 58 findings of guilty, 90 findings of not guilty, and a deadlock on two defendants on one count. 632 F.Supp. at 1024. Such a record reveals both an impartial and meticulous jury. Hence, we see no reason to disturb the district court’s discretion in refusing to make more than a general inquiry regarding DiNome’s death. II The Civil Rights Conspiracy Appellants Borelli and Ustica were convicted under 18 U.S.C. § 241 (1982) of conspiracy to deprive Ronald Falcaro and Khaled Fahd Darwish Daoud of the right to be federal witnesses. The jury found that the conspiracy caused the death of both men. Appellants claim that § 241 applies only to conspiracies to deny citizens their constitutional rights, and that Falcaro and Daoud were not proven to be citizens beyond a reasonable doubt. Consequently, they maintain that there is insufficient evidence as a matter of law to sustain their convictions. The government responds that the district court properly ruled that this statute does not limit its protection to citizens. For the reasons that follow, we conclude that United States citizenship is a necessary element under § 241. A. Language of § 241 “Federal crimes, of course, ‘are solely creatures of statute.’ ” Dowling v. United States, 473 U.S. 207, 213, 105 S.Ct. 3127, 3131, 87 L.Ed.2d 152 (1985), (quoting Liparota v. United States, 471 U.S. 419, 424, 105 S.Ct. 2084, 2087, 85 L.Ed.2d 434 (1985)). For this reason, when analyzing the range of a federal criminal statute close heed must be paid to its language, construction, legislative history, and purpose in order to determine the scope of conduct the enactment forbids. The best starting point for examination of § 241 is — as that familiar canon of statutory construction instructs — the language of the statute itself. Landreth Timber Co. v. Landreth, 471 U.S. 681, 105 S.Ct. 2297, 2301, 85 L.Ed.2d 692 (1985); Watt v. Alaska, 451 U.S. 259, 265, 101 S.Ct. 1673, 1677, 68 L.Ed.2d 80 (1981). “Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). Entitled “Conspiracy against rights of citizens”, § 241 makes it unlawful for “two or more persons [to] conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States....” 18 U.S.C. § 241 (1982) (emphasis added). The statute specifically protects “citizens” against interference with their constitutional or federal statutory rights. Its language does not address harm aimed at “persons”, “inhabitants”, “residents”, or “domiciles”. When called upon to construe this statute, the Supreme Court stated that “§ 241 must be read as it is written.” United States v. Price, 383 U.S. 787, 798, 86 S.Ct. 1152, 1159, 16 L.Ed.2d 267 (1966). As a matter of common usage the term “citizen” is properly understood as a native or naturalized person who owes allegiance to a government and who is entitled to reciprocal protection from it. Thus, “[following the axiom that words used in a statute are to be given their ordinary meaning,” Burns v. Alcala, 420 U.S. 575, 580-81, 95 S.Ct. 1180, 1184, 43 L.Ed.2d 469 (1975), (citing Minor v. Mechanics Bank, 26 U.S. 46, 63, 1 Pet. 46, 64, 7 L.Ed. 47 (1828)), § 241 is plainly limited by its language to redressing conspiracies against citizens. B. Judicial Constmction of § 241 As the Supreme Court has observed, inquiry into the proper construction of a statute does not necessarily end after ascertaining the plain meaning drawn from the face of the statute. Watt v. Alaska, 451 U.S. at 266, 101 S.Ct. at 1677; Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976). An examination of the caselaw construing § 241 is also appropriate. A century ago, the Supreme Court answered the precise question before us today. In Baldwin v. Franks, 120 U.S. 678, 7 S.Ct. 656, 32 L.Ed. 766 (1887), the Court had before it a charge under § 241’s identical predecessor statute based on a conspiracy to drive certain Chinese aliens from their California residences. Because the conspiracy was aimed at “alien” victims, the question arose: Who are the citizens of the United States to which the statute refers? The Supreme Court concluded: “it is everywhere apparent that Congress had it in mind to legislate for citizens, as citizens, and not as mere persons, residents or inhabitants.” Id. at 691, 7 S.Ct. at 662. See also Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 661-62 n. 36, 99 S.Ct. 1905, 1939 n. 3, 60 L.Ed.2d 508 (1979) (White, J. concurring) (discussing Baldwin); United States v. Williams, 341 U.S. 70, 81 n. 7, 71 S.Ct. 581, 586 n. 7, 95 L.Ed. 758 (1951) (Frankfurter, J.) (reiterating the holding of Baldwin). The Baldwin court further explained: This section is highly penal in its character,____ It is, therefore, to be construed strictly; ... doubtful words are not to be extended beyond their natural meaning in the connection in which they are used. Here the doubtful word is “citizen”, and it is used in connection with the rights and privileges pertaining to a man as a citizen, and not as a person only or an inhabitant____ For these reasons we are satisfied that the word citizen, as used in this statute, must be given the same meaning it has in the Fourteenth Amendment of the Constitution, and that to constitute the offense which is there provided for, the wrong must be done to one who is a citizen in that sense. 120 U.S. 691-92, 7 S.Ct. 662. Thus, the Supreme Court believed that since § 241 had been enacted in the wake of the Fourteenth and Fifteenth Amendments, it must be interpreted consistently with those Amendments. Section 1 of the Fourteenth Amendment defines “citizen” as “all persons bom or naturalized in the United States”. U.S. Const, amend. XIV, § 1. Reading the Fourteenth Amendment alongside Baldwin, we are persuaded that Congress meant to restrict prosecutions under § 241 to conspiracies against persons bom or naturalized in the United States. Moreover, in the 100 years that have passed since its original pronouncement, the Supreme Court has not seen fit to alter the view it expressed in Baldwin. In fact, not a single court — with the exception of the district court here — has held that the victim of a § 241 conspiracy need not be a “citizen”. Instead, every court considering this issue has either stated or assumed that American citizenship is an element of proof under the statute. See, e.g., United States v. Harris, 701 F.2d 1095, 1102 (4th Cir.), cert. denied, 463 U.S. 1214, 103 S.Ct. 3554, 77 L.Ed.2d 1400 (1983); United States v. King, 587 F.2d 209, 211 (5th Cir.) (per curiam), cert. denied, 440 U.S. 972, 99 S.Ct. 1536, 59 L.Ed.2d 789 (1979); Wilkins v. United States, 376 F.2d 552, 561 (5th Cir. 1967); Powe v. United States, 109 F.2d 147, 149 (5th Cir.), cert. denied, 309 U.S. 679, 60 S.Ct. 717, 84 L.Ed. 1023 (1940); United States v. Patrick, 54 F. 338, 342-43 (C.C.M.D.Tenn.1893); United States v. Wheeler, 254 F. 611, 624 (D.Ariz.1918), aff'd on other grounds, 254 U.S. 281, 41 S.Ct. 133, 65 L.Ed. 270 (1920). Thus, in addition to the plain language of the statute itself, Supreme Court precedent requires an offense under § 241 to be committed against one who is a citizen. C. Legislative History The legislative history of § 241 further confirms our view concerning the proper construction of the statute. The section began its long history as § 6 of the Act of May 31,1870,16 Stat. 140, entitled “An Act to enforce the Right of Citizens of the United States to vote in the several States of this Union, and for other Purposes.” See United States v. Williams, 341 U.S. 70, 73, 71 S.Ct. 581, 582, 95 L.Ed. 758 (1951). That Act, later known as the Enforcement Act of 1870, was passed only two months after the ratification of the Fifteenth Amendment. In addition to the new § 241, the Enforcement Act of 1870 included a re-enactment of § 17 of the Civil Rights Act of 1866, 14 Stat. 27, which today is § 242. See Price, 383 U.S. at 801-02, 86 S.Ct. at 1160-61. We recognize that originally the chief purpose of § 241 was to provide sanctions against interference with the right of Black citizens to vote, recently guaranteed them by the Fifteenth Amendment and to protect the exercise of that right against hostile groups, particularly the Ku Klux Klan. See Williams, 341 U.S. at 76, 89, 71 S.Ct. at 584, 591 (Douglas, J., dissenting). On the other hand, the genesis of § 242 derived, at least in part, from a desire to protect immigrant Chinese laborers from rampant discrimination aimed at them in California. See United States v. Otherson, 637 F.2d 1276, 1282, 1284 (9th Cir.1980), cert. denied, 454 U.S. 840, 102 S.Ct. 149, 70 L.Ed.2d 123 (1981). In fact, Senator Stewart of Nevada in discussing the extension of the predecessor of § 242 to protect aliens, explained: “The civil rights bill had several other things applying to citizens of the United States. This simply extends to foreigners, not citizens, the protections of our laws where the State laws deny them ... equal civil rights.” Cong. Globe, 41st Cong., 2d Sess. 1536 (1870), quoted in Otherson, 637 F.2d at 1282 (emphasis added). Thus, it was Congress’ purpose from the outset in enacting §§ 241 and 242 to address distinct evils aimed at different groups — one citizens, the other inhabitants — residing in the United States. After the 1870 Act, what is now § 241 remained essentially unchanged. It next appeared in the Revised Statutes of 1874-1878 as § 5508, which was carried as § 19 without change into the Criminal Code of 1909, 35 Stat. 1092. In 1926, § 19 became § 51, 44 Stat. 462. The present day § 241 came from Title 18, United States Code Revisions of 1948. In none of the revisions or subsequent re-enactment is there any evidence of a congressional aim to alter the original scope of § 241. Price, 383 U.S. at 803, 86 S.Ct. at 1161. As Justice Frankfurter remarked in comparing § 241 with § 242: “To find this significance in the text of the Act of 1870 is not to give undue weight to differences in phraseology appearing in the statute. For the text of these sections has been considered by Congress not once but five times.” Williams, 341 U.S. at 79, 71 S.Ct. at 585. By its repeated reenactments of § 241 without substantive change after its judicial construction in Baldwin, Congress is presumed to have adopted that interpretation. See Lorillard Question: Was there prejudicial conduct by prosecution? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_casetyp1_7-2	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". HAMPTON et al. v. WILLIAMS et al. Circuit Court of Appeals, Eighth Circuit. May 22, 1929. No. 352. Joseph W. Howell, of Tulsa, Okl., for petitioners. William M. Matthews, of Kansas City, Mo., for respondents. Before STONE, KENTON, and TAN VALKENBURGH, Circuit Judges. STONE, Circuit Judge. This is an original proceeding in this court seeking orders of prohibition against the judge of the Eastern District of Oklahoma and against a special master, appointed by him, prohibiting them from exercising further jurisdiction in the ease of Georgia Yalliere Hampton et al. v. Sidney T. Ewert et al., and also an order of mandamus against the clerk of that court to require him to transfer the record and papers in said case to the clerk of the District Court for the Northern District of Oklahoma. The petition alleges that the above case is a civil action concerning mining leases on land; that such land was within the Eastern district when the action was commenced (September 17, 1923) and within the Northern District as subsequently created (Act of February 16,1925, 43 Stat. 945); that there was a final hearing thereon before Judge Williams, a judge of the Eastern District, which hearing was and the ease submitted during March 1925, resulting in a memorandum opinion rendered November 20, 1925, upon which a final deeree, favoring defendants, was entered December 1, 1925; that appeal was taken to this court resulting in reversal and remand for proceedings in accordance with the opinion of this court (Hampton v. Ewert, 22 F.(2d) 81); that petitions for rehearing were subsequently filed in this court and denied; that petitions for certiorari were filed in the Supreme Court and denied (276 U. S. 623, 48 S. Ct. 303, 72 L. Ed. 737); that thereafter, the mandate from this court was spread upon the records of the District Court for the Eastern District on April 4, 1928; that, on June 22, 1928, these petitioners (plaintiffs in the above case) filed with the clerk of the Eastern District (one of these respondents) a notice that they desired and requested the transfer of such case to the Northern District, at the same time depositing with said clerk their check to cover costs of such transfer; that, thereafter (June 25, 1928), said clerk informed petitioners that an order of transfer would be necessary and, assuming petitioners would file a motion for such purpose, he (the clerk) had placed such motion on the next motion docket for July 6, 1928; that petitioners (on July 6, 1928) informed the clerk that they had not filed such motion as they deemed the notice sufficient to operate as a transfer of the case; that, with full knowledge that petitioners deemed the notice sufficient and had not and did not intend to file any motion for an order of transfer, the clerk wrote petitioners (on Saturday, July 7, 1928) that he thought such order necessary and (on Monday, July 9, 1928) presented the motion docket to Judge Williams' who proceeded as if such motion had been filed and denied same for want of prosecution; that, thereafter (July 9, 1928), Judge Williams appointed Malcolm E. Rosser (respondent herein) as special master to take an accounting in said case and to report his findings and conclusions by October 20,1928; that the filing of the above notice was sufficient (section 6, Act Eeb. 16, 1925, 43 Stat. 945, 946) without more to operate as a transfer of the case to the Northern District, requiring only transmission of the record and papers by the clerk of the Eastern District to the clerk of the Northern District and ending, upon the filing thereof, all jurisdiction of the court of the Eastern District to proceed further therein. It is to prevent such further proceeding by that court and by the special master that the writ of prohibition is sought and it is to compel such transmission of record and papers by the clerk that the writ of mandamus is asked. Separate response has been filed by each of the respondents — that of respondent Rosser being an adoption of the response of Judge Williams. It is unnecessary to set forth or even summarize the responses. Such matters therein as are material to the determination of this action will be stated hereinafter in connection with discussion of the issues raised here. While the issues are argued under several headings, they may be regarded as presenting two matters: First, the propriety of the remedy of prohibition; and, second, whether the right of transfer given by the statute (section 6, Act Feb. 16, 1925, 43 Stat. 945, 946) can be and has been waived by the petitioners. I. Whether prohibition is a proper remedy depends upon whether a question of jurisdiction is involved. This involves the construction of section 6 of the Act 'of Feb. 16,1925 (43 Stat. 945, 946). Before this act, Oklahoma had been divided into the Eastern and Western Districts. This act created the Northern District to consist of certain named counties in the Eastern and in the Western Districts. Section 6 thereof provides for the transfer, from the Eastern and Western Districts to the Northern District, of civil cases pending at the time of the organization of the Northern District. It is as follows (section 6, 43 Stat. 946): “See. 6. Any party to any civil action, suit, or proceeding, including proceedings in bankruptcy, which is pending in the said eastern or western district and the prescribed venue of whieh would have been in said northern district had such district been constituted at the time such action, suit, or proceeding was instituted, may, by filing notice of such desire in the office of the clerk of such eastern or western district as the case may be, cause such action, suit, or proceeding to be transferred to said northern district, and upon the filing of such notice the cause shall proceed in the said northern district as though originally brought therein. The clerk in whose office such notice may be filed shall forthwith transmit all the papers and documents in his court pertaining to such cause to the clerk of said northern district and he shall also, with all reasonable dispatch, prepare and transmit to such last-named clerk a certified transcript of the record of all orders, interlocutory decrees or other entries in such cause, with his certificate under the seal of the court that the papers sent are all that were on file in said court belonging to the cause. For the performance of his duties under this section the clerk so transmitting and certifying such papers and records shall receive the same fees as are now allowed by law for similar sendees to be taxed in the bill of costs and regularly collected with the other costs in the cause; and such transcript, when so certified and received, shall henceforth constitute a part of the record in the cause in the court to whieh the transfer shall be made. With such transcript shall be remitted all- deposits in the hands of the clerk to the credit or account of such cause. The clerk receiving such transcript and original papers shall file the same. In ease the permissible prescribed venue of any such action, suit, or proceeding would, at the option of the plaintiff, have been in either the said eastern district or in the said western district, though said northern district had then been constituted, then such suit, action, or proceeding shall not be removed to said northern district except upon consent of all of the parties thereto whieh consent shall be filed with the clerk in lieu of the notice of transfer above specified and shall have the same effect.” Respondents contend that transfer under this section is a question only of venue and not of jurisdiction. A question of venue may ripen into one of jurisdiction. If a controlling statute provides that upon the occurrence or doing of certain things the venue in one court shall cease and that of another shall begin, such happening or performance takes jurisdiction away from the one court and lodges it in the other to the extent contemplated by the statute and any attempt by either court to act therein beyond such limits is in excess of its existing jurisdiction and may be-prevented by the writ of prohibition. Section 6 recognized the jurisdiction of the ' Eastern and "Western Districts over civil ac- - tions pending at the time the Northern District might he organized. It prescribed the .method for transferring to the Northern District sueh of them as might have been originally brought in the Northern District had that District existed when such actions were commenced. The present action is of that character. Not only is the method clearly stated in the statute, but, also, the effect intended thereby. The method is “by filing notice of sueh desire [to transfer] in the office of the clerk of such eastern or western district.” The effect of such filing is to “cause sueh action, suit, or proceeding to be transferred to said northern district, and upon the filing of such notice the cause shall proceed in the said northern district as though originally brought therein.” To assure this effect, it is required that the clerk of the district where the notice is filed “shall forthwith transmit all the papers and documents in his court pertaining to such cause to the clerk of said northern district and he shall, also, with all reasonable dispatch, prepare and transmit to sueh last-named clerk a certified transcript of the record of all orders, interlocutory decrees or other entries in sueh cause. * * *” This quoted language leaves room for no doubt that the bare filing of a proper notice was all that was required by the statute to transfer jurisdiction of the ease to the North- . em District and to terminate the jurisdiction of the other district unless sueh right of transfer were subject to waiver and had been waived and such waiver insisted upon by the other party. II. Respondents insist that the right to transfer was waived by petitioners and set up allegations of fact, in their responses, which they urge as constituting waiver. This necessitates determination of whether the right can be waived and, if it can, whether it was by petitioners. We think it can be waived. Such a suit was, when filed, -within the jurisdiction of the eastern district. The passage of the act creating the Northern District affected this jurisdiction in no way. That act went no further than to give to any party to sueh a suit the right to transfer. If no party desired to exercise sueh right, the cause proceeded as though the act had not been passed. The right of transfer thus given was a privilege. .As sueh, it might be waived and thereby lost. The right to transfer, in all sueh eases," came into existence when the Northern District was organized, which was April 1, 1925 (Lewis v. United States [C. C. A.] 22 F.(2d) 760, 763). There is no requirement, express or implied, in the statute that sueh right should be exercised within any period thereafter or even promptly thereafter. The right continued to exist until it was exercised or lost, through waiver. Here, the other parties are insisting upon a waiver and have promptly done so. It remains to determine whether such waiver exists. This requires examination of the facts. No express waiver is urged. It is insisted that such is shown by aets in connection with the litigation which are inconsistent with a desire to transfer. Either the petition, the responses or the affidavits herein show the matters following — ■ few of which are in dispute. Just prior to the organization of the Northern District (April 1,1925) there was a final hearing and submission of this ease to Judge Williams in the Eastern District. This was the status of the litigation when the right to transfer this case came into existence, on April 1,1925. What occurred thereafter bears upon the matter of waiver. April 8, 1925, Judge Williams made a restraining order, on the motion of petitioners herein for a temporary injunction, preventing payments of money by one of the defendants in that suit to another defendant and set June 30,1925, as hearing day on the temporary injunction. This restraining order was continued in force by orders made June 30,1925, and September 28, 1925. On November 20, 1925, the court handed down an opinion with findings of fact and conclusions of law favoring defendants. December 1; 1925, decree was entered thereon dismissing plaintiffs’ (petitioners here) complaint. On January 27, 1926, an appeal was perfected to this court by plaintiffs. Thereafter, plaintiffs (petitioners here) renewed their application for a receiver (filed November 21, 1924) and on August 4, 1926, Judge Williams appointed a receiver who qualified. After passing through this court and an unsuccessful application for certiorari to the Supreme Court, mandate issued and was filed in the District Court for. the Eastern District on March 6, 1928, resulting in reversal of the decree of December 1, 1925, and instructions to proceed in accordance with the opinion. June 22, 1928, the notice of transfer was filed. We think the above undisputed facts show ,a waiver. For almost eight months, petitioners permitted the ease to remain on submission awaiting decision by Judge Williams. During all of that time they could have had this case transferred. They were not only •silent, but they sought from Judge Williams and obtained injunctive relief within a few days after their right of transfer came into existence. While the appeal was pending they sought from Judge Williams and obtained the appointment of a receiver to conserve funds in dispute. Such acts are inconsistent with and opposed to any desire to transfer the ease. They are consistent only with an intention to and amount to the further prosecution of the suit in the court in which it then was. Congress did not intend that a party could voluntarily proceed in the court where the suit was filed until he became dissatisfied and then transfer the case. It gave him the privilege to go ahead in one or the other court, as he desired, but he could not experiment with both. We think this waiver destroyed the right to transfer where the other parties are relying upon the waiver, as is here shown by their presence and acquiescence in the order appointing the special master and the appearance here for respondents by one of their counsel. The mandamus is controlled by the same considerations as those above stated regarding the prohibition. The result is that the writs should be denied. While what has been said disposes of this case, it seems advisable to advert to another matter in order to remove all doubt as to the effect of the previous decision (22 F.(2d) 81) of this court. It would seem necessary, from the repeated language in the brief for respondent, to remove an erroneous impression that seems to have been acquired, or is, at least, asserted, and that is that this ease was remanded for a new trial. If the order and mandate so stated, they did not conform to the directions of the opinion. We presume the order followed substantially the language of the opinion. In that opinion and the decision rendered thereunder, all the issues were resolved in favor of the appellants. The leases under which appellees had operated were declared void and it followed, of course, that appellees must respond in damages for the removal of the ores from the property of appellees. This would involve an accounting disclosing the amount so removed and the legitimate cost and expense of removal; also the specific amount recoverable against the individual appellees. In all these respects there was not before this court on appeal the necessary data from which a satisfactory conclusion could be reached. There was involved the claim against the Ewert estate, which has now been settled, and is removed’ from the controversy. Also the operation by Skelton, and afterwards by the Skelton Lead & Zinc Company, and by the Welch Mining Company. Skelton is now deceased and Ms estate is involved. The relationsMps between these parties are so interlaced and complex that it requires the investigation before a master to determine the amount to be recovered from each. It was for this reason and for tMs purpose that the case was remanded and the further proceedings referred to are such ascertainments by way of accounting. The writs are denied at the costs of petitioners. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
songer_usc2	26	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 26. 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. William C. SIRAVO, Defendant, Appellant, v. UNITED STATES of America, Appellee. No. 6847. United States Court of Appeals First Circuit. May 15, 1967. James R. McGowan, Providence, R. I., with whom Lester H. Salter and Salter & McGowan, Providence, R. I., were on brief, for appellant. Alton W. Wiley, Sp. Asst. U. S. Atty., with whom Frederick W. Faerber, Jr., U. S. Atty., was on brief, for appellee. Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges. COFFIN, Circuit Judge. Defendant appeals from judgments of conviction on three counts for wilfully making and subscribing false tax returns in 1958, 1959, and 1960, in violation of 26 U.S.C. § 7206 (l), and on one count for wilfully failing to file a tax return in 1961 in violation of 26 U.S.C. § 7203. Defendant’s returns during 1958-1960 showed as income only wages (not exceeding $7,500 in any of the tax years in question) paid by Siravo Motor Sales. In each year the tax due was less than tax withheld and refund was applied for. Evidence at trial showed that during these years defendant operated TransLux Jewelry Co., which assembled jewelry components as a subcontractor for various manufacturers, receiving for this work the following amounts: 1958 — $22,-242.83; 1959 — $28,976.22; 1960 — $54,-319.47; 1961 — $71,362.73. Defendant made no entry on his form 1040 opposite the heading “profit (or loss) from business from separate Schedule C”, nor did he file a separate Schedule C (“Profit (or Loss) From Business or Profession”). He signed the customary declaration. While the evidence indicated that the defendant’s jewelry assembly work must have required a number of people, there was no evidence as to the amount of any costs or expenses, whether of materials, labor, or overhead. The first three counts charged that defendant “did wilfully * * * make and subscribe * * * a * * * tax return * * * which was verified by a written declaration that it was made under the penalties of perjury, and which * * * he did not believe to be true and correct as to every material matter' in that * * * he failed and omitted to disclose * * * substantial gross receipts from a business activity * * Defendant’s principal contention is that 26 U.S.C. § 7206(1) describes a form of perjury, that a basic requirement of perjury is a false statement of fact, and that failure to attach a separate Schedule C reporting “gross receipts” is neither a constructive misrepresentation of taxable income nor a false statement. He therefore attacks the sufficiency of both the indictment and the evidence. The government denies that section 7206 (1) is a perjury statute and that a false statement of facts is an essential element of this crime. It argues that a violation of the section can consist of the knowing and wilful omission oí facts, citing Conford v. United States, 10 Cir., 1964, 336 F.2d 285. In our view it is unnecessary to resolve this dispute in semantics, for we hold that a return that omits material items necessary to the computation of income is not “true and correct” within the meaning of section 7206. If an affirmative false statement be required, it is supplied by the taxpayer’s declaration that the return is true and correct, when he knows it is not. Therefore, the government has made out a violation of the section, whether it be labelled “a perjury statute”, Kolaski v. United States, 5 Cir., 1966, 362 F.2d 847, or “similar in nature”, Hoover v. United States, 5 Cir., 1966, 358 F.2d 87, cert. denied, 385 U.S. 822, 87 S.Ct. 50, 17 L.Ed.2d 59. Our decision is grounded first on the language of the statute. If “true” and “correct” are not to be construed as precisely synonymous, therefore redundant, they must mean something more than that no false figures have been used and that the arithmetic is accurate. In fact, the two terms together are commonly construed as meaning that the document described is both accurate and complete. See, e. g., East Coast Lumber Co. v. Ellis-Young Co., 1908, 55 Fla. 256, 45 So. 826; Collier v. Collier, 1898, 150 Ind. 276, 49 N.E. 1063. Moreover, we think this construction is necessary to effect the statutory “self-assessing” approach to income taxation. See United States v. Rayor, S.D.Cal., 1962, 204 F.Supp. 486, 491, appeal dismissed as untimely, 9 Cir., 1963, 323 F.2d 519, cert. denied, 375 U.S. 993, 84 S.Ct. 632, 11 L.Ed.2d 479. As the Supreme Court said in United States v. Carroll, 1953, 345 U.S. 457, 460, 73 S.Ct. 757, 759, 97 L.Ed. 1147 (dictum), “The code and regulations must be construed in light of the purpose to locate and check upon recipients of income and the amounts they receive.” In the context of this case, defendant’s contrary construction comes down to this: The return of an employee who earned $10,000 a year and reported only $8,000 would not be “true and correct”, while that of a corporation director who reported fees of $5,000 but omitted an accounting for the receipt of $1,000,000 in rents would be “true and correct”. Or, to reverse the pattern in this case, defendant would have to say that a return showing an accounting for a taxpayer’s business resulting in a net profit of $7,500 and omitting wage payments of $50,000 would also be “true and correct”. We cannot conclude that Congress, in devising “a variety of sanctions for the protection of the system and the revenues”, Spies v. United States, 1943, 317 U.S. 492, 495, 63 S.Ct. 364, 87 L.Ed. 418, intended to place such a premium on the telling of half truths. Defendant argues also that another statute amply covers the wilful •omission of information and that the principle of narrow construction of penal statutes compels us not to allow the application of section 7206(1) to defendant. Section 7203 of title 26 creates a misdemeanor for the wilful failure to keep required tax records or supply required information. But the fact that Congress Las seen fit to classify wilful failure to supply information as a misdemeanor quite clearly does not preclude it from establishing a felony for falsely swearing under the penalties of perjury that a partial return is a whole one. The structure of sanctions, particularly in the tax field, is not one of mutually exclusive alternatives. See United States v. Rayor, supra, 204 F.Supp. at 489-490. While we respect the principle of narrow construction, we see no ambiguity in the words “true and correct”. This is a far cry from the situation in Commissioner of Internal Revenue v. Acker, 1959, 361 U.S. 87, 80 S.Ct. 144, 4 L.Ed.2d 127, where the government sought to parlay a failure to file a declaration of estimated tax into a “substantial underestimate”. The fourth count charged that defendant, having a gross income of $73,209.24 in 1961, wilfully and knowingly failed to file a return. The trial court correctly instructed the jury that total receipts must be reduced by the cost of goods sold and other costs representing a return of capital to arrive at gross income for a manufacturing business, and that, even if the government did not prove the exact amount of income stated in the indictment, it was sufficient if the evidence showed that receipts exceeded cost of goods sold by at least $600. But there was no evidence as to the amount of costs, except the testimony that substantially all materials were supplied by defendant’s customers. Defendant argues that since labor costs are part of the cost of goods sold and since there was testimony that the volume of business was impossible for one man to handle, the government has not carried its burden of showing that he did not have labor costs offsetting the proved gross receipts. We do not agree that the government has any such burden. The applicable rule here is that uniformly applied in tax evasion cases — that evidence of unexplained receipts shifts to the taxpayer the burden of coming forward with evidence as to the amount of offsetting expenses, if any. E. g., United States v. Shavin, 7 Cir., 1963, 320 F.2d 308, cert. denied, 375 U.S. 944, 84 S.Ct. 349, 11 L.Ed.2d 273; Swallow v. United States, 10 Cir., 1962, 307 F.2d 81, cert. denied, 1963, 371 U.S. 950, 83 S.Ct. 504, 9 L.Ed.2d 499; United States v. Tadio, 2 Cir., 1955, 223 F.2d 759, cert. denied, 350 U.S. 874, 76 S.Ct. 119, 100 L.Ed. 772; United States v. Stayback, 3 Cir., 1954, 212 F.2d 313, cert. denied, 1955, 348 U.S. 911, 75 S.Ct. 289, 99 L.Ed. 714. Indeed, this case is necessarily included in that rule. For in a tax evasion case the government’s ultimate burden is to show that the taxpayer received not only gross income but also taxable income, after deduction of capital and non-capital expenses. If that is satisfied by proof of sales receipts, absent explanation, so must be the lesser burden here. Defendant attempts to distinguish the cited cases by tracing them back to United States v. Hornstein, 7 Cir., 1949, 176 F.2d 217, where the defendant had filed a return reporting some income and deductions, and the government proved additional items of income not reported. Defendant’s argument is that the rule of Hornstein is applicable only in such a case, on the theory that when some deductions are reported the government can rest on the presumption that no others are allowable and thus that all unreported income is taxable. Such a theory may be consistent with the facts of Hornstein, ' but we do not think it accurately reflects the sound considerations involved. The rule we follow here is based on considerations of fairness to both parties and of reasonable access to the relevant evidence. Cf. Morrison v. People of State of California, 1934, 291 U.S. 82, 88-89, 54 S.Ct. 281, 78 L.Ed. 664. To allow the defendant, who can readily keep records that would establish his capital costs, to file no return, however great his receipts, and then challenge the government to prove the amount of those costs, would be effectively to frustrate the purposes of section 7203. Our analysis is not shaken by consideration of our opinion in Winkler v. United States, 1 Cir., 1956, 230 F.2d 766. The only issue expressly addressed in that case was the definition of gross income with respect to a professional gambler. Neither party briefed the question of allocating the burden of producing evidence as to losses. To be sure, ■our action in reversing the conviction rather than remanding for trial under proper instructions may be read as assuming that the government was bound to show the amount of offsetting losses. Having now faced the issue frontally, we are persuaded of the soundness of our present position and must reject any implications stemming from this sub silentio assumption. Defendant’s final attack on his count IV conviction is that it was reversible error to allow a special agent, who was absent during the first day of trial, to give his opinion that “in this particular case I would state that the gross income or the gross receipts would be the same figure”. This testimony is challenged because it allegedly relied upon hearsay and because it invaded the province of the jury in dealing with an ultimate issue. We do not have here the egregious effort to use a special agent as a conduit for the hearsay testimony of absent witnesses which was presented in Greenberg v. United States, 1 Cir., 1960, 280 F.2d 472; same, 1 Cir., 1961, 295 F.2d 903. Here the manufacturers who paid defendant testified and defendant stipulated that he received the proceeds of the checks in evidence. Cf. Johnson v. United States, 1 Cir., 1963, 325 F.2d 709, 711. The court was careful to exclude testimony by the special agent as to conversations with others. As to the objection to the special agent’s opinion above quoted, we observe that not only did he add the qualifying clause “in the absence of inventories and merchandise purchased”, but he acknowledged on cross-examination that labor costs also should be deducted from gross receipts in order to arrive at gross income. Under the circumstances, the special agent was merely stating the obvious — the identity of gross receipts and gross income in the absence of evidence of material and labor costs. We find no prejudice to defendant. For similar reasons we find no prejudice in the trial court’s use of the term “gross income” in instructing on the first three counts. Admittedly, those counts dealt with failure to report gross receipts; but the conduct of the trial and the court’s other instructions made it adequately clear that if there was any difference between gross receipts and gross income in this case, the latter must be a smaller figure. Any misapprehension engendered by the instructions complained of could only have benefitted the defendant. The use of the words “gross income”, though perhaps error in the context, was not prejudicial. Affirmed. . Section 7206. Fraud and false statements Any person who— (1) Declaration under penalties of perjury. — Willfully makes and subscribes any return, statement or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter; * * * shall be fined not more than $5,000,' or imprisoned not more than 3 years, or both, together with the costs of prosecution. . Section 7203. Willful failure to file return, supply information, or pay tax Any person * * * required by this title or by regulations * * * to make a return * * * or supply any information, who willfully fails to * * * make such return, * * * or supply such information, at the time or times required * * * shall, in addition to other penalties provided by law, be guilty of a misdemeanor and * * * shall be fined not more than $10,000, or imprisoned not more than 1 year, or both, together with the costs of prosecution. (Section 6012(a) (1) requires a return to be made by “[e]very individual having for the taxable year a gross income of $600 or more * * *.”) . “I declare under the penalties of perjury that this return (including any accompanying schedules and statements) has been examined by me and to the best of my knowledge and belief is a true, correct, and complete return.” . We agree that defendant’s return was not such a misrepresentation. But intent to evade taxes is not an element of the crime charged under this section. Gaunt v. United States, 1 Cir., 1950, 184 F.2d 284, cert. denied, 1951, 340 U.S. 917, 71 S.Ct. 350, 95 L.Ed. 662 (Int. Rev.Code of 1939, § 3809(a)). . This effectively disposes of defendant’s contention that the jury should have been instructed to disregard the addition of “complete” to “true” and “correct” in the printed declaration that he signed. Although “complete” is superfluous, it does not change the scope of the statutory language, as was the case in Patterson v. United States, 9 Cir., 1910, 181 F. 970 (“sole” added by Patent Office to statutory requirement that patent applicant declare himself “the original and first inventor”, thus illegally excluding co-inventors). . Of course, when tlie defendant does offer evidence of offsetting costs, the burden is on the government to persuade the jury that the costs are not allowable. See Small v. United States, 1 Cir., 1958, 255 F.2d 604, 607; cf. Clawson v. United States, 9 Cir., 3952, 198 F.2d 792, cert. denied, 1953, 344 U.S. 929, 73 S.Ct. 495, 97 L.Ed. 715. . But see Guzik v. United States, 7 Cir. 1932, 54 F.2d 618 (no indication that reported deductions, if any, had any significance) ; Oliver v. United States, 7 Cir., 1932, 54 F.2d 48 (defendant’s return did not show receipts or deductions, only net income). Q-uaili is cited in Hornstein, 176 F.2d at 220. Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 26. 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_casedisposition	C	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. UNITED STATES ex rel. TOTH v. QUARLES, SECRETARY OF THE AIR FORCE. No. 3. Argued February 8-9, 1955. — Restored to docket for reargument June 6, 1955. — Reargued October 13, 1955. Decided November 7, 1955. William A. Kehoe, Jr. argued the cause for petitioner. With him on the briefs were Al. Philip Kane, Charles V. Koons, John J. McGrath, Peter F. Flaherty, Joseph H. Ridge, James F. Smith and L. Pat McGrath. Solicitor General Sobeloff argued the cause for respondent on the reargument, and Marvin E. Frankel on the original argument. With them on the brief on the original argument were Assistant Attorney General Olney, Beatrice Rosenberg, Carl H. Imlay and Chester W. Wilson. With them on the brief on the reargument was Mr. Olney. Ralph B. Gregg filed a brief for the American Legion, as amicus curiae, urging reversal. Mr. Justice Black delivered the opinion of the Court. After serving with the United States Air Force in Korea, Robert W. Toth was honorably discharged. He returned to his home in Pittsburgh and went to work in a steel plant. Five months later he was arrested by military authorities on charges of murder and conspiracy to commit murder while an airman in Korea. At the time of arrest he had no relationship of any kind with the military. He was taken to Korea to stand trial before a court-martial under authority of a 1950 Act of Congress. The Court of Appeals sustained the Act, rejecting the contention that civilian ex-servicemen like Toth could not constitutionally be subjected to trial by court-martial. 94 U. S. App. D. C. 28, 215 F. 2d 22. We granted cer-tiorari to pass upon this important constitutional question. 348 U. S. 809. The 1950 Act cannot be sustained on the constitutional power of Congress “To raise and support Armies,” “To declare War,” or to punish “Offences against the Law of Nations.” And this assertion of military authority over civilians cannot rest on the President’s power as commander-in-chief, or on any theory of martial law. See Ex parte Milligan, 4 Wall. 2, 124-127. The Government’s contention is that the Act is a valid exercise of the power granted Congress in Article I of the Constitution “To make Rules for the Government and Regulation of the land and naval Forces,” as supplemented by the Necessary and Proper Clause. This Court has held that the Article I clause just quoted authorizes Congress to subject persons actually in the armed service to trial by court-martial for military and naval offenses. Later it was held that court-martial jurisdiction could be exerted over a dishonorably discharged soldier then a military prisoner serving a sentence imposed by a prior court-martial. It has never been intimated by this Court, however, that Article I military jurisdiction could be extended to civilian ex-soldiers who had severed all relationship with the military and its institutions. To allow this extension of military authority would require an extremely broad construction of the language used in the constitutional provision relied on. For given its natural meaning, the power granted Congress “To make Rules” to regulate “the land and naval Forces” would seem to restrict court-martial jurisdiction to persons who are actually members or part of the armed forces. There is a compelling reason for construing the clause this way: any expansion of court-martial jurisdiction like that in the 1950 Act necessarily encroaches on the jurisdiction of federal courts set up under Article III of the Constitution where persons on trial are surrounded with more constitutional safeguards than in military tribunals. Article III provides for the establishment of a court system as one of the separate but coordinate branches of the National Government. It is the primary, indeed the sole business of these courts to try cases and controversies between individuals and between individuals and the Government. This includes trial of criminal cases. These courts are presided over by judges appointed for life, subject only to removal by impeachment. Their compensation cannot be diminished during their continuance in office. The provisions of Article III were designed to give judges maximum freedom from possible coercion or influence by the executive or legislative branches of the Government. But the Constitution and the Amendments in the Bill of Rights show that the Founders were not satisfied with leaving determination of guilt or innocence to judges, even though wholly independent. They further provided that no person should be held to answer in those courts for capital or other infamous crimes unless on the presentment or indictment of a grand jury drawn from the body of the people. Other safeguards designed to protect defendants against oppressive governmental practices were included. One of these was considered so important to liberty of the individual that it appears in two parts of the Constitution. Article III, § 2, commands that the “Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” And the Sixth Amendment provides that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed . . . .” This right of trial by jury ranks very high in our catalogue of constitutional safeguards. We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army’s primary fighting function. To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served. And conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts. For instance, the Constitution does not provide life tenure for those performing judicial functions in military trials. They are appointed by military commanders and may be removed at will. Nor does the Constitution protect their salaries as it does judicial salaries. Strides have been made toward making courts-martial less subject to the will of the executive department which appoints, supervises and ultimately controls them. But from the very nature of things, courts have more independence in passing on the life and liberty of people than do military tribunals. Moreover, there is a great difference between trial by jury and trial by selected members of the military forces. It is true that military personnel because of their training and experience may be especially competent to try soldiers for infractions of military rules. Such training is no doubt particularly important where an offense charged against a soldier is purely military, such as disobedience of an order, leaving post, etc. But whether right or wrong, the premise underlying the constitutional method for determining guilt or innocence in federal courts is that laymen are better than specialists to perform this task. This idea is inherent in the institution of trial by jury. Juries fairly chosen from different walks of life bring into the jury box a variety of different experiences, feelings, intuitions and habits. Such juries may reach completely different conclusions than would be reached by specialists in any single field, including specialists in the military field. On many occasions, fully known to the Founders of this country, jurors — plain people — have manfully stood up in defense of liberty against the importunities of judges and despite prevailing hysteria and prejudices. The acquittal of William Penn is an illustrious example. Unfortunately, instances could also be cited where jurors have themselves betrayed the cause of justice by verdicts based on prejudice or pressures. In such circumstances independent trial judges and independent appellate judges have a most important place under our constitutional plan since they have power to set aside convictions. The 1950 Act here considered deprives of jury trial and sweeps under military jurisdiction over 3,000,000 persons who have become veterans since the Act became effective. That number is bound to grow from year to year; there are now more than 3,000,000 men and women in uniform. These figures point up what would be the enormous scope of a holding that Congress could subject every ex-serviceman and woman in the land to trial by court-martial for any alleged offense committed while he or she had been a member of the armed forces. Every veteran discharged since passage of the 1950 Act is subject to military trial for any offense punishable by as much as five years’ imprisonment unless the offense is now punishable in a civilian court. And one need only glance at the Military Code to see what a vast number and variety of offenses are thus brought under military jurisdiction. Included within these are crimes such as murder, conspiracy, absence without leave, contempt toward officials, disrespect toward superior officers, willful or neglectful loss, damage, or destruction of government property, making false official statements, dueling, breach of the peace, forgery, fraud, assault, and many others. It is true that with reference to some of these offenses, very minor ones, veterans cannot now be tried because of a presidential order fixing the punishment for such offenses at less than five years. But that amelioration of the Military Code may be temporary, since punishment can be raised or lowered at the will of the President. It is also true that under the present law courts-martial have jurisdiction only if no civilian court does. But that might also be changed by Congress. Thus there is no justification for treating the Act as a mere minor increase of congressional power to expand military jurisdiction. It is a great change, both actually and potentially. Fear has been expressed that if this law is not sustained discharged soldiers may escape punishment altogether for crimes they commit while in the service. But that fear is not warranted and was not shared by the Judge Advocate General of the Army who made a strong statement against passage of the law. He asked Congress to “confer jurisdiction upon Federal courts to try any person for an offense denounced by the [military] code if he is no longer subject thereto. This would be consistent with the fifth amendment of the Constitution.” The Judge Advocate General went on to tell Congress that “If you expressly confer jurisdiction on the Federal courts to try such cases, you preserve the constitutional separation of military and civil courts, you save the military from a lot of unmerited grief, and you provide for a clean, constitutional method for disposing of such cases.” It is conceded that it was wholly within the constitutional power of Congress to follow this suggestion and provide for federal district court trials of discharged soldiers accused of offenses committed while in the armed services. This concession is justified. U. S. Const., Art. III, § 2; and see, e. g., Jones v. United States, 137 U. S. 202, 211-212; United States v. Bowman, 260 U. S. 94, 97-98; Skiriotes v. Florida, 313 U. S. 69, 73-74. There can be no valid argument, therefore, that civilian ex-servicemen must be tried by court-martial or not tried at all. If that is so it is only because Congress has not seen fit to subject them to trial in federal district courts. None of the other reasons suggested by the Government are sufficient to justify a broad construction of the constitutional grant of power to Congress to regulate the armed forces. That provision itself does not empower Congress to deprive people of trials under Bill of Rights safeguards, and we are not willing to hold that power to circumvent those safeguards should be inferred through the Necessary and Proper Clause. It is impossible to think that the discipline of the Army is going to be disrupted, its morale impaired, or its orderly processes disturbed, by giving ex-servicemen the benefit of a civilian court trial when they are actually civilians. And we are not impressed by the fact that some other countries which do not have our Bill of Rights indulge in the practice of subjecting civilians who were once soldiers to trials by courts-martial instead of trials by civilian courts. There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution. Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service. Even as late as the Seventeenth Century standing armies and courts-martial were not established institutions in England. Court-martial jurisdiction sprang from the belief that within the military ranks there is need for a prompt, ready-at-hand means of compelling obedience and order. But Army discipline will not be improved by court-mar-tialing rather than trying by jury some civilian ex-soldier who has been wholly separated from the service for months, years or perhaps decades. Consequently considerations of discipline provide no excuse for new expansion of court-martial jurisdiction at the expense of the normal and constitutionally preferable system of trial by jury. Determining the scope of the constitutional power of Congress to authorize trial by court-martial presents another instance calling for limitation to “the least possible power adequate to the end proposed.” We hold that Congress cannot subject civilians like Toth to trial by court-martial. They, like other civilians, are entitled to have the benefit of safeguards afforded those tried in the regular courts authorized by Article III of the Constitution. Reversed. The charges were violations of Articles 118 and 81 of the Uniform Code of Military Justice, 64 Stat. 140, 134, 50 U. S. C. §§ 712 and 675. Art. 3 (a), Uniform Code of Military Justice, 64 Stat. 109, 50 U. S. C. § 553, provides: “Subject to the provisions of article 43, any person charged with having committed, while in a status in which he was subject to this code, an offense against this code, punishable by confinement of five years or more and for which the person cannot be tried in the courts of the United States or any State or Territory thereof or of the District of Columbia, shall not be relieved from amenability to trial by courts-martial by reason of the termination of said status.” This habeas corpus proceeding was brought in the District Court for the District of Columbia by Toth’s sister while he was held in Korea. Without passing on any constitutional question the District Court ordered Toth discharged on the ground that he should not have been carried to Korea for trial without a hearing, 113 F. Supp. 330, 114 F. Supp. 468. See Ex parte Quirin, 317 U. S. 1; In re Yamashita, 327 U. S. 1. The Fifth Amendment provides that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger . . . .” This provision does not grant court-martial power to Congress; it merely makes clear that there need be no indictment for such military offenses as Congress can authorize military tribunals to try under its Article I power to make rules to govern the armed forces. Dynes v. Hoover, 20 How. 65. Kahn v. Anderson, 255 U. S. 1. In 1863 Congress passed a statute authorizing trial of ex-soldiers for commission of fraud against the Government while in the service; this law also authorized court-martial trial of contractors not part of the military forces. 12 Stat. 696. The latter provision of the 1863 law' appears never to have been sustained by any court. Lower courts have disagreed as to the constitutional validity of the provision authorizing ex-soldiers to be tried. See, e. g., In re Bogart, 3 Fed. Cas. 796. Compare Ex parte Henderson, 11 Fed. Cas. 1067; United States ex rel. Flannery v. Commanding General, 69 F. Supp. 661, reversed by stipulation in unreported order of the Second Circuit, No. 20235, April 18, 1946. See United States ex rel. Hirshberg v. Cooke, 336 U. S. 210. A statute authorizing court-martial trial of inmates of the Soldiers’ Home has been ruled unconstitutional by the Judge Advocate General of the Army. Dig. Op. J. A. G. (1912), pp. 1010, 1012. It was declared that “such inmates are not a part of the Army of the United States, but are civilians.” Id., at 1012. Col. Winthrop, concededly a leading authority on military law, expressed the view that “this class of statutes, which in terms or inferentially subject persons formerly in the army, but become finally and legally separated from it, to trial by court-martial, are all necessarily and alike unconstitutional ....’’ 1 Winthrop, Military Law and Precedents (2d ed. 1896), 146. The War Department reprinted this classic volume for the guidance of the Army in 1920. Winthrop, Military Law and Precedents (2d ed., Reprint 1920). A declaration of rights adopted by nine colonies in 1765 contained this statement: “That trial by jury, is the inherent and invaluable right of every British subject in these colonies.” Harvard Classics, Volume 43, p. 148. The Declaration of Independence stated as one of the grievances of the colonies that the King of Great Britain had deprived the colonists of the benefits of trial by jury in many cases and that he had “affected to render the Military independent of and superior to the Civil power.” Another charge was that he had transported colonials “beyond Seas to be tried for pretended offences.” Chief Justice Cooley said: “The trial of criminal cases is by a jury of the country, and not by the court. The jurors, and they alone, are to judge of the facts, and weigh the evidence. The law has established this tribunal because it is believed that, from its numbers, the mode of their selection, and the fact that the jurors come from all classes of society, they are better calculated to judge of motives, weigh probabilities, and take what may be called a common sense view of a set of circumstances, involving both act and intent, than any single man, however pure, wise and eminent he may be. This is the theory of the law; and as applied to criminal accusations, it is eminently wise, and favorable alike to liberty and to justice.” People v. Garbutt, 17 Mich. 9,27. “Juries undoubtedly may make mistakes: they may commit errors: they may commit gross ones. But changed as they constantly are, their errors and mistakes can never grow into a dangerous system. The native uprightness of their sentiments will not be bent under the weight of precedent and authority. The esprit du corps will not be introduced among them; nor will society experience from them those mischiefs, of which the esprit du corps, unchecked, is sometimes productive.” II Wilson’s Works (Andrews ed. 1896) 222. An outstanding instance is the Dean of St. Asaph’s Case, 21 How. St. Tr. 847, discussed in Stryker, For the Defense, 119-136. Penn and Mead’s Case, 6 How. St. Tr. 951. After trial the jurors were fined for acquitting Penn contrary to the court’s instructions. One was imprisoned for not paying the fine, but the Court of Common Pleas released him in a habeas corpus proceeding, upholding the freedom of the jury to decide the case. Bushell’s Case, 6 How. St. Tr. 999. See II Wilson’s Works (Andrews ed. 1896) 222. Bureau of the Census, Current Population Reports, Series P-25, No. 101 (U. S. Dept. Commerce 1954). Arts. 77-134, Uniform Code of Military Justice, 64 Stat. 133-143, 50 U. S. C. §§ 671-728. A particularly sweeping offense, punishable by death and not subject to any statute of limitations, is found in Article 94, which provides in part that anyone “(2) who with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person or persons, revolt, violence, or other disturbance against such authority is guilty of sedition; (3) who fails to do his utmost to prevent and suppress an offense of mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior or commanding officer of an offense of mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.” (Emphasis supplied.) See Table of Maximum Punishments, 127c, MCM, 1951, 16 Fed. Reg. 1364-1368. Hearings before Subcommittee of Senate Committee on Armed Services on S. 857 and H. R. 4080, 81st Cong., 1st Sess. 256-257. The Assistant General Counsel of the Office of Secretary of Defense, who was chairman of a committee that helped draft the Uniform Code of Military Justice, expressed doubts as to the constitutionality of Article 3 (a). Hearings before Subcommittee of House Committee on Armed Services on H. R. 2498, 81st Cong., 1st Sess. 881. The historical background of this country’s preference for civilian over military trials was impressively presented in the arguments of counsel and opinion of this Court in Ex parte Milligan, 4 Wall. 2, 121. And see Duncan v. Kahanamoku, 327 U. S. 304. 3 Macaulay, History of England from the Accession of James the Second (London, 1855), 45. Mr. Justice Sutherland writing for the Court in Dimick v. Schiedt, 293 U. S. 474, 485-486, said, “The right of trial by jury is of ancient origin, characterized by Blackstone as ‘the glory of the English law’ and ‘the most transcendent privilege which any subject can enjoy’ (Bk. 3, p. 379); and, as Justice Story said (2 Story on the Constitution, § 1779), ‘. . . the Constitution would have been justly obnoxious to the most conclusive objection if it had not recognized and confirmed it in the most solemn terms.’ With, perhaps, some exceptions, trial by jury has always been, and still is, generally regarded as the normal and preferable mode of disposing of issues of fact in civil cases at law as well as in criminal cases. 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 a jury trial should be scrutinized with the utmost care. Compare Patton v. United States, 281 U. S. 276, 312.” Anderson v. Dunn, 6 Wheat. 204, 230-231. Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:
songer_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". Louis C. SMITH, Appellant, v. UNITED STATES of America, Appellee. No. 15360. United States Court of Appeals Eighth Circuit. Aug. 16, 1956. Writ of Certiorari Denied Nov. 13, 1956.’ See 77 S.Ct. 148. Morris A. Shenker, St. Louis, Mo. (Sidney M. Glazer, Berkeley, Mo., was with him on the brief), for appellant. Robert C. Tucker, Asst. U. S. Atty., St. Louis, Mo. (Harry Richards, U. S. Atty., and Charles H. Rehm, Asst. U. S. Atty., St. Louis, Mo., were with him on the brief), for appellee. Before SANBORN, WOODROUGH and VOGEL, Circuit Judges. VOGEL, Circuit Judge. Louis C. Smith appeals to this court from a judgment of conviction entered on June 2, 1955, in the United States District Court for the Eastern District of Missouri upon a jury verdict finding him guilty under an indictment charging a violation of former 26 U.S.C.A. § 145(b) of the Internal Revenue Code of 1939. He was sentenced to imprisonment for a period of one year and one day and fined $2,000.00. The indictment charged that on February 19, 1948, the appellant did wilfully attempt to defeat and evade his income tax for the year 1947 by filing a false and fraudulent return, wherein he stated that his adjusted gross income for 1947 was the sum of $3,690.04 and that his income tax was $343.00, whereas his adjusted gross income was the sum of $39,984.49 and his tax was $17,759.58. The appellant’s income tax return for the year in question showed wages from an employer, the Plaza Amusement Company, as $1,300.00 and other income as $2,390.04. The other income allegedly consisted of $2,000.00 from miscellaneous gambling, income from the Plaza Amusement Company partnership $211.15, and income from rents and royalties $178.89, wherefrom appellant claimed he owed a tax of only $343.00. The government attempted to prove its case by the increase in net worth method. Accordingly it had to establish a base or starting point from which increases or decreases of net worth in following periods could be properly figured. This particular case presented unusual difficulty. The appellant had kept no books, records, bank accounts - or any of the ordinary media whereby one’s financial operations may be traced. Appellant was uncooperative with the revenue agents. When asked the source of his funds, he told one agent they came from an old mail bag and, “Let's just say I dug up an old iron pot.” Reference to an old mail bag and buried money may not have been entirely facetious. In 1924 appellant had been convicted and sentenced in the District Court for the Eastern District of Missouri and the Southern District of Illinois to concurrent sentences for receiving, concealing and aiding in concealing and receiving stolen mail and for possession of stolen mail. As a result of those sentences, he was confined in the Federal Penitentiary at Leavenworth, Kansas, until sometime in 1941. The records indicate that the appellant filed no income tax returns for 1932 to 1941, inclusive. His tax returns for 1942 and 1943 had been destroyed by the government. Certificates of assessment and payments covering appellant’s tax accounts for the years 1932 through 1948 were introduced into evidence over objection. Tax returns for the years beginning with 1944 were offered and received. Appellant did not testify and he offered no witnesses in his behalf. Numerous points have been raised by the appellant in this court. They will be discussed individually as they appear in appellant’s brief. Appellant’s first point is that: “The Court erred in not allowing defendant to cross-examine Revenue Agent Robert Bell as to his investigation of the Plaza Amusement Company and as to statements made relative to the Plaza Amusement Company and in refusing to strike his testimony because of the undue limitation to his cross-examination.” During the cross examination of Bell by counsel for the appellant, the witness was asked if he wasn’t really investigating Plaza Amusement Company to determine whether stock was actually held in the names of straw parties. There was no testimony on direct that the witness had conducted such an investigation of Plaza Amusement Company or that stock listed was in the name of straw parties. The question for determination at that point in the trial was whether or not the appellant owned 166 shares of stock in the Plaza Amusement Company and the court limited the examination to that issue and matters directly bearing thereon. To sustain his contention, appellant relies upon two cases wherein the Government was attempting to suppress confidential reports: United States v. Andolschek, 2 Cir., 1944, 142 F.2d 503; United States v. Beekman, 2 Cir., 1946, 155 F.2d 580. No such motive for restriction of cross examination was here present. The trial court was merely exercising its discretion to keep the scope of examination within reasonable bounds. Appellant’s second point is that: “The Court erred in admitting into evidence Government Exhibit 35 (net worth statement), in admitting into evidence conclusions of witness Robert Bell and in overruling defendant’s objections to the hypothetical question asked witness Robert Bell relative to defendant’s tax and income.” While conceding the propriety of admitting a revenue agent’s summary of his testimony, United States v. Johnson, 1943, 319 U.S. 503, 519, 63 S.Ct. 1233, 87 L.Ed. 1546, appellant claims that the summary herein did not find support in the evidence. Exhibit No. 35 is the usual summary, customary in net worth cases, which sets forth in compact form the evidence produced by the government tending, in this case, to establish the appellant’s net worth on December 31, 1946, as $11,224.17 and his net worth on December 31, 1947, as $34,-195.54, an increase during the indictment year of $22,971.37. Adding to this his estimated living expenses and gifts of $4,565.01 and taking into account reserve for depreciation and a non-taxable pension of $248.04, left a total to be accounted for of $27,536.38. Balancing this against his 1947 return left, according to the government figures, an unreported income of $23,597.94 for the indictment year. Each item of asset or liability is based on testimony of government agents admissible for the jury’s consideration. The accumulation may not be figure perfect; it might be suspect if it were. It was the government agent’s best estimate of the appellant’s financial growth during the year in question. One of the principal objections to Exhibit 35 was that it did not include an alleged liability of $12,000.00, representing a claimed loan in 1947 to the appellant from one Frank Wortman. The information with reference to the claimed loan appeared in this fashion: Edward Wortman was called as a government witness. Because of his hostility, the government was permitted to cross examine him. During the examination, Edward Wortman testified that his brother Frank had made a loan of $12,-000.00 to the appellant in 1947. This was the first time the government auditors had heard of such alleged loan. They can hardly be criticized for failure to investigate it prior thereto and we see no error in failing to include it in the summary. It was the bare assertion of a hostile witness made at the trial that his brother had made a $12,000.00 loan to the appellant some years prior thereto. The jurors heard the testimony. They could believe it or not, and certainly the ■right to cross examine remained with counsel. With regard to government computations such as we have in question here, the Court of Appeals for the Sixth Circuit in Gariepy v. United States, 1951, 189 F.2d 459, 462, said: "At best it was, of course, but an estimate, but as an estimate it was ■entitled to the consideration of the jury because based on substantially the entire evidence in the record. United States v. Johnson, 319 U.S. 503, 519, 63 S.Ct. 1233, 87 L.Ed. 1546; Bell v. United States, 4 Cir., 185 F.2d 302.” In numerous cases this court has approved of the use of summaries similar to Exhibit 35. See Kampmeyer v. United States, 8 Cir., 1955, 227 F.2d 313, 317, and cases cited therein. We find no error in the admission of Exhibit 35. Appellant’s main objection to the hypothetical question asked Agent Bell is on the same ground used in objecting to Exhibit 35, in that the hypothetical question did not include any reference to the $12,000.00 item as a liability of the appellant. We think, in view of all the circumstances, that the question was not improper, even though it did exclude the $12,000.00 item. As referred to heretofore, the only evidence regarding that item came from a hostile government witness who, because of his hostility, was cross examined with the court’s permission. Edward Wortman testified that not he but his brother Frank had made a loan of $12,000.00 to appellant. Frank Wortman was not called and did not testify. Bell, in his summary, Exhibit 35, did not include the alleged loan as a liability of appellant. In formulating the hypothetical question, government counsel also omitted the $12,000.00 item. We think it was not error to overrule objection to the question on the grounds stated. The witness was cross examined by appellant’s counsel regarding the alleged loan. The jurors heard the testimony and they could believe or disbelieve whom they wished. In any event, we think it makes little practical difference. The government’s evidence and the answer to the hypothetical question tended to show an adjusted gross income of $27,287.98 and a tax liability of $10,319.91. Even if the $12,000,00 item had been established, the amount of understated taxable income was nevertheless substantial. The government is not required to show the exact amount of error. If the understated taxable income be substantial, that is sufficient because the exact amount is not the gist of the offense. Cave v. United States, 8 Cir., 1947, 159 F.2d 464, 468. On this point, appellant cites several cases, including one from this court: Kirsch v. United States, 8 Cir., 1949, 174 F.2d 595, 600-602. In the Kirsch case, there was no evidentiary support for an essential assumed fact and, furthermore, the assumed fact was disproved by the government’s own evidence. What constitutes a proper foundation to establish the truth of an assumed fact is largely up to the trial court, but in that case there was no foundation to be found. The revenue agents made no attempt to ground their assumption on adequate investigation; the hypothetical question there used contained an assumption clearly unwarranted. The hypothetical question here used is not subject to the same defect. The other cases cited by appellant are not in point.. Appellant’s third claim of error is: “The Court erred in admitting into evidence Exhibits 13,14,15 and 19.” These exhibits were used to establish that appellant claimed to have no assets while in the penitentiary. Appellant contends that the exhibits were confidential records not open to the prosecution under Section 2.14, 28 C.F.R. As to Exhibits 13, 14 and 15, appellant is clearly mistaken since Section 2.14 applies only to data gained through a parole hearing before the Board of Parole. Exhibits 13, 14 and 15 are records executed by the appellant himself and were not a part of an oral parole hearing provided for in Section 2.14. Exhibit 19 consists of an interview before the Board of Parole and may be classified as confidential under the regulations. If, however, it was error to admit Exhibit 19, we think it was not prejudicial. Exhibits 13, 14 and 15, standing alone, were sufficient evidence of net worth to establish a starting point. Exhibit 19 was not an essential document upon which the government’s case stands or falls. Exhibits 14 and 15 and, to a lesser extent, Exhibit 13 establish the same thing that Exhibit 19 helped establish— that the appellant had no substantial assets during a certain period. The cumulative effect of the exhibits was to partially corroborate the government’s opening net worth estimate. We accordingly hold that the admission of Exhibit 19 was not unduly prejudicial to the appellant so as to constitute reversible error. Appellant further argues that these exhibits were inadmissible because uncorroborated. Smith v. United States, 1954, 348 U.S. 147, 155, 75 S.Ct. 194, 99 L.Ed. 192, clearly holds that the corroboration requirement applies to admissions, at least where the admission is made after the fact and the statement embraces an element vital to the government’s case. On admissions prior to the crime, it was earlier decided that such admissions need no corroboration. War-szower v. United States, 1940, 312 U.S. 342, 347, 61 S.Ct. 603, 606, 85 L.Ed. 876: “The rule requiring corroboration of confessions protects the administration of the criminal law against errors in convictions based upon untrue confessions alone. Where the inconsistent statement was made prior to the crime this danger does not exist. Therefore we are of the view that such admissions do not need to be corroborated. They contain none of the inherent weaknesses of confessions or admissions after the fact. Cases in the circuits are cited by petitioner to the contrary. In Gulotta v. United States, the decision turned on the similarity of confessions and admissions rather than upon any differences between admissions before and after the fact. In Duncan v. United States [9 Cir., 68 F.2d 136] and in Gordnier v. United States [9 Cir., 261 F. 910] the conclusion was reached without any comment upon this difference. Our consideration of the effect of admissions prior to the crime leads us to the other conclusion [citing Miles v. United States, 103 U.S. 304, 26 L.Ed. 481].” In addition thereto, appellant’s tax returns subsequent to his release from prison and prior to the indictment sufficiently corroborate the exhibits in question. Smith v. United States, supra, 348 U.S. at pages 157 and 158, 75 S.Ct. at pages 199, 200. Point No. 4 is: “The Court erred in admitting into evidence Exhibits 21A to 21W, identified as work papers of George Frank.” George Frank was the accountant for the Plaza Amusement Company. These records were prepared by him in the ordinary course of business and contemporaneously with the issuance of stock to the stockholders of Plaza Amusement Company. In support of his contention, appellant cites the case of Hayes v. United States, 10 Cir., 1955, 227 F.2d 540, 544. That case is not comparable. The exhibit offered in the Hayes case was prepared by a tax expert long after the events it was attempting to portray and in preparation for trial. It was properly denied admission. The admissibility of records and entries made in the regular course of business is today unquestioned. United States v. Mortimer, 2 Cir., 1941, 118 F.2d 266, certiorari denied 314 U.S. 616, 62 S.Ct. 58, 86 L.Ed. 496. This is especially true in United States courts. 28 U.S.C.A. § 1732. Of course, other circumstances, such as “lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility”. Appellant’s fifth point is: ‘The Court erred in overruling defendant’s motion for a mistrial after Government counsel asked witness Edward Wortman if his brother Frank Wortman had been convicted of a crime and sentenced to 10 years.” Edward Wortman, the president of the Plaza Amusement Company, had testified in behalf of the government. The government was allowed to interrogate him as a hostile witness. A number of questions were directed to him concerning his brother Frank Wort-man. The witness testified that his brother had been sentenced to jail by Judge Moore for refusing to tell a grand jury where he lived. He was then asked the following question: “Q. For further purpose of identification, sir, I will ask you if this is the same Frank Buster Wortman who was sentenced in 1934 to 10 years on a charge of resisting a United States Officer?” Objection to the question was promptly sustained but appellant’s motion for a mistrial was overruled. Appellant claims that the statement or question of government counsel was of such an exceptionally prejudicial character that no statement by the court could remove the harmful effect caused by it. Of course, the question should not have been asked and it having been asked would have justified an instruction to the jury to disregard the question. We think, however, that failure to grant a mistrial was not reversible error. See and compare: Dolan v. United States, 8 Cir., 1955, 218 F.2d 454, 460; Davis v. United States, 8 Cir., 1956, 229 F.2d 181, 186-187. In the first place, the improper question referred to a brother of the witness, not to the appellant himself. Only by resort to a circuitous type of reasoning could it be conceived that testimony regarding the prior conviction of a witness’ brother was tantamount to a hostile reflection upon the character of appellant. Secondly, the trial judge was in a far better position to determine whether prejudice had resulted than are we. He saw the jurors, the witnesses and the appellant, and it very apparently was his considered judgment that the improper question about a witness’ brother had not prejudiced the appellant. We will not disturb his conclusion. The sixth point raised on appeal is that: “The Court erred in overruling appellant’s motion for judgment of acquittal at the close of the entire case.” Appellant herein attacks the sufficiency of the evidence to justify conviction and claims that the government failed to establish with reasonable certainty an opening net worth to serve as a starting point on which to calculate any increases in the appellant’s assets. The government’s theory was that Exhibits 13, 14, 15 and 19, plus certificates of assessment and payments beginning with the year 1932 and his tax returns for the years 1944, 1945 and 1946 established that the appellant had no assets of any substantial consequences prior to December 31, 1946, at which time it was claimed that his net worth totalled $11,-224.17. The establishment of a net worth starting point cannot be done with mathematical certainty and each case presents its own peculiar difficulties. The appellant was asked by the government investigators during their investigation of the case if he would give them a net worth statement. This he refused. He was then asked for his records and he replied that he did not keep records. He was asked if he had any bank accounts, brokerage accounts, safety deposit boxes or if he owned any property. He replied in the negative. He was then asked for the source of his funds and he stated that they came from an old mail bag and later in the conversation added, “Let’s just say I dug up an old iron pot.” He further stated to the investigators that he did not have income except from salary and that he was of the opinion that he did not have to keep records in those circumstances. Under Holland v. United States, 1954, 348 U.S. 121, 138, 75 S.Ct. 127, 137, 99 L.Ed. 150, the government may not “disregard explanations of the defendant reasonably susceptible of being checked”. Appellant complains here that: “No effort was made to check defendant’s statement that his funds came from an old mail bag. Such a statement should have been checked in view of the nature of defendant’s conviction for mail robbery as well as his statement to the Parole Board that he had received $3000.00 from the robbery.” Old mail bags and old iron pots are hardly the explanations “reasonably susceptible of being checked” referred to by the Supreme Court in the Holland case. We think, from a complete review of the evidence, that there was sufficient justification for the jury’s conclusion that on December 31, 1946, the appellant’s net worth was approximately $11,224.17 and that his net worth on December 31, 1947, was approximately $34,195.54. These figures were based on the agent’s testimony and the records introduced, which were sufficiently authenticated to justify their presentation to the jury and sufficient to justify a denial of appellant’s motion for judgment of acquittal. Appellant’s seventh point ii that: “The Court erred in not instructing the jury as requested as to a lesser offense under Section 145(a) (sic) of the Internal Revenue Code, and as to a lesser offense under Section 3616(a) of the Internal Revenue Code [26 U.S.C.A. § 3616(a)].” Since preparation of appellant’s brief, the Supreme Court affirmed this court in Berra v. United States, 221 F.2d 590, 351 U.S. 131, at page 135, 76 S.Ct. 685, at page 688, and held: “The only question before us is whether the jury should have been allowed to decide whether it would apply § 3616(a) rather than § 145 (b), and that we hold was not for the jury. It was, therefore, not error to refuse the requested instruction.” Appellant’s eighth point is that: “The Court erred in instructing the jury that it makes no difference whether income was lawfully or unlawfully received and that they could find an intent to commit the crime charged even though it is coupled with an intent to suppress information as to acts which are criminal in other ways.” The giving of the challenged instruction is supported by the appellant’s admission in his income tax returns that he had some income as a gambler and by his further statement that the source of his income might be from a mail bag or an old iron pot. Injection into the instructions of the possibility of the money being gained from illegal sources was fully supportable from the evidence. Certainly, otherwise relevant evidence does not become incompetent because it incidentally proves commission of independent offenses. Hardy v. United States, 8 Cir., 1952, 199 F.2d 704; Bram v. United States, 8 Cir., 1955, 226 F.2d 858. The exclusionary rule that prior offenses are not admissible against a defendant is not one of unbending rigidity. Thus, the rule will not be given application where the evidence is used to establish some material aspect of the prosecution’s case. With equal vigor it is true that the rule may be disregarded in the court’s instructions under proper circumstances. We have reviewed the court’s entire charge and do not find it unfair to appellant. Appellant’s ninth point of error is that: “The Court erred in instructing the jury that in arriving at their verdict they might consider the. failure of defendant to supply, information to the revenue agents.” The court herein instructed the jury: “Any failure on the part of the defendant, to supply any information for the purpose of the computation, assessment, or collection of his income tax, which you .find to be unjustified or inexcusable, is a circumstance which may be considered in your determination of his guilt or innocence.” The court further instructed the jury that if relevant leads were not furnished to the agents, the government was not required to “ * * * negate every conceivable source of nontaxable funds, and if the defendant failed to supply information to the agents in that regard, you may take such failure into account.” This court, in Myres v. United States, 8 Cir., 1945, 174 F.2d 329, certiorari denied 338 U.S. 849, 70 S.Ct. 91, 94 L.Ed. 520, and Olson v. United States, 8 Cir., 1951, 191 F.2d 985, approved similar instructions. Appellant would distinguish the instant case on the theory that in the Myres and Olson cases the taxpayers were not advised that they were not compelled to furnish information. Here the appellant, in response to his question to the agent as to whether or not he was compelled to give a net worth statement, was told that he did not have to. The appellant then said that he would not give a net worth statement and further stated that he did not have records. In dealing with a similar instruction, the Court of Appeals for the Fourth Circuit, in Beard v. United States, 1955, 222 F.2d 84, 93, certiorari denied 350 U.S. 846, 76 S.Ct. 48, stated: “Moreover, the instruction related to the duty imposed by the taxing statutes upon the defendant to keep records of his transactions so that the extent of his liability to income tax might be ascertained; and therefore the case falls within the rule laid down in Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787, which reviewed a conviction of violating the regulations under the Emergency Price Control Act and held that it was proper for the jury, in determining the issue of the defendant’s guilt, to consider the business records of the defendant produced by him under a subpoena issued by authority of the statute. It was held that all records which Congress in the exercise of its constitutional powers may require individuals to keep in the conduct of their affairs relating to the public interest become public records in the sense that they fall outside the constitutional protection of the Fifth Amendment.” In the instant case, the appellant under the law was required to keep records. He stated that he did not do so. The fact that he did not keep records or the fact that he did keep records and refused to disclose them was a proper subject for comment by the court and we find no error in the instruction given. Appellant’s tenth point is that: “The Court erred in overruling defendant’s motion to dismiss the indictment based on the failure to present competent evidence before the Grand Jury, and the Court erred in not allowing defendant to ask every witness at the trial whether or not he testified before the Grand Jury in connection with this case.” During the pendency of this appeal, the Supreme Court, in Costello v. United States, 1956, 850 U.S. 359, 76 S.Ct. 406, determined this issue adversely to appellant’s contention. After a review of the historical basis for grand jury proceedings, the Supreme Court ruled affirmatively on the question of whether or not a conviction could be sustained where only hearsay evidence was presented to the grand jury. The Fifth Amendment requires nothing more than that the grand jury be legally constituted and unbiased. Appellant’s eleventh point is that: “The Court erred in overruling defendant’s motion to dismiss the indictment on the ground that the indictment was barred by the statute of limitations.” It is the appellant’s contention that: “ * * * the indictment charged an offense under Section 3616(a), and that the general criminal statute of limitations, 18 U.S.C. § 3281, then three years, was applicable.” This issue is, then, dependent upon whether or not Section 3616(a) is applicable to income tax offenses. In Dillon v. United States, 8 Cir., 1955, 218 F.2d 97, and Berra v. United States, 8 Cir., 1955, 221 F.2d 590, this court held that Section 3616(a) was inapplicable to income tax cases. In affirming this court in the Berra case, 351 U.S. 131, 76 S.Ct. 685, the Supreme Court did not pass upon that issue but limited its decision to the narrow question of whether the jury should have been allowed to decide whether it would apply Section 3616(a) rather than Section 145(b), and stated that that was not for a jury’s determination. On the basis, then, of our decisions in the Dillon and Berra cases, we determine this issue against the appellant. Appellant’s twelfth point is that: “The Court erred in overruling defendant’s motion for a mistrial because of a newspaper article con-cernmg the case and did not properly interrogate the jurors relative to the prejudicial newspaper article.” On the first day of trial, at the conclusion of the opening statement, the court gave instructions to the jurors with reference to their duties and responsibilities. They were told not to read newspaper articles as they might tend to confuse them. The court stated: “If anything appears in the newspapers from now on during the trial of this case the Court will direct you not to read the article, and I hope that you will be responsive to that direction and will not attempt to read it. If you read articles printed in the newspaper you will very frequently find that they are not correct, and they do not get every side. It is evidence of the poorest type.” On the following day counsel for the appellant offered in evidence a newspaper article which he claimed was “ * * * so colored as to unduly bias and prejudice the jury, and it appeared in the St. Louis Globe Democrat, the only morning paper, appeared in the evening issue of last night as well as this morning’s issue.” Appellant thereupon moved for a mistrial because of the article. The court stated: “The Court directed the jury not to read any newspaper articles that might appear, and if any did appear the Court will assume the jurors observed the direction of the Court. The motion is overruled.” Subsequently counsel for appellant asked the court: “May I ask the Court to inquire of the jury if they read this article?” The court replied: “Yes. I will ask them, if any juror violated the instructions of the Court and read the article, if they did, hold up your hands.” 603, 99 L.Ed. 1248, later dismissed 350 U.S. No hands were raised. We think the matter came clearly within the discretion of the trial court. In addition, it does not appear that any of the jurors saw or read the article complained of. No abuse of discretion is shown where the trial court, under such circumstances, denies the motion for mistrial. Affirmed. . 118 F.2d 683, a case from this circuit and relied upon by the appellant as support for his contention. . Certiorari granted 349 U.S. 914, 75 S.Ct. 906, 76 S.Ct. 191. 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_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 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DARLING & COMPANY, Respondent. No. 17394. United States Court of Appeals Seventh Circuit. Jan. 6, 1970. Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., Robert A. Giannasi, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, and Madge F. Jefferson, Attys., N. L. R. B., Washington, D. C., for petitioner. J. Ternell Vaughan, Fred Leicht, Jr., Armstrong, Teasdale, Kramer & Vaughan, St. Louis, Mo., for respondent. Before KNOCH, Senior Circuit Judge, and FAIRCHILD and KERNER, Circuit Judges. KNOCH, Senior Circuit Judge. This matter is before us on application of the National Labor Relations Board filed pursuant to § 10(e) of the National Labor Relations Act, as amended, Title 29 U.S.C. § 151 et seq., § 160(e), for enforcement of its Order of April 4, 1968, reported at 170 NLRB No. 127, in which the Board directed the respondent, Darling & Company, to cease and desist from specific violations found and from interfering in any similar manner with the rights of its employees under § 7 of the Act. The Board found that respondent violated § 8(a) (1), (3) & (4) » of the Act by withholding severance pay from one group of employees while granting it to another and further violated § 8(a) (1) by announcing its decision to do so. The Board directed respondent further to grant severance pay to the production employees on the same terms (with interest) as was awarded other employees on the payroll at the East St. Louis plant at the time that plant closed on March 31, 1967, with notices to be sent to the last known addresses of all the employees. The difficulties between respondent and International Chemical Workers Union, AFL-CIO, Local No. 127, which represents the production employees, go back to 1965 when extended contract negotiations culminated in a lockout of the production employees on December 16, 1965. One of the production employees, Lewis Lane, as an individual, filed an unfair labor practice charge with the Board on January 4, 1966, and on March 30, 1967, the Trial Examiner found that the lockout had been unlawful and recommended an order directing respondent to make whole all the employees from the first day of the lockout. Subsequently on May 23, 1968, the Board held otherwise that this lockout had been a legitimate economic weapon and did not constitute an unfair labor practice. Mr. Lane’s petition to review that decision is pending before the Court of Appeals for the District of Columbia (#22,357) in which respondent has been allowed to intervene. In the meantime, however, negotiations continued after the lockout and an agreement was reached February 15, 1966, which was to remain in force until December 1,1967 and to be renewed from year to year in the absence of written notice. In the proceedings before the Trial Examiner respecting the lockout, Roy L. Thompson, a representative of the Chemical Workers Union testified that as part of that agreement his Union undertook not to file charges because of the December 16, 1965 shutdown, but that the action of an individual member was beyond Union control. The crane operators and maintenance electricians at respondent’s East St. Louis plant were represented by the International Brotherhood of Electrical Workers, Local No. 309. The maintenance millwrights and carpenters were represented by the United Brotherhood of Carpenters and Jointers, Local No. 169. Robert S. Rowe, Labor Relations Attorney for respondent, testified that on December 5, 1966, he notified representatives of all three unions that on failure of attempts then being made to sell the East St. Louis plant as a going concern the plant would be shut down. On or about February 14, 1967, he wrote the three unions that a complete shutdown of operations was contemplated on or about April 1, 1967. The Trial Examiner found that the plant was closed on March 31, 1967, concededly for purely economic reasons. He also found that respondent had made extensive efforts to find other employment for its employees. On the morning of March 30, 1967, representatives of respondent met with representatives of the IBEW and Carpenters unions and agreed to grant severance pay to the employees they represented. The respondent stresses the fact that counsel for the Carpenters wrote requesting that meeting to bargain on specific proposals including severance pay, and that at the meeting with the Carpenters and IBEW together as had been the practice frequently in the past, it was tacitly understood that the aforesaid counsel was speaking for both unions. In the afternoon at a meeting with the Chemical Workers, the Union President, Silas Watson, asked whether the respondent would give the production workers whom his Union represented similar severance pay. There was a conflict in the testimony as to the exact reply made by Mr. Rowe. Mr. Rowe testified that he said the company had decided that it was not going to do so “at that time”; that the company wanted to defer the question on severance pay for the people in this bargaining unit until it ascertained what liability in connection with the unfair labor practice hearing would result (estimates ran as high as $50,000) and the company felt it wanted to know just what the economic situation was before it came to a decision on a severance pay arrangement. [The decision of the Trial Examiner, as it happened, issued the following day after the meeting with the Chemical Workers Union.] He also testified that he indicated if it developed there was no back pay liability, he felt that the company would treat the production employees on the same basis as those in the other two bargaining units; that the decision on severance pay at that time was not his to make. He denied ever saying that if the company were found liable for back pay, it would not give severance pay. Mr. Watson testified that Mr. Rowe had said that if the company did not “win” the case, it would not give severance pay. The Trial Examiner credited Mr. Rowe’s evidence as to the content of his statement. The respondent contrasts the facts respecting the other two unions with the absence of any written or oral request from the Chemical Workers specifically to bargain over severance pay prior or subsequent to the meeting with Mr. Rowe. However, there was testimony by Mr. Thompson of the Chemical Workers respecting an exchange of telephone calls with respondent’s Plant Manager, Lee Stahlman, to set up a meeting to discuss the plant closing and related matters. Mr. Stahlman did not appear as a witness. The Trial Examiner found Mr. Thompon’s evidence credible. As indicated such a meeting was held on March 30, 1967 and the issue of severance pay was raised. No severance pay has been given to the production employees. Such pay has been given to most of the employees represented by the other two unions. The action of the respondent thus penalized employees represented by the one union involved in the pending Board proceedings on the lockout. Regardless of the asserted lack of intent to do so, respondent’s actions must have discouraged affiliation with the Chemical Workers. Radio Officers’ Union v. National Labor Relations Board, 1954, 347 U.S. 17, 45 et seq., 74 S.Ct. 323, 98 L.Ed. 455. Respondent would distinguish this case and similar cases on the ground that they deal with inherently discriminatory practices which require no specific evidence of an employer’s motive to discourage union membership on the ground that one is presumed to intend the foreseeable consequences of his conduct. We do not agree that the facts of this case take it out of the scope of Radio Officers. Nor do we agree that this case is distinguished from NLRB v. Great Dane Trailers, Inc., 1967, 388 U.S. 26, 33, 87 S.Ct. 1792, 18 L.Ed.2d 1027, on which the Trial Examiner relied because the vacation benefits there given to non-strikers and denied strikers accrued under a collective bargaining contract in a strike climate. The respondent sees no possible threat in the announcement of a mere postponement in consideration of the issue, especially as the Union was powerless to withdraw the charge had it so desired. The respondent must have foreseen that its action would inhibit filing charges and testifying in support of them. Section 8(a) (4) has long been construed as designed to prevent “the Board’s channels of information from being dried up by employer intimidation of prospective complainants and witnesses.” John Hancock Mutual Life Insurance Company v. NLRB, 1951, 89 U.S.App. D.C. 261, 191 F.2d 483, 485. It is respondent’s view that had punishment of the Union been an objective a flat refusal even to consider severance pay would have been more logical. We believe such a course of action would have represented a difference in degree rather than in kind. The respondent also contends that even if there was an inference of a threat it was far outweighed by the clear business justification for the delay. But, as the Board noted, only employees represented by the Union whose member had filed the charge were made to bear the economic burden of the possible adverse results of that charge. We do not agree with the respondent that there is an inconsistency in the Trial Examiner’s finding that Mr. Rowe did not use the words “win” or “lose” with reference to the outcome of the then pending Board case and then going on to conclude that his statements carried the intendment that if the respondent lost the pending case it would not grant severance pay to the production employees. The Trial Examiner said that Mr. Rowe was experienced in labor-management negotiations and it was most unlikely he would use the words “win” or “lose” in this discussion but that his admitted statements were sufficiently plain. The respondent is still doing business at its other plants and to limit the negative “desist” aspects of the Order, as respondent asks, to the closed East St. Louis plant would render those aspects of the Order a nullity. We do not read the Order as directing severance pay “in the same amounts” as respondent complains, pointing out that the vacation benefits which figured in the computations are not identical for all three unions, for example. The Order says “on the same terms and in the same amounts” as the other employees which merely calls for computation on the same non-discriminatory basis. Problems arising in such computation may be resolved in the compliance stage. The possibility of such problems does not justify denial of enforcement of the Board’s Order. NLRB v. Acme Mattress Co., 7 Cir., 1951, 192 F.2d 524, 528. The Order of the Board will be Enforced. . [§ 7] Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section [8] (a) (3). . § 8(a) It shall be an unfair labor practice for an employer— (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section [7] of this title; (2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, That subject to rules and regulations made and published by the Board pursuant to section [6], an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay; (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization : * * * * * (4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subehapter. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_r_state	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Paul FRIEDRICH; Roger Hall; Tom Harahan; Robert Mazzarella; Richard Omvig; Roseanne Saunders; Richard Schaefer; Jack Wasneski; Steve Zizza, Appellants, v. U.S. COMPUTER SERVICES a/k/a/ U.S. Computer Systems d/b/a Cable Data. No. 92-1002. United States Court of Appeals, Third Circuit. Argued July 10, 1992. Decided Sept. 9, 1992. Denis M. Dunn (argued), Petrikin, Well-man, Damico, Carney & Brown, Media, Pa., for appellants. Barnett Satinsky (argued), Alexia Kita Blake, Anne Marie Ciesla, Fox, Rothschild, O’Brien & Frankel, Philadelphia, Pa., for appellee. Before: SLOVITER, Chief Judge, STAPLETON, and ROSENN, Circuit Judges. OPINION OF THE COURT ROSENN, Circuit Judge. This appeal raises an interesting question of entitlement to overtime compensation arising out of the interfacial tensions of two federal regulatory statutes, the Motor Carrier Act of 1935 (MCA), Act of August 9, 1935, c. 498, 49 Stat. 543 and the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 209, 216 (West Supp.1992). The plaintiffs are a group of field engineers previously employed by U.S. Computer Services, d/b/a CableData (CableData) seeking overtime compensation pursuant to the FLSA. The plaintiffs frequently traveled interstate as part of their job duties, carrying tools, component parts, and equipment in order to install, maintain, or repair customers’ computers. The district court held that the plaintiffs were exempt from the FLSA’s overtime compensation requirements pursuant to the FLSA’s Motor Carrier Act exemption. The plaintiffs appealed and we affirm. I. The material facts are not in dispute. CableData is a privately-owned corporation headquartered in California. It provides computer hardware and software, installation, maintenance, and repair service of its computer equipment to its customers engaged in the cable television business. The plaintiffs were assigned to the company’s Northeast Region Office, located in Broo-mall, Pennsylvania. This office regularly services customers located in Pennsylvania, New York, New Jersey, Delaware, Maryland, Washington, D.C., Virginia, West Virginia, and other states as needed. The primary duties of the plaintiffs were to provide technical expertise to CableDa-ta’s customers and to perform installation, preventive maintenance, diagnostics, and repairs on the customers’ computer hardware. The plaintiffs routinely traveled to customer sites, both in and out of Pennsylvania, in order to perform these services. If the customer sites were within four to six hours’ drive, the field engineers drove their personal vehicles and transported their tool kits, replacement parts, and equipment. For customer sites located at a greater distance, the field engineers traveled by air and drove rental automobiles from the airport. The plaintiffs filed a complaint against CableData seeking overtime compensation allegedly due pursuant to the FLSA, the Pennsylvania Minimum Wage Act of 1968 (PMWA), 43 P.S. §§ 333.101-333.115 (West Supp.1992), and the Pennsylvania Wage Payment and Collection Law (WPCL), 43 P.S. §§ 260.1-260.11a (West Supp.1992). CableData filed a motion for summary judgment under the MCA, and the plaintiffs filed a cross-motion for summary judgment. The court granted summary judgment in favor of CableData with respect to the plaintiffs’ FLSA claims and subsequently certified the judgment pursuant to Federal Rule Civil Procedure 54(b). In granting summary judgment, the court concluded: (1) the plaintiffs were subject to the MCA exemption from the FLSA’s overtime compensation requirements; (2) the United States Department of Transportation (DOT) retained the authority to establish maximum hours of employment for the plaintiffs, notwithstanding the lightweight vehicle exemption promulgated by the DOT; and (3) the court was prohibited from reaching a contrary result in the absence of Congressional action limiting the DOT’S power to regulate motor private carriers by passenger automobile. The plaintiffs appealed and the Secretary of Labor filed an amicus curiae brief. We have jurisdiction to hear this interlocutory appeal pursuant to 28 U.S.C. § 1292(b). II. To obtain a summary judgment, the proponent of the motion has the initial burden of identifying evidence, from the sources enumerated in Federal Rule Civil Procedure 56(c), which demonstrates the absence of a genuine issue of material fact and which establishes the movant’s entitlement to judgment as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). When confronted with a properly supported motion for summary judgment, the opposing party is required to produce, from the same sources enumerated in Rule 56, contrary evidence which would support its position. Id. at 250, 106 S.Ct. at 2511. In reviewing a grant of summary judgment, we must draw all possible inferences from the record in the light most favorable to the party opposing the motion. Bechtel v. Robinson, 886 F.2d 644, 647 (3d Cir.1989). Congress enacted the MCA in 1935, to promote efficiency, economy, and safety in the rapidly burgeoning motor transportation industry. See United States v. American Trucking Ass’ns, Inc., 310 U.S. 534, 538-39, 60 S.Ct. 1059, 1061-62, 84 L.Ed. 1345 (1940). To advance these goals, the MCA gave the Interstate Commerce Commission (ICC) authority to establish requirements for recordkeeping, safety of operation, qualifications, and maximum hours of work for “common carriers” and “contract carriers” by motor vehicle. See 49 U.S.C. § 304(a)(1) & (2) (repealed). The Act also gave the ICC similar regulatory power over employees of “private carriers” by motor vehicle if the ICC found that such requirements were necessary to promote the safety of operation. See id. at § 304(a)(3) (repealed). In 1938, Congress enacted the FLSA to protect covered workers from substandard wages and oppressive working hours. See Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739, 101 S.Ct. 1437, 1444, 67 L.Ed.2d 641 (1981), cert. denied, 471 U.S. 1054, 105 S.Ct. 2116, 85 L.Ed.2d 480 (1985). The FLSA required employers to compensate such employees at a minimum of one and one-half times their standard hourly wages for time worked per week in excess of forty hours. See 29 U.S.C. § 207(a)(1). Congress ensured that regulatory jurisdiction under the MCA and the FLSA would not overlap by providing that the FLSA did not apply where the ICC already had power to set maximum hours. See Levinson, 330 U.S. at 661-62, 67 S.Ct. at 938. Specifically, the FLSA exempted from its overtime requirements “any employee with respect to whom the [ICC] has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49.” See 29 U.S.C. § 213(b)(1). It is the employer’s burden to affirmatively prove that its employees come within the scope of the overtime exemption, and any exemption from the Act must be proven plainly and unmistakably. Martin v. Cooper Elec. Supply Co., 940 F.2d 896, 900 (3d Cir.1991) (citations omitted). In 1966, Congress transferred the authority to regulate under section 304 of the MCA from the ICC to the DOT. See Act of Oct. 15, 1966, P.L. 89-670, § 6(e)(6)(C), 80 Stat. 939; 49 U.S.C. § 1655(e)(6)(C). In 1983, Congress repealed section 304 and recodified the section without substantive change as 49 U.S.C. § 3102. See Act of Jan. 12, 1983, P.L. 97-449, § 7(b), 96 Stat. 2444. Section 3102 gives the DOT authority to regulate "motor carriers” and “motor private carriers.” Motor private carriers are those that are neither common nor contract carriers, and that (1) transport property by motor vehicle in interstate commerce; (2) are the “owner, lessee, or bailee of the property being transported”; and (3) transport the property “for sale, lease, rent, or bailment, or to further a commercial enterprise.” See 49 U.S.C. § 10102(16). Preliminarily, the plaintiffs present two statutory-based claims, contending that Ca-bleData does not fit within the plain language of the MCA exemption. First, they assert that the MCA exemption from the FLSA overtime requirements does not apply to motor private carriers because section 3102(a)(1) applies to transportation “described in sections 10521 and 10522 of this title” and these sections speak only of “motor carriers,” which are later defined to mean motor common carriers and motor contract carriers, 49 U.S.C. § 10102(13). However, section 3102(a)(1) simply refers to sections 10521 and 10522 for a description of the type of transportation subject to the DOT’s jurisdiction, that is, interstate transportation. See, e.g., Griffin v. Consolidated Foods Corp., 587 F.Supp. 921, 922 (W.D.N.C.1984), aff'd, 771 F.2d 826 (4th Cir.1985). The plaintiffs’ proffered interpretation would render section 3102(b)(2) meaningless. Second, the plaintiffs argue that the DOT does no.t have the power to regulate them because they were engaged in a business other than transportation and the transportation in question was in furtherance of their primary business of servicing computer equipment. Under the “primary business test,” the ICC lacks jurisdiction over the transportation of property by motor vehicle by a person engaged in a non-transportation business when the transportation is within the scope of and furthers the primary business of such person. 49 U.S.C. § 10524(a). Congress adopted section 10524(a) because of a proliferation of “buy-sell” agreements whereby carriers attempted to avoid ICC regulation. See Ryder Truck Lines, Inc. v. United States, 716 F.2d 1369, 1373 n. 4 (11th Cir.1983), cert. denied, 466 U.S. 927, 104 S.Ct. 1708, 80 L.Ed.2d 181 (1984). By purchasing the goods to be transported and then selling them upon reaching their destination, the carriers avoided ICC rate and licensing requirements as well as federal excise taxes. Id. Section 10524(a) has no application in this case. The section merely exempts motor private carriers from the licensing, permit, and certificate requirements imposed upon motor carriers by the ICC pursuant to 49 U.S.C. §§ 10921-10935; it does not serve to deprive the DOT of its power to regulate the qualifications and maximum hours of service of employees of motor private carriers pursuant to 49 U.S.C. § 3102(b)(2). See American Trucking Ass’ns, 672 F.2d at 851 (common and contract motor carriers are subject to ICC regulation but motor private carriers are exempt from such regulation). The MCA exemption thus applies independent of the ICC’s jurisdiction over a motor private carrier. The record shows that the plaintiffs transported property by motor vehicle in interstate commerce, that CableData owned the property transported, and that the plaintiffs transported the property to further CableData’s commercial enterprise. Therefore, the plaintiffs literally fell within the MCA exemption to the FLSA. The plaintiffs argue, however, that the DOT has waived its regulatory power under the MCA exemption because it has not sought to regulate operations such as CableData’s. In 1984, Congress enacted the Motor Carriers Safety Act (MCSA), 49 App. U.S.C. § 2501 et seq., which directed the DOT to issue various regulations to further safety in the operation of “commercial motor vehicles.” Commercial motor vehicles are those vehicles weighing over 10,000 pounds, designed to transport more than 15 passengers, or used in the transportation of hazardous materials. Id. at § 2503(1); 49 C.F.R. § 390.5. In response to the MCSA, the Federal Highway Administration (FHWA) amended the Federal Motor Carrier Safety Regulations (FMCSR), see 49 C.F.R. § 390.1-390.37 (Nov. 15, 1988). The DOT regulations do not apply to the plaintiffs because the motor vehicles driven by them in their duties for CableData weigh less than 10,000 pounds. The district court concluded that the DOT’s failure to exercise its power to regulate does not mean that it has waived it. The court relied on Southland Gasoline Co. v. Bayley, 319 U.S. 44, 63 S.Ct. 917, 87 L.Ed. 1244 (1943). In that case, the plaintiffs, employees of a motor private carrier, argued that the ICC had no power to regulate their working hours prior to the time it issued regulations for private carriers. At that time, the ICC had authority to establish working hours for private carriers “if need therefor is found.” See 319 U.S. at 47, 63 S.Ct. at 919 (citing MCA § 204(a)(3); 49 U.S.C. § 304(a)(3) (repealed)). The employees asserted that because the ICC did not regulate or make a finding that regulation was necessary prior to 1940, they were entitled to overtime compensation under the FLSA up until the time the ICC found need to regulate. The Court rejected this argument and held that the requirement to make a finding of need before issuing regulations did not affect the existence of the ICC’s power to regulate. See 319 U.S. at 47-48, 63 S.Ct. at 919; accord Levinson, 330 U.S. at 661, 67 S.Ct. at 938. Similar to the statute at issue in Southland, 49 U.S.C. section 3102(b)(2) allows the DOT to regulate working hours of private carriers only where “needed to promote safety of operation”. The district court reasoned that because section 3102 recodified section 304 without substantive change, Southland is controlling. Moreover, in 1984, Congress amended section 3102 to require that the DOT “consider the costs and benefits” of amending the section, but it did not limit the section to apply only to commercial motor vehicles. See 49 U.S.C. § 3102(d). The district court thus found that the DOT’s failure to find regulation necessary in a particular area does not mean that the DOT has waived its power to regulate pursuant to section 13(b)(1) of the FLSA. In 1977, the DOT published an interpretation of the FMCSR: The [FMCSR] were designed primarily to apply to medium and heavy-duty commercial vehicles, and in many instances the Regulations are not suitable for passenger cars. Various parts of the FMCSR contain exemptions for the operation and driving of passenger automobiles. The Bureau, therefore, has not required compliance with the Regulations by private carriers of property insofar as they engage in the transportation of property in an incidental manner in passenger cars. 42 Fed.Reg. 60,079-60,080 (1977); 40 Fed. Reg. 50,677 (1975). The plaintiffs and the amicus argue that this “passenger automobile exemption” supports the conclusion that the DOT exempted the operation of passenger vehicles from the application of the MCA. The DOT interpretation, however, merely reflects the DOT’s historic focus on safety regulations for medium and heavy-duty commercial vehicles without relinquishing its power over passenger vehicles engaged in transporting property in interstate commerce. When issuing the FMCSR, the DOT recognized the “Congressional policy of applying available Federal motor carrier safety resources to larger vehicles.” See 53 Fed. Reg. 18,042, 18,044 (1988). The DOT stated that it “historically regulated all commercial motor vehicles engaged in interstate commerce,” but that it had “long focused its activities on larger vehicles” because vehicles weighing 10,000 pounds or less “have operating characteristics similar to a large automobile and generally pose no greater safety risk ... when used on the highway.” Id. at 18,054. Moreover, as observed by the district court, the DOT’s statement reflects its interpretation of the federal motor carrier regulations only and not of section 304 of the MCA. Nothing in the DOT’s statement suggests that it has determined that the MCA does not apply to transportation of property by passenger vehicles. Additionally, as discussed below, because the plaintiffs’ transportation of property in passenger cars is more than incidental, the “passenger automobile exemption” is inapplicable. The plaintiffs further argue that the DOT’s failure to regulate operations like CableData leaves the inference that it does not believe it has the authority to do so. They assert that the DOT’s exclusion of lightweight vehicles from the FMCSR is analogous to the granting of a certificate of exemption under the MCA because although both Acts may be rescinded, they both remove a class of employees from the DOT’s power to regulate. Thus, they contend that the DOT in effect has denied itself section 3102 power by determining that the regulation of lightweight motor vehicles is not needed to promote safety of operation. However, the DOT expressly retained its power to regulate lightweight vehicles. In a statement issued in May of 1988, in connection with the publication of the DOT’s Final Rule pertaining to the FMCSR, the FHWA explained the underlying rationale for not regulating lightweight vehicles at this time. Although the FHWA retains its authority to regulate lighter weight vehicles in the interest of safety (49 U.S.C. § 3Í02), the FHWA does not believe that such Federal regulation is warranted at this time. See 53 Fed.Reg. 18,042, 18,044 (1988). Next, the plaintiffs rely on cases from the Ninth Circuit for the proposition that where the DOT exempts a category of employees from the MCA, the FLSA applies. See Jones v. Giles, 741 F.2d 245, 249 (9th Cir.1984); Newhouse v. Robert’s Ilima Tours, Inc., 708 F.2d 436 (9th Cir.1983). In Newhouse, 708 F.2d at 439-40, the court held that because the plaintiffs, Hawaiian tour company drivers, had been granted a certificate of exemption by the ICC from compliance with the MCA, they became subject to the FLSA until the ICC revoked or conditioned the certificate of exemption. In Jones, 741 F.2d at 249, the court held that the plaintiffs, Washington state ambulance drivers, were not subject to the authority of the DOT because the ICC had exempted ambulance services from the MCA, Lonnie W. Dennis, 63 M.C.C. 66 (1954), and the DOT later incorporated this exemption into its interpretation of the FMCSR, 42 Fed.Reg. 60,080 (1977); 40 Fed. Reg. 50,677 (1975). In both of these cases, the'ICC affirmatively exempted a group of employees. Here, however, the DOT has neither granted any specific exemption nor has it expressly disclaimed jurisdiction over employees of motor private carriers. The plaintiffs claim that the DOT's exemption by affirmative action differs from a failure to promulgate regulations. A mere failure to promulgate regulations or to enforce regulations which have been promulgated is not sufficient to take an employee beyond the [DOT’s power to regulate qualifications and maximum hours of service of employees under-section 3102]'... On the other hand, when employees are placed by affirmative action of the DOT ... beyond the scope of the regulations promulgated under the relevant power, the employees are no longer subject to the relevant power — for so long as that regulation or exempting action remains in effect under the DTA. Brock v. Pacific Vacuum Truck Co., 106 LC ¶ 34,892, 44,871, 27 WH 1617, 1621, 1987 WL 13,666 (C.D.Cal.1987). In Brock, the Secretary of Transportation had concluded that its regulations under the MCA went to the limit of its statutory authority and thus believed that any person not covered by the regulation necessarily fell beyond the scope of the statute. Recently, the Second Circuit Court of Appeals, in a case similar to this, observed that Brock turned on deference to the Secretary’s interpretation of the scope of the MCA. Martin v. Coyne Int’l Enter. Corp., 966 F.2d 61, 64 (2nd Cir.1992). We agree with the Martin court that to the extent Brock suggests that where a group of employees has been left out of a regulation, the Secretary then lacks the power to regulate those employee, Brock is impossible to reconcile with the Supreme Court’s earlier cases of Southland, Levinson, and McComb. Id. at 64. The amicus, the Secretary of Labor, acknowledges that the DOT may choose to exercise its regulatory power over passenger and lightweight vehicles but argues that until the DOT does, it lacks regulatory power over such vehicles. In United States v. Nixon, 418 U.S. 683, 694-96, 94 S.Ct. 3090, 3100-02, 41 L.Ed.2d 1039 (1974), the Supreme Court held that although the Attorney General originally may have had power to represent the government in matters concerning the invocation of executive privilege, he delegated that power by regulation to the Special Prosecutor and lacked the power until he rescinded or amended the regulation; accord United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267, 74 S.Ct. 499, 503, 98 L.Ed. 681 (1954). These cases are inapposite because here the DOT has not delegated its power but rather has chosen not to exercise it. The plaintiffs have failed to show that the DOT interpreted the scope of its authority under the MCA not to cover commercial operations involving passenger automobiles. Rather, the DOT’s failure to exercise its regulatory power over passenger cars in commercial operation and other lightweight motor vehicles appears to stem from Congress’ directive that the DOT focus on vehicles weighing more than 10,000 pounds. The amicus further admits that a literal reading of the MCA subjects the plaintiffs to the DOT’s regulatory power. The ami-cus asks that we interpret the word “power” to mean “power that is actually used” rather than “power that might someday be used”. However, “[i]t is not necessary, as a condition precedent, to find that the Commission has exercised, or should exercise, such power by actually establishing qualifications and maximum hours of service.... The existence of the power is enough.” Levinson, 330 U.S. at 678, 67 S.Ct. at 946 (emphasis added); accord Morris v. McComb, 332 U.S. at 434, 68 S.Ct. at 137; Martin, 966 F.2d at 62-63; Marshall v. Union Pac. Motor Freight Co., 650 F.2d 1085, 1089 (9th Cir.1981); Brennan v. Schwerman Trucking Co., 540 F.2d 1200, 1203 (4th Cir.1976). We conclude that the DOT has retained its power to regulate employees of motor private carriers who drive lightweight passenger vehicles in interstate commerce. III. Having decided that DOT’s election not to regulate lightweight and passenger vehicles does not strip it of its power to establish maximum hours and qualifications for private motor carriers, we must determine whether the district court erred in concluding that the plaintiffs fall within the MCA exemption. The Supreme Court has interpreted the word “employees” in section 304 to mean those employees whose duties affect the safety of operation. See American Trucking Ass’ns, 310 U.S. at 553, 60 S.Ct. at 1069. It is arguable that a lesser safety-related limitation should be placed upon the MCA’s use of the term “private carrier” when examining the plaintiffs’ effect on the safety of CableData’s transportation operation. As stated by the district court, in enacting the MCA, Congress apparently was more concerned at the time with the dangers of commercial trucks and buses rather than of personal automobiles. Friedrich v. United States Computer Serv., 787 F.Supp. 449, 456 (E.D.Pa.1991). The Supreme Court has recognized a de minimis exception to the application of the MCA. In Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695, 708, 67 S.Ct. 954, 960, 91 L.Ed. 1184 (1947), the Court held that although loaders of freight affect the safety of operation and thus fall within the MCA, persons who merely handle freight before or after loading perform tasks that may be too “trivial, casual or occasional” to affect safety and bring them under the MCA’s authority. The district court here rejected a de minimis exception, however, because the MCA specifically defines motor private carrier. Id. at 18. The MCA does not limit motor private carriers to those who ship large amounts of property or ship property as their principal business; it merely requires that they transport property “to further a commercial enterprise.” We agree that the safety effect of the plaintiffs’ activities is not de minimis. In a similar vein, the MCA does not define “property” and it is arguable that the tools, parts, and equipment the plaintiffs transported were so trivial or insubstantial that they did not constitute property within the meaning of the MCA. However, the DOL’s Field Operations Handbook states that the DOT has jurisdiction over private carriers when “the transportation of property, regardless of its bulk or weight, is the primary purpose of an interstate trip by a private carrier, or if the transportation of such property is a distinct and definite reason for the trip along with the transportation of persons.” Id. at 24a05(c). In an opinion letter of the Wage-Hour Administrator addressing similar facts, the DOL opined that service engineers employed by a national distributor of scientific and medical instrumentation fell within the MCA exemption. See Opinion Letter No. 1323 (WP-271) (June 5, 1974). The letter stated: [I]t would appear that the reason these service managers carry large quantities of service parts on their trips throughout the various States in their territory is to insure that they are able to perform whatever technical repair services may be required. Accordingly, the transportation of such property by motor vehicle in interstate commerce is a distinct and definite reason for the trip by these service managers and that in those cases where, as a regular practice, a service manager transports this equipment across State lines they would qualify for the overtime exemption under section 13(b)(1) of the Act. Although the DOT is not bound by the DOL’s interpretation of the DOT’S authority under the overtime exemption, the above reasoning is persuasive. Because the plaintiffs transported tools, parts, and equipment without which they could not have performed their duties for CableData and the services required of it by its customers, the transportation of those items was an independent and essential reason for their service trips. Thus the tools, parts, and equipment constituted property within the meaning of the MCA. This conclusion does not give employers carte blanche authority to relieve themselves of the FLSA overtime requirements. The DOT’s jurisdiction over employees of private motor carriers is limited to those who affect the safety of operation. The DOT has authority over drivers only where the employees regularly travel interstate or reasonably are expected to do interstate driving. See Dole v. Circle “A” Constr., Inc., 738 F.Supp. 1313, 1323 (D.Idaho 1990) (DOT has jurisdiction over all employee-drivers if all drivers are subject to the indiscriminate distribution of interstate hauls); DOT Notice of Interpretation, 46 Fed.Reg. 37,902, 87,903 (1981) (DOT has jurisdiction over “a driver who is called on, or is subject to being called on, to drive in interstate commerce as part of the driver’s regular employment ... [or] because of company policy and activity, the driver could reasonably be expected to do interstate driving”). Nonetheless, motor vehicle operators can come within the terms of the MCA exemption even though they may perform other duties than driving. [I]t is not a question of fundamental concern whether or not it is the larger or the smaller fraction of the employee’s time or activities that is devoted to safety work. It is the character of the activities rather than the proportion of either the employee’s time or of his activities that determines the actual need for the Commission’s power to establish reasonable requirements with respect to qualifications, maximum hours of service, safety of operation and equipment. Levinson, 330 U.S. at 674-75, 67 S.Ct. at 944. Thus, it is not determinative that the plaintiffs may have devoted more time to field service than to the transportation of property. Because their interstate operations affected safety on the highways, the plaintiffs fell within the MCA even though they were not employed primarily as carriers. See, e.g., Peraro v. Chemlawn Services Corp., 692 F.Supp. 109, 111, 114 (D.Conn.1988) (carpet cleaners who drive specially equipped trucks to clean carpets covered by MCA); Sinclair, 447 F.Supp. at 10-11 (employees who drive company-furnished pickups with tools, equipment, and supplies to service and maintain pipeline system covered by MCA); Harshman v. Well Serv., Inc., 248 F.Supp. 953, 958-59 (W.D.Pa.1964) (employees who drive cement pumping trucks to service and repair gas wells covered Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number. Answer:
sc_decisiontype	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. ARKANSAS v. TEXAS et al. No.-, Original. Argued October 21, 1953. Decided November 16, 1953. Thomas J. Gentry, Attorney General of Arkansas, and E. J. Ball, Special Assistant to the Attorney General, argued the cause for complainant. With them on the brief was Kay Matthews, Assistant to the Attorney General. William H. Holloway and Marietta McGregor Creel, Assistant Attorneys General of Texas, argued the cause for defendants. With them on the brief was John Ben Shepperd, Attorney General. Mr. Justice Douglas delivered the opinion of the Court. This is a motion by Arkansas to file a complaint against Texas and invoke our original jurisdiction granted by Art. Ill, § 2, of the Constitution. The complaint alleges that the University of Arkansas, acting through its Board of Trustees, and the William Buchanan Foundation, a corporation organized under the laws of Texas, entered into a contract whereby the Foundation agreed to contribute a sum of $500,000 to the construction of a one-hundred-bed pediatric floor in a new hospital in the Arkansas State Medical Center. The allegations are that, though the University of Arkansas and the Foundation are ready, willing, and able to perform, the State of Texas, acting through her Attorney General, has filed suit in the Texas courts to enjoin the Foundation from performing the contract on the ground that under Texas law the trust funds of the Foundation must be expended for the benefit of Texas residents. The complaint further alleges that the University of Arkansas is an official instrumentality of Arkansas, that in reliance on the agreement with the Foundation it let contracts for the construction of the hospital, proceeded with construction to the sixth floor, and is without funds to proceed further unless Texas is enjoined from interference with the contract. We issued a rule to show cause why leave to file the complaint should not be granted, 345 U. S. 954. Texas has made return to the rule and the case has been argued. Texas first argues that the William Buchanan Foundation is an indispensable party to the suit. We do not agree. The theory of the complaint is that Texas is interfering without legal justification with Arkansas’ contract with a third person. At least since Lumley v. Gye, 2 El. & Bl. 216, 118 Eng. Rep. 749 (Q. B. 1853), a cause of action based on that tortious conduct has been recognized. See Angle v. Chicago, St. P., M. & O. R. Co., 151 U. S. 1, 13-15; Bitterman v. Louisville & N. R. Co., 207 U. S. 205, 222-223. However appropriate it might be to join the Foundation as a defendant in the case (see Texas v. Florida, 306 U. S. 398, 405), the controversy is between Arkansas and Texas — the issue being whether Texas is interfering unlawfully with Arkansas’ contract. The contention that the controversy is between two States is challenged on the ground that the injured party is the University of Arkansas, which does not stand in the shoes of the State. Arkansas must, of course, represent an interest of her own and not merely that of her citizens or corporations. Oklahoma v. Cook, 304 U. S. 387. But as we read Arkansas law the University of Arkansas is an official state instrumentality; and we conclude that for purposes of our original jurisdiction any injury under the contract to the University is an injury to Arkansas. The University, which was created by the Arkansas legislature, is governed by a Board of Trustees appointed by the Governor with consent of the Senate. The Board, to be sure, is “a body politic and corporate” with power to issue bonds which do not pledge the credit of the State. But the Board must report all of its expenditures to the legislature, and the State owns all the property used by the University. The Board of Trustees is denominated “a public agency” of the State, the University is referred to as “an instrument of the state in the performance of a governmental work,” and a suit against the University is a suit against the State. In determining whether the interest being litigated is an appropriate one for the exercise of our original jurisdiction, we of course look behind and beyond the legal form in which the claim of the State is pressed. We determine whether in substance the claim is that of the State, whether the State is indeed the real party in interest. Oklahoma v. Cook, supra, pp. 392-396. Arkansas is in our view the real party in interest. The University of Arkansas is her agency in the educational field — a branch or department of the State. The central question which the case tenders is whether the William Buchanan Foundation has authority to spend its funds for furtherance of this Arkansas project. That is necessarily a question of Texas law, for the Foundation gets its existence and its powers from Texas. Texas courts speak with authority on those issues. Were we to undertake to resolve the questions, we might find ourselves in conflict with the courts that have the final say. Moreover litigation is now pending in the Texas courts which will authoritatively determine what the Texas law is. We therefore follow the course we have taken in analogous situations (cf. Thompson v. Magnolia Co., 309 U. S. 478, 483; Herb v. Pitcairn, 324 U. S. 117) and continue the present motion until the litigation in the Texas courts has been concluded. If that litigation resolves the whole controversy, leaving no federal questions, there will be no occasion for us to proceed further. It is so ordered. See Ark. Acts 1871, No. 44; Ark. Stat., 1947, §80-2801, Compiler’s Notes. Ark. Stat., 1947, § 80-2802. Ark. Stat., 1947, § 80-2804. Jacobs v. Sharp, 211 Ark. 865, 202 S. W. 2d 964. Ark. Stat., 1947, § 80-2817. Id., §§80-2849 if.; 80-2905; 80-3311. Jacobs v. Sharp, 211 Ark., at 866, 202 S. W. 2d 964. Vincenheller v. Reagan, 69 Ark. 460, 474, 64 S. W. 278, 284. And see Gipson v. Ingram, 215 Ark. 812, 223 S. W. 2d 595. See Allen Engineering Co. v. Kays, 106 Ark. 174, 152 S. W. 992. 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_genresp1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. MARATHON PIPE LINE COMPANY, et al., Plaintiffs-Appellees, v. M/V SEA LEVEL II, et al., Defendants-Appellants. v. OCEANONICS, INC., Defendant-Appellee. No. 86-3038. United States Court of Appeals, Fifth Circuit. Dec. 23, 1986. Rehearing and Rehearing En Banc Denied Jan. 21, 1987. Arden J. Lea, David J. Plavnicky, New Orleans, La., for Sea Level Intern., Inc. & C.S.I., etc. Jerrold B. Peterson, Montgomery, Barnett, Brown & Read, Henry J. Read, A. Gordon Grant, Jr., New Orleans, La., for Marathon & Hess. R.K. Christovich, New Orleans, La., for Oceanonics. Before CLARK, Chief Judge, WISDOM, and HIGGINBOTHAM, Circuit Judges. CLARK, Chief Judge: Defendants Sea Level International, Inc. (Sea Level), and C.S.I. International, Inc. (C.S.I.), appeal the judgment of the district court finding them liable for damages sustained to a pipeline owned by the plaintiff, Marathon Pipe Line Company (Marathon). Sea Level and C.S.I. contend that co-defendant Oceanonics, Inc. (Oceanonics), is contractually obligated to indemnify them for their liability stemming from the pipeline damage. Sea Level and C.S.I. also contend that the district court failed to make material findings regarding Oceanon-ics’ contractual duties and duty to exercise reasonable care. Finally, Sea Level and C.S.I. contest the amount of damages claimed by Marathon and awarded by the court and the award of prejudgment interest. We affirm the judgment of the district court in all respects. I. Background In July 1983, Texas Eastern Transmission Corporation (TETCO) commenced work on a project to change the protective system guarding one of its natural gas pipelines in the Gulf of Mexico. TETCO contracted with Sea-Con Services, Inc. (Sea-Con), to perform the necessary construction work. Sea-Con, in turn, secured the services of the workboat M/V SEA LEVEL II to transport material and personnel and to function as a work platform for the construction project. The SEA LEVEL II was owned and operated by appellants Sea Level and C.S.I. TETCO’s pipeline was connected to the northeastern side of a fixed platform located in East Cameron Block 321. Marathon also owned two pipelines connected to the same fixed platform. The pipeline that ultimately sustained the damage ran in a southeasterly direction along the Gulf floor. TETCO contracted with Oceanonics to locate all submerged pipelines in the vicinity of the platform and mark them with buoys. Before the SEA LEVEL II arrived at East Cameron Block 321, an Oceanonics survey crew, aboard the M/V RAINDROP, located and marked the pipelines in the area with styrofoam buoys dropped at 500 to 800 feet intervals along the pipeline routes. The SEA LEVEL II arrived at the platform site on July 2, 1983. Peter McCormick, the Oceanonics employee responsible for locating and marking the pipelines, boarded the vessel to confer with the SEA LEVEL II’s captain, Gerald Turner, about the location of the various pipelines. Turner then set out the SEA LEVEL II’s four anchors in the vicinity of the platform without incident. It was later decided that the vessel should be repositioned. On the morning of July 3, 1983, McCormick boarded the SEA LEVEL II in order to discuss the repositioning of the vessel. Representatives from both TETCO and Sea-Con were also present. Turner advised McCormick and the other representatives that the vessel had to be repositioned in such a way that one of the vessel’s anchors would cross one of Marathon’s pipelines. Turner asked McCormick to verify the position of one of the buoys, which he estimated was 400 feet away from the SEA LEVEL II. McCormick advised against dropping the anchor so close to the pipeline, since it was Ocean-onics’ policy, for safety purposes, to maintain a distance of at least 1,000 feet between a pipeline and an anchor when the anchor line crossed the pipeline. Despite McCormick’s advice and Turner’s own concern regarding the placement of the anchor, Turner decided to position the anchor across the pipeline at this location. Shortly after the anchors were set, work ceased on the construction project and the SEA LEVEL II was ordered to return to shore for supplies. Turner ordered the retrieval of the four anchors. The crew raised three of the anchors routinely, but could not retrieve the fourth which had been dropped across Marathon’s pipeline. After much speculation as to what was causing the problem and several unsuccessful attempts to winch the anchor aboard, the anchor cable was cut. On July 20, 1983, Marathon commissioned a sidescan sonar of the seabed in the vicinity of the lost anchor. The sidescan sonar confirmed that the anchor was lodged in Marathon’s pipeline and further indicated that 400 feet of the pipeline had been displaced from its trench to a maximum distance of 25 feet. On August 9, 1983, Marathon sent a diver down to inspect the damaged portion of the pipeline and to conduct ultrasonic testing at various locations along the displaced portion. During the course of this inspection, the diver found damage to the protective coating of the pipeline. The diver further reported finding two “flat spots” along the displaced portion of the pipeline. Finally, on August 16, 1985, Marathon retained Brown and Root, a survey firm, to perform a stress analysis on the pipeline with respect to its relocation and displacement. As a result of its analysis, Brown and Root concluded that the pipe had exceeded its yield strength during the movement. Brown and Root verbally recommended that some 60 feet of the pipeline be replaced. Based in large part on this report, Marathon decided to replace rather than repair the damaged pipeline. It further decided to replace the entire 400-foot section of the pipeline displaced by the anchor rather than replace only the 60-foot portion and incur the additional expense of repairing the coating damage along the remaining portion. The district court found that defendants TETCO and Sea-Con were not liable for the damage to the pipeline and that Oceanonics was not responsible for Marathon’s damages. It found that Oceanonics was hired only to locate and mark the pipelines, not to place the SEA LEVEL II’s anchors. The court reasoned that if Oceanonics had to place the anchors, the cost would have been greater, more sophisticated equipment would have been used, and Oceanon-ics would have taken control of the vessel and given the order where to position the anchors. The court noted that Captain Turner gave the order to drop the anchor based on his own decision, and found that any advice on McCormick’s part with respect to the proper positioning of the anchors was gratuitous. In addition, the court observed that McCormick expressed his disapproval of the planned anchoring operation. With respect to the amount of damages, the district court found Marathon’s decision to replace the entire 400-foot segment of the pipeline to be reasonable under the circumstances. The court thus awarded Marathon the total amount it had expended in replacing the damaged segment, which was $530,607.67. The court also awarded prejudgment interest from the date of the casualty. Sea Level and C.S.I. appeal the judgment with respect to both liability and damages. II. Cross-Claims Against Oceanonics Sea Level and C.S.I. raise a variety of issues in their attack on the district court’s holding that Oceanonics was not responsible for the pipeline damage. They contend that the court erred in characterizing McCormick’s advice on the positioning of the SEA LEVEL II’s anchors as “gratuitous.” They assert that Oceanonics’ activities with respect to the anchor placement were subject to the provisions of the TET-CO/Oceanonics contract. They argue that, since the activities were within the scope of the contract, the contract obligated Ocean-onics to indemnify Sea Level and C.S.I., as subcontractors of TETCO, for all accidents including property damage “occurring in connection with, arising out of, or in any wise incident or related to” Oceanonics’ services under the contract. Sea Level and C.S.I. interpret this indemnification language as broad enough to obligate Ocean-onics to indemnify them even if McCormick’s assistance in placing the anchors was properly characterized as gratuitous and not directly required by the contract. Sea Level and C.S.I. also contend that Oceanonics breached its contractual warranty to perform its services in a workmanlike manner and that the court erred by failing to consider this issue. Similarly, they claim the court erred by not making material findings with respect to whether Oceanonics breached its contractual duty to “maintain” the buoys in an accurate position and whether, assuming McCormick’s advice was gratuitous, McCormick failed to render such advice with reasonable care. A. The district court found that it was the duty of Captain Turner to position the anchors and that Oceanonics was not contracted to place the anchors. The court found that Turner was negligent in performing his duty — that he knew or should have known of the risks involved in placing one of his anchors across Marathon’s pipeline. It was Turner’s negligence that caused the damage. This was the basis for imposing liability on Sea Level and C.S.I. On appeal the findings of the district court are not to be set aside unless clearly erroneous. Fed.R.Civ.P. 52(a); Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982); McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954); Williams v. Reading & Bates Drilling Co., 750 F.2d 487, 489 (5th Cir.1985). The court’s finding that Turner was negligent and that this negligence was the sole cause of the pipeline damage finds much support in the record and is not clearly erroneous. Oceanonics’ contract with TETCO contains a warranty that services under the contract will be done in a workmanlike manner. Sea Level and C.S.I. argue that the district court failed to consider whether Oceanonics breached this warranty of workmanlike performance. The problem for this contention is that the district court correctly found that Oceanonics did not undertake any services that caused the damage here. The sole basis for liability was Turner’s negligent decision to position the anchor across the pipeline. Implicitly, the district court found that any alleged breach of Oceanonics’ warranty of workmanlike performance could not have caused the pipeline damage. This finding is not clearly erroneous. Sea Level and C.S.I. next argue that Oceanonics was contractually obligated to maintain the buoys in an accurate position. They assert that the court misinterpreted Oceanonics’ duty under the contract to maintain the buoys when it stated that Oceanonics was hired by TETCO “to simply locate and mark the pipelines in the vicinity.” Because the court did not recognize this contractual duty, they contend, the court made no factual finding as to Ocean-onics’ alleged failure to maintain the markers in an accurate position. Oceanonics counters that there was no evidence presented at trial to show that Oceanonics failed to maintain the buoys accurately. Sea Level and C.S.I. respond that Turner dropped the anchor 400 feet away from a buoy and that the anchor latched onto the pipeline. They assert that this occurrence by itself is sufficient to show that the marker was either misplaced or inaccurately maintained. Sea Level and C.S.I. once again ignore the express holding of the district court that Turner’s negligence caused the damage to the pipeline. Even if the buoy markers were not accurate, Turner knew or should have known of the risks involved in placing the anchor across Marathon’s pipeline. The court’s finding that McCormick advised against placing the anchor across the pipeline and that he recommended it be placed at least 1000 feet away from the line supports the court’s finding of fault. Turner took the risk of not insisting upon a clearance greater than 400 feet, and this negligent decision to place the anchor across the pipeline with an insufficient clearance caused the pipeline damage. The court’s finding of causation is not clearly erroneous and is controlling. Finally, Sea Level and C.S.I. argue that the court failed to address the issue whether McCormick exercised reasonable care when he gratuitously assisted in the anchor placement. This issue also becomes immaterial when viewed in the context of the court’s conclusion that Turner’s negligent decision caused the damage. It is irrelevant whether McCormick’s gratuitous advice was rendered with reasonable care, because, even if his advice was not reasonable, it did not cause the accident. The court, by holding Sea Level and C.S.I. solely liable, implicitly found contrary to their interests with respect to these claimed omissions of material findings. The various codefendants raised many factual issues at trial. By imposing liability on one party (Sea Level and C.S.I.) the court necessarily and by implication found that Oceanonics did not cause or contribute to the mishap. Sea Level and C.S.I. cite Ionmar Compania Naviera v. Olin Corp., 666 F.2d 897 (5th Cir.1982), in which this court remanded the case because the district court failed to make material findings. We recognized, however, that a district court sitting without a jury is not required “to state its findings of fact at great length and in detail; rather, it [is only] required ... to state them with sufficient detail to indicate the factual basis for its ultimate conclusions of law.” Id. at 903. See also Fed.R.Civ.P. 52(a). The district court, as the finder of fact, cannot be expected to address in its written opinion all conceivable factual issues. Clearly no express findings are required as to issues which are necessarily disposed of by the rulings made. B. Sea Level and C.S.I. cite language in the contract obligating Oceanonics to “perform all work requested by” TETCO. To define requested work, they refer to a provision of the contract obligating Oceanonics to furnish labor and supplies among other items “for offshore pipeline location survey services, as required for” the overall construction project on the pipeline. These services further include “the correct placement of the marker buoys and maintenance of such buoys.” The contract, however, makes no mention of a duty to assist the primary contractor or subcontractors in positioning the anchors of vessels. In the absence of any express or implied undertaking, we refuse to read Oceanonics’ obligations as including a duty to assist in placing the SEA LEVEL II’s anchors. The court did not err in characterizing McCormick’s advice as gratuitous. Sea Level and C.S.I. nevertheless assert that, assuming the services performed by Oceanonics in connection to the anchor placement were not required by the TET-CO/Oceanonics contract, Oceanonics is still contractually obligated to indemnify Sea Level and C.S.I. as subcontractors of TET-CO for the pipeline damage. Sea Level and C.S.I. refer to the following contract provision: When any part of the work is to be performed offshore or from boats or barges, Contractor [Oceanonics] agrees to protect, defend, indemnify and save Company [TETCO] and Primary Contractor and any contractor or subcontractor of either of said parties performing work in connection with the work described in this Contract, harmless from and against all claims, demands, damages, losses, expenses, costs, liabilities, injuries, and causes of action of every kind and character arising in favor of any person or persons, including without limitation employees and agents of Contractor, Company, Primary Contractor, or said contractors or subcontractors, or the families of any such employees or agents, by reason of death or personal injury to persons or damage to or loss of property occurring in connection with, arising out of, or in any wise incident or related to Contractor’s performing services and operations under this Contract, regardless of whether earned by negligence of Company, and/or Primary Contractor, and/or contractors or subcontractors of either of said parties; and Contractor shall defend any and all actions based thereon at Contractor’s sole cost and expense and shall pay all costs, attorney’s fees, and other expenses arising therefrom. Sea Level and C.S.I. urge that the damage to Marathon’s pipeline occurred in connection with, arose out of, or was related or incident to services performed by Oceanon-ics under its contract with TETCO. Sea Level and C.S.I. submit that this court has interpreted similar clauses in maritime contracts to encompass a wide range of activities related to an indemnitor’s contractual services. See, e.g., Fontenot v. Mesa Petroleum Co., 791 F.2d 1207 (5th Cir.1986); Hicks v. Ocean Drilling & Exploration Co., 512 F.2d 817 (5th Cir.1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 639 (1976). They also stress that this duty to indemnify is not dependent on whether Oceanonics caused the damage. The district court correctly reasoned that, since Oceanonics did not contract to place SEA LEVEL II’s anchors, the above quoted indemnity provision created no obligation on Oceanonics’ part to indemnify Sea Level and C.S.I. Indemnity is not owed merely because the latter were negligent subcontractors of TETCO. Sea Level and C.S.I. urge that precedents in this Circuit support a broad construction of “occurring in connection with” language in indemnity provisions. See, e.g., Fonte-not, 791 F.2d at 1214. They compare the facts of this case with facts of other cases which typically have obligated the indemnifying party to pay an indemnitee for its liability arising from an incident not caused by the indemnitor. This view of the contract, however, would have us read the “occurring in connection with” language to cover a limitless number of unforeseeable casualties that might have occurred during the pendency of the construction work on TETCO’s pipeline. The contract language in question, while broad, cannot be read in a vacuum to apply to any situation for which a colorable argument could be made that loss of property was somehow related to Oceanonics’ services under the contract. We decline to characterize the damage to Marathon’s property as “occurring in connection with, arising out of, or in anywise incident or related to [Oceanonics’] performing services under” the TET-CO/Oceanonics contract in the absence of any indication that TETCO sought and Oceanonics agreed to such an unusual undertaking. This court has refused to extend the reach of an indemnity provision beyond the intent of the parties to the agreement where the undertaking urged would create “an unusual and suprising obligation.” Corbitt v. Diamond M. Drilling Co., 654 F.2d 329, 333 (5th Cir.1981). The language used makes it plain that TETCO intended to draft the indemnity provision to cover all conceivable situations in which it might incur liability. The limit of that potential liability, however, was accidents that might occur during Oceanon-ics’ performance of contract services. TETCO could have no interest in requiring Oceanonics to protect other subcontractors from their own negligence when that negligence was independent of the performance of Oceanonics’ contract. This view of the TETCO/Oceanonics indemnity provision finds additional support in the record. Sea Level and C.S.I. have consistently maintained throughout this litigation that Oceanonics was at least partially responsible for the pipeline damage. Their argument before the district court that the indemnity provision applied was predicated on Oceanonics’ alleged breach of a contractual duty or a duty to exercise reasonable care. That court found otherwise. On appeal, Sea Level and C.S.I. continue to predicate Oceanonics’ duty to indemnify on Oceanonics’ involvement in a joint effort to change TETCO’s protective system guarding its natural gas pipeline. The district court’s finding, which we affirm, that Oceanonics’ involvement in such an effort — marking all pipelines — did not cause the accident and did not contribute to Turner’s decision to drop the anchor across Marathon’s pipeline also ends the viability of this position. III. Claims Against Marathon Sea Level and C.S.I. contest the amount of damages claimed by Marathon and awarded by the district court. They assert that Marathon’s decision to replace the entire 400-foot section of the pipeline was not reasonable. Sea Level and C.S.I. also argue that an award of prejudgment interest from the date of the casualty was inappropriate since the damaged pipeline was kept in full production from the date of the accident until repairs commenced. A. Sea Level and C.S.I. contend that Marathon did not act reasonably in replacing the 400-foot section of the pipeline. They argue that Marathon did not mitigate its damages, expending four times the amount necessary to return the property to its pre-accident form. They further assert that Marathon conducted a “secret survey” of the damaged pipeline and denied them the opportunity to inspect the property before repairs commenced. They also claim that they were denied the opportunity to analyze the tests and surveys and to conduct further tests of their own on the damaged pipeline. Had they had such an opportunity, Sea Level and C.S.I. submit, they could have demonstrated inaccuracies and incorrect assumptions in the information relied on by Marathon in replacing the entire 400-foot section. The burden rests with the wrongdoer to show that the victim of tortious conduct failed to mitigate damages. Tennessee Valley Sand & Gravel Co. v. M/V DELTA, 598 F.2d 930, 933 (5th Cir.1979). The tortfeasor must demonstrate (1) that the injured party’s conduct after the accident was unreasonable and (2) that the unreasonable conduct had the consequence of aggravating the harm. Id. In an admiralty action, the district court’s determination of damages, including its consideration of the above criteria, is a factual finding subject to the clearly erroneous standard of review. See Gele v. Wilson, 616 F.2d 146 (5th Cir.1980). The district court first determined that Marathon’s decision to replace the 60-foot portion of displaced pipeline was not unreasonable and did not have the consequence of aggravating the harm. It examined the basis for Marathon’s decision — the diver’s report based on visual inspection and the Brown and Root stress analysis recommending replacement of this portion — and concluded that Marathon’s reliance on these reports was reasonable. The district court recognized two additional bases for Marathon’s decision: (1) Marathon’s reliance on its past experience with two pipelines which had sustained anchor damage and which eventually ruptured; and (2) Marathon could have been found strictly liable for any damages caused by oil pollution resulting from a rupture of a displaced oil pipeline pursuant to federal law. The court further noted that any inaccuracies in the diver’s report or Brown and Root’s analysis would be irrelevant for purposes of determining reasonableness. The district court recognized, for example, that no “flat spots” were found on the replaced section of pipeline after it was inspected on shore. It also noted a flaw in Brown and Root’s stress analysis — the assumption that a single point load deflected the pipeline 25 feet. (The evidence later showed that the anchor slid along the pipeline for a distance of approximately 175 feet before coming to rest at its eventual location.) However, the court found that neither of these inaccuracies were sufficient to render Marathon’s conduct unreasonable. The court then concluded that the decision to replace the entire 400-foot section was reasonable because the evidence showed that this alternative was more economical than replacing only 60 feet of pipe and repairing the coating damage on the remaining portion. Accordingly, Marathon was awarded the entire amount that it had expended in replacing the pipeline section. We find that the district court’s determination of damages had a firm basis in the evidence and is not clearly erroneous. We are not persuaded by the argument urged by Sea Level and C.S.I. that Marathon conducted a “secret survey” which prevented them from bringing alleged inaccuracies in the reports to the attention of Marathon. Sea Level and C.S.I. maintain that Marathon denied them and their underwriters the opportunity to analyze the tests and reports and to conduct tests of their own before repairs. They cite cases in this Circuit which they contend stand for the proposition that when a party conducts a survey of its own and refuses to permit a joint survey courts view the plaintiff’s eventual damage claims with suspicion. See e.g., Florida East Coast Railway Co. v. Revilo Corp., 637 F.2d 1060, 1067 (5th Cir.1981); Delta Marine Drilling Co. v. M/V BAROID RANGER, 454 F.2d 128, 130 (5th Cir.1972). The facts in the case at bar do not support such a claim. Opposing the contention of Sea Level and C.S.I. that Marathon prevented their having input in the decisions regarding repairs is the evidence showing that neither Sea Level and C.S.I. nor its underwriters requested a joint survey or other means of examination until after all Marathon’s inspections of the damaged pipeline were completed. The district court considered this conflicting evidence' and concluded that Marathon’s conduct was not unreasonable. This finding is supported by the record and is not clearly erroneous. B. Sea Level and C.S.I. challenge the district court’s award of prejudgment interest. They argue that interest should not have been awarded from the date of the mishap, since Marathon operated the damaged pipeline with no reduction in pressure for two months after the accident. The pipeline section was then replaced during a shutdown, which was scheduled by Marathon before the accident occurred. The award of prejudgment interest in an admiralty action is committed to the sound discretion of the district court. Curry v. Fluor Drilling Services, Inc., 715 F.2d 893, 896 (5th Cir.1983). Sea Level and C.S.I. concede that interest will usually be awarded in this Circuit from the date of the incident. King Fisher Marine Service, Inc. v. NP SUNBONNET, 724 F.2d 1181, 1187 (5th Cir.1984); American Zinc Co. v. Foster, 441 F.2d 1100 (5th Cir.1971), cert. denied, 404 U.S. 855, 92 S.Ct. 99, 30 L.Ed.2d 95. They nevertheless urge the rule be changed to disallow interest where the accident results in a loss that is less than total and allow interest only from the date that the injured party pays for the repairs. See THE HYGRADE NO. 24, Inc. v. THE DYNAMIC, 233 F.2d 444 (2d Cir.1956). We are bound by the law of this Circuit. Furthermore, we are not persuaded that this case is so unusual that we should recognize an exception to the rule. Sea Level and C.S.I. suggest that prejudgment interest from the date of the casualty will somehow put Marathon in a better position than it would have been in had the accident not occurred, because it did not incur any expense until two months afterwards. This is simply not the case. Marathon incurred a variety of post-accident/pre-repair expenses related to the investigation of the damage. In addition, had Marathon been forced to defer production from the date of the mishap until repairs were feasible, it could have sued the defendants for additional damages due to deferred production losses. By waiting until the scheduled shutdown to commence repairs, Marathon may have minimized the amount of damages. The award of prejudgment interest in this case was well within the discretion of the district court. IV. Summary The damage to Marathon’s pipeline was caused by Captain Turner’s negligent decision to position the anchor across the pipeline. It was not related to Oceanonics’ services under its contract with TETCO. Oceanonics was not obligated to indemnify Sea Level and C.S.I. for their own independent negligence. The district court properly interpreted the TETCO/Oceanonics contract as not requiring Oceanonics to assist in positioning the SEA LEVEL II’s anchors and the court thus did not err in characterizing McCormick’s advice with respect to the anchor placement as gratuitous. The district court did not err in failing to make findings as to Oceanonics’ alleged breach of its warranty of workmanlike performance, its contractual duty to maintain the marker buoys, or McCormick’s duty to exercise reasonable care when acting gratuitously. Finally, the court’s determination of damages is not clearly erroneous and its award of prejudgment interest was not an abuse of discretion. AFFIRMED. . Emphasis added. . See, e.g., Hicks, 512 F.2d 817; Day v. Ocean Drilling and Exploration Co., 353 F.Supp. 1350 (E.D.La.1973); Todd v. James E. Dean Marine Divers, Inc., 325 F.Supp. 18 (E.D.La.1971), aff’d, 453 F.2d 1313 (5th Cir.1972) (per curiam). 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_typeiss	A	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. Leroy HAITH, Appellant, v. UNITED STATES of America. No. 14658. United States Court of Appeals Third Circuit. Submitted Jan. 23, 1964. Decided April 9, 1964. Leroy Haith, pro se. Drew J. T. O’Keefe, U. S. Atty., and Francis R. Crumlish, Asst. U. S. Atty., Philadelphia, Pa., for appellee. Before BIGGS, Chief Judge, and FORMAN and GANEY, Circuit Judges. BIGGS, Chief Judge. Section 2255 of Title 28 U.S.C., provides inter alia: “The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” (Emphasis added.) It was, we believe, the weight of authority prior to the decision of the Supreme Court in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), that in determining whether or not a second application or succeeding applications for relief under Section 2255 should be entertained by the sentencing court and pertinent matters contained therein should be passed upon and adjudicated, the test to be applied was whether the matters contained in the second application or any succeeding applications could have been raised by the prisoner in his original application. See Barrett v. Hunter, 180 F.2d 510, 20 A.L.R.2d 965 (10 Cir. 1950), and Hallowed v. United States, 197 F.2d 926 (5 Cir. 1952). The court below decided the instant case on the following basis: “We have made an exhaustive study of the grounds alleged in the prior motion which are numerous and have compared them with the allegations contained in the second [instant] motion. We find that the new grounds are at a variance from the matters considered in the first motion. However, we also find that all of the grounds alleged in the second application for relief existed and were known to the petitioner at the time he filed his first motion on October 29, 1962.” The court went on to conclude that Haith was abusing the processes of law made available to him by Section 2255 in that it appeared to the court below that none of the new grounds, those alleged in the second application, “relate [d] to matters outside of the records and files involved in this case.” But since the decision in San-, dei's we believe that the test stated is no longer the applicable legal principle. Mr. Justice Brennan said in Sanders 373 U.S. 17-19, 83 S.Ct. 1078, 10 L.Ed.2d 148:1 “No matter how many prior applications for federal collateral relief a prisoner has'made, the principle elaborated in Subpart A supra {see text as cited], cannot apply if a different ground is presented by the new application. So too, it cannot apply if the same ground was earlier presented but not adjudicated on the merits. In either case, full consideration of the merits of the new application can be avoided only if there has been an abuse of the writ or motion remedy; and this the Government has the burden of pleading. See p. 11, supra [83 S.Ct. p. 1075]. “To say that it is open to the respondent to show that a second or successive application is abusive is simply to recognize that ‘habeas corpus has traditionally been regarded as governed by equitable principles. United States ex rel. Smith v. Baldi, 344 U.S. 561, 573 [73 S.Ct. 391, 397, 97 L.Ed. 549] (dissenting opinion). Among them is the principle that a suitor’s conduct in relation to the matter at hand may disentitle him to the relief he seeks. Narrowly circumscribed, in conformity to the historical role of the writ of habeas cox-pus as axx effective and imperative remedy for detentions contrary to fundamental law, the px-inciple is unexceptionable.’ Fay v. Noia, supra, 372 U.S. [391], at 438 [83 S.Ct. 822, at 848, 9 L.Ed.2d 837]. Thus, for example, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. The same may be true if, as in Wong Doo [Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999], the prisoner deliberately abandons one of his grounds at the first hearing. Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or entertain collateral proceedings whose only purpose is to vex, harass, or delay. • “We need not pause over the test governing whether a second or successive application may be deemed an abuse by the prisoner of the writ or motion remedy. The Court’s recent opinions in Fay v. Noia, supra [372 U.S.], at 438-440 [83 S.Ct., at 848, 849, 9 L.Ed.2d 837], and Townsend v. Sain, supra [372 U.S. 293], at 317 [83 S.Ct. 745, at 760, 9 L.Ed.2d 770], deal at length with the circumstances under which a prisoner may be foreclosed from federal collateral relief. The principles developed in those decisions govern equally here. “A final qualification, applicable to both A and B of the foregoing discussion, is in order. The principles governing both justifications for denial of a hearing on a successive application are addressed to the sound discretion of the federal trial judges. Theirs is the major responsibility for the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits. Even as to such an application, the federal judge clearly has the power — and, if the ends of justice demand, the duty — to reach the merits. Cf. Townsend v. Sain, supra [372 U.S.] at 312, 318 [83 S.Ct., at 293, 9 L.Ed.2d 770]. We are confident that this power will be soundly applied.” We need concern ourselves with only one of the five new grounds for relief alleged by Haith in his second application, the others being adequately covered by the opinion and decision of the trial judge. The ground referred to is contained in the allegation that a judge was not present when the jury which tried Haith was selected. We are concerned with that ground because of the words used by Mr. Justice Brennan in the last paragraph quoted above from the Sanders opinion. We conclude that this allegation is of such fundamental importance as to require the court below to inquire into its merits to the end that justice may be served. See and compare Heflin v. United States, 125 F.2d 700 (5 Cir. 1942) and United States v. Sams, 219 F.Supp. 164 (W.D.Pa.1963). We, of course, cannot reach such an issue on the present record and therefore we express no opinion as to its disposition. Accordingly the order appealed from will be vacated and the case will be remanded with the direction to proceed as required by this opinion. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
songer_direct2	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 federal power in federalism cases; "not ascertained" for conflict between states; for attorney; for the validity of challenged selective service regulation; or for the government interest in dispute with someone attempting to resist induction; for the authority of the challenged official in challenge to magistrates or referees; for defendant in Indian law - criminal; for the claim of the Indian or tribal rights in Indian law; for federal or state authority in Indian law vs state and federal authority; for interest of US or US firms when opposed by foreign firms or government; for US government if opposed to either US or foreign business in international law; for government regulation in immigration 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. John ROCKBRIDGE and Henry Zah, Individually and On Behalf of All Others Similarly Situated, Plaintiffs and Appellants, v. Anthony LINCOLN, Area Director, Bureau of Indian Affairs, et al., Defendants and Appellees. No. 25437. United States Court of Appeals, Ninth Circuit. Sept. 1, 1971. Donald Juneau (argued), Theodore R. Mitchell, Window Rock, Ariz., for appellants. George R. Hyde (argued), S. Billingsley Hill, Dept. of Justice; Shiro Kashiwa, Asst. Atty. Gen., Land & Nat. Resources Div., Washington, D. C.; Richard K. Burke, U. S. Atty., Michael Lasher, Asst. U. S. Atty., Phoenix, Ariz., for appellees. Before MERRILL and ELY, Circuit Judges, and FERGUSON, District Judge. Honorable Warren J. Ferguson, United States District Judge, Central District of California, sitting by designation. FERGUSON, District Judge: The question presented is whether a system of unregulated trading post monopolies allegedly imposed upon the Navajo Indians by governmental officials can be challenged in court. The district court held that it lacks jurisdiction. We reverse. This appeal, pursuant to 28 U.S.C. § 1291, is from a judgment dismissing appellants’ action to require the Secretary of the Interior, the Commissioner of Indian Affairs, and the Area Director of the Navajo Indian Reservation to adopt and enforce certain rules and regulations governing traders doing business on the Navajo Indian Reservation. The appellants filed their complaint as a class action on their own behalf and on behalf of all Navajo Indians residing on the reservation. Appellants claim that a duty to adopt and enforce such regulations arises out of 25 U.S.C. §§ 261 and 262. The appel-lees contend that the sections grant them such discretion within the meaning of the Administrative Procedure Act (5 U.S.C. § 701 et seq.) as to preclude litigation. These sections provide as follows: “§ 261. Power to appoint traders with Indians “The Commissioner of Indian Affairs shall have the sole power and authority to appoint traders to the Indian tribes and to make such rules and regulations as he may deem just and proper specifying the kind and quantity of goods and the prices at which such goods shall be sold to the Indians.” “§ 262. Persons permitted to trade with Indians “Any person desiring to trade with the Indians on any Indian reservation shall, upon establishing the fact, to the satisfaction of the Commissioner of Indian Affairs, that he is a proper person to engage in such trade, be permitted to do so under such rules and regulations as the Commissioner of Indian Affairs may prescribe for the protection of said Indians.” By their motion to dismiss, the appel-lees concede for the purpose of this appeal the truthfulness of the allegations set forth in the complaint. Delesdernier v. O’Rourke & Warren Company, 305 F. 2d 929 (5th Cir. 1962). In summary, these allegations are: 1. The Navajo Reservation is approximately the size of West Virginia, and is occupied by 120,000 Navajos. 2. No one is allowed to conduct business on the reservation without the approval of the Commissioner of Indian Affairs. There are now approximately 100 traders, whose total gross receipts during the past six years averaged 14.5 million dollars per year. 3. Family income for the Navajos averages $1,500 per year. The effective unemployment rate is nearly 80%. 4. The trading post is the only area outlet for groceries and supplies. It is the only local buyer for livestock, wool and other Navajo products. It has the only telephone, gasoline pump and post office and is the only local source of credit by loans, pawns and open accounts. 5. The trader dominates the relationship between the Navajos and those outside the reservation to his own economic advantage. The trader frequently acts as liaison between state welfare agencies and the Navajo applicants and withholds proceeds of welfare checks or other checks sent to them until their loans are paid. 6. The United States Railroad Retirement Board employs traders to act as special claims agents. In this capacity, the trader disperses one of the few sources of wage income on the reservation. He is able to, and often does, favor the employment of those Navajos who have credit accounts owing to him. 7. Because of the licensing procedures of the Commissioner, each trader has an effective geographical monopoly of Navajo consumers and resources in his trading area, which works to the benefit of the trader and against the Navajos. 8. It is not possible for the Navajos to trade outside the reservation because the vast majority of roadways are unpaved and in winter months and during spring and fall rains, transportation is difficult to impossible. 9. The traders have a legal monopoly, since they have a captive market and need not worry about competition. They are not subject to the controls of the free enterprise system. 10. The unregulated trading post system permits the trader to exact unduly high prices for his goods; to sell inferior products; to.charge any rate of interest; and to use dishonest weights and' measures. The system permits the trader economically to manipulate the Navajo. 11. While the Commissioner leaves traders on the Navajo, Hopi and Zuni Reservations free from price regulation, he subjects traders on other Indian Reservations to price controls. 12. The Commissioner has issued a few regulations concerning relatively unimportant features of the trading post operation, such as, the issuance of pawn receipts, with no regulation of interest rates. He requires that prices be plainly marked, but places no restraint on prices, and he has provided no means whatsoever to enforce even the few regulations which have been adopted. The appellants seek orders which would (1) require the appellees to adopt adequate rules and regulations which govern traders on the reservation for the protection of the Navajos, including specification of “the kind and quantity of goods and the prices at which such goods shall be sold”; and (2) require appellees to enforce those regulations and the regulations which are now in effect. Appellants allege jurisdiction under a variety of statutes, treaties and constitutional provisions. They are 25 U.S.C. §§ 261-264; Article 1, Sec. 8, clause 3 of the Constitution; the Fifth Amendment; Treaty of 1849 between the Navajo Tribe and the United States (9 Stat. 974); Navajo Treaty of 1868 (15 Stat. 667); the Administrative Procedure Act, 5 U.S. C. § 701 et seq.; 28 U.S.C. § 1331, involving a federal question and $10,000; 28 U.S.C. § 1361, the Mandamus Statute; and 28 U.S.C. § 1651, the All Writs Statute. The district court granted the appel-lees’ motion to dismiss holding that the Administrative Procedure Act (5 U.S.C. § 701 et seq.) did not confer jurisdiction on the court. The court reasoned that 25 U.S.C. §§ 261 and 262 are purely discretionary and therefore specifically exempted from the Act. The district court further held that the Mandamus Statute (28 U.S.C. § 1361) was likewise inapplicable, and that since the appellees had not “acted” in violation of their statutory powers, the doctrine of sovereign immunity is a bar to the action. We hold that the district court has jurisdiction under the Administrative Procedure Act, and that the doctrine of sovereign immunity is not a bar to this action. Section 702 of the Administrative Procedure Act (5 U.S.C. § 702) provides that “[a] person suffering legal wrong because of agency action * * * is entitled to judicial review thereof”. Section 703 sets forth that “[t]he form of proceeding for judicial review is * * * any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction. * * * ” Section 706 (1) directs the reviewing court to “compel agency action unlawfully withheld”. The Act has been interpreted to permit the relief sought. Mollohan v. Gray, 413 F.2d 349 (9th Cir. 1969); United States v. Walker, 409 F.2d 477 (9th Cir. 1969) ; Adams v. Witmer, 271 F.2d 29 (9th Cir. 1959). Appellees contend, however, that this is a case within 5 U.S.C. § 701(a) (2) , which provides that the Act is not applicable when “agency action is committed to agency discretion by law”. Whether agency action is “committed to agency discretion” depends upon whether Congress has manifested in the statutes governing the agency action in question an intent to cut off review. See 4 Davis, Administrative Law Treatise § 28.16; Jaffe, Judicial Control of Administrative Action 374-75 (1965). A permissive statutory term, like “as he may deem just and proper”, 25 U.S.C. § 261, is not by itself to be read as a congressional command precluding judicial review. The question is whether nonreviewability can fairly be inferred from the over-all statutory scheme. Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970). In order to properly determine whether inaction is “ * * * committed to [the Commissioner’s] discretion” by Sections 261 and 262, it is thus necessary first to focus upon the legal relationship between the United States and the Indians. In Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831), Chief Justice Marshall set forth that relationship. “[The Indians] are in a state of pupilage; their relationship to the United States resembles that of a ward to his guardian.” 30 U.S. at 17. In United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886), the duty of the government was defined. “From their [the Indians’] very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power.” 118 U.S. at 384, 6 S.Ct. at 1114. See also Choctaw Nation v. United States, 119 U.S. 1, 75 S.Ct. 75, 30 L.Ed. 306 (1886). In Seminole Nation v. United States, 316 U.S. 286, 62 S.Ct. 1049, 96 L.Ed. 561 (1942), the Court stated: “In carrying out its treaty obligations with the Indian tribes, the Government is something more than a mere contracting party. Under a humane and self imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, is has charged itself with moral obligations of the highest responsibility and trust. Its conduct, as disclosed in the acts of those who represent it in dealings with the Indians, should therefore be judged by the most exacting fiduciary standards.” 316 U.S. 296-297, 62 S.Ct. 1054. More recently, in Warren Trading Post Co. v. Arizona Tax Comm’n, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965), the Court held that Congress has so broadly occupied the field of trading with Indians on reservations that no room remained for state laws imposing additional burdens on traders. The lengthy debate in Congress in 1876 which preceded the passage of Section 261 centered around two basic issues: (1) Whether the Interior Department or the War Department ought to have control over trading posts on Indian Reservations, and (2) what could be done to protect the Indians from exploitation by unethical traders. 4 Cong.Rec. (44th Cong. June 20, 1876) pp. 3906-3926. The Bureau of Indian Affairs was under the control of the War Department from 1789 to 1849, at which time it was transferred to the Interior Department. During the debates of 1876, approval was sought for an amendment, initially approved in the House, transferring the Bureau of Indian Affairs back to the War Department. A considerable portion of the debate on this suggestion centered around the abuses visited upon the Indians by traders during the period of time when the War Department previously had control. The comments of Senator Logan regarding those abuses are set forth in Appendix A. In discussing a related amendment regarding the issuance of trading licenses by the Commissioner, which was subsequently agreed to and became a part of the Bill, Congressman Magninis set forth in explicit detail the injustices which had occurred as the result of unregulated monopolies in the Indian trading post system. His statement, in part, is set forth in Appendix B. Shortly after the statements of Senator Logan and Congressman Magninis, Congressman Randall submitted the report of the conference committee to the House. It, in part, recommended the adoption of the following: “Sec. 5. And hereafter the Commissioner of Indian Affairs shall have the sole power and authority to appoint traders to the Indian tribes and to make such rules and regulations as he may deem just and proper, specifying the kind and quantity of goods and the prices at which such goods shall be sold to the Indians.” 4 Cong.Rec. (44th Cong. August 11, 1876) p. 5477. As noted earlier, the House previously had voted to transfer the Bureau of Indian Affairs back to the War Department. Section 5 remained unchanged through the subsequent conference committees and ultimately became § 261. When viewed in light of this historical background, the language of § 261 becomes much clearer. When it states that the Commissioner is to have “sole” power to license and regulate traders, it means that he, as opposed to the War Department or some other federal administrative official, has that power. In addition to centering power in the commissioner, Congress acted to prevent the widespread abuses within the existing unregulated trading post system revealed by the debates. There can be no question but that when Congress enacted § 261 it intended that the Commissioner would “specify [ing] the kind and quantity of goods and the prices at which such goods shall be sold to the Indians”. Congress delegated to the Commissioner the task of determining the specific content of these regulations. This does not mean that the Commissioner has unbridled discretion to refuse to regulate, but rather that he shall exercise discretion in deciding what regulations to promulgate and in determining specific quantities, prices and kinds. This conclusion is not only consistent with the clear purpose of Congress, but also demanded by traditional rules of statutory construction. If Congress had intended that the Commissioner’s discretion would be unlimited, then much of the language in § 261— “specifying the kind and quantity of goods and the prices at which such goods shall be sold to the Indians” — would be superfluous. It is a cardinal principle of statutory construction that whenever possible statutes are to be given such effect that no clause, sentence or word is rendered superfluous, void, contradictory or insignificant. Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). Moreover, statutes passed for the benefit of dependent Indian tribes and communities are to be liberally construed in favor of the Indians, and any doubt as to the proper construction is to be resolved in the latter’s favor. Squire v. Capoeman, 351 U.S. 1, 6-7, 76 S.Ct. 611, 100 L.Ed. 883 (1956); Holt v. Commissioner of Internal Revenue, 364 F.2d 38 (8th Cir. 1966), cert. denied, 386 U.S. 931, 87 S.Ct. 952, 17 L.Ed.2d 805 (1967). Section 262 was enacted in 1903, twenty-seven years after section 261. While there is no statutory history to aid in interpreting this section, a careful reading suggests two possible interpretations. First, the provision “under such rules and regulations as the Commissioner of Indian Affairs may prescribe for the protection of said Indians”, may be read as a grant of authority to the Commissioner allowing him to promulgate rules in addition to those already required by § 261, i. e., rules unrelated to the price, quantity or kind of goods sold by the traders. Apparently the Commissioner took this view in acting to regulate the issuance of pawn tickets. Such regulation, while of doubtful propriety under § 261, is clearly authorized by § 262. A second possible interpretation of this provision is that Congress intended to limit the Commissioner’s discretion in rule making to those rules and regulations which are “for the protection of said Indians”. Thus, for instance, he could not act in the trader’s interest, but only for the protection of the Indian. These two interpretations are not in any way inconsistent with each other, and it seems likely that both were intended. However, neither is necessary for the resolution of this case in its present posture. . In sum, the legislative history does not support the contention that the regulations promised under §§ 261, 262 are wholly within the discretion of the Commissioner and thus immune from judicial review. The history demonstrates that the statutes in question were passed with a specific set of legislative objectives in mind and that the lawfulness of the Commissioner’s exercise of discretion — his decisions to regulate or not to regulate in any particular instance, as well as the particular mode of regulation chosen — is to be determined by reference to these objectives. See generally, Citizens to Preserve Overton Park, Inc. et al. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). There the Supreme Court set forth the scope of judicial review under the Administrative Procedure Act as follows: “Scrutiny of the facts does not end, however, with the determination that the Secretary has acted within the scope of his statutory authority. Section 706(2) (A) requires a finding that the actual choice made was not ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ 5 U.S.C. § 706(2) (A) (Supp. V). To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. L. Jaffe, supra, at 182. See McBee v. Bomar, 296 F.2d 235, 237 (CA 6 1961); In re Josephson, 218 F.2d 174, 182 (CA 11954); Western Addition Community Organization v. Weaver, 294 F.Supp. 433 (N.D.Calif.1968). See also Wong Wing Hang v. Immigration & Naturalization Serv., 360 F.2d 715, 719 (CA 2 1966). Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” 401 U.S. at 416, 91 S.Ct. at 823. The Administrative Procedure Act may not, however, provide a basis for review of governmental decisions if the doctrine of sovereign immunity is controlling so as to bar the suit. This court’s position on this issue and a detailed discussion of the relevant Supreme Court decisions was fully set forth in Judge Ely’s opinion in State of Washington v. Udall, 417 F.2d 1310 (9th Cir. 1969). In dismissing the instant action, the district court stated that “[sjince the federal officers have not ‘acted’ in violation of their statutory powers, sovereign immunity is a bar to this suit”. This conclusion can be interpreted in two ways. First, it may be no more than a restatement of the court’s prior conclusion that the appellees were free to act or not to act in their discretion. Alternatively, it might mean that far from acting in excess of their authority, at the very worst the appellees acted well within their authority. In other words, they underacted, rather than overacted. It is traditionally said that a suit is not violative of the doctrine of sovereign immunity if (1) the officer’s powers are limited by statute and he acts in excess of that authority or ultra vires; or (2) the officer was acting unconstitutionally or pursuant to an unconstitutional grant of authority. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-691, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). However, for the purposes of sovereign immunity, this court can see no valid distinction between the public official who has a statutory duty to act and does not and the one who has a duty not to act and does. This was clearly the view of Congress in enacting the Administrative Procedure Act, since it provides that a reviewing court should “compel agency action unlawfully withheld”. 5 U.S.C. § 706(1). Of course, here, as in all other suits to compel actions on the part of federal officials, some suits must be dismissed “even though the officers were not acting pursuant to valid statutory authority, because the relief sought would work an intolerable burden on governmental functions, outweighing any consideration of private harm.” State of Washington v. Udall, supra, 417 F.2d at 1318. Appellants are not seeking money damages from the government, nor are they seeking to assert some right against it or to block a government project. The relief they seek does not in any way affect the sovereign power of the United States. The government is not asked to give up a right, to grant a concession, to dispose of property or to relinquish authority. Appellants merely seek a court order directing certain government officials to perform acts which Congress has already directed those officials to perform — the promulgation and enforcement of certain rules. In light of the legislative history and the remedy sought, it can hardly be argued that the relative equities and burdens in the present case are such that sovereign immunity ought to preclude consideration on the merits. Finally, as stated in State of Washington v. Udall, supra, “[u]nder the foregoing principles, since sovereign immunity did not require dismissal of the complaint in this ease, District Court jurisdiction also existed under the federal question and declaratory judgment statutes, 28 U.S.C. §§ 1331, 2201, and under the mandamus statute, 28 U.S.C. § 1361.” 417 F.2d at 1320. The case is reversed and remanded to the district court, with directions to assume complete jurisdiction over the controversy. In the event that after a trial on the merits the appellants are entitled to relief, the district court has jurisdiction to enter such decrees as will protect the Navajo Indians in their relationship with the traders on the reservation within the guidelines that Congress has prescribed. APPENDIX A Statement of Senator Logan: “Reference has been made to extor-tions and wrongs perpetrated upon the Indians under the present system. That there are errors which need correction I will not deny; but let us refer to some of the prices paid by the Indians for articles under the old regime. “I call the attention of the Senate to a report which I have here, and I have copied it from the papers accompanying the report of 1834, made to the Congress of the United States already referred to. I find that at Fort Leavenworth, within easy reach of the markets, guns which cost in Saint Louis $7 were sold to the Indians for $30 apiece; axes costing thirty-seven and a half cents were turned over to them for $2 apiece. A double handful of salt — for that was the way they measured it then to the Indian — costing sixty-two cents a bushel, was turned over to the Indians for $1. Five and six gallon kettles, costing twenty-five cents per pound, sold for $12 apiece by the War Department to the Indians. On the navigable waters of the Upper Missouri a yard of strouding, costing $1.80, sold for $8; a blanket costing $3 sold for $10; calico costing sixteen cents per yard sold for $1; powder costing thirty cents per pound sold for $1.50; tobacco costing from five to seven cents sold for $1; blue strouding costing eighty cents sold for $9, etc. “If any gentleman disputes this, I have right here the sworn evidence, the bills reported to a committee of Congress in 1834, showing these facts in the face of all the honesty that is attributed to the War Department. I defy any man to show me that such robbery has ever been perpetrated on Indians in this country as was perpetrated, according to this report of 1834, by the War Department on the Indians of this country. It was robbery, sir; it was not fraud; it was open, palpable robbery.” 4 Cong.Ree. (44th Cong. June 20, 1876) p. 3910. APPENDIX B Statement of Congressman Magninis: “Every one in this House and in the country has been humiliated by the exposures made of abuses in this direction during the last few years. They have been painful and humiliating to us all. We have seen injustice done to individuals and the robbery of Indians permitted, whole tracts of country turned over to the domination of speculators and reservations extended over the public lands for private benefit. I say this regardless of the persons to whom these privileges have been granted. So long as these monopolies are to be granted it is no matter to me who enjoys the benefits. My opposition is not directed against individuals, but against the system under which these abuses are possible and under which these special privileges are granted. “The history of American trade with the Indians is not a record that we can be peculiarly proud of. Fraud and avarice have nurtured passions not only between the red and white, but rival traders in time past have marshaled tribe against tribe and originated intertribal wars which have done far more to reduce the Indian to nothingness than all the encroachments and conflicts of the whites. “When our non-intercourse law was adopted, it was intended not to rob but to protect the Indians. It was never intended to be a cover for fraud, nor designed to set up monopolies for the enrichment of traders against the interests of the Indians; but under its provisions, during the subsequent administrations of the Department, monopolies did grow up and strengthen themselves until they became the rule of Indian trade. “In 1865 an effort was made, originated, I believe, by the gentleman from Iowa, [Mr. Kasson,] to cure these abuses, and an amendment was made to an appropriation bill, which is now the second section of the law in the Revised Statutes, which provided that thereafter all loyal citizens who were of good, moral character should be able to obtain upon application, without discrimination in favor of persons, license to trade with the Indians. That law has been evaded in a way which I will explain, and which evasion my amendment is intended to prevent in future. And certainly we ought to try in every way to prevent monopoly of trade on these Indian reservations. I submit that when an Indian is an industrious hunter, and by his industry in the chase and skill in woodcraft and trapping he secures a large quantity of robes, furs, and peltries, he should be allowed to sell them where he can get the most for the product of his toil, and also he should be allowed to purchase where he can get the most for his money. “What would be thought if the Government were to establish such a system of trade in all our villages and give to one or more traders the right to establish the prices at which goods should be sold and the rates which the working-man should receive for the product of his labor ? How long would the people of this country stand it? Why should not the Indians have the benefit of that competition which everywhere is the best regulator of prices ? “And graver evils have resulted from this system. Under its cloak the corrupt rings have been formed, and the chief abuses of the Indian service have occurred behind its convenient cover. It has enabled the corrupt agent to keep every one off the reservation except his confidants and accomplices; and thus under an almost impenetrable cover, and beyond the reach of detection, much of that unholy work has been done which has brought such odium upon the Indian service. It is to this system I object, and the amendment is intended to break up.” 4 Cong. Rec. (44th Cong. June 6,1876) p. 3639. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_procedur	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. LEEBY v. UNITED STATES. No. 14306. United States Court of Appeals Eighth Circuit. Nov. 13, 1951. J. F. X. Conmy, Fargo, N. D. (Francis Murphy, Fargo, N. D., on the brief), for appellant. P. W. Lanier, U. S. Atty., Fargo, N. D. (Joseph A. Struett and Marc A. White, Attorneys, Chief Counsel’s Office, Bureau of Internal Revenue, Chicago, 111., on the brief), for appellee. Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges. GARDNER, Chief Judge. Appellant was convicted on an indictment of three counts, each count charging a violation of Section 145(b), Title 26 U.S. C., in that he wilfully and knowingly attempted to defeat and evade a large part of the income tax due and owing by him to the United States of America by filing and causing to be filed with the Collector of Internal Revenue for the District of North Dakota, a false and fraudulent income tax return. The indictment involves the calendar years 1944, 1945 and 1946. The counts are substantially identical except as to the year covered and the amount of alleged income and income tax involved. During the time here involved defendant operated a grocery store, a bakery and lunch counter and did some catering. For the year 1944 he reported an income of $6,217.62; for the year. 1945 he reported an income of $8,149.00, and for the year 1946 he reported an income of $8,839.00. Government witnesses, based upon an examination of defendant’s books in which his daily sales were recorded, his bank statements, check stubs and statements made to them by the defendant as to his earnings in the catering and bakery department, determined defendant’s income for the year 1944 to be $21,128.89, for the year 1945 to be $27,157.27 and for the year 1946 to be $31,149.95. The total amount of income taxes for the three years as paid by defendant was $4,655.89, whereas the amount due according to the government’s calculation was $31,372.51. From the records, statements, books and other information obtained from statements made by defendant and introduced in evidence, the government witnesses prepared certain exhibits. From the same sources the government witnesses prepared a statement of defendant’s assets for the years 1942 to 1946, inclusive, which was signed by the defendant and is known in the record as Exhibit 58. Based upon the éxhibits so prepared, the government witnesses, who were confessedly expert accountants, prepared a net worth computation and a determination of defendant’s aggregate unreported income for the years involved. Defendant also offered a net worth statement This statement omits from his income an item of $12,000.00 cash which defendant claimed to have saved over a period of twenty years and had refrained from depositing in the bank until May 6, 1946, and certain other sums alleged to have been salvaged from his place of business and stock which had been damaged by fire. The details of these calculations we do not deem important for the reasons hereinafter noted. At the close of the government’s case defendant moved for a judgment of acquittal, which motion was denied and the case submitted to the jury on instructions to which defendant took certain exceptions but which are not here urged as grounds for reversal. In seeking reversal defendant contends: (1) the court erred in admitting evidence as to income and claimed tax deficiency in 1942, 1943 and 1947, and in admitting testimony as to the filing by defendant of nontaxable returns for a period of years prior to the times involved in the indictment; (2) the court erred in overruling objections to the government’s net worth summary and the government’s receipts and disbursements summary on the ground that they were inaccurate and included years not covered by the indictment; (3) the court erred in permitting the government to use the net worth method when the receipts and disbursements method was also used; (4) the court erred in permitting testimony that the defendant had violated O.P.A. regulations and had been fined therefor; (5) the court erred in denying his motion for judgment of acquittal interposed at the close of the government’s case. We shall first refer to the claim of error'in denying defendant’s motion for acquittal interposed at the close of the government’s case. It is observed that after this motion was interposed and denied at the close of the government’s case, defendant offered testimony and himself testified in his own behalf. He did not renew this motion at the close of all the evidence. Defendant was entitled to offer evidence in his defense notwithstanding the fact that he had interposed a motion for acquittal at the close of the government’s testimony but by so doing he waived his objection to the ruling of the court in denying his motion and his right to allege this ruling as error, and defendant not having interposed a motion for judgment of acquittal at the close of all the testimony, we cannot now consider the question of the sufficiency of the evidence to sustain the judgment and sentence of conviction. A careful review of the evidence, however, convinces that if the evidence admitted over defendant’s objection was competent, the evidence was abundantly sufficient to sustain the verdict. The question therefore goes to the competency of the evidence, rather than to its sufficiency. There remains for consideration only the rulings of the court challenged by defendant as to the admissibility of evidence. Over defendant’s objection there was received in evidence testimony with reference to defendant’s income during 1942 and 1943. There was also testimony that defendant filed non-taxable returns for the year 1940 and as far back as the year 1930. As to this testimony the court instructed the jury as follows: “With respect to the years prior to 1944, it is presumed that the defendant has complied with the provisions of the internal revenue laws and has filed a return and paid his income tax in each of those years when he had a net income subject to tax. Evidence that he did not file a tax return for any of those prior years or that he filed a nontaxable return may therefore be considered by you as an admission by him that he did not have a net income in excess of the amounts for which he would have been required by law to have filed an income tax return or paid a tax. In that connection, however, I caution you that the defendant is not charged with having violated the income tax law for any years other than for the three years mentioned in the indictment; namely, 1944, 194S and 1946.” In estimating defendant’s income on the receipts and disbursements basis, or on the net worth basis, the witness considered the question of his income or want of income prior to 1944 and we think the testimony was admissible for that purpose and the court carefully limited it to that purpose. Hanson v. United States, 8 Cir., 186 F.2d 61; Schuermann v. United States, 8 Cir.; 174 F.2d 397; Lisansky v. United States, 4 Cir., 31 F.2d 846, 67 A.L.R. 67; United States v. Skidmore, 7 Cir., 123 F.2d 604, 610. In the Skidmore case the trial court gave an instruction as follows: “With respect to the years prior to 1929, it is presumed that the defendant has complied with the provisions of the Internal Revenue Laws and has filed a return and paid his income ta:i in such of those years when he had a net income subject to tax. Evidence that he did not file a tax return for any of these prior years may therefore be considered by you as an admission by him that he did not have a net income in excess of the amounts for which he would have been required by -law to have filed a tax return.” This instruction was approved by the appellate court. In the instant case the court made it very clear to the jury that the defendant was not charged with having violated the income tax law for any years other than those charged in the indictment. The mere fact that this evidence may have pointed to the laxities or offenses is not important if the evidence was pertinent to the issues involved in the instant case. We think the trial court in its instructions pointed out the basis for the admission of this testimony and the limited purpose for which it should be considered by the jury. It was contended by defendant that he had no intention to evade the income taxes, implying that if there was any violation it was inadvertent. His returns for prior years would have some bearing on the question of his intent and also his credibility in testifying that he had not intended to underestimate his income. In Neff v. United States, 8 Cir., 105 F.2d 688, 692, in considering a somewhat similar contention we said: “Questions as to the admissibility of this class of evidence are within the wise discretion of the trial court and its rulings as to the same should not be interfered with by a reviewing court unless it is clear that the questioned evidence has no connection or bearing upon any of the issues involved in the charge. In view of the facts and circumstances disclosed by the record in this case, and the clear and unambiguous instructions of the trial court as to the limited purpose of the evidence, and restricting its effect solely to the question of intent, in our opinion, there was no abuse of discretion on the part of the trial court in the admission of the challenged testimony.” Certainly in view of what is said by us in Hanson v. United States, supra, there was no abuse of discretion in admitting this testimony. It is next urged that the court erred in overruling defendant’s objection to the government’s use of the net worth summary when it had offered a summary of receipts and disbursements. The government’s calculations were based upon the receipts and disbursements method and it submitted in corroboration the net worth summary. The net worth computations were based upon a balance sheet which the government auditors prepared and which the defendant himself signed. The defendant offered in evidence a summary purporting to show his net worth and this summary corroborated to a considerable extent the summary offered by the government. It differed in that the defendant eliminated certain assets confessedly acquired but claimed by him not properly taxable as income. The testimony offered by him in support of this contention, however, was not conclusive on the jury. Defendant insisted that the government’s exhibits were inaccurate because they did not take into account either bills payable or bills receivable. They were prepared, however, on the cash basis and there is nothing to indicate that defendant had adopted the accrual basis of accounting; in fact, so far as he was guided by any acceptable method of calculating income that method was the cash basis as distinguished from the accrual basis. It must be borne in mind that this was not an action to recover the amount of income taxes alleged to be due, nor an action in which it was necessary to determine the exact amount of defendant’s income for the years in question. On this phase of the case all that it was necessary to show was that there was omitted from the reported income a substantial amount. The calculations here were based upon such records and statements as defendant made available, and as said by the Court of Appeals for the Sixth Circuit in Gariepy v. United States, 189 F.2d 459, 462: “At best- it was, of course, but an estimate, but as an estimate it was entitled to the consideration of the jury because based on substantially the entire evidence in the record.” The accuracy of the government’s computations of income based on the receipts and disbursements method is corroborated by the fact that the amount of income as determined by that method is substantially the same as determined by the government’s net worth calculation. But we are not here dealing with the weight or conclusiveness of the evidence but rather to its admissibility and we think it was competent to permit the government to submit its estimates of income based upon the two methods invoked as the basic facts of both calculations were all before the jury. Hanson v. United States, supra. It is seriously urged that the defendant was prejudiced by the ruling of the court admitting reference to the fact that defendant had been fined for violation of the O.P.A. regulations. When the government’s auditors were checking defendant’s accounts defendant advised that he had had difficulties with the O.P.A. and had been required to deposit a bond of $1,000.00 and that he had to pay certain fines so that there was but $600.00 returned to him. These transactions had to be accounted for in the net worth statement as well as in the receipts and' disbursements statement. In the receipts and disbursements statement the $600.00 was shown as a credit against the total deposits. In the net worth statement the fines paid were set up as an unallowable expense. Defendant’s counsel in cross-examining one of the government’s expert witnesses, brought out the fact that the exhibit prepared by him showed a gross profit in excess of 50 per cent whereas the grocer’s mark-up cost had a range of from 15 to 21 per cent. In this connection we think it was proper to show that the defendant had been charging more than the •ordinary or accepted gross profit on his sales and in that connection the government was permitted to show that the defendant had been selling at a price exceeding the ceiling price. There was no abuse of discretion in admitting this testimony especially in view of the instruction of the court that the defendant was being tried only for the charges contained in the indictment. Harper v. United States, 8 Cir., 143 F.2d 795; Neff v. United States, supra; Diehl v. United States, 8 Cir., 98 F.2d 545, 548. In the last cited case we said: “Even though the evidence complained of was incompetent, its admission, over the objection made to it, would not justify a reversal in this case, where there was an abundance of competent evidence to sustain the verdict of the jury and the trial was in all other respects fair and impartial.” Convinced as we are that the defendant had a fair trial the judgment appealed from is 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_respond2_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 second 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. Terry DREIBELBIS, Appellant v. Ronald J. MARKS, Commissioner of Corrections, G.R. Jeffes, Supt., G. Walters, Deputy Supt., J. Ryan, Deputy Supt., D. Larkins, Director of Treatment, J. Stepanik, Major, R. Kinder, Capt., C. Levan, Lt., E.J. Brannegan, C.O.I., J.R. Dzury, C.O.I., and D. Wilde, C.O.I. (all of the SCI at Dallas, Pa. 18612) No. 84-5016. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) May 14, 1984. Decided Sept. 6, 1984. Rehearing and Rehearing En Banc Denied Sept. 26, 1984. Gibbons, Circuit Judge, filed dissenting opinion. Terry Dreibelbis, pro se. LeRoy S. Zimmerman, Atty. Gen., Francis R. Filipi, Allen C. Warshaw, Deputy Attys. Gen., Harrisburg, Pa., for appellee. Before GIBBONS, GARTH and MARIS, Circuit Judges. OPINION OF THE COURT MARIS, Circuit Judge. This civil action brought under 42 U.S.C. § 1983 by a prisoner at the Dallas, Pennsylvania State Correctional Institution sought declaratory, injunctive, compensatory and punitive relief against the Pennsylvania Commissioner of Corrections and the Superintendent and certain other officers at the Dallas institution by reason of their alleged infringement of his first amendment right to practice his religion. The plaintiff is an ordained minister of a religious faith known as the Church of Prophetic Meditation, one of the tenets of which prohibits members from cutting hair from any part of their bodies. During 1980 the plaintiff received three misconduct reports resulting in loss of privileges, segregated confinement and loss of his prison job. The misconduct alleged was his refusal to obey orders to have his hair cut in compliance with Administrative Directive 807. That directive, which regulated resident grooming, provided: II. MALE HAIR STYLES Hair that does not fall below the top of the collar in length, a beard or goatee no longer than three inches, a mustache and sideburns shall be permitted provided they are neat and clean. III. FEMALE GROOMING A. Any feminine hair style shall be permitted. B. Unless otherwise determined by the Superintendent of the State Correctional Institution at Muncy, hair dyeing and tinting shall be done only by the institutional beautician. C. The use of all cosmetics shall be permitted in good taste. The magistrate to whom the case was referred recommended that it be dismissed as frivolous. The district court adopted the magistrate’s recommendation and dismissed the complaint without service. An . appeal to this court followed. On this first appeal this court, holding that the district court had abused its discretion in treating the complaint as frivolous and that a factual record was required to strike a balance between the two competing interests in the case, reversed the judgment of dismissal and remanded the case for further proceedings. Dreibelbis v. Marks, 675 F.2d 579 (3d Cir.1982). On remand the district court, in compiling a factual record, accepted the plaintiff’s representations that his religious beliefs were sincerely held and required that he never cut his hair or beard. The parties agreed that the plaintiff’s uncut hair and beard violated Directive 807. The defendants moved for summary judgment, submitting supporting affidavits, including an affidavit by the defendant, Commissioner of Corrections Marks, an official with more than twenty years of service in the Pennsylvania correctional system. In his affidavit Commissioner Marks set forth the potential for disruption of prison security which Directive 807 was intended to prevent. The plaintiff opposed the motion for summary judgment for the defendant, filing numerous affidavits of prisoners in the Dallas and other Pennsylvania correctional institutions to the general effect that Directive 807 was not uniformly enforced. He did not, however, offer any affidavits controverting the security dangers referred to by Commissioner Marks in his affidavit. The district court held that the reasons set forth by the defendants for the policy involved in adopting Directive 807 were sufficient concerns which go directly to the general concept of prison regulation and security which legally justified the directive. The court concluded that the affidavits filed by the plaintiff were not relevant to his first amendment argument and that he had not made a selective enforcement claim as to which they conceivably might be relevant. The court, accordingly, entered summary judgment for the defendants. We affirm. It is settled that, while “convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison,” Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979), their right to practice their religion “may be reasonably restricted in order to facilitate the maintenance of proper discipline in the prison,” United States ex rel. Jones v. Rundle, 453 F.2d 147, 149 (3d Cir.1971). However, there has been a wide diversity in the criteria applied by various courts of appeals to determine the constitutional validity of such restrictions. Compare Gallaban v. Hollyfield, 670 F.2d 1345 (4th Cir.1982), and Teterude v. Burns, 522 F.2d 357 (8th Cir.1975), with Rogers v. Scurr, 676 F.2d 1211 (8th Cir.1982), and Brooks v. Wainwright, 428 F.2d 652 (5th Cir.1970). In St. Claire v. Cuyler, 634 F.2d 109 (3d Cir.1980), a case which involved the religious wearing of a kufi or a turban and the attendance at a religious service, this court had occasion to review the cases. We concluded “that the state needs only to produce evidence that to permit the exercise of first amendment rights would create a potential danger to institutional security.” “This evidence,” we said, “may consist of expert testimony from the responsible officials, provided they testify to opinions that are ‘held “sincerely” and [are] arguably correct.’ ... In determining whether the state has met its burden of production, the court must be mindful of the Supreme Court’s instruction [Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119, 133, 97 S.Ct. 2532, 2541, 53 L.Ed.2d 629 (1977)] that restrictions on first amendment rights may be deemed valid when prison officials, in the exercise of their informed discretion, conclude that there is a potential danger to security, even though the same showing might be unimpressive if submitted to justify restrictions upon members of the general public.” Finally we said, “Once the state has met its burden of going forward with the evidence, the courts must defer to the expert judgment of the prison officials unless the prisoner proves by ‘substantial evidence ... that the officials have exaggerated their response’ to security considerations ... or that their beliefs are unreasonable.” 634 F.2d at 114-115 (Supreme Court citations omitted). With these criteria in mind, we turn to the facts of this case. The defendants supported their motion for summary judgment with the affidavit of Pennsylvania Commissioner of Corrections Marks, an officer with more than twenty years of service in the Pennsylvania corrections system. He expressed it as his opinion, based on his many years of experience in the correctional system, that Directive 807 regulating hair and beard length furthered the interests of security and order within the state correctional institutions. It is important, Marks stated, that correctional staff be able to identify inmates to avoid sitúations where altered appearances enable escapes from custody because of mistaken identity. Hair that does not fall below the collar and beards that do not exceed three inches prevent inmates from making a radical change in appearance so as to defy identification. A restriction on long hair and beards prevents concealment of contraband, such as weapons and controlled substances, on the person, thus increasing the security of an institution and limiting the potential for dangerous situations therein. In addition, the hair regulation assists in controlling homosexuality within the correctional institution. And, finally, the Marks’ affidavit stated that inmates in the prison work programs who have long hair and beards would create a dangerous situation for themselves and their coworkers. In the case of food service preparation, sanitation is improved by the restriction on long hair. There is nothing in the record to suggest that these opinions by an expert of many years experience are not sincerely held. They are certainly arguably correct. They, therefore, satisfied the defendant’s burden of proof of validity of the directive and the burden passed to the plaintiff to prove “by substantial evidence that the officials have exaggerated their response to security considerations or that their beliefs are unreasonable.” This he has wholly failed to do, his affidavits merely tending to indicate that the directive was not uniformly enforced at Dallas and other Pennsylvania institutions. But selective enforcement or other forms - of discrimination were not averred in the complaint and were not issues in the case before the district court. Moreover, the affidavits fail to reveal the intentional or purposeful discrimination which would be necessary to support such a . claim. See Flores v. Pierce, 617 F.2d 1386, 1389 (9th Cir.), cert. denied, 449 U.S. 875, 101 S.Ct. 218, 66 L.Ed.2d 96 (1980). Our dissenting brother suggests that the good faith of Commissioner Marks’ opinion may be questioned on two grounds. We do not think that either raises an issue of fact which precludes summary judgment. The first is that a fact finder might reasonably infer that his explanation was pretextual because of the directive’s setting differing standards for men and women prisoners. We think, however, that the distinction is justified in the Pennsylvania system of penal institutions. In Poe v. Werner, 386 F.Supp. 1014 (M.D.Pa.1974), a three-judge court in Pennsylvania held Directive 807 valid against equal protection attack on grounds of sexual discrimination. Judge Sheridan, in the opinion of the court in that case, said: Unlike the prisons in which male inmates are incarcerated, the sole state women’s correctional institution is a minimum security facility which has no strict limitations on permissible items of personal property and no strict regimentation of conduct or personal appearance. It is an open institution where the women inmates live in cottages. The nature of the prison environment at the women’s facility differs significantly from that existing at the men’s penal institutions and hence different regulations are constitutionally permissible. See Wark v. Robbins, 1 Cir.1972, 458 F.2d 1295 (upholding differential penalties for men and women who escape from prison). Furthermore, since men and women differ physically and psychologically, the court believes that prison administrators are free to give differential treatment to male and female inmates based on perceived natural and practical differences. In the instant case the penal authorities could reasonably conclude that the greater aggressiveness and disposition toward violent action frequently displayed by male prisoners makes institutional security, maintenance of internal discipline and prevention of homosexual attacks— penal goals which the hair regulation furthers — a much greater problem in the men’s prisons than in the women’s correctional institution. Likewise the greater importance of personal appearance to women than men largely eliminates any hygienic problems with respect to long hair of female inmates. In short, there is a validating relationship between the varying behavioral patterns of the two sexes with respect to hair length. Thus we do not believe that the gender classification in the instant case is arbitrary; rather it rests on real and substantial differences which bear a just and reasonable relation to the purposes of the regulation. Unlike the men’s prisons, institutional security, contraband, homosexual attacks and internal discipline are not major problems at the women’s institution. 386 F.Supp. at 1020-1021. Judge Sheridan was here discussing the prison system with which we are concerned in the present ease. We are in agreement with his conclusions. We might add that the physiological differences between men and women ordinarily deny the latter the ability to grow beards, mustaches and sideburns, major subjects of the male grooming regulation. This difference is significant with respect to the problem of identification, a subject addressed in Commissioner Marks’ affidavit. The second ground suggested for questioning the good faith of Commissioner Marks’ opinion is that it might be inferred that if security was the purpose behind Directive 807, it would be uniformly enforced and that the numerous instances of nonenforcement disclosed in the plaintiff’s affidavits suggest that the security explanation is a pretext. We cannot agree. As we have said, the affidavits fail to reveal an intentional or purposeful discrimination and, certainly, the inadvertent failure of some prison officials to enforce the directive in every instance in a far-flung prison system can hardly convict the head of the system, the Commissioner of Corrections, of bad faith in stating the basis for the directive. The judgment of the district court will be affirmed. . Directive 807 was superseded on December 13, 1980 by the substantially similar provisions of 37 Pa.Code §§ 93.155 and 93.156. Question: This question concerns the second 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_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. MacGILL v. MacGILL. (Circuit Court of Appeals, Seventh Circuit. May 22, 1925. Rehearing Denied July 16, 1925.) No. 3538. 'I. Divorce <@=316 — Husband held not in position to urge that alimony decree was ever binding on him. Husband having refused for years to pay under alimony decree, because void for nonconformity with Burns’ Ann. St. Ind. 1914, § 1088, cannot later assert that it was ever binding, and that contract made after "decree to pay wife sum named in decree monthly was without consideration, because it amounted only to agreement to do what he was already bound to do by decree. 2. Husband and wife' <@=278(2) — Indiana rule as to legality of alimony agreements stated. , In Indiana, agreements for alimony are void only if made before or pending divorce proceedings, as inducement to procure divorce or not to contest. 3. Divorce <@=316 — Contract to pay wife monthly sum held not without consideration. Contract between husband and 'wife, two days after she obtained decree for alimony of $250 per month, reciting consideration, of the premises and further consideration of $1, hel$ ¡ to preclude presumption that obligation to pay under decree was only consideration for contract; waiver of wife’s right to appeal and to ask for modification of decree, which was in fact void, being good consideration. In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.’ Suit by Frances G. MaeGill against Robert A. MaeGill. To review an order dismissing the suit, plaintiff brings error. Order reversed, with direction. Edward J. Kelley, of Chicago, HI., for plaintiff in error. Carroll J: Lord, off Chicago, 111., for defendant in error. Before ,, ALSCHULER, EVANS and PAGE, Circuit Judges. PAGE, Circuit Judge. The' parties are placed here as in the District Court. Defendant, in an Indiana court, obtained a decree for divorce against plaintiff, and she obtained a decree for the payment of $250 per month while she. remained unmarried. Two days later the written contract here in question was made, by which defendant agreed to pay plaintiff the sum of $250 per month, as provided in the decree, and to convert insurance policies then on defendant’s life, and to procure other new policies, so as to raise an annuity to pay the amount in ease of, defendant’s death. The District Court dismissed' plaintiff’s suit on the contract on the theory that the contract was without consideration. To sustain the order of dismissal, defendant urges: (a) That contracts touching alimony, either before or after decree, are void. The Indiana cases cited hold only that agreements for alimony, made before or pending divorce proceedings, as am inducement to one to procure a divorce or to the other not to contest, are void, as against public policy. •Some of the Illinois authorities relied on hold that a contract between the parties to change a decree is not valid, unless approved by tho eourt. Those eases so hold because in Illinois the courts retain jurisdiction to modify decrees for alimony. It is admitted that in Indiana the courts have no such jurisdiction. (h) Tho urge that defendant’s agreement to pay alimony, which he was already obligated by the decree to pay, was without consideration, is without merit for several reasons. Defendant is here insisting that the decree requiring defendant to pay alimony while plaintiff remained unmarried is either void or voidable, at defendant’s election, because it does not conform to section 1088 of Burns’ Revised Statutes of Indiana of 1914. He has for years refused to pay under that decree, and may not here urge that it was ever binding on him. After reciting the decree, and defendant’s desire to provide for plaintiff, because of their'former relations, the contract provides: “Now, therefore, in consideration of tho premises and in further consideration of the sum of $1, cash in hand paid, the receipt whereof is hereby acknowledged, and other good and valuable consideration, it is hereby agreed,” etc. Those provisions preclude any presumption that the obligation to pay under the decree was the only consideration for the contract. The contract was made two days after tho‘entry of the decree, and during the term. Plaintiff had the right to appeal, the right to move for a new trial, and to ask for the modification of the decree so that it would conform to the statute. The waiver of any of those rights was a good consideration. Union Bank v. Geary, 30 U. S. (5 Pet.) 99, 114, 8 L. Ed. 60; Elliott & Co. v. Lagonda (D. C.) 205 F. 152, 156. Erom the fact that defendant paid for plaintiff’s support from the time of separation, and then, after he had a decree against her for a divorce, consented to an order on himself to pay the same amount, and two days later, not only recited in the contract that he desired to provide for her support, and did so provide, but went beyond the terms of’the decree and secured its payment in ease of his death, there is raised a very strong presumption that there were good and valuable considerations not disclosed. Undoubtedly, if asked, the eourt would have made a good decree. Maybe a good decree would have been a lien upon real estate and hampered defendant. Maybe plaintiff was beneficiary under the policies, without the right in defendant to make a change. Possibly the divorce was granted for impotency, in which ease there would have been very compelling reasons why plaintiff should have had a sound decree for alimony. The contract was valid upon its face. The order of dismissal is reversed, with direction to proceed in harmony with this opinion. 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_opinstat	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. INCARDONIA v. UNITED STATES. (Circuit Court of Appeals, Fifth Circuit. February 20, 1926.) No. 4629. Criminal law <§=>1059(2). Part of charge complained of, not separately excepted to, held not properly presented for review. In Error to District Court of the United States for the Eastern District of Louisiana; Charles R. Beattie, Judge. Vincent Incardonia was convicted of violating the National Prohibition Act, and he brings error. Affirmed. Clarence J. Dowling, of New Orleans, La., for plaintiff in error. Wayne G. Borah, U. S. Atty., and Arthur A. De la Houssaye, Asst. U. S. Atty., both of New Orleans, La. Before WALKER, BRYAN, and FOSTER, Circuit Judges. PER CURIAM. The plaintiff in error, who was convicted of violations of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138% et seq.), complains of the overruling of a motion to quash a search warrant, and of part of the charge given by the court. The motion to quash the search warrant was based on allegations to the effect that the premises searched were not those described in the search warrant. The record does not show that the evidence was such as to require the conclusion that those allegations were sustained. There was evidence tending to prove that the premises searched were those described in the search warrant. The part of the court’s charge which is complained of is not properly presented for review, as it was not separately excepted to, the exception reserved being to the charge as a whole. Obviously, much of the charge was' not subject to objection. The judgment is affirmed. Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:
songer_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. LANDRUM MILLS HOTEL CORP. et al., Defendants, Appellants, v. Misha FERHATOVIC a/k/a Misha Ferman, Plaintiff, Appellee. No. 6068. United States Court of Appeals First Circuit. May 8, 1963. Andrew B. Goodspeed, Boston, Mass., F. Fernandez Cuyar, San Juan, P. R., on the brief, for appellants. Samuel J. Davidson, Jersey City, N. J., for appellee. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. HARTIGAN, Circuit Judge. This is an appeal from a judgment of the United States District Court for the District of Puerto Rico following a jury verdict for the plaintiff in the sum of $25,000 in an action involving defendant hotel corporation’s alleged negligence in connection with the operation and maintenance of its beach and bathing facilities. Defendants urge that (1) the trial judge erred in allowing the case to go to the jury and in refusing to direct a verdict for the defendants and (2) in refusing to grant a motion for judgment non obstante veredicto pursuant to Rule 50(b) of the Federal Rules of Civil Procedure. Plaintiff was a guest at the La Concha Hotel in Puerto Rico, operated by defendant, Landrum Mills Hotel Corp. He had arrived at the hotel a short time before the events at issue occurred. On August 12, 1959, plaintiff went to the hotel’s beach to go swimming. Upon finishing his swim and as he was about to leave the water, he was struck in the face by a surf board. The surf board was labeled “La Concha” and there was evidence that it was being used at the time by an employee of the hotel, but plaintiff makes no claim based on the employee relationship. Plaintiff’s theory of the case comes down essentially to the contention that defendants were negligent in (a) either allowing the use of surf boards in the area reserved for bathing or (b) in not providing more adequate supervision or safeguards in connection with use of surf boards. In a request for admission of facts, pursuant to Rule 36 of the Federal Rules of Civil Procedure, defendants admitted that they had put up no warning signs or other devices to alert guests to the fact that surf boards were being used in the hotel’s bathing area. Defendants maintain that they had “beach employees in charge of activities therein, including the use of surfboard.” However, defendants offered no evidence to this effect. Although the question of negligence is a close one, we believe that the case properly was allowed to go to the jury and that there was no error in the trial judge’s refusal to direct a verdict for the defendants. As we have pointed out previously: “ * * * The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weighs the ■contradictory evidence and inferences, judges the credibility of wit-messes, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. * * * ” Roche v. New Hampshire Nat. Bank, 192 F.2d 203, 205 (1st Cir. 1951). In the instant case, there is no question that the surf board was the property of the hotel and, consequently, it can be fairly implied that the hotel having purchased it, could reasonably expect that it would be used in the water. This expectation, we believe, placed the hotel under a duty either to rigidly circumscribe the areas in which the surf board could be utilized or to take due measures to apprise guests — frequenting the area reserved for bathing — of the existence of the danger stemming from the use of surf boards. From all that appears in the record, defendants undertook neither of these steps. One of the means by which the hotel could have met this responsibility would have been to erect signs on the beach to alert the hotel’s bathing guests of the potential danger inherent in the presence of surf boards in its bathing area. The hotel admitted that it did not do so. As was stated by the Supreme Court in another context: “In this posture of the proofs, there is ample evidence for a jury to determine whether the procedure followed satisfied the standard to be expected from a prudent man in light of the hazard to be prevented.” Webb v. Illinois Central R. Co., 352 U.S. 512, 514, 77 S. Ct. 451, 1 L.Ed.2d 503 (1957). Consequently, we believe that a jury could reasonably conclude that the hotel breached its duty to plaintiff. Under all the circumstances, we agree with the trial judge that the “jury’s verdict * * * was no doubt based on their own appreciation of the facts proved to them at the trial and the logical inferences which they could consider as derived therefrom.” Judgment will be entered affirming the judgment of the district court. . Plaintiff also joined as defendants Firemen’s Fund Insurance Company of New Fork and one Edwin Noel Cuevas. 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_method	A	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. BOARD OF PUBLIC INSTRUCTION OF DUVAL COUNTY, FLORIDA, et al., Appellants, v. Daly N. BRAXTON and Sharon Braxton, Minors, by Sadie Braxton, their mother and next friend, et al., Appellees. No. 20294. United States Court of Appeals Fifth Circuit. Jan. 10, 1964. Rehearing Denied Feb. 20, 1964. Jones, Circuit Judge, dissented. Elliott Adams, Davisson F. Dunlap, Fred H. Kent, of Ulmer, Murchison, Kent, Ashby & Ball, Jacksonville, Fla., for appellants. Earl M. Johnson, Jacksonville, Fla., Constance Baker Motley, New York City, Leroy D. Clark, New York City, for appellees. Before TUTTLE, Chief Judge, JONES, Circuit Judge, and JOHNSON, District Judge. TUTTLE, Chief Judge. This is an appeal by the Board of Education from an order of the trial court requiring a start in the desegregation of the public school system of Duval County, Florida, of which the city of Jacksonville is the county seat. The basis of the appeal is that by including a prohibition against approving budgets, making available funds, and otherwise providing the physical facilities to “maintain or support a school system operated on a racially segregated basis” and by prohibiting “the assignment of teachers, principals, and other supervising or supporting personnel to schools on the basis of the race and color of the” said persons or the race and color of the pupils attending the respective schools, the trial court went too far. This, it is asserted, results both because there was a lack of a finding of facts warranting these two injunctive orders and also because there is nothing in the decided school desegregation cases that warrants such broad orders of injunction. In point of fact, relatively little was required to be done by the Board of Education immediately by the trial court’s injunctive order. It outlined under paragraphs A, B, C, D, and E certain prohibited acts. Under paragraph F, it prohibited applying the criteria of the Florida Pupil Assignment Law other than uniformly and without racial discrimination. The order made only the requirements of paragraph F applicable immediately, but it then required that the defendants “on or before October 30, 1962, submit to the Court for its consideration a detailed and comprehensive plan for putting subparagraphs A, B, C, D and E of paragraph 3 above into effect throughout the Duval County public school system.” Appellants, recognizing as they do, the binding authority of Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, and the many decisions of this Court interpreting and giving effect to that landmark decision, do not contest that part of the trial court’s order that is included in the first' lettered paragraphs, A, B and C. Nor do they complain of paragraph F, which requires them to apply the criteria of the Florida Pupil Assignment ‘Law non-racially. They do complain of being required to submit a plan which includes the requirements under paragraphs D and E. The principal attack is made on that provision which prohibits the assigning of teachers, principals and other supervising or supporting personnel to schools on the basis of race. We are faced in limine with the question whether we have before us an appealable order. While neither party raises the issue, since both apparently •desire to have this Court’s ruling on the question at issue, absence of an appeal-able order denies this Court of jurisdiction and must be noticed by the Court itself. It is plain that much of the order of the trial court is deferred in point of time. To this extent it may be said that the litigants may have an opportunity to prevail upon the Court prior to the actual effectuation of these parts of the order to request that they may be modified. To that extent they may be considered to be interlocutory orders. However, it was much the same kind of an order that came before this Court in Orleans Parish School Board v. Bush, 5 Cir., 242 F.2d 156 Although the Orleans Parish order required immediate acceptance of the principle of non-segregated schools, it is obvious that the order allowed the Board time to put it into effect. Clearly implying that arrangements should be started at once, the trial court nevertheless fixed the date after which there were to be no further distinctions based on race at “such time as may be necessary to make arrangements for admission of children to such schools on a racially nondiscriminatory basis with all deliberate speed as required by the decision of the Supreme Court in Brown v. Board of Education.” Nevertheless, in that appeal and also in a subsequent one in which the validity of the order was attacked by reason of the failure of the successful plaintiffs to post the bond required in the original order, this Court has not considered the order one that is not appealable by reason of not being an injunctive order. Of course, neither the order in the Bush case nor the one before us here is a final order in the sense that nothing further is left to be done by the trial court. It is appealable, therefore, if at all, only under the provisions of 28 U.S.C.A. § 1292(a) (1). That section gives Courts of Appeal jurisdiction over “[ijnterlocutory orders of the district courts * * * granting, continuing, modifying, refusing or dissolving injunctions * * It thus becomes necessary for us to determine whether the order of the trial court is one which “grants an injunction.” In light of our treatment of the order in the Bush case, it seems that there would be little question but that the order here appealed from falls within the language of 28 U.S.C.A. § 1292(a) (1), were it not for a well considered case decided by the Court of Appeals for the Second Circuit, Taylor v. Board of Education, etc., 2 Cir., 288 F.2d 600. In that case, involving an order relating to the school system for the City of New Rochelle, New York, that court, one judge dissenting, raised the issue of appealability on its own motion and decided that Judge Kaufman’s order in the trial court ordering the submission of a plan did not amount to mandatory injunction. Of course, it should be made plain here that paragraph F of the order before us did require immediate application of the Florida Pupil Assignment Law. If the appellant, Board, had appealed from the effect of this part of the order there would be no doubt about the appealability. It has not, however, appealed from this provision of the order, thus leaving as the basis for its appeal only subparagraph (c) of paragraph 4, which requires them “on or before October 30, 1962, to submit to the court for its consideration a detailed and comprehensive plan for putting subparagraphs A, B, C, D and E of paragraph 3 above into effect throughout the Duval County public school system.” The clear difference between the order before us and that in the New Rochelle case is that the trial court did expressly include in its order the following language in paragraph 3: “The defendants, The Board of Public Instruction of Duval County, Florida * * * are, with respect to the public school system of Duval County, Florida, enjoined and restrained permanently from allowing, permitting or committing all, or any of the following:” Then follow the lettered paragraphs which are quoted in Footnote 1 above. Then, although the trial court provided that the provisions of subparagraphs A, B, C, D and E “shall not be effective until the further order of this Court” it then said, “The defendants are directed, on or before October 30, 1962, to submit to the Court for its consideration a detailed and comprehensive plan for putting subparagraphs A, B, C, D and E of paragraph 3 above into effect throughout the Duval County public school system.” Thus it is that having enjoined the doing of the acts mentioned in the lettered paragraphs and having deferred the date on which the injunction should go into effect, the Court positively and affirmatively directed that a plan be submitted that would provide for carrying out the paragraphs that were to be later effectuated. We conclude that the ordering of the plan dealing expressly with these prohibited acts amounts to a mandatory injunction. To the extent that this may differ with the understanding of what constitutes an injunction as expressed by the Court of Appeals for the Second Circuit, we must respectfully disagree with its views. We think, however, that there is no real conflict because, as that Court said, “Whether Judge Kaufman’s direction for the submission of a plan on April 14 is a mandatory injunction requires, in the first instance, interpretation of what was said.” What was said here was quite different from the limited statement made by Judge Kaufman in his decree. Having concluded that this is an; appealable order, we come next to the. merits of the controversy. Stated in general terms, that question is whether the decision of the United States Supreme Court in Brown v. Board of Education of-Topeka, Kansas, 347 U.S. 483, 74 S.Ct.; 686, 98 L.Ed. 873, and' the subsequent ', appearance of the same case, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, or other authoritative decisions of that or this court, authorize an order by a trial court, once it has found the existence of a dual system of schools operated on a racially segregated basis, to include in its order seeking to remedy such a situation a prohibition against the assignment of teachers and other personnel on a racial basis and to prohibit the financing and physical arrangement of schools on a racial basis. We think the answer to this question is clear. The Supreme Court’s solution of the question of the manner “in which relief is to be accorded” under its original decision in that connection was expressed as follows: “While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17,1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis.” (Emphasis added.) The argument of appellants here is largely to the effect that no court heretofore has expressly required the elimination of teacher assignment by race or ¡the planning of schools and finances to avoid racial operation of the schools. ¡This argument, of course, falls far wide 'of the mark. Neither, has any appellate I court had occasion to hold that for a trial court to go so far would be unwarranted under the Supreme Court’s decision. In Augustus v. Board of Public Instruction of Escambia County, Florida, 5 Cir., 306 F.2d 862, this Court set aside an order of the trial court dismissing allegations in the complaint filed on behalf of Negro school children seeking to put an end to the assignment of teachers and other personnel by race. We thus held that it is a matter of proper concern in such a suit as the one now before us that teachers are so assigned. So too, in Calhoun et al. v. A. C. Latimer et al., 5 Cir., 321 F.2d 302, this Court held that the trial court did not err in postponing consideration of the teacher assignment question. Where, however, the trial court, which has the first duty with respect to requiring action if none is taken initially by the Board of Education, considers that in order fully to implement the Supreme Court’s decision it will be necessary to put an end to the assignment of teachers and other personnel by race to the schools within the Board’s jurisdiction we think it can not conceivably be said that such an order goes beyond the permissible range of the trial court’s choice of means to put an end to an operation of schools on a racially segregated basis. The same, of course, is true with respect to the requirement that the plan called for by the injunctive order make provision for putting into effect an end of approving budgets, malting funds available, approving employment contracts and construction programs, and approving policies, curricula and programs designed to perpetuate, maintain or support a school system operated on a racially segregated basis — the challenged provisions of paragraph D of the Court’s order. We conclude that the basic findings made by the trial court, which are not here in dispute, that “up to the present time, said biracial school system has been and is presently continued, perpetuated and maintained by the defendants as a matter of policy, custom and usage,” and that “now as in the past, Negro personnel are assigned to Negro schools and white personnel are assigned to white schools,” and the further finding that “in the eight (8) years since the first Brown decision the defendants have not adopted any plan whatever for eliminating racial discrimination in the public school system committed to them for administration,” fully warrant the Court’s conclusion: “In the instant case (and in similar cases) this Court is required by clear and binding precedent to frame a broad decree, granting to the plaintiffs in substance the injunctive relief sought by the complaint.” The contested provisions of the decree fall well within the permitted range of relief that can properly be granted as a part of such decree. The judgment is affirmed. . After reciting the preliminary paragraphs the injunction contained the following provisions : “A. Continuing to operate a compulsory biracial school system in Duval County, Florida; “B. Continuing to maintain a dual scheme or pattern of attendance areas based upon race or color; “C. Assigning pupils to schools on the basis of race and color of the pupils; “D. Approving budgets, making available funds, approving employment contracts and construction programs, and approving policies, curricula and programs designed to perpetuate, maintain or support a school system operated on a racially segregated basis. “E. Assigning teachers, principals, and other supervising or supporting personnel to schools on the basis of the race and color of the persons to be assigned and/or the race and color of the pupils attending the schools to which the personnel are assigned ; and “F. Applying the criteria of the Florida Pupil Assignment Law, or any other criteria for admission, assignment or reassignment, to schools other than uniformly and without racial discrimination as to use or application there of (see paragraphs 5, 6, 7 and 10 of the Conclusions of Law filed herewith for clarification). “4. (a) The provisions of subparagraph F of paragraph 3 above are effective immediately and systemwide throughout the county. “(b) The provisions of subparagraphs A, B, C, D and E of paragraph 3 above shall not be effective until the further order of this Court. “(c) The defendants are directed, on or before October 30, 1962, to submit to the Court for its consideration a detailed and comprehensive plan for putting subparagraphs A, B, C, D and E of paragraph 3 above into effect throughout the Duval County public school system. “(d) Upon the filing of said plan and hearing thereon, the Court will enter its supplemental decree herein accepting or rejecting the same in whole or in part and making such further disposition as right and justice may require.” . The order in that case was as follows: “It is Ordered, Adjudged and Decreed that the defendant, Orleans Parish School Board, a corporation and its agents, its servants, its employees, their successors in office, and those in concert with them who shall receive notice of this order, be and they are hereby restrained and enjoined from requiring and permitting segregation of the races in any school under their suporvision, from and after such time as may be necessary to make arrangements for admission of children to such schools on a racially nondiscriminatory basis with all deliberate speed as required by the decision of the Supreme Court in Brown v. Board of Education of Topeka [347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873], supra.” . The decree of the trial court there before the Court of Appeals was as follows: “In determining the maimer in which the Negro children residing within the Lincoln district are to be afforded the opportunities guaranteed by the Constitution, I will follow the procedure authorized by the Supreme Court in Brown v. Board of Education, 349 U.S. 294 [75 S. Ct. 753, 99 L.Ed. 1083] (1955), and utilized by many district courts in implementing the Brown principles. Thus, I deem it unnecessary at this time to determine the extent to which each of the items of relief requested by plaintiffs will be afforded. Instead, the Board is hereby ordered to present to this Court, on or before April 14, 1961, a plan for desegregation in accordance with this Opinion, said desegregation to begin no later than the start of the 1961-62 school year. This court will retain jurisdiction of this action until such plan has been presented, approved by the court, and then implemented. “The foregoing Opinion will constitute the court’s findings of fact and conclusions of law.” 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:
sc_caseorigin	111	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. UNITED STATES et al. v. TEXAS & PACIFIC MOTOR TRANSPORT CO. NO. 38. Argued November 7-8, 1950. Decided February 26, 1951. Daniel W. Knowlton argued the cause for the United States and the Interstate Commerce Commission, appellants in No. 38. With him on the brief were Solicitor General Perlman, Acting Assistant Attorney General Un-derhill and H. L. Underwood. Frank C. Brooks argued the cause and filed a brief for appellant in No. 39. J. T. Suggs argued the cause for appellee. With him on the brief were R. Granville Curry, W. O. Reed, Claude Williams, Robert Thompson and D. L. Case. Mr. Justice Reed delivered the opinion of the Court. These appeals, by the Interstate Commerce Commission, and by the intervenor, Regular Common Carrier Conference of American Trucking Associations, Inc., from the judgment of a three-judge federal district court setting aside two orders of the Interstate Commerce Commission, and entering a permanent injunction, raise questions similar to those discussed in No. 25, United States v. Rock Island Motor Transit Co., ante, p. 419, decided today. The questions relate to the power of the Commission to ban service practices theretofore permitted under certificates of public convenience and necessity previously issued to a common carrier by motor vehicle. The Commission acted under authority reserved in the certificate to impose additional restrictions to insure that the motor carrier’s operations will be auxiliary to or supplemental of the operations of its parent common carrier by rail. The Texas and Pacific Motor Transport Company is a wholly owned subsidiary of the Texas and Pacific Railway, operating a system of regular routes for the carriage of freight, from New Orleans to El Paso, Texas, and Lovington, New Mexico, roughly paralleling the lines of the railway and its subsidiaries. Transport was organized in 1929 to provide a local pick-up and delivery service in connection with rail transportation between points on the lines of the railway. Its first over-the-road common-carrier operation, between Monahans, Texas, and Loving-ton, New Mexico, was inaugurated just before the effective date of the Motor Carrier Act of 1935. It extended its operations by obtaining certificates of convenience and necessity from the Commission, both under § 213 of the 1935 Act, now § 5 of the Interstate Commerce Act, providing for acquisition of established rights by purchase from other carriers (“grandfather” rights); and under § 207 of the Interstate Commerce Act, providing for new operations. Between July 1939 and November 1942, the Commission issued sixteen certificates to Transport, covering various segments of its presently operating routes. In all the certificates the Commission reserved the right to impose further restrictions in order to confine Transport’s operation to service “auxiliary to, or supplemental of, rail service.” This condition was expressed in either one of the two forms set out in the margin. In addition, each certificate contained one or more, usually more, further conditions: (1) That the service to be performed was to be “auxiliary to, or supplemental of” the rail service. (2) That only railway station points were to be served. (3) Either that (a) all shipments should be made on a through rail bill of lading, including a prior or subsequent rail movement; or (b) that no shipments should be made between certain “key points” on the rail line, or through more than one of them. And (4) that the contractual arrangements between Transport and Railway be subject to modification by the Commission. The irregular incidence of these conditions in the certificates may be accounted for by the segmentary fashion in which Transport built up its system of routes, over a period of several years. They were not reconsidered as a group by the Commission until 1943, when, in response to a petition by Transport, to determine what modification should be made in its certificate No. MC-50544 (Sub-No. 11), particularly in regard to service for freight between El Paso and Sierra Blanca, Texas, for the Texas and New Orleans Railroad Company, it reopened nine of the certificate proceedings to consider whether Transport could join with other motor carriers in rates, some of which provided for substituting rail service for motor service. The Commission held that “Since petitioner’s certificates limit the service to be performed to that which is auxiliary to or supplemental of the rail service of the railway [in some the limitation was by reservation], it is without authority to engage in operations unconnected with the rail service and, accordingly, may not properly be a party to tariffs containing all-motor or joint rates, nor participate in a directory providing for the substitution of train service for motor-vehicle service at its option. To the extent petitioner is performing or participating in all-motor movements on the bills of lading of a motor carrier and at all-motor rates, it is performing a motor service in competition with the rail service and the service of existing motor carriers; and, to the extent it is substituting rail service for motor-vehicle service, the rail service is auxiliary to or supplemental of the motor-vehicle service rather than the motor-vehicle service being auxiliary to or supplemental of rail service.” The Commission did not issue any affirmative order, but directed Transport to modify its service in accordance with the findings, within a reasonable time. Transport and Railway then petitioned jointly for reconsideration, or for further hearings, including hearings on certain other certificates; and, although the two petitioners later attempted to withdraw their petition on the ground that permission to file a joint tariff had been granted, the Commission nevertheless ordered that the proceedings be reopened in all sixteen certificates, and three Temporary Authorities, “solely to determine what, if any, changes or modifications should be made in the conditions contained in the outstanding certificates of public convenience and necessity . . . .” After a hearing at which Transport and Railway appeared, but refused to introduce any evidence, and after oral argument on the examiner’s report, the Commission on January 22, 1948, ordered that all sixteen certificates be modified to include uniformly the substance of the five conditions set out above, specifically as follows: “1. The service to be performed by applicant shall be limited to service which is auxiliary to, or supplemental of, the train service of The Texas and Pacific Railway Company, The Weatherford, Mineral Wells and Northwestern Railway Company, or Texas-New Mexico Railway Company, and, between El Paso and Sierra Blanca, Tex., the train service of Texas and New Orleans Railroad Company, hereinafter called the railways. “2. Applicant shall not render any service to or from any point not a station on a rail line of the railways. “3. No shipments shall be transported by applicant between any of the following points, or through, or to, or from, more than one of said points: New Orleans, Alexandria, and Shreveport, La., Tex-arkana, Tex.-Ark., Fort Worth-Dallas, (considered as one), Abilene, Monahans, and El Paso, Tex. “4. All contractual arrangements between applicant and the railways shall be reported to us and shall be subject to revision if and as we find it to be necessary, in order that such arrangements shall be fair and equitable to the parties. “5. Such further specific conditions as in the future we may find necessary to impose in order to insure that the service shall be auxiliary to, or supplemental of, the train service of the railways.” The effect on appellee was to bar it from issuing its own bills of lading or performing all-motor service under all-motor local rates or all-motor joint rates with connecting motor carriers, or substituting rail service for motor service, and it could not be a party to such tariffs. Prior to these proceedings the appellee had issued its own bills of lading and participated in motor-carrier tariffs. The District Court found the value of the certificates, $65,000, would be destroyed and $240,000 annual revenue lost. A petition for reconsideration of this order, and for oral argument before the entire Commission, was denied on May 9, 1949. Transport thereupon brought this suit in the Federal District Court, seeking to set aside the Commission’s orders of January 22, 1948, and May 9, 1949, and to enjoin their enforcement. In the District Court proceedings the Regular Common Carrier Conference of American Trucking Associations intervened on behalf of the Commission. After hearing, the District Court made findings of fact and conclusions of law, and entered a judgment setting aside the Commission’s orders, and permanently enjoining it from imposing any condition on Transport’s certificates “in such manner as will prohibit petitioner from: “a. Filing, publishing and maintaining common carrier motor rates as provided by statute in the case of common carrier motor carriers generally; “b. Interchanging traffic with other .common carrier motor carriers on joint motor rates; “c. Issuing its own bills of lading and tendering its service to the public generally on its own contracts of shipment; “d. Transporting traffic to, through, from or between any so-called ‘key points’ on that part of its route covered by interstate certificates of public convenience and necessity, to which no ‘key point’ restriction attached on issuance of such certificates, or in such manner as will restrict petitioner to ship on rail rates or on railroad bills of lading.” From this judgment the Commission and the intervenor, Common Carrier Conference, appeal here. The District Court, 87 F. Supp. 107, 112, reasoned that the operations of Transport were at all times and in all ways auxiliary to and supplemental of the rail operations and therefore could not be restricted as attempted. The connotation of auxiliary and supplementary to the trial court was only a restriction limiting service to rail points. Without dealing specifically with the reservation to impose further conditions restricting the motor carrier’s service to coordinated rail service, the District Court decided that the Commission’s order restricting the service could not be valid in view of § 216, Transportation Act of 1940, 49 Stat. 558, 54 Stat. 924. That section allows motor common carriers to establish through routes, joint rates, practices and division of charges with other carriers by motor, rail or water. It held, too, that the Commission’s action was in essence a revocation in part of a certificate and unlawful except under conditions prescribed by § 212, 49 Stat. 555, 54 Stat. 924, and unconstitutional because confiscatory. Transport here supports the soundness of the reasons given by the three-judge District Court for its injunction and supplements them by contentions that the Commission’s order was without support in the evidence and that Transport was not accorded due process of law at the hearing of October 17, 1944, 47 M. C. C. 753, 755. In view of our decision of today upholding the Commission in No. 25, United States v. Rock Island Motor Transit Co., ante, p. 419, all reasons for affirming the judgment below may be promptly rejected. So far as the above issues relied upon by the District Court for its injunction are concerned, they seem to have been resolved in favor of the Government by our opinion in the Rock Island case. This proceeding involves certificates for new routes under § 207. No such certificates or applications were in that case. The opinion, however, considered the Commission’s practice in § 207 proceedings and stated that it was the same as in §§ 5 and 213 acquisition proceedings. We now hold that the .same considerations justify the reservation in issue here. See n. 2, supra. Transport’s position that the order in question was without support in the evidence is based on the theory that as evidence was taken in the original applications that resulted in the necessary findings under §§ 213 of the Motor Carrier Act and 5 of the Transportation Act of 1940 for certificates to railroad motor carrier affiliates, changes in practices cannot now be made without evidence that the formerly permitted practices had been inconsistent with the public interest and did unduly restrain competition. American Trucking Associations, Inc. v. United States, 326 U. S. 77, 86, and Interstate Commerce Commission v. Louisville & Nashville R. Co., 227 U. S. 88, 91. The Louisville & Nashville case required a full hearing and the privilege of introducing testimony before the road’s rates were set aside as unreasonable. The Commission was taking the position that the Hepburn Act allowed it to set aside rates after a “hearing” without evidence. The American Trucking case dealt with the issuance of a series of certificates by the Commission to a railroad-affiliated motor carrier after refusal to admit evidence of the flow of truck traffic between various localities along the parent railroad, and of the effect of the existing and prospective railroad-affiliated motor carriers on the over-the-road carriers. On appeal from an affirmance by a district court, we reversed the Commission. This situation, however, differs from those referred to by Transport in that the Commission has reopened the proceedings, after they were started by Transport for an interpretation of its right to file and maintain a motor common-carrier tariff. Hearings were had in 1942 at Dallas, at which appellee’s witnesses gave testimony as to the freight interchange between appellee and other motor carriers and the existence of tariffs, etc. After the report of the Commission referred to on pp. 454-455, Transport and the Texas and Pacific Railway petitioned for reconsideration by the Commission, setting out the facts of their current operations, and addressing themselves particularly to the elimination of the prior or subsequent rail-haul condition. Thereafter the proceedings were reopened to determine what changes or modifications should be made. Another hearing was held, October 17, 1944, and report made. At that hearing Transport appeared but refused to introduce evidence. The examiner examined an official of Transport as to the nature and extent of Transport’s operations. This evidence developed the fact that Transport operated both on motor-carrier and rail rates under its own bills of lading in full competition with other motor carriers. Thus there appears in the record adequate evidence of the circumstances of Transport’s operations. Upon the due-process point we approve the ruling of the Commission. It follows: “Applicant argues that the notice setting the proceedings for further hearing did not inform it or the other parties of the nature of the issues to be met, or give them sufficient time to prepare to meet the issues; and that the hearing, in view of the request for its cancellation, was in the nature of an ex parte proceeding. We are not impressed with applicant’s argument that it was unable to foresee the issues. The notice in question stated that the further hearing was for the purpose of determining what changes, if any, should be made in the conditions, and thus placed the conditions themselves in issue. One of these is condition 5 or 5A, which in itself was adequate notice to applicant and the other parties that the primary purpose of the further hearing would be to determine, as provided for in that condition, whether it is necessary to change or modify the existing conditions or to add others so as effectively to restrict applicant’s operations to service which is auxiliary to or supplemental of rail service. Applicant was given the opportunity of presenting evidence to show that no need exists for a change in its present conditions; however, not only did it choose not to offer such evidence, but it objected to the receipt of any evidence with respect thereto. In the circumstances, the examiner properly denied its motion to discontinue the further hearing and to withdraw its witness, and properly overruled its objection to the adduction of testimony through such witness.” The judgment of the three-judge District Court is reversed and the proceedings remanded with directions to dismiss the complaint. Reversed. Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Jackson and Mr. Justice Burton dissent. Sixteen proceedings are covered by I. C. C. docket number MC-50544, and various subnumbers, set out in Appendix A to Texas & Pacific Motor Transport Co. Common Carrier Application, 47 M. C. C. 753, 764. Transport was also operating under certain temporary authorities, Nos. MC-50544 (Sub-Nos. 21-TA, 24 — TA, and 30-TA), which expired before the issuance of the Commission’s orders under consideration here. “5. Such further specific conditions as we, in the future, may find it necessary to impose in order to restrict applicant’s operation to service which is auxiliary to, or supplemental of, rail service. “5A. The authority herein granted shall be subject to such further limitations or restrictions as the Commission may hereafter find it necessary to impose in order to restrict applicant’s operation to service which is auxiliary to, or supplemental of, train service of the railway, and in order to insure that the service rendered shall not unduly restrain competition.” 47 M. C. C. 753,766. “1. The service to be performed by applicant shall be limited to service which is auxiliary to, or supplemental .of, rail service of the Texas and Pacific Railway, or in certain cases of its subsidiary rail lines, (or of Texas-New Mexico Railway Company) herein called the railway.” Ibid. “2. Applicant shall not serve, or interchange traffic at any point not a station on a rail line of the railway.” Ibid. “3. Shipments transported by applicant shall be limited to those which it receives from or delivers to the railway under a through bill of lading covering, in addition to movement by applicant, a prior or subsequent movement by rail. “3A. Shipments transported by applicant shall be limited to those which it receives from or delivers to the railway under a through bill of lading covering in addition to movement by applicant, a prior or subsequent movement by rail, and those which it transports as parts of through shipments prior or subsequent to movement by rail under appropriate transit rules.” Ibid. “3B. No shipments shall be transported by applicant as a common carrier by motor vehicle between any of the following points or through, or to, or from more than one of said points: Fort Worth, Tex., and Texarkana, Tex.-Ark. “3C. No shipments shall be transported by applicant between any of the following points or through, or to, or from more than one of said points: El Paso and Pecos, Tex.” Ibid. “4. All contractual arrangements between applicant and the railway shall be reported to us and shall be subject to revision, if and as we find it to be necessary in order that such arrangements shall be fair and suitable to the parties.” Ibid. 41 M. C. C. 721,726. 47 M. C. C. 753, 763-764. 47 M. C. C. 753, 754, and Rules 30, 107 (a) and 107 (b) of Supp. No. 5 to I. C. C. Tariff Circular No. 20. See 41 M. C. C. 721, 726, excerpted at note 19, No. 25, United States v. Rock Island Motor Transit Co., decided today, ante, p. 419. “Thus, while the Commission might prescribe the points to be served, it could not forbid the participation in joint rates and through routes for the simple reason that such a provision would be inconsistent with the wording of Sec. 216 of the Act.” 87 F. Supp. 107, 112. Several Commission decisions on the general necessity of evidence to support rulings are added. Greyhound Corporation—Control, 50 M. C. C. 237, 242; Scannell—Control, 50 M. C. C. 535, 541; C. & D. Motor Delivery Company — Purchase—Hubert C. Elliott, 38 M. C. C. 547, 553; Joint N. E. Motor Carrier Assn., Inc. v. Rose and Welloff, 43 M. C. C. 487, 488. None bear on such a situation as this. They relate to restrictions on the issue or transfer of certificates and revocation. 47 M. C. C. 753,756. 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_direct2	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. Alex BUCHANAN, Appellant, v. Olin G. BLACKWELL, Warden, United States Penitentiary, Atlanta, Georgia, Appellee. No. 23927. United States Court of Appeals Fifth Circuit. Feb. 15, 1967. Alex Buchanan, pro se. Thomas K. McWhorter, Asst. U. S. Atty., Charles L. Goodson, U. S. Atty., Robert L. Smith, Asst. U. S. Atty., for appellee. Before TUTTLE, Chief Judge, and BELL and GOLDBERG, Circuit Judges. TUTTLE, Chief Judge: Appellant was convicted and sentenced on May 15, 1958, by the United States District Court for the Western District of North Carolina to serve a total of five years imprisonment for breaking and entering a Post Office in violation of 18 U.S.C.A. § 2115. After serving his five year sentence less good time credits, he was released from federal prison, pursuant to 18 U.S.C.A. § 4163, on September 25, 1961. Some ten months later, on July 29, 1962, appellant was arrested and charged with a state criminal offense in Tennessee. When he reported to his federal parole officer on October 1, 1962, he was shown a warrant, issued by the United States Board of Parole, charging him with violating the conditions of his release on the federal sentence of May 15, 1958. On October 29, 1962, he was tried and convicted on the state charge, and sentenced to five years imprisonment in the Tennessee State Penitentiary. Upon his release from state prison on December 29, 1965, he was returned to federal custody under the warrant issued by the United States Board of Parole in 1962, and incarcerated in the United States Penitentiary at Atlanta, Georgia, to complete service of his 1958 federal .sentence. On June 14, 1966, appellant petitioned the United States District Court for the Northern District of Georgia for a writ of habeas corpus, asserting vigorously (albeit mistakenly) that under the rule of Birch v. Anderson, 123 U.S.App.D.C. 153, 358 F.2d 520 (1965), the Parole Board lost its power over him by failing to execute its warrant before November 15, 1962 — the date upon which the terminal 180 day period of his full five year sentence of May 15, 1958, would have begun. In a memorandum opinion, the District Court denied appellant’s petition, but granted his motion for leave to appeal in forma pauperis. The case is submitted on the record and the briefs of both parties, without oral argument. At the outset, we point out that the authority of the Board of Parole to issue the warrant here involved is clear. At the time of his release from federal, prison on September 25, 1961, appellant had completed service of his original five year federal sentence less good time credits, and was thus a mandatory release under 18 U.S.C.A. § 4163. As such, he was subject to the provisions of 18 U.S.C.A. § 4164, which states: “A prisoner having served his term or terms less good-time deductions shall, upon release, be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days.” (Emphasis added.) Appellant’s “maximum term less one hundred and eighty days” under the five year sentence of May 15, 1958, did not expire until November 15, 1962. Consequently, appellant occupied the status of a parolee when the Parole Board, prior to October 1, 1962, exercised the authority granted to it by 18 U.S.C.A. § 4205, which provides: “A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced.” (Emphasis supplied.) The illegality, then, in appellant’s present detention, if any there be, must arise from the fact that execution of the Parole Board’s warrant was delayed until after the time when its power to treat with him as a parolee normally would have expired (that time being maximum sentence less one hundred and eighty days — November 15, 1962, in this case). The contention that such a delay vitiates the Parole Board’s authority to require service of the unexpired term of a sentence was recently answered by this Court in Smith v. Blackwell, 367 F.2d 539 (5 Cir. 1966) : “Appellant in his petition fails to distinguish between the terms ‘issuance’ of a warrant and ‘service’ (or ‘execution’) of a warrant. He contends that 18 U.S.C. § 4205 requires that a parole violator warrant be issued and served within the maximum term for which the violator was sentenced. That statute, however, applies only to the issuance of a warrant * * * The statute does not purport to place a limitation on the period in which a warrant may be served (or executed), and the law is well settled that a warrant issued within the maximum term of the original sentence may be served after the parole violator has served a second sentence imposed while he was on parole * * * This is so even though the warrant is not served until after the expiration of the maximum term in which it could be issued * * Moreover, by violating his parole, a prisoner is viewed as no longer being in actual or constructive custody under his first sentence and cannot successfully argue that service under the second sentence should be credited to the first or run concurrently with it. * * * Finally, by violating parole, a prisoner forfeits all credit for good conduct time accumulated prior to release and all credit for time on parole, and must serve the full unexpired term of the original sentence. 18 U.S.C. § 4205 * * The only material difference between the facts in Smith v. Blackwell and those presented here is that Smith was a parolee, while appellant was a mandatory releasee, by virtue of 18 U.S.C.A. § 4164. But that distinction is of no avail to appellant here, for the Board’s warrant for his retaking concededly was issued prior to October 1, 1962- — well in advance of the beginning of the terminal one hundred and eighty day period of his original five year sentence on November 15, 1962. Since the warrant was issued at a time when appellant was by statute "deemed as if released on parole” (18 U.S.C.A. § 4164), the reasoning employed in Smith v. Blackwell is fully applicable to the case at bar. Accordingly, the judgment of the district court was correct, and is Affirmed. . Appellant’s reliance upon Birch v. Anderson is misplaced. That case holds only that the Board of Parole has no authority to issue a warrant for a mandatory release during the terminal one hundred eighty days of his sentence, for the obvious reason that a mandatory release is no longer “deemed as if released on parole” (18 TJ.S.O.A. § 4164) onee that terminal period begins, and thus is not thereafter subject to Board supervision. As will be seen, that holding offers no support for appellant’s claim. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_appnonp	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "groups and associations". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. BALLWOOD CO. v. COMMISSIONER OF INTERNAL REVENUE. No. 5674. Circuit Court of Appeals, Third Circuit. June 3, 1936. Morgan S. Kaufman, of Scranton, Pa., and S. Leo Ruslander, R. J. Cleary, and Wm. A. Seifert, all of Pittsburgh, Pa., for petitioner. Frank J. Wideman, Asst. Atty. Gen., Sewall Key and Lucius A. Buck, Sp. Assts. to Atty. Gen., and Morton K. Rothschild, of Washington, D. C., for respondent. Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges. THOMPSON, Circuit Judge. This is a petition for rehearing of a decision of this court in Ballwood Company v. Commissioner, filed July 16, 1935, in which in a per curiam opinion we affirmed a decision of the Board of Tax Appeals. The petitioner, in accordance with an agreement made with the Midwest Pipe & Supply Company, hereinafter called Midwest, conveyed its pipe fabricating assets representing approximately 29 per cent, of its total assets to the Ballwood Pipe Fabricating Corporation, a newly organized corporation. The petitioner received all of the new corporation’s capital stock and conveyed the same to Midwest in exchange for approximately 18 per cent, of Midwest capital stock. Midwest transacted the pipe-fitting business, theretofore transacted by the petitioner, through its so-called “Ball-wood Division, Midwest Piping -Supply Company.” The petitioner’s sole stockholder served as manager for the Ballwood Division. The Ballwood Pipe Fabricating Corporation continued in existence as a holding company for the assets transferred to it by the petitioner. The Commissioner ruled that the difference between the cost to the petitioner of the Ballwood Pipe Fabricating stock and the market value of the Midwest stock was taxable. The petitioner contended that the gain was nontaxabl'e because derived from a tax-free reorganization. The pertinent statutory provisions and Treasury Regulations are set out in the margin. As a result of the various transfers outlined above, the petitioner had an 18 per cent, interest in Midwest, which in turn owned all the stock of the Ballwood Pipe Fabricating Corporation. It is apparent that the same results might have been achieved by an outright sale. The petitioner could have transferred directly to Midwest all of its assets involved in the pipe-fitting business and received in payment therefor 18 per cent, of Midwest stock. Nevertheless, what was done amounted to a reorganization, for as a result of the somewhat complicated transfers, Midwest acquired not merely, a majority, but all of the stock of the B.allwood Pipe Fabricating Corporation. Section 112 (i) (1) (A) of the Revenue Act of 1928 (26 U.S.C.A. § 112 note) gives one definition for the term “reorganization” as a “merger or consolidation (including the acquisition by one corporation of at least a majority of the voting stock and at least a majority of the total number of shares of all other classes of stock of another corporation. * * ).” This definition obviously enlarges the usual meaning of the words “merger or consolidation.” Giving the words of the statute their plain and unambiguous meaning, we must reach the conclusion that what took place in the instant case amounted to a statutory reorganization in which there was no gain or loss under the provisions of section 112 (b) (3) and (4) of the statute (26 U.S.C.A. § 112 (b) (3, 4) and note), for the stock of the Ballwood Pipe Fabricating Corporation was property in the hands of the taxpayer. It may also be pointed out that the petitioner’s 18 per cent, stockholdings in Midwest give it an interest in the affairs of that company fairly representing the value of the assets transferred by it to the newly organized corporation in accordance with the agreement between it and Midwest. Pinellas Ice Co. v. Commissioner, 287 U.S. 462, 53 S.Ct. 257, 77 L.Ed. 428. The Board of Tax Appeals, relying upon its own prior decisions in Watts v. Commissioner of Internal Revenue, 28 B.T.A. 1056 and Minnesota Tea Company v. Commissioner of Internal Revenue, 28 B.T.A. 591, held that the gain resulting from the transaction was taxable. The Board’s ruling in the Watts Case was reversed by the Second Circuit Court of Appeals in 75 F.(2d) 981, and in the Minnesota Tea Case by the Eighth Circuit Court of Appeals in 76 F.(2d) 797. The Supreme Court affirmed in opinions filed December 16, 1935. The final decisions in those cases, therefore, are favorable to the taxpayer. We note that neither this court nor the Board of Tax Appeals had the benefit of the Supreme Court decisions in those cases at the time of the original argument. In the Watts Case three taxpayers were the sole stockholders of the United States Ferro Alloys Corporation. They exchanged all their stock for shares of the Vanadium Corporation of America and mortgage bonds of Ferro, guaranteed by Vanadium. The Supreme Court held that the gain derived from this exchange was nontaxable because of the acquisition by Ferro of the majority of the total number of shares of all classes of Vanadium stock. In the Minnesota Tea Case the taxpayer, pursuant to a plan previously agreed upon, transferred all its assets and business to the Grand Union Company and received in exchange certificates of the common stock of that company and $426,842.56 in cash. The taxpayer retained the certificates and distributed the cash to its stockholders who assumed to pay $106,471.73 of the .taxpayer’s outstanding debts. The Supreme Court held that the acquisition by one corporation of substantially all the properties of another corporation amounted to a tax-free reorganization under section 112 (i) (1) (A) of the Revenue Act of 1928. It ruled that the decision in Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596, 97 A.L.R. 1355, was inapplicable, since nothing in the Minnesota Tea Company Case suggested other than a bona fide business transaction. We therefore conclude, upon a literal construction of the Revenue Act of 1928 and by analogy to the decisions in Watts v. Commissioner, supra, Helvering v. Minnesota Tea Company, 296 U.S. 378, 56 S.Ct. 269, 80 L.Ed. 284, and G & K Manufacturing Company v. Helvering, 296 U.S. 389, 56 S.Ct. 276, 80 L.Ed. 291, opinion filed December 16, 1935, that no taxable gain arises by reason of the described transaction. Our decision, as set forth in the per curiam opinion filed July 16, 1935, is vacated and set aside, and the decision of the Board of Tax Appeals is reversed. Section 112 of Revenue Act of 1928, 45 Stat. 816 (26 Ü.S.C.A. § 112 and note): Recognition of Gain or Loss (a) General rule. Upon the sale or exchange of property the entire amount of the gain or loss determined under section 111, shall be recognized, except as hereinafter provided in this section. (b) Exchanges solely in kind — * * (3) Stock for stock on reorganization. No gain or loss shall be recognized if stock or securities in a corporation a party to a reorganization are, in pursuance of the plan of reorganization, exchanged solely for stock or securities in such corporation or in another corporation a party to the reorganization. (4) Same — Gain of corporation. No gain or loss shall be recognized if a corporation a party to a reorganization exchanges property, in pursuance of the plan of reorganization, solely for stock or securities in another corporation a party to the reorganization. * * * (i) Definition of reorganization. As used in this section and sections 113 and 115— (1) The term “reorganization” means (A) a merger or consolidation (including the acquisition by one corporation of at least a majority of the voting stock and at least a majority of the total number of shares of all other classes of stock of another corporation, or substantially all the properties of another corporation), or (B) a transfer by a corporation of all or a part of its assets to another corporation if immediately after the transfer the transferor or its stockholders or both are in control of the corporation to which the assets are transferred, or (C) a recapitalization, or (D) a mere change in identity, form, or place of organization, however effected. (2) The term “a party to a reorganization” includes a corporation resulting from a reorganization and includes both corporations in the case of an acquisition by one corporation of at least a majority of the voting stock and at least a majority of the total number of shares of all other classes of stock of another corporation. (j) Definition of control. As used in this section the term “control” means the ownership of at least 80 per centum of the voting stock and at least 80 per centum of the total number of shares of all other classes of stock of the corporation. Article 574 of Treasury Regulations 74: Exchanges in connection with corporate reorganizations. — The Act provides that no gain or loss shall be recognized if, in pursuance of a plan of reorganization, stock or securities in a corporation a party to a reorganization are exchanged solely for stock or securities in such corporation or in another corporation a party to the reorganization, or if, in pursuance of a reorganization plan, a corporation a party to a reorganization exchanges property solely for stock or securities ■■in another corporation a party to the reorganization. If two or more corporations reorganize, for example, by— (1) The merger of the X Corporation into the Y Corporation, (2) The consolidation of the X Corporation and the Z Corporation into the Y Corporation, a new corporation, (3) The acquisition by the Y Corporation of a majority of the voting stock and a majority of the total number of shares of all other classes of stock of the X Corporation or of substantially all of the properties of the X Corporation, or (4) The transfer by the X Corporation of a part of its assets to the Y Corporation where immediately after the transfer the X Corporation or its shareholders or both are in control of the Y Corporation— then no taxable income is received from the transaction by the X Corporation or the Z Corporation if the sole consideration received by the corporations is stock or securities of the Y Corporation; and no taxable income is received from the transaction by the shareholders of either the X Corporation or the Z Corporation if the sole consideration received by the shareholders is stock or securities of the Y Corporation. Question: What is the total number of appellants in the case that fall into the category "groups and associations"? Answer with a number. Answer:
songer_appel1_7_2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed 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"). Cathelina ANTOLOK, et al., Appellants v. UNITED STATES of America. No. 87-5324. United States Court of Appeals, District of Columbia Circuit. Argued Nov. 10, 1988. Decided April 28, 1989. Abram Chayes, Cambridge, Mass., with whom E. Cooper Brown, Takoma Park, Md., Kathleen M. Tucker, and Fred Baron, Washington, D.C., were on the brief, for appellants. Gregory C. Sisk, Atty., Dept, of Justice, with whom John R. Bolton, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., Robert S. Greenspan, Atty., Dept, of Justice, Washington, D.C., and Howard L. Hills, Atty., Dept, of State, were on the brief, for appel-lee. Before WALD, Chief Judge, and STARR and SENTELLE, Circuit Judges. Opinion for the Court filed by Circuit Judge SENTELLE. Opinion filed by Chief Judge WALD, concurring in judgment only. Circuit Judge SENTELLE announced the judgment of the Court in an opinion as to which Circuit Judge STARR concurs in all except Part IIB. Chief Judge WALD filed a separate opinion concurring in the result. SENTELLE, Circuit Judge: Residents and former residents of the northern atolls of the Marshall Islands appeal from a District Court judgment dismissing tort claims arising out of nuclear testing conducted by the United States on those islands. The District Court dismissed these tort claims for lack of justicia-bility, concluding that the complaint raised nonjusticiable political questions. Since we find that the District Court committed no error in its dismissal, we affirm for the reasons set out more fully below. I. Background A. The United States and the Marshall Islands The relationship between the United States and the Marshall Islands traces to the end of World War II, when the United States liberated the islands from Japan, which had administered them under a League of Nations mandate. From 1944 until July 18, 1947, the United States governed the islands under a temporary military occupation government. On July 18, 1947, the United Nations brought the Marshall Islands and other islands of Micronesia within the U.N. trusteeship system. The United States and the United Nations Security Council approved a trusteeship agreement designating the United States as “administering authority” over a trust territory comprised of the Marshall Islands, the Mariana Islands, and the Caroline Islands, all of which were commonly referred to as Micronesia. Trusteeship Agreement for the Former Japanese Mandated Islands, approved Apr. 2-Jul. 18, 1947, United Nations-United States, 61 Stat. 3301, T.I.A.S. No. 1665. As administering authority, the United States assumed full responsibility for governmental functions of Micronesia, including executive, legislative, and judicial powers, see id., art. 3, and agreed to assist in the development of the Micronesian islanders toward self-government and independence. See id., art. 6; see also United Nations Charter, art. 76(b). Under the Trusteeship Agreement, the United States retained the necessary control and authority over the Marshall Islands to continue nuclear testing begun during the period of military occupation pursuant to the Atomic Energy Act of 1946, Pub.L. No. 79-585, 60 Stat. 755 (1946), as amended by Atomic Energy Act of 1954, Pub.L. No. 83-703, 68 Stat. 919 (1954). Plaintiffs in the present litigation are residents and former residents of the northern Marshall Islands claiming injury to their persons or property by radioactive fallout from the nuclear tests. During the twenty years following the commencement of the trusteeship arrangement, the Secretary of the Interior, by authority of the President and with the advice and consent of the Senate, appointed a High Commissioner to serve as senior administrator of the trust territory. See Department of Interior Secretarial Order No. 2876, 29 Fed.Reg. 1855 (1964), superseded by Secretarial Order No. 2918, 34 Fed.Reg. 157 (1969). The High Commissioner reviewed both domestic and foreign governmental affairs of the trust territories. In the 1960’s, the United States initiated progress toward Micronesian self-government. In 1965 a congress of Micronesia came into being. Elected leaders from throughout the trust territory met to discuss concepts of independence and political unity. After the Micronesian Congress had considered various options, all parties agreed that cultural and geographic factors dictated a division of the trust territory into four independent governmental units, the Federated States of Micronesia, the Republic of Palau, the Commonwealth of the Northern Mariana Islands, and the Republic of the Marshall Islands (“RMI” or “Marshall Islands”), the only government whose citizens are plaintiffs in the present litigation. The RMI ratified a new constitution by referendum of March 1, 1979, and initiated a parliamentary government on May 1 of the same year. By order of April 25, 1979, the Secretary of the Interior, on behalf of the United States, acknowledged the existence of the governments of the Federated States of Micronesia, the Republic of Palau, and the RMI. Secretarial Order No. 3039, 44 Fed.Reg. 28, 116 (1979). This order delegated to the new governments most functions of government pending the termination of the trusteeship agreement but, subject to limitations contained in the order, retained in the United States residual authority for trusteeship obligations, including oversight of budget functions and administrative power to “suspend” legislation, amounting to a veto in the High Commissioner, subject to an appeal to the Secretary. Id. at §§ 3-6, 44 Fed.Reg. 28, 117-18. B. The Compact of Free Association All governments contemplated the evolution of the new entities toward self-governance with a view to the entry of each new government into a Compact of Free Association with the United States. In the case of the RMI, the negotiations leading to the Compact proceeded over the course of the next five years. Much of the negotiation concerned the settlement of nuclear claims giving rise to the present litigation. On June 25, 1983, the two governments executed the final version of the Compact of Free Association, Oct. 1, 1982-Jun. 25, 1983, United States-Micronesia-Marshall Islands, 99 Stat. 1800, T.I.A.S. No. _ (“Compact”), with an accompanying nuclear testing claims settlement, Agreement for the Implementation of Section 177 of the Compact of Free Association, Jun. 25, 1983, United States-Marshall Islands (“settlement agreement” or “Section 177 Agreement”), reprinted in Joint Appendix (“J.A.”) 67, which we will discuss below. The RMI approved the Compact including the settlement agreement in a U.N.-monitored plebiscite in September of 1983 by 58 percent vote of the Marshall Islanders. The President submitted the Compact and settlement agreement to Congress on March 30, 1984. After the 98th Congress failed to complete ratification, the President resubmitted the agreements to the 99th Congress on February 20, 1985. The House of Representatives approved final modified versions on December 11, 1985, and the Senate on December 13, 1985. See Juda v. United States, 13 Cl.Ct. at 673. On February 18, 1986, the Nitijela, the constitutionally established legislative body of the RMI, enacted the Compact of Free Association Resolution of 1986, Res. No. 62 N.D.-2 (1986), declaring “for purposes of ... Article V of the Constitution [of the RMI], the Nitijela hereby approves the Compact and its subsidiary agreements, as they relate to the Republic of the Marshall Islands_” Id. § 3. Thereafter the United States presented the Compact to the Trusteeship Council of the United Nations. On May 29, the Council adopted Resolution 2183 recalling the Trusteeship Agreement and Not [ing ] that the peoples of the ... Marshall Islands [and the surrounding Micronesian states] ... have freely exercised their right to self-determination in plebiscites observed by the visiting missions of the Trusteeship Council and have chosen free association with the United States of America.... [and] Consider [ing ] that the Government of the United States, as the Administering Authority, ha[d] satisfactorily discharged its obligations under the terms of the Trusteeship Agreement and that it [was] appropriate for that Agreement to be terminated with effect [from the effective date of full entry in the Compact] .... Examination of the annual report of the Administering Authority for the year ended 30 September 1985: Trust Territory of the Pacific Islands. T.C. Res. 2183, 53 U.N. TCOR (1617th mtg). The Resolution further declared the awareness of the Trusteeship Council that the process “of facilitating the progressive development of the peoples in Micronesia toward self-government or independence ... has been successfully completed.” Id. On January 14, 1986, President Reagan signed into law the Compact of Free Association Act of 1985, Pub.L. No. 99-239, 99 Stat. 1770 (1986) (reprinted as amended in 48 U.S.C. § 1681 note at 624-54 (Supp. IV 1986)) (“Compact Act”). On November 3, 1986, the President declared the Compact of Free Association with the Republic of the Marshall Islands in full force and effect retroactive to October 21, 1986. Proclamation No. 5564, § 3(a), 3 C.F.R. 149 (1987), reprinted in 48 U.S.C. § 1681 note at 658 (Supp. IV 1986). The United States and the Republic of the Marshall Islands subsequently exchanged diplomatic notes of formal recognition and established diplomatic missions headed by representatives ranked with other ambassadors. Juda, 13 Cl.Ct. at 677. C. The Present Litigation and the Settlement Agreement On August 22, 1983, while the Compact and settlement were in negotiation, approximately three thousand present and former residents of the northern Marshall Islands and atolls directly downwind from the nuclear test sites filed the present action in the District Court for the District of Columbia, seeking damages for personal inju-ríes and death resulting from their exposure to dangerous levels of radiation. Plaintiffs claimed that the District Court had subject matter jurisdiction over the action pursuant to 28 U.S.C. § 1346 (United States as defendant), claiming liability under the Federal Tort Claims Act, 28 U.S.C. § 2674. The District Court stayed the action at the request of the United States pending the entry of the two governments into the Compact of Free Association. Then, on motion of the United States, the Court dismissed the action for lack of jurisdiction based on Section 103(g)(1) of the Compact Act and Articles X and XII of the Section 177 Agreement. Section 103(g)(1) expresses the intent of Congress that the provisions of the 177 Agreement constitute a full and final settlement of all claims described in the cited articles of the Agreement and that “any such claims be terminated and barred except insofar as provided for in the Section 177 Agreement.” Pub.L. No. 99-239, § 103(g)(1), 99 Stat. 1782 (reprinted in 48 U.S.C. § 1681 note at 629 (Supp. IV 1986)). The District Court held that the RMI’s espousal and settlement of the claims were not reviewable by the courts of the United States and that the Court lacked “jurisdiction over plaintiffs’ claims, pursuant to valid law and in conjunction with non-reviewable foreign relations decisions.” Antolok v. United States, No. 85-2471, slip op. at 8 (D.D.C. Jun. 16, 1987). It is from this order of dismissal that plaintiffs now appeal. II. Analysis The United States urges that we should affirm the District Court’s dismissal of these claims on two distinct theories, both of which arise out of the terms of the Section 177 Agreement and the Compact Act incorporating that Agreement: first, that the Compact (incorporating the Agreement) and the Act of Congress endorsing the Compact withdrew jurisdiction over these claims in express terms; second, that the challenge to settlement terms negotiated as an integral part of diplomatic recognition of a foreign state raises non-reviewable political question. Upon analysis of the Compact, the incorporated 177 Agreement, and the relevant legislation in light of precedent and other applicable law, we find that the District Court was correct in dismissing these claims for lack of jurisdiction. A. The Withdrawal of Jurisdiction In Section 177 of the Compact of Free Association the United States “accepted] the responsibility for compensation owing to citizens of the Marshall Islands ... for loss or damage to property and person ... resulting from the nuclear testing program which the Government of the United States conducted in the Northern Marshall Islands between June 30, 1946, and August 18, 1958.” Compact, § 177(a), 99 Stat. 1812 (reprinted in 48 U.S.C. § 1681 note at 642 (Supp. IV 1986)), T.I.A.S. No_, at_ This Section provided that the two governments, the United States and the Marshall Islands, would set forth in a separate agreement provisions for “just and adequate settlement” of those claims and that the “separate agreement shall come into effect simultaneously with” the Compact. Id. § 177(b). Section 177(c) provides for a one hundred fifty million dollar grant from the United States to the Marshall Islands for payment and distribution under the separate agreement in satisfaction of those claims. Id. § 177(c). Article X of the resulting Section 177 Agreement headed “Espousal” provides that the Agreement constitutes full settlement of all the nuclear testing claims, including any then pending or later filed in any court or other judicial or administrative forum “including ... the courts of the United States and its political subdivisions.” Section 177 Agreement, art. X, § 1. Article XII of the Agreement is entitled “United States Courts.” That Article reads, in full, as follows: All claims described in Articles X and XI of this Agreement shall be terminated. No court of the United States shall have jurisdiction to entertain such claims, and any such claims pending in the courts of the United States shall be dismissed. Id., art. XII. By its plain language, the Agreement contemplated a divestiture of jurisdiction of the District Court over this subject matter. Congress recognized as much and indeed required the same in the Compact Act. Section 103(g) of that Act expressly states “the intention of the Congress of the United States that the provisions of section 177 ... and the [Section 177] Agreement ... constitute a full and final settlement of all claims described in Articles X and XI of the Section 177 Agreement, and that any such claims be terminated and barred except insofar as provided for in the Section 177 Agreement.” Pub.L. No. 99-239, § 103(g)(1), 99 Stat. 1782 (reprinted in 48 U.S.C. § 1681 note at 629 (Supp. IV 1986)). It would appear obvious from the plain language of the 177 Agreement and the statute that Congress intended the District Court, and in turn this Court, to have no jurisdiction over claims, such as the ones asserted here, encompassed within the settlement agreement. It is axiomatic in our federal jurisprudence that inferior courts, including the District Court and this Court, have only that jurisdiction afforded them by Congress. Article III, Section 1 of the Constitution established the judicial power in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” U.S. Const, art. Ill, § 1. In 1850, a unanimous Supreme Court held that [t]he Constitution has defined the limits of the judicial power of the United States, but has not prescribed how much of it shall be exercised by the [inferior] Court[s]; consequently, the statute which does prescribe the limits of their jurisdiction, cannot be in conflict with the Constitution, unless it confers powers not enumerated therein. Sheldon v. Sill, 49 U.S. (8 How.) 441, 449, 12 L.Ed. 1147 (1850). The 1850 Court was already able to call upon fifty-one years of precedent for that doctrine. See Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 11, 1 L.Ed. 718 (1799); McIntire v. Wood, 11 U.S. (7 Cranch) 504, 506, 3 L.Ed. 420 (1813); Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 619, 9 L.Ed. 1181 (1838); Cary v. Curtis, 44 U.S. (3 How.) 236, 245, 11 L.Ed. 576 (1845). Otherwise put, every court other than the Supreme Court “created by the general government derives its jurisdiction wholly from the authority of Congress. That body may give, withhold or restrict such jurisdiction at its discretion, provided it be not extended beyond the boundaries fixed by the Constitution.” Kline v. Burke Constr. Co., 260 U.S. 226, 234, 43 S.Ct. 79, 82, 67 L.Ed. 226 (1922). See also Christianson v. Colt Indus., — U.S. —, 108 S.Ct. 2166, 2178, 100 L.Ed.2d 811 (1988). It is simply too late in the day to assert that Congress lacks the power to deprive the inferior federal courts of subject matter jurisdiction over the present claims. The language of the statute and the Agreement are simply too plain to deny that Congress expressed this very intent in the present case. This power of Congress is particularly plain in the present case, since it involves a matter of sovereign immunity. It is another axiom of our jurisprudence that “the United States may not be sued without its consent.” 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 3654, at 186 (2d ed.1985), and authorities collected at note 2. While plaintiffs are correct that the Federal Tort Claims Act, 28 U.S.C. § 1346(b), initially provided a waiver of immunity for this tort action, Congress withdrew their consent for this type of claim in ratifying the Compact and the Section 177 Agreement, providing that “all claims described in Articles X and XI of the Section 177 Agreement ... [are] terminated and barred except insofar as provided in the Section 177 Agreement.” Compact Act, § 103(g)(1), 99 Stat. 1782. As the Claims Court noted in the companion litigation, “[a]n unbroken line of decisions holds that Congress may withdraw its consent to sue the Government at any time.” Juda v. United States, 13 Cl.Ct. at 689. Existing authorities clearly support this holding by the Claims Court. In Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434 (1934), Justice Brandéis, writing for a unanimous Court, stated “consent to sue the United States is a privilege accorded; not the grant of a property right protected by the Fifth Amendment. The consent may be withdrawn, although given after much deliberation and for a pecuniary consideration.” Id. at 581, 54 S.Ct. at 844 (citation omitted). While that statement was technically dicta, since the Court held that Congress had not in that case withdrawn consent, id. at 583, 54 S.Ct. at 845, there is no indication in any later decision that the dicta is other than an accurate statement of the law. Indeed, in Maricopa County v. Valley Nat’l Bank of Phoenix, 318 U.S. 357, 63 S.Ct. 587, 87 L.Ed. 834 (1943), Justice Douglas, again for a unanimous Court, stated, this time as a holding, that [n]o ... suit [against the United States] may be maintained without the consent of the United States. Such consent, though previously granted, has now been withdrawn. And the power to withdraw the privilege of suing the United States or its instrumentalities knows no limitations. Id. at 362, 63 S.Ct. at 589 (citing Lynch v. United States, supra). Plaintiffs’ argument against withdrawal of jurisdiction is based on a convoluted interpretation of Section 103(g)(2) of the Compact Act and Article XII of the 177 Agreement. Section 103(g)(2) recites that [i]t is the explicit understanding and intent of Congress that the jurisdictional limitations set forth in Article XII of [the Section 177] Agreement are enacted solely and exclusively to accomplish the objective of Article X of such Agreement and only as a clarification of the effect of Article X, and are not to be construed or implemented separately from Article X. Pub.L. No. 99-239, § 103(g)(2), 99 Stat. 1782 (reprinted in 48 U.S.C. § 1681 note at 629-30 (Supp. IV 1986)). Subsection (g) bears the caption “Espousal Provisions.” Article X of the Section 177 Agreement is likewise headed “Espousal.” In international law the doctrine of “espousal” describes the mechanism whereby one government adopts or “espouses” and settles the claim of its nationals against another government. See generally Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517, 1522-23 (D.C.Cir.1984), cert. denied, 470 U.S. 1051, 105 S.Ct. 1751, 84 L.Ed.2d 815 (1985). Reading together the quoted language from Section 103(g)(2) and the heading lines and language of that statute and the cited article of the Section 177 Agreement, plaintiffs argue that Congress’s withdrawal of jurisdiction over these claims is a conditional one effective only if the espousal by the Marshall Islands of the claims of its nationals is valid. Plaintiffs then argue that we should review the espousal, find it to be invalid, then find the condition for the withdrawal of jurisdiction not to be met, jurisdiction to exist under the Federal Tort Claims Act, and the District Court to have been in error. The short answer to plaintiffs’ argument that this is the meaning of Section 103(g)(2) is: This is not what the statute says. Section 103(g)(1) expresses “the intention of the Congress of the United States that the provisions of [the Compact and the Section 177 Agreement] constitute a full and final settlement of all claims described in Articles X and XI of the ... Agreement, and that any such claims be terminated and barred except insofar as provided for in the Section 177 Agreement.” Pub.L. No. 99-239, § 103(g)(1), 99 Stat. 1782 (reprinted in 48 U.S.C. § 1681 note at 629 (Supp. IV 1986)). The Agreement entered by the Executive and approved by Congress expressly states in Article XII “[a]ll claims described in Articles X and XI ... shall be terminated. No court of the United States shall have jurisdiction to entertain such claims, and any such claims pending in the courts of the United States shall be dismissed.” Section 177 Agreement, art. XII. Congress could hardly have spoken more explicitly in stripping jurisdiction. Congress has simply deprived the District Court and in turn this Court of jurisdiction to review these claims. As the Claims Court noted in parallel litigation, “[as] enacted, ... Section 103(g) makes no reference as to the validity of espousal on the basis of either international or constitutional law.” Juda v. United States, 13 Cl.Ct. at 684. Similarly, as the District Court for the Central District of California noted in other related litigation, if Congress had meant to condition this important international agreement on a review of a fundamental provision therein by the courts, it surely could have included language to that effect. “If Congress wanted to first have the courts test the Compact, it could have said so; instead Congress stripped the court of jurisdiction.” Antolok v. Brookhaven Nat’l Laboratories, Nos. CV 82-2364, CV 82-4978, slip op. at 8 (C.D.Cal. Jan. 6, 1988). Congress has deprived the courts of the United States of jurisdiction over these claims. It did not deprive the courts of jurisdiction over the substance of the claims until after a review of the espousal question; it deprived the courts of jurisdiction. That is the end of the matter. The language of Section 103(g)(2) upon which plaintiffs rely simply makes it plain that the deprivation of jurisdiction applies not to all claims by the Marshall Islanders against the United States, but only those described in Articles X and XI of the Section 177 Agreement. Presumably, any other claim, under the Federal Torts Claims Act or other authority, could proceed. Plaintiffs attempt to bolster their interpretation of Section 103(g)(2) and the incorporated articles of the Agreement and Compact by a single statement of Congressman Seiberling from the legislative history. Seiberling, Chairman of the House Interior Committee’s Subcommittee on Public Lands, inserted into the Congressional Record a statement that the relevant language is intended to make it clear that court-stripping provisions in article XII of the section 177 agreement have no independent force or effect and their sole function is to implement the provisions of article X. Thus, if article X is valid, the espousal stands; and if article X is invalid, claims covered by the espousal provision will remain justiciable in U.S. courts, regardless of article XII. 131 Cong.Rec. H11829 (daily ed. Dec. 11, 1985). Again, the short answer to plaintiffs’ contention is a simple one. As the Supreme Court has repeatedly reminded us, “ ‘[w]hen ... the terms of a statute [are] unambiguous, judicial inquiry is complete except “in ‘rare and exceptional circumstances.’ ” ’ ” United States v. James, 478 U.S. 597, 606, 106 S.Ct. 3116, 3122, 92 L.Ed. 2d 483 (1986) (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981) (citations within Rubin omitted)). We cannot find the single statement of even an influential Congressman to overcome the plain language of the statute itself, especially where that statement was not spoken in floor debate but rather inserted into the Congressional Record. Further, if we do go beyond the language of the statute, we find, as the Supreme Court did in James in construing a statute rendering the United States immune from flood damage claims, that the legislative history of the Compact Act taken as a whole reinforces, rather than contradicts, the plain language of the statute. An earlier version of 103(g)(2) drafted by Congressman Seiberling and passed by the House would have provided: (2) If, notwithstanding the enactment into law of this joint resolution, a United States court of competent jurisdiction determines that the provisions of Article X of the [Section 177 Agreement] are invalid as a matter of international law or for any other reason, the provisions of Article XII ... shall not, of themselves, prevent any court of the United States otherwise having jurisdiction over claims described in Articles X and XI ... from entertaining such claims; and the time between the effective date of the Compact and subsequent final judicial determination of the invalidity of Article X ... shall not be included in any calculations regarding applicable statutes of limitation. ... H.R.J.Res. 355, 99th Cong., 1st Sess., § 103(g)(2), 131 Cong.Rec. 20,643 (1985). In the Compact Act as adopted, Congress retained the House-passed version of Paragraph 1 of Section 103(g), affirming the “full and final settlement,” but completely rewrote Paragraph 2. See Pub.L. No. 99-239, § 103(g)(2), 99 Stat. 1782 (reprinted in 48 U.S.C. § 1681 note at 629-30 (Supp. IV 1986)). The prior version supportive of plaintiffs’ argument for conditional withdrawal of jurisdiction was deleted in favor of the present language of the statute. Congressman Seiberling’s insertion into the Congressional Record cannot reinstate the provision which Congress refused to enact. The section-by-section analysis of the Compact Act prepared by the Senate managers of the legislation states that Section 103(g) “reiterates the provisions of Section 177 of the Compact which provide that there is full and final settlement of all nuclear effects claims.” 131 Cong. Rec. 36,468 (1985) (emphasis supplied). The Senate analysis further expressed an understanding of subsection (g) that in light of concerns over “protracted litigation” “an explicit endorsement of the resolution was important.” Id. Moreover, at least one other speaker on the House floor contradicted the interpretation of the statute offered in Congressman Sieberling’s insertion. Congressman So-larz expressly stated “the compact settles all nuclear claims resulting from our nuclear weapons testing program in Micronesia.” 131 Cong.Rec. 36,039 (1985). The contradiction between Congressmen Seiberling and Solarz need not dismay us, nor need we seek to resolve it. It may simply remind us once again that an endemic interplay, in Congress, of political and legislative considerations ... makes it necessary for judges to exercise extreme caution before concluding that a statement made in floor debate, or at a hearing, or printed in a committee document may be taken as statutory gospel. Otherwise, they run the risk of reading authentic insight into remarks intended to serve quite different purposes. International Bhd. of Elec. Workers, Local Union No. 474 v. NLRB, 814 F.2d 697, 717 (D.C.Cir.1987) (Buckley, J., concurring). While it is only waggishly stated that “where the statutory history is ambiguous we will look to the words of the statute,” our result in this case would be unchanged if that were the proper canon of statutory construction. Congress has stripped the courts of jurisdiction over these claims. We are not surprised, but are bolstered, in our confidence in our interpretation of the statute that the Claims Court in Juda, the Federal Circuit in People of Enewetak and in People of Bikini, and the District Court for the Central District of California in Antolok v. Brookhaven Nat’l Laboratories have all viewed the jurisdictional question consistently with our decision today. See supra note 3. Before closing our analysis of the statutory bar to jurisdiction, we note that plaintiffs have attempted to shore up their interpretation of the statute by arguing that the literal interpretation of the statute adopted by the District Court and by us herein raises a constitutional difficulty avoided by accepting their more convoluted interpretation. This argument, relying on In re Consol. United States Atmospheric Testing Litigation v. United States, 820 F.2d 982 (9th Cir.1987), asserts that the plaintiffs’ claims for relief against the United States are a “ ‘species of property protected by the Fourteenth Amendment’s Due Process Clause.’ ” Id. at 988 (citation omitted). Thus, they argue, while this does not necessarily mean that the claims have the same Fifth Amendment protections accorded real or personal property, nonetheless each plaintiff has the “right to assert a claim for compensation or some other form of judicial relief.” Id. at 989. This argument proves far too much. If we adopted the Ninth Circuit’s language and gave it the interpretation sought by plaintiffs, we would fly in the face of the language quoted above from Lynch and Maricopa County. Indeed, in Lynch, the dicta approving the power of Congress to eliminate claims from the jurisdiction of the courts was pronounced by a Court striking down on Fifth Amendment grounds a statute which, rather than limiting jurisdiction, was, in fact, abrogating obligations of the United States. 292 U.S. at 579-80, 583-85, 54 S.Ct. at 845-46. Had jurisdictional limitation partaken of the same constitutional infirmity, it is hardly likely that the Court would have been at pains to distinguish stripping of jurisdiction from abrogation of claims. In Lynch, the Supreme Court expressly held “[rjights against the United States arising out of a contract with it are protected by the Fifth Amendment.” Id. at 579, 54 S.Ct. at 843 (citations omitted). At the same time it noted in dicta that “consent to sue the United States is a privilege Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:
songer_abusedis	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 civil law issues involving government actors. The issue is: "Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America ex rel. Grigorios STELLAS, Relator-Appellant, v. P. A. ESPERDY, as District Director of the Immigration Service for the District of New York, or such person, if any, who may have said Grigorios Stellas in custody, Respondent-Appellee. No. 396, Docket 30356. United States Court of Appeals Second Circuit. Argued June 1, 1966. Decided Aug. 30, 1966. Moore, Circuit Judge, dissented. Anna M. Pappas, New York City (Pap-pas & Pappas, New York City, on the brief), for appellant. Francis J. Lyons, Sp. Asst. U. S. Atty. Southern District of New York (Robert M. Morgenthau, U. S. Atty., and James G. Greilsheimer, Sp. Asst. U. S. Atty. Southern District of New York, on the brief), for appellee. Before MOORE, SMITH and KAUFMAN, Circuit Judges. SMITH, Circuit Judge: Grigorios Stellas appeals from an order of the United States District Court for the Southern District of New York, Frederick van Pelt Bryan, Judge, dismissing his application for a writ of habeas corpus. Stellas, an alien, native of Greece, arrived at New York as a crewman on the M/T Andreas on June 23, 1961. He complained of tonsilitis, and was paroled into this country for medical treatment for one month. At the same time, his crewman’s landing permit, under which he had previously made a number of landings, was revoked. At the expiration of the parole, he failed to return to his vessel or to the Immigration and Naturalization Service, and remained at large until July 11, 1963, when he was found by the INS, and his parole was revoked. Of course, by then his parole had long since expired. By that time, however, he had married a United States citizen, and had one daughter, with another child expected. The District Director reparoled Stellas so that he could remain with his wife in her condition. Parole was to continue until 30 days after the termination of her pregnancy. Mrs. Stellas promptly filed a petition with the INS to have Stellas accorded non-quota immigrant status. The petition was approved by the District Director on August 4, 1963. In accordance with his plan to perfect his status, Stellas indicated that he would go to Caracas, Venezuela, to file for an immigrant visa. Allegedly for financial reasons, however, he was never able to do so. Parole was periodically extended, the last time until March 16, 1966, for completion of the immigrant visa. But on November 10,1965, Mrs. Stellas expressed a wish that the petition be withdrawn, alleging that she was in fear of bodily harm, and asking that her husband be deported. She signed a request for withdrawal of the petition. By applicable regulation, 8 C.F.R. § 206.1(b) (1), approval of the visa petition was automatically revoked. Stellas’ parole was then revoked, by notice to him, and only the issuance of an order of the District Court prevented his summary deportation. On December 6, 1965, after an apparent reconciliation, Mrs. Stellas filed a new visa petition to accord Stellas immediate relative status, but at the time indicating that she was acting under pressure from her husband’s relatives and friends. After an investigation, Mrs. Stellas indicated she wished to withdraw the petition, and did so December 15. The District Court denied the writ and Stellas appeals. We find no error and affirm. Although Stellas originally could have come ashore on his crewman’s landing permit, he actually was paroled into this country. § 212(d) (5) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1182(d) (5). Accordingly, both as a matter of statutory construction, Kaplan v. Tod, 267 U.S. 228, 45 S.Ct. 257, 69 L.Ed. 585 (1925), Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958), Licea-Gomez v. Pilliod, 193 F.Supp. 577 (N.D.Ill.1960), and as a matter of the scope of constitutional guarantees, Wong Hing Fun v. Esperdy, 335 F.2d 656 (2d Cir. 1964), cert. denied sub nom. Ng Sui Sang v. Esperdy, 379 U.S. 970, 85 S.Ct. 667, 13 L.Ed.2d 562 (1965), Ahrens v. Rojas, 292 F.2d 406 (5th Cir. 1961), Stellas may be deported without a hearing. See also United States ex rel. Lam Hai Cheung v. Esperdy, 345 F.2d 989 (2d Cir. 1965). Since he was paroled into the country, it is as if he were “stopped at the limit of our jurisdiction,” United States v. Ju Toy, 198 U.S. 253, 263, 25 S.Ct. 644, 646, 49 L.Ed. 1040 (1905), and it is the same “as if [he] never had been removed from the steamship,” Nishimura Ekiu v. United States, 142 U.S. 651, 661, 12 S.Ct. 336, 339, 35 L.Ed. 1146 (1892). As the Court recognized in Leng May Ma, supra, there is no difference between parole and detention ashore. Accordingly, Stellas is being excluded, not expelled, and no hearing is necessary, since he does not make a claim of citizenship. Any procedure authorized by Congress for the exclusion of aliens is due process, United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317 (1950), a point on which the Court was unanimous. Exclusion raises no due process question. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953). Petitioner suggests that it was improper for the INS to revoke his landing permit and instead to parole him, and he claims that if he had entered under his landing permit, he would have had the protection of full-scale deportation procedure, upon a revocation of the permit, or upon his failure to return to the ship, and could not be summarily deported. This misreads the statute. Sec. 252(b) of the Act, 8 U.S.C. § 1282(b), provides that plenary deportation procedure, that required by § 242 of the Act, 8 U.S.C. § 1252, is not required in deporting an alien on revocation of his permit. Nor does the Constitution compel a different result. Appellant’s permit, like all others, states, “By accepting this conditional permit to land the holder agrees to all the conditions incident to the issuance thereof, and to deportation * * * in accordance with the provisions of § 252(b) * * Had appellant entered on a permit, he would have waived any Constitutional right to full-scale deportation proceedings. Compare United States ex rel. Szlajmer v. Esperdy, 188 F.Supp. 491 (S.D.N.Y.1960). In any case, Stellas was here in November and December, 1965, on reparole. When apprehended on July 11, 1963, his permission to land would have long expired, as all are limited by statute, § 252(a) (2) of the Act, 8 U.S.C. § 1282 (a) (2) to 29 days. He was then obviously deportable. Having subsequently been reparoled, and his wife having then filed her petition, occasioning his parole on yet a third ground, Stellas is in no position to complain. And whether or not his initial parole, for medical reasons, was proper, his reparole was proper. Moreover, while the “permanent type landing permit,” 8 C.F.R. § 252.4(a), of which Stellas was allegedly possessed, is revocable under the Regulation for wilful violation of its terms, or when its holder is ineligible for it, or inadmissible, these categories of revocability are not intended to be exclusive. Since under the statute, § 252 of the Act, 8 U.S.C. § 1282, a permit is given each time the crewman arrives, and it is explicitly within the discretion of the immigration officer to grant a permit, he has discretion to revoke the “permanent type landing permit” on any entry of the crewman. The sole meritorious ground for appeal is the claim that the procedure followed by the INS is not authorized by the Act, and is an abuse of discretion, in that the automatic revocation of a visa petition upon its withdrawal by the citizen spouse, 8 C.F.R. § 206.1(b) (1), conflicts with the statute, § 206 of the Act, 8 U.S.C. § 1155, which provides that the Attorney General may, at any time, “for what he deems to be good and sufficient cause” revoke a visa petition. We read the statute as affording the Attorney General the usual measure of administrative discretion. The Regulation does not create a rule at odds with the statute. Sec. 206 does not prevent the Attorney General from formulating rules which irrevocably govern the question of revocation of visa petitions. That question, as we have said, is a matter confined to his discretion. But the Attorney General may govern the exercise of his discretion by written or unwritten rules; indeed it would be remarkable if he did not. Any such decision is an application of facts to principles. All this regulation does is provide a substitute for the exercise of discretion on a case by case basis. But there has been an exercise of discretion; in effect, the Attorney General has announced that he deems it good and sufficient cause, in every case, to revoke on withdrawal. We know of no rule which requires a case by case approach; the Attorney General certainly may proceed by regulation. Contrast United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). In Mastrapasqua v. Shaughnessy, 180 F.2d 999, 1002 (2d Cir. 1950) this court stated that a refusal to exercise discretion occurs when an official sets up a class of cases as to which he refuses ever to exercise any [further] discretion, one way or the other, if that class is not rationally differentiated from other cases, not within that class, where he uses his discretion case by case. The regulation here, however, does not create an arbitrary or capricious class of cases. In Mastrapasqua, the class was set up by the Attorney General making a ruling in a single case. It follows from the portion of the opinion quoted that at least if the class created is susceptible of rational differentiation, then there is an exercise of discretion in following the rule. And in United States ex rel. Knauff v. McGrath, 181 F.2d 839 (2d Cir. 1950), vacated as moot, 340 U.S. 940, 71 S.Ct. 504, 95 L.Ed. 678 (1951), the court came to a similar conclusion. The statute there provided for deportation “unless in the opinion of the Attorney General immediate deportation is not practicable or proper.” The INS admitted that when a private bill was introduced in Congress to avoid the deportation of an alien, it was the invariable practice of the INS to stop all further efforts to deport. In the case of Mrs. Knauff, this practice was not followed. The court stated that the “invariable practice” could be regarded in one (or both) of two ways. First, it could be a settled administrative interpretation of the Act that it is never “proper” in “the opinion of the Attorney General” not to suspend deportation when a private bill was pending, an interpretation which would ordinarily be entitled to great weight. Second, it could be the establishment of a class of situations as to which the Attorney General has always so exercised his discretion. The classification was reasonable, and a departure from it would be an arbitrary or capricious act, an abuse of discretion. It is implicit in each of these cases that the Attorney General may in effect rule in advance as to how his discretion will be exercised, and that following such a rule is not a failure to exercise discretion. The fact that there is a rule does not “prejudge” the exercise of discretion as in Accardi, supra. Rather, it is the exercise of discretion, and since the power to make that determination has not been delegated, Accardi is readily distinguishable. It is true that the regulation says that the petition is “automatically” revoked; hence it might be said that there is no separate act of following the rule of discretion established by that very regulation. Even under the regulation, however, the ministerial act of notice is required, and under the statute, if not also the regulation, revocation is not effective until notice is given, although revocation once effective is retroactive to the date of approval of the petition. We do not read the regulation as in conflict with the statute on that account. Revocation is “automatic” only in that no further exercise of discretion is required. Still to be considered is whether, though there was an exercise of discretion, there was an abuse of discretion, in revoking the petition. We cannot say that there was an abuse of discretion here. As the consular official in Caracas stated, Stellas “never actively pursued [his] visa application,” and he had had over two years of parole extensions to do so. Since this was so, and since Stellas’ wife wished that the petition be withdrawn, there was sufficient reason to revoke the petition. See Scalzo v. Hurney, 225 F.Supp. 560 (E.D.Pa.1963) aff’d 338 F.2d 339 (3rd Cir. 1964). We have examined appellant’s other contentions, and find them without merit. His case evokes sympathy, but he has been accorded the treatment prescribed by Congress, and the judgment of the District Court is therefore Affirmed. . § 205(b) of the Act, now repealed, and replaced by § 4 of the Immigration Act of 1965, 8 U.S.C. § 1154. . 8 U.S.C. § 1154. . Stellas asserts that Ms wife has engaged in extramarital misconduct and finds his presence in this country inconvenient. . The precise question before the court is the effectiveness of the revocation of parole, not of the visa petition. The INS has not suggested that even if automatic revocation of the petition was proper, the revoeation of parole was proper as an independent exercise of discretion. In fact it would appear that revocation of parole followed automatically from the revocation of the petition. Question: Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. A. No B. Yes C. Mixed answer D. Issue not discussed 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 K MART CORP. v. CARTIER, INC., et al. No. 86-495. Argued October 6, 1987 — Reargued April 26, 1988 Decided May 31, 1988 Kennedy, J., announced the judgment of the Court and delivered an opinion of the Court with respect to Parts I and II-A, in which Eehn-quist, C. J., and White, Blackmun, O’Connor, and Scalia, JJ., joined, an opinion of the Court with respect to Part II-C, in which Eehnquist, C. J., and Blackmun, O’Connor, and Scalia, JJ., joined, and an opinion with respect to Part II-B, in which White, J., joined. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Marshall and Stevens, JJ., joined, and in Part IV of which White, J., joined, post, p. 295. Scalia, J., filed an opinion concurring in part and dissenting in part, in which Eehnquist, C. J., and Blackmun and O’Connor, JJ., joined, post, p. 318. Deputy Solicitor General Cohen reargued the cause for petitioners in No. 86-625. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Assistant Attorney General Spears, Jeffrey P. Minear, David M. Cohen, Robert V. Zener, and Alfonso Robles. Nathan Lewin reargued the cause for petitioners in Nos. 86-495 and 86-624. With him on the briefs for petitioner in No. 86-624 was Jamie S. Gorelick. Robert W. Steele argued the cause for petitioners in Nos. 86-495 and 86-624 on the original argument. With him on the briefs for petitioner in No. 86-495 were Robert E. Hebda and James C. Tuttle. William H. Allen reargued the cause for respondents. With him on the briefs were Eugene A. Ludwig, Scott D. Gilbert, and Elizabeth V. Foote Together with No. 86-624, 47th Street Photo, Inc. v. Coalition to Preserve the Integrity of American Trademarks et al., and No. 86-625, United States et al. v. Coalition to Preserve the Integrity of American Trademarks et al., also on certiorari to the same court. Briefs of amici curiae urging reversal were filed for the State of Washington by Kenneth 0. Eikenberry, Attorney General, and John G. Hennen, Senior Assistant Attorney General; for the American Free Trade Association by Stephen Kurzman, Robert Ullman, and Steven R. Trost; for the Consumers Union of U. S., Inc., by Alan Mark Silbergeld; for Darby Dental Supply Co. et al. by Robert V. Marrow; for the National Association of Catalog Showroom Merchandisers by Richard B. Kelly and Thomas P. Mohen; for the National Mass Retailing Institute by William D. Coston and Robert J. Verdisco; and for Progress Trading Co. by William F. Sondericker, Robert L. Hoegle, and Frank W. Gaines, Jr. Briefs of amici curiae urging affirmance were filed for American Cyanamid Co. et al. by David Ladd and Thomas W. Kirby; for the American Intellectual Property Law Association, Inc., by Neil A. Smith; for Duracell Inc. by James N. Bierman, Jay N. Varón, Sheila McDonald Gill, and Gregg A. Dwyer; for Lever Brothers Co. by Robert P. Devlin; for the Motor Vehicle Manufacturers Association of the United States, Inc., by William H. Crabtree; for the United States Trademark Association by Marie V. Driscoll; and for Yamaha International Corp. et al. by Robert E. Wagner and Robert E. Browne. Harold C. Wegner, Barry E. Bretschneider, Donald R. Dinan, Charles F. Schill, and Albert P. Halluin filed a brief for Cetus Corp. as amicus curiae. Justice Kennedy announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, and II-C, and an opinion with respect to Part II-B, in which White, J., joined. A gray-market good is a foreign-manufactured good, bearing a valid United States trademark, that is imported without the consent of the United States trademark holder. These cases present the issue whether the Secretary of the Treasury’s regulation permitting the importation of certain gray-market goods, 19 CFR § 133.21 (1987), is a reasonable agency interpretation of § 526 of the Tariff Act of 1930 (1930 Tariff Act), 46 Stat. 741, as amended, 19 U. S. C. § 1526. I A The gray market arises in any of three general contexts. The prototypical gray-market victim (case 1) is a domestic firm that purchases from an independent foreign firm the rights to register and use the latter’s trademark as a United States trademark and to sell its foreign-manufactured products here. Especially where the foreign firm has already registered the trademark in the United States or where the product has already earned a reputation for quality, the right to use that trademark can be very valuable. If the foreign manufacturer could import the trademarked goods and distribute them here, despite having sold the trademark to a domestic firm, the domestic firm would be forced into sharp intrabrand competition involving the very trademark it purchased. Similar intrabrand competition could arise if the foreign manufacturer markets its wares outside the United States, as is often the case, and a third party who purchases them abroad could legally import them. In either event, the parallel importation, if permitted to proceed, would create a gray market that could jeopardize the trademark holder’s investment. The second context (case 2) is a situation in which a domestic firm registers the United States trademark for goods that are manufactured abroad by an affiliated manufacturer. In its most common variation (case 2a), a foreign firm wishes to control distribution of its wares in this country by incorporating a subsidiary here. The subsidiary then registers under its own name (or the manufacturer assigns to the subsidiary’s name) a United States trademark that is identical to its parent’s foreign trademark. The parallel importation by a third party who buys the goods abroad (or conceivably even by the affiliated foreign manufacturer itself) creates a gray market. Two other variations on this theme occur when an American-based firm establishes abroad a manufacturing subsidiary corporation (case 2b) or its own unincorporated manufacturing division (case 2c) to produce its United States trademarked goods, and then imports them for domestic distribution. If the trademark holder or its foreign subsidiary sells the trademarked goods abroad, the parallel importation of the goods competes on the gray market with the holder’s domestic sales. In the third context (case 3), the domestic holder of a United States trademark authorizes an independent foreign manufacturer to use it. Usually the holder sells to the foreign manufacturer an exclusive right to use the trademark in a particular foreign location, but conditions the right on the foreign manufacturer’s promise not to import its trademarked goods into the United States. Once again, if the foreign manufacturer or a third party imports into the United States, the foreign-manufactured goods will compete on the gray market with the holder’s domestic goods. B Until 1922, the Federal Government did not regulate the importation of gray-market goods, not even to protect the investment of an independent purchaser of a foreign trademark, and not even in the extreme case where the independent foreign manufacturer breached its agreement to refrain from direct competition with the purchaser. That year, however, Congress was spurred to action by a Court of Appeals decision declining to enjoin the parallel importation of goods bearing a trademark that (as in case 1) a domestic company had purchased from an independent foreign manufacturer at a premium. See A. Bourjois & Co. v. Katzel, 275 F. 539 (CA2 1921), rev’d, 260 U. S. 689 (1923). In an immediate response to Katzel, Congress enacted § 526 of the Tariff Act of 1922, 42 Stat. 975. That provision, later reenacted in identical form as § 526 of the 1930 Tariff Act, 19 U. S. C. § 1526, prohibits importing “into the United States any merchandise of foreign manufacture if such merchandise . . . bears a trademark owned by a citizen of, or by a corporation or association created or organized within, the United States, and registered in the Patent and Trademark Office by a person domiciled in the United States . . . , unless written consent of the owner of such trademark is produced at the timé of making entry.” 19 U. S. C. § 1526(a). The regulations implementing §526 for the past 50 years have not applied the prohibition to all gray-market goods. The Customs Service regulation now in force provides generally that “[f ]oreign-made articles bearing a trademark identical with one owned and recorded by a citizen of the United States or a corporation or association created or organized within the United States are subject to seizure and forfeiture as prohibited importations.” 19 CFR § 133.21(b) (1987). But the regulation furnishes a “common-control” exception from the ban, permitting the entry of gray-market goods manufactured abroad by the trademark owner or its affiliate: “(c) Restrictions not applicable. The restrictions . . . do not apply to imported articles when: “(1) Both the foreign and the U. S. trademark or trade name are owned by the same person or business entity; [or] “(2) The foreign and domestic trademark or trade name owners are parent and subsidiary companies or are otherwise subject to common ownership or control. . . The Customs Service regulation further provides an “authorized-use” exception, which permits importation of gray-market goods where “(3) [t]he articles of foreign manufacture bear a recorded trademark or trade name applied under authorization of the U. S. owner . . . 19 CFR § 133.21(c) (1987). Respondents, an association of United States trademark holders and two of its members, brought suit in Federal District Court in February 1984, seeking both a declaration that the Customs Service regulation, 19 CFR §§ 133.21(c)(1)-(3) (1987), is invalid and an injunction against its enforcement. Coalition to Preserve the Integrity of American Trademarks v. United States, 598 F. Supp. 844 (DC 1984). They asserted that the common-control and authorized-use exceptions are inconsistent with §526 of the 1930 Tariff Act. Petitioners K mart and 47th Street Photo intervened as defendants. The District Court upheld the Customs Service regulation, 598 F. Supp., at 853, but the Court of Appeals reversed, Coalition to Preserve the Integrity of American Trademarks v. United States, 252 U. S. App. D. C. 342, 790 F. 2d 903 (1986) (hereinafter COPIAT), holding that the Customs Service regulation was an unreasonable administrative interpretation of § 526. We granted certiorari, 479 U. S. 1005 (1986), to resolve a conflict among the Courts of Appeals. Compare Vivitar Corp. v. United States, 761 F. 2d 1552, 1557-1560 (CA Fed. 1985), aff’g 593 F. Supp. 420 (Ct. Int’l Trade 1984), cert. denied, 474 U. S. 1055 (1986); and Olympus Corp. v. United States, 792 F. 2d 315, 317-319 (CA2 1986), aff’g 627 F. Supp. 911 (EDNY 1985), cert. pending, No. 86-757, with COPIAT, supra, at 346-355, 790 F. 2d, at 907-916. In an earlier opinion, we affirmed the Court of Appeals’ conclusion that the District Court had jurisdiction, and set the cases for reargument on the merits. 485 U. S. 176 (1988). A majority of this Court now holds that the common-control exception of the Customs Service regulation, 19 CFR §§ 133.21(c)(1)-(2) (1987), is consistent with § 526. See post, at 309-310 (opinion of Brennan, J.). A different majority, however, holds that the authorized-use exception,. 19 CFR § 133.21(c)(3) (1987), is inconsistent with § 526. See post, at 328-329 (opinion of Scalia, J.). We therefore affirm the Court of Appeals in part and reverse in part. hH A In determining whether a challenged regulation is valid, a reviewing court must first determine if the regulation is consistent with the language of the statute. “If the statute is clear and unambiguous ‘that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.’. . . The traditional deference courts pay to agency interpretation is not to be applied to alter the clearly expressed intent of Congress.” Board of Governors, FRS v. Dimension Financial Corp., 474 U. S. 361, 368 (1986), quoting Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984). See also Mills Music, Inc. v. Snyder, 469 U. S. 153, 164 (1985). In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole. Bethesda Hospital Assn. v. Bowen, 485 U. S. 399, 403-405 (1988); Offshore Logistics, Inc. v. Tallentire, 477 U. S. 207, 220-221 (1986). If the statute is silent or ambiguous with respect to the specific issue addressed by the regulation, the question becomes whether the agency regulation is a permissible construction of the statute. See Chevron, supra, at 843; Chemical Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 125 (1985). If the agency regulation is not in conflict with the plain language of the statute, a reviewing court must give deference to the agency’s interpretation of the statute. United States v. Boyle, 469 U. S. 241, 246, n. 4 (1985). B Following this analysis, I conclude that subsections (c)(1) and (c)(2) of the Customs Service regulation, 19 CFR §§ 133.21 (c)(1) and (c)(2) (1987), are permissible constructions designed to resolve statutory ambiguities. All Members of the Court are in agreement that the agency may interpret the statute to bar importation of gray-market goods in what we have denoted case 1 and to permit the imports under case 2a. See post, at 296, 298-299 (opinion of Brennan, J.); post, at 318 (opinion of Scalia, J.). As these writings state, “owned by” is sufficiently ambiguous, in the context of the statute, that it applies to situations involving a foreign parent, which is case 2a. This ambiguity arises from the inability to discern, from the statutory language, which of the two entities involved in case 2a can be said to “own” the United States trademark if, as in some instances, the domestic subsidiary is wholly owned by its foreign parent. A further statutory ambiguity contained in the phrase “merchandise of foreign manufacture,” suffices to sustain the regulations as they apply to cases 2b and 2c. This ambiguity parallels that of “owned by,” which sustained case 2a, because it is possible to interpret “merchandise of foreign manufacture” to mean (1) goods manufactured in a foreign country, (2) goods manufactured by a foreign company, or (3) goods manufactured in a foreign country by a foreign company. Given the imprecision in the statute, the agency is entitled to choose any reasonable definition and to interpret the statute to say that goods manufactured by a foreign subsidiary or division of a domestic company are not goods “of foreign manufacture.” C (1) Subsection (c)(3), 19 CFR § 133.21(c)(3) (1987), of the regulation, however, cannot stand. The ambiguous statutory phrases that we have already discussed, “owned by” and “merchandise of foreign manufacture,” are irrelevant to the proscription contained in subsection (3) of the regulation. This subsection of the regulation denies a domestic trademark holder the power to prohibit the importation of goods made by an independent foreign manufacturer where the domestic trademark holder has authorized the foreign manufacturer to use the trademark. Under no reasonable construetion of the statutory language can goods made in a foreign country by an independent foreign manufacturer be removed from the purview of the statute. (2) The design of the regulation is such that the subsection of the regulation dealing with case 3, § 133.21(c)(3), is sever-able. Cf. Board of Governors, FRS v. Dimension Financial Corp., 474 U. S., at 368 (invalidating a Federal Reserve Board definition of “bank” in 12 CFR § 225.2(a)(1) (1985), but leaving intact the remaining parts of the regulation). The severance and invalidation of this subsection will not impair the function of the statute as a whole, and there is no indication that the regulation would not have been passed but for its inclusion. Accordingly, subsection (c)(3) of § 133.21 must be invalidated for its conflict with the unequivocal language of the statute. Ill We hold that the Customs Service regulation is consistent with §526 insofar as it exempts from the importation ban goods that are manufactured abroad by the “same person” who holds the United States trademark, 19 CFR § 133.21(c) (1) (1987), or by a person who is “subject to common . . . control” -with the United States trademark holder, § 133.21(c)(2). Because the authorized-use exception of the regulation, § 133.21(c)(3), is in conflict with the plain language of the statute, that provision cannot stand. The judgment of the Court of Appeals is therefore reversed insofar as it invalidated §§ 133.21(c)(1) and (c)(2), but affirmed with respect to § 133.21(c)(3). It is so ordered. The full text of § 526(a), as codified, 19 U. S. C. § 1526(a), is as follows: “(a) Importation prohibited “Except as provided in subsection (d) of this section [an exception added in 1978 for the importation of articles for personal use], it shall be unlawful to import into the United States any merchandise of foreign manufacture if such merchandise, or the label, sign, print, package, wrapper, or receptacle, bears a trademark owned by a citizen of, or by a corporation or association created or organized within, the United States, and registered in the Patent and Trademark Office by a person domiciled in the United States, under the provisions of sections 81 to 109 of title 15, and if a copy of the certificate of registration of such trademark is filed with the Secretary of the Treasury, in the manner provided in section 106 of said title 15, unless written consent of the owner of such trademark is produced at the time of making entry.” The Customs Service regulation provides: “§ 133.21. Restrictions on importations of articles bearing recorded trademarks and trade names. “(a) Copying or simulating marks or names. Articles of foreign or domestic manufacture bearing a mark or name copying or simulating a recorded trademark or trade name shall be denied entry and are subject to forfeiture as prohibited importations. A ‘copying or simulating’ mark or name is an actual counterfeit of the recorded mark or name or is one which so resembles it as to be likely to cause the public to associate the copying or simulating mark with the recorded mark or name. “(b) Identical trademark. Foreign-made articles beaming a trademark identical with one owned and recorded by a citizen of the United States or a corporation or association created or organized within the United States are subject to seizure and forfeiture as prohibited importations. “(c) Restrictions not applicable. The restrictions set forth in paragraphs (a) and (b) of this section do not apply to imported articles when: “(1) Both the foreign and the U. S. trademark or trade name are owned by the same person or business entity; “(2) The foreign and domestic trademark or trade name owners are parent and subsidiary companies or are. otherwise subject to common ownership or control (see §§ 133.2(d) [defining “common ownership and common control”] and 133.12(d) [providing that application to record trademark must report identity of any affiliate that uses same trade name abroad]); “(3) The articles of foreign manufacture bear a recorded trademark or trade name applied under authorization of the U. S. owner; “(4) The objectionable mark is removed or obliterated prior to importation in such a manner as to be illegible and incapable of being reconstituted, for example by: “(i) Grinding off imprinted trademarks wherever they appear; “(ii) Removing and disposing of plates bearing a trademark or trade name; “(5) The merchandise is imported by the recordant of the trademark or trade name or his designate; “(6) The recordant gives written consent to an importation of articles otherwise subject to the restrictions set forth in paragraphs (a) and (b) of this section, and such consent is furnished to appropriate Customs officials; or “(7) The articles of foreign manufacture bear a recorded trademark and the personal exemption is claimed and allowed under § 148.55 of this chapter.” 19 CFR §§ 133.21(a), (b), (c) (1987). Respondents sued the United States, the Secretary of the Treasury-, and the Commissioner of Customs. They also asserted that the Customs Service regulation was inconsistent with § 42 of the Lanham Trade-Mark Act, 15 U. S. C. § 1124, which prohibits the importation of goods bearing marks that “copy or simulate” United States trademarks. That issue is not before us. I disagree with Justice Scalia’s reasons for declining to recognize this ambiguity. See post, at 319-323. First, the threshold question in ascertaining the correct interpretation of a statute is whether the language of the statute is clear or arguably ambiguous. The purported gloss any party gives to the statute, or any reference to legislative history, is in the first instance irrelevant. Further, I decline to assign any binding or authoritative effect to the particular verbiage Justice Scalia highlights. The quoted phrases are simply the Government’s explanation of the practical effect the current regulation has in applying the statute, and come from the statement-of-the-case portion of its petition for a writ of certiorari. Additionally, I believe that agency regulations may give a varying interpretation of the same phrase when that phrase appears in different statutes and different statutory contexts. There may well be variances in purpose or circumstance that have led the agency to adopt and apply dissimilar interpretations of the phrase “of foreign manufacture” in other regulations implementing different statutes. I also disagree that our disposition necessarily will engender either enforcement problems for the Customs Service or problems we are unaware of arising out of our commercial treaty commitments to foreign countries. Initially, it is reasonable to think that any such problems or objections would have arisen before now since it is the current interpretation of the regulations we are sustaining. Second. I believe that the regulation speaks to the hypothetical situation Justice Scalia poses, and that the firm with the United States trademark could keep out “gray-market imports manufactured abroad by the other American firms," post, at 320, because the regulation allows a company justifiably invoking the protection of the statute to bar the importation of goods of foreign or domestic manufacture. 19 CFR § 133.21(a) (1987). In this instance, the domestic firm with the United States trademark could invoke the protection of the statute (ease 1) and bar the importation of the other domestic firm’s product manufactured abroad even though our interpretation of the phrase “of foreign manufacture" would characterize these latter goods to be of domestic manufacture. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_numresp	2	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Appellant, v. Fred A. BROWN and Jennie B. Brown, doing business as Gem Dairy, Appellees. No. 7433. United States Court of Appeals Tenth Circuit. April 29, 1964. Sherman L. Cohn, Atty., Dept. of Justice (John W. Douglas, Asst. Atty. Gen., Lawrence M. Henry, U. S. Atty., Alan S. Rosenthal and Barbara W. Deutsch, Attys., Dept. of Justice, on the brief), for appellant. George Louis Creamer, Denver, Colo. (Nathan H. Creamer, Denver, Colo., on the brief), for appellees. Before BREITENSTEIN and HILL, Circuit Judges, and KERR, District Judge. HILL, Circuit Judge. This appeal by the United States is from an order of the court below denying its motion for a preliminary mandatory injunction compelling the appellee-de-fendants, as alleged “handlers” of milk, to make certain payments into a producer-settlement fund established pursuant to the Agricultural Marketing Agreement Act of 1937, as amended, 7 U.S.C.A. § 601 et seq. United States v. Brown, 217 F.Supp. 285 (D.Colo.1963). The action was brought under the provisions of Section 8a(6) of the Act, 7 U.S.C.A. § 608a(6) to require the ap-pellee to comply with milk order No. 137, as amended, 7 C.F.R. § 1137.1 et seq., (formerly designated as Milk Order No. 1, 7 C.F.R. Part 901), regulating the handling of milk in the Easteim Colorado Marketing Area. The order is directed toward sales of fluid milk in the marketing area and defines what is meant by the terms “handler”, “producer” and “producer-handler”. See 7 C.F.R. §§ 1137.9, 1137.10 and 1137.11, respectively. It also establishes a producer-settlement fund, 7 C.F.R. § 1137.83, to equalize the payments made to the farmers by the handlers and, unlike some orders relating to other marketing areas, provides that a producer-handler is exempt from certain of its provisions, including payments into the producer-settlement fund, 7 C.F.R. § 1137.60. The complaint in this case alleges that the appellees do business in the Denver, Colorado area; that milk order No. 137 was issued pursuant to the provisions of the Act to regulate the handling of milk in the marketing area; that the Market Administrator, as the agency appointed by the Secretary of Agriculture to administer the provisions of the order, duly determined that, during the time in question, the appellees were “handlers” of milk as defined in the order and therefore they were subject to the provisions of the Act and the order; that the ap-pellees had handled milk in violation of the Act and certain provisions of the order, 7 C.F.R. § 1137.84, by refusing and failing to pay to the Market Administrator, for and on behalf of the producer-settlement fund, the sums of money alleged to be due; and that the appellees were continuing to handle milk in violation of the Act and order and additional payments would become due each month. The complaint prayed for a mandatory injunction compelling the appellees to pay to the Market Administrator for and on behalf of the producer-settlement fund all sums alleged to be due from them and for a permanent injunction restraining them from further violations of the Act and the terms and provisions of the order. The appellees filed an answer in which they denied that they were subject to the provisions of the Act or the order and specifically denied that the Market Administrator had made any such determination. It was affirmatively alleged that “ * * * any determination, as a matter of due process, would have to be made pursuant to hearing, after notice, and that no such notice or hearing have ever been given or had; that these Defendants are not subject to the act, inasmuch as they are dealing with milk produced from herds in which they in each case own substantial interests, and are accordingly producers, who cannot be required as to their own milk to adhere to the requirements made of others dealing in milk produced by third persons * With issues thus joined, appellant filed a motion for summary judgment and in support thereof submitted an affidavit, together with exhibits attached thereto, of the Market Administrator setting forth many of the facts alleged in the complaint and motion. The Browns executed and filed a traversing affidavit. The court issued an order holding the motion in abeyance for thirty days so as to give appellees an opportunity to commence administrative proceedings under Section 8c(15) (A) of the Act, 7 U.S.C.A. § 608c(15) (A). Appellees duly commenced administrative proceedings within the thirty-day period and such proceeding is now pending in the Department of Agriculture. The United States then filed a motion for preliminary injunction, which was denied, and this appeal followed. The authority of an appellate court, upon review of an order granting or denying temporary or preliminary injunctive relief pending the trial and final determination of a case, is limited. Local 180 of International Union, etc. v. J. I. Case Co., 7 Cir., 281 F.2d 773; Minnesota Mining & Mfg. Co. v. Polychrome Corp., 7 Cir., 267 F.2d 772; W. A. Mack, Inc. v. General Motors Corporation, 7 Cir., 260 F.2d 886; Westinghouse Electric Corp. v. Free Sewing Machine Co., 7 Cir., 256 F.2d 806; Carroll v. Associated Musicians of Greater New York, 2 Cir., 284 F.2d 91; Joshua Meier Company v. Albany Novelty Mfg. Co., 2 Cir., 236 F.2d 144. Such a review covers only the exercise of proper judicial discretion by the lower court in granting or denying the temporary relief. Deckert v. Independence Shares Corp., 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189; Goldammer v. Fay, 10 Cir., 326 F.2d 268; Goodpaster v. Oklahoma Gas & Electric Company, 10 Cir., 291 F.2d 276; B. W. Photo Utilities v. Republic Molding Corporation, 9 Cir., 280 F.2d 806; Shearman v. Missouri Pacific Railroad Company, 8 Cir., 250 F.2d 191; Solex Laboratories, Inc. v. Plastic Contact Lens Co., 7 Cir., 268 F.2d 637; American Federation of Musicians v. Stein, 6 Cir., 213 F.2d 679, cert. denied, 348 U.S. 873, 75 S.Ct. 108, 99 L.Ed. 687; Tatum v. Blackstock, 5 Cir., 319 F.2d 397; Leesona Corp. v. Cotwool Mfg. Corp., Judson Mills Div., 4 Cir., 315 F.2d 538; Schering Corporation v. Sun Ray Drug Co., 3 Cir., 320 F.2d 72; Safeway Stores, Inc. v. Safeway Properties, Inc., 2 Cir., 307 F.2d 495; Celebrity, Inc. v. Trina, Inc., 1 Cir., 264 F.2d 956; Young v. Motion Picture Association of America, Inc., 112 U.S.App.D.C. 35, 299 F.2d 119, cert. denied, 370 U.S. 922, 82 S.Ct. 1565, 8 L.Ed.2d 504; 28 Am.Jur., Injunction, § 332, pp. 845-848; 5A C.J.S., Appeal and Error, § 1591, pp. 60-67. The merits of the case may be considered only insofar as they bear upon the question of proper judicial discretion. Shearman v. Missouri Pacific Railroad Company, supra; Holzer v. United States, 8 Cir., 244 F.2d 562; City of Des Moines, Iowa v. Continental Illinois Nat. Bank & Trust Co., 8 Cir., 205 F.2d 729; Flight Engineers’ Inter. Ass’n, AFL-CIO v. American Airlines, Inc., 5 Cir., 303 F.2d 5; Young v. Motion Picture Association of America, Inc., supra. The appellant urges that these rules are not applicable to this case and that Section 8a(6), in effect, is a mandate from the Congress compelling the courts to grant extraordinary equitable relief, in the form of a mandatory preliminary injunction, without the exercise of any judicial discretion. We do not adhere to this line of argument. To the contrary, we believe our inquiry here must go solely to the question of whether or not the court below abused its equitable discretion in refusing the preliminary relief. It is true the inferior Federal courts are creatures of statute but, nevertheless, historically, they are possessed with the inherent equitable powers of common law courts. If they are ever stripped of judicial discretion in equitable proceedings they will be relegated to the standing of mere administrative enforcement agencies. By the enactment ■of the enforcement provisions of the statute under consideration, we do not think the Congress intended to deprive the ju■diciary of any of its equitable power of discretion. A careful reading of the statute convinces us that the court below was •correct in its interpretation of that statute when it said: “This contains no language which can be interpreted as a ■congressional mandate withdrawing from this court the power to exercise its discretion in refusing injunctive relief which it deems unfair and improper. * * ” (217 F.Supp. at 286). The appellant places great stress upon -the case of United States v. Ruzicka, 329 U.S. 287, 67 S.Ct. 207, 91 L.Ed. 290. That case, unlike our case here, was reviewing an order granting a preliminary injunction. The order was upheld but the court expressly stated: “ * . * And so we are not called upon to decide what powers inhere in a court of equity, exercising due judicial discretion, even in a suit such as was here brought by the United States for the enforcement of an order under § 8a. * * * ” (329 U.S. at 295, 67 S.Ct. at 211). We do not believe that the Supreme Court in the Ruzieka case meant to, or did, withdraw from the courts their traditional and long standing power to exercise judicial discretion in equitable proceedings. We are cognizant of the conflicting rights involved in this case. On the one side, there is the policy of the Act which must be complied with and enforced in the public interest, and, on the other side, is the protection of individual rights. From the standpoint of equity we see factual circumstances in the case that justify the denial of the motion. The lapse of time between appellees’ request for administrative relief and the entering of the court’s order appealed from, without any administrative determination, may have been a compelling reason. Also, to compel the payment of substantial monthly assessments over a long period of time without appellees having their day in court certainly cannot be said to be equitable. Such a situation could work a severe financial hardship upon appellees. There are substantial questions of law and fact involved in the controversy and there is no showing, other than the bare allegations of the motion, of irreparable injury to appellant or the public. Nor is there any showing that appellee is or may become insolvent or that appellees’ failure to pay the assessments will seriously effect the milk order. We must conclude that the court below did not abuse its judicial discretion in refusing to issue the preliminary injunction. Affirmed. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_district	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". Richard WALLACH, Appellant, v. CITY OF PAGEDALE et al., Appellees. No. 18580. United States Court of Appeals Eighth Circuit. May 9, 1967. See also 264 F.Supp. 271. Richard Wallach, Wellston, Mo., made argument pro se and filed brief pro se. Paul J. Boll, St. Louis, Mo., for ap-pellee and filed typewritten brief. Before VAN OOSTERHOUT, MAT-THES and LAY, Circuit Judges. VAN OOSTERHOUT, Circuit Judge. The trial court dismissed this action commenced by plaintiff Wallach which asserted jurisdiction in the federal court under 28 U.S.C.A. § 1331 (federal question) and 28 U.S.C.A. § 1343 (violation of civil rights.) Diversity jurisdiction is not asserted and does not exist. The basic grievances asserted here are the same as those urged in Wallach v. City of Pagedale, 8 Cir., 359 F.2d 57, and are asserted damages flowing from alleged violation by defendants of plaintiff’s constitutional rights. Defendants moved for dismissal of the action on the following grounds: “(a) That the claim asserted against the defendants is not a claim upon which relief can be granted; and “(b) That this Court has no jurisdiction over the subject matter of the claim presented between the plaintiffs and the defendants. “(c) That the petition of plaintiff fails to comply with Rule 8, Federal Rules of Civil Procedure in that the averments therein are not simple, concise or direct, in respect to jurisdiction, facts or relief and is so vague, ambiguous, rambling and full of irrelevant averments that these defendants cannot be reasonably required to frame a responsive pleading thereto.” The motion to dismiss was sustained. The case was dismissed without prejudice for want of jurisdiction. Plaintiff has appealed from such dismissal. The trial court cited our former opinion in Wallach v. City of Pagedale, supra. We there stated: “There is no doubt that the complaint does not comply with Rule 8 (a) as it does not contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’ The complaint is confusing, ambiguous, redundant, vague, and, in some respects, unintelligible. It is also highly argumentative.” 359 F.2d 57, 58. We went on to state that the pleadings, even if given a liberal interpretation, do not state a cause of action against the defendants within the jurisdiction of the federal court, setting forth the basis for such conclusion and supporting authorities. The complaint now before us is much more extensive than the former complaint but in our view it is in greater violation of Rule 8 than the complaint previously considered. Plaintiff in his present voluminous, repetitious, confusing and argumentative complaint asserts that he acquired real estate in an unincorporated area in St. Louis County which was zoned as heavy industrial property upon which he was permitted to and did establish a junk yard and automobile wrecking yard in conformity with the St. Louis County zoning ordinance adopted in 1946. It is then asserted that plaintiff’s property was maliciously and illegally annexed to the city of Pagedale but no substantial legal grounds are asserted to support the claim of invalid annexation. Plaintiff next asserts in a highly inflammatory manner that numerous zoning and licensing ordinances were passed by the city of Pagedale both before and after the annexation in violation of numerous rights guaranteed plaintiff by the Constitution. Some of such ordinances are cited by number and excerpts of part of the ordinances are set out. As shown by the complaint, Ordinance No. 88 passed by the city before the annexation provides for the zoning of the city but specifically carries a provision reading: “The lawful use of land, buildings and structures existing at the time of the adoption of this ordinance may be continued, although such use does not conform to the provisions thereof, but if such non-conforming use is discontinued, any use in the future of such premises shall be in conformity with the provisions of this ordinance.” It would appear from the complaint that Ordinance No. 88 was amended in 1954 to zone the annexed property, including plaintiff’s property, with the provisions of Ordinance No. 88 made applicable to the annexed property. Thus, on their face the ordinances pleaded with respect to zoning appear to protect the rights of nonconforming users and the basis of the asserted invalidity of such ordinances does not reasonably appear in the complaint. It would seem from the complaint and statements in oral argument that there is a question whether the prior junk yard operation was the plaintiff’s own or by a corporation in which he was interested and there is also some intimation that the prior use of the property may have been abandoned. Plaintiff’s principal claims of wrongs committed by the defendants appear to be: (1) His arrest and conviction in the Pagedale police court for operating a junk yard without a license; (2) the city’s refusal to permit plaintiff to use his premises for its highest and best use —a junk yard — thereby depriving plaintiff of income needed to pay mortgage indebtedness and the refusal of the city to grant a license to a prospective purchaser which resulted in plaintiff’s inability to make an advantageous sale of such property, and his loss of the property through mortgage foreclosure for a sum considerably under its fair value. Plaintiff prays for declaratory judgment and for such further relief as may be just. It would appear that the claimed grievances arise primarily out of the licensing requirements of the city ordinances. With respect to the propriety of federal courts interfering with state criminal prosecutions, the rule is stated in Douglas v. City of Jeannette, 319 U.S. 157, 163-164, 63 S.Ct. 877, 881, 87 L.Ed. 1324, as follows: “Congress, by its legislation, has adopted the policy, with certain well defined statutory exceptions, of leaving generally to the state courts the trial of criminal cases arising under state laws, subject to review by this Court of any federal questions involved. * * * “It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions. No person is immune from prosecution in good faith for his alleged criminal acts. Its imminence, even though alleged to be in violation of constitutional guarantees, is not a ground for equity relief since the lawfulness or constitutionality of the statute or ordinance on which the prosecution is based may be determined as readily in the criminal case as in a suit for an injunction. Davis & Farnum Mfg. Co. v. [City of] Los Angeles, 189 U.S. 207 [23 S.Ct. 498, 47 L.Ed. 778]; Fenner v. Boykin, 271 U.S. 240 [46 S.Ct. 492, 70 L.Ed. 927]. Where the threatened prosecution is by state officers for alleged violations of a state law, the state courts are the final arbiters of its meaning and application, subject only to review by this Court on federal grounds appropriately asserted. Hence the arrest by the federal courts of the processes of the criminal law within the states, and the determination of questions of criminal liability under state law by a federal court of equity, are to be supported only on a showing of danger of irreparable injury ‘both great and immediate.’ ” See Outdoor American Corp. v. City of Philadelphia, 3 Cir., 333 F.2d 963, 965. No extraordinary circumstances are alleged in our present case which would warrant a departure from the rule just stated. On oral argument, it developed that plaintiff appealed from his conviction and that such appeal is still pending. We cannot ascertain from the complaint the precise basis or the legal grounds upon which plaintiff claims that a license was denied to him to operate his junk yard in violation of his constitutional rights. Plaintiff quotes part of Ordinance No. 23 relating to licensing of junk dealers and license fees and then asserts that his business does not fall within any of the categories listed in the ordinance. Later plaintiff refers to Ordinance No. 227 relating to regulating, licensing and license fees for automobile lots, and No. 228 with respect to licensing and license fees for salvage yards, both enacted in 1959. Neither of such ordinances are set out in whole or pertinent part. No ascertainable attack is made on the validity of such ordinances but rather the claim is made that the plaintiff’s business does not fit the classifications covered by the ordinances. It would appear that the questions raised primarily relate to the interpretation of the ordinances and that such questions are questions of state law. Plaintiff does not state what attempt, if any, he made to comply with the licensing ordinances nor make any clear-cut allegation that he made any proper application for a license, and if so, that any basis exists for a determination that the city abused its discretion in withholding a license. In Mosher v. Beirne, 8 Cir., 357 F.2d 638, 640-641, we sustained the dismissal of plaintiff’s action based on 28 U.S.C.A. § 1343, wherein plaintiff claimed a city improperly refused him a license to operate a public dance. We stated: “The rights and necessity for restrictions in municipal zoning ordinances have long been sustained. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 [54 A.L.R. 1016] (1926). It has also been recognized that the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on a trade or business which is the proper subject of regulation within the police power of the state is not violative of rights secured by the Fourteenth Amendment, People of State of New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552, 26- S.Ct. 144, 50 L.Ed. 305 (1905); and that ordinances validly prohibiting the operation of certain businesses without first obtaining municipal permission do not deprive one of his property without due process of law nor deny one the equal protection of the law, Fischer v. City of St. Louis, 194 U.S. 361, 24 S.Ct. 673, 48 L.Ed. 1018 (1904).” In Garfinkle v. Superior Court of New Jersey, 3 Cir., 278 F.2d 674, the court in affirming the dismissal of an action based on violation of federal constitutional rights concluded, “His stated fundamental facts, irrespective of their fantastic nature, certainly do not show clearly and distinctly that this suit is based on a federal question.” What was said there is fully applicable here. Federal courts have only that jurisdiction which Congress, acting within the limits of the Constitution, confers upon them. “The party invoking the district court’s original jurisdiction has the duty of affirmatively alleging jurisdiction; and, if his allegations are properly controverted, the burden of establishing jurisdiction. Lack of federal jurisdiction may be raised by motion or in the responsive pleading. And ‘whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.’ ” 1 Moore’s Federal Practice 2d Ed., ¶0.60 [4], See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135. Federal Rules of Civil Procedure No. 8(a) (1). Defendants have by motion attacked the jurisdiction of the federal court to hear this case. Plaintiff has not by his pleadings or in any other manner met the burden resting upon him to establish federal jurisdiction. The judgment dismissing the petition without prejudice for the lack of jurisdiction is affirmed. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
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 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 v. ELIAS, Hadi Hanna Habib, Appellant. No. 87-3194. United States Court of Appeals, Third Circuit. Argued Oct. 2, 1987. Decided Oct. 27, 1987. Carmen F. Lamancusa (argued), Laman-cusa & Cilli, New Castle, Pa., for appellant. Constance M. Bowden (argued), Asst. U.S. Atty., J. Alan Johnson, U.S. Atty., Pittsburgh, Pa., for appellee. Before SEITZ, GREENBERG and HUNTER, Circuit Judges. OPINION OF THE COURT JAMES HUNTER, III, Circuit Judge: Appellant Hadi Hanna-Habib Elias sought suppression of physical evidence found in his car and of a statement made prior to being advised of his Miranda rights. After a hearing, the District Court denied suppression of both the evidence and the statement. Elias thereafter entered a conditional guilty plea to the charge of possession of cocaine with intent to distribute, reserving the right to appeal the denial of suppression. Because we find the District Court to have committed clear error with regard to the statement, we will reverse in part, vacate the judgment of conviction of the District Court, and remand for further factual findings on the question of whether Elias was in police “custody” for purposes of his right to Miranda warnings at the time of his statement. I. BACKGROUND The following recitation of facts is based on the essentially undisputed parts of the record of the suppression hearing. Following a rash of burglaries and incidents of vandalism, the New Castle, Pa. School District hired Constable Anthony Mangino to patrol the New Castle schools and prevent unauthorized persons from remaining on school grounds after hours. During such a patrol, Constable Mangino discovered appellant and a female companion parked in the driveway behind the Lockley School in New Castle. Mangino, wearing a uniform but in an unmarked car, drove up and parked directly in front of Elias’s car, with his high beams on and directed towards Elias. He then asked Elias why he was parked in the school driveway and asked to see a driver’s license and vehicle registration. Elias produced a California license which appeared to have expired and which seemed to have had the address entry manually altered; he did not produce any vehicle registration. He attempted to explain the irregularities of the license, and told Mangino that although he resided in California, he had purchased the car in Texas. Mangino noticed that the rear license plate was a cardboard temporary plate apparently issued in Texas, which also seemed to have been tampered with. After an unsuccessful attempt to check the vehicle’s registration with the New Castle Police Department, Mangino requested police assistance. Officer Ronald Williams soon arrived at the scene, parking his car directly behind Elias’s, so that Elias’s car was sandwiched between the two other cars and could not be moved. After Mangino explained the situation to him, Williams began questioning Elias about the license irregularities. He thereafter discovered that the temporary Texas license plate covered a permanent license plate issued in California which had expired. At some point during this time Elias asked to be allowed to leave; his request was denied because the car had not yet been cleared. Williams did allow Elias to get out of the car, but warned him to keep his hands in plain view and not to make any sudden movements. When Elias opened the car door, the car’s internal light came on, and Williams noticed that a briefcase and a “scale case” were in the back seat. Williams recognized the scale case as the type which normally contains a scale used in the sale of drugs. Williams then asked Elias if he could search the car, and Elias consented. Before a search had begun, apparently, Elias pulled the briefcase out of the car, placed it on the roof, and quickly opened and closed it in order to show Williams that it contained no weapons. While the briefcase was open, however, Williams had noticed a large sum of money in one compartment, and a brown paper bag in another. The bag contained smaller clear plastic bags, which in turn appeared to contain a white powdery substance. Williams then asked Elias what was in the bag, and Elias responded: “That’s my personal coke.” At this point Elias had not yet been informed of his rights under Miranda. Upon Elias’s statement, Williams placed Elias under arrest and read him the Miranda warnings. Williams then asked Elias to unlock and reopen the briefcase, and then called the police department for assistance. Another officer arrived, and drove Elias to the police station. Williams stayed behind, and with the help of other officers searched the rest of the vehicle. More cocaine was found in a duffel bag behind the driver’s seat; the total amount of cocaine found in the car was close to two pounds, and over $16,000 in cash was also found. At a pretrial hearing, Elias sought to suppress the evidence of the cocaine and the case as well as his inculpatory statement. The District Court held that there had been no illegal search or seizure, and refused to suppress the evidence. With regard to the statement, the court denied suppression solely on the grounds that Elias had made a “spontaneous utterance.” The record of the hearing shows that the court repeatedly characterized the statement as spontaneous, and at one point asserted that it “was not elicited by questioning.” Appendix at 332. When defense counsel stated its position that Elias had been subjected to custodial interrogation for purposes of Miranda, the court responded: I say it was not a custodial interrogation because it was an uninvited spontaneous utterance. Now, those are the critical words, “Uninvited spontaneous utterance.” And, therefore, I refuse to suppress that statement. Appendix at 333. After suppression had been denied, Elias decided to enter a conditional guilty plea, reserving his right to appeal the District Court’s decision at the hearing. Elias was convicted and sentenced to a prison term of ten years. It was made clear to Elias at the plea colloquy that if the District Court’s decision regarding suppression is not affirmed, the conviction will be vacated and the Government will have the option of retrying him. II. DISCUSSION We find no basis for disturbing the District Court’s denial of the motion to suppress the physical evidence. We agree with the court that every step leading up to the seizure of the evidence represented an appropriate response by the police to a rapidly developing situation. To the extent that the District Court denied suppression of the physical evidence, we find no error. With respect to the statement, however, we cannot ignore the clear error in the finding that Elias’s words were an “uninvited spontaneous utterance.” At oral argument before this court, the Government conceded that the basis of the District Court’s holding was clearly erroneous, and further conceded that such an error could not be considered harmless given the procedural posture of the case. Instead, the Government urged this court to affirm on other grounds, but did not specify what those grounds should be. In order for this court to affirm the denial of suppression, we would have to determine that Elias’s statement was not the product of custodial interrogation. We must first acknowledge that the statement was clearly made in response to interrogation, which the Supreme Court has defined as “words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980). The remaining issue is thus whether, at the time of his statement, Elias was in police custody for purposes of Miranda. Because the District Court made no finding of fact on this issue, we can only affirm if the record presented on appeal shows that any finding that Elias was not in custody would be a clear error. See United States v. Mahar, 801 F.2d 1477 (6th Cir.1986). Since the record shows inconsistent testimony regarding the level of coercive pressure to which Elias was subjected by Officer Williams and Constable Mangino, we cannot make such a determination and must remand to the District Court for further factual findings on that issue. Nor can we say as a matter of law that Elias could not have been in custody for purposes of Miranda simply because his detention began as a routine traffic stop. In Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the Supreme Court held that traffic stops, despite the restrictions placed on the detainee’s movements, do not constitute “custody” for purposes of Miranda, and are closer in kind to a Terry stop. Thus, in the normal traffic stop, statements elicited by interrogation are admissible as evidence even if made by a suspect who had not been read the Miranda warnings. However, the Court in McCarty refused to rule out the possibility that a TerryMke traffic stop could mature into a more serious detention which would have to be considered custodial: If a motorist who has been detained pursuant to a traffic stop thereafter is subject to treatment that renders him “in custody” for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda. 468 U.S. at 440, 104 S.Ct. at 3150. The Court acknowledged that this approach would cause the lower courts “occasionally to have difficulty deciding exactly when a suspect has been taken into custody,” but preferred this result to the drawbacks of a more easily administered rule. Id. at 441, 104 S.Ct. at 3151. As a measure of guidance for the lower courts, the Court stated that the relevant question to ask in considering whether a detention has matured into custody is “how a reasonable man in the suspect’s position would have understood his situation.” Id. at 442, 104 S.Ct. at 3151. And while the Court did not give any further explicit guidance for making such a determination, it did note the characteristics of a routine traffic stop that render it a less coercive environment than the custody which triggers an individual’s rights under Miranda. Specifically, the Court noted that a routine traffic stop is presumptively temporary and relatively brief, that it takes place in public view, and that because it usually involves no more than two policemen, the context is not “police dominated.” Id. at 437-38, 104 S.Ct. at 3148-49. Given the record of the suppression hearing, it is impossible for this court to determine how a reasonable man in Elias’s position would have understood his situation. There are too many inconsistencies in the testimony for us to know exactly how Officer Williams treated Elias in the moments leading up to Elias’s statement, and our understanding of the situation is at best conjectural. As another Court of Appeals has written in a case very similar to the present one, “[i]n an extremely close case such as this, with a record that admits of conflicting interpretations, a court of appeals is ill-equipped to undertake its own de novo assessments of the facts against the proper standard.” United States v. Streifel, 781 F.2d 953, 962 (1st Cir.1986). Since this court is incompetent to determine from the record on appeal whether Elias was in custody for purposes of Miranda at the time of his statement, we must remand that question to the district court for further findings of fact in light of the decision in McCarty. We will therefore vacate the judgment of conviction, affirm in part and reverse in part the denial of the motion for suppression, and remand for further consideration consistent with this opinion. . The history of the Streifel case is illustrative of the problems facing both appellate courts and district courts to which cases such as this are remanded. The Court of Appeals for the First Circuit, finding that the defendant’s detention had begun as a permissible Terry-like traffic stop, remanded to the district court the question of whether the stop had matured into custody. In doing so, the court listed several factors to consider, such as the familiarity of the surroundings and the fact that the policemen involved had used their cars to block any movement of the defendant’s car. On remand, however, the district court did not hold further hearings or examine new evidence; instead, it simply reviewed the record of the original suppression hearing, and held that the defendant had been in police custody. United States v. Quinn, 633 F.Supp. 535 (D.Me.1986) (Streifel and Quinn were co-defendants). The Court of Appeals then decided that the District Court had incorrectly decided the issue of custody on remand, and reversed, thus substituting its own reading of the record for that of the District Court despite its earlier reluctance to do so. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_adminrev	N	What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable". Charles A. ARDIZZONI, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Chrysler Credit Corp., Intervenor. CHRYSLER CREDIT CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Nos. 79-1510, 79-1835. United States Court of Appeals, District of Columbia Circuit. Oct. 3, 1980. Before TAMM, ROBINSON and WIL-KE Y, Circuit Judges. ORDER For reasons stated in the accompanying opinion, the Clerk of the Court is hereby directed to enter the judgment proposed by the National Labor Relations Board, as modified by the Court. Opinion PER CURIAM. PER CURIAM: These cases came before the court on petitions for review and a cross-application for enforcement of a National Labor Relations Board order. On June 21, 1980, we handed down a ruling affirming the Board’s resolution of the controversy. Pursuant to Rule 19 of the Federal Rules of Appellate Procedure, the Board submitted a recommended judgment shortly thereafter. Petitioner Chrysler Credit Corporation subsequently filed objections and tendered its own draft of a judgment. The faults found by Chrysler in the Board’s proposal were two: (1) alleged inaccuracies in the first section, and (2) a superfluous concluding clause in the second paragraph. Chrysler correctly points out that the Board’s proposal may be read as erroneously indicating oral argument to the court on behalf of petitioner Ardizzoni, but this slight imperfection in the Board’s submission is easily remedied. The deficiencies in the Chrysler proposal are fatal however. Unlike the Board’s submission, the judgment advocated by Chrysler is devoid of language pertaining to the entry of a decree enforcing the Board’s disposition. Chrysler’s proposal simply restates the court’s initial order, mandating only “that the said Order of the Board be affirmed.” The additional Board provision claimed by Chrysler to be unnecessary is as follows: “that the Petitioner, Chrysler Credit Corporation, Dedham, Massachusetts, its officers, agents, successors, and assigns, abide by and perform the directions of the Board contained in said order.” This clause is not simply excess baggage; words to this effect comprise an integral part of any judgment issued by a court of appeals with the intent of upholding and enforcing the Board’s resolution of a labor controversy. Without such a direction the Board is incapable of effectuating its order, despite the affirmance of the court of appeals. That we are required to enter an appropriate decree in cases such as this is clear. The National Labor Relations Board differs from the majority of administrative agencies in that it does not possess authority itself to exact obedience to its own orders. Instead, the applicable statute envisions a bifurcated system in which both the Board and the federal courts of appeals have important roles. The determination whether a formal enforcement decree is necessary is within the Board’s discretion, but once it has reached this conclusion it must petition the appropriate court of appeals. The final authority with respect to implementation rests in the court. Thus, “[t]he order of the Board is subject to review by the designated court, and only when sustained by the court may the order be enforced.” The relevant statutory provision is Section 10 of the National Labor Relations Act, which in pertinent part mandates: (e) The Board shall have power to petition any court of appeals of the United States.... Upon the filing of such petition, the court . . . shall have power . . . to make and enter a decree enforcing, modifying, and enforcing as so modified . . . the order of the Board. (f) Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals... . Upon the filing of such petition, the court shall proceed in the same manner as in the case of an application by the Board under subsection (e) of this section, and shall have the same jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper, and in like manner to make and enter a decree, enforcing, modifying, and enforcing as so modified ... the order of the Board... , The statute is clear: where the Board has properly executed its statutory function, the court of appeals is to issue a decree enforcing the Board’s order. As the Supreme Court has emphasized, Congress has placed the power to administer the National Labor Relations Act in the Labor Board, subject to the supervisory powers of the Courts of Appeals as the Act sets out. If the Board has acted within the compass of the power given it by Congress, has, on a charge of unfair labor practice, held a “hearing,” which the statute requires comporting with the standards of fairness inherent in procedural due process, has made findings based upon substantial evidence and has ordered an appropriate remedy, a like obedience to the statutory law on the part of the Courts of Appeals requires the court to grant enforcement of the Board’s order. The Court has expressed the rationale of this statutory scheme as follows: [The National Labor Relations] Act contemplates cooperation between the Board and the Court of Appeals both at the enforcement and the contempt stages in order to effectuate its purposes. It consigns certain statutory functions to each, and where the Board has acted properly within its designated sphere, the court is required to grant enforcement of the Board’s order. The decree, like the order it enforces, is aimed at the prevention of unfair labor practices, an objective of the Act, and so long as compliance is not forthcoming that objective is frustrated. Entry of a decree is necessary to effectuate the purposes of the National Labor Relations Act. As the Supreme Court has further observed, [u]ntil granted such enforcement, the Board is powerless to act upon the parties before it. And the proper working of the scheme fashioned by Congress to determine industrial controversies fairly and peaceably demands that the courts quite as much as the administrative body act as Congress has required. To deny enforcement after unanimous affirmance of the Board’s decision is to fly in the face of both a specific congressional command and the clear directives of the Supreme Court. While it is not impossible to envision a situation in which the proper course of action would be for the court to affirm the order of the Board without granting enforcement, such occasions must perforce be rare; there is no reason to suppose that the eases now under considera-’ tion are of this type. Chrysler’s characterization of the enforcement clause as unnecessary is in error. If our judgment simply affirms the Board decision, we will have done no more than was accomplished by the entry of our initial order upholding the Board. Not only will the Board be rendered powerless to insure that the parties comply with a decision bearing this court’s imprimatur, but we will have effectively abdicated the obligations which Congress has statutorily assigned to us. For the foregoing reasons, we will modify the judgment proposed by the National Labor Relations Board to correct the small defect hereinbefore mentioned, and enter that judgment as so modified. . The underlying dispute concerned the discharge of employees Francis L. Palladino and Charles A. Ardizzoni by Chrysler Credit Corporation. The Board found that Chrysler had violated Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) (1976), by firing Palladino because of his participation in protected concerted activity. The Board refused to find that the release of Ardizzoni constituted a Section 8(a)(1) violation. Petitions for review were filed by both Ardizzoni and Chrysler. Chrysler was granted leave to intervene in No. 79-1510 on August 3, 1979, and the two proceedings were consolidated by the court per its order of October 3, 1979. . Proposed Judgment of Petitioner National Labor Relations Board, Ardizzoni v. NLRB, Chrysler Credit Corp. v. NLRB, Nos. 79-1510 & 79-1835 (D.C.Cir. June 21, 1980). . Proposed Judgment of Petitioner Chrysler Credit Corp., Ardizzoni v. NLRB, Chrysler Credit Corp. v. NLRB, Nos. 79-1510 & 79-1835 (D.C.Cir. June 21, 1980). . It should be noted that the precise language used by the Board was specifically approved by the Supreme Court in Regal Knitwear Co. v. NLRB, 324 U.S. 9, 12-14, 65 S.Ct. 478, 480-481, 89 L.Ed. 661, 665-666 (1945). . Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 49, 58 S.Ct. 459, 462-463, 82 L.Ed. 638, 643 (1938). As the Supreme Court has explained, [n]o power to enforce an order is conferred upon the Board. To secure enforcement, the Board must apply to a Circuit Court of Appeals for its affirmance. And until the Board’s order has been affirmed by the appropriate Circuit Court of Appeals, no penalty accrues for disobeying it. The independent right to apply to a Circuit Court of Appeals to have an order set aside is conferred upon any party aggrieved by the proceeding before the Board. Id. at 48 — 49, 58 S.Ct. at 462, 82 L.Ed. at 643. . 29 U.S.C. § 160(e), (f) (1976) (emphasis supplied). . NLRB v. Bradford Dyeing Ass’n, 310 U.S. 318, 342, 60 S.Ct. 918, 930-931, 84 L.Ed. 1226, 1242 (1940). . NLRB v. Warren Co., 350 U.S. 107, 112, 76 S.Ct. 185, 188, 100 L.Ed. 96, 101 (1955) (footnotes omitted). See also NLRB v. Raytheon Co., 398 U.S. 25, 28-29, 90 S.Ct. 1547, 1549, 26 L.Ed.2d 21, 25 (1970); NLRB v. Mexia Textile Mills, 339 U.S. 563, 566-567, 70 S.Ct. 826, 828-829, 94 L.Ed. 1067, 1072 (1950). . NLRB v. Bradford Dyeing Ass’n, supra note 7, 310 U.S. at 342-343, 60 S.Ct. at 930-931, 84 L.Ed. at 1242. Question: What federal agency's decision was reviewed by the court of appeals? A. Benefits Review Board B. Civil Aeronautics Board C. Civil Service Commission D. Federal Communications Commission E. Federal Energy Regulatory Commission F. Federal Power Commission G. Federal Maritime Commission H. Federal Trade Commission I. Interstate Commerce Commission J. National Labor Relations Board K. Atomic Energy Commission L. Nuclear Regulatory Commission M. Securities & Exchange Commission N. Other federal agency O. Not ascertained or not applicable Answer:
songer_respond2_5_3	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "executive/administrative". Your task is to determine which specific state government agency best describes this litigant. Marie E. WEST, individually and on behalf of all others similarly situated v. Louis W. SULLIVAN, individually and in his capacity as Secretary of the United States Department of Health and Human Services; Edward R. Madigan, individually and in his capacity as Secretary of the United States Department of Agriculture; Walter W. Cohen, individually and in his capacity as Secretary of the Pennsylvania Department of Public Welfare; and Don Jose Stovall, individually and in his capacity as Executive Director of the Philadelphia County Assistance Office, Marie E. West, individually and on behalf of the class she represents, Class B, Appellant. No. 91-1570. United States Court of Appeals, Third Circuit. Argued Feb. 4, 1992. Decided Aug. 17, 1992. As Amended Aug. 25, 1992. Rehearing Denied Sept. 14, 1992. Peter D. Schneider, George D. Gould, Community Legal Services, Philadelphia, Pa., David A. Super, (argued), Food Research & Action Center, Washington, D.C., for appellant. Michael M. Baylson, U.S. Atty., Office of U.S. Atty., Philadelphia, Pa., Stuart M. Ger-son, Asst. Atty. Gen., Anthony J. Stein-meyer, U.S. Dept, of Justice, Civ. Div., Appellate Staff, Constance A. Wynn (argued), U.S. Dept, of Justice, Appellate Section, Washington, D.C., for Appellees Sullivan and Madigan. Michael L. Harvey (argued), Office of Atty. Gen. of Pa., Dept, of Justice, Harrisburg, Pa., for appellees Cohen and Stovall. Before: BECKER, ROTH, Circuit Judges, and McCUNE, District Judge. . Honorable Barron P. McCune, United States District Court Judge for the Western District of Pennsylvania, sitting by designation. OPINION OF THE COURT ROTH, Circuit Judge. Appellant Marie West and a class of similarly-situated plaintiffs (collectively West) seek to overturn a district court decision which potentially reduces certain of their benefits under the Food Stamp Act, 7 U.S.C.A. §§ 2011 et seq. (1988 & Supp. 1992). Specifically, West challenges a policy adopted by Appellee Edward Madigan, Secretary of the Department of Agriculture (USDA), that would prevent her from factoring a standard deduction for utility costs into her food stamp benefit calculation. Her claim forces us to interpret potentially competing provisions of the Food Stamp Act and the United States Housing Act, 42 U.S.C.A. §§ 1437 et seq. (1978 & Supp.1992), encompassing a dizzying array of acronyms and regulations. For the reasons that follow, we will deny West’s claim and affirm the order of the district court dismissing her supplemental complaint. I. In August, 1984, West filed a complaint in the Eastern District of Pennsylvania challenging the Secretary of Health and Human Services’ (HHS) rejection of her application for social security benefits. While her claim was pending, West amended the complaint to include class action claims under the Food Stamp Act against the Secretary of the USDA and officials of the Pennsylvania Department of Public Welfare (DPW) (collectively USDA). The district court certified two plaintiff classes, only one (Class B) of which is relevant to our disposition of this case. Class B is composed of “all Pennsylvania residents of public housing authority units whose food stamp allotments have been or will be reduced because of the treatment as income of a utility allowance or utility rebate from a public housing authority.” In other words, Class B challenged the inclusion in income of certain monthly stipends known as “utility rebates” received from the United States Housing Authority to aid in the payment of energy costs. All Class B members were recipients of utility rebates. The district court granted West’s motion for summary judgment on her individual benefit claim and denied the claims of both classes. This court reversed the district court’s treatment of Class B, holding that utility rebates are not income for purposes of food stamp calculations. West v. Bowen, 879 F.2d 1122 (3d Cir.1989). After West was decided, the USDA implemented a policy denying Class B members (those receiving utility rebates under the Housing Act) use of a “standard utility allowance” (SUA) in the calculation of their benefits under the Food Stamp Act. On October 9, 1990, West filed a supplemental complaint challenging this policy; the supplemental complaint forms the basis for the present appeal. The USDA moved to dismiss the supplemental complaint on the merits and for lack of standing. West filed a cross-motion for summary judgment. On April 3, 1991, the district court upheld West’s standing to challenge the USDA’s policy regarding the use of the SUA but dismissed the supplemental complaint on the merits. West’s motion for reconsideration was denied, and this appeal followed. II. This case involves two federal statutes, the Food Stamp Act and the United States Housing Act. A. Food Stamp Act (7 U.S.C.A. §§ 2011 et seq.). The Food Stamp program is administered nationally by the USDA, which must promulgate rules establishing uniform standards of eligibility for food stamp applicants, 7 U.S.C.A. §§ 2014(b), 2013(c) (1988). State agencies such as the Pennsylvania Department of Public Works (DPW) implement the Food Stamp program locally- Food stamps are available to households meeting specific income requirements. 7 U.S.C.A. §§ 2014, 2015 (1988 & Supp.1992). Household income for food stamp purposes is calculated by subtracting certain household expenditures from total household receipts. Income includes “income from whatever source.” 7 U.S.C.A. § 2014(d) (1992). Nonetheless, certain monies guaranteed to be used for non-food expenses may be excluded or deducted from total household receipts. Id. For instance, households may “exclude” federal energy assistance payments from income. 7 U.S.C.A. § 2014(d)(ll) (1992). Households may “deduct,” inter alia, medical and dependent care expenses, as well as so-called “excess shelter expenses.” 7 U.S.C.A. § 2014(e) (1988 & Supp.1992). Calculation of the deductible excess shelter expense is central to this appeal. An excess shelter expense is the amount by which a household’s monthly shelter costs exceed half of the household’s monthly adjusted income (income after all other deductions have been taken). Monthly shelter costs include rent or mortgage fees, certain property taxes, and utility costs. 7 C.F.R. § 273.9(d)(5) (1992). To ease the determination of total monthly shelter costs, state agencies may authorize substitution of a “standard utility allowance” (SUA) for a household’s actual utility costs in certain circumstances. 7 U.S.C.A. § 2014(e) (sentences 5-13). At minimum, to qualify for the SUA, households must “incur heating and cooling costs separately and apart from their rent or mortgage.” 7 C.F.R. § 273.9(d)(6)(h) (1992). In other words, households eligible for the SUA are those directly billed for energy consumption, rather than those which pay for energy costs as part of their rent. Households which do not claim the SUA employ actual utility costs in computing their monthly shelter estimate. 7 U.S.C.A. § 2014(e) (sentence 12). See 7 C.F.R. § 273.2(f) (1992). Pennsylvania has established an SUA which eligible households may use in computing utility costs. See 55 Pa.Code § 501.7 (1992). The USDA has encouraged states to set the SUA at a “liberal” level — higher than the average household’s utility cost — to foster use of the SUA and thus reduce paperwork for the applicant and the administrating agency. See 131 Cong.Rec. 31, 296 (Nov. 12, 1985) (comments of Senator Boschwitz: standard utility allowances “ease administrative complexity,” and therefore the “States have set the standard utility allowance somewhat higher than the average utility expenses so they don’t have to deal with actual expenses.”). See also H.R.Conf.Rep. No. 447, 99th Cong., 1st Sess. 526, reprinted at 1985 U.S.Code Cong. & Admin.News 1103, 2251, 2452 (SUAs are “designed to encourage efficient administration of the food stamp program”). The size of the SUA has a large impact on food stamp allotments. A “liberal” SUA is likely to increase an applicant’s shelter costs, widening the difference between those costs and 50% of adjusted income. This increases the amount of the excess shelter deduction. An increased excess shelter deduction shrinks income and thus augments food stamp benefits. B. United States Housing Act (42 U.S.C.A. §§ 1437 et seq.). Residents of Public Housing Authority (PHA) buildings pay a fixed “contract” rent of no more than 30% of adjusted gross income. 42 U.S.C.A. § 1437a(a)(l)(A) (1992); 24 C.F.R. § 960.404 (1992). Contract rent includes reasonable utility costs. See Wright v. Roanoke Redevelopment & Housing Authority, 479 U.S. 418, 420 & n. 3, 107 S.Ct. 766, 769 & n. 3, 93 L.Ed.2d 781 (1987). Since 1981, utilities consumed by tenants in PHA-owned or leased buildings have been “individually metered,” that is, billed to each household apart from the rent. 24 C.F.R. § 965.401. Residents thus pay utility bills directly to the utility provider. Each month, residents of individually-metered apartments are allotted a public housing utility allowance (PHUA) to be credited toward payment of the contract rent. The PHUA is based on the average reasonable monthly utility cost for households in the area over the course of a year. 24 C.F.R. § 965.470, 475, 476(a). Unlike PHA rent, the PHUA is not tied to the resident’s income. PHA residents are responsible for payments, which include utility costs, totalling the 30% contract rent figure. The PHUA amount is credited toward the 30% figure, and the resident must pay as “rent” only the difference between the PHUA and the contract rent. Thus, a household with rent of $50 (implying income of $166), and a utility allowance of $30, must pay $20 to the PHA monthly. In contrast, households with a rent which is less than the PHUA receive a “utility rebate” each month, representing the difference between the household’s contract rent and the PHUA. The household is again responsible for mustering the amount of the contract rent, but where the contract rent is less than the PHUA, the household pays no “rent.” Thus, a household with rent of $20, and a PHUA of $30, will receive a monthly check for $10 — a utility rebate — from the PHA. This check, along with the $20 not paid in rent, is assumed by the USDA to go toward utilities. All Class B members fall into this category, as the class is defined to include only those receiving utility rebates (a smaller group than those receiving utility allowances). Sometimes the utilities bill is higher than the PHUA. Residents must absorb the amount of any utility bill which is above the allowance. By the same token, residents may effectively pocket any amount of the utility allowance conserved if the actual bills are less than the PHUA. The PHUA is supposed to encourage efficient use of energy, but for those who live in poorly insulated buildings, the allowance is not always enough. See West, 879 F.2d at 1129 n. 8. Utility rebates generally only go to the poorest of public housing residents, as those with the lowest income are most likely to have contract rent below the PHUA. In this case, for example, West stated that her rent is approximately $53 per month (implying income of $177). She receives a PHUA of $152 per month and is therefore mailed a monthly utility rebate of $99 ($152-$53). This amount, together with the $53 for which she is responsible, go toward her utilities costs, which range up to $154 per month. West, 879 F.2d at 1130 n. 9. C. Synthesis of the two acts. Housing Act payments, as with assistance received under many federal programs for the poor, affect the calculation of benefits under the Food Stamp Act. Until this court’s decision in West v. Bowen, supra, the USDA considered public housing utility rebates income to the recipient. This resulted in lower food stamp benefits for those receiving the rebates. In West, we held that the PHUA utility rebates (not the entire utility allowance) were “energy assistance,” to be excluded from income under § 2Q14(d)(ll) of the Food Stamp Act. West, 879 F.2d at 1132. This court’s designation of rebates as energy assistance had consequences, perhaps unforeseen, for West’s ability to claim the SUA under the Food Stamp Act. Pri- or to West, West and her class of PHUA utility rebate recipients were apparently eligible to claim the SUA in calculating monthly food stamp benefits. This is because they were billed separately for utilities, an important component of eligibility for both the SUA and the PHUA. Under the Food Stamp Act, however, eligibility for the SUA is affected by the receipt of energy assistance payments. Households receiving certain kinds of energy assistance are treated differently than those who receive no energy assistance. After this court declared PHUA rebates “energy assistance” instead of “income,” the USDA began calculating West’s food stamp benefits under a different formula. Under the new formula, West must not only be separately billed for her utilities, she must also incur “out-of-pocket” costs (a term disputed by the parties) to claim the food stamp SUA in her excess shelter calculation. In imposing the extra out-of-pocket cost requirement, the USDA relies on language contained in the Food Stamp Act, 7 U.S.C.A. § 2014(e), which distinguishes recipients of energy assistance from other food stamp applicants for the purposes of claiming the SUA: If a State agency elects to use a standard utility allowance that reflects heating or cooling costs, it shall be made available to households receiving a payment, or on behalf of which a payment is made, under the Low-Income Home Energy Assistance Act of 1981 (42 U.S.C.A. §§ 8621 et seq.) or other similar energy assistance program, provided that the household still incurs out-of-pocket heating or cooling expenses. 7 U.S.C.A. § 2014(e) (sentence 8) (emphasis, added). The Low-Income Home Energy Assistance Act (LIHEAA) is a federal program dedicated to providing heating and cooling assistance to households receiving government support in the form, inter alia, of food stamps or aid to families with dependent children; or to households with income near the state poverty level. See 42 U.S.C.A. § 8624(b)(2) (1983 & Supp. 1992). Though the .language of § 2014(e) appears to be quite broad, Congress restricted the scope of the provision in 1986, two years after it was adopted, to exempt all LIHEAA recipients from the out-of-pocket cost requirement. See 52 Fed.Reg. 5435 (Feb. 23, 1987) (energy expenses covered by LIHEAA are deemed to be “out-of-pocket,” whether received directly or through a vendor); Pub.L. No. 99-425, § 504(e), 100 Stat. 975 (1986). The language of § 2014(e) was not altered to effect this change, however; only LIHEAA and the regulations relating to § 2014(e) were amended. Thus, though § 2014(e) includes reference to LIHEAA payments, the out-of-pocket cost requirement now applies only to those households receiving energy assistance under programs “similar” to LI-HEAA. The parties contest whether a PHUA rebate is energy assistance “similar” to LIHEAA for the purposes of the out-of-pocket cost requirement. III. West challenges the applicability of the out-of-pocket cost requirement in § 2014(e) to energy assistance payments received directly from the Public Housing Authority in the form of utility rebates. She contests two aspects of § 2014(e): its applicability to households receiving direct, as opposed to vendor or indirect, energy assistance payments such as the PHUA rebate; and, if § 2014(e) applies to direct payments, the definition of “out-of-pocket” costs and the “similarity” of her energy assistance payments to those authorized by LIHEAA. West initially argues that the out-of-pocket requirement in § 2014(e) applies only to recipients of indirect funding — households whose energy assistance is routed directly to the utility vendor. For this argument she relies strongly on the federal regulations adopted to implement § 2014(e). Alternatively, relying on the language of § 2014(e) itself, West argues that PHUA rebates are not “similar” to LIHEAA payments, and therefore that § 2014(e) is not applicable to her. Finally, she posits that, even if § 2014(e) is applicable to her, she has incurred out-of-pocket costs (entitling her to claim the SUA) simply because she is separately billed for her utilities and must pay the bills herself. The USDA contends, first, that § 2014(e) applies to all recipients of energy assistance not excepted by other statutory provisions; second, that PHUA rebates are nearly identical to LIHEAA payments, thus bringing West and her class within the reach of § 2014(e) and the out-of-pocket cost requirement; and finally that West has not incurred “out-of-pocket” costs, thereby eliminating her eligibility for the SUA, because under the USDA’s definition of “out-of-pocket” she must show that her utility expenses exceed her PHUA. Stating that West’s class did not have the right to receive utility rebates, only the right not to have those rebates counted as income, the district court upheld the USDA’s construction of § 2014(e) and the agency’s application of the out-of-pocket cost limitation to West’s food stamp calculation. West v. Sullivan, No. 84-3883, typescript at 2 (E.D.Pa. Apr. 30, 1991). The court did not address the distinction between direct and indirect energy assistance raised by West. In this ease the district court had federal question jurisdiction under 28 U.S.C.A. §§ 1331 and 1337 (1992), and we have jurisdiction to review the court’s final order dismissing the complaint under 28 U.S.C.A. § 1291 (1992). Our review of the dismissal of a complaint for failure to state a claim is plenary. McArdle v. Tronetti, 961 F.2d 1083, 1084 n. 1 (3d Cir.1992); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir.1990). An agency’s construction of its statutory mandate is entitled to a certain degree of deference. Under the Supreme Court’s Chevron test, see Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), courts reviewing agency action confront two questions. The first is whether Congress has spoken directly to the question at issue: “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. at 2781. Where the statute is silent or ambiguous as to the specific issue, however, “the [second] ques tion for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. (emphasis added). See NLRB v. New Jersey Bell Tel. Co., 936 F.2d 144, 147 (3d Cir.1991) (citing Chevron ); FLRA v. U.S. Dept. of Navy, 966 F.2d 747 (3d Cir.1992) (in banc) (same). In this endeavor we may draw not only on the language of the statute but on the legislative history, the agency regulations adopted to implement the statute, and the agency comments made with respect to the regulations. The agency’s interpretation need not be the only reasonable one. See Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). See also West, 879 F.2d at 1124. A. We look first, then, to the plain language of the Food Stamp Act, to see whether Congress has directly addressed the relationship between energy assistance and the SUA. Section 5(e) of the Food Stamp Act, 7 U.S.C.A. § 2014(e), contains fifteen sentences, of which eight relate to the SUA. For context, we include six of the sentences below, broken apart and numbered by sentence (the provisions run back-to-back and unnumbered in the formal text). West challenges the agency’s interpretation of sentence 8. Sentence 5. In computing the excess shelter expense deduction ..., a State agency may use a standard utility allowance in accordance with regulations promulgated by the Secretary ... Sentence 6. An allowance for a heating or cooling expense may not be used for a household that does not incur a heating or cooling expense, as the case may be, or does incur a heating or cooling expense but is located in a public housing unit which has central utility meters and charges households, with regard to such expense, only for excess utility costs. Sentence 7. No such allowance may be used for a household that shares such expense with, and lives with, another individual not participating in the food stamp program, another household participating in the food stamp program, or both, unless the allowance is prorated between the household and the other individual, household, or both. Sentence 8. If a State agency elects to use a standard utility allowance that reflects heating or cooling costs, it shall be made available to households receiving a payment, or on behalf of which a payment is made, under the Low-Income Home Energy Assistance Act of 1981 (42 U.S.C. 8621 et seq.) or other similar energy assistance program, provided that the household still incurs out-of-pocket heating or cooling expenses. Sentence 9. A State agency may use a separate standard utility allowance for households on behalf of which such payment is made, but may not be required to do so. Sentence 10. A State agency not electing to use a separate allowance; and making a single standard utility allowance available to households incurring heating or cooling expenses (other than households described in the sixth sentence of this subsection) may not be required to reduce such allowance due to the provision (direct or indirect) of assistance under the Low-Income Home Energy Assistance Act of 1981. 7 U.S.C.A. § 2014(e) (emphasis added). It seems clear from the language of sentence 8 that recipients of energy assistance are not eligible to claim the SUA without proof of certain costs, specifically “out-of-pocket heating and cooling expenses.” Though sentence 6 does not mention out-of-pocket costs as a condition of SUA eligibility, sentence 6 is directed only to households whose rent includes utilities (excluding West and her class by definition, because they are separately billed), not to those receiving energy assistance payments. Additionally, from the face of sentence 9, households receiving energy assistance may be treated differently from those which do not. Finally, though the drafters of sentence 10 intended to protect households receiving LIHEAA energy assistance from decreased food stamp eligibility, there is no indication that equal treatment under sentence 10 justifies ignoring the out-of-pocket threshold in sentence 8. Notably, in the sentences related to the SUA, there is no apparent distinction between direct and indirect energy assistance, a difference West urges upon us. In fact, the language of § 2014(e) suggests exactly the opposite: sentence 8 applies to “households receiving a payment, or on behalf of which a payment is made.” (emphasis added). In response to the first question under Chevron, then, we note that Congress has directly spoken to the general relationship between energy assistance and the SUA. From the face of § 2014(e), proof of out-of-pocket costs is required for all LIHEAA and “similar” energy assistance recipients to claim the SUA under § 2014(e). B. The real issue then becomes whether PHUA rebates qualify as energy assistance “similar” to LIHEAA, and, if the rebates are similar, whether West has incurred “out-of-pocket” costs. The statute is ambiguous as to both of these puzzles, so for guidance we turn to the legislative history of § 2014(e). Our consideration of the similarity between the PHUA rebate and LIHEAA assistance is clouded by two factors: first, that previous drafts of sentence 8 applied only to LIHEAA recipients, and second, that the USDA, in an apparent change of position, has amended the regulations surrounding § 2014(e) to make the out-of-pocket cost requirement apply to everyone except LIHEAA recipients. The out-of-pocket cost requirement in sentence 8, as originally drafted, applied only to LIHEAA recipients. Neither house of Congress included the “or other similar energy assistance program” language in its conference report, though those words were ultimately enacted as part of the 1985 amendments to § 2014(e). The House Report merely proposed that “A State agency may use one or more standard utility allowances for households on behalf of which a payment is made under [LIHEAP] but who also incur out-of-pocket heating or cooling expenses.” H.R. 2100, 99th Cong., 1st Sess. 400 (1985). The language in the Senate Report was similar: If a State agency elects to use a [SUA], the agency shall use a separate allowance for households receiving assistance under [LIHEAP] and a separate allowance for other households or a combined allowance for all such households. In the case of a [SUA] that applies to households receiving such assistance, such allowance shall reflect utility expenses in excess of such expenses paid, directly or indirectly, under [LIHEAA], S.Rep. No. 145, 99th Cong., 1st Sess. 747 (1985) (amendments as reported out of Senate Agricultural Committee). Congress specifically rejected a limited role for § 2014(e) and the out-of-pocket cost requirement, however, when it added “other similar energy assistance program[s]” to the language of sentence 8. The “other similar energy assistance” language appears in the Conference Report on H.R. 2100, without accompanying comment; it was subsequently enacted as part of § 2104(e). See H.R.Conf.Rep. No. 447, 99th Cong., 1st Sess. 525 (1985), reprinted in U.S.Code Cong. & Admin.News 2251, 2451; 131 Cong.Rec. H12.314 (Dec. 17, 1985). Thus, on a plain reading of the statute, § 2014(e) was intended to affect a group of which LIHEAA participants were only one part. The USDA determined, after this court’s decision in West, that West’s PHUA rebates were energy assistance “similar” to LIHEAA payments for the purposes of § 2014(e). West challenges this determination. She argues that the rebates are not “similar” to LIHEAA because of structural and administrative differences, and thus are excluded from § 2014(e) and the out-of-pocket requirement. This argument is not convincing. Though the programs are administered by different agencies (LIHEAA through the Food Stamp program, PHUA rebates through the Public Housing program), LIHEAA payments are for energy assistance, and, under our decision in West, so too are PHUA rebates. Moreover, this court looked specifically to LIHEAA’s legislative history in support of its holding that the PHUA rebate is a form of energy assistance excludable from income under § 2014(d)(ll). West, 879 F.2d at 1131. West notes that, if Congress had meant in sentence 8 to require out-of-pocket costs from all energy assistance recipients, it could have simply used the phrase “energy assistance,” as it did in neighboring § 2014(d)(ll) (exclusions from income), rather than specifying LIHEAA and “similar” programs. Though this argument has some force, especially in light of the fact that the original version of sentence 8 applied only to LIHEAA recipients, our job is not to second-guess Congress’ turns of phrase, only to review, with deference, the interpretations given to them by the agency. In this case, the agency was faced with statutory language applicable to LI-HEAA and “similar” programs; after our decision in West designating PHUA rebates as energy assistance, the agency decided that a PHUA rebate was “similar” to the payments provided under LIHEAA. From the face of the statute and its legislative history, we cannot find this conclusion unreasonable. Were the question of similarity between PHUA rebates and LIHEAA payments the only interpretive puzzle present in § 2014(e), our review of the agency’s construction of the statute would stop at this point. However, Congress amended LI-HEAA and the agency amended the regulations surrounding § 2014(e) in 1986, so that all recipients of LIHEAA may now claim the SUA, without proof of out-of-pocket expenses. Congress has thus taken LI-HEAA recipients, at whom § 2014(e) was originally aimed, out of the statute. In light of the similarities between LIHEAA payments and PHUA rebates, Congress’ removal of a single program’s payments from the restrictions of the eighth sentence seems arbitrary and throws into question the relatively strict treatment of other federal assistance such as the PHUA rebate. West might have made a strong policy argument that the PHUA rebates and LI-HEAA payments are identical, i.e. both are federal programs providing energy assistance, and thus that the modification permitting LIHEAA recipients to claim the SUA should also apply to recipients of utility rebates. The USDA determined, however, that the broad reach of § 2014(e) was not affected by Congress’ removal of LIHEAA recipients from the out-of-pocket requirement. Specifically, the agency provided that the change to LIHEAA would “not affect current policy with respect to other State or local energy assistance payments or other expenses paid to a third party on behalf of households.” See 52 Fed.Reg. 5435 (Feb. 23, 1987). Though this passage fails to mention that the change to LIHEAA would also leave the policy relating to other federal payments, such as PHUA rebates, untouched, it is unlikely this specific language was meant to exclude the PHUA from the out-of-pocket cost requirement simply by implication. That Congress amended only LIHEAA rather than the language of § 2014(e) itself, might have been an important factor in the USDA’s decision. Thus, as the USDA reads § 2014(e), that section still applies to energy assistance programs similar to LIHEAA, including the PHUA rebate, despite Congress’ later exemption of LIHEAA beneficiaries. Though this is certainly not the only conclusion the agency could have reached, we find this interpretation to be permissible. Finally, West argues that, even if § 2014(e) applies to recipients of PHUA rebates, the agency’s definition of “out-of-pocket” costs as “net” costs is impermissible. She contends that “out-of-pocket” means separate billing, that is, that she be required to make the utility payments herself, not that she be required to make a payment above and beyond the amount of her energy assistance. As noted, the statute on its face does not provide any guidance as to the meaning of “out-of-pocket” costs. From the legislative history discussed below, however, we are comfortable with the agency’s “common sense” interpretation of the term. “Out-of-pocket” costs were central to the Congressional debate over the SUA. Members of Congress expressed concern that energy assistance recipients would be able to make use of the SUA without paying any actual utility costs out of their own pockets. As Senator Dole noted “The [Senate Agricultural] committee provisions attempt to establish equity by simultaneously allowing all LIHEAP recipients who have any utility expenses above the value of LIHEAP assistance the right to claim a standard utility allowance, which may be significantly above their actual expenses.” 131 Cong.Rec. 31,298 (Nov. 12, 1985). Later, he reiterated: “Recipients may still claim a standard utility allowance as long as they pay something toward their heating or cooling bills.” Id. at 31,299. And again: “All we [the Agricultural Committee] did was provide that people should not be eligible for energy expenses unless they incur them, unless they actually pay the money. This is a loophole that should be closed.” Id. In fact, the Senate Agricultural Committee unsuccessfully proposed changes to the Food Stamp Act that would have limited the amount of the SUA to the average amount applicants incurred over and above their utility assistance payments. See S.Rep Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "executive/administrative". Which specific state government agency best describes this litigant? A. Governor B. Attorney General C. Secretary of State D. Other Administrative Officer NOT detailed below E. not ascertained Answer:
songer_circuit	H	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. George TURNER, Appellant, v. UNITED STATES of America, Appellee. No. 16226. United States Court of Appeals Eighth Circuit. Dec. 8, 1959. George Turner, pro se. Edward L. Scheuñer, U. S. Atty., and Clark A. Ridpath, Asst. U. S. Atty., Kansas City, for appellee. Before SANBORN, VAN OOSTER-HOUT and BLACKMUN, Circuit Judges. PER CURIAM. This is an appeal from an order of the District Court denying the motion, under 28 U.S.C. § 2255, of George Turner, a prisoner in custody under a ten-year sentence of imprisonment, for the vacation or correction of his sentence. The order was entered without a hearing, upon the ground that the files and records of his case conclusively show that he is entitled to no relief. The sentence, the correctness and validity of which is challenged by Turner, was based upon his plea of guilty to an information which, in five separate counts, charged him, under 18 U.S.C. § 287, with five separate violations of that section by presenting to the Internal Revenue Service of the United States, on five different dates, fictitious and fraudulent claims for income tax refunds —one on April 15, 1957; one on October 28, 1957; one on April 24, 1958; one on September 24, 1958; and one on October 3, 1958. At the time of his arraignment, December 12, 1958, Turner was represented by counsel appointed by the court. After a pre-sentence investigation and on January 16, 1959, Turner was given the following sentences of imprisonment: “five (5) years on each of counts 1, 2, 3, 4 and 5; the sentences imposed on counts 1, 2 and 3 to be served concurrently with each other, and the sentences imposed on counts 4 and 5 to be served concurrently with each other and consecutively with the sentences imposed on counts 1, 2 and 3; without costs. For a total sentence of imprisonment of ten (10) years.” Turner’s motion for vacation or correction of sentence was based upon two contentions: (1) that the counts of the information charged but one continuing offense and would support but one sentence of five years’ imprisonment, and that the sentence imposed violated his constitutional right not to be twice put in jeopardy for the same offense; and (2) that his plea of guilty was entered by mistake and under a misunderstanding. In his motion, Turner also asserted that he had not been accorded sufficient time “to consult with his Court appointed Attorney before he was brought to Court.” In his brief on appeal Turner asserts that “The District Court’s imposition of consecutive sentences on counts 4 and five was a denial of appellant’s constitutional rights not to be twice put in jeopardy for the same offense.” He concedes that no authority in support of this contention could be found. It is safe to say that there is no such authority. See and compare: Ebel-ing v. Morgan, 237 U.S. 625, 629-631, 35 S.Ct. 710, 59 L.Ed. 1151; United States v. Daugherty, 269 U.S. 360, 46 S.Ct. 156, 70 L.Ed. 309; Blockburger v. United States, 284 U.S. 299, 301, 305, 52 S.Ct. 180, 76 L.Ed. 306. The information charged five separate offenses and would have sustained an aggregate maximum sentence of twenty-five years. Turner nftw asserts that he was denied the effective assistance of counsel. This is nothing more than a self-serving, unsupported and belated declaration, which is completely refuted by the transcript of the proceedings which took place when he entered his plea of guilty and when he was sentenced. The District Court committed no error in denying Turner’s motion for the vacation or correction of his sentence. The order appealed from is 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_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". Rita Jean VASINA, as Executrix of the Estate of William Arthur Vasina, deceased, Plaintiff-Appellee, v. GRUMMAN CORP. and Grumman Aerospace Corp., Defendants-Appellants. No. 417, Docket 80-7638. United States Court of Appeals, Second Circuit. Argued Dec. 15, 1980. Decided March 17, 1981. Marc S. Moller, New York City (Krein-dler & Kreindler, Steven Earl Anderson, Robert E. Greshes, New York City, of counsel), for plaintiff-appellee. Thomas R. Newman, New York City (Siff & Newman, P.C., Maurice L. Noyer, J. K. Weir, Haight, Gardner, Poor & Havens, New York City, of counsel), for defendants-appellants. Before FEINBERG, Chief Judge, KEARSE, Circuit Judge, and METZNER, District Judge. United States District Judge for the Southern District of New York, sitting by designation. FEINBERG, Chief Judge: Defendants Grumman Corporation and Grumman Aerospace Corporation (Grumman) appeal from a judgment entered in favor .of plaintiff Rita Jean Vasina, in the amount of $1,184,270 plus six per cent interest from the date of death, in the United States District Court for the Eastern District of New York, after a jury trial before Eugene H. Nickerson, J. Plaintiff’s suit followed the death of her husband, Navy Lieutenant William Arthur Vasina, in the crash in March 1973 of a Navy airplane designed and manufactured by Grumman. A later Navy investigation concluded that the crash was caused by an in-flight separation of the port wing of the airplane. This wing had been damaged in action in Vietnam in 1967, and had been repaired by Navy field personnel at that time. Plaintiff alleged that Grumman was liable for Lieutenant Vasina’s wrongful death, and for survival damages, based on theories of negligence, strict liability, and breach of warranty. Grumman asserted that the wing separation was actually due to the Navy’s failure to properly repair the 1967 damage. For reasons indicated below, we affirm the judgment of the district court. I Grumman’s first group of arguments on appeal centers around its claim that the Navy’s negligence relieved Grumman of any liability for its own negligence. We note in passing that Grumman does make a desultory claim to us that it was not negligent at all. But that argument deserves little discussion. The trial judge found, 492 F.Supp. 943, 944 (E.D.N.Y.1980), that there was ample evidence indicating that Grumman’s negligence contributed substantially to the crash. Our review of the record confirms this finding. Grumman’s weightier argument rests on its assertion that the Navy’s faulty repair and maintenance of Lieutenant Vasina’s airplane amounted to “unforeseeable intervening and superseding negligence” that served to “cut off” “any possible liability on the part of Grumman.” See W. Prosser, The Law of Torts 270-89 (4th ed. 1971). Grumman first argues that the Navy’s alleged negligence relieved Grumman of liability as a matter of law. This argument is not persuasive. The case before us is not one where Grumman’s liability could be relieved by a showing of any intervening Navy negligence, however slight or irrelevant. Rather, the Navy’s negligence would have to be substantial, and decisive in the causal chain of events leading to the crash, in order to eliminate Grumman’s liability. In other words, the question presented below was one of proximate cause, and that question is within the province of the jury. See W. Prosser, supra, at 289-90. Grumman cites Restatement (2d) of Torts § 452(2), Illustration 9, as support for its position. We have found no New York case that adopts that specific portion of the Restatement, see 1 New York Pattern Jury-Instructions 2:72 at 212-15 (1974 & Cum. Supp.1980) (instruction on intervening causes). Moreover, since results such as that in Illustration 9 have been criticized as “difficult to explain” by Prosser, see W. Prosser, supra, at 289, we feel no compulsion to suppose that the New York Court of Appeals would adopt § 452(2) if the issue were presented to it today. Finally, § 452(2) “covers the exceptional cases in which ... the duty, and hence the entire responsibility for the situation, has been shifted to a third person.” See § 452, Comment d. But the jury in the present case was instructed respecting Grumman’s “duty” to Lieutenant Vasina, and by its verdict found that that duty still existed at the time of the crash and had not been fully discharged by Grumman. Grumman also argues that the trial judge committed reversible error in refusing to give to the jury an instruction requested by the defense on the subject of “intervening” and “superseding” negligence. This argument does possess a surface appeal. There was clearly enough evidence adduced at trial to warrant a jury decision on Grumman’s defense theory. But ultimately, Grumman’s argument that the judge committed reversible error on this issue is unpersuasive. In evaluating the judge’s instructions to the jury, it is helpful to refer to the summations presented by counsel for both litigants immediately before the charge. Those summations identify as the central issue in the case whether the Navy’s conduct or Grumman’s conduct was the proximate cause of the crash. For example, Vasina’s counsel asserted that “if Grumman is partially responsible, it is liable.... [I]f the Navy was exclusively responsible, then Grumman can walk.” In turn, Grumman’s counsel contended at the start of his argument that “the sole reason why this accident happened is that it was the fault of the Navy and Navy personnel.” Vasina had argued that Grumman’s negligence in designing the airplane, in overseeing its maintenance and use by the Navy, and in failing to warn the Navy properly of dangers in the airplane once they were discovered, each made Grumman liable for the crash. Grumman replied that the Navy’s negligence in repairing and maintaining the airplane poorly and in flying the airplane too long, despite Grumman’s cautionary instructions and recommendations, relieved Grumman of all liability. In the context of these summations, the trial judge’s instructions, though brief, were adequate to present to the jury the legal criteria relevant to Grumman’s defense of superseding negligence. In describing the burden of proof on plaintiff, the judge defined “proximate cause” as follows: “An act or failure to act is the proximate cause of an injury if it was a substantial factor in bringing about the injury, that is, if it had such an effect on producing the injury that reasonable people would regard it as a cause of the injury.” He then presented the litigants’ conflicting contentions and explained the jury’s duty in simple, concise language: There may be more than one proximate cause of an accident. Grumman has contended that the negligence of the Navy was the sole proximate cause of the crash. If you find that the Navy’s negligence was the sole proximate cause, then plaintiff may not recover. However, if you find that both Grumman and the Navy, by separate and independent acts of negligence proximately caused or were substantial factors in proximately causing the death of Lieutenant Vasina, then Grumman is responsible for the whole injury even though Grumman alone might not have been solely responsible for the death of Lieutenant Vasina and even though its acts are not equal in degree to the negligence of the Navy. In other words, from the standpoint of proximate cause, it is no defense to Grumman merely that the negligence of the Navy contributed to the death of Lieutenant Vasina. These instructions were correct, because if the Navy’s asserted intervening negligence had been “superseding,” relieving Grumman of responsibility, then the Navy’s negligence would indeed have been the “sole proximate cause” of the crash. In other words, the issue of “intervening” and “superseding” negligence was contained in the issue of proximate cause, and was adequately presented to the jury in the latter form. Grumman argues that the trial judge should have given its requested instructions instead of those actually given. We are unpersuaded. Grumman’s requested instructions were much longer and more complex, and might well have been unintelligible or needlessly confusing to the jury. The trial judge endeavored, we think successfully, to instruct the jury in ordinary, easily understandable language. In pursuit of this goal, he acted within his discretion in rejecting Grumman’s formulations in favor of his own, which we believe gave the jury sufficient guidance on the applicable law. II Grumman also claims that the trial judge erred in submitting to the jury a claim for strict tort liability, premised upon a defect in the design of Lieutenant Vasina’s airplane. The crash occurred within a federal enclave, the Boardman Bombing Range in Oregon. Grumman argues that the law applicable to this case is therefore determined by reference to 16 U.S.C. § 457, which provides that In the case of the death of any person by the neglect or wrongful act of another within a national park or other place subject to the exclusive jurisdiction of the United States, within the exterior boundaries of any State, such right of action shall exist as though the place were under the jurisdiction of the State within whose exterior boundaries such place may be; and in any action brought to recover on account of injuries sustained in any such place the rights of the parties shall be governed by the laws of the State within the exterior boundaries of which it may be. Grumman interprets this statute to mean that the law applicable to the present case is the law in force in Oregon at the time that the enclave was ceded to the United States. The trial judge found that this cession occurred in 1846. 492 F.Supp. at 945. Grumman argues that since Oregon did not permit tort recoveries based on strict liability until 1967, the law in force within the federal enclave in 1973, the year of the crash, did not permit strict-liability tort recoveries. Therefore, Grumman concludes, the trial judge committed reversible error when he submitted the strict-liability claim to the jury. We agree with Grumman that the law applicable to this case is determined by reference to 16 U.S.C. § 457. But we do not agree that § 457 requires that the law of federal enclaves regarding wrongful-death actions be frozen as of the date of cession. The natural reading of the statutory language is that the wrongful-death law of a federal enclave should be identical to that of the surrounding state, whatever that law might be and however it might change over time. The legislative history of § 457 supports such a reading. Senator Walsh of Montana, in explaining the provision to Senator Robinson of Arkansas, stated that the statute would operate “so that if under the law of Arkansas a right of recovery could be had if the death occurred outside of the [enclave], the same right of action would exist if it occurred in the [enclave].” 69 Cong.Rec. 1486 (1928). Thus, it was contemplated that the law of a federal enclave would be “the same” in this respect as that of the surrounding state. This intention was recognized by the Supreme Court in Stewart & Company v. Sadrakula, 309 U.S. 94, 100 & n.9, 60 S.Ct. 431, 434, n.9, 84 L.Ed. 596 (1940): The Congress has recognized in certain instances the desirability of . .. similarity between the municipal laws of the state and those of the federal parcel. Since only the law in effect at the time of the transfer of jurisdiction continues in force, future statutes of the state are not a part of the body of laws in the ceded area. Congressional action is necessary to keep it current. Consequently as defects become apparent legislation is enacted covering certain phases. This occurred as to rights of action for accidental death by negligence or wrongful act [citing 45 Stat. 54,16 U.S.C. § 457 (1928)]. (Emphasis added.) The same construction of § 457 is implicit in numerous opinions of lower courts. See, e. g., Greene v. Vantage Steamship Corporation, 466 F.2d 159, 166 n.9 (4th Cir. 1972) (implicitly interpreting § 457 to apply current state law); Mathis v. General Electric Corporation, 580 F.2d 192, 194 (5th Cir. 1978) (same); Muniz v. United States, 280 F.Supp. 542, 546 (S.D.N.Y.1968) (same). Finally, under Grumman’s interpretation of § 457, federal enclaves would become pockets of outdated legislation. Cf. Capetola v. Barclay-White Company, 48 F.Supp. 797, 800 (E.D.Pa.). (“Ceded property would .. . become a sanctuary for the obsolete restrictions of the common law and a grave yard for the burial of every humane legislation .... ”), aff’d, 139 F.2d 556 (3d Cir. 1943), cert. denied, 321 U.S. 799, 64 S.Ct. 939, 88 L.Ed.1087 (1944). We do not think that such an intention can be plausibly ascribed to the Congress that enacted § 457. In support of its position, Grumman relies heavily on Quadrini v. Sikorsky Aircraft Division, 425 F.Supp. 81 (D.Conn.1977). That case involved the crash of a military helicopter in a federal enclave in North Carolina. The district judge concluded that the substantive law applicable to plaintiff’s tort claim was “the tort law of North Carolina as it existed on April 3, 1941, the time the enclave was ceded to the United States .. ..” Id. at 88. We decline to make Quadrini the law of this circuit on this point. If the authors of § 457 had had only the narrow purpose ascribed to them in Quadrini, we think that they would have drawn the statute itself more narrowly. The plain language of the provision as drafted, and its later judicial construction, lead us to conclude that § 457 envisions the application of the current substantive law of the surrounding state in actions for death or personal injury occurring within a federal enclave. Because our holding agrees with that of the district judge below, we find no error in his decision to submit to the jury the strict-liability claim made by plaintiff. Ill Finally, Grumman attacks the jury’s damage award in a number of aspects. Grumman claims that the trial judge erred in refusing to permit evidence on the effect of taxes upon the computation of Lieutenant Vasina’s lost future income, or to instruct the jury, as requested, regarding the non-taxability of an award for damages made to plaintiff. Grumman’s argument on this point rests upon the recent Supreme Court decision in Norfolk & Western Railway Company v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980), in which it was held error to refuse to allow evidence or give requested instructions on taxes in a case brought under the Federal Employers’ Liability Act. Grumman contends that Liepelt represents the “better view” today, and “that the New York Court of Appeals, were it presented with this question today, might well be persuaded that instructions on these issues should be furnished to the jury.” In support of its view, Grumman cites Coleman v. New York City Transit Authority, 37 N.Y.2d 137, 145, 371 N.Y.S.2d 663, 332 N.E.2d 850 (1975) (Jasen, J., dissenting). We see no support in Coleman for Grumman’s position. Judge Jasen’s dissent in that case, in which he argued for jury instructions on taxes, hardly suggests that the New York Court of Appeals would embrace Liepelt today. On the contrary, the fact that all six of Judge Jasen’s colleagues opposed him on this point leads us to believe that the majority opinion in Coleman still expresses the majority view of the New York Court of Appeals on this subject. Our review of New York case law on this point since Coleman confirms that belief. We have found no indication that the New York Court of Appeals, or any lower court, has expressed any doubts about the majority view in Coleman. We therefore conclude that Grumman’s assignment of error here is without support in New York law. Grumman also argues that prejudgment interest should not have been awarded. Grumman’s argument here is that Oregon law, which does not provide for prejudgment interest, should apply to the present case by virtue of 16 U.S.C. § 457. But Grumman explicitly accepted the application of New York law respecting damages, see note 4 supra. And as Grumman concedes in its brief on appeal, New York law “specifically provides for prejudgment interest.” Grumman seems to want to pick and choose between the laws of Oregon and New York to suit its own advantage. We reject this “smorgasbord” approach. Grumman’s last claim is that the amount of the judgment in favor of plaintiff is “grossly excessive compensation for plaintiff’s pecuniary loss.” The amount in question is $1,095,150. Grumman’s argument is that by investing the award in “municipal bonds yielding more than 10% per year,” plaintiff will be able to receive as annual income an amount far greater than Lieutenant Vasina’s income at the time of his death. Grumman therefore urges that the judgment be set aside, citing Dullard v. Berkeley Associates Company, 606 F.2d 890, 895 (2d Cir. 1979). We think that Dullard is readily distinguishable from the present case and that Grumman’s argument is without substantial merit. Grumman’s simplistic comparison of current bond yields with Lieutenant Vasina’s 1973 income ignores the complexity of this (and almost every) damage-award calculation. At trial, only plaintiff presented expert testimony on plaintiff’s pecuniary loss; Grumman contented itself with cross-examination of plaintiff’s expert. Plaintiff’s expert presented calculations — clearly accepted by the jury — that conclusively rebut Grumman’s argument on appeal. Plaintiff’s calculations of pecuniary loss included an estimate of Lieutenant Vasina’s lost wages from the date of death to the time of trial; an estimate of his lost wages from the time of trial to the end of his military career, which estimate assumed predictable and reasonable future pay increases; an estimate of Lieutenant Vasina’s lost future pension, which was guaranteed and of a readily predictable amount; and an estimate of the income he would have been able to earn in a second career begun after retirement from the Navy. All of these individual estimates were reasonable, and their total closely approximated the amount ultimately awarded by the jury. Grumman’s reliance on Dullard is unavailing. Dullard’s calculations of future income did not allow for future pay increases, for a future pension, or for future second-career income. In the context of that case, where no expert testimony respecting such factors was offered, it was reasonable to ignore them and to make a direct comparison between bond yields and decedent’s lost annual income. But in the present case, the damage award comprised a number of future income factors, each of which was calculated in a reasonable manner. The sum of these individual factors cannot be dismissed as unreasonable by reference to a Dullard -style comparison of 1980 bond yields and Lieutenant Vasina’s 1973 income. We therefore conclude that the damage award was not unreasonable. Grumman presents a number of other claims of reversible error committed by the trial judge, but we find none of these sufficiently meritorious to warrant discussion. In sum, we think that none of the errors complained of by Grumman requires reversal of the judgment of the district court, which we therefore affirm. . Illustration 9 provides: The A Railroad negligently turns over to its connecting carrier B Railroad a freight car, the door of which is in defective and dangerous condition. B Railroad operates the car on its own line over a period of six months, during which time it negligently fails to inspect the car and discover the defect. At the end of that time it turns the car over to C Railroad. D, who is an employee of C Railroad, without any negligence of his own, is injured when the door falls on him. A Railroad is not liable to D. Grumman places itself in the position of A Railroad, the Navy in the position of B Railroad, Lieutenant Vasina’s squadron in the position of C Railroad, and Lieutenant Vasina himself in the position of D. . For example, Grumman’s Requested Charge Number 17: The failure to guard against the remote possibility of an accident, or one which, in the exercise of ordinary care, could not be foreseen, does not render the actor liable in negligence. Reasonable foresight is required, not prophetic vision. In other words, the person charged with negligence is not required to foretell the future. Where the result is one that could not have been reasonably anticipated from the original negligent act, then it cannot be said that such act was a proximate cause of the injury. Even though the injury sustained would not have occurred had not the original negligent act been committed, where the injury could not have been foreseen or reasonably anticipated as a probable result or a natural consequence of the negligence complained of, it is not actionable. In making your determination whether an intervening force is a superseding cause of the accident, you should consider whether: (a) the intervening force brought about harm different in kind from that which would otherwise have resulted; (b) the intervening cause is operating independently of any situation created by the defendant’s conduct, or, on the other hand, is a normal result of such a situation; (c) whether the intervening force is due to a third person’s act or his failure to act; (d) whether the intervening force is due to a wrongful act by a third person, and as such subjects the third person to liability; and (e) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion. See Restatement (Second) of Torts § 442. See also Warren’s Negligence, Vol. 1A at 256. This was but one of twenty-six requested instructions submitted by Grumman — three on the subject of intervening and superseding cause alone. . Grumman asserts that the date of cession was 1941. The difference is not explained by Grumman, but is immaterial, since Oregon did not permit tort recoveries based on strict liability until long after 1941. . Murray v. Joe Gerrick & Company, 291 U.S. 315, 54 S.Ct. 432, 78 L.Ed. 821 (1934), and Arlington Hotel Company v. Fant, 278 U.S. 439, 278 U.S. 439, 73 L.Ed. 447 (1929), both of which are cited in Quadrini, are not to the contrary. Fant, which did not even refer to § 457, involved state changes of law enacted before § 457 itself was enacted in 1928, and is therefore not on point. Murray held that § 457 applies “only to actions at law,” 291 U.S. at 318, 54 S.Ct. at 433, and not to claims brought under state workmen’s compensation laws, and is likewise not on point. It should be noted, however, that Murray also held that § 457 had the effect of incorporating state changes of law enacted between the date of cession and the enactment of § 457. In so holding, the Court interpreted the statutory language, “the laws of the State within the exterior boundaries of which [the federal enclave] may be.” It observed that, “This plainly means the existing law, as declared from time to time by the state . .. . ” 291 U.S. at 319, 54 S.Ct. at 433 (emphasis added). . Grumman stated at trial that it was “happy” with the application of New York law rather than Oregon law “as to the measure of damages.” Appellee suggests that one of the reasons for Grumman’s position in the trial court may have been that “[w]rongful death compensatory damages recoverable under Oregon law are more liberal than under New York law Grumman also cites Gilliard v. New York City Health and Hospitals Corporation, 77 A.D.2d 532, 430 N.Y.S.2d 308 (1st Dep’t 1980), for this point. But that case does not address the question of instructing juries at all. The Giiliard court merely mentioned income taxes as one of many factors it considered in concluding that a damages award of $200,000 was plainly excessive, see id. at 533. . This is the amount awarded to plaintiff and her daughter by reason of her husband’s death. The balance of the award, $89,120, was given to decedent’s daughter “for loss of fatherly nurture, care and guidance.” As to prejudgment interest on the award, that may not be considered in determining excessiveness, see Dullard v. Berkeley Associates Company, 606 F.2d 890, 895 (2d Cir. 1979), citing Zaninovich v. American Airlines, Inc., 26 A.D.2d 155, 160, 271 N.Y.S.2d 866 (1st Dep’t 1966). 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_appstate	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 "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. METROPOLITAN LIFE INSURANCE COMPANY, Plaintiff-Appellee, v. Werner H. KRAMARSKY, As Commissioner of the New York State Division of Human Rights, the New York State Division of Human Rights, and the New York State Human Rights Appeal Board, Defendants-Appellants. No. 19, Docket 80-7185. United States Court of Appeals, Second Circuit. Originally Argued Sept. 25, 1980. Decided May 11, 1981. Petition for Rehearing June 9, 1981. Decided Nov. 24, 1981. Remanded from the United States Supreme Court June 24, 1983. Decided Dec. 27, 1983. Ann Thacher Anderson, Gen. Counsel, State Div. of Human Rights, New York City, for defendants-appellants. Jeffrey A. Mishkin, New York City (Jeffrey D. Fields, Proskauer, Rose, Goetz & Mendelsohn, New York City, on the brief), for plaintiff-appellee. Before KEARSE and CARDAMONE, Circuit Judges, and TENNEY, District Judge. Honorable Charles H. Tenney, Senior Judge of the United States District Court for the Southern District of New York, sitting by designation. PER CURIAM: For the reasons stated today in our opinion in Delta Air Lines, Inc. v. Kramarsky, 725 F.2d 146, on remand from the United States Supreme Court, Shaw v. Delta Air Lines, Inc., — U.S. —, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983), we affirm the judgment of the district court enjoining enforcement of New York’s Human Rights Law, N.Y.Exec.Law § 296 (McKinney 1972 & Supp. 1980-81). Question: What is the total number of appellants in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number. Answer:
songer_appnatpr	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SERVICE GARAGE, INC., Respondent. No. 80-1298. United States Court of Appeals, Sixth Circuit. Jan. 5, 1982. Elliott Moore, Andrew Tranovich, N. L. R. B., Washington, D. C., for N. L. R. B. Donald R. Wellford, Boone, Wellford, Clark, Langschmidt & Pemberton, Memphis, Tenn., for respondent. Before MERRITT and KENNEDY, Circuit Judges, and PHILLIPS, Senior Circuit Judge. ORDER On February 7, 1980, the National Labor Relations Board found that respondent Service Garage committed unfair labor practices during an organizing campaign in violation of Sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 151 et seq., by denying employees an expected pay raise during the campaign and by laying off one union adherent and discharging another. The Board ordered reinstatement with back pay of the two disciplined employees, payment of the wage increase, the posting of a notice and other incidental relief. The Board’s order is reported at 247 NLRB No. 115 (1980). The Board issued a supplemental order after it received newly discovered evidence in which it rescinded the reinstatement and back pay award to the discharged employee but otherwise affirmed the original remedy. The supplemental order is reported at 256 NLRB No. 153 (1981). The Board petitions for enforcement of its supplemental order. Respondent Service Garage contends that the Board’s findings are not supported by substantial evidence. Service Garage was founded to service the equipment of four companies owned by a Mr. Hollis and a Mr. Bell. It later expanded to take in outside business as well. A Mr. Scott managed Service Garage from 1977 to January 23,1979 with full authority to hire and fire employees, as well as to grant wage increases. Service Garage employed a total of twelve persons in December, 1978. In December, all twelve employees signed authorization cards for the Highway & Local Motor Freight Employees Union. Scott learned of this from employee Holt in the last week of December, and on December 29, 1978, the Union sent a bargaining demand to Hollis. When the company did not respond to this demand by January 2, 1979 the Union filed a representation petition. The Board’s complaint alleged that the employees of Service Garage expected to receive a 7% cost of living wage increase in early January, 1979, and that the company refused to grant this increase upon learning of the employees’ attempt to unionize. The Administrative Law Judge (ALJ) found that the company did not have any past practice of granting cost of living increases. The ALJ noted that there were rumors among the employees that they would receive a 7% increase, but that these rumors had no concrete source. The only concrete evidence cited by the ALJ relating to the company’s promise to grant an increase in January of 1979 was testimony that, when asked by an employee if the union activity meant that there would be no wage increase, Scott replied in the affirmative. The ALJ found that Scott’s single, ambiguous statement did not indicate both that the company had promised its employees a cost of living increase and had decided to withdraw the increase in order to influence the outcome of thé organizing campaign. The ALJ took notice of the quandary the company would be in, in the event of a contrary holding. Under Board policy, there is a presumption that the purpose of a wage increase granted during a union campaign is to interfere with the campaign, and an employer then bears the burden of rebutting this presumption, perhaps by showing that the increase was consistent with past practice. Colonial Haven Nursing Home, Inc., 218 NLRB 1007, 1008 (1975). The ALJ noted that had the employer in this case granted a 7% wage increase in January, the evidence adduced would not have been sufficient to rebut the presumption that it was interfering with the election. He concluded that it would be unfair under these circumstances also to penalize the employer for not granting the wage increase. The Board disagreed with the ALJ. It found that Scott’s statement clearly conveyed the message that the employees would have received a wage increase but for their union activities. In the light of this clear statement, it found the company’s past practices immaterial. It concluded somewhat simplistically that the company did not face the dilemma outlined by the ALJ because it was only required to act as if there were no union. We find that Scott’s statement is not substantial enough evidence viewing the record as a whole to support the Board’s conclusion that a wage increase had been promised and then withdrawn because of union activities. This is particularly true in view of the AU’s contrary decision. See Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 496, 71 S.Ct. 456, 468-69, 95 L.Ed. 456 (1951). The Board failed to show sensitivity to the problem faced by an employer after Colonial Haven. Since the Board has placed on employers the burden of proving that wage increases granted during an organizing campaign are not motivated by a desire to influence the campaign, we must review the evidence closely where the charge is that failure to grant a wage increase during a campaign is an unfair labor practice. The Board also found, contrary to the ALJ’s conclusion, an unfair labor practice based on Scott’s decision to lay off a Mr. Woods, the more junior of the company’s two tire repairmen, on January 9. Woods had been recently hired, in October of 1978. At the time Woods was hired the company handled both Hollis/Bell work and outside work. This proved to be beyond the capacity of the small shop, so a decision was made to eliminate the outside work at the beginning of 1979. The testimony, indicated that Woods was laid off in the expectation that tire repairs would diminish as a result of the cutback. There was no testimony to the contrary. There was also testimony that tire repair work was unpredictable. In fact, the tire repair work did not diminish after Woods was laid off, and he was called back on January 17, eight days later. The Board reasoned that the timing of the layoff created a presumption that the purpose of the layoff was to discourage support for the union. The Board discounted the business justification for the layoff, finding it unbelievable because tire repair work did not diminish. The Board found further support for its conclusion in the company’s denial of the wage increase, ' which the Board found demonstrated anti-union animus. Again, the Board’s decision does not find support in the record as a whole. All of the employees signed union authorization cards. Woods was one of the most junior. He was not one of the union leaders. There is no basis to believe that the layoff was to discourage union support, in the face of the company’s uncontradicted business justification therefor. Accordingly, enforcement of the Board’s order is denied. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_casetyp1_7-3-4	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - bankruptcy, antitrust, securities". DOHERTY v. McAULIFFE et al. No. 2949. Circuit Court of Appeals, First Circuit. Jan. 4, 1935. Robert G. Dodge, of Boston, Mass. (Harold S. Davis, of Boston, Mass., Robert S. Sloan and Joseph A. Burdeau, both of New York City, and Charles F. Dutch and Arthur F. Ray, both of Boston, Mass., on the brief), for appellant. Alfred Gardner, of Boston, Mass. (Paul B. Sargent, of Boston, Mass., on the brief), for appellee McAuliffe. William H. Lewis, of Boston, Mass., for various appellees. George L. Dillaway, of Boston, Mass. (Allan Robinson, of Boston, Mass., on the brief), for intervener Absolom. Before BINGHAM, WILSON, and MORTON, Circuit Judges. MORTON, Circuit Judge. This is a bill in equity to restrain a multiplicity of suits with which the plaintiff, a stockbroker, alleges he is being threatened under the Blue Sky Law of Massachusetts (G. L. [Ter. Ed.] c. 110A) by many different persons who bought stock from him; the proceeding is sometimes called) a “Bill of Peace.” The bill shows complete diversity of citizenship as to the named defendants and more than $3,000 in controversy; and it alleges that the statute in question violates the Fourteenth Amendment to the Constitution of the United States. The defendants make no question as to jurisdiction, nor as to the equity of the bill. In the court below, after full hearing, there was a decree, called an “interlocutory decree,” denying the permanent injunction prayed for and holding that the statute is constitutional, and that the contracts in question are void under it, but continuing during the pendency of this appeal the preliminary injunction previously granted. The plaintiff has appealed. Doherty was a registered broker under the Massachusetts Blue Sky law. The stock in question, that of the Cities Service Company, could be legally sold in Massachusetts under the law. Doherty sold substantial amounts of it on installment contracts. This method of sale is the subject of a special provision in the statute (G. L. Mass. [Ter. Ed.] c. 110A, § 8) which is as follows: Sec. 8. “No person registered as a broker or salesman shall sell any security or securities, whether exempted under section three or not, which are to be paid for in accordance with the terms of an instalment or partial payment plan contract except as such plan is approved by the commission.” Doherty being as he claims unaware of this provision made installment sales on a plan or form of contract which had not been approved by the commission which administered the law. All these contracts were completed; the stock was paid for and was taken by the buyers. Subsequently, when the buyers discovered that the form of contracts under which they purchased had not been approved by the commission, several of them brought actions against Doherty claiming the right to rescind the contracts and gel back their money. Many other similar actions were threatened; and the present bill was filed. The plaintiff further contends, and alleges in the bill, that even if the statute be constitutional and valid, his violation of it did not give the defendants the right to rescind completed transactions. The defendants, on the other hand, contend that the statute is constitutional and that they have the right to rescind. The statute in question has been carefully considered by the Supreme Judicial Court of Massachusetts, in Kneeland v. Emerton, 280 Mass. 371, 183 N. E. 155, 87 A. L. R. 1. It was there held that the parts of the act then before the court are valid; that sales of unqualified securities are void; and that the buyer may rescind such sales even after full completion and recover what he paid. We accept as in duty bound the state court’s construction of the state statute. We agree with its conclusion that the statute in its general provisions is not unconstitutional. The question is elaborately considered in the opinion in the Kneeland Case, and it is unnecessary to repeat the discussion. The provision involved in this case, section 8, was not before the Massachusetts court and was not passed upon by it; but if the statute in its other aspects is constitutional, it seems quite clear that the provision here involved is also constitutional. We do not doubt that the Legislature had the power to regulate sales on installments, nor that the provision forbidding brokers to sell in that way except upon a plan approved by the commission was a valid exercise of this power. As the bill shows jurisdiction in federal courts and a federal question, the District Court had jurisdiction of the entire controversy. “The Federal questions as to the invalidity of the state statute because, as alleged, it was in violation of the Federal Constitution, gave the circuit court jurisdiction, and, having properly obtained it, that court had the right to decide all the questions in the case, even though it decided the Federal questions adversely to' the party raising them, or even if it omitted to decide them at all, but decided the case on local or state questions only.” Peckham, J., Siler v. L. & N. R. R., 213 U. S. 175, at page 191, 29 S. Ct. 451, 454, 53 L. Ed. 753. See, too, Green v. L. & I. R. R., 244 U. S. 499, 508, 37 S. Ct. 673, 61 L. Ed. 1280, Ann. Cas. 1917E, 88; Hopkins v. So. Cal. Tel. Co., 275 U. S. 393, 48 S. Ct. 180, 72 L. Ed. 329. The final question is whether the defendants have the right to rescind and recover what they paid. It depends on whether installment sales, not made on a plan approved by the commission, were by the statute made absolutely void or only voidable. The defendants contend that, though this question was not directly involved in Knee-land v. Emerton, the construction placed upon the statute by that decision requires us to hold that such sales were void, and that in any event the statute ought to be so interpreted. The provision there considered (G. L. Mass. [Ter. Ed.] c. 110A, § 5) was in substance that “no security * * * shall be sold” unless qualified under the act or exempted from its provisions. The provision now under consideration is found in a later section of the statute regulating brokers and persons whose business is selling securities. It is, basically, that no person shall sell securities as a broker unless registered, and that no registered broker shall sell securities on installments except under a plan which has been approved by the commission. In Kneeland v. Emerton, supra, the court was dealing with the sale of an unqualified security which was absolutely forbidden. Here the security might legally be sold and the plaintiff was qualified to sell it in the usual way. The only illegal aspect of the transaction was that the stock was to be paid for by installments instead of by a single payment. Section 5 is differently phrased from section 8; the former deals with subject-matter; the latter with mode of sale. There were strong reasons, almost a necessity if the statute was to be effective, for holding that sales of unqualified securities were void, which do not apply with anything like equal force to the transaction before us. In view of the differences in the language of the two sections of the statute and in the conditions which they were designed to meet, we do not think that Kneeland v. Emerton, supra, is controlling on the question before us. Whether a statute makes void contracts which have been entered into in disregard of its provisions is a question which has often arisen; there is a large body of law on the subject.. The accepted rule is well stated in Bowditch v. New England Mutual Life Insurance Co., 141 Mass. 292, 4 N. E. 798, 800, 55 Am. Rep. 474: “But it is often a question of difficulty to determine whether a statute forbidding an act to be done, or enjoining the mode of doing it, is prohibitory so as to make any contract in violation of it absolutely void, or whether it is directory in its purpose, and docs not necessarily invalidate the contract. * * * “Each statute must be judged by itself as a whole, regard being had, not only to its language, but to the objects and purposes for which it was enacted. If the statute does not declare a contract made in violation of it to be void, and if it is not necessary to hold the contract void in order to accomplish the purpose of the statute, the inference is that it was intended to be directory, and not prohibitory of the contract.” Morton, C. J., page 293, 295 of 141 Mass., 4 N. E. 798. See, also, Harris v. Runnels, 12 How. 79, 84, 13 L. Ed. 901; Huey v. Passarelli, 267 Mass. 578, 166 N. E. 727; Sinnott v. German-American Bank, 164 N. Y. 386, 58 N. E. 286; Fritts v. Palmer, 132 U. S. 282, 10 S. Ct. 93, 33 L. Ed. 317; Dunlop v. Mercer (C. C. A.) 156 F. 545; Bemis v. Becker, 1 Kan. 226. The object of the provision here in question was to prevent brokers from overreaching by means of installment contracts which imposed unfair conditions on the buyer. When such a sale has been completed and the securities delivered, this consideration becomes of little force. It is going beyond what the statute requires, to hold that sales of a permitted security by a registered broker are completely void because* the form in which they were made was not approved. The mere fact that by making a contract a person violates the law and renders himself liable to punishment does not necessarily render the contract void. In the cases above cited more extreme instances of violation of regulatory statutes were held not to have the effect of voiding contracts. For instance, statutes which forbid persons from selling lots according to any plan until the plan lias been recorded and imposes penalties for violation of them do not make void the contracts, Watrous & Snouffer v. Blair, 32 Iowa, 58; Bemis v. Becker, 1 Kan. 226; statutes forbidding persons from carrying on business under fictitious names and imposing penalties for so doing do not make void contracts made by a person who is violating the statute, Hayes v. Providence Citizens’ Bank & Trust Co., 218 Ky. 128, 290 S. W. 1028, 59 A. L. R. 450; Sagal v. Fylar, 89 Conn. 293, 93 A. 1027, L. R. A. 1915E, 747; Rutkowsky v. Bozza, 77 N. J. Law, 724, 73 A. 502; Lamb v. Condon, 276 Pa. 544, 120 A. 546; a statute forbidding corporations under penalty from holding real estate does not make void title acquired by a corporation in violation of the statute, Fritts v. Palmer, 132 U. S. 282, 10 S. Ct. 93, 33 L. Ed. 317. A statute may have the effect of making a contract voidable while still executory but not void after completion. Sinnott v. German-American Bank, 164 N. Y. 386, 58 N. E. 286; Bawden v. Taylor, 254 Ill. 464, 98 N. E. 941. II the Legislature had intended to outlaw installment sales not made on an approved plan, it would have been very easy to say so. The basic difference in language between section 5 and section 8, and the fact that no such provision was inserted are significant. It seems probable that the decision in Kneeland v. Emerton went beyond the actual intention of the Legislature with respect to making contracts void (280 Mass. 379, 380, 183 N. E. 155, 87 A. L. R. 1). Installment contracts made in violation of section 8 may be voidable by the buyer while executory, but we do not think it was intended that they should be void, nor that, alter they have been fully performed, there is any right to rescind. It follows that the decree appealed from must be vacated except that the preliminary injunction referred to in clause 4 of said decree may stand sxibject to further order of the District Court, and that the case should be remanded to the District Court for further proceedings in accordance with this opinion. The decree of the District Court is vacated and the case is remanded to that court for further proceedings not inconsistent with this opinion. Question: What is the specific issue in the case within the general category of "economic activity and regulation - bankruptcy, antitrust, securities"? A. bankruptcy - private individual (e.g., chapter 7) B. bankruptcy - business reorganization (e.g., chapter 11) C. other bankruptcy D. antitrust - brought by individual or private business (includes Clayton Act; Sherman Act; and Wright-Patman) E. antitrust - brought by government F. regulation of, or opposition to mergers on other than anti-trust grounds G. securities - conflicts between private parties (including corporations) H. government regulation of securities Answer:
sc_casesourcestate	37	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. MISHKIN v. NEW YORK. No. 49. Argued December 7, 1965. Decided March 21, 1966. Emanuel Redfield argued the cause and filed a brief for appellant. H. Richard Uviller argued the cause for appellee. With him on the brief were Frank S. Hogan and Alan F. Leibowitz. Edward de Orazia filed a brief for Marshall Cohen et al., as amici curiae, urging reversal. Briefs of amici curiae, urging affirmance, were filed by Leo A. Larkin, Roger Arnebergh and Max P. Zall for the City of New York et al.; and by Charles H. Keating, Jr., and James J. Clancy for Citizens for Decent Literature, Inc., et al. Mr. Justice Brennan delivered the opinion of the Court. This case, like Ginzburg v. United States, ante, p. 463, also decided today, involves convictions under a criminal obscenity statute. A panel of three judges of the Court of Special Sessions of the City of New York found appellant guilty of violating § 1141 of the New York Penal Law by hiring others to prepare obscene books, publishing obscene books, and possessing obscene books with intent to sell them. 26 Misc. 2d 152, 207 N. Y. S. 2d 390 (1960). He was sentenced to prison terms aggregating three years and ordered to pay $12,000 in fines for these crimes. The Appellate Division, First Department, affirmed those convictions. 17 App. Div. 2d 243, 234 N. Y. S. 2d 342 (1962). The Court of Appeals affirmed without opinion. 15 N. Y. 2d 671, 204 N. E. 2d 209 (1964), remittitur amended, 15 N. Y. 2d 724, 205 N. E. 2d 201 (1965). We noted probable jurisdiction. 380 U. S. 960. We affirm. Appellant was not prosecuted for anything he said or believed, but for what he did, for his dominant role in several enterprises engaged in producing and selling allegedly obscene books. Fifty books are involved in this case. They portray sexuality in many guises. Some depict relatively normal heterosexual relations, but more depict such deviations as sado-masochism, fetishism, and homosexuality. Many have covers with drawings of scantily clad women being whipped, beaten, tortured, or abused. Many, if not most, are photo-offsets of typewritten books written and illustrated by authors and artists according to detailed instructions given by the appellant. Typical of appellant’s instructions was that related by one author who testified that appellant insisted that the books be “full of sex scenes and lesbian scenes .... [T]he sex had to be very strong, it had to be rough, it had to be clearly spelled out. ... I had to write sex very bluntly, make the sex scenes very strong. . . . [T]he sex scenes had to be unusual sex scenes between men and women, and women and women, and men and men. . . . [H]e wanted scenes in which women were making love with women .... [H]e wanted sex scenes ... in which there were lesbian scenes. He didn’t call it lesbian, but he described women making love to women and men . . . making love to men, and there were spankings and scenes — sex in an abnormal and irregular fashion.” Another author testified that appellant instructed him “to deal very graphically with . . . the darkening of the flesh under flagellation . . . .” Artists testified in similar vein as to appellant’s instructions regarding illustrations and covers for the books. All the books are cheaply prepared paperbound “pulps” with imprinted sales prices that are several thousand percent above costs. All but three were printed by a photo-offset printer who was paid 400 or 150 per copy, depending on whether it was a “thick” or “thin” book. The printer was instructed by appellant not to use appellant’s name as publisher but to print some fictitious name on each book, to “make up any name and address.” Appellant stored books on the printer’s premises and paid part of the printer’s rent for the storage space. The printer filled orders for the books, at appellant’s direction, delivering them to appellant’s retail store, Publishers’ Outlet, and, on occasion, shipping books to other places. Appellant paid the authors, artists, and printer cash for their services, usually at his bookstore. I. Appellant attacks § 1141 as invalid on its face, contending that it exceeds First Amendment limitations by proscribing publications that are merely sadistic or masochistic, that the terms “sadistic” and “masochistic” are impermissibly vague, and that the term “obscene” is also impermissibly vague. We need not decide the merits of the first two contentions, for the New York courts held in this case that the terms “sadistic” and “masochistic,” as well as the other adjectives used in § 1141 to describe proscribed books, are “synonymous with 'obscene.’ ” 26 Misc. 2d, at 154, 207 N. Y. S. 2d, at 393. The contention that the term “obscene” is also impermissibly vague fails under our holding in Roth v. United States, 354 U. S. 476, 491-492. Indeed, the definition of “obscene” adopted by the New York courts in interpreting § 1141 delimits a narrower class of conduct than that delimited under the Roth definition, People v. Richmond County News, Inc., 9 N. Y. 2d 578, 586-587, 175 N. E. 2d 681, 685-686 (1961), and thus § 1141, like the statutes in Roth, provides reasonably ascertainable standards of guilt. Appellant also objects that § 1141 is invalid as applied, first, because the books he was convicted of publishing, hiring others to prepare, and possessing for sale are not obscene, and second, because the proof of scienter is inadequate. 1. The Nature of the Material. — The First Amendment prohibits criminal prosecution for the publication and dissemination of allegedly obscene books that do not satisfy the Roth definition of obscenity. States are free to adopt other definitions of obscenity only to the extent that those adopted stay within the bounds set by the constitutional criteria of the Roth definition, which restrict the regulation of the publication and sale of books to that traditionally and universally tolerated in our society. The New York courts have interpreted obscenity in § 1141 to cover only so-called “hard-core pornography,” see People v. Richmond County News, Inc., 9 N. Y. 2d 578, 586-587, 175 N. E. 2d 681, 685-686 (1961), quoted in note 4, supra. Since that definition of obscenity is more stringent than the Roth definition, the judgment that the constitutional criteria are satisfied is implicit in the application of § 1141 below. Indeed, appellant’s sole contention regarding the nature of the material is that some of the books involved in this prosecution, those depicting various deviant sexual practices, such as flagellation, fetishism, and lesbianism, do not satisfy the prurient-appeal requirement because they do not appeal to a prurient interest of the “average person” in sex, that “instead of stimulating the erotic, they disgust and sicken.” We reject this argument as being founded on an unrealistic interpretation of the prurient-appeal requirement. Where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient-appeal requirement of the Roth test is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group. The reference to the “average” or “normal” person in Roth, 354 U. S., at 489-490, does not foreclose this holding. In regard to the prurient-appeal requirement, the concept of the “average” or “normal” person was employed in Roth to serve the essentially negative purpose of expressing our rejection of that aspect of the Hicklin test, Regina v. Hicklin, [1868] L. R. 3 Q. B. 360, that made the impact on the most susceptible person determinative. We adjust the prurient-appeal requirement to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests of its intended and probable recipient group; and since our holding requires that the recipient group be defined with more specificity than in terms of sexually immature persons, it also avoids the inadequacy of the most-susceptible-person facet of the Hicklin test. No substantial claim is made that the books depicting sexually deviant practices are devoid of prurient appeal to sexually deviant groups. The evidence fully establishes that these books were specifically conceived and marketed for such groups. Appellant instructed his authors and artists to prepare the books expressly to induce their purchase by persons who would probably be sexually stimulated by them. It was for this reason that appellant “wanted an emphasis on beatings and fetishism and clothing — irregular clothing, and that sort of thing, and again sex scenes between women; always sex scenes had to be very strong.” And to be certain that authors fulfilled his purpose, appellant furnished them with such source materials as Caprio, Variations in Sexual Behavior, and Krafft-Ebing, Psychopathia Sexualis. Not only was there proof of the books’ prurient appeal, compare United States v. Klaw, 350 F. 2d 155 (C. A. 2d Cir. 1965), but the proof was compelling; in addition appellant’s own evaluation of his material confirms such a finding. See Ginzburg v. United States, ante, p. 463. 2. Scienter.—In People v. Finkelstein, 9 N. Y. 2d 342, 344-345, 174 N. E. 2d 470, 471 (1961), the New York Court of Appeals authoritatively interpreted § 1141 to require the “vital element of scienter,” and it defined the required mental element in these terms: “A reading of the statute [§ 1141] as a whole clearly indicates that only those who are in some manner aware of the character of the material they attempt to distribute should be punished. It is not innocent but calculated purveyance of filth which is exorcised . ...” (Emphasis added.) Appellant’s challenge to the validity of § 1141 founded on Smith v. California, 361 U. S. 147, is thus foreclosed, and this construction of § 1141 makes it unnecessary for us to define today “what sort of mental element is requisite to a constitutionally permissible prosecution.” Id., at 154. The Constitution requires proof of scienter to avoid the hazard of self-censorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of obscenity. The New York definition of the scienter required by § 1141 amply serves those ends, and therefore fully meets the demands of the Constitution. Cf. Roth v. United States, 354 U. S., at 495-496 Warren, C. J., concurring). Appellant’s principal argument is that there was insufficient proof of scienter. This argument is without merit. The evidence of scienter in this record consists, in part, of appellant’s instructions to his artists and writers; his efforts to disguise his role in the enterprise that published and sold the books; the transparency of the character of the material in question, highlighted by the titles, covers, and illustrations; the.massive number of obscene books appellant published, hired others to prepare, and possessed for sale; the repetitive quality of the sequences and formats of the books; and the exorbitant prices marked on the books. This evidence amply shows that appellant was “aware of the character of the material” and that his activity was “not innocent but calculated purveyance of filth.” II. Appellant claims that all but one of the books were improperly admitted in evidence because they were fruits of illegal searches and seizures. This claim is not capable in itself of being brought here by appeal, but only by a petition for a writ of certiorari under 28 U. S. C. § 1257 (3) (1964 ed.) as specifically setting up a federal constitutional right. Nevertheless, since appellant challenged the constitutionality of § 1141 in this prosecution, and the New York courts sustained the statute, the case is properly here on appeal, and our unrestricted notation of probable jurisdiction justified appellant’s briefing of the search and seizure issue. Flournoy v. Weiner, 321 U. S. 253, 263; Prudential Ins. Co. v. Cheek, 259 U. S. 530, 547. The nonappealable issue is treated, however, as if contained in a petition for a writ of certiorari, see 28 U. S. C. § 2103 (1964 ed.), and the unrestricted notation of probable jurisdiction of the appeal is to be understood as a grant of the writ on that issue. The issue thus remains within our certiorari jurisdiction, and we may, for good reason, even at this stage, decline to decide the merits of the issue, much as we would dismiss a writ of certiorari as improvidently granted. We think that this is a case for such an exercise of our discretion. The far-reaching and important questions tendered by this claim are not presented by the record with sufficient, clarity to require or justify their decision. Appellant’s standing to assert the claim in regard to all the seizures is not entirely clear; there is no finding on the extent or nature of his interest in two book stores, the Main Stem Book Shop and Midget Book Shop, in which some of the books were seized. The State seeks to justify the basement storeroom seizure, in part, on the basis of the consent of the printer-accomplice; but there were no findings as to the authority of the printer over the access to the storeroom, or as to the voluntariness of his alleged consent. It is also maintained that the seizure in the storeroom was made on the authority of a search warrant; yet neither the affidavit upon which the warrant issued nor the warrant itself is in the record. Finally, while the search and seizure issue has a First Amendment aspect because of the alleged massive quality of the seizures, see A Quantity of Copies of Books v. Kansas, 378 U. S. 205, 206 (opinion of Brennan, J.); Marcus v. Search Warrant, 367 U. S. 717, the record in this regard is inadequate. There is neither evidence nor findings as to how many of the total available copies of the books in the various bookstores were seized and it is impossible to determine whether the books seized in the basement storeroom were on the threshold of dissemination. Indeed, this First Amendment aspect apparently was not presented or considered by the state courts, nor was it raised in appellant’s jurisdictional statement; it appeared for the first time in his brief on the merits. In light of these circumstances, which were not fully apprehended at the time we took the case, we decline to reach the merits of the search and seizure claim; insofar as notation of probable jurisdiction may be regarded as a grant of the certiorari writ on the search and seizure issue, that writ is dismissed as improvidently granted. “Examination of a case on the merits . . . may bring into ‘proper focus’ a consideration which . . . later indicates that the grant was improvident.” The Monrosa v. Carbon Black, 359 U. S. 180, 184. Affirmed. [For dissenting opinion of MR. Justice Douglas, see ante, p. 482.] APPENDIX TO OPINION OF THE COURT. THE CONVICTIONS BEING REVIEWED. § 1141 Counts Naming the Book Title of Book Pub- Hiring Possession lishing Others Chances Go Around 1 63 111 H Impact 2 64 112 (N Female Sultan 3 65 113 M Satin Satellite 4 rH Her Highness 5 67 115 lO Mistress of Leather 6 68 116 CO Educating Edna 7 69 117 N Strange Passions 8 70 118 The Whipping Chorus Girls 9 71 119 Order Of The Day and Bound Maritally 10 72 120 11 Dance With the Dominant Whip 11 73 121 12 Cult Of The Spankers 12 74 122 13 Confessions 13 75 123 14 & 46 The Hours Of Torture 14 & 40 76 124 15&47 Bound In Rubber 15&41 77 125 16 & 48 Arduous Figure Training at Bondhaven 16&42 78 126 17&49 Return Visit To Fetterland 17&43 79 127 18 Fearful Ordeal In Restraintland 18 80 128 19 & 50 Women In Distress 19&44 81 129 20 & 54 Pleasure Parade No. 1 20&48 82 130 21 & 57 Screaming Flesh 21 & 51 86 134 22 & 58 Fury 22 & 52 23 So Firm So Fully Packed 23 87 135 24 I’ll Try Anything Twice 24 25 & 59 26 Masque Catanis 25 & 53 26 § 1141 Counts Naming the Book Title of Book Pub- Hiring lishing Others Possession The Violated Wrestler 89 137 27 Betrayal 28 Swish Bottom 29 90 138 Raw Dames 30 91 139 The Strap Returns 31 92 140 Dangerous Years 32 93 141 Columns of Agony 37 95 144 The Tainted Pleasure 38 96 145 Intense Desire 39 97 146 Pleasure Parade No. 4 45 85 133 Pleasure Parade No. 3 46 84 132 Pleasure Parade No. 2 47 83 131 Sorority Girls Stringent Initiation 49 98 147 Terror At The Bizarre Museum 50 99 148 Temptation 57 Peggy’s Distress On Planet Venus 58 101 150 Ways of Discipline 59 102 151 Mrs. Tyrant’s Finishing School 60 103 152 Perilous Assignment 61 104 153 Bondage Correspondence 107 156 Woman Impelled 106 155 Eye Witness 108 157 Stud Broad 109 158 Queen Bee no-159 Section 1141 of the Penal Law, in pertinent part, reads as follows: “1. A person who . . . has in his possession with intent to sell, lend, distribute . . . any obscene, lewd, lascivious, filthy, indecent, sadistic, masochistic or disgusting book ... or who . . . prints, utters, publishes, or in any manner manufactures, or prepares any such book ... or who “2. In any manner, hires, employs, uses or permits any person to do or assist in doing any act or thing mentioned in this section, or any of them, “Is guilty of a misdemeanor .... “4. The possession by any person of six or more identical or similar articles coming within the provisions of subdivision one of this section is presumptive evidence of a violation of this section. “5. The publication for sale of any book, magazine or pamphlet designed, composed or illustrated as a whole to appeal to and commercially exploit prurient interest by combining covers, pictures, drawings, illustrations, caricatures, cartoons, words, stories and advertisements or any combination or combinations thereof devoted to the description, portrayal or deliberate suggestion of illicit sex, including adultery, prostitution, fornication, sexual crime and sexual perversion or to the exploitation of sex and nudity by the presentation of nude or partially nude female figures, posed, photographed or otherwise presented in a manner calculated to provoke or incite prurient interest, or any combination or combinations thereof, shall be a violation of this section.” The information charged 159 counts of violating § 1141; in each instance a single count named a single book, although often the same book was the basis of three counts, each alleging one of the three types of § 1141 offenses. Of these, 11 counts were dismissed on motion of the prosecutor at the outset of the trial and verdicts of acquittal were entered on seven counts at the end of trial. The remaining § 1141 counts on which appellant was convicted are listed in the Appendix to this opinion. Appellant was also convicted on 33 counts charging violations of § 330 of the General Business Law for failing to print the publisher’s and printer’s names and addresses on the books. The Appellate Division reversed the convictions under these counts, and the Court of Appeals affirmed. The State has not sought review of that decision in this Court. The trial court divided the counts into five groups for purposes of sentencing. One group consisted of the possession counts concerning books seized from a basement storeroom in a warehouse; a second group of possession counts concerned books seized from appellant’s retail bookstore, Publishers’ Outlet; the third consisted of the publishing counts; the fourth consisted of the counts charging him with hiring others to prepare the books, and the fifth consisted of the counts charging violations of the General Business Law. Sentences of one year and a $3,000 fine were imposed on one count of each of the first four groups; the prison sentences on the first three were made consecutive and that on the count in the fourth group was made concurrent with that in the third group. A $500 fine was imposed on one count in the fifth group. Sentence was suspended on the convictions on all other counts. The suspension of sentence does not render moot the claims as to invalidity of the convictions on those counts. “It [obscene material covered by § 1141] focuses predominantly upon what is sexually morbid, grossly perverse and bizarre, without any artistic or scientific purpose or justification. Recognizable ‘by the insult it offers, invariably, to sex, and to the human spirit’ (D. H. Lawrence, Pornography and Obscenity [1930], p. 12), it is to be differentiated from the bawdy and the ribald. Depicting dirt for dirt’s sake, the obscene is the vile, rather than the coarse, the blow to sense, not merely to sensibility. It smacks, at times, of fantasy and unreality, of sexual perversion and sickness and represents, according to one thoughtful scholar, ‘a debauchery of the sexual faculty.’ (Murray, Literature and Censorship, 14 Books on Trial 393, 394; see, also, Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn. L. Rev. 5, 65.)” 9 N. Y. 2d, at 587, 175 N. E. 2d, at 686. See also People v. Fritch, 13 N. Y. 2d 119, 123, 192 N. E. 2d 713, 716 (1963): “In addition to the foregoing tests imposed by the decisions of the [United States] Supreme Court, this court interpreted section 1141 of the Penal Law in People v. Richmond County News ... as applicable only to material which may properly be termed ‘hard-core pornography.’ ” The stringent scienter requirement of §1141, as interpreted in People v. Finkelstein, 9 N. Y. 2d 342, 345, 174 N. E. 2d 470, 472 (1961), also eviscerates much of appellant’s vagueness claim. See, infra, pp. 510-512. See generally, Boyce Motor Lines, Inc. v. United States, 342 U. S. 337, 342; American Communications Assn. v. Douds, 339 U. S. 382, 412-413; Screws v. United States, 325 U. S. 91, 101—104 (opinion of Mr. Justice Douglas) ; United States v. Ragen, 314 U. S. 513, 524; Gorin v. United States, 312 U. S. 19, 27-28; Hygrade Provision Co. v. Sherman, 266 U. S. 497, 501-503; Omaechevarria v. Idaho, 246 U. S. 343, 348. It could not be plausibly maintained that all of the appellant’s books, including those dominated by descriptions of relatively normal heterosexual relationships, are devoid of the requisite prurient appeal. See Manual Enterprises, Inc. v. Day, 370 U. S. 478, 482 (opinion of Harlan, J.); Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn. L. Rev. 5, 72-73 (1960). It is true that some of the material in Alberts v. California, decided with Roth, resembled the deviant material involved here. But no issue involving the obscenity of the material was before us in either case. 354 TJ. S., at 481, n. 8. The basic question for decision there was whether the publication and sale of obscenity, however defined, could be criminally punished in light of First Amendment guarantees. Our discussion of definition was not intended to develop all the nuances of a definition required by the constitutional guarantees. See generally, 1 American Handbook of Psychiatry 593-604 (Arieti ed. 1959), for a description of the pertinent types of deviant sexual groups. For a similar scienter requirement see Model Penal Code §251.4 (2); Commentary, Model Penal Code (Tentative Draft No. 6, 1957), 14, 49-51; cf. Schwartz, Morals Offenses and the Model Penal Code, 63 Col. L. Rev. 669, 677 (1963). We do not read Judge Froessel’s parenthetical reference to knowledge of the contents of the books in his opinion in People v. Finkelstein, 11 N. Y. 2d 300, 304, 183 N. E. 2d 661, 663 (1962), as a modification of this definition of scienter. Cf. People v. Fritch, 13 N. Y. 2d 119, 126, 192 N. E. 2d 713, 717-718 (1963). The scienter requirement set out in the text would seem to be, as a matter of state law, as applicable to publishers as it is to booksellers; both types of activities are encompassed within subdivision 1 of § 1141. Moreover, there is no need for us to speculate as to whether this scienter requirement is also present in subdivision 2 of § 1141 (making it a crime to hire others to prepare obscene books), for appellant’s convictions for that offense involved books for the publication of which he was also convicted. No constitutional claim was asserted below or in this Court as to the possible duplicative character of the hiring and publishing counts. The first appeal in Finkelstein defining the scienter required by § 1141 was decided after this case was tried, but before the Appellate Division and Court of Appeals affirmed these convictions. We therefore conclude that the state appellate courts were satisfied that the § 1141 scienter requirement was correctly applied at trial. The § 1141 counts did not allege appellant’s knowledge of the character of the books, but appellant has not argued, below or here, that this omission renders the information constitutionally inadequate. Unlike the claim here, the challenges decided in the appeals in Marcus v. Search Warrant, 367 U. S. 717, and A Quantity of Copies of Books v. Kansas, 378 U. S. 205, implicated the constitutional validity of statutory schemes establishing procedures for seizing the books. 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_summary	C	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". STATE OF MAINE, et al., Plaintiffs, Appellees, v. DEPARTMENT OF NAVY, et al., Defendants, Appellants. No. 91-1064. United States Court of Appeals, First Circuit. Heard May 6, 1992. Decided Sept. 1, 1992. Jeffrey P. Kehne, Attorney, with whom Richard B. Stewart, Asst. Atty. Gen., Mary Elizabeth Ward, Robert L. Klarquist, At-tys., Environment & Natural Resources Div., U.S. Dept, of Justice, and James E. Fender, Office of Legal Counsel, Portsmouth Naval Shipyard, were on brief, for defendants-appellants. Dennis J. Harnish, Asst. Atty. Gen., with whom Michael E. Carpenter, Atty. Gen., Jeffrey R. Pidot and Thomas D. Warren, Deputy Attys. Gen., were on brief, for plaintiffs-appellees. Catherine R. Connors, Robert E. Cleaves, IV, Janice E. Bryant, Pierce, Atwood, Scribner, Allen, Smith & Lancaster, and Dan W. Reicher, Natural Resources Defense Council, on brief, for Natural Resources Defense Council, amicus curiae. Lee Fisher, Atty. Gen. of Ohio, Jack A. Van Kley, Asst. Atty. Gen. of Ohio, Counsel of Record for amici, James H. Evans, Atty. Gen., State of Ala., Charles E. Cole, Atty. Gen., State of Alaska, Grant Woods, Atty. Gen., State of Ariz., Winston Bryant, Atty. Gen., State of Ark., Richard Blumen-thal, Atty. Gen., State of Conn., Robert A. Butterworth, Atty. Gen., State of Fla., Elizabeth Barrett-Anderson, Atty. Gen. of Guam, Warren Price, III, Atty. Gen., State of Hawaii, Larry Echohawk, Atty. Gen., State of Idaho, Roland W. Burris, Atty. Gen., State of Ill., Linley E. Pearson, Atty. Gen. of Indiana, Bonnie J. Campbell, Atty. Gen. of Iowa, Frederic J. Cowan, Atty. Gen., Com. of Ky., Timothy J. Salansky, Natural Resources and Environmental Protection Cabinet, Com. of Ky., William J. Guste, Jr., Atty. Gen., State of La., J. Joseph Curran, Jr., Atty. Gen. of Maryland, Frank J. Kelley, Michigan Atty. Gen., Hubert H. Humphrey, III, Atty. Gen., State of Minn., William L. Webster, Atty. Gen., of Missouri, Katherine J. Orr, Sp. Asst. Atty. Gen., State of Mont., Frankie Sue Del Papa, Atty. Gen., State of Nev., Robert J. Del Tufo, Atty. Gen. of New Jersey, Tom Udall, Atty. Gen., State of N.M., Lacy H. Thornburg, Atty. Gen., State of N.C., Nicholas J. Spaeth, Atty. Gen., State of N.D., Dave Frohnmayer, Atty. Gen., State of Or., T. Travis Medlock, Atty. Gen: of South Carolina, Charles W. Burson, Atty. Gen. and Reporter, State of Tenn., Dan Morales, Atty. Gen. of Texas, Naricy N. Lynch, Asst. Atty. Gen. of Texas, Paul Van Dam, Atty. Gen. of Utah, Denise Chancellor, Asst. Atty. Gen. of Utah, Mary Sue Terry, Atty. Gen., Com. of Va., Kenneth 0. Eikenberry, Atty. Gen., State of Wash., Joseph B. Meyer, Atty. Gen., State of Wyo., and Gale A. Norton, Atty. Gen. of Colo., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., and Daniel S. Miller, First Asst. Atty. Gen., State of Colo., on brief for Alabama, Alaska, Arizona, Arkansas, Connecticut, Florida, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Missouri, Montana, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oregon, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, Wyoming, and Colorado, amici curiae. Before BREYER, Chief Judge, COFFIN, Senior Circuit Judge, and TORRUELLA, Circuit Judge. BREYER, Chief Judge. The basic issue on this appeal is whether the federal government has waived its sovereign immunity from punitive fines and various monetary fees imposed upon federal facilities under a state hazardous waste law. A recent Supreme Court decision, United States Dep’t of Energy v. Ohio, — U.S.-, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992), answers most of the questions before us in a manner favorable to the immunity claims of the federal government. That case requires us to vacate the judgment of the district court and remand this case. We shall briefly explain why. I Background The Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901-6992k, sets federal standards regulating hazardous waste disposal; it permits states (under certain circumstances) to promulgate and administer their own hazardous waste regulations in lieu of the federal program, § 6926; and it requires federal facilities to comply with those state laws, § 6961. In 1986, Maine brought this lawsuit against the United States Navy, claiming that the Navy’s shipyard in Kittery, Maine, had not complied with Maine’s federally-approved hazardous waste laws. Eventually, the Navy agreed to comply with state regulations. The Navy, however, claiming sovereign immunity, refused to pay punitive fines that state law imposed for past noncompliance; and, it also refused to pay certain state fees (and related fines for nonpayment of those fees). The Navy moved for summary judgment on the ground of sovereign immunity. The district court denied the motion, concluding that the federal government had waived its sovereign immunity in respect to both the fines and the fees. See Maine v. Department of Navy, 702 F.Supp. 322, 330, 331— 332 (D.Me.1988). Maine and the Navy then entered into a consent decree. That decree permits the Navy to appeal the district court’s decision denying the Navy’s motion for summary judgment. The decree also specifies that, if the district court’s determination concerning waiver of sovereign immunity is upheld, the Navy will pay Maine: 1. Civil penalties, amounting to $887,-200, for past violations of Maine’s Hazardous Waste Law. Me.Rev. Stat.Ann. tit. 38 § 349(2). 2. Past licensing and generator fees for the period 1980 to 1988, amounting to a total of $91,962. See Me.Rev.Stat. Ann. tit. 38 § 1319-H(2)(C) (annual license fee of $500 for other hazardous waste facility); § 1319-I(1)(A) (fee of 2$ per pound for “hazardous waste which is disposed of on the site of generation”). 3. Penalties totalling $175,924, for late payment of the 2c per pound waste disposal fee. Me.Rev.Stat.Ann. tit. 38 § 1319-1(6) (penalty of three times fee if fee not paid within six months). We must now decide whether or not the federal government has waived its sovereign immunity in respect to these fines and fees imposed by Maine law. II The Civil Penalties Maine successfully argued in the district court that the federal government waived its sovereign immunity from state-imposed, punitive, civil penalties, such as the penalties before us, by enacting § 6001 of RCRA, 42 U.S.C. § 6961, which reads, in relevant part: Each department, agency, and instrumentality of ... the Federal Government ... engaged in any activity resulting ... in the disposal or management of ... hazardous waste shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief), respecting control and abatement of solid waste or hazardous waste disposal in the same manner, and to the same extent, as any person is subject to such requirements, including the payment of reasonable service charges. In Department of Energy v. Ohio, the Supreme Court considered the same question and concluded that the position taken by Maine and the district court was wrong. The Court held that RCRA does not “subject the United States to an enforcement mechanism” of punitive fines. — U.S. at -, 112 S.Ct. at 1640; see also id. — U.S. at-, 112 S.Ct. at 1644 (White, J., concurring in part and dissenting in part). That holding virtually disposes of the issue before us, requiring us to reverse the district court. We say “virtually,” and not “definitively,” because Maine has raised an argument on this appeal that was not before either the Supreme Court in Department of Energy v. Ohio or the district court in this case. Maine has pointed to a different federal statute, § 120 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9620, which reads, in relevant part: State laws concerning removal and remedial action, including state laws regarding enforcement, shall apply to removal and remedial action at facilities owned or operated by a department, agency, or instrumentality of the United States.... 42 U.S.C. § 9620(a)(4). Maine argues that this statute applies to, and waives sovereign immunity from, the fines at issue here. We shall put aside, for the sake of argument, the fact that, during over four years of litigation, Maine did not mention this statute until its brief on this appeal. But see Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir.1992) (“[Ajbsent the most extraordinary circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal.”) (citing cases); Johnson v. Allyn & Bacon, Inc., 731 F.2d 64, 73 (1st Cir.) (same), cert. denied, 469 U.S. 1018, 105 S.Ct. 433, 83 L.Ed.2d 359 (1984). Nonetheless, we do not believe that § 120 of CERCLA waives the federal government’s sovereign immunity. We recognize that this statute uses language that differs somewhat from the language of RCRA. The CERCLA language subjects the United States to “state laws regarding enforcement;” RCRA’s language subjects the United States to “all ... State ... requirements, both substantive and procedural (including ... any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief).” In light of the holding and reasoning of Department of Energy v. Ohio, however, we do not think these linguistic distinctions make a critical difference. For one thing, the Supreme Court has insisted that language waiving sovereign immunity be clear and unequivocal. Department of Energy, — U.S. at-, 112 S.Ct. at 1633 (citing United States v. Mitchell, 445 U.S. 535, 538-39, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607 (1980)); United States v. Nordic Village, Inc., — U.S. -, -, 112 S.Ct. 1011, 1014-15, 117 L.Ed.2d 181 (1992). The language of CERCLA § 120, like that in RCRA, is unclear in the same relevant respect, namely, it could refer (1) to prospective coercive fines, (2) to retrospective civil penalties, or (3) to both. Language of a different statute that the Supreme Court considered in Department of Energy — language in the Clean Water Act stating that the federal government is “subject to ... all ... State ... sanctions,” 33 U.S.C. § 1323(a) — suffered the same kind of infirmity. See — U.S. at-, 112 S.Ct. at 1636-37. For similar reasons, Maine’s argument is open to the Supreme Court’s observation concerning RCRA § 6961 that the statute makes no mention of any mechanism for penalizing past violations, and this absence of any example of punitive fines is powerful evidence that Congress had no intent to subject the United States to an enforcement mechanism that could deplete the federal fisc regardless of a responsible officer’s willingness and capacity to comply in the future. — U.S. at-, 112 S.Ct. at 1640; see also id. — U.S.-, 112 S.Ct. at 1644 (White, J., concurring in part and dissenting in part) (“The section makes no reference to civil penalties_”). For another thing, the legislative history of CERCLA is not particularly helpful to any effort to distinguish Department of Energy. Maine points to various comments by legislators suggesting that they believed that the language of CERCLA § 120 did, in fact, waive sovereign immunity from punitive civil fines. See Joint Explanatory Statement of the Committee of Conference, Superfund Amendments and Reauthorization Act of 1986, Conf.Rep. 962, 99th Cong., 2d Sess. (1986), reprinted in 132 Cong.Rec. H9083, 9101 (daily ed. Oct. 3, 1986); 132 Cong.Rec. S14899, 14902 (daily ed. Oct. 3, 1986) (statement of Sen. Stafford explaining Conference Committee report); 132 Cong.Rec. S14913, 14918 (daily ed. Oct. 3, 1986) (comments of Sen. Mitchell). These comments, however, refer both to § 6001 of RCRA and to CERCLA § 120. They do not describe whether, or how, CERCLA might differ from RCRA on this point; and, they certainly do not allow us to distinguish CERCLA § 120 from RCRA § 6001 and the Court’s holding in Department of Energy. See — U.S. at-, 112 S.Ct. at 1639-40. We therefore conclude that Department of Energy requires us to hold that CERCLA § 120, like RCRA § 6961, does not provide an adequately clear waiver of sovereign immunity from the civil penalties sought by Maine. Ill The Fees The Navy has argued, in relevant part, that it is immune from the Maine statute’s $500 licensing fee and its two cents per pound generating fees because (1) the federal government has waived its immunity only in respect to reasonable fees, and (2) the fees at issue here are unreasonably high. The district court denied the Navy’s motion for summary judgment in respect to these fees because it concluded that the licensing and generating fees were “requirements,” for which § 6961 waived sovereign immunity. See 702 F.Supp. at 331-32. While our reasoning differs somewhat from that of the district court, we conclude that the district court properly denied the Navy’s summary judgment motion. A. Immunity from unreasonable fees In our view, RCRA’s language subjecting the federal government to “all” requirements, including “any requirements for permits,” does not waive the sovereign immunity of the United States from unreasonable fees. The law has long distinguished between reasonable state regulatory fees that apply to the federal government and unreasonably high fees. The law typically treats unreasonably high regulatory charges as “taxes” that the Constitution forbids the state to assess against the federal government without explicit consent. See Federal Land Bank v. Crosland, 261 U.S. 374, 378, 43 S.Ct. 385, 386, 67 L.Ed. 703 (1923) (Holmes, J.); United States v. City of Columbia, 914 F.2d 151, 153-54 (8th Cir.1990); United States v. Maine, 524 F.Supp. 1056, 1058-59 (D.Me.1981) (citing cases). The concerns that led to the development of this case law, such as fears of unjustified raids on the federal treasury by states or attempts by states to discourage federal activity within their borders, would seem applicable in the present context. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 426-27, 4 L.Ed. 579 (1819); Public Util. Comm’n v. United States, 355 U.S. 534, 543-44, 78 S.Ct. 446, 452-53, 2 L.Ed.2d 470 (1958) (citing cases). In the absence of any competing consideration, considerations of simplicity and legal coherence militate strongly in favor of interpreting this statute consistently with longstanding legal precedent in a related area. We can find no competing or offsetting consideration here. Congress said nothing in either the statute or its history that suggests a willingness to have the federal government pay un reasonable fees. To the contrary, Congress, in the statute itself, said that the requirements to which it subjected the federal government “in-clud[e] the payment of reasonable service charges.” 42 U.S.C. § 6961 (emphasis added). A regulatory, or licensing, fee, insofar as it is reasonable, seems properly viewed as a kind of charge for a regulatory, or administrative, “service.” And, this language therefore provides a strong additional reason against finding in the statute a waiver of sovereign immunity from un reasonable regulatory charges, whether they are called “licensing fees,” or “generating fees,” or go by some other name. We recognize one possible argument to the contrary. In Environmental Protection Agency v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 217, 96 S.Ct. 2022, 2030, 48 L.Ed.2d 578 (1976), a case interpreting § 313 of the Clean Water Act, the Supreme Court said that language subjecting the United States to state “service charges” did not automatically subject the federal government to all charges that defray state regulatory costs. The Court in that case, however, was faced with a different statute and a different issue. That version of § 313 did not seem to subject federal facilities to state permitting requirements. And, the Court had to decide whether the language “including reasonable service charges” nonetheless did so. The Court held that the words “service charges” in that context did not, by themselves, show an intent to subject federal facilities to state regulation. The statute here, however, clearly requires the Navy to have a state permit. See 42 U.S.C. § 6961 (“including any requirement for permits”). In this context, we believe the use of the word “reasonable” in respect to “service charges” shows an intent that permit fees and other fees related to the costs of regulating must be reasonable. B. The reasonableness of the fees We do not agree with the Navy, however, in its claim that it is entitled to summary judgment because the record demonstrates that the fees at issue are, as a matter of law, unreasonable. The fees are not designed simply to raise money for general revenue purposes. Cf. Butler v. Maine Supreme Judicial Court, 767 F.Supp. 17, 19 (D.Me.1991) (“[Ljevies assessed for regulatory ... purposes, even though they may also raise revenues, are generally not ‘taxes.’ ”). They are like a “classic ‘regulatory fee’ ... imposed by an agency upon those subject to its regulation,” and used, for example, to “rais[e] money placed in a special fund to help defray the agency’s regulation-related expenses.” San Juan Cellular Telephone Co. v. Public Service Comm’n of Puerto Rico, 967 F.2d 683, 685 (1st Cir.1992) (citations omitted); see also South Carolina ex rel. Tindal v. Block, 717 F.2d 874, 887 (4th Cir.1983), cert. denied, 465 U.S. 1080, 104 S.Ct. 1444, 79 L.Ed.2d 764 (1984). The money assessed by Maine goes into a state Hazardous Waste Fund used to pay salaries and other costs of personnel and equipment used to supervise and enforce state hazardous waste laws, including costs of site inspections and clean-up of hazardous waste spills. See Me.Rev.Stat.Ann. tit. 38 § 1319-E(1). The Supreme Court, in a related context, has found regulatory charges on a governmental entity permissible [s]o long as the charges do not discriminate ..., are based on a fair approximation of use of the system, and are structured to produce revenues that will not exceed the total cost ... of the benefits to be supplied.... Massachusetts v. United States, 435 U.S. 444, 466-67, 98 S.Ct. 1153, 1167, 55 L.Ed.2d 403 (1978). Other courts have used this test in legal contexts such as the one before us. See New York State Dep’t of Envtl. Conservation v. United States Dep’t of Energy, 772 F.Supp. 91, 99 & n. 9 (N.D.N.Y.1991) (using Massachusetts test to determine “reasonable service charges” under RCRA § 6961); see also United States v. Maine, 524 F.Supp. at 1059 (using Massachusetts test for state levy on federal facility); cf. Barry Breen, “Federal Supremacy and Sovereign Immunity Waivers in Federal Environmental Law,” 15 Envtl. L.Rep. 10326, 10330 (1985) (Massachusetts standard appropriate for § 6961); William D. Benton & Byron D. Baur, “Applicability of Environmental ‘Fees’ and ‘Taxes’ to Federal Facilities,” 31 Air Force L.Rev. 253, 254-55 (1989) (same); Patrick A. Genzler, “Federal Facility Payment of State Environmental Fees,” 38 Naval L.Rev. 149, 158 (1989) (same). But cf. United States v. City of Columbia, 914 F.2d at 153-54 (refusing to apply Massachusetts standard to municipality’s charge on federal agency). And, Maine’s fees may well satisfy this test. The record contains documents, cited by the Navy {see Navy Brief at 7 n. 5), indicating that the Hazardous Waste Fund spent, for enforcement and licensing costs, $177,000 in 1984, $259,000 in 1985, and $245,000 in 1986. During that time, waste producers in Maine paid fees and assessments amounting to $196,000 (1984), $193,-000 (1985), and $249,000 (1986). The record also contains documents indicating that in the three years 1985, 1986, and 1987, the Navy’s assessed fees amounted to $54,500, while Maine’s estimate of the cost of state regulatory activities related to the Navy’s Kittery shipyard amounted to $61,000. Affidavit of Stacy Ladner, Environmental Scientist, Maine Department of Environmental Protection, Appendix at 253, 254. These documents suggest a rough relation between state regulatory costs and the fees charged. And, such a rough relation is sufficient to show that a state regulatory charge is a reasonable and permissible fee, and not an impermissible “tax” on a federal installation. See Massachusetts v. United States, 435 U.S. at 468-69, 98 S.Ct. at 1167-68; San Juan Cellular, 967 F.2d at 687; New York State Dep’t of Envtl. Conservation, 772 F.Supp. at 100. We do not find the Navy’s arguments to the contrary convincing. First, the Navy points out that much of the state Fund pays for a spill response team, whose work provides a general benefit to the public. It adds that fees that finance a general, widely available, benefit are impermissible “taxes,” not permissible regulatory fees. We agree that financing a general public benefit is one of the important criteria for determining that a charge is a “tax” and not a “fee.” See San Juan Cellular, 967 F.2d at 685. And, clean-up does benefit the general public (as do most regulatory expenditures). But the presence of a state spill response team does more than provide a general benefit. It also benefits the regulated entities in a special way. It helps to insure their compliance with state goals and standards for prompt clean-ups; In our view, a state spill response team (perhaps like airplane safety inspectors, or crash investigators, or special airport rescue teams) bears a close enough relation to the regulatory process as to permit a state’s assessing regulated entities that may cause spills a special charge for its support. See, e.g., Massachusetts v. United States, 435 U.S. at 468, 98 S.Ct. at 1167 (aircraft may be assessed to support federal navigational facilities). Cf. Mississippi Power & Light Co. v. United States Nuclear Regulatory Comm’n, 601 F.2d 223, 228, 231-32 (5th Cir.1979) (upholding NRC’s charge of a “fee” when it supported costs of “environmental reviews,” “uncontested hearings,” and “administrative and technical support” for licensing procedures), cert. denied, 444 U.S. 1102, 100 S.Ct. 1066, 62 L.Ed.2d 787 (1980). Second, the Navy argues that the state response team has never responded to a spill at the shipyard; hence, the Navy contends, it has received no benefit, and the regulatory fees are not based on a “fair approximation” of its use of the system. Massachusetts v. United States, 435 U.S. at 466, 98 S.Ct. at 1167; New York State Dep’t of Envtl. Conservation, 772 F.Supp. at 100. The record as it now stands, however, does not require judgment for the Navy on this point. It indicates that the state’s spill response capability is available to minimize any future spill at the shipyard. The Navy therefore seems to benefit from the team's availability, even though, in fact, it has never used the team. Moreover, considered as a class, generators of hazardous waste benefit from the state’s emergency clean-up capability. And, the law does not require a precise correlation between regulatory fees collected and regulatory services provided to each regulated firm. See Massachusetts v. United States, 435 U.S. at 468, 98 S.Ct. at 1168 (“[E]ven those aircraft, if there are any, that have never received specific services from the National Government benefit from them in the sense that the services are available for their use if needed and in that the provision of the services makes the airways safer for all users.”); New York State Dep’t of Envtl. Conservation, 772 F.Supp. at 100 (“[T]he federal government also benefits from EnCon’s services because the NY-DEC’s programs and services are available for the United States’ use if the same are needed by it in the future.”). The case that the Navy cites in support on this point, National Cable Television Ass’n v. United States, 415 U.S. 336, 94 S.Ct. 1146, 39 L.Ed.2d 370 (1974), is inappo-site. As we recently explained, see San Juan Cellular, 967 F.2d at 686-87, the National Cable Court, which held that “the measure of the authorized fee” is “ ‘value to the recipient,’ ” National Cable, 415 U.S. at 342-43, 94 S.Ct. at 1150 (quoting statute), was interpreting a specific and special statute authorizing agencies to levy a fee. “[T]he courts have read the Supreme Court’s language in National Cable as limited to its specific statutory context.” San Juan Cellular, 967 F.2d at 687; see, e.g., Union Pac. R.R. Co. v. Public Util. Comm’n, 899 F.2d 854, 861 (9th Cir.1990). Third, the Navy argues that the state’s regulatory fees are not proportionate to regulatory costs because Maine also receives annual grants from the U.S. Environmental Protection Agency, see 42 U.S.C. § 6931, which it uses to help finance those costs and which, together with the fees, create a surplus in the state’s Hazardous Waste Fund. Taking grants and fees together, the Navy contends, the federal government pays twice for the same service. If we assume this is so, however, why should the law necessarily allocate the Fund surplus to the state’s fees, rather than to the EPA grants? The record does not indicate that EPA must contribute to the creation of any such surplus, nor explain why it would do so. Cf. id. (grants to be allocated to states by EPA administrator on the basis of various factors). Nor has the Navy explained why an EPA decision to make additional money available to the Fund would render unreasonable regulatory fees that roughly approximate regulatory costs. We conclude that the sparse record before us, in its present form, does not entitle the Navy, as a matter of law, to judgment on its claim that the state’s fees are unreasonably high. The district court’s denial of the Navy’s motion for summary judgment on this issue was therefore legally correct. IV Penalties for Nonpayment of the Fees The district court also held that the state of Maine could recover “a penalty of triple fees for those fees which are more than six months overdue,” 702 F.Supp. at 330 n. 9, penalties that, according to the consent decree, amount to approximately $175,000. This holding, however, cannot survive the Supreme Court’s decision in Department of Energy v. Ohio. As we have pointed out, in Department of Energy, the Court held that the federal government had not waived sovereign immunity in respect to punitive fines, fines “imposed to punish past violations of ... statutes or state laws.” — U.S. at-, -, 112 S.Ct. at 1632, 1640. The penalty in question is explicitly termed a “[p]enalty for late payment of fee.” Me.Rev.Stat. Ann. tit. § 1319-1(6). The fine amounts to a penalty for past conduct, not a coercive effort “imposed to induce [federal agencies] to comply with injunctions or other judicial orders designed to modify behavior prospectively.” Department of Energy, — U.S. at -, 112 S.Ct. at 1632. Cf. United States v. Halper, 490 U.S. 435, 448, 109 S.Ct. 1892, 1902, 104 L.Ed.2d 487 (1989) (“[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.”). Consequently, we reverse the district court’s holding. In sum, the judgment of the district court is vacated. The case is remanded for further proceedings consistent with this opinion. 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_initiate	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. Robert Malvais BRADY, Appellant, v. UNITED STATES of America, Appellee. No. 216-70. United States Court of Appeals, Tenth Circuit. Oct. 26, 1970. Carl N. Kelly, Wichita, Kan. (Leo H. Smith, Denver, Colo., on the brief), for appellant. John A. Babington, Asst. U. S. Atty. (Victor R. Ortega, U. S. Atty., with him on the brief), for appellee. Before BREITENSTEIN, SETH, Circuit Judges, and TEMPLAR, District Judge. PER CURIAM. This is a direct appeal from the District of New Mexico where appellant, charged with escape in violation of 18 U.S.C. § 751(a), was convicted by a jury. In 1959 appellant pled guilty to a kidnapping charge and was sentenced to a long term of imprisonment. In a prior 28 U.S.C. § 2255 proceeding, this court affirmed the holding that the plea of appellant was voluntary, Brady v. United States, 404 F.2d 601 (10th Cir.), and the Supreme Court affirmed, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747. In August 1969 appellant Brady was taken to Albuquerque, New Mexico, under a writ of habeas corpus adtestificandum to testify in a State case. He there escaped from the county jail and was recaptured a few days later. He was charged for this escape in this action and upon conviction he was sentenced to a five year term to be served consecutively to the kidnapping sentence he was serving. As a defense to the escape charge appellant sought to show that a fellow inmate at Leavenworth Penitentiary, who was a convicted murderer, had threatened him, and appellant feared for his life to such an extent that he escaped rather than face the return to Leavenworth. Defendant did not testify himself, but a fellow inmate did so and related the story and the threat. The defendant the day of the trial wished to have another inmate testify, and asked a continuance to have a writ issue to have him brought from Leavenworth to Albuquerque. This request was refused. Appellant’s first point on appeal is that the trial court abused its discretion in refusing to issue a writ of habeas corpus ad testificandum for the second witness, and in denying the motion for continuance. The granting of an application for a writ of habeas corpus ad testificandum rests in the sound discretion of the trial court. United States v. Reed, 413 F.2d 338 (10th Cir. 1969). While the witness that defendant did not produce might have been persuasive, his testimony could have done no more than provide the same information as testified to by the first witness. Under the circumstances it was not an abuse of discretion for the trial judge to deny the continuance on the ground that the testimony of the proposed witness would be cumulative. Defendant’s second point is that he was denied effective assistance of counsel. The requirement of effective assistance of counsel does not mean merely the presence of counsel. Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962). On the other hand, it does not mean victorious or flawless counsel. The complaint as to counsel here concerns the question whether arrangements should have been made at an earlier date to have a writ issue for the second witness when a letter was received by the attorney relating to the willingness of the witness to testify. Taking the record as a whole, the other testimony available, and noting the diligence of counsel in pursuing the defense despite the absence of a crucial element in defendant’s case, it certainly cannot be said that this trial was a sham or a farce. Accordingly, we affirm. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
sc_lcdisagreement	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent. H. P. HOOD & SONS, INC. v. Du MOND, COMMISSIONER OF AGRICULTURE AND MARKETS. No. 92. Argued December 13-14, 1948. Decided April 4, 1949. Warren F. Farr argued the cause and filed a brief for petitioner. Nathaniel L. Goldstein, Attorney General of New York, and Robert G. Blabey submitted on brief for respondent. Mr. Justice Jackson delivered the opinion of the Court. This case concerns the power of the State of New York to deny additional facilities to acquire and ship milk in interstate commerce where the grounds of denial are that such limitation upon interstate business will protect and advance local economic interests. H. P. Hood & Sons, Inc., a Massachusetts corporation, has long distributed milk and its products to inhabitants of Boston. That city obtains about 90% of its fluid milk from states other than Massachusetts. Dairies located in New York State since about 1900 have been among the sources of Boston’s supply, their contribution having varied but during the last ten years approximating 8%. The area in which Hood has been denied an additional license to make interstate purchases has been developed as a part of the Boston milkshed from which both the Hood Company and a competitor have shipped to Boston. The state courts have held and it is conceded here that Hood’s entire business in New York, present and proposed, is interstate commerce. This Hood has conducted for some time by means of three receiving depots, where it takes raw milk from farmers. The milk is not processed in New York but is weighed, tested and, if necessary, cooled and on the same day shipped as fluid milk to Boston. These existing plants have been operated under license from the State and are not in question here as the State has licensed Hood to continue them. The controversy concerns a proposed additional plant for the same kind of operation at Greenwich, New York. Article 21 of the Agriculture and Markets Law of New York forbids a dealer to buy milk from producers unless licensed to do so by the Commissioner of Agriculture and Markets. For the license he must pay a substantial fee and furnish a bond to assure prompt payment to producers for milk. Under § 258, the Commissioner may not grant a license unless satisfied “that the applicant is qualified by character, experience, financial responsibility and equipment to properly conduct the proposed business.” The Hood Company concededly has met all the foregoing tests and license for an additional plant was not denied for any failure to comply with these requirements. The Commissioner’s denial was based on further provisions of this section which require him to be satisfied “that the issuance of the license will not tend to a destructive competition in a market already adequately served, and that the issuance of the license is in the public interest.” Upon the hearing pursuant to the statute, milk dealers competing with Hood as buyers in the area opposed licensing the proposed Greenwich plant. They complained that Hood, by reason of conditions under which it sold in Boston, had competitive advantages under applicable federal milk orders, Boston health regulations, and OPA ceiling prices. There was also evidence of a temporary shortage of supply in the Troy, New York market during the fall and winter of 1945-46. The Commissioner was urged not to allow Hood to compete for additional supplies of milk or to take on producers then delivering to other dealers. The Commissioner found that Hood, if licensed at Greenwich, would permit its present suppliers, at their option, to deliver at the new plant rather than the old ones and for a substantial number this would mean shorter hauls and savings in delivery costs. The new plant also would attract twenty to thirty producers, some of whose milk Hood anticipates will or may be diverted from other buyers. Other large milk distributors have plants within the general area and dealers serving Troy obtain milk in the locality. He found that Troy was inadequately supplied during the preceding short season. In denying the application for expanded facilities, the Commissioner states his grounds as follows: “If applicant is permitted to equip and operate another milk plant in this territory, and to take on producers now delivering to plants other than those which it operates, it will tend to reduce the volume of milk received at the plants which lose those producers, and will tend to increase the cost of handling milk in those plants. “If applicant takes producers now delivering milk to local markets such as Troy, it will have a tendency to deprive such markets of a supply needed during the short season. “There is no evidence that any producer is without a market for his milk. There is no evidence that any producers not now delivering milk to applicant would receive any higher price, were they to deliver their milk to applicant’s proposed plant. “The issuance of a license to applicant which would permit it to operate an additional plant, would tend to a destructive competition in a market already adequately served, and would not be in the public interest.” Denial of the license was sustained by the Court of Appeals over constitutional objections duly urged under the Commerce Clause and, because of the importance of the questions involved, we brought the case here by certiorari. Production and distribution of milk are so intimately related to public health and welfare that the need for regulation to protect those interests has long been recognized and is, from a constitutional standpoint, hardly controversial. Also, the economy of the industry is so eccentric that economic controls have been found at once necessary and difficult. These have evolved detailed, intricate and comprehensive regulations, including' price-fixing. They have been much litigated but were generally sustained by this Court as within the powers of the State over its internal commerce as against the claim that they violated the Fourteenth Amendment. Nebbia v. New York, 291 U. S. 502; Hegeman Farms Corp. v. Baldwin, 293 U. S. 163; Borden’s Co. v. Ten Eyck, 297 U. S. 251. But see Mayflower Farms v. Ten Eyck, 297 U. S. 266. As the states extended their efforts to control various phases of export and import also, questions were raised as to limitations on state power under the Commerce Clause of the Constitution. Pennsylvania enacted a law including provisions to protect producers which were very similar to those of this New York Act. A concern which operated a receiving-plant in Pennsylvania from which it shipped milk to the New York City market challenged the Act upon grounds thus defined by this Court: “The respondent contends that the act, if construed to require it to obtain a license, to file a bond for the protection of producers, and to pay the farmers the prices prescribed by the Board, unconstitutionally regulates and burdens interstate commerce.” Milk Board v. Eisenberg Co., 306 U. S. 346, 350. This Court, specifically limiting its judgment to the Act’s provisions with respect to license, bond and regulation of prices to be paid to producers, id. at 352, considered their effect on interstate commerce “incidental and not forbidden by the Constitution, in the absence of regulation by Congress.” Id. at 353. The present controversy begins where the Eisenberg decision left off. New York’s regulations, designed to assure producers a fair price and a responsible purchaser, and consumers a sanitary and modernly equipped handler, are not challenged here but have been complied with. It is only additional restrictions, imposed for the avowed purpose and with the practical effect of curtailing the volume of interstate commerce to aid local economic interests, that are in question here, and no such measures were attempted or such ends sought to be served in the Act before the Court in the Eisenberg case. Our decision in a milk litigation most relevant to the present controversy deals with the converse of the present situation. Baldwin v. Seelig, 294 U. S. 511. In that case, New York placed conditions and limitations on the local sale of milk imported from Vermont designed in practical effect to exclude it, while here its order proposes to limit the local facilities for purchase of additional milk so as to withhold milk from export. The State agreed then, as now, that the Commerce Clause prohibits it from directly curtailing movement of milk into or out of the State. But in the earlier case, it contended that the same result could be accomplished by controlling delivery, bottling and sale after arrival, while here it says it can do so by curtailing facilities for its purchase and receipt before it is shipped out. In neither case is the measure supported by health or safety considerations but solely by protection of local economic interests, such as supply for local consumption and limitation of competition. This Court unanimously rejected the State’s contention in the Seelig case and held that the Commerce Clause, even in the absence of congressional action, prohibits such regulations for such ends. The opinion was by Mr. Justice Cardozo, experienced in the milk problems of New York and favorably disposed toward the efforts of the State to control the industry. Hegeman Farms Corp. v. Baldwin, 293 U. S. 163; Borden’s Co. v. Baldwin, 293 U. S. 194, concurrence at 213; Mayflower Farms v. Ten Eyck, 297 U. S. 266, dissent at 274. It recognized, as do we, broad power in the State to protect its inhabitants against perils to health or safety, fraudulent traders and highway hazards, even by use of measures which bear adversely upon interstate commerce. But it laid repeated emphasis upon the principle that the State may not promote its own economic advantages by curtailment or burdening of interstate commerce. The Constitution, said Mr. Justice Cardozo for the unanimous Court, “was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.” He reiterated that the economic objective, as distinguished from any health, safety and fair-dealing purpose of the regulation, was the root of its invalidity. The action of the State would “neutralize the economic consequences of free trade among the states.”* “Such a power, if exerted, will set a barrier to traffic between one state and another as effective as if customs duties, equal to the price differential, had been laid upon the thing transported.” “If New York, in order to promote the economic welfare of her farmers, may guard them against competition with the cheaper prices of Vermont, the door has been opened to rivalries and reprisals that were meant to be averted by subjecting commerce between the states to the power of the nation.” And again, “Neither the power to tax nor the police power may be used by the state of destination with the aim and effect of establishing an economic barrier against competition with the products of another state or the labor of its residents. Restrictions so contrived are an unreasonable clog upon the mobility of commerce. They set up what is equivalent to a rampart of customs duties designed to neutralize advantages belonging to the place of origin. They are thus hostile in conception as well as burdensome in result.” This distinction between the power of the State to shelter its people from menaces to their health or safety and from fraud, even when those dangers emanate from interstate commerce, and its lack of power to retard, burden or constrict the flow of such commerce for their economic advantage, is one deeply rooted in both our history and our law. When victory relieved the Colonies from the pressure for solidarity that war had exerted, a drift toward anarchy and commercial warfare between states began. “. . . each State would legislate according to its estimate of its own interests, the importance of its own products, and the local advantages or disadvantages of its position in a political or commercial view.” This came “to threaten at once the peace and safety of the Union.” Story, The Constitution, §§ 259, 260. See Fiske, The Critical Period of American History, 144; Warren, The Making of the Constitution, 567. The sole purpose for which Virginia initiated the movement which ultimately produced the Constitution was “to take into consideration the trade of the United States; to examine the relative situations and trade of the said States; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony” and for that purpose the General Assembly of Virginia in January of 1786 named commissioners and proposed their meeting with those from other states. Documents, Formation of the Union, H. R. Doc. No. 398, 12 H. Docs., 69th Cong., 1st Sess., p. 38. The desire of the Forefathers to federalize regulation of foreign and interstate commerce stands in sharp contrast to their jealous preservation of the state's power over its internal affairs. No other federal power was so universally assumed to be necessary, no other state power was so readily relinquished. There was no desire to authorize federal interference with social conditions or legal institutions of the states. Even the Bill of Rights amendments were framed only as a limitation upon the powers of Congress. The states were quite content with their several and diverse controls over most matters but, as Madison has indicated, “want of a general power over Commerce led to an exercise of this power separately, by the States, wch [sic] not only proved abortive, but engendered rival, conflicting and angry regulations.” 3 Farrand, Records of the Federal Convention, 547. The necessity of centralized regulation of commerce among the states was so obvious and so fully recognized that the few words of the Commerce Clause were little illuminated by debate. But the significance of the clause was not lost and its effect was immediate and salutary. We are told by so responsible an authority as Mr. Jefferson’s first appointee to this Court that “there was not a State in the Union, in which there did not, at that time, exist a variety of commercial regulations; concerning which it is too much to suppose, that the whole ground covered by those regulations was immediately assumed by actual legislation, under the authority of the Union. But where was the existing statute on this subject, that a State attempted to execute? or by what State was it ever thought necessary to repeal those statutes? By common consent, those laws dropped lifeless from their statute books, for want of the sustaining power, that had been relinquished to Congress.” Gibbons v. Ogden, 9 Wheat. 1, concurring opinion at 226. The Commerce Clause is one of the most prolific sources of national power and an equally prolific source of conflict with legislation of the state. While the Constitution vests in Congress the power to regulate commerce among the states, it does not say what the states may or may not do in the absence of congressional action, nor how to draw the line between what is and what is not commerce among the states. Perhaps even more than by interpretation of its written word, this Court has advanced the solidarity and prosperity of this Nation by the meaning it has given to these great silences of the Constitution. Baldwin v. Seelig, 294 U. S. 511, is an explicit, impressive, recent and unanimous condemnation by this Court of economic restraints on interstate commerce for local economic advantage, but it does not stand alone. This Court consistently has rebuffed attempts of states to advance their own commercial interests by curtailing the movement of articles of commerce, either into or out of the state, while generally supporting their right to impose even burdensome regulations in the interest of local health and safety. As most states serve their own interests best by sending their produce to market, the cases in which this Court has been obliged to deal with prohibitions or limitations by states upon exports of articles of commerce are not numerous. However, in a leading case, Oklahoma v. Kansas Natural Gas Co., 221 U. S. 229, the Court denied constitutional validity to a statute by which Oklahoma, by regulation of gas companies and pipe lines, sought to restrict the export of natural gas. The Court held that when a state recognizes an article to be a subject of commerce, it cannot prohibit it from being a subject of interstate commerce; that the right to engage in interstate commerce is not the gift of a state, and that a state cannot regulate or restrain it. Later West Virginia, by act of the Legislature, undertook regulation of pipe-line companies intended to keep within West Virginia all natural gas there produced that might be required for local needs. This Court held that the State could not accord to its own consumers a preferred right of purchase over consumers in other states and in language applicable to the case before us now said, “Much of the business is interstate and has grown up through a course of years. West Virginia encouraged and sanctioned the development of that part of the business and has profited greatly by it. Her present effort, rightly understood, is to subordinate that part to the local business within her borders. In other words, it is in effect an attempt to regulate the interstate business to the advantage of the local consumers. But this she may not do.” Pennsylvania v. West Virginia, 262 U. S. 553, at 597, 598. In Foster Packing Co. v. Haydel, 278 U. S. 1, the Court cited these two cases as authority for the proposition that “A State is without power to prevent privately owned articles of trade from being shipped and sold in interstate commerce on the ground that they are required to satisfy local demands or because they are needed by the people of the State.” 278 U. S. 1, 10. The Court also pointed out that “the purpose [of the statute there involved] is not to retain the shrimp for the use of the people of Louisiana; it is to favor the canning of the meat and the manufacture of bran in Louisiana . . . .” Id., at 13. Thus in the Foster case, and in the companion case Johnson v. Haydel, 278 U. S. 16, although the articles sought to be regulated were shrimp and oysters, which under ordinary conditions might not be considered subjects of commerce, the Court invalidated state enactments attempting to promote local interests at the expense of interstate commerce. In Parker v. Brown, 317 U. S. 341, California's restrictions on sales of raisins within the State to those who were there processing and packing them were attacked as invalid because approximately 95% of the crop would find its way into interstate commerce after processing and packing. However, the Court said: “. . . no case has gone so far as to hold that a state could not license or otherwise regulate the sale of articles within the state because the buyer, after processing and packing them, will, in the normal course of business, sell and ship them in interstate commerce. . . . The regulation is thus applied to transactions wholly intrastate before the raisins are ready for shipment in interstate commerce.” 317 U. S. 341, at 361. This regulation of sale to local processors was distinguished from those which were held invalid in Lemke v. Farmers Grain Co., 258 U. S. 50, and Shafer v. Farmers Grain Co., 268 U. S. 189, because the regulation in the earlier cases was “of the business of those who purchaséd grain within the state for immediate shipment out of it.” Ibid. In those cases, the regulation was of interstate commerce itself. Another element in the Parker case which led the Court to sustain the California regulation was that it was one which the policy of Congress was to aid and encourage, and the Secretary of Agriculture had approved the State program by loans. The most recent case of this kind, Toomer v. Witsell, 334 U. S. 385, involved, among other things, a South Carolina requirement that the owners of shrimp boats fishing off its shores dock at a South Carolina port and unload, pack and stamp their catch with a tax stamp before shipping or transporting it to another state. It was considered that the effect of this section of the statute was to divert to South Carolina employment and business which might otherwise go to other states, and the Court pointed out that “the necessary tendency of the statute is to impose an artificial rigidity on the economic pattern of the industry.” 334 U. S. 385, 403-404. It was held that the Commerce Clause was violated by such a provision. This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the economy, including the vital power of erecting customs barriers against foreign competition, has as its corollary that the states are not separable economic units. As the Court said in Baldwin v. Seelig, 294 U. S. 541, 527, “what is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation.” In so speaking it but followed the principle that the state may not use its admitted powers to protect the health and safety of its people as a basis for suppressing competition. In Buck v. Kuykendall, 267 U. S. 307, the Court struck down a state act because, in the language of Mr. Justice Brandéis, “Its primary purpose is not regulation with a view to safety or to conservation of the highways, but the prohibition of competition.” The same argument here advanced, that limitation of competition would itself contribute to safety and conservation, and therefore indirectly serve an end permissible to the State, was there declared “not sound.” 267 U. S. 307, 315. It is no better here. This Court has not only recognized this disability of the state to isolate its own economy as a basis for striking down parochial legislative policies designed to do so, but it has recognized the incapacity of the state to protect its own inhabitants from competition as a reason for sustaining particular exercises of the commerce power of Congress to reach matters in which states were so disabled. Cf. Steward Machine Co. v. Davis, 301 U. S. 548; Carmichael v. Southern Coal Co., 301 U. S. 495; Helvering v. Davis, 301 U. S. 619. The material success that has come to inhabitants of the states which make up this federal free trade unit has been the most impressive in the history of commerce, but the established interdependence of the states only emphasizes the necessity of protecting interstate movement of goods against local burdens and repressions. We need only consider the consequences if each of the few states that produce copper, lead, high-grade iron ore, timber, cotton, oil or gas should decree that industries located in that state shall have priority. What fantastic rivalries and dislocations and reprisals would ensue if such practices were begun! Or suppose that the field of discrimination and retaliation be industry. May Michigan provide that automobiles cannot be taken out of that State until local dealers’ demands are fully met? Would she not have every argument in the favor of such a statute that can be offered in support of New York’s limiting sales of milk for out-of-state shipment to protect the economic interests of her competing dealers and local consumers? Could Ohio then pounce upon the rubber-tire industry, on which she has a substantial grip, to retaliate for Michigan’s auto monopoly? Our system, fostered by the Commerce Clause, is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market in the Nation, that no home embargoes will withhold his exports, and no foreign state will by customs duties or regulations exclude them. Likewise, every consumer may look to the free competition from every producing area in the Nation to protect him from exploitation by any. Such was the vision of the Founders; such has been the doctrine of this Court which has given it reality. The State, however, insists that denial of the license for a new plant does not restrict or obstruct interstate commerce, because petitioner has been licensed at its other plants without condition or limitation as to the quantities it may purchase. Hence, it is said, all that has been denied petitioner is a local convenience — that of being able to buy and receive at Greenwich quantities of milk it is free to buy at Eagle Bridge and Salem. It suggests that, by increased efficiency or enlarged capacity at its other plants, petitioner might sufficiently increase its supply through those facilities. The weakness of this contention is that a buyer has to buy where there is a willing seller, and the peculiarities of the milk business necessitate location of a receiving and cooling station for nearby producers. The Commissioner has not made and there is nothing to persuade us that he could have made findings that petitioner can obtain such additional supplies through its existing facilities; indeed he found that “applicant has experienced some difficulty during the flush season because of the inability of the plant facilities to handle the milk by 9:00 a. m.,” the time its receipt is required by Boston health authorities unless it is cooled by the farmer before delivery, and a substantial part of it is not. But the argument also asks us to assume that the Commissioner’s order will not operate in the way he found that it would as a reason for making it. He found that petitioner, at its new plant, would divert milk from the plants of some other large handlers in the vicinity, which plants “can handle more milk.” This competition he did not approve. He also found it would tend to deprive local markets of needed supplies during the short season. In the face of affirmative findings that the proposed plant would increase petitioner’s supply, we can hardly be asked to assume that denial of the license will not deny petitioner access to such added supplies. While the state power is applied in this case to limit expansion by a handler of milk who already has been allowed some purchasing facilities, the argument for doing so, if sustained, would be equally effective to exclude an entirely new foreign handler from coming into the State to purchase. The State, however, contends that such restraint or obstruction as its order imposes on interstate commerce does not violate the Commerce Clause because the State regulation coincides with, supplements and is part of the federal regulatory scheme. This contention that Congress has taken possession of “the field” but shared it with the State, it is to be noted, reverses the contention usually made in comparable cases, which is that Congress has not fully occupied the field and hence the State may fill the void. Congress, as a part of its Agricultural Marketing Agreement Act, authorizes the Secretary of Agriculture to issue orders regulating the handling of several agricultural products, including milk, when they are within the reach of its commerce power. As to milk, it sets up, § 8c (5), 7 U. S. C. § 608c (5), a rather complicated system of fixing prices to be paid to producers through equalization pools which distribute the total value of all milk sold in a specified market among the producers supplying that market. This federal regulation was sustained and explained in United States v. Rock Royal Co-operative, 307 U. S. 533; H. P. Hood & Sons v. United States, 307 U. S. 588; see also Stark v. Wickard, 321 U. S. 288. Section 10 of the Federal Act also authorizes federal officials to engage in conferences, joint hearings and cooperation with the state authorities. New York State, in its present and antecedent statutes, has authorized its state authorities to confer with federal officials on milk control problems and a series of conferences and joint hearings have been held. The two authorities formalized their collaboration in 1938 by signing a “Memorandum of the Principles of Cooperation to be Observed in the Formulation and Administration of Complementary Orders for Milk for Marketing Areas Located Within the State of New York to be Issued Concurrently by the Secretary of Agriculture and the Commissioner of Agriculture and Markets.” But no federal approval or responsibility for the challenged features of this order appears in any of these provisions or arrangements. The “memorandum of the principles of cooperation” relates only to marketing areas in New York, while the marketing area served by Hood is entirely outside of New York and is controlled by Federal Order No. 4, applicable to the greater Boston market. Federal Order No. 27 is applicable to the New York metropolitan market and it is as to this order that the State of New York'is recognized by the memorandum as entitled to consultation. There is no such financial support as was given in Parker v. Brown, 317 U. S. 341. The Congressional regulation contemplates and permits a wide latitude in which the State may exercise its police power over the local facilities for handling milk. We assume, though it is not necessary to decide, that the Federal Act does not preclude a state from placing restrictions and obstructions in the way of interstate commerce for the ends and purposes always held permissible under the Commerce Clause. But here the challenge is only to a denial of facilities for interstate commerce upon the sole and specific grounds that it will subject others to competition and take supplies needed locally, an end, as we have shown, always held to be precluded by the Commerce Clause. We have no doubt that Congress in the national interest could prohibit or curtail shipments of milk in interstate commerce, unless and until local demands are met. Nor do we know of any reason why Congress may not, if it deems it in the national interest, authorize the states to place similar restraints on movement of articles of commerce. And the provisions looking to state cooperation may be sufficient to warrant the state in imposing regulations approved by the federal authorities, even if they otherwise might run counter to the decisions that coincidence is as fatal as conflict when Congress acts. See Bethlehem, Steel Co. v. New York State Labor Relations Board, 330 U. S. 767. It is, of course, a quite different thing if Congress through its agents finds such restrictions upon interstate commerce advance the national welfare, than if a locality is held free to impose them because it, judging its own cause, finds them in the interest of local prosperity. When it is considered that the Federal Act was passed expressly to overcome “disruption of the orderly exchange of commodities in interstate commerce” and conditions found to “burden and obstruct the normal channels of interstate commerce,” 7 U. S. C. § 601, it seems clear that we can not sustain the State’s argument that its restrictions here involved supplement and further the federal scheme. Moreover, we can hardly assume that the challenged provisions of this order advance the federal scheme of regulation because Congress forbids inclusion of such a policy in a federal milk order. Section 8c (5) (G) of the Act provides: “No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit or in any manner limit, in the case of the products of milk, the marketing in that area of any milk or product thereof produced in any production area in the United States.” While there may be difference of opinion as to whether this authorizes the Federal Order to limit, so long as it does not prohibit, interstate shipment of milk, see Bailey Farm Dairy Co. v. Anderson, 157 F. 2d 87, 96; Bailey Farm Dairy Co. v. Jones, 61 F. Supp. 209, 221 — a question upon which we express no opinion — it is clear that the policy of the provision is inconsistent with the State’s contention that it may, in its own interest, impose such a limitation as a coincident or supplement to federal regulation. The only federal restriction of handlers’ purchases from new producers, found in §8c(5) (B), authorizes inclusion, in orders concerning milk or milk products, of a clause providing that for deliveries made during the first sixty days a new producer shall be paid only the minimum price applicable for milk of the particular use classification, subject to adjustments not relevant here. This provision was included in the 1935 amendment, “to prevent assaults upon the price structure by the sporadic importation of milk from new producing areas, while permitting the orderly and natural expansion of the area supplying any market . . . .” S. Rep. No. 1011, 74th Cong., 1st Sess., p. 11. And, it was added, “this is the only limitation upon the entry of new producers — wherever located — into a market, and it can remain effective only for the specified . . . period.” Ibid. The bill originally provided for a ninety-day minimum price period but in conference the less restrictive sixty-day period was adopted. H. R. Rep. No. 1757, 74th Cong., 1st Sess., p. 21. These sections and reports indicate that it is the deliberate policy of the Congress to prevent federal officers from placing barriers in the way of the interstate flow of milk. While a statutory prohibition against federal interference with certain phases of it may not always imply that the state too is precluded, it is obvious that a state limitation on export for the benefit of its own consumers is not authorized by this Federal Act. The purpose as expressed in § 1, 7 U. S. C. § 601, is to avoid conditions which burden and obstruct the normal channels of interstate commerce. The object of the federal program to raise and stabilize the price of products was to stimulate interstate commerce. The order of the Commissioner avows itself to have the opposite effect. It can claim neither federal sponsorship nor congressional sanction. Since the statute as applied violates the Commerce Clause and is not authorized by federal legislation pursuant to that Clause, it cannot stand. The judgment is reversed and the cause remanded for proceedings not inconsistent with this opinion. It is so ordered. The New York Court of Appeals described the geographical situation with respect to petitioner’s present and proposed plants as follows: “The extension would have permitted petitioner to operate a milk receiving plant at Greenwich, New York, in addition to petitioner’s other similar plants already licensed and operating at Eagle Bridge, Salem and Norfolk, in this State. Eagle Bridge is in Rensselaer County and Salem and Greenwich are in Washington County, Rensselaer County being adjacent to Washington County on the south, and both these counties being on the easterly edge of New York State, bordering on Massachusetts and Vermont. Petitioner’s Norfolk establishment is in St. Lawrence County in another part of New York State, and serves a different area and a different group of milk producers. The present Eagle Bridge and Salem depots, however, are quite close together and the proposed Greenwich plant, for which a license has been refused, is ten miles from Salem and twelve miles from Eagle Bridge.” 297 N. Y. 209, 212; 78 N. E. 2d 476, 477. Laws of 1934, c. 126. Section 258-c provides in pertinent part as follows: “No license shall be granted to a person not now engaged in business as a milk dealer except for the continuation of a now existing business, and no license shall be granted to authorize the extension of an existing business by the operation of an additional plant or other new or additional facility, unless the commissioner is satisfied that the applicant is qualified by character, experience, financial responsibility and equipment to properly conduct the proposed business, that the issuance of the license will not tend to a destructive competition in a market already adequately served, and that the issuance of the license is in the public interest. . . .” This finding follows the statutory language. See Note 3. 297 N. Y. 209, 78 N. E. 2d 476. U. S. Const., Art. I, §8, cl. 3, granting Congress power “To regulate Commerce . . . among the several States ...” 335 U. S. 808. “. . . nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Court said: “The Commonwealth [of Pennsylvania] does not essay to regulate or to restrain the shipment of the respondent’s milk into New York 306 U. S. 346, 352. 294 U. S. 511,523. Id., 526. Id., 521. Id., 522. Id., 527. Act of June 3, 1937, c. 296, 50 Stat. 246, as amended, 7 U. S. C. § 601 et seq. 7 U. S. C. § 610 (i). See Laws of 1937, c. 798, § 258-n. 7 C. F. R. §§ 904-904.202 (1947 Supp.). 7 C. F. R. §§927-927.202 (1947 Supp.). 7 U. S. C. § 608c (5) (G). See 7 U. S. C. § 608c (5) (B). The Act of August 24, 1935, 49 Stat. 750, amended the Agricultural Adjustment Act of 1933, 48 Stat. 31. Section 8c first appeared in the 1935 Act, which was amended and reenacted by the 1937 Act, 50 Stat. 246, cited 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_respond2_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 second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". Your task is to determine what subcategory of business best describes this litigant. NATIONAL CUSTOMS BROKERS & FORWARDERS ASSOCIATION OF AMERICA, INC., Petitioner, v. UNITED STATES of America and the Federal Maritime Commission, Respondents, ‘8900’ Lines, U.S. Atlantic-North Europe Conference, et al., Atlantic & Gulf/West Coast of South America Conference, et al., Pacific Coast/Australia-New Zealand Tariff Bureau, et al., Intervenors. No. 87-1754. United States Court of Appeals, District of Columbia Circuit. Argued May 4, 1989. Decided June 30, 1989. Gerald H. Ullman, New York City, with whom Olga Boikess, Washington, D.C., was on the brief, for petitioner. Gordon M. Shaw, Atty., Federal Maritime Com’n, with whom Robert D. Bour-goin, General Counsel, Federal Maritime Com’n, John J. Powers, III and Robert J. Wiggers, Attys., Dept, of Justice, Washington, D.C., were on the brief, for respondent. Howard A. Levy, with whom Marc J. Fink, F. Conger Fawcett, David C. Nolan, Eliot J. Halperin, Washington, D.C., Nathan J. Bayer, and Kevin Keelan, New York City, were on the brief, for inter-venors. William Karas, Washington, D.C., also entered an appearance for intervenor. Before WALD, Chief Judge, RUTH BADER GINSBURG and BUCKLEY, Circuit Judges. Opinion for the Court filed by Circuit Judge RUTH B. GINSBURG. RUTH BADER GINSBURG, Circuit Judge. The National Customs Brokers & Forwarders Association of America, Inc. (NCBFAA) seeks review of a Federal Maritime Commission (FMC or Commission) order dismissing the NCBFAA’s petition to initiate a rulemaking proceeding. Petitioner NCBFAA sought Commission repeal of certain regulations governing ocean freight forwarding; the challenged regulations, the NCBFAA contends, are not authorized by the Shipping Act of 1984, 46 U.S.C. App. sections 1701-1720 (Supp. Ill 1985) (1984 Act), or are otherwise unreasonable. The NCBFAA also proposed rules to check particular practices of ocean common carriers. We hold that the FMC reasonably interpreted the Shipping Act of 1984 to authorize the challenged regulations and adequately explained its denial of the NCBFAA’s rulemaking petition. Given the extraordinary deference due an agency when it declines to undertake a rulemak-ing, parties should hesitate to bring challenges unless they have far stronger grounds than those offered by petitioner in this case. I. BACKGROUND Ocean freight forwarders arrange for exportation and transportation of merchandise via ocean carriers. As defined in the Shipping Act of 1984, “ocean freight forwarder” means: a person in the United States that (A) dispatches shipments from the United States via common carriers and books or otherwise arranges space for those shipments on behalf of shippers; and (B) processes the documentation or performs related activities incident to those shipments. Id. section 1702(19). A forwarder secures cargo space with a shipping line (books the cargo), coordinates the movement of cargo to shipside, arranges for the payment of ocean freight charges, and prepares and processes the ocean bills of lading, export declarations, and other documentation. Forwarders often perform ac-cessorial services for the exporter, such as arranging insurance, trucking, and warehousing. A forwarder receives compensation for its services both from its customer (the exporter or consignee) and from the ocean carrier. Customers pay a fee for accessorial services charged as a “markup” over the forwarder’s actual disbursements. Carriers pay forwarders “brokerage,” compensation in the form of a percentage of the ocean freight, but only when the ocean freight forwarder has certified in writing that it holds a valid license and has performed the following services: (A) Engaged, booked, secured, reserved, or contracted directly with the carrier or its agent for space aboard a vessel or confirmed the availability of that space. (B) Prepared and processed the ocean bill of lading, dock receipt, or other similar document with respect to the shipment. Id. Section 1718(d). Section 19 of the Shipping Act of 1984, id. section 1718, contains specific limitations not only on the compensation of forwarders by carriers, but also on entry into the business of ocean freight forwarding. The forwarder is the only entity regulated by the FMC that is required to obtain a license before it can operate lawfully. To obtain a forwarder’s license, an applicant must demonstrate experience and character qualifications and furnish a bond to insure financial responsibility. Id. section 1718(a). Comprehensive forwarder regulation had its inception in 1946 when the Supreme Court held in United States v. American Union Transport, Inc., 327 U.S. 437, 66 S.Ct. 644, 90 L.Ed. 772 (1946), that independent ocean freight forwarders were subject to the regulatory provisions of the Shipping Act of 1916, 46 U.S.C.App. sections 801-842 (1982) (1916 Act). Following extensive investigation in the late 1940s, regulations issued in 1950 governing forwarder billing practices and carrier payments to forwarders. In 1954, the Federal Maritime Board (FMB) launched a second industry-wide investigation, culminating in 1961 in the publication of additional regulations. Investigation of Practices, Operations, Actions & Agreements of Ocean Freight Forwarders, 6 F.M.B. 327 (1961) (Ocean Freight Forwarders). The 1961 regulations declared “disguised markups” and free or reduced-rate forwarder services to be “unreasonable practices” in violation of the 1916 Act. Id. at 359, 366-67. That same year, 1961, Congress provided for the licensing of ocean freight forwarders and confined payment of forwarder compensation by carriers to licensed forwarders that had performed specified services on behalf of the carrier and had so certified. Pub.L. No. 87-254, 75 Stat. 522 (codified as amended at 46 U.S.C.App. section 801; 46 U.S.C. section 841b). Pursuant to statutory direction to prescribe ‘reasonable rules and regulations’ governing forwarders, 46 U.S.C. section 841b(c), the FMC promulgated comprehensive rules, including one that required a forwarder to itemize on its bill its actual expenditures on the shipper’s behalf, as well as the charges or fees assessed for its own services. These rules were affirmed in New York Foreign Freight Forwarders & Brokers Association v. FMC, 337 F.2d 289 (2d Cir.1964), cert. denied, 380 U.S. 910, 85 S.Ct. 893, 13 L.Ed.2d 797 (1965). The FMC subsequently promulgated or considered further rules on which this case centers. In 1963, the Commission permitted carriers by water to perform forwarding services with respect to cargo they transport under their own bills of lading. 28 Fed.Reg. 4300, 4301 (1963). The legality of this rule remained unchallenged until now. In 1980, the FMC considered regulatory revisions designed to: (1) prohibit carriers from compelling forwarders to guarantee payment of freight before shippers had advanced funds for this purpose; (2) require carriers to compensate forwarders within thirty days of payment of ocean freight; and (3) permit forwarders to deduct their compensation when making freight payments for shipments under a prepaid bill of lading. 45 Fed.Reg. 17,029, 17,031-32, 17,040-41 (1980) (proposed rules). In 1981, after evaluating all comments received, the Commission determined not to promulgate these rules. 46 Fed.Reg. 24,565, 24,567-68, 24,574 (1981) (final rule). Upon enactment of the Shipping Act of 1984, the FMC revised its rules to implement that legislation. These revisions included a prescription allowing a forwarder to provide a lump-sum invoice, but requiring the forwarder, upon request of its principal, to break out the items in the invoice. 49 Fed.Reg. 36,296, 36,297, 36,302 (1984) (final rules). The Commission rejected an alternative that would have deleted invoicing regulation entirely. 49 Fed.Reg. 18,-839, 18,841 (1984) (interim rules). On April 3,1986, the NCBFAA requested a rulemaking to delete the regulations, currently codified in 46 C.F.R. Part 510 (1988), that: (1) require prior FMC approval of one licensee’s acquisition of another licensee, id. section 510.19(a)(5); (2) prohibit a forwarder’s provision of forwarding services free of charge or at a reduced fee, id. section 510.22Q; (3) require the forwarder to provide a detailed breakout of the components of its charges at the request of its shipper-customer, id. section 510.22(g); and (4) permit carriers to perform forwarding services, without a forwarder’s license, with respect to cargo carried under the carrier’s own bill of lading, id. section 510.4(c). The NCBFAA also sought two new regulations similar in content to rules proposed in 1980 and rejected by the Commission in 1981. First, to protect forwarders from payment defaults by carriers, the NCBFAA proposed that (1) when a forwarder pays the carrier freight charge due on behalf of the shipper, the forwarder may deduct its brokerage, and (2) when the shipper pays the carrier directly, or the freight is collected at destination, the carrier must pay brokerage within sixty days of the date of vessel sailing. Petition for Rulemaking at 5. Second, the NCBFAA proposed a rule that would stop a carrier from requiring a forwarder to assume liability for freight charges owed by the forwarder’s principal. Id. at 6-7. The FMC refused to institute rulemaking proceedings, In re Petition for Rulemaking of the Nat’l Customs Brokers & Forwarders Ass’n of Am., 24 Shipping Reg. (P & F) 116 (F.M.C. Apr. 27, 1987) (Order Denying Petition), and thereafter rejected the NCBFAA’s petition for reconsideration, 24 Shipping Reg. (P & F) 581 (F.M.C. Oct. 16, 1987) (Order Rejecting Petition for Reconsideration). The NCBFAA seeks review of the Commission’s orders denying its petitions and asks this court to instruct the FMC to renew consideration of the rule-making request. II. DISCUSSION A. Standard of Review While Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), teaches that nonenforcement decisions are presumptively unreviewable, we recently clarified that refusals to institute rulemak-ing proceedings remain outside Chaney’s core and are subject to a judicial check. American Horse Protection Ass’n v. Lyng, 812 F.2d 1 (D.C.Cir.1987) (AHPA). At the same time, we underscored the extremely limited, highly deferential scope of that review. Id. at 4-5. We will overturn an agency’s decision not to initiate a rule-making only for compelling cause, such as plain error of law or a fundamental change in the factual premises previously considered by the agency. Id. at 5. Furthermore, under the instruction furnished in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984), to the extent that the intent of Congress is not clear, we must accept an agency’s reasonable interpretation of the substantive terms of a statute it is charged to administer. Before turning to petitioner NCBFAA’s specific complaints, we note some salient differences between this case and the one on which the NCBFAA relied so heavily, AHPA. At issue in AHPA was “the practice [called soring] of deliberately injuring show horses to improve their performance in the ring.” 812 F.2d at 1. In the Horse Protection Act, 15 U.S.C. sections 1821-1824 (1982), “Congress sought to end this practice.” 812 F.2d at 2. The regulations originally promulgated by the Secretary of Agriculture proved inadequate to the task, yet the agency stood still, apparently believing “that the Act was a sort of compromise between industry proponents of sor-ing and persons who regarded the practice as barbarous.” Id. at 6. Stressing that the Act was not ambiguous — it “was clearly designed to end soring,” id. — we held that the Secretary must further consider the matter and then either institute a new rule-making or account satisfactorily for his decision not to do so. Id. at 7. AHPA involved cruelty to certain animals and a clear congressional design to end it. In contrast, this case involves no similarly crystalline congressional objective and the interests at stake are “primarily economic.” See WWHT, Inc. v. FCC, 656 F.2d 807, 819 (D.C.Cir.1981). Such interests, “without more, do [ ] not present the unusual or compelling circumstances that are required in order to justify a judgment by this court overturning a decision of the Commission not to proceed with rulemak-ing.” Id. B. Prior Approval of Acquisitions Petitioner NCBFAA requested that the FMC delete 46 C.F.R. 510.19(a)(5), which requires prior Commission approval of the acquisition of one forwarder by another. The NCBFAA claims that, in 1984, Congress deliberately eliminated the FMC’s authority to approve “ ‘acquisitions in the maritime area’ ” so as to bring such agreements under ‘“normal antitrust oversight’” Brief of Petitioner National Customs Brokers & Forwarders Association of America, Inc. at 20 [hereinafter Brief of Petitioner] (quoting S.Rep. No. 3, 98th Cong., 1st Sess. 24 (1983)). Section 4(c) of the 1984 Act, as codified at 46 U.S.C.App. section 1703(c), states: “This chapter does not apply to an acquisition by any person, directly or indirectly, of any voting security or assets of any other person.” The Commission recognizes that it does not have acquisition permission authority that displaces normal antitrust oversight by executive branch agencies. The regulation in question, according to the FMC, does not purport to exercise agreement approval authority in an antitrust law context, but is simply an accoutrement of the Commission’s licensing authority. See Order Denying Petition at 5, 24 Shipping Reg. (P & F) at 119. Acquisition of additional licensees appears in 46 C.F.R. section 510.-19(a) as the fifth item in a list of seven “changes in an existing licensee’s organization” requiring Commission approval; other listed items include: license transfer; change in individual proprietorship ownership; and addition of partners to a licensed partnership. The Commission maintains control over these changes in a licensee’s organization, the FMC states, simply and solely to insure that only qualified entities operate as forwarders: “The prior approval procedure ... allows the Commission the opportunity to ensure that all regulatory requirements are met before a licensee begins operating under circumstances different from those under which it was licensed.” Order Denying Petition at 5, 24 Shipping Reg. (P & F) at 119. We cannot say that the Commission’s licensing and ample rulemaking authority under sections 19 and 17 of the 1984 Act, 46 U.S.C.App. sections 1718, 1716, are of insufficient breadth to accommodate the regulation requiring FMC approval of acquisitions by licensed forwarders. The NCBFAA asserts that there is no risk of an unqualified entity when two forwarders, already licensed, merge, and that other FMC regulations adequately guard against commencement of forwarder operations without meeting regulatory requirements. Brief of Petitioner at 21. It is not our function, however, to judge whether the FMC’s regulations are necessary; so long as they are proper exercises of the Commission’s statutory authority, their maintenance may not be disturbed by this court. C. Forwarders ’ Billing Practices Petitioner NCBFAA asked the FMC to delete 46 C.F.R. section 510.22(g), which requires a forwarder to itemize its charges upon request, and 46 C.F.R. section 510.-22(i), which forbids free or reduced-rate services. The legal authority for these rules, the NCBFAA maintains, was section 16, First, of the 1916 Act, 46 U.S.C.App. section 815, which prohibited “any ... person subject to this chapter” from discriminating among shippers. See Brief of Petitioner at 24. In 1984, Congress eliminated broad-scale prohibitions of the 1916 Act, including section 16, First. Now, under section 10(b)(6), (10)-(12) of the 1984 Act, 46 U.S.C.App. section 1709(b)(6), (10)-(12), the NCBFAA emphasizes, it is unlawful only for common carriers (no longer “any person”) to engage in discriminatory practices. The Commission, however, relies on section 10(d)(1) of the 1984 Act, id. section 1709(d)(1), which states: “No common carrier, ocean freight forwarder, or marine terminal operator may fail to establish, observe, and enforce just and reasonable regulations and practices relating to or connected with receiving, handling, storing, or delivering property.” Section 10(d)(1) was derived from section 17 of the 1916 Act, 46 U.S.C.App. section 816. The NCBFAA counters that the FMC had long applied section 17 only to physical services performed at the terminal. Brief of Petitioner at 28-29. Although some forwarder activities, petitioner thus maintains, are subject to the Commission’s “reasonable practice” jurisdiction, those activities do not include fee arrangements for forwarding services preliminary to an actual shipment. Reply Brief of Petitioner National Customs Brokers & Forwarders Association of America, Inc. at 15-16 [hereinafter Reply Brief]. In American Union Transport, 327 U.S. 437, 66 S.Ct. 644, 90 L.Ed. 772, the Supreme Court recognized broad Commission authority to regulate forwarders, stating: “By the nature of their business, independent forwarders are intimately connected with” the activities listed under section 17, that is, “the receiving, handling, storing or delivering of property.” Id. at 449, 66 S.Ct. at 650. To confine “reasonable practice” jurisdiction to physical cargo handling services performed at the terminal, the FMC indicates, would be inconsistent with American Union Transport; such an interpretation, in large measure, would place freight forwarders outside the statute because forwarders (unlike carriers and terminal operators-the other entities covered by section 10(d)) traditionally do not operate at terminals. Brief of Respondents at 33. We are satisfied that the Commission has fairly and reasonably construed section 10(d)(l)’s scope and now turn to the specific regulations the NCBFAA challenges. 1. Disclosure of Forwarders'Markups The FMC, in 1984, rejected arguments challenging the markup disclosure rule, and again retained the rule in 1987, noting its intention that the marketplace govern forwarder/customer relations to the maximum extent possible: “By providing the means to determine the level and reasonableness of forwarders’ charges, the marketplace can regulate the relationship between forwarders and their principals. Petitioner has not offered any new facts or arguments to warrant overruling this prior determination.” Order Denying Petition at 8, 24 Shipping Reg. (P & F) at 120. The NCBFAA complains that the Commission did not acknowledge that section 16, First, the statutory basis for the rule, had been repealed. Brief of Petitioner at 25-26 & n. 61. The Commission, however, hardly announced a novel position in recognizing that section 10(d)(1) of the 1984 Act, or section 17 of the 1916 Act, provides a basis for the markup disclosure requirement. See Ocean Freight Forwarders, 6 F.M.B. at 359, 366-67 (finding both “disguised markups” and free or reduced-rate forwarder services to be “unreasonable practices” in violation of section 17). Petitioner complains next that the FMC did not cite evidence of arbitrary and unreasonable markups or explain why no similar disclosure requirement is imposed on other business with which an exporter deals; furthermore, the NCBFAA objects, the Commission did not address petitioner’s claims that industry customers, through ordinary business negotiations, are well able to determine the reasonableness of forwarding fees and that strong competition among forwarders protects exporters against overcharging. Brief of Petitioner at 26-27. In sum, petitioner asserts that the FMC has not said enough to assure a reviewing court that the Commission’s refusal to delete the disclosure rule was the product of reasoned decisionmaking. These arguments, however, show neither legal error nor removal of a significant factual predicate for the FMC’s prior ruling. See WWHT, 656 F.2d at 818-19 (discussing Geller v. FCC, 610 F.2d 973, 979 (D.C.Cir.1979)). To retain its rule, the FMC need not produce evidence showing that abuses are currently prevalent or that an unregulated market would fail to control such abuses. The Commission initiated regulation in response to abusive practices in an unregulated market; one would not expect the abuses to persist once checked by FMC rule. The Commission thus appropriately cited and adhered to its “prior determination.” 2. Free or Reduced-Rate Services The Commission also adhered to the following proscription: “No licensee shall render ... any freight forwarding service free of charge or at a reduced fee in consideration of receiving compensation from a common carrier or for any other reason.” 46 C.F.R. section 510.22(i). Here too, the NCBFAA points out that the agency initially adopted the prohibition pursuant to section 16, First, Brief of Petitioner at 27; furthermore, petitioner stresses, section 10(b)(2) of the 1984 Act, 46 U.S.C.App. section 1709(b)(2), prohibits rebates by common carriers but not by forwarders. Rejecting the NCBFAA’s claim that the rule lacks statutory authority under the 1984 Act, the FMC again relied on section 10(d)(1), which “prohibits a freight forwarder from failing to establish, observe, and enforce just and reasonable regulations and practices related to or connected with receiving, handling, storing, or delivering property.” Order Denying Petition at 9, 24 Shipping Reg. (P & F) at 120. The FMC defends its rule as aimed primarily at forwarder practices abetting carrier discrimination among shippers through indirect rebates. Brief of Respondents at 38. To assist carrier discrimination banned by section 10(b), the Commission maintains, would constitute an “unreasonable practice" barred by section 10(d)(1). Id. at 39. But the FMC’s forwarder-directed rule goes further: it bars not only fees reduced “in consideration of receiving compensation from a common carrier,” but also those reduced “for any other reason.” More broadly, therefore, the FMC urges that a forwarder’s discrimination in charges among its customers reflects a misallocation that constitutes an unreasonable practice in itself. Ocean Freight Forwarders, 6 F.M.B. at 366-67, relied on this alternative section 17 rationale, as well as the “indirect rebate” rationale, in declaring such discrimination unlawful. We uphold the FMC’s constant rule on the ground that the Commission, in the reasonable exercise of its rulemaking authority, may interpret section 10(d)(1) to prohibit forwarder discrimination in the charges billed to customers. See Volkswagenwerk Aktiengesellschaft v. FMC, 390 U.S. 261, 281-82, 88 S.Ct. 929, 940-41, 19 L.Ed.2d 1090 (1968) (holding that “a relatively large charge ... unequally imposed” by an association of shipping industry employers on its members, for a fund to mitigate the impact upon stevedoring employees of technological unemployment, would violate section 17 unless “the charge levied is reasonably related to the service rendered”); California v. United States, 320 U.S. 577, 583, 64 S.Ct. 352, 355, 88 L.Ed. 322 (1944) (holding that the United States Maritime Commission could determine that “unreasonably long free time” and below-cost charges for wharf storage violated both sections 16 and 17). D. Unlicensed Forwarding by Carriers “No person may act an an ocean freight forwarder unless that person holds a license” from the FMC. 46 U.S.C.App. section 1718(a). This licensing provision includes only one express exception: “A person whose primary business is the sale of merchandise may forward shipments of the merchandise for its own account without a license.” Id. section 1718(c). The 1984 Act thus continued the licensing requirements of 46 U.S.C. section 841b. FMC regulations, however, permit a common carrier to perform forwarding services without a license on shipments carried under its own bill of lading and pursuant to its published tariff. The provision in question, 46 C.F.R. section 510.4(c), states: Common Carrier. A common carrier, or agent thereof, may perform ocean freight forwarding services without a license only with respect to cargo carried under such carrier’s own bill of lading. Charges for such forwarding shall be assessed in conformance with the carrier’s published tariffs on file with the Commission. Petitioner seeks the repeal of section 510.4(c), pointing in particular to the dramatic growth in operations by “non-vessel operating common carriers” (NVOCCs), and the attendant NVOCC competition with licensees in providing forwarding services. NVOCCs, typically, are small firms that do not own or operate transportation equipment, but instead lease facilities and services from other firms, and have a small workforce of primarily managerial and clerical employees. NVOCCs consolidate and load small shipments from multiple shippers into a single large reusable metal container obtained from a steamship company, and ship the container by vessel under a single bill of lading in the NVOCC’s name; NVOCCs charge rates within the margin between the steamship line’s (the vessel operator’s) rates applicable to loose, “break-bulk” shipments, and special lower rates applicable to consolidated container loads. The Shipping Act of 1984 recognized the NVOCC as a legal entity with the status of “a shipper in its relationship with an ocean common carrier” but the status of a carrier in its relationship with exporter customers. 46 U.S.C.App. section 1702(17). An NVOCC assumes common carrier responsibilities for transportation even though it “does not operate the vessels by which the ocean transportation is provided.” Id. The NVOCC is compensated only by the shipper. Petitioner asserts that incompetent and irresponsible NVOCCs have created severe problems. Brief of Petitioner at 31. An NVOCC operates as a carrier solely by virtue of filing a tariff with the FMC. There are no formal entry requirements. Yet section 510.4(c) allows NVOCCs to offer the full gamut of forwarding services, including preparing and processing export declarations, sight drafts, insurance documentation, and letter-of-credit documents, on cargoes carried under their own bills of lading. Id. at 14-15. In short, the NCBFAA charges that in allowing unlicensed operations by NVOCCs, the Commission has dishonored Congress’ “flat prohibition” against forwarding without a license. Id. at 33. “Historically,” the FMC said in its response to the NCBFAA’s charge, “carriers have performed their own documentation and made arrangements to facilitate the movement of cargo to vessels.” Order Denying Petition at 3-4, 24 Shipping Reg. (P & F) at 118. The Commission further observed that its rule “provides the shipping public protection by requiring carriers to publish any charges for performance of these functions in their tariffs.” Id. at 4, 24 Shipping Reg. (P & F) at 118. The FMC discerned no legislative command “that carriers obtain a license in order to continue to perform these functions.” Id. On the contrary, Congress did not approve language in H.R. 5068, 86th Cong., 2d Sess. (1960), an early draft of the licensing provision enacted in 1961, that would have required every person including carriers, to be licensed to engage in the business of dispatching shipments on behalf of other persons. Id. The 1984 Act defines “ocean freight forwarder” as “a person in the United States that ... dispatches shipments from the United States via common carrier and books or otherwise arranges space for those shipments on behalf of shippers.” 46 U.S.C.App. section 1702(19). It defines “common carrier” as “a person holding itself out to the general public to provide transportation by water of ... cargo.” Id. section 1702(6). The FMC maintains that a common carrier, by engaging in booking or space arrangement activity, does not thereby acquire dual status; it remains a common carrier, and does not become a freight forwarder as well. The Commission cites legislative history in support: “It is not intended that booking or space arrangement activity by an ocean common carrier or its steamship agent would make either an ‘ocean freight forwarder’ as well.” S.Rep. No. 3, supra, at 20, cited in Brief of Respondents at 19. In other words, a carrier does not become a forwarder merely by furnishing services to its own customers that a forwarder may provide. Brief of Respondents at 25-26; see Puerto Rico Ports Auth. v. FMC, 642 F.2d 471, 483-85 (D.C.Cir.1980) (holding that a common carrier that provided terminal services for cargo that it carried did not thereby become a terminal operator). On the other hand, as petitioner points out, nothing in the text of the statute indicates that an entity cannot be both a carrier and an ocean freight forwarder, for both terms are defined functionally. Congress defined ‘forwarder’ simply by reference to the work forwarders perform. Petitioner infers from the passage quoted from S.Rep. No. 3, supra, that a carrier would be subject to licensing when it performs the usual forwarding activities in addition to booking or space activity. Reply Brief at 8. Petitioner’s argument, however, does not proceed far enough. It establishes no more than that the phrase “act as an ocean freight forwarder” in the licensing provision, 46 U.S.C. App. section 1718(a), is ambiguous with respect to carriers offering forwarding service only in conjunction with shipments carried under their own bills of lading. Again, therefore, we have no warrant to reject the FMC’s reasonable interpretation. E. Proposed Rules Regarding Carrier Practices “It is only in the rarest and most compelling of circumstances that this court has acted to overturn an agency judgment not to institute rulemaking.” WWHT, 656 F.2d at 818. This is not such a rare case. It contrasts with Farmworker Justice Fund, Inc. v. Brock, 811 F.2d 613, 633, vacated as moot, 817 F.2d 890 (D.C.Cir. 1987); American Horse Protection Association, Inc. v. Lyng, 681 F.Supp. 949, 958 (D.D.C.1988); and Public Citizen v. Heckler, 653 F.Supp. 1229, 1241 (D.D.C.1986), each involving grave health and safety problems for the intended beneficiaries of the statutory scheme, each presenting facts urgently warranting remedial rules. Here, there is no similar risk or need, the issue are economic in nature, they entail policy determinations on which agency rulemak-ing discretion is respected. See WWHT, 656 F.2d at 819. Petitioner’s arguments reveal no legal error on the Commission’s part or compelling change in a factual predicate for the FMC’s previous refusal to adopt the rules requested. 1. Prompt Payment of Brokerage The FMC proposed rules in 1980 to require carriers to pay forwarders promptly, 45 Fed.Reg. 17,029, 17,032 (1980) (proposed rules), but ultimately rejected the proposal, 46 Fed.Reg. 24,565, 24,568 (1981) (final rule). In 1986, when the NCBFAA renewed the proposal, the Commission reiterated its opinion that “this is a matter that should be resolved commercially and not through governmental intervention.” Order Denying Petition at 11, 24 Shipping Reg. (P & F) at 121. Petitioner claims that the FMC did not give a reasoned response to Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". What subcategory of business best describes this litigant? A. railroad B. boat, shipping C. shipping freight, UPS, flying tigers D. airline E. truck, armored cars F. other G. unclear Answer:
songer_casetyp1_7-3-2	H	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - torts". Edward McKAY and Margaret McKay, his wife, Plaintiffs-Appellants, v. FORD MOTOR COMPANY and Michigan Commercial Contracting Corporation, Defendants-Appellees. No. 73-1461. United States Court of Appeals, Sixth Circuit. Argued Dec. 12, 1974. Decided June 21,1974. Rothe, Marston, Mazey, Sachs & O’Connell, by D. Charles Marston, James B. Veu Casovic, Detroit, Mich., on brief, for plaintiffs-appellants. Alexander, Buchanan & Seavitt, Robert J. Stowe, Detroit, Mich., on brief, for Ford Motor Co. Davidson, Gotshall, Halsey, Kohl, Nelson, Secrest & Wardle, Terrance M. Lynch, Detroit, Mich., on brief, for Michigan Commercial Contracting Corp. Before PHILLIPS, Chief Judge, McCREE, Circuit Judge, and CECIL, Senior Circuit Judge. McCREE, Circuit Judge. This is a diversity action to recover damages for personal injuries. Plaintiffs appeal from the denial of their motion for a new trial, after a jury verdict and judgment for defendants. This appeal presents the questions whether, under Michigan law, the “simple tool” doctrine is a defense in a negligence action brought by a business invitee alleging defendants’ breach of their, duty to provide reasonably safe working implements, and whether, if that doctrine applies, the district'court erred in charging the jury that the ladder furnished appellant Edward McKay was a simple tool as a matter of law. Assuming, but not deciding, that the Michigan Supreme Court would apply the “simple tool” doctrine in an action brought by a business invitee, we hold that the district court’s charge erroneously eliminated from the jury’s consideration the factual question whether the extension ladder involved in this case is, under Michigan law, a “simple tool.” Accordingly, we reverse. Ford Motor Company (Ford) contracted with Michigan Commercial Contracting Corporation (Michigan) to install a press on Ford’s premises. Edward McKay was sent by the manufacturer of the press, United States Industries, as a service representative, to assist in its installation. An extension ladder, thirty to thirty-five feet in length, had been erected on the side of the press and fastened at the top with wire. While McKay was climbing the extension ladder to perform his installation duties, the ladder suddenly collapsed and McKay fell and suffered serious injuries giving rise to this litigation. The complaint alleged that Ford and Michigan breached their duties to provide reasonably safe premises and implements for McKay. Defendants moved for summary judgment on the grounds that the “simple tool” doctrine was a defense in an action brought by a business invitee as well as in an action brought by a servant against his master; that under Michigan law, the extension ladder was a “simple tool” as a matter of law; and that plaintiffs were thereby precluded from recovery. The district court denied the motions because it was “reluctant to apply the ‘simple tool’ doctrine to an invitor-invitee relationship in a diversity case where the state courts have not done so.” At trial, however, the district court charged the jury, in part, as follows: Now, as to this particular matter, members of the jury, you will notice the Court is using the term equipment and tool, because in law I charge you that a ladder is what the law calls a simple tool. If that tool is simple then the person using that tool has an obligation to inspect it before he uses it. If there is nothing complicated about that tool, if one about to use that tool can observe all of its conditions prior to use, then the law does not impose upon the owner of that particular tool or equipment any obligation to warn, nor does it owe them any obligation to be sure that it is absolutely safe. If you find there was such a complicated thing and it contained in it some inherently dangerous characteristics, then, of course, the owner of the premises and the person who constructed or erected [it] or whose tool it was owes a duty to advise or warn against the use of any equipment or tool that in and of itself was inherently dangerous in use. (emphasis added). Plaintiffs excepted to this charge. Appellants contend, first, that the district court erred in applying the simple tool doctrine to a business invitee. Appellants argue that, although the simple tool doctrine has long been recognized in Michigan, it has never been applied in a case beyond the master-servant relationship. See, e. g., Pawlowski v. Van Pamel, 368 Mich. 513, 118 N.W.2d 395 (1962); Rule v. Guiglio, 304 Mich. 73, 7 N.W.2d 227 (1942); Nichols v. Bush, 291 Mich. 473, 289 N.W. 219 (1939); Kelley v. Brown, 262 Mich. 356, 247 N.W. 900 (1933); Sheltrown v. Michigan Central R. Co., 245 Mich. 58, 222 N.W. 163 (1928); Toth v. Osceola, 180 Mich. 274, 146 N.W. 668 (1914); Nichols v. Pere Marquette R. Co., 145 Mich. 643, 108 N.W. 1016 (1906); Dompier v. Lewis, 131 Mich. 144, 91 N.W. 152 (1902); Wachsmuth v. Shaw Electric Co., 118 Mich. 275, 76 N.W. 497 (1898). Appellees argue, on the other hand, that the Michigan Supreme Court has not held the simple tool doctrine inapplicable to an invitor-invitee relationship; that an invitor’s duties to his invitee are similar to the duties of a master to his servants, see, e. g., Dougherty v. Pratt Institute, 244 N.Y. 111, 155 N.E. 67 (1926) (Cardozo, J.), see generally Prosser on Torts, 3d Ed., pp. 547 & 403, Restatement of Agency 2d, Ch. 14, Tit. C., Introductory Note; and that courts in other jurisdictions have held the simple tool doctrine applicable to a business invitee. Proctor v. Town Club, Inc., 105 Utah 72, 141 P.2d 156 (1943); Anderson v. Moser, 169 Neb. 134, 98 N.W.2d 703 (1959). The difficulty of predicting how the Michigan Supreme Court would resolve this undecided issue is exacerbated because the Michigan Supreme Court has occasionally explained the simple tool doctrine, at least in part, as an application of the defense of assumption of risk, e. g., Rule v. Guiglio, supra, 304 Mich, at 82-83, 7 N.W.2d 227, but cf. Jacob v. City of New York, 2 Cir., 119 F.2d 300 (1941), and in 1965 the defense of assumption of risk was abolished in Michigan, except in cases involving an employment relationship between the parties or an express contractual assumption of risk. Felgner v. Anderson, 375 Mich. 23, 133 N.W.2d 136 (1965). We find it unnecessary in deciding this appeal, however, to determine whether, under Michigan law, the simple tool doctrine applies to a business invitee, because we hold that, even if the doctrine is applicable, the district court’s charge was erroneous and requires reversal under appellants’ alternative contention that the extension ladder was not a simple tool as a matter of law in Michigan. In reaching this conclusion, we focus on that part of the charge instructing the jury that “in law I charge you that a ladder is what the law calls a simple tool.” Michigan courts have often relied upon the following statement of the “simple tool” doctrine: We have decisions sustaining the doctrine that a master must provide safe appliances, and that he must use reasonable diligence in keeping them in repair. In heavy or complicated machinery, and where the person called upon to use the appliance may not possess the skill to detect unfitness, or the opportunities to do so, the law may require diligence upon the part of the master; but where the ap pliance is a common tool, of which the man who uses it is necessarily well qualified to judge, and who when he uses it has an opportunity to know its condition, a distinction may be made, and the master may rely upon the servant to inform him of the defect, or not use the tool, if it is unsafe. (emphasis added). Wachsmuth v. Shaw Electric Crane Co., supra, 118 Mich. at 279, 76 N.W. at 498, quoted in Sheltrown v. Michigan Central R. Co., supra, 245 Mich. at 62, 222 N.W. 163 and in Rule v. Guiglio, supra, 304 Mich. at 81, 7 N.W.2d 227. Rule v. Guiglio, is the leading Michigan decision applying the simple tool doctrine in a negligence action involving a defective ladder. In that case, defendant furnished plaintiff a single section of an extension ladder to use in painting defendant’s house. Plaintiff was injured in a fall when the ladder broke near the lower end. The negligence action was defeated because the Michigan Supreme Court held that the ladder was “of the usual type of wooden construction consisting of two side pieces with connecting rungs,” 304 Mich. at 77-78, 7 N.W.2d at 228, and was, therefore, a “simple tool.” Accordingly, the defendant was under no duty to inspect it. The core of the court’s reasoning was that: From our study of the record and of authorities bearing upon the question, we are convinced that defendant’s ladder which was used by plaintiff at the time of his accident was a simple tool and that the simple-tool doctrine was properly applicable in determining defendant’s negligence and the risk assumed by plaintiff. The ladder was simple in construction, and the defects, if any existed therein, could have been discovered by plaintiff without special skill or knowledge and without intricate inspection. Plaintiff had used the ladder for some time prior to the accident, and he was as well qualified as defendant to detect defects in such ladder and to judge of the probable danger of using the same. 304 Mich, at 83, 77 N.W.2d at 230. Applying this reasoning, we find no merit in appellees’ argument that Rule v. Guiglio established the broad proposition that every extension ladder is a simple tool as a matter of law in Michigan. To the contrary, the court in Rule v. Guiglio was careful to explain that plaintiff was in as good a position as defendant to observe any defect. Indeed, the plaintiff in Rule v. Guiglio was using only one section of the extension ladder at the time of the accident, and the court expressly stated: “[I]n considering whether or not the simple tool doctrine is applicable, we shall consider the ladder plaintiff was using as a single ladder from 12 to 16 feet in length.” 304 Mich. at 77, 7 N.W.2d at 228. In contrast, here we consider a fall from an extension ladder over thirty feet long, with brackets and hooks joining its two segments at a point high above the ground. Any defect in the manner in which these segments had been joined might not have been observable by McKay, even assuming the defect was visible, until he had already reached a dangerous height on the ladder. Under these circumstances, the jury would not have been compelled to reach the conclusion that '•“plaintiff would be as well qualified as the defendant [s] to examine such ladder, to detect defects therein, and to judge the probable danger of using it.” Rule v. Guiglio, supra, 134 Mich, at 80, 7 N.W.2d at 229. Instead, consistent with the rationale of Rule v. Guiglio, supra, whether the extension ladder that collapsed under McKay was a simple tool, under Michigan law, depended on questions of fact for the jury’s determination. In Willard v. Dore, 41 Mich.App. 508, 510, 200 N.W.2d 369, 370 (1972), another case involving the question whether a ladder was a “simple tool”, the Michigan Court of Appeals stated: In instructing the jury, the trial judge recognized that there was conflicting testimony as to whether or not the ladder was a simple tool. He, therefore, instructed the jury that the determination of whether or not plaintiff was qualified to detect the defects in the ladder, whether or not plaintiff was qualified to judge the probable danger of the defect in using the ladder, and whether or not the defect itself was observable by ordinary observation, were all questions of fact which a jury should determine. The district court should have charged the jury here in like manner. Reversed and remanded for a new trial. . We defer a decision on this question because the Michigan Supreme Court may speak on this issue before retrial of this case and because the district court in deciding this question should consider any additional guidance from the Michigan courts. . The other language in the charge does not, in our view, negate this clear direction that a ladder is a simple tool as a matter of law. . The Michigan Supreme Court’s decision in Pawlowski, supra, which held that the extension ladder at issue in that case was a simple tool under the authority of Rule v. Guiglio, is distinguishable because in Pawlowsld the court stressed that the plaintiff in fact observed that the second rung from the bottom of the ladder was defective, and it was this observed defect that allegedly caused plaintiff’s injury. Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"? A. motor vehicle B. airplane C. product liability D. federal employer liability; injuries to dockworkers and longshoremen E. other government tort liability F. workers compensation G. medical malpractice H. other personal injury I. fraud J. other property damage K. other torts Answer:
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. Pete BLACK, Appellant, v. SINCLAIR OIL & GAS COMPANY, Appellee. No. 18814. United States Court of Appeals Fifth Circuit. Sept. 27, 1961. John J. Watts, Odessa, Tex., for appellant. Newton Gresham, Houston, Tex., W. B. Browder, Jr., Midland, Tex., for appellee. Before TUTTLE, Chief Judge, and CAMERON and JONES, Circuit Judges. CAMERON, Circuit Judge. Appellant Pete Black appeals from a judgment entered upon instructed verdict in favor of appellee Sinclair Oil & Gas Company. Black was an experienced oil driller and was an employee of Lee Brown Drilling Company, an independent contractor, who was engaged in drilling and bringing in a well for Sinclair. As Brown’s employee, he was engaged in, and at the time was in charge of, swabbing a well over the top and down into a tank belonging to Sinclair when the riser on the test tank came up and appellant climbed to the top of the tank and put the riser down. He then proceeded to another point on the top of the tank to gauge it and while so doing, slipped and fell to the ground and was injured. He charged that Sinclair, the owner of the tank, was negligent in a number of particulars hereinafter set out. We agree with the court below that, under the contract in effect between Sinclair and Brown and the law of independent contractors as recognized in Texas, the evidence established no actionable negligence against Sinclair, the owner of the property, and that the court correctly entered the judgment appealed from in its favor. What Judge Hutcheson said in opening his specially concurring opinion in this Court’s decision of Gulf Oil Corp. v. Wright et al., 5 Cir., 1956, 236 F.2d 46, 55, is applicable here. The plaintiff here particularizes the grounds of negligence relied upon. The complaint brings the case clearly within the ambit of several cases decided by this Court in which the facts were very close to those in the record before us. E. g., Cook et al. v. Phillips Petroleum Co., 5 Cir., 1946, 158 F.2d 10; Sword, Houston Fire & Cas. Ins. Co. v. Gulf Oil Corp., 5 Cir., 1958, 251 F.2d 829; Hurst, Employers Cas. Co. v. Gulf Oil Corp., 5 Cir., 1958, 251 F.2d 836; and Gulf Oil Corp. v. Bivins, 5 Cir., 1960, 276 F.2d 753. And cf. McKee, General Contractor v. Patterson, 1941, 153 Tex. 517, 271 S.W.2d 391. The contract in this case is on a printed form and follows closely, if not precisely, the terms of those discussed in the cases mentioned. The undisputed proof showed that Black was the servant of an independent contractor; that he was an experienced workman in the work being performed; that he had been on top of the tank before and had sent others there, and he knew that it had no guard rail and that it was slippery and was, therefore, dangerous; and that he had completed the adjustment of the riser and was engaged in gauging the tank when he slipped and fell. The large photograph in evidence shows that the top of the tank was nearly level and that there were ten rows of bolts with large nuts affixed, each row having fifteen bolts. Singularly, the plaintiff devoted a large part of his proof to an attempt to establish that there was a smell of gas at the tank after he had fallen, intending, evidently, to try to get the benefit of the cases discussed by this Court in Gulf Oil Corp. v. Wright, supra. But there was no proof that Black was subjected to any gas or that he was asphyxiated or otherwise debilitated by the presence of gas, if there was any gas present at the time he fell. In fact, he testified in detail to the events attending his fall. Additionally, it is worthy of note that the careful enumeration in his complaint of the facts he relied upon as establishing Sinclair's negligence did not mention gas. No good purpose would be served by the detailed recital of the facts of this case, because they are clearly no stronger, probably not as strong, in Black’s favor as the other cases mentioned. We think that, under the law as developed by the courts of Texas, and as applied by us repeatedly in recent years, the court below was required to direct a verdict in favor of Sinclair. Its action in so doing is Affirmed. . Sinclair’s motion concluded: “Wherefore, for the reasons stated in its Motion for Instructed Verdict made at the close of all of the evidence and its Motion for Instructed Verdict made at the dose of the plaintiff’s ease and as set out in this motion, this defendant, Sinclair Oil & Gas Company, moves and prays the Court that judgment be rendered and entered in its favor, notwithstanding the fact that the jury was discharged because it was unable to reach agreement as to the verdict which should be returned in the cause.” The final judgment contains this recital: “After the discharge of the jury, the defendant, Sinclair Oil & Gas Company, in proper time filed its motion for judgment in its favor based upon the grounds of its motion for directed verdict, and . . . based upon the evidence adduced at the trial above referred to; “Thereafter, following due notice to all parties concerned, there came on for hearing on August 12, 1960, the above mentioned motions; and the Court having considered the same and heard the argument of counsel announced and held that the above mentioned motions of the defendant, Sinclair Oil & Gas Company . . . were well taken and should be granted, ...” The judgment contained many more recitals taking care of the other parties who are not involved in this appeal, and those recitals have been omitted. . Texas Employers’ Insurance Association intervened to recover $8,714.34 it alleged (and he stipulated) it had paid Black as workmen’s compensation insurance under the laws of Texas; and Sinclair filed a third party complaint against Brown alleging that Brown’s contract with it agreed to indemnify it against any loss or damages which might be assessed against Sinclair. The notice of appeal brought before us, however, only the controversy as it was presented between Black and Sinclair. No point is made as to the form of the judgment which the trial court entered. . “This is another of the ever increasing confused and confusing suits for damages brought, by a covered and fully compensated employee of an independent contractor, against a compensation carrying employer of the contractor. It was brought on allegations which if proven would, under the principles laid down in the controlling Texas decision, make the decedent, as to the work or a part of it, not an employee of an independent contractor but of tbe defendant itself, and ■would, therefore, under the Texas Workmen’s Compensation Act, prevent tbe recovery sought.” . (a) Sinclair failed to provide plaintiff with a safe place in which to work; (b) failed to warn him that they had not so done; (c) failed to inspect the premises to determine that they did not afford plaintiff a safe place in which to work; (d) failed to provide adequate lighting on top of the tank; (e) failed to provide guard rails on top of the tank; (f) was having the well swabbed over the top and down into the tank; (g) failed to have the well swabbed into the side of the tank; and (h) failed to provide means to prevent the oil from spreading over the top of the tank. . All of these cases, except one, wore brought by the same attorney as the one representing plaintiff-appellant here. . “I did not say that the guard rail would have kept me from falling because when I fell I was gauging the tank. I had already put the riser back in there and I was gauging the tank.” Question: What is the state of the first listed state or local government agency that is a respondent? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
sc_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. MITCHELL v. W. T. GRANT CO. No. 72-6160. Argued December 4, 1973 Decided May 13, 1974 White, J., delivered-the opinion of the Court, in which Burger, C. J., and Blackmun, Powell, and Rehnquist, JJ., joined. Powell, J., filed a concurring opinion, post, p. 623. Brennan, J., filed a dissenting statement, post, p. 636. Stewart, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, and in which Brennan, J., joined in part, post, p. 629. Robert J. Hobbs argued the cause for petitioner. With him on the briefs was John W. Reed. Thomas J. O’Sullivan argued the cause for respondent.. With him on "the brief was Marshall J. Favret. William J. Guste, Jr., Attorney General, Warren E. Mouledoux, First Assistant Attorney General, and Louis M. Jones, Assistant Attorney General, filed a brief for the State of Louisiana as amicus curiae. Mr. Justice White delivered the opinion of the Court. In this case, a state trial judge in Louisiana ordered the sequestration of personal property on the application of a creditor.who had made an installment sale of the goods to petitioner' and' whose affidavit asserted delinquency and prayed for sequestration to enforce a vendor’s lien under state law. The issue is whether the sequestration violated the Due Process -Clause of the Fourteenth Amendment because it was ordered ex parte, without prior notice or opportunity for a hearing. I On February 2, 1972, respondent W. T. Grant Co. filed suit in the First City Court of the City of New Orleans, Louisiana, against petitioner, Lawrence Mitchell. The petition alleged the sale by Grant to Mitchell of a refrigerator, range, stereo, and washing machine, and an overdue and unpaid balance of the purchase price for said items in the amount of $574.17. Judgment for that sum was demanded. It was further alleged that Grant had a vendor’s lien on the goods and that a writ of sequestration should issue to sequester the merchandise pending the outcome of the suit. The accompanying affidavit of Grant’s credit manager swore to the truth of the facts alleged in the complaint. It also asserted that Grant had reason to believe petitioner would “encumber, alienate or otherwise dispose of the merchandise described in the foregoing petition during the pendency of these proceedings, and that a writ of sequestration is necessary in the premises.” Based on the foregoing petition and affidavit, and without prior notice to Mitchell or affording him opportunity for hearing, the judge of the First City Court, Arthur J. O’Keefe, then signed an order that “a writ of sequestration issue herein” and that “the Constable of this court sequester and take into his possession the articles of merchandise described in the foregoing petition, upon plaintiff furnishing bond in the amount of $1,125.” Bond in that amount having been' filed by the respondent, the writ of sequestration issúed, along with citation to petitioner Mitchell, citing him to file a pleading or make appearance in the First City Court of the eity of New Orleans within five days. The citation recited the filing of the writ of sequestration and the accompanying affidavit, order, and bond. On March 3 Mitchell filed a motion to dissolve the writ of sequestration issued on February 2. The motion asserted that the personal property at issue had been seized under the writ on February 7, 1972, and claimed, first, that the goods were exempt from seizure under state law and, second, that the seizure violated the Due Process Clauses of the State and Federal Constitutions in that it had occurred without prior notice and opportunity to defend petitioner’s right to possession of the property. The motion came on for hearing on March 14. It was then stipulated that -a vendor’s lien existed on the items, arguments of counsel were heard, and on Márch 16 the motion to dissolve was denied. The goods were held not exempt from seizure under state law. The trial court also ruled that “the provisional seizure enforced through sequestration” was not a denial of due process of law. “To the. contrary,” the trial judge said, “plaintiff insured defendant’s right to due process by proceeding in accordance with Louisiana Law as opposed to any type of self-help seizure which would have denied defendant possession of his property without due process.” The appellate courts of Louisiana refused’to disturb the rulings of the trial court, the Supreme Court of Louisiana expressly rejecting petitioner’s due process claims pressed under the Federal Constitution. 263 La. 627, 269 So. 2d. 186 (1972). We.granted certiorari, 411 U. S. 981 (1973), and now .affirm the judgment of the Louisiana Supreme Court. 11 Petitioner’s basic proposition is that because he had possession of and a substantial interest in the sequestered' property, the Due Process Clause of the Fourteenth Amendment necessarily forbade the seizure without prior notice and- opportunity for a hearing. In the circumstances presented .here; we. cannot'agree. • Petitioner no doubt “owned” the goods he had purchased under an installment sales contract, but his title was heavily encumbered. The seller, W. T. Grant Co., also had an interest in the property, for state law provided it with a vendor’s lien to secure the unpaid balance of the purchase price. Because of the lien, Mitchell’s right to possession and his title were subject to defeasance in the event of default in paying the installments due from him.' His interest in the property, until the purchase price was paid in full, was no greater than the surplus remaining, if any, after foreclosure and sale of the property in the event of his default and satisfaction of outstanding claims. See La. Code Civ. Proc. Ann., Art. 2373 (1961). The interes^ of Grant, as seller of the property and holder, of a vendor’s lien, was measured by the unpaid balance of the purchase price. The monetary value of that interest in the property diminished as pay-* ments were made, but the value of the property as security also steadily diminished over time as it was put to its-intended use by the purchaser. Plainly enough, this is not a case where the property sequestered by the court is exclusively the property of the defendant debtor. The question is not whether a debtor’s property may be seized by his creditors, pendente lite, where they hold no present interest in the property sought to be seized. The reality is that both seller and buyer had current, real interests in the property, and the definition of. property rights is a matter of state law. Resolution of the due process question must take account not only of the interests of the buyer of the property .but'those of the seller as well.- With this duality in mind, we are convinced that the Louisiana sequestration procedure is not invalid, either on its face or as applied. Sequestration under the Louisiana statutes is the modern counterpart of an ancient civil law dévice to resolve conflicting claims to property. Historically, the two principal concerns have been that, pending resolution of the dispute, the property would deteriorate or be wasted in the hands of the possessor and that the latter might sell or otherwise dispose • of the goods. A minor theme was that official intervention would forestall violent self-help and retaliation. See Millar, Judicial Sequestration in Louisiana: Some Account of Its Sources, 30 Tul. L. Rev. 201, 206 (1956). Louisiana statutes provide for sequestration where “one claims the ownership or right to possession of property, or a mortgage, lien, or privilege thereon . . . if it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues therefrom, or remove the property from the parish, during the pendency of the action.” Art. 3571. The writ, however, will not issue. on the conclusory allegation of ownership or possessory rights. Article 3501 provides that the writ of sequestration shall issue “only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts” shown by a verified petition or affidavit. In the parish where this case arose, the clear showing required must be made to a judge, and the writ will issue only upon his authorization and only after the creditor seeking the writ has filed a sufficient bond to protect the vendee ¿gainst all damages in the event the sequestration is shown to have been improvident. Arts. 3501 and 3574. The writ is obtainable on the creditor’s ex parte application, without notice to the debtor or opportunity for a healing, but the statute entitles the debtor immediately to seek dissolution of the writ, which must be ordered unless the creditor “proves the grounds upon which the writ was issued,!’ Art. 3506, the existence of the debt, lien, and delinquency, failing which the court may order return of the property and assess damages in favor of the debtor, including .attorney’s fees. The debtor, with or without moving to dissolve the sequestration,' may also regain possession by filing his own bond to protect the creditor against interim damage to him should he ultimately win his case and have judgment against the debtor for the unpaid balance of the purchase price which was the object of the suit and of the sequestration. Arts. 3507 and 3508. In our view, this. statutory procedure effects a constitutional accommodation of the. conflicting interests of the parties. We cannot accept petitioner’s broad assertion that the Due Process Clause of the Fourteenth Amendment guaranteed to him the. use arid possession of the goods until all issues in thé case were judicially resolved after full adversary proceedings had been completed. It is_ certainly clear under this Court’s precedents. that issues can be limited in actions for possession. Indeed, in Grant Timber & Mfg. Co. v. Gray, 236 U. S. 133 (1915) (Holmes, J.), the Court upheld such limitations in possessory actions for real property in Louisiana. See also Bianchi v. Morales, 262 U. S. 170 (1923); Lindsey v. Normet, 405 U. S. 56 (1972). Petitioner’s claim must accordingly be narrowed to one for a hearing on the issues in the possessory action-default, the existence of a lien, and possession of the debtor — before property is taken. As to this claim, the seller here, with a vendor’s lien to secure payment of the unpaid balance of purchase-price, had the right either to be paid in accordance with its contract or to have possession of the goods for the purpose of foreclosing its lien', and recovering the unpaid balance. By complaint and -affidavit, the seller swore to facts that would entitle it to immediate possession of the goods under its contract, undiminished in value by further deterioration through use of the property by the buyer. Wholly aside from whether the buyer, with possession and power over the property, will destroy or make away with the goods, the buyer in possession of consumer goods will undeniably put the property to its intended use, and the resale value of the merchandise will steadily decline as it is used over a period of time. Any installment seller anticipates as much, but he is normally protected because the buyer’s installment payments keep pace with thq deterioration in value of the’ security. Clearly, if payments cease and possession and use by the buyer, continue, the seller’s interest in the property as security is steadily and irretrievably eroded until thé time at which the full hearing is held. The State of Louisiana was entitled to recognize this reality and to provide somewhat more protection for the seller. This it did in Orleans Parish by authorizing, the sequestration of property by a judge. At the same time, the buyer being deprived of possession, the seller was required to put up a bond to guarantee the buyer against damage or expense, including attorney’s fees, in the event the sequestration is shown to be mistaken or otherwise improvident. The buyer is permitted to regain possession by putting up his' own bond tó . protect the seller. Absent that bond,, which petitioner did not file in this- case;' the seller would be unprotected against the inevitable deterioration in the value of his security if the buyer remained in possession pending trial on the merits. The debtor, unlike the creditor, does not stand ready to make the opposing party whole,, if his possession, pending a prior hearing, turns out to be wrongful. Second, there is the real risk that the buyer, with possession and power over the goods, will conceal or transfer the merchandise to the damage of' thé seller. This is one of the considerations weighed-in the balance by the Louisiana law in permitting initial sequestration .of the property. An important factor in.this-connection is that under -Louisiana law, the vendor’s- lien expires if the buyer transfers possession.- It follows that if' the .vendor is to retain his lien, superior to the rights of other creditors of the buyer, it is imperative when default occurs that the property be sequestered in order, .to foreclose the possibility that the buyer will sell or otherwise convey the property to third'parties against whom the -vendor’s lien will not survive. The danger of destruction or alienation cannot be-guarded against if notice and a hearing -before seizure are supplied.' The^ -notice itself may furnish a warning to the debtor acting in bad faith. Third, there is scant support in our cases for.- the proposition that there must be final judicial determination of the seller’s entitlement before the buyer may be even temporarily-deprived of possession of the purchased* goods. On the contrary, it seems apparent that the seller with his own interest in the disputed merchandise would need to establish in any event only the probability that his case will succeed to warrant the bonded 'sequestration of the property., pending outcome of the suit. Cf. Bell v. Burson, 402 U. S. 535 (1971); Ewing v. Mytinger & Casselberry, 339 U. S. 594 (1950). The issue at this stage of the proceeding concerns possession pending trial and turns on the existence of the debt, the lien;, and the delinquency. These are. ordinarily uncomplicated matters that lend themselves, to documentary proof; and we think it comports with due process to- permit the, initial seizure on sworn ex parte documents, followed by the. early opportunity to put the creditor to his proof. The nature of the issues at stake minimizes thé risk that the writ will be wrongfully issued by a judge. The potential damages award available, if there is a successful motion to dissolve the writ, as well as the creditor’s own interest in avoiding interrupting the transaction, also contributes to minimizing this risk. Fourth, we remain unconvinced that the impact on the debtor of deprivation of the household goods here in question overrides his inability to make the creditor whole for wrongful possession, the risk of destruction or alienation if notice and a prior hearing are supplied, and the low risk of- a wrongful determination of possession through the procedures now employed. Finally, the debtor may immediately have a full hearing on the matter of possession following the execution of the writ, thus cutting to a bare minimum the time of creditor- or court-supervised possession. The debtor in this case, who did not avail himself of this opportunity, can hardly expect that his argument on the severity of deprivation will carry much weight, and even assuming that there is real impact on the debtor from loss of these goods, pending the hearing on possession, his basic, source of income is unimpaired. The requirements of due process of law “are not technical, nor is any particular form of procedure necessary.” Inland Empire Council v. Millis, 325 U. S. 697, 710 (1945). Due process of law guarantees “no particular form of procedure; it protects substantial rights.” NLRB v. Mackay Co., 304 U. S. 333, 351 (1938). “The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria Workers v. McElroy, 367 U. S. 886, 895 (1961); Stanley v. Illinois, 405 U. S. 645, 650 (1972). Considering the Louisiana procedure as a whole, we are convinced that the State has reached a constitutional accommodation of the respective interests of buyer and seller. III Petitioner asserts that his right to a hearing before his possession is in any way disturbed is nonetheless mandated by a long line of cases in this Court, culminating in Sniadach v. Family Finance Corp., 395 U. S. 337 (1969), and Fuentes v. Shewn, 407 U. S. 67 (1972). The pre-Sniadach cases are said by petitioner to hold that “the opportunity to be heard must precede any actual deprivation of private property.” Their import, however, is not so clear as petitioner would have it: they merely stand for the proposition that a hearing must be had before one is finally deprived of his property and do not deal at all with the need for a pretermination hearing where a full and immediate post-termination hearing is provided. The usual rule has been “[w]here only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for ultimate- judicial determination of liability is adequate.” Phillips v. Commissioner, 283 U. S. 589, 596-597 (1931). See also Scottish Union & National Ins. Co. v. Bowland, 196 U. S. 611, 632 (1905); Springer v. United States, 102 U. S. 586, 593-594 (1881). This generality sufficed to decide relatively modern cases. For example, in Ewing v. Mytinger & Casselberry, 339 U. S. 594 (1950), the statute at issue permitted-multiple seizures of misbranded articles in commerce “ ‘when the Administrator has probable cause to believe from facts found, without hearing, by him or any officer or employee of thé Agency that the misbranded article . . . would be in a material respect misleading to the injury or damage. of thé purchaser or consumer.’ ’’ Id., at 595-596. The specific seizure challenged, made administratively without prior notice or hearing, concerned a concentrate of alfalfa, watercress, parsley, and synthetic vitamins, combined in a package with mineral tablets. There was no claim or suggestion of any. possible threat to health. The sole official claim was that the labeling was misleading to the alleged damage of the purchaser. The Court sustained the ex parte seizure saying that “[w]e have repeatedly held that no hearing at the preliminary stage is required by due process so long as the requisite hearing is held before the final administrative order becomes effective.” Id., at 598. “It is sufficient, where only property rights' are concerned, that there is at some stage an opportunity for a hearing and a judicial determination.” Id., at 599. More precisely in point, the Court had unanimously approved prejudgment attachment liens effected by creditors, without notice, hearing, or judicial order, saying that “nothing is more common than to allow parties alleging themselves to be creditors to establish in advance by attachment a lien dependent for its effect upon the result of the suit.” “The fact that the execution is issued in the first instance by an agent of the State but not from a Court, followed as it is by personal notice and a right to take the case into court, is a familiar method in Georgia and is open to no objection.” Coffin Bros. v. Bennett, 277 U. S. 29, 31 (1928). To the same effect-was the earlier case of Ownbey v. Morgan, 256 U. S. 94 (1921). Furthermore, based on Ownbey and Coffin, the Court later sustained the constitutionality of the Maine attachment statute. McKay v. McInnes, 279 U. S. 820 (1929). In that case, a nonresident of Maine sued in the Maine courts to collect a debt from a resident of the_ State. As permitted-by statute, and as an integral part of instituting the suit, the creditor attached the properties of the defendant, without notice and without judicial process of any kind. In sustaining the procedure, the Maine Supreme Court, 127 Me. 110, 141 A. 699 (1928), described the attachment as designed to create a lien for the creditor at the outset of the litigation. “Its purpose is simply to secure to the creditor the property which the debtor has at the time it is made .so that it may be seized and levied upon in .satisfaction of the debt after judgment and execution may be obtained.” Id., at 115, 141 A., at 702. The attachment was deemed “part of the remedy provided for the collection of the debt,” ibid., and represented a practice that “had become fully established in Massachusetts, part of which Maine was at the time of the adoption of the Federal Constitution.” Id., at 114, 141 A., at 702. The judgment of the Maine court was affirmed without opinion, citing' Ownbey and Coffin. In Sniadach v. Family Finance Corp., supra, it was said that McKay and like cases dealt with “[a] procedural rule that may satisfy due process- for attachments in general” but one that would not “necessarily satisfy'procedural due process in every case,” nor one that “gives necessary protection to all property in its modern forms.” 395 U. S., at 340. Sniadach involved the prejudgment garnishment of wages — “a specialized type of property presenting distinct problems in our economic system.” Ibid. Because “[t]he leverage of the Question: What is the court in which the case originated? 001. 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sc_casedisposition	D	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. UNITED STATES et al. v. BISCEGLIA No. 73-1245. Argued November 11-12, 1974 Decided February 19, 1975 Stuart A. Smith argued the cause for the United States. With him on the brief were Solicitor General Bork, Assist ant Attorney General Crampton, and Deputy Solicitor General Wallace. William A. Watson argued the cause and filed a brief for respondent. The American Bankers Assn, filed a brief as amicus curiae urging affirmance. Mr. Chief Justice Burger delivered the opinion of the Court. We granted certiorari to resolve the question whether the Internal Revenue Service has statutory authority to issue a “John Doe" summons to a bank or other depository to discover the identity of a person who has had bank transactions suggesting the possibility of liability for unpaid taxes. I On November 6 and 16, 1970, the Commercial Bank of Middlesboro, Ky., made two separate deposits with the Cincinnati Branch of the Federal Reserve Bank of Cleveland, each of which included $20,000 in $100 bills. The evidence is undisputed that the $100 bills were “paper thin” and showed signs of severe disintegration which could have been caused by a long period of storage under abnormal conditions. As a result the bills were no longer suitable for circulation and they were destroyed by the Federal Reserve in accord with established procedures. Also in accord with regular Federal Reserve procedures, the Cincinnati Branch reported these facts to the Internal Revenue Service. It is not disputed that a deposit of such a large amount of high denomination currency was out of the ordinary for the Commercial Bank of Middlesboro; for example, in the 11 months preceding the two $20,000 deposits in $100 bills, the Federal Reserve had received only 218 $100 bills from that bank. This fact, together with the uniformly unusual state of deterioration of the $40,000 in $100 bills, caused the Internal Revenue Service to suspect that the transactions relating to those deposits may not have been reported for tax purposes. An agent was therefore assigned to investigate the matter. After interviewing some of the bank’s employees, none of whom could provide him with information regarding the two $20,000 deposits, the agent issued a “John Doe” summons directed to respondent, an executive vice president of the Commercial Bank of Middlesboro. The summons called for production of “[t]hose books and records which will provide information as to the person(s) or firm(s) which deposited, redeemed or otherwise gave to the Commercial Bank $100 bills U. S. Currency which the Commercial Bank sent in two shipments of (200) two hundred each $100 bills to the Cincinnati Branch of the Federal Reserve Bank on or about November 6, 1970 and November 16, 1970.” This, of course, was simply the initial step in an investigation which might lead to nothing or might have revealed that there had been a failure to report money on which federal estate, gift, or income taxes were due. Respondent, however, refused to comply with the summons even though he has not seriously argued that compliance would be unduly burdensome. In due course, proceedings were commenced in the United States District Court for the Eastern District of Kentucky to enforce the summons. That court narrowed its scope to require production only of deposit slips showing cash deposits in the amount of $20,000 and deposit slips showing cash deposits of $5,000 or more which involved $100 bills, and restricted it to the period between October 16, 1970, and November 16, 1970. Respondent was ordered to comply with the summons as modified. The Court of Appeals reversed, holding that § 7602 of the Internal Revenue Code of 1954, 26 U. S. C. § 7602, pursuant to which the summons had been issued, “presupposes that the [Internal Revenue Service] has already identified the person in whom it is interested as a taxpayer before proceeding.” 486 F. 2d 706, 710. We disagree, and reverse the judgment of the Court of Appeals. II The statutory framework for this case consists of §§ 7601 and 7602 of the Internal Revenue Code of 1954, which provide: “Section 7601. Canvass of districts for taxable persons and objects. “(a) General rule. “The Secretary or his delegate shall, to the extent he deems it practicable, cause officers or employees of the Treasury Department to proceed, from time to time, through each internal revenue district and inquire after and concerning all persons therein who may be liable to pay any internal revenue tax, and all persons owning or having the care and management of any objects with respect to which any tax is imposed. “Section 7602. Examination of books and witnesses. “For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax ... or collecting any such liability, the Secretary or his delegate is authorized— “(1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry; “(2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax or required to perform the act, or any other person the Secretary or his delegate may deem proper, to'appear before the Secretary or his delegate at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry; and “(3) To take such testimony of the person concerned, under oath, as may be relevant or material to such inquiry.” We begin examination of these sections against the familiar background that our tax structure is based on a system of self-reporting. There is legal compulsion, to be sure, but basically the Government depends upon the good faith and integrity of each potential taxpayer to disclose honestly all information relevant to tax liability. Nonetheless, it would be naive to ignore the reality that some persons attempt to outwit the system, and tax evaders are not readily identifiable. Thus, § 7601 gives the Internal Revenue Service a broad mandate to investigate and audit “persons who may be liable” for taxes and § 7602 provides the power to “examine any books, papers, records, or other data which may be relevant . . . [and to summon] any person having possession ... of books of account . . . relevant or material to such inquiry.” Of necessity, the investigative authority so provided is not limited to situations in which there is probable cause, in the traditional sense, to believe that a violation of the tax laws exists. United States v. Powell, 379 U. S. 48 (1964). The purpose of the statutes is not to accuse, but to inquire. Although such investigations unquestionably involve some invasion of privacy, they are essential to our self-reporting system, and the alternatives could well involve far less agreeable invasions of house, business, and records. We recognize that the authority vested in tax collectors may be abused, as all power is subject to abuse. However, the solution is not to restrict that authority so as to undermine the efficacy of the federal tax system, which seeks to assure that taxpayers pay what Congress has mandated and to prevent dishonest persons from escaping taxation thus shifting heavier burdens to honest taxpayers. Substantial protection is afforded by the provision that an Internal Revenue Service summons can be enforced only by the courts. 26 U. S. C. § 7604 (b); Reisman v. Caplin, 375 U. S. 440 (1964). Once a summons is challenged it must be scrutinized by a court to determine whether it seeks information relevant to a legitimate investigative purpose and is not meant “to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the particular investigation.” United States v. Powell, supra, at 58. The cases show that the federal courts have taken seriously their obligation to apply this standard to fit particular situations, either by refusing enforcement or narrowing the scope of the summons. See, e. g., United States v. Matras, 487 F. 2d 1271 (CA8 1973); United States v. Theodore, 479 F. 2d 749, 755 (CA4 1973); United States v. Pritchard, 438 F. 2d 969 (CA5 1971); United States v. Dauphin Deposit Trust Co., 385 F. 2d 129 (CA3 1967). Indeed, the District Judge in this case viewed the demands of the summons as too broad and carefully narrowed them. Finally, we note that the power to summon and inquire in cases such as the instant one is not unprecedented. For example, had respondent been brought before a grand jury under identical circumstances there can be little doubt that he would have been required to testify and produce records or be held in contempt. In Blair v. United States, 250 U. S. 273 (1919), petitioners were summoned to appear before a grand jury. They refused to testify on the ground that the investigation exceeded the authority of the court and grand jury, despite the fact that it was not directed at them. Their subsequent contempt convictions were affirmed by this Court: “[The witness] is not entitled to set limits to the investigation that the grand jury may conduct. . . . It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime. As has been said before, the identity of the offender, and the precise nature of the offense, if there be one, normally are developed at the conclusion of the grand jury’s labors, not at the beginning.” Id., at 282. The holding of Blair is not insignificant for our resolution of this case. In United States v. Powell, supra, Mr. Justice Harlan reviewed this Court’s cases dealing with the subpoena power of federal enforcement agencies, and observed: “[T]he Federal Trade Commission . . . ‘has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.’ While the power of the Commissioner of Internal Revenue derives from a different body of statutes, we do not think the analogies to other agency situations are without force when the scope of the Commissioner’s power is called in question.” 379 U. S., at 57, quoting United States v. Morton Salt Co., 338 U. S. 632, 642-643 (1950). Ill Against this background, we turn to the question whether the summons issued to respondent, as modified by the District Court, was authorized by the Internal Revenue Code of 1954. Of course, the mere fact that the summons was styled “In the matter of the tax liability of John Doe” is not sufficient ground for denying enforcement. The use of such fictitious names is common in indictments, see, e. g., Baker v. United States, 115 F. 2d 533 (CA8 1940), cert. denied, 312 U. S. 692 (1941), and other types of compulsory process. Indeed, the Courts of Appeals have regularly enforced Internal Revenue Service summonses which did not name a specific taxpayer who was under investigation. E. g., United States v. Carter, 489 F. 2d 413 (CA5 1973); United States v. Turner, 480 F. 2d 272, 279 (CA7 1973); Tillotson v. Boughner, 333 F. 2d 515 (CA7), cert. denied, 379 U. S. 913 (1964). Respondent undertakes to distinguish these cases on the ground that they involved situations in which either a taxpayer was identified or a tax liability was known to exist as to an unidentified taxpayer. However, while they serve to suggest the almost infinite variety of factual situations in which a “John Doe” summons may be necessary, it does not follow that these cases define the limits of the Internal Revenue Service’s power to inquire concerning tax liability. The first question is whether the words of the statute require the restrictive reading given them by the Court of Appeals. Section 7601 permits the Internal Revenue Service to investigate and inquire after “all persons . . . who may be liable to pay any internal revenue tax . . . .” To aid in this investigative function, § 7602 authorizes the summoning of “any . . . person” for the taking of testimony and examination of books which may be relevant for “ascertaining the correctness of any return, . . . determining the liability of any person ... or collecting any such liability . . . .” Plainly, this language is inconsistent with an interpretation that would limit the issuance of summonses to investigations which have already focused upon a particular return, a particular named person, or a particular potential tax liability. Moreover, such a reading of the Internal Revenue Service’s summons power ignores the fact that it has a legitimate interest in large or unusual financial transactions, especially those involving cash. The reasons for that interest are too numerous and too obvious to catalog. Indeed, Congress has recently determined that information regarding transactions with foreign financial institutions and transactions which involve large amounts of money is so likely to be useful to persons responsible for enforcing the tax laws that it must be reported by banks. See generally California Bankers Assn. v. Shultz, 416 U. S. 21, 26-40 (1974). It would seem elementary that no meaningful investigation of such events could be conducted if the identity of the persons involved must first be ascertained, and that is not always an easy task. Fiduciaries and other agents are understandably reluctant to disclose information regarding their principals, as respondent was in this case. Moreover, if criminal activity is afoot the persons involved may well have used aliases or taken other measures to cover their tracks. Thus, if the Internal Revenue Service is unable to issue a summons to determine the identity of such persons, the broad inquiry authorized by § 7601 will be frustrated in this class of cases. Settled principles of statutory interpretation require that we avoid such a result absent unambiguous directions from Congress. See NLRB v. Lion Oil Co., 352 U. S. 282, 288 (1957); United States v. American Trucking Assns., 310 U. S. 534, 542-544 (1940). No such congressional purpose is discernible in this case. We hold that the Internal Revenue Service was acting within its statutory authority in issuing a summons to respondent for the purpose of identifying the person or persons who deposited 400 decrepit $100 bills with the Commercial Bank of Middlesboro within the space of a*’ few weeks. Further investigation may well reveal that such person or persons have a perfectly innocent explanation for the transactions. It is not unknown for taxpayers to hide large amounts of currency in odd places out of a fear of banks. But on this record the deposits were extraordinary, and no meaningful inquiry can be made until respondent complies with the summons as modified by the District Court. We do not mean to suggest by this holding that respondent’s fears that the § 7602 summons power could be used to conduct “fishing expeditions” into the private affairs of bank depositors are trivial. However, as we have observed in a similar context: “ ‘That the power may be abused, is no ground for denying its existence. It is a limited power, and should be kept within its proper bounds; and, when these are exceeded, a jurisdictional question is presented which is cognizable in the courts.’ ” McGrain v. Daugherty, 273 U. S. 135, 166 (1927), quoting People ex rel. McDonald v. Keeler, 99 N. Y. 463, 482 (1885). So here, Congress has provided protection from arbitrary or capricious action by placing the federal courts between the Government and the person summoned. The District Court in this case conscientiously discharged its duty to see that a legitimate investigation was being conducted and that the summons was no broader than necessary to achieve its purpose. The judgment of the Court of Appeals is reversed and the cause is remanded to it with directions to affirm the order of the District Court. It is so ordered. The Internal Revenue Service agent testified: “Q. What possible tax effect could this have on the taxpayer if he is determined? “A. Well, it could be anything from nothing at all, a simple explanation, or it could be that this is money that has been secreted away for a period of time as a means of avoiding the tax. “Q. Then you really have not reached first base yet, is that correct? “A. That’s correct.” Respondent also argues that, even if the summons issued in this case was authorized by statute, it violates the Fourth Amendment. This contention was not passed upon by the Court of Appeals. In any event, as narrowed by the District Court the summons is at least as specific as the reporting requirements which were upheld against a Fourth Amendment challenge by banks in California Bankers Assn. v. Shultz, 416 U. S. 21, 63-70 (1974). Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:
songer_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. The FIRST PENNSYLVANIA BANKING AND TRUST COMPANY, E. Marshall Nuckols, Jr., and Orville C. Dewey, Jr., Executors Under the Will of Orville C. Dewey, Deceased v. The UNITED STATES LIFE INSURANCE COMPANY IN the CITY OF NEW YORK, Appellant. No. 17610. United States Court of Appeals, Third Circuit. Argued April 8, 1969. Decided Nov. 17, 1969. Rehearing Denied Dec. 10, 1969. Owen B. Rhoads, Dechert, Price & Rhoads, Philadelphia, Pa. (R. Neal Ris-ley, Philadelphia, Pa., Peter J. Flanagan, New York City, on the brief), for appellant. Walter R. Milbourne, Obermayer, Reb-mann, Maxwell & Hippel, and Ralph B. Umsted, Philadelphia, Pa., for appellees. Before KALODNER, GANEY and VAN DUSEN, Circuit Judges. OPINION OF THE COURT GANEY, Circuit Judge. This is an appeal from the granting of a motion by the plaintiffs for summary judgment entered by the court below. The pertinent pleadings are as follows: On August 26, 1966, the plaintiffs filed a complaint asking for a declaratory judgment on a group policy of life insurance, No. G — 9955-L, covering some 14 employees of Dewey Brothers, Inc., an insurance firm in the city of Philadelphia, under which the plaintiffs claimed the sum of $20,000, alleging that all the terms and conditions of the group life insurance policy had been met and fully complied with. On November 9, 1966, an answer was filed by the defendant, The United States Life Insurance Company in the City of New York, wherein, inter alia, it was denied that Orville C. Dewey, plaintiffs’ decedent, was an employee within the terms of the policy at the time of his death or at any relevant time, and that any amount was due under the policy as a result of Orville Dewey’s death. The case was listed for trial and plaintiffs’ and defendant’s pretrial memoranda were filed, as well as plaintiffs’ request for admissions of fact and the defendant’s answer thereto. Plaintiffs, thereafter, on June 11, 1968, filed a motion for summary judgment and defendant filed affidavits in opposition to the plaintiffs’ motion. On October 7, 1968, by order of the court below, summary judgment was granted in favor of the plaintiffs. The relevant facts are as follows: Orville C. Dewey, on the date of his death, September 21, 1965, was a citizen of Pennsylvania, and the executors of his estate were The First Pennsylvania Banking and Trust Company i a corporation chartered under the laws of the State of Pennsylvania, and two Pennsylvania citizens. Application was made through John Dewey, President of the company, who was the official negotiator for the group, for a policy of group life insurance, to the defendant, United States Life Insurance Company in the City of New York, on October 31,1960, wherein it was stated that there were 14 men to be included in the policy who were on full-time employment, among which was the decedent, Orville C. Dewey. This number could not be less than 10 for, under Group Policy, Pennsylvania Law 40 P.S. Sec. 532.2(3), it was so required. Upon receipt of the application, the names of those to be insured by the defendant were referred by it to the Retail Credit Company, an independent research bureau, for a report thereon. Pending receipt of a report from Retail Credit Company, the defendant wrote the President of Dewey Brothers as follows: “The application you signed indicated that you have fourteen employees who regularly work thirty hours a week or more for your firm. This being the case, your insurance plan was effective November 1, 1960. Of course, if this requirement were not met, the insurance would not have become effective.” However, on November 10, 1960, the report received on Orville Dewey by the defendant, United States Life Insurance Company, recited as follows: “Orville C. Dewey is the assistant treasurer for the above Dewey Brothers incorporated a reputable insurance brokerage in this city. The business was founded in 1934 by the brother of the applicant. He is the assistant treasurer of the firm. He is also known to be employed by the United States government, the exact connection in this capacity is not known. He is well regarded.” On November 16th, six days after its initial report, the Retail Credit Company gave the defendant the result of its interview with John Dewey, the President of Dewey Brothers and a brother of Orville Dewey, in which it was stated that Orville Dewey worked forty hours per week, confirming the information in the application. Thereafter, the defendant-insurance company, on November 21, 1960, got a report saying that 3 of the 14 employees did not work full-time and, therefore, would not be included in the policy, but the plaintiffs’-decedent was not one of the three. Additionally, the report stated, “We have more detailed inspections on the other employees, in process, and shall notify you of the results as soon as they become available.” In view of the report from the Retail Credit Company, the defendant-insurance company retained Dun & Bradstreet, another independent research bureau, to again interview and investigate Dewey Brothers. This interview was held on November 22, 1960 and the report said, with final assurance, that “all the officers worked a standard forty-hour week.” During this interview with John Dewey, President of Dewey Brothers, he evidenced annoyance with the continued investigation concerning the employment of its officers, of which Orville Dewey was one. However, on December 7, 1960, as indicated, the defendant notified Dewey Brothers that the policy would be effective as of November 1, 1960. The policy eliminated the three individuals whom the Retail Credit Company found not working full-time and also provided exclusion from coverage of all persons who “do not regularly work at least thirty-hours per week as an employee of the employer.” The policy also contained a one-year incontestability clause, in conformity with Pennsylvania Stat. 40 P.S. § 510(c), covering Group Policies, which reads as follows: “This policy shall be incontestable except for non-payment of premiums, as to insurance in force at the date hereof after two years after the date of issue of this contract, and as to insurance thereafter issued after one year from the time such insurance takes effect as herein provided.” On September 29, 1961, John Dewey, President of Dewey Brothers, was advised that they were below the ten persons requisite to be insured under the policy and was also advised that defendant-insurance company would cancel the policy unless the full complement required under the policy was restored. However, the policy was never canceled and the insurance was maintained in full effect as a list of 10 persons was submitted on November 1, 1961. On at least two occasions, on September 8, 1962, and again on October 20, 1965, the defendant’s Group Service Manager, in writing, concerning the rate policy of the company, stated as follows: “We wish to take this opportunity to remind you that the group insurance coverage in force under your policy covers all eligible, full-time employees. A full-time employee is one who regularly works at least 30 hours each week as an employee of your firm.” As indicated, Orville Dewey died on September 21, 1965, and to the proof of claim submitted to the insurance company there was attached a death certificate showing his occupation with the Central Intelligence Agency, and this was the first knowledge the defendant had of his employment with the Agency. While the President, John Dewey, conceded that the beneficiary, Orville Dewey, was a permanent employee with the Federal government, with CIA, he also testified that he was away quite often from the office on numerous occasions, but the record is absent as to any type of work he was performing inasmuch as it contains nothing respecting the division of work which the decedent performed while away from the office, since he may well have been soliciting business, as well as doing some work for the CIA, which, it must be conceded, is a very confidential Government agency, whose employees are not permitted to disclose any of the aspects of their work. Furthermore, while it was conceded by the plaintiff that at times Orville Dewey’s work was irregular, there is nothing in the record to show that, while he was a permanent employee of the CIA, he was working the full thirty hours a week for the company, as, after being closely questioned about the regularity of his work, the President conceded that it was “hard to say.” The policy was delivered in the State of Pennsylvania, the place of residence of the insured, and, accordingly, Pennsylvania law governs its interpretation. Franklin Life Insurance Co. v. Bieniek, 312 F.2d 365, 367-368 (C.A.3, 1962). Further, it is now well settled that a district court cannot grant summary judgment under F.R.Civ.P. 56(c), when there are unresolved “genuine issues of material fact.” Bolt Associates, Inc. v. Alpine Geophysical Associates, Inc., 365 F.2d 742 (C.A.3, 1966); Associated Hardware Supply Co. v. Big Wheel Distributing Co., 355 F.2d 114, 17 A.L.R.3d 998 (C.A.3, 1966). Summary judgment may not be granted under the federal rule if there be an issue presented as to existence of any material fact; and all doubts as to existence of a genuine issue as to a material fact must be resolved' against the party moving for summary judgment. Sarnoff v. Ciaglia, 165 F.2d 167 (3 Cir., 1947). Also, in ruling on a motion for summary judgment, the movant not only has the burden of demonstrating clearly the absence of any genuine issue of material fact, but the court should not draw factual inferences in favor of the moving party, and should not resolve a genuine issue of credibility. Moore's Federal Practice, ¶ 56.7(27) at 2215-2216. Accordingly, the focal point of our inquiry is whether the district court, as a matter of law, can say that the plaintiffs were entitled to summary judgment on the issue we deem to be a factual one, as to whether the information disclosed to the defendant would put a reasonably prudent person on notice to elicit further inquiry additional to the steps taken here by the defendant. The plaintiffs here raise two issues, one that the incontestability clause in the policy of one year barred the defendant from asserting the defense that the decedent did not regularly work thirty hours per week, since he died on the 21st day of September, 1965, and the effective date of the policy was November 1, 1960; and the second issue that, assuming such a defense may be asserted, the defendant waived his right thereto, under the circumstances obtaining here, by accepting premiums under the policy down until the date of his death, to which we will later advert. The objection to the first issue raised is that the plaintiffs did not file a cross-appeal here. This issue was decided against it in the court below, and the second issue of waiver was decided in its favor, and only the defendant appealed, although the matter was argued in the briefs of the plaintiffs filed on review. Aside from this, we affirm the judgment of the lower court that the incontestability clause in the policy did not bar the defendant from asserting a defense. As stated by Judge Haynsworth, in Fisher v. United States Life Insurance Co. in City of New York, 249 F.2d 879, 882 (C.A.4, 1957), “As the District Judge clearly pointed out in his opinion, it is well settled in general, and in New York whose laws govern our decision in this case, in particular, that the incontestable clause, after the passage of the stipulated period, proscribes defenses which go to the validity of the policy whether because of noncompliance with conditions or the falsity of representations or warranties. It was never intended to enlarge the coverage of the policy, to compel an insurance company to insure lives it never intended to cover or to accept risks or hazards clearly excluded by the terms of the policy.” In so doing, the court cited with approval Chief Judge Cardozo, speaking for the New York Court of Appeals in Metropolitan Life Insurance Co. v. Conway, 252 N.Y. 449, 169 N.E. 642 (1930). Although Simpson v. Phoenix Mutual Life Insurance Co., 30 A.D.2d 265, 291 N.Y. S.2d 532 (1968), reaches a different conclusion, since there are no Pennsylvania decisions on this point, we are in agreement that if the precise point came before a Pennsylvania court it would follow the logic and reasoning of Fisher, supra. For, as pointed out, the court below concerns itself whether the decedent was covered by the policy, a matter of coverage, and does not go to the invalidity of the policy itself. Additionally, it is important, in construing the facts in this case, to note that the provision that all of the employees work regularly thirty hours per week is not a static situation, but one which has continuity to it, for, assuming that no question of waiver was involved, can it be seriously contended that after one year, if it came to the attention of the defendant for the first time that some of the group had been working only two hours a week, or had left the employ of the company, a month after the policy had become effective, the defendant could not cancel the policy, or if death ensued, it could not assert it as a defense? Additionally, if it came to the attention of the defendant any time after the one year period that any of the group were not working thirty hours a week, it would be most unrealistic to hold that the company could not cancel the policy as to such person or, in the event of death, assert it as a defense to a beneficiary’s claim for, if it were otherwise, the defendant would be required to police every member of the group continually to see if they were working thirty hours a week. Obviously, the contract provision itself vitiates any assertion here of the incontestability clause. With respect to the second claim made by the plaintiff, that of waiver by the defendant, and the basis upon which the lower court rendered judgment on the motion for summary judgment, we reverse and hold that on this record there was no waiver on the part of the defendant company for, in our opinion, the question of whether or not a reasonably prudent person would be put on notice to elicit further information with respect to the employment of Orville Dewey was a question which should be submitted to a jury or to a judge as a finder of fact, as we find no basis for deciding this factual question, or any factual inference to be drawn from the circumstances here obtaining, as a matter of law. The report of the Retail Credit Company, at best, disclosed no significant discrepancy as to Orville Dewey’s employment. Further, it gave no clue as to Orville Dewey’s not working thirty hours per week, since his employment may well have been on special assignments with the Central Intelligence Agency. A review of the cases discloses that in order to constitute waiver, there must be sufficient knowledge disclosed to the insurer that there is some falsity in the statement by the insured or something of some significance which would put a reasonably prudent person on notice to make further inquiry. Union Insurance Exchange, Inc. v. Gaul, 393 F.2d 151 (C.A.7, 1968); Travelers Insurance Co. v. Eviston, 110 Ind.App. 143, 37 N.E. 2d 310; Gallagher v. New England Mutual Life Insurance Co. of Boston, 19 N. J. 14, 114 A.2d 857, 862; 7 Couch on Insurance 2d, §§ 35:252, 35:254; 16 Appleman, Insurance Law and Practice, § 9086, pp. 618-619. The record is barren, in the instant case, of any other fact except that the insured was in the employ, also, of the United States Government. This fact, as we have indicated, did not preclude the insurer from assuming that the insured worked regularly thirty hours. In Warren v. Confederation Life Association, 401 F.2d 487, at 490 (C.A.1, 1968), in discussing the question of whether there was a waiver by the insured, it is stated as follows, footnote omitted: “Secondly, there may be questions of waiver. But cf. Lopardi V. John Hancock Mut. Life Ins. Co., Supra, [289 Mass. 492, 194 N.E. 706] n. 7. Even so we could not accept plaintiffs contention that because the company knew to some extent that the applicant was not in first class health it waived the provision in its entirety. The company cannot be regarded as waiving what it does not know. Cf. Niagara Fire Ins. Co. v. Lowell Trucking Corp., 1944, 316 Mass. 652, 56 N.E.2d 28. There can be no basis for the plaintiff to say that the company waived substantial circumstances of which it was ignorant.8” In Crawford v. Manhattan Life Insurance Co. of New York, 208 Pa.Super. 150, 221 A.2d 877 (1966), the insured had submitted to the defendant-company a report from another insurance company which showed that that company had declined his application for insurance. Upon receipt of his application, on August 20, 1956, the defendant submitted an amended form to the insured in answer to which he did not disclose that he had an electrocardiogram; that he had been placed on a low salt diet; or that he had been treated throughout the spring of 1956 by a doctor. The court there held that the inconsistency in the report which he had forwarded to the defendant-company of the previous insurance company (Northwestern), together with the amended statements submitted to the insured in order to secure insurance with it, did not serve to estop the defendant-company from relying on the false statements in the amended application and the answers relating to his previous hospitalization, of which he made no mention. Here, again, it is indicated that some knowledge by the insurance company of facts inconsistent with the terms of the policy does not always, in and of itself, preclude the defendant-company from asserting non-waiver under the policy. In Provident Life and Accident Insurance Co. v. Hawley, 123 F.2d 479 (4 Cir., 1941), a suit by the plaintiff for cancellation of a life insurance policy, a judgment rendered in the court below for the defendant was reversed. The lower court submitted to the jury three questions, two of which were: (2) that the Insurance Company waived the misrepresentations that the applicant had made; and (3) that the Insurance Company was indebted to the estate of the insured in the sum of $15,000. The court, on appeal, held that the crucial question was whether there was evidence to justify the findings of the jury and the judgment based thereon, which denied cancellation of the policy, and stated, at p. 482: “While the company knew, notwithstanding his statements to the contrary, he had consulted physicians in the ten years prior to his application, it had no knowledge that for years he had suffered from trichomonas infection, or that only a few days before his application he had been told by his physician at Hot Springs that he had a defective and abnormal heart. The conditions of an ordinary waiver were therefore not met.” This is in conformity with our holding that there are not sufficient facts in the instant case for the court to decree a waiver, but it indicates strongly that the question of waiver is a question for the fact finder, since it was submitted to a jury and the appellate court held on review there was not enough evidence in the record to support a waiver. In New York Life Insurance Co. v. Strudel, 243 F.2d 90 (C.A.5, 1957), the court stated, at p. 94: “The first question therefore is whether the appellant [New York Life Insurance Company] here knew the true facts, or at least had at any time obtained such knowledge about the facts that a consequent reasonable inquiry would have revealed them. At the trial the only evidence of such knowledge was the indication that appellant’s Medical Director had some suspicion that the insured had had heart trouble, as indicated by the Director’s communication to the company’s Miami doctor. The nature of that knowledge was in no way established, and therefore we cannot say, nor could the jury have found except by unwarranted speculation, that that information called for any investigation beyond that which was carried out.” (Emphasis ours.) Further, it was stated that, “Here there were no such ambiguities or inconsistencies in the application and the other records put into evidence as were present in Love v. Metropolitan Life Ins. Co., D.C.E.D.Pa., 99 F.Supp. 641, and as would make the bona fides of the reliance on the application a jury question. See Provident Life & Accident Ins. Co. v. Hawley, 4 Cir., 123 F.2d 479, and Jefferson Standard Life Ins. Co. v. Stevenson, 5 Cir., 70 F.2d 72, for cases in which insurer’s knowledge of minor inconsistencies or falsehoods in the application were held not to bar reliance on representations which proved to be false.” (Emphasis ours.) Here again, “the bona fides of the reliance” as to waiver is made a jury question. In Apperson v. United States Fidelity and Guaranty Co., 318 F.2d 438 (C.A.5, 1963), which was an action by the insurer for a judgment declaring automobile liability policy void ab initio, the district court granted the requested relief and the insured appealed. On review, the court held that where the insurer, after issuing an automobile liability policy, had obtained a credit report indicating possible falsity of some of the insured’s statements in the application and instead of making any further independent investigation, contacted the insured who reaffirmed the truth of the application’s statements, the insurer rightly relied on such new representations and was not equitably estopped from asserting falsity of representations as a ground for cancelling the policy. In that case, there is a parallel with respect to corroboration of statements, and, in the instant ease, the Retail Credit Company, after the statement that Orville Dewey was also employed by the United States Government, went to the President of the company who, as indicated, negotiated the contract and spoke for the Company, of which Orville Dewey was an officer, and the Retail Credit Company was again reassured that all of its officers were working at least a thirty hour week. Columbian National Life Insurance Co. of Boston, Mass. v. Rodgers, 116 F. 2d 705 (10 Cir., 1941). is relied on as a case in opposition to views hereinabove stated, but, however, if we look at the facts in the case, Rodgers brought an action on a policy of life insurance issued by the defendant and a judgment was entered for the plaintiff and on appeal the judgment was affirmed. However, the court stated, at p. 708: “Information in possession of appellant prior to its issuance of the policy, that Paul W. Rodgers had applied to the John Hancock Company for a policy of insurance, which company had created a record against the applicant, was sufficient to put the insurer on inquiry as to the nature of the record, because the reporting service from which the information was obtained indicated that the applicant had either been declined or had been rated differently from the established rates, or that some other unusual circumstances were involved.” This is the type of case which shows that the question of the existence of an estoppel by waiver is a factual one and not merely a question of law. We are in complete agreement with this holding as the footnote shows that evidence was submitted to the court sitting as a jury which supported an equitable estoppel. For the reasons stated, the order and judgment of the district court entering judgment in the plaintiffs’ favor will be reversed and the cause remanded for further action not inconsistent with this opinion. . “The provision that a policy shall be incontestable after it has been in force during the lifetime of the insured for a period of two years is not a mandate as to coverage, a definition of the hazards to be borne by the insurer. It means only this, that within the limits of the coverage the policy shall stand, unaffected by any defense that it was invalid in its inception, or thereafter became invalid by reason of a condition broken.” . Even if the information disclosed to the defendant as revealed at the further trial court proceedings required by this opinion would have put a reasonable person on notice to elicit further inquiry, the fact finder will then have to consider (1) what such further inquiry should have involved if reasonably conducted, and (2) whether such a reasonably conducted inquiry would have revealed the limited extent of the employment of plaintiffs’ decedent by Dewey Brothers, Inc. This record does not justify the assumption, apparently made by the district court, that a reasonable further investigation would necessarily have revealed that Orville Dewey did not in fact work thirty hours per week for Dewey Brothers, Inc. This record indicates that the extent of his work with the OIA was not easily ascertainable. . This case -was tried by the eourt -without a jury. Substantial evidence was submitted in support of the facts upon which an equitable estoppel was created. The material findings and the judgment are fully supported by competent evidence. 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_usc1sect	1616	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 48. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". GOVERNMENT OF the VIRGIN ISLANDS v. Raphael PARROTT, Appellant. No. 71-1934. United States Court of Appeals, Third Circuit. Argued Jan. 29, 1973. Decided April 18, 1973. Joseph L. Costello, Bryant & Costello, Christiansted, St. Croix, V. I., for appellant. Gary P. Naftalis, Sp. Asst. U. S. Atty., S. D. New York, New York City, for appellee. Before MARIS, VAN DUSEN and ROSENN, Circuit Judges. OPINION OF THE COURT MARIS, Circuit Judge. This is an appeal by the defendant from a judgment of the District Court of the Virgin Islands convicting him of robbing one Howard Hambler of a sum of money. The offense was committed in the evening when Hambler was walking with two companions on the Long Bay Road in the vicinity of the Paul M. Pearson Gardens in St. Thomas. The defendant did not demand a jury trial and the case was tried to the judge alone. The defendant was identified in court by Hambler and by one Samuel Davis who lived in Pearson Gardens, knew the defendant and who came to Hambler’s assistance at the time of the robbery. The defendant testified that during the evening in question he was playing basket ball in Pearson Gardens, was later playing cards there and at the time of the robbery was in a nearby restaurant. He produced a number of witnesses who testified that they were with, or saw, or spoke to him at various times on the evening in question. Concluding that the government witnesses were credible, that there were conflicts in the testimony of the defendant and his witnesses, and that in any event the defendant under his own evidence could have committed the robbery, the trial judge found the defendant guilty beyond a reasonable doubt of the offense charged and entered the judgment of conviction here appealed from. On this appeal the defendant contends that the trial judge’s finding of guilty was not supported by the evidence. It is argued that the defendant’s evidence that he was elsewhere when the crime was committed raised a reasonable doubt which required a finding of not guilty. Our consideration of the evidence which was before the trial judge satisfies us, however, that it amply supports the finding of guilty. The “elsewhere” where the defendant claims to have been and where his witnesses said they saw him, was in fact in the immediate vicinity of the scene of the robbery, which he could have committed without absenting himself for any substantial period of time from the places where he claimed to have been. We find no merit in the contention of the defendant that the evidence did not support his conviction. The defendant further contends, a contention asserted for the first time on this appeal, that he was denied the right to a jury trial because he was not accorded such a trial although he did not expressly waive it in the manner prescribed by Rule 23(a) of the Federal Rules of Criminal Procedure. Admittedly he did not demand such a trial, as is required by section 26, as amended, of the Revised Organic Act of the Virgin Islands. The question is thus squarely raised as to whether the procedure for determining whether or not the defendant desires to exercise his right to a jury trial in a criminal case in the District Court of the Virgin Islands is governed by Rule 23(a), F.R.Cr.P., or by section 26 of the Revised Organic Act. It is clear that whatever may have been the situation in the Virgin Islands prior to 1968, section 11 of the Act of August 23, 1968, 82 Stat. 837, 841, by extending the Sixth Amendment to the Constitution of the United States to the territory conferred upon persons accused of crimes triable in the District Court of the Virgin Islands the right to trial by jury. It is equally clear that this right is a privilege which need not be invoked if the accused does not desire to do so. Patton v. United States, 1930, 281 U.S. 276, 50 S.Ct. 253, 74 L. Ed. 854; Adams v. United States ex rel. McCann, 1942, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268. The question before us, however, is not the existence of the right to trial by jury but rather the procedure by which an accused may exercise his option whether or not to invoke the right. One form of procedure would be to require the accused desiring to enjoy the right to a trial by jury to demand it of the court and to assume in the absence of such a demand that he does not desire a jury trial. This is the procedure provided by section 26 of the Revised Organic Act. Another approach would be to require the accused who does not desire to exercise the right to a jury trial so to state to the court and to assume in the absence of such a statement that the accused desires such a trial. This, of course, is the procedure provided by Rule 23(a) of the Federal Rules of Criminal Procedure. The question accordingly comes down to whether Rule 23(a), F.R.Cr.P., or section 26 of the Revised Organic Act controls the procedure in this regard in the District Court of the Virgin Islands. Rule 23(a) was one of the original rules of criminal procedure which were adopted by the Supreme Court on December 26, 1944, pursuant to the Act of June 29, 1940, 54 Stat. 688, which was subsequently codified in Title 18, U.S.C., as § 3771. By Rule 54(a)(1) the rules were made applicable, inter alia, to the District Court of the Virgin Islands. The Revised Organic Act of the Virgin Islands was enacted by the Act of July 22, 1954, 68 Stat. 497. Section 26 of the Act in its original form carried forward the provisions of section 31 of the Organic Act of 1936, 43 Stat. 1814, in substantially their original form. Section 26 was amended, however, by section 8 of the Act of August 28, 1958, 72 Stat. 1095. In its amended form, the section was drastically rephrased so as to make perfectly clear that a defendant would receive a jury trial if he demanded it. That it was the intention of Congress to clarify this appears from the legislative history. The procedural rule embodied in Rule 23(a) of the Federal Rules of Criminal Procedure, having been adopted by the Supreme Court pursuant to Congressional authority, was subject to being repealed, amended or superseded in whole or in part by Congress as well as by the Court. Hawkins v. United States, 1958, 358 U.S. 74, 78, 79 S.Ct. 136, 3 L.Ed.2d 125. We think that this is exactly what has happened here and that by the Congressional amendment in 1958 of section 26 of the Revised Organic Act the procedural provisions of that section have superseded, for the District Court of the Virgin Islands, the earlier provisions of Rule 23(a), F.R.Cr.P. The provisions of section 26 as amended thereby became the Congressionally established procedure under which an accused in the Virgin Islands invokes his right to a trial by jury. The procedure thus established by Congress for the Virgin Islands, namely, that the duty is laid upon the accused to ask for a jury trial if he desires one, appears to be quite appropriate for the territory in view of the fact that the use of a jury in the trial of criminal eases is of comparatively recent origin in the Islands. There is no ancient or deep-seated tradition that jury trial is the usual and preferred method of trial, as is true in the continental United States. On the contrary, the use of a jury in criminal cases appears to have been first introduced in the Virgin Islands by the Municipal Codes of 1920 and 1921, and then only for felony cases if demanded by the accused. Prior to that time and in the time of Danish rule the use of juries was unknown and criminal trials were by the presiding judge alone or with associate lay judges. This would appear to have been a not impermissible procedure. And we may take judicial notice of the fact that even after jury trials became permissible their use was the rare exception until quite recently and even today a great many criminal cases continue to be tried to the judge alone in accordance with the older tradition. We recognize that the right to a jury trial under the Sixth Amendment is not effectively waived unless there is a knowing and intelligent waiver of such right by the defendant himself, as required in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). See also Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Adams v. United States ex rel. McCann, 317 U.S. 269, 280-281, 63 S.Ct. 236, 87 L.Ed. 268 (1942) ; Patton v. United States, 281 U.S. 276, 312-313, 50 S.Ct. 253, 74 L.Ed. 854 (1930). We are in no way persuaded that the traditional Virgin Islands practice now codified in section 26 is inconsistent with the constitutional requirement that a waiver be knowing and intelligent. In Johnson v. Zerbst, the Court said, inter alia: “The determination of whether there has been an intelligent waiver of the right to Counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background experience and conduct of the accused.” 304 U.S. at p. 464, 58 S. Ct. at p. 1023. We believe that the procedure now assured by the Criminal Justice Act of 1964, 18 U.S.C.A. § 3006A, under which every defendant in the District Court of the Virgin Islands who cannot afford to retain counsel is provided with counsel at the expense of the United States, will in most cases result in knowledge by the accused that he has the right to request a jury trial and must make such request. Thus, with the rarest exceptions, every person accused of crime who appears in the district court has the benefit of the advice of counsel who, of course, knows of his client’s basic right to a jury trial and should clearly and positively inform him of it, so that it may be decided whether or not, as a matter of trial strategy, the right should be demanded. On the record in the present case, defendant does not allege that he did not know of his right to a jury trial and that he was not in a position to make an informed choice. He was advised by a lawyer of his choice, the late Francisco Corneiro, one of the ablest members of the Virgin Islands bar, who was a former United States Attorney and Attorney General of the territory. Under these circumstances, he has no grounds to complain that he did not receive the jury trial for which he did not ask.' The defendant’s remaining contentions are so wholly without merit as to require no discussion. The judgment of the district court will be affirmed. . “Rule 23. Trial by Jury or by the Court (a) Trial by Jury. 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.” . “All criminal cases originating in the district court shall be tried by jury upon demand by the defendant or by the Government. If no jury is demanded the case shall be tried by the judge of the district court without a jury, except that the judge may, on his own motion, order a jury for the trial of any criminal action. The legislature may provide for trial in misdemeanor cases by a jury of six qualified persons.” 48 U.S.C.A. § 1616. . For a discussion of this see Government of the Virgin Islands v. Bodle, 3 Cir. 1970, 427 F.2d 532, footnote 1. . Senate Report No. 2267, 85th Congress, 2d session, on H.R. 12303, U.S.Code Cong. & Admin.News 1958, pp. 4334, 4336, which was enacted as the Act of August 28, 1958, states with respect to section 8: “Section 8 clarifies section 26 of the Revised Organic Act of the Virgin Islands which concerns the right to trial by jury in criminal cases.” . Code of Laws of the Municipality of St. Croix, approved June 15, 1920, effective August 1, 1920, Title V, Chap. 12, Sec. 1; Code of Laws of the Municipality of St. Thomas and St. John, approved March 17, 1921, effective July 1, 1921, Title V, Chap. 12, Sec. 1. . See Soto v. United States, 3 Cir. 1921, 273 F. 628. . Palko v. Connecticut, 1937, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288: ■ “ . . . The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not the very essence of a scheme of ordered liberty. To abolish them is not to violate a ‘principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ . . New would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them.” . In the case of those rare defendants who choose to defend themselves without counsel, the district court should, of course, inform them of their right to demand a jury trial. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 48? Answer with a number. Answer:
songer_appbus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. WARREN SERVICE CORPORATION v. COMMISSIONER OF INTERNAL REVENUE. No. 204. Circuit Court of Appeals, Second Circuit. March 25, 1940. For opinion below, see 39 B.T.A. 856. Robert E. Coulson, James K. Polk, and Talbert W. Sprague, all of New York City, for petitioner. Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Maurice J. Mahoney, Sp. Assts. to Atty. Gen., for respondent. Before SWAN, AUGUSTUS N. HAND, and PATTERSON, Circuit Judges. SWAN, Circuit Judge. In August 1926 Warren Service Corporation, as lessor, entered into an agreement of lease with Warren-Nash Motor Corporation, as lessee, by the terms of which the lessor was to acquire certain real estate, erect thereon a building of specialized design and lease the premises for a fifteen year term at an average annual net rental of $125,000. The land cost $300,000 and the cost of erecting the building was nearly $800,000 more. The taxpayer would not have made this investment had it not previously obtained the commitment of Warren-Nash Motor Corporation to' pay a relatively high rental over a long period, as embodied in the lease. The amount of net rental that could have been obtained! in 1926 from another tenant was not more than $80,000 per year. The lease provided that the lessee should' pay to the lessor $125,000, as security for the lessee’s performance of its obligations, and that the lessor should have unrestricted use of the .said sum and should repay it when the lease expired on August 1, 1941, if the lessee had faithfully performed its obligations, or having defaulted therein had cured such default. This sum was duly paid to the lessor in* 1926 ,and was used by it in constructing the building upon the leased premises. When the lease was made the Warren-Nash Motor Corporation was a large and successful distributor of Nash automobiles, but in 1929 it began to lose money and in 1933 it was notified toy Nash Motor Company that its distributor franchise would be terminated unless its operating expenses were reduced. Thereafter, on May 1, 1933, it was agreed between the lessor and the lessee that the lease should be forthwith cancelled and the lessee’s interest in the security payment of $125,000 should be released, provided the taxpayer would hold such sum for the protection of the holders of the taxpayer’s 6 per cent, secured notes .until they should have been paid in full. The -net rentals received by the taxpayer prior- to cancellation of the lease aggregated about $894,000. On the date the lease was canceled the property ¡was relet for a gross annual rental of $30,000,. which wasdater increased to $40,-000 for a five year term ending October 1, 1942. These rentals were the highest then obtainable for the property. The land and •building are still owned by the taxpayer. In its income tax return for 1933 the taxpayer included as income $85,910.65, representing the present worth at December 31, 1933, of the taxpayer’s released obligation to pay $125,000 to the lessee on August 1, 1941. The commissioner treated the entire amount of $125,000 as income to the taxpayer in 1933. This resulted in a deficiency tax of $4,649.24 which the Board has affirmed. Although the $125,000 was received by the lessor in 1926 it was not income in that year, since the lessor was under obligation to repay it in 1941, unless in the meantime it should be appropriated to make good a default by the lessee. See Virginia Iron, Coal & Coke Co. v. Commissioner, 4 Cir., 99 F.2d 919, certiorari denied 307 U.S. 630, 59 S.Ct. 833, 83 L.Ed. 1513. The Board held that the cancellation of that, obligation was income to the taxpayer in 1933. Assuming arguendo that this be true, the taxpayer contends that it sustained a loss by reason of the cancellation of the lease which more than offsets such income. It urges that it surrendered a contractual right to receive annual rentals far in excess of any-sum for which it has been able to rele't the premises. But this does not establish a deductible loss in 1933 ; it shows merely a diminution of expected income during that year and subsequent years.- The taxpayer has sustained no loss of property in the income-tax sense. The land and building were and still are owned by the taxpayer and they have produced income. The difference between the income actually received and the income the taxpayer had expected to receive is not a deductible loss. What has been lost is merely prospective income. See Josey v. Commissioner, 10 Cir., 104 F.2d 453, 455. If the case of Commissioner v. Langwell Real Estate Corp., 7 Cir., 47 F.2d 841, is to be read as supporting the taxpayer’s contention, we must respectfully decline to follow it, as did-the Board. The taxpayer further argues that of the sum of nearly $1,100,000 expended in acquiring the land and constructing the building thereon, at least $300,000 should be deemed an investment in the lease, because the market value of the land and building was never more than $800,000 and no other tenant in 1926 would have paid more than an annual rental of $80,000. The Board made no finding that any part of the sum expended by the taxpayer was invested in the lease and the evidence would not have justified such a finding. Nothing was set up* on the books of the taxpayer as an investment in the lease. Depreciation on the full cost of the building was taken at the rate of 2% per cent, in the taxpayer’s' ■return for 1933. The evidence shows merely that the taxpayer was willing in 1926 to pay an excessive price for the land and building because it expected to receive a high rental for a period of fifteen years. It is elementary that the difference between the price paid for property and its market value in a later year affords no basis for determining a gain or loss while the taxpayer still retains ownership of the property. It is apparent from the foregoing discussion that no loss was sustained in the year 1933 which may be set off against income received in that year. The remaining question is how much income was received by reason of the taxpayer’s release from its obligation to repay $125,000 in 1941 if the lessee was not then in default under the lease. The sum received in 1926 as security for the lessee’s performance was, by ■specific agreement, available for the lessor’s general use and was not to bear interest. The value of a release of an obligation to pay $125,000 in 1941, without interest, is ■obviously less than, the value of the release of a debt for like amount presently due, or of an obligation to pay the sum in 1941 with interest. See Chesapeake & Ohio R. Co. v. Kelly, 241 U.S. 485, 489, 36 S.Ct. 630, 632, 60 L.Ed. 1117, L.R.A.1917F, 367, where it is said: “It is self-evident that a given sum of money in hand is worth more than the like sum of money payable in the future.” See also Hollwedel v. Duffy, Mott Co., 263 N.Y. 95, 188 N.E. 266, 90 A.L.R. 1312. The present case is to be distinguished from a situation where the deposit of money as collateral security is held in trust by the lessor without the privilege of using it. It must also be differentiated from a situation where the lessor is to pay the lessee interest on the deposited sum, as in the case relied upon by the Board. Commissioner v. Langwell Real Estate Corp., 7 Cir., 47 F.2d 841. In such a case the present worth of a release from an obligation to pay $125,000 in eight years is presumably the face amount of the obligation; the value to the lessor of the use of the money in the interim is offset by the obligation to pay interest during the same period. But in the case at bar the lessor was to have the free use of the money until 1941. So the value of the release received in 1933 was the present worth of $125,000 payable in 1941. In its 1933 return the taxpayer included as income $85,910.65 to represent the present worth of the released obligation. The Board did not, however, make a finding that this figure represented the correct present worth. The argument and briefs upon appeal have not discussed this point, but it was definitely presented to the Board by the taxpayer’s petition and the commissioner’s answer and it is raised in this court by the petitioner’s assignment that the Board erred in holding that the taxpayer derived taxable income in the amount of $125,000 upon the cancellation of the lease. We think the Board’s order must be reversed and the cause remanded with directions to determine the tax deficiency, if any, upon the basis of finding the present worth in 1933 of an obligation to pay $125,-000 on August 1, 1941 without interest. It is so ordered. 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_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". WOODS, Housing Expediter, v. DODGE. No. 4367. United States Court of Appeals First Circuit. Nov 23, 1948. Nathan Siegel, Sp. Litigation Atty., of Washington, D.C. (Ed Dupree, Gen. Counsel, Plugo V. Prucha, Asst. Gen. Counsel, and Daniel R. Davies, Sp. Litigation Atty., all of Washington, D.C., on the brief), for appellant. Charles E. Cunningham, of Boston, Mass. (Herbert S. Avery and Avery, Dooley, Post & Carrol, all of Boston, Mass., on the brief), for appellee. Before MAGRUDER, Chief Judge, and’ GOODRICH and WOODBURY, Circuit-Judges. WOODBURY, Circuit Judge. This is an appeal by the Housing Expediter from a final judgment entered by the-District Court of the United States for the-District of Massachusetts for a landlord in an action for restitution and statutory damages brought by the Expediter pursuant to- § 205(a) and (e) of the Emergency Price Control Act of 1942, as amended, 50 U.S. C.A. Appendix, § 925(a) and (e). The basic facts are not in dispute. The defendant on September 11, 1946,. and apparently for some years, before, owned premises located at 429 Pleasant Street in Winthrop, Massachusetts, which included an apartment known as Suite No. 2, concededly a housing accommodation, equipped for central heating by a coal burning furnace. Prior to the above date the suite had been rented unfurnished and a maximum legal rent had been established therefor. On the date mentioned the defendant accepted $150 from the agent of a prospective-tenant on account of rent for the suite for the month beginning on September 13, 1946,. provided the prospective tenant furnished' satisfactory references. On September 16, the prospective tenant and the defendant met and executed a lease of the suite for one year beginning September 13, 1946, at $150 per month payable in advance. Under the terms of the lease the defendant-lessor was not obligated to provide heat. Perhaps-upon the day the lease was signed, maybe-even in discussion with the tenant’s agent on September 11, but at any rate shortly-after September 16, there was some discussion with respect to equipping the coal' burning furnace in Suite No. 2 with an oil-burner. In any event the tenant wanted.' an oil burner very much if it were possible-to obtain one and have it installed, and the defendant, having one on order for his own-personal use, agreed for an additional-charge of $17.50 per month to have that burner put in the tenant’s furnace if it came and someone could be found to install it. The defendant was able to obtain an oil burner and have it installed, and on September 24, he and his tenant embodied their agreement with respect to it in a separate written instrument. Thereafter the tenant paid and the defendant received $17.50 per month, in addition to the agreed rental of $150 per month for the suite, to cover the use of the oil burner from September 13, 1946, through May 12, 1947. These amounts, aggregating $140, constitute the overcharges alleged. We were informed at oral argument that the landlord, within thirty days as required by the regulation, filed a registration statement setting out the first rental of the suite, furnished, as $150 per month; also that still within the thirty days, he filed an amended registration statement setting out the first rental of the suite furnished and equipped with an oil burner as $167.50 per month. The registration statement is merely a reporting device. If the “first rent” of the apartment after the change from unfurnished to furnished had in fact been $167.50, then the amended registration statement would have been in order. But as indicated below, though the landlord’s good faith is not questioned, the amended registration statement did not accurately set forth the information required to be reported by the regulation. We agree with the District Court that “This is a most extraordinary litigation brought by the Expediter to penalize a landlord for having made an agreement that he did not wish to make, not for his profit, and at the request of a tenant, who so far as appears was in no way adversely affected, and who sought the agreement of which complaint is made.” But we cannot adopt that court’s theory that the agreement with respect to the oil burner was one with respect to personal property “in no way tied in with or connected with the rental of the real property”, made by a person who happened to be a landlord with a person who happened to be his tenant, and hence that it was an agreement not subject to the provisions of the Emergency Price Control Act of 1942, as amended. Section 302(f) of the Act, 50 U.S.C.A.Appendix, § 942(f), and likewise § 13(a) (6) of the Rent Regulation for Housing define “housing accomodations” as including not only buildings, structures or parts thereof rented or offered for rent for living or dwelling purposes, but also “all privileges, services, furnishings, furniture, and facilities connected with the use or occupancy of such property”, and there can be no doubt that the use of the oil burner was either a privilege, or else a furnishing or facility “connected with the use” of Suite No. 2. Nor can there be any doubt that the “first rent” charged for the suite, furnished, which under § 4(j) of the Rent Regulation established the maximum legal rent chargeable for it ufiless and until changed by.the Expediter, was $150 per month. This was the amount of the rent first agreed upon by the tenant and the defendant for the suite, furnished, and the agreement with respect to the rent for the suite, furnished and equipped with an oil burner, came later. Installation of the oil burner no doubt constituted an increase in the furnishings, equipment or services provided by the landlord to his tenant, and so provided a ground for application by the landlord to the Expediter for an upward adjustment of the rent pursuant to § 5(a) (3) of the Rent Regulation for Blousing. But installation of the burner did not justify the defendant in increasing the rent without authority from the Expediter. Cf. Thierry v. Gilbert, 1 Cir., 147 F.2d 603; Elma Realty Co. v. Woods, 1 Cir., 169 F.2d 172. The provisions of the Regulation are explicit and applying those provisions to the conceded facts the Expediter’s case is ¡established. The judgment of the District Court is set aside and the case is remanded to that court for further consistent proceedings. 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_procedur	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. UNITED STATES v. PRITCHARD. No. 1604. Circuit Court of Appeals, Tenth Circuit. March 24, 1938. Thomas E. Walsh, of Washington, D. C. (Summerfield S. Alexander, U. S. Atty., and R. T. McCluggage, Asst. U. S. Atty., both of Topeka, Kan., Julius C. Martin, Director, Bureau of War Risk Litigation, of Washington, D. C., Wilbur C. Pickett, Sp. Asst, to the Atty. Gen., and Young M. Smith, Atty., Department of Justice, of Washington, D. C., on the brief), for the United States. Claude I. Depew, of Wichita, Kan. (W. E. Stanley, of Wichita, Kan., and R. C. Russell, of Great Bend, Kan., on the brief), for appellee. Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges. PHILLIPS, Circuit Judge. From a judgment on a policy of war risk insurance in favor of Wayne Pritchard, guardian of Paul Pritchard, the United States has appealed. By its general verdict the jury necessarily found that Paul Pritchard, the insured, became permanently and totally disabled on or before January 31, 1919, when the policy would otherwise have lapsed for nonpayment of premiums. The sufficiency of the evidence to support that finding is the sole issue presented on this appeal. The evidence viewed in a light'most favorable to the plaintiff established these facts: Prior to the Great War insured lived with his parents in Great Bend, Kansas. His father was engaged in the laundry business and insured drove the delivery wagon, gathering and distributing laundry. Later his father engaged in the automobile and garage business. Insured worked in the shop, sold automobiles, and did general work. The father died in 1915 and thereafter insured and his brother continued the business; insured did most of the work in the shop and in addition demonstrated and sold some automobiles. Insured enlisted in the National Guard May 24, 1915. He was mustered into the Regular Army on August 5, 1917, and was honorably discharged on December 5, 1918.' On February 1, 1918, he applied for and was granted a policy of war risk insurance for $10,000.00. Prior to his entry'into the Army insured was good-natured and of a jovial and friendly disposition. For a time after he entered the Regular Army his disposition remained unchanged. He enjoyed going to dances and at times played in orchestras for dances near the camp where he was stationed. Later those who served with him noticed a change. He became sober and sullen and would have fits of anger which would last about five minutes and then pass. On one occasion without provocation he seized a chair and endeavored to strike a comrade with it. On another occasion he became angry with a comrade from Great Bend who was a close friend. He seemed reluctant to go to see his brother, who was also in the military service, and to do the things he had formerly enjoyed. Hi's mother visited him while he was in the service and observed that he was not natural; that he was quiet and sober. Upon his return from the Army his family noticed a marked change. He was sober and sullen. At times he would not speak to members of his family; would not respond to their questions and would pay no attention to their requests. He manifested nervousness, he would get up and then sit down, and walk around with his hands over his eyes. At other times he would stand in one position as if in a trance. He was ill-humored with his mother. Shortly after his return he showed one of his former comrades some drawings and stated that he was working on an invention of a gas engine with two pistons and one cylinder, one piston being inside the other, in an endeavor to secure higher compression. Sometime later he told this comrade he had been offered $50,000.00 for his invention. He became careless in his personal appearance; at times he would not shave, bathe, change his clothes, or take care of himself personally. Late in 1920 or early in 1921 he tried to take his own life with a razor. Shortly after his return insured met a business man of Great Bend with whom he had been well acquainted since 1908 and failed to recognize him. Since March, 1921, he has received almost continuous hospitalization. He was treated for a short time in a hospital at Halstead, Kansas; a short time in a hospital at Wichita, Kansas; and about a year in a hospital at Macon, Missouri. The physicians at the Halstead hospital advised insured’s mother they could not do anything for him. After leaving the hospital at Macon he returned home for a short time. He was quarrelsome with his family, would grab his mother and twist her arms and pinch her, would break up furniture and light globes, tear his clothes, refuse to eat his meals, or go to bed, and generally became unmanageable. After a few weeks of this conduct his mother requested the government to take care of him. He was first committed to the state hospital at Larned, Kansas; later he was transferred te a Veterans Hospital at Knoxville, I'owa; from there he was transferred to the Veterans Hospital at Fort Lyons, Colorado, where he has since been confined. On March 5, 1923, and June 11, 1923, after medical examinations by the Veterans Bureau, he was diagnosed as a dementia praecox paranoid type. Subsequent examinations have confirmed this diagnosis and his condition has grown gradually worse. During the first ten or twelve months after his discharge insured and his brother played in an orchestra at Great Bend. The orchestra consisted of three pieces and insured played the piano. The orchestra gave a regular dance on Saturday nights and occasionally played at other functions. They normally earned at each dance from seventy-five cents to a dollar and a half apiece. On one Halloween dance they earned eleven dollars apiece. In the latter part of 1919 or early in 1920 insured worked for a paving company as a mechanic repairing trucks. The employment was terminated at the end of a period of two or three months and insured was sent home in charge of a fellow employee. To overcome the foregoing facts with reference to insured’s mental condition, the government relies upon the fact that the certificate of the examining surgeon made on December 4, 1918, recited that he was physically and mentally sound, upon the work record above detailed, and upon statements made by Lizzie Pritchard, insured’s mother, in applications for insurance benefits. In a claim filed February 24, 1923, she stated: “Date disability began — Mar. 1921. total disability. Partial while in service. Cause of disability- — overwork driving trucks”; in an affidavit made May 24, 1926, she stated: “On or about Mar. 27, 1921 my son Paul E. Pritchard was suddenly stricken with a mental and nervous disability”; in a claim filed April 21, 1931, she stated: “Date disability began — March 1920. From what date is permanent and total disability claimed?- — -March, 1920”; and in a claim filed March 20, 1931, she stated: “Date disability began — Complete nervous breakdown occurred in Mar. 1920.” It is a well known fact that dementia praecox is incurable and results in total disability. It is also a well known fact that many persons of unsound mind are able to play musical instruments. Insured’s earnings as a musician were inconsequential and it is quite apparent that he was unable to hold a job as an automobile mechanic. The statements made by insured’s mother merely went to the weight and credibility of her evidence, and while proper for consideration of the jury were not conclusive. United States v. Worsley, 10 Cir., 72 F.2d 776, 779. The case is distinguishable from United' States v. Cochran, 10 Cir., 63 F.2d 61, 62, in that there was more than a predisposition to the mental disease at the time of discharge. It was a reasonable inference that the condition manifest during his service and at the time of his discharge and which has continuously grown worse was the beginning of the mental disease later diagnosed as dementia praecox. See Rackoff v. United States, 2 Cir., 74 F.2d 720; Gray v. United States, 8 Cir., 76 F.2d 233. In our opinion the proof fully warranted the jury in finding that the disease had its inception during the period of service and that on the date of discharge insured was mentally unsound and unable to follow continuously any substantially gainful occupation founded on conditions which indicated with reasonable certainty that such impairment would continue throughout his life. We conclude that the evidence presented an issue for the jury. The judgment is accordingly affirmed. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_casedisposition	E	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. PICKELSIMER v. WAINWRIGHT, CORRECTIONS DIRECTOR. No. 16, Misc. Decided October 14, 1963. Petitioners pro se. Richard W. Ervin, Attorney General of Florida, and A. G. Spicola, Jr., Assistant Attorney General, for respondent in No. 16, Misc., No. 60, Misc., and No. 70, Misc. Richard W. Ervin, Attorney General of Florida, and George R. Georgieff, Assistant Attorney General, for respondent in No. 36, Misc., No. 54, Misc., and No. 87, Misc. Richard W. Ervin, Attorney General of Florida, and James G. Mahorner, Assistant Attorney General, for respondent in No. 55, Misc., No. 62, Misc., No. 71, Misc., and No. 86, Misc. Together with No. 36, Misc., Mihelcich v. Wainwright, Corrections Director; No. 54, Misc., Cowan v. Wainwright, Corrections Director; No. 55, Misc., Dumond v. Wainwright, Corrections Director; No. 60, Misc., Sharp v. Wainwright, Corrections Director; No. 62, Misc., Baker v. Wainwright, Corrections Director; No. 70, Misc., Heard v. Wainwright, Corrections Director; No. 71, Misc., Campbell v. Wainwright, Corrections Director; No. 86, Misc., Mitchell v. Wainwright, Corrections Director; and No. 87, Misc., Kitchens v. Wainwright, Corrections Director, all on petitions for writs of certiorari to the Supreme Court of Florida. Per Curiam. The motions for leave to proceed in forma pauperis and the petitions for writs of certiorari are granted. The judgments are vacated and the cases ate remanded to the Supreme Court of Florida for further consideration in light of Gideon v. Wainwright, 372 U. S. 335. 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_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. NORTH CAROLINA et al. v. PEARCE. No. 413. Argued February 24, 1969. Decided June 23, 1969. Andrew A. Vanore, Jr., argued the cause for petitioners in No. 413. With him on the brief was Thomas Wade Bruton, Attorney General of North Carolina, joined in and adopted by the Attorneys General for their respective States as follows: MacDonald Gal-lion of Alabama, David P. Buckson of Delaware, John B. Breckinridge of Kentucky, Jack P. F. Gremillion of Louisiana, James S. Erwin of Maine, Joe T. Patterson of Mississippi, Forrest H. Anderson of Montana, Clarence A. H. Meyer of Nebraska, Arthur J. Sills of New Jersey, William C. Sennett of Pennsylvania, Herbert F. De-Simone of Rhode Island, Daniel R. McLeod of South Carolina, George F. McCanless of Tennessee, Crawford C. Martin of Texas, Bronson C. LaFollette of Wisconsin, and James E. Barrett of Wyoming; and Paul J. Abbate, Attorney General, for the Territory of Guam. Paul T. Gish, Jr., Assistant Attorney General of Alabama, argued the cause for petitioner in No. 418. With him on the brief was MacDonald Gallion, Attorney General. Larry B. Sitton, by appointment of the Court, 393 U. S. 973, argued the cause and filed a brief for respondent in No. 413. Thomas S. Lawson, Jr., argued the cause for respondent in No. 418. With him on the brief was Oakley Melton, Jr., by appointment of the Court, 393 U. S. 1010. Robert C. Londerholm, Attorney General, and Edward G. Collister, Jr., Assistant Attorney General, filed a brief for the State of Kansas as amicus curiae in No. 413. William W. Van Alstyne and Melvin L. Wulf filed a brief for the American Civil Liberties Union et al. as amici curiae in both cases. Together with No. 418, Simpson, Warden v. Rice, on certiorari to the United States Court of Appeals for the Fifth Circuit. Mr. Justice Stewart delivered the opinion of the Court. When at the behest of the defendant a criminal conviction has been set aside and a new trial ordered, to what extent does the Constitution limit the imposition of a harsher sentence after conviction upon retrial? That is the question presented by these two cases. In No. 413 the respondent Pearce was convicted in a North Carolina court upon a charge of assault with intent to commit rape. The trial judge sentenced him to prison for a term of 12 to 15 years. Several years later he initiated a state post-conviction proceeding which culminated in the reversal of his conviction by the Supreme Court of North Carolina, upon the ground that an involuntary confession had unconstitutionally been admitted in evidence against him, 266 N. C. 234, 145 S. E. 2d 918. He was retried, convicted, and sentenced by the trial judge to an eight-year prison term, which, when added to the time Pearce had already spent in prison, the parties agree amounted to a longer total sentence than that originally imposed. The conviction and sentence were affirmed on appeal. 268 N. C. 707, 151 S. E. 2d 571. Pearce then began this habeas corpus proceeding in the United States District Court for the Eastern District of North Carolina. That court held, upon the authority of a then very recent Fourth Circuit decision, Patton v. North Carolina, 381 F. 2d 636, cert. denied, 390 U. S. 905, that the longer sentence imposed upon retrial was “unconstitutional and void.” Upon the failure of the state court to resentence Pearce within 60 days, the federal court ordered his release. This order was affirmed by the United States Court of Appeals for the Fourth Circuit, 397 F. 2d 253, in a brief per curiam judgment citing its Patton decision, and we granted certiorari. 393 U. S. 922. In No. 418 the respondent Rice pleaded guilty in an Alabama trial court to four separate charges of second-degree burglary. He was sentenced to prison terms aggregating 10 years. Two and one-half years later the judgments were set aside in a state coram nobis proceeding, upon the ground that Rice had not been accorded his constitutional right to counsel. See Gideon v. Wainwright, 372 U. S. 335. He was retried upon three of the charges, convicted, and sentenced to prison terms aggregating 25 years. No credit was given for the time he had spent in prison on the original judgments. He then brought this habeas corpus proceeding in the United States District Court for the Middle District of Alabama, alleging that the state trial court had acted unconstitutionally in failing to give him credit for the time he had already served in prison, and in imposing grossly harsher sentences upon retrial. United States District Judge Frank M. Johnson, Jr., agreed with both contentions. While stating that he did “not believe that it is constitutionally impermissible to impose a harsher sentence upon retrial if there is recorded in the court record some legal justification for it,” Judge Johnson found that Rice had been denied due process of law, because “[ujnder the evidence in this case, the conclusion is inescapable that the State of Alabama is punishing petitioner Rice for his having exercised his post-conviction right of review and for having the original sentences declared unconstitutional.” 274 F. Supp. 116, 121, 122. The judgment of the District Court was affirmed by the United States Court of Appeals for the Fifth Circuit, “on the basis of Judge Johnson’s opinion,” 396 F. 2d 499, 500, and we granted certiorari. 393 U. S. 932. The problem before us involves two related but analytically separate issues. One concerns the constitutional limitations upon the imposition of a more severe punishment after conviction for the same offense upon retrial. The other is the more limited question whether, in computing the new sentence, the Constitution requires that credit must be given for that part of the original sentence already served. The second question is not presented in Pearce, for in North Carolina it appears to be the law that a defendant must be given full credit for all time served under the previous sentence. State v. Stafford, 274 N. C. 519, 164 S. E. 2d 371; State v. Paige, 272 N. C. 417, 158 S. E. 2d 522; State v. Weaver, 264 N. C. 681, 142 S. E. 2d 633. In any event, Pearce was given such credit. Alabama law, however, seems to reflect a different view. Aaron v. State, 43 Ala. App. 450, 192 So. 2d 456; Ex parte Merkes, 43 Ala. App. 640, 198 So. 2d 789. And respondent Rice, upon being re-sentenced, was given no credit at all for the two and one-half years he had already spent in prison. We turn first to the more limited aspect of the question before us — whether the Constitution requires that, in computing the sentence imposed after conviction upon retrial, credit must be given for time served under the original sentence. We then consider the broader question of what constitutional limitations there may be upon the imposition of a more severe sentence after reconviction. I. The Court has held today, in Benton v. Maryland, post, p. 784, that the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. That guarantee has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. This last protection is what is necessarily implicated in any consideration of the question whether, in the imposition of sentence for the same offense after retrial, the Constitution requires that credit must be given for punishment already endured. The Court stated the controlling constitutional principle almost 100 years ago, in the landmark case of Ex parte Lange, 18 Wall. 163, 168: “If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And . . . there has never been any doubt of [this rule’s] entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory-offence. . . [T]he Constitution was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried for it.” Id., at 173. We think it is clear that this basic constitutional guarantee is violated when punishment already exacted for an offense is not fully “credited” in imposing sentence upon a new conviction for the same offense. The constitutional violation is flagrantly apparent in a case involving the imposition of a maximum sentence after reconviction. Suppose, for example, in a jurisdiction where the maximum allowable sentence for larceny is 10 years’ imprisonment, a man succeeds in getting his larceny conviction set aside after serving three years in prison. If, upon reconvietion, he is given a 10-year sentence, then, quite clearly, he will have received multiple punishments for the same offense. For he will have been compelled to serve separate prison terms of three years and 10 years, although the maximum single punishment for the offense is 10 years’ imprisonment. Though not so dramatically evident, the same principle obviously holds true whenever punishment already endured is not fully subtracted from any new sentence imposed. We hold that the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully “credited” in imposing sentence upon a new conviction for the same offense. If, upon a new trial, the defendant is acquitted, there is no way the years he spent in prison can be returned to him. But if he is reconvicted, those years can and must be returned — by subtracting them from whatever new sentence is imposed. II. To hold that the second sentence must be reduced by the time served under the first is, however, to give but a partial answer to the question before us. We turn, therefore, to consideration of the broader problem of what constitutional limitations there may be upon the general power of a judge to impose upon reconviction a longer prison sentence than the defendant originally received. A. Long-established constitutional doctrine makes clear that, beyond the requirement already discussed, the guarantee against double jeopardy imposes no restrictions upon the length of a sentence imposed upon recon-viction. At least since 1896, when United States v. Ball, 163 U. S. 662, was decided, it has been settled that this constitutional guarantee imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside. “The principle that this provision does not preclude the Government’s retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence.” United States v. Tateo, 377 U. S. 463, 465. And at least since 1919, when Stroud v. United States, 251 U. S. 15, was decided, it has been settled that a corollary of the power to retry a defendant is the power, upon the defendant’s reconviction, to impose whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction. “That a defendant’s conviction is overturned on collateral rather than direct attack is irrelevant for these purposes, see Robinson v. United States, 144 F. 2d 392, 396, 397, aff’d on another ground, 324 U. S. 282.” United States v. Tateo, supra, at 466. Although the rationale for this “well-established part of our constitutional jurisprudence” has been variously verbalized, it rests ultimately upon the premise that the original conviction has, at the defendant’s behest, been wholly nullified and the slate wiped clean. As to whatever punishment has actually been suffered under the first conviction, that premise is, of course, an unmitigated fiction, as we have recognized in Part I of this opinion. But, so far as the conviction itself goes, and that part of the sentence that has not yet been served, it is no more than a simple statement of fact to say that the slate has been wiped clean. The conviction has been set aside, and the unexpired portion of the original sentence will never be served. A new trial may result in an acquittal. But if it does result in a conviction, we cannot say that the constitutional guarantee against double jeopardy of its own weight restricts the imposition of an otherwise lawful single punishment for the offense in question. To hold to the contrary would be to cast doubt upon the whole validity of the basic principle enunciated in United States v. Ball, supra, and upon the unbroken line of decisions that have followed that principle for almost 75 years. We think those decisions are entirely sound, and we decline to depart from the concept they reflect. B. The other argument advanced in support of the proposition that the Constitution absolutely forbids the imposition of a more severe sentence upon retrial is grounded upon the Equal Protection Clause of the Fourteenth Amendment. The theory advanced is that, since convicts who do not seek new trials cannot have their sentences increased, it creates an invidious classification to impose that risk only upon those who succeed in getting their original convictions set aside. The argument, while not lacking in ingenuity, cannot withstand close examination. In the first place, we deal here, not with increases in existing sentences, but with the imposition of wholly new sentences after wholly new trials. Putting that conceptual nicety to one side, however, the problem before us simply cannot be rationally dealt with in terms of “classifications.” A man who is retried after his first conviction has been set aside may be acquitted. If convicted, he may receive a shorter sentence, he may receive the same sentence, or he may receive a longer sentence than the one originally imposed. The result may depend upon a particular combination of infinite variables peculiar to each individual trial. It simply cannot be said that a State has invidiously “classified” those who successfully seek new trials, any more than that the State has invidiously “classified” those prisoners whose convictions are not set aside by denying the members of that group the opportunity to be acquitted. To fit the problem of this case into an equal protection framework is a task too Procrustean to be rationally accomplished. C. We hold, therefore, that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon recon-viction. A trial judge is not constitutionally precluded, in other words, from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant’s “life, health, habits, conduct, and mental and moral propensities.” Williams v. New York, 337 U. S. 241, 245. Such information may come to the judge’s attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant’s prison record, or possibly from other sources. The freedom of a sentencing judge to consider the defendant’s conduct subsequent to the first conviction in imposing a new sentence is no more than consonant with the principle, fully approved in Williams v. New York, supra, that a State may adopt the “prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime.” Id., at 247. To say that there exists no absolute constitutional bar to the imposition of a more severe sentence upon retrial is not, however, to end the inquiry. There remains for consideration the impact of the Due Process Clause of the Fourteenth Amendment. It can hardly be doubted that it would be a flagrant violation of the Fourteenth Amendment for a state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside. Where, as in each of the cases before us, the original conviction has been set aside because of a constitutional error, the imposition of such a punishment, “penalizing those who choose to exercise” constitutional rights, “would be patently unconstitutional.” United States v. Jackson, 390 U. S. 570, 581. And the very threat inherent in the existence of such a punitive policy would, with respect to those still in prison, serve to “chill the exercise of basic constitutional rights.” Id., at 582. See also Griffin v. California, 380 U. S. 609; cf. Johnson v. Avery, 393 U. S. 483. But even if the first conviction has been set aside for nonconstitutional error, the imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be no less a violation of due process of law. “A new sentence, with enhanced punishment, based upon such a reason, would be a flagrant violation of the rights of the defendant.” Nichols v. United States, 106 F. 672, 679. A court is “without right to . . . put a price on an appeal. A defendant’s exercise of a right of appeal must be free and unfettered. . . . [I]t is unfair to use the great power given to the court to determine sentence to place a defendant in the dilemma of making an unfree choice.” Worcester v. Commissioner, 370 F. 2d 713, 718. See Short v. United States, 120 U. S. App. D. C. 165, 167, 344 F. 2d 550, 552. “This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts. Griffin v. Illinois, 351 U. S. 12; Douglas v. California, 372 U. S. 353; Lane v. Brown, 372 U. S. 477; Draper v. Washington, 372 U. S. 487.” Rinaldi v. Yeager, 384 U. S. 305, 310-311. Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge. In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal. We dispose of the two cases before us in the light of these conclusions. In No. 418 Judge Johnson noted that “the State of Alabama offers no evidence attempting to justify the increase in Rice’s original sentences . . . .” 274 F. Supp., at 121. He found it “shocking that the State of Alabama has not attempted to explain or justify the increase in Rice’s punishment — in these three cases, over threefold.” Id., at 121-122. And he found that “the conclusion is inescapable that the State of Alabama is punishing petitioner Rice for his having exercised his post-conviction right of review . . . .” Id., at 122. In No. 413 the situation is not so dramatically clear. Nonetheless, the fact remains that neither at the time the increased sentence was imposed upon Pearce, nor at any stage in this habeas corpus proceeding, has the State offered any reason or justification for that sentence beyond the naked power to impose it. We conclude that in each of the cases before us, the judgment should be affirmed. It is so ordered. The approximate expiration date of the original sentence, assuming all allowances of time for good behavior, was November 13,1969. The approximate expiration date of the new sentence, assuming all allowances of time for good behavior, was October 10, 1972. In Patton, the Court of Appeals for the Fourth Circuit had held that “increasing Patton’s punishment after the reversal of his initial conviction constitutes a violation of his Fourteenth Amendment rights in that it exacted an unconstitutional condition to the exercise of his right to a fair trial, arbitrarily denied him the equal protection of the law, and placed him twice in jeopardy of punishment for the same offense.” 381 F. 2d, at 646. He was sentenced to four years in prison upon the first count, and two years upon each of the other three counts, the sentences to be served consecutively. He was sentenced to a prison term of 10 years on the first count, 10 years on the second count, and five years on the fourth count, the sentences to be served consecutively. The third count was dropped upon motion of the prosecution, apparently because the chief witness for the prosecution had left the State. The United States Courts of Appeals have reached conflicting results in dealing with the basic problem here presented. In addition to the Fourth and Fifth Circuit decisions here under review, see Marano v. United States, 374 F. 2d 583 (C. A. 1st Cir.); United States v. Coke, 404 F. 2d 836 (C. A. 2d Cir.); Starner v. Russell, 378 F. 2d 808 (C. A. 3d Cir.); United States v. White, 382 F. 2d 445 (C. A. 7th Cir.); Walsh v. United States, 374 F. 2d 421 (C. A. 9th Cir.); Newman v. Rodriguez, 375 F. 2d 712 (C. A. 10th Cir.). The state courts have also been far from unanimous. Although most of the States seem either not to have considered the problem, or to have imposed only the generally applicable statutory' limits upon sentences after retrial, a few States have prohibited more severe sentences upon retrial than were imposed at the original trial. See People v. Henderson, 60 Cal. 2d 482, 386 P. 2d 677; People v. Ali, 66 Cal. 2d 277, 424 P. 2d 932; State v. Turner, 247 Ore. 301, 429 P. 2d 565; State v. Wolf, 46 N. J. 301, 216 A. 2d 586; State v. Leonard, 39 Wis. 2d 461, 159 N. W. 2d 577. “THE COURT: It is the intention of this Court to give the defendant a sentence of fifteen years in the State Prison; however, it appears to the Court from the records available from the Prison Department that the defendant has served 6 years, 6 months and 17 days flat and gain time combined, and the Court in passing sentence in this case is taking into consideration the time already served by the defendant. IT IS THE JUDGMENT of this Court that the defendant be confined to the State’s Prison for a period of eight years.” A recent opinion of the Supreme Court of Alabama indicates that state law does require credit for time served under the original sentence at least to the extent that the total period of imprisonment would otherwise exceed the absolute statutory maximum that could be imposed for the offense in question. “Without such credit defendant would be serving time beyond the maximum fixed by law for the offense . . . charged in the indictment.” Goolsby v. State, 283 Ala. 269, 215 So. 2d 602. See Note, Twice in Jeopardy, 75 Yale L. J. 262, 265-266 (1965). United States v. Ball, 163 U. S. 662; Green v. United States, 355 U. S. 184. In re Nielsen, 131 U. S. 176. Ex parte Lange, 18 Wall. 163; United States v. Benz, 282 U. S. 304, 307; United States v. Sacco, 367 F. 2d 368; United States v. Adams, 362 F. 2d 210; Kennedy v. United States, 330 F. 2d 26. We have spoken in terms of imprisonment, but the same rule would be equally applicable where a fine had been actually paid upon the first conviction. Any new fine imposed upon reconviction would have to be decreased by the amount previously paid. Such credit must, of course, include the time credited during service of the first prison sentence for good behavior, etc. In most situations, even when time served under the original sentence is fully taken into account, a judge can still sentence a defendant to a longer term in prison than was originally imposed. That is true with respect to both cases before us. In the Pearce case, credit for time previously served was given. See n. 6, supra. In the Rice case credit for the two and one-half years served was not given, but even if it had been, the sentencing judge could have reached the same result that he did reach simply by sentencing Rice to 27% years in prison. That would have been permissible under Alabama law, since Rice was convicted of three counts of second-degree burglary, and on each count a maximum sentence of 10 years’ imprisonment could have been imposed. Ala. Code, Tit. 14, § 86 (1958). See, e. g., Stroud v. United States, 251 U. S. 15; Bryan v. United States, 338 U. S. 552; Forman v. United States, 361 U. S. 416; United States v. Tateo, 377 U. S. 463. In Stroud the defendant was convicted of. first-degree murder and sentenced to life imprisonment. After reversal of this conviction, the defendant was retried, reconvicted of the same offense, and sentenced to death. This Court upheld the conviction against the defendant’s claim that his constitutional right not to be twice put in jeopardy had been violated. See also Murphy v. Massachusetts, 177 U. S. 155; Robinson v. United States, 324 U. S. 282, affirming 144 F. 2d 392. The Court’s decision in Green v. United States, 355 U. S. 184, is of no applicability to the present problem. The Green decision was based upon the double jeopardy provision’s guarantee against retrial for an offense of which the defendant was acquitted. Cf. King v. United States, 69 App. D. C. 10, 12-13, 98 F. 2d 291, 293-294: “The Government’s brief suggests, in the vein of The Mikado, that because the first sentence was void appellant 'has served no sentence but has merely spent time in the penitentiary;’ that since he should not have been imprisoned as he was, he was not imprisoned at all.” “While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants' rights as well as society’s interest.” United States v. Tateo, 377 U. S. 463, 466. See Van Alstyne, In Gideon’s Wake: Harsher Penalties and the “Successful” Criminal Appellant, 74 Yale L. J. 606 (1965); Note, Unconstitutional Conditions, 73 Harv. L. Rev. 1595 (1960). The existence of a retaliatory motivation would, of course, be extremely difficult to prove in any individual case. But data have been collected to show that increased sentences on reconviction are far from rare. See Note, Constitutional Law: Increased Sentence and Denial of Credit on Retrial Sustained Under Traditional Waiver Theory, 1965 Duke L. J. 395. A touching bit of evidence showing the fear of such a vindictive policy was noted by the trial judge in Patton v. North Carolina, 256 F. Supp. 225, who quoted a letter he had recently received from a prisoner: “Dear Sir: “I am in the Mecklenburg County jail. Mr. - chose to re-try me as I knew he would. “Sir the other defendant in this case was set free after serving 15 months of his sentence, I have served 34 months and now I am to be tried again and with all probility I will receive a heavier sentence then before as you know sir my sentence at the first trile was 20 to 30 years. I know it is usuelly the courts prosedure to give a larger sentence when a new trile is granted I guess this is to discourage Petitioners. “Your Honor, I don’t want a new trile I am afraid of more time .... “Your Honor, I know you have tried to help me and God knows I apreeeate this but please sir don’t let the state re-try me if there is any way you can prevent it.” “Very truly yours” Id,., at 231, n. 7. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable 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. UNITED STATES of America, Plaintiff-Appellee, v. Anthony John ROMANELLO, Victor Antonio Mendez and Gerald Thomas Vertucci, Defendants-Appellants. No. 83-2206. United States Court of Appeals, Fifth Circuit. Feb. 17, 1984. Rehearing and Rehearing En Banc Denied April 18,1984. Ramsey Clark, Lawrence W. Schilling, New York City, Harold Borg, Kew Gardens, N.Y., for Romanello and Mendez. William W. Burge, Houston, Tex., for Vertucci. James R. Gough, Ronald G. Woods, Asst. U.S. Attys., Houston, Tex., for plaintiff-ap-pellee. Before GOLDBERG, GEE and TATE, Circuit Judges. GOLDBERG, Circuit Judge: ... I saw a lizard come darting forward on six great taloned feet and fasten itself to a [fellow soul].... [T]hey fused like hot wax, and their colors ran together until neither wretch nor monster appeared what he had been when he began .... The joint trial of conspiracy defendants was originally deemed useful to prove that the parties planned their crimes together. However, it has become a powerful tool for the government to prove substantive crimes and to cast guilt upon a host of co-defendants. In this case, we are concerned with the specific prejudice that results when defendants become weapons against each other, clawing into each other with antagonistic defenses. Like the wretches in Dante’s hell, they may become entangled and ultimately fuse together in the eyes of the jury, so that neither defense is believed and all defendants are convicted. Under such circumstances, the trial judge abuses its discretion in failing to sever the trials of the co-defendants. Today we hold that the defense of Gerald Vertucci was antagonistic to the defenses of Anthony Romanello and Victor Mendez and that Vertucci should have been severed from his co-defendants. I. FACTS On December 3, 1981, Italian citizens Marcello Farneda and Giuseppi Longhin arrived at the Houston airport, carrying suitcases containing .gold chains. Farneda and Longhin were en route from Italy to Mexico. Vertucci, an employee of Air France, met Farneda and Longhin in the Customs area of the terminal. After a Customs inspection, Farneda and Longhin gave their bags to Vertucci for storage until they left for Mexico the next day (Dec. 4). Vertucci placed the bags in the Air France storeroom. At approximately 6:30 that night (Dec. 3), Vertucci asked an Air France manager to open the storeroom. Vertucci removed the bags and loaded them into a van parked outside the terminal. Vertucci drove off. Later at trial, Vertucci’s counsel would argue that Vertucci was transferring the gold to another terminal from which Longhin and Farneda planned to depart the next day. The government would argue that Vertucci was removing the gold from the airport permanently; At approximately 2:00 a.m. on December 4,1981, one Kenneth Ellis was awakened by his dogs. He discovered Vertucci handcuffed to a light pole at the end of Ellis’ driveway. Ellis lived in Chambers County, Texas, approximately 50 minutes by car from Houston airport. Ellis freed Vertucci. In subsequent statements to police officials, Vertucci maintained that he had been robbed of the gold. According to his story, one man holding a gun accosted him while he was loading the gold into the van at the Air France terminal. The gunman ordered him into the van and directed him to drive away. The gunman was joined by a second man at a nearby motel parking lot. They loaded the gold into an automobile and drove off with the captive Vertucci. As they entered the automobile, Vertucci looked at the license plate but could not read it because it was bent. A short time later, the driver stopped and got out of the car, and Vertucci heard a banging noise as if the license plate were being straightened. Vertucci described the automobile as having a light-colored exterior and a dark interior. It was a large four-door, maybe a Chevrolet, about four or five years old. It had a radar detector. According to Vertucci’s statements he was driven out to Chambers County, and handcuffed to the light pole. The gunman held his weapon against Vertucci’s head, and clicked the hammer; then he punched Vertucci three times in the head. The gunman told Vertucci that if he described his assailants they would return and kill him and his family. The assailants then drove off in their car. Despite the threat, Vertucci described the two men to the police. He described the gunman as a white male, 5'6" to 5'7", 140 to 150 pounds, with a youngish face. The man was clean shaven with short, black, combed-back hair. He had large, brown eyes and a medium-to-olive complexion. He was wearing a leather jacket and a pullover shirt. Vertucci described the second man as a white male, about 30 years old, six feet tall, weighing approximately 210 pounds. He had short black hair, combed back into a kind of “close Afro.” He was clean-shaven and had no sideburns. He had dark eyes and wore jeans and a long-sleeved polo shirt. He was bigger and had a lighter complexion than the gunman. On December 5, 1981, Nick Theodos of the New Jersey State Patrol stopped a vehicle for speeding on the New Jersey Turnpike. Mendez was driving and Romanello was asleep in the back. Mendez invited Officer Theodos to search the car, and the trooper discovered two packages containing gold chains. . Officer Theodos arrested Mendez and Romanello. A subsequent investigation revealed that the gold was the same as that which Longhin and Farneda had brought into the Houston airport. At trial Officer Theodos described the car as a two-toned, blue 1977 Chevrolet with four doors. It had a radar detector and a bent license plate. Officer Theodos did not describe Romanello and Mendez who were present at trial. During the investigation of Romanello and Mendez, John Hensely (one of the agents who had questioned Vertucci) determined that Vertucci’s description of his assailants and their vehicle matched Romanel-lo and Mendez and their automobile. However, Vertucci was not able to pick their photographs out of a line-up. On December 18, Romanello and Mendez were indicted by Texas state authorities for the offenses of aggravated kidnapping and robbery of Vertucci. On February 10,1982, the state charges were dismissed. On March 29, 1982, Romanello, Mendez and Vertucci were all indicted in four felony counts by a federal grand jury. The counts were: 1. stealing jewelry in violation of 18 U.S.C. §§ 659 and 2; 2. importing jewelry into the United States in violation of 18 U.S.C. §§ 542 and 2; 3. transporting stolen goods in interstate commerce in violation of 18 U.S.C. §§ 2314 and 2; 4. conspiring to commit the offenses described in counts 1-3 as well as to obstruct justice in violation of 18 U.S.C. § 371. The government’s theory was that all three defendants participated in the conspiracy and performed various acts in furthering the planned crimes. Vertucci allegedly took the gold from the airport; then he was handcuffed to a pole in order to create the appearance of a robbery. His description of his “assailants” was accordingly partly accurate and partly vague. Accuracy on some points would help him remember details and appear consistent before the police; vagueness on other points would prevent the police from actually catching his co-conspirators. According to the government, Romanello and Mendez were to carry out the next stage of the theft, transporting the gold to New York. However, they were stopped by Officer Theodos before they reached their destination. II. PROCEEDINGS BELOW The three defendants were tried together before a jury in the United States District Court for the Southern District of Texas. The defendants filed pretrial motions and supplemental motions for severance pursuant to Fed.Rule Crim.Proc. 14. They alleged, inter alia, that their defenses were antagonistic and that joinder would have the effect of denying them a fair trial. The parties argued the issue before the trial court, and during the trial, he entered an order denying the motion. He held that Vertucci’s defense was not sufficiently in conflict with the defenses of Romanello and Mendez to justify severance: At the core of Vertucci’s defense of robbery and kidnapping lies his contention that he was not involved in the criminal conspiracy and that he lacked the requisite criminal intent. Mendez and Roma-nello’s claim of noninvolvement and lack of criminal intent is more apparent from their defense that they were not present at the airport at any of the relevant times and that they had no clue that the gold they attempted to transport to New York was stolen. Neither camp’s defense requires the jury to find the other guilty. Although Vertucci gave the authorities descriptions of his assailants which bear a resemblance to his co-defendants, he has never accused or identified them as being his attackers. In sum, the Court concludes that the joint trial of defendants Romanello, Mendez and Vertucci has not, to date, denied them a fair trial. Trial Record, Vol. I, 75-76. The' judge’s conclusions partly reflect Vertucci’s failure to take the witness stand at trial and specifically point the finger at his co-defendants. The joint trial proceeded. At the close of the evidence, the jury returned verdicts of guilty on all counts against all defendants. Vertucci was sentenced to seven years imprisonment. Romanello and Mendez were sentenced to ten years imprisonment. This appeal follows. III. DISCUSSION The Rule 14 issues comprise only a small cluster within a greater galaxy of legal claims. Given our resolution of the sever-anee claim, however, we need not explore those other astral regions. Our universe is limited to the Rule 14 question. A. Requirements for Severance The Fifth Circuit has developed a fairly consistent litany of tests for determining whether severance is required in the “antagonistic defense” situations. This case involves a unique application of these tests, however, and raises some novel legal questions. The hornbook rules can be found in United States v. Crawford, 581 F.2d 482 (5th Cir.1978), and United States v. Berkowitz, 662 F.2d 1127 (5th Cir. Unit B, 1981). See also United States v. Sheikh, 654 F.2d 1057 (5th Cir.1981); United States v. Johnson, 478 F.2d 1129 (5th Cir.1973). Persons indicted together should ordinarily be tried together. Rule 14, however, provides an exception to this general rule: If it appears that a defendant ... is prejudiced by a joinder of ... defendants ... for trial together, the court may grant a severance of defendants or provide whatever other relief justice requires. Fed.R.Crim.Proc. 14; see Crawford, supra, 581 F.2d at 491. The decision whether to sever defendants lies within the discretion of the trial court. The court’s decision should not be overturned absent an abuse of discretion. Id.; Berkowitz, supra, 662 F.2d at 1132. In order to establish an abuse of discretion, a defendant must show that he received an unfair trial and suffered compelling prejudice against which the trial court was unable to afford protection. Id. When co-defendants have antagonistic defenses, the courts have applied very specific tests to determine whether the trial was unfair. To compel severance the defenses must be antagonistic to the point of being irreconcilable and mutually exclusive. Berkowitz, 662 F.2d at 1133; Crawford, 581 F.2d at 491. The essence or core of the defenses must be in conflict, such that the jury, in order to believe the core of one defense, must necessarily disbelieve’ the core of the other. Berkowitz, 662 F.2d at 1134, Sheikh, 654 F.2d at 1065. Such compelling prejudice does not arise where the conflict concerns only minor or peripheral matters which are not at the core of the defense. B. Irreconcilability and Mutual Exclusivity of the Defenses We hold that the core of Vertucci’s defense at trial was sufficiently antagonistic to the core of the defenses of Romanello and Mendez. Vertucci claimed, through his counsel, that Romanello and Mendez had robbed him. The core of his defense was that they had taken the gold from him at gunpoint, and, therefore, he had an excuse for the gold’s disappearance. Romanello and Mendez offered the defense that they had not stolen the gold but had innocently accepted a job to drive it to New York. In line with this, they argued that Vertucci’s story was a lie invented by the real gold smugglers. Obviously these defenses are irreconcilable and mutually exclusive. If the jury believed that Romanello and Mendez robbed Vertucci, then it could not believe that they were innocent shippers. On the other hand, if the jury believed their defense, then they could not have robbed Vertucci, and his defense would cave in. It is not necessary for each defendant to base the core of his defense on the direct accusation of his co-defendant. Severance may be required if only one defendant accuses the other, and the other denies any involvement. For example, in United States v. Johnson, supra, two defenses were held to be “completely contradictory]” though only one defendant (Smith) had incriminated his co-defendant (Johnson). 478 F.2d at 1132. The government had charged both Smith and Johnson with passing counterfeit money. Smith’s defense at trial was that he was a government informer whose only purpose was to help the police apprehend Johnson. Johnson’s sole defense was that he had “played no part in the crime and was not present when it was committed.” Id. Johnson never accused Smith; yet this Court held that “the theory of Smith’s defense was directly in conflict with Johnson’s.” Id. at 1132-33. The trials of the co-defendants should have been severed; therefore, Johnson’s conviction was reversed. Id. In the same way, there is an irreconcilable conflict between the defenses in our case. Johnson provides clear precedent for reversing the convictions of Romanello and Mendez; and, as we shall discuss' later, Vertucci too should be retried. 1. Accusation by Vertucci’s Counsel The government argues, however, that even the convictions of Romanello and Mendez should be affirmed because Vertucci himself never identified them as his attackers. The trial court had relied on this point in holding that the various defenses were not mutually exclusive: Neither camp’s defense requires the jury to hold the other guilty. Although Ver-tucci gave the authorities descriptions of his assailants which bear a resemblance to his co-defendants, he has never accused or identified them as being his attackers. Trial Record, Vol I., 76-77. We disagree, however, with the underlying premise that Romanello and Mendez could not be identified if Vertucci himself did not do it. On the contrary, we hold that Vertucci’s counsel made the specific accusation, and that under the circumstances of this case an accusation by counsel is sufficient to create an antagonistic defense. In his opening statement to the jury, Vertuc-ci’s lawyer (Mr. Burge) declared: [Vertucci] described his assailants. He described their vehicle. Less than two days after that, two men are arrested in New Jersey. They are stopped in New Jersey for a traffic offense, and the gold that was stolen from Gerald Vertucci was in their car. The descriptions, when Gerald Vertucci was talking to the authorities, of the vehicle matched, and based on those descriptions that Gerald Vertucci gave in cooperating with the authorities, the state Grand Jury indicted Romanello and Mendez for aggravated robbery and aggravated kidnapping of Gerald Vertucci. So I ask you, as you listen to the evidence, listen closely; listen closely. Don’t lump Gerald Vertucci in with the two men sitting across the table from him. Listen to the evidence as to Gerald Ver-tucci and separate him and listen to the evidence. He doesn’t have any choice but to be sitting in this courtroom today, but don’t lump him in with the other two. Trial Record, Vol. IX, 30, 32-33. Throughout the trial, counsellor Burge reminded the jury that the state had indicted Romanello and Mendez for robbing and kidnapping his client, see, e.g., id., Vol. XIII, 23 (cross examination of John Hensely), Vol. V, 80 (cross examination of Officer Theodos); Vol. XV, 120 (closing argument); and that Vertucci had accurately described his assailants, id., Vol. XII, 76-79 (cross examination of Officer Theodos to show that Mendez’s car matched Vertucci’s description), Vol. VIII, 23 (cross examination of John Hensely), Vol. XV, 133 (closing argument). An accusation by counsel can state the core of his client’s defense and cast blame on the co-defendant. As Judge Tate stated for the majority in United States v. Sheikh: The taking of an adversarial stance on the part of counsel for co-defendants may generate trial conditions so prejudicial to the co-defendant under multiple attack [i.e., by the government and his co-defendant’s lawyer] as to deny him a fair trial. 654 F.2d at 1066. We think those conditions existed in this case. The core of Ver-tucci’s defense, as pressed by counsel, was that Romanello and Mendez had robbed him. The two defense camps were antagonistic. To be sure, there was a theoretical possibility that the jury might acquit all defendants in the belief that Vertucci was robbed but that his counsel identified the wrong culprits. However, that possibility also exists in cases where a defendant identifies his codefendant. In both situations, the jury must weigh conflicting evidence and always has the option of acquitting every defendant. The real question for a court in considering a severance motion is not how convincing a defendant’s evidence is, but whether the core of his defense directly implicates the co-defendant. We believe that the core of Vertucci’s defense directly accused Romanello and Mendez. Moreover, that accusation was substantiated when the government introduced Ver-tucci’s description of his assailants and argued that the description accurately matched Romanello and Mendez. See Trial Record, Vol. XV, 89. As a practical matter, the arguments by counsellor Burge as well as the government identified Romanello and Mendez as Vertucci’s alleged assailants. We hold that the defense of Vertucci was mutually exclusive of and irreconcilable with the defenses of Romanello and Mendez. To reach a different conclusion would put defendants like Romanello and Mendez in an impossible position. They would suffer compelling prejudice because of the accusation by a co-defendant’s lawyer, but their hope for severance would be dashed because their co-defendant refused to testify. C. Prejudice to Romanello and Mendez The prejudice to Romanello and Mendez was clear in the present case. As we have-seen, they faced an extra prosecutor in the guise of Vertucci’s counsel. See United States v. Sheikh, supra, 654 F.2d at 1066; cf. United States v. Johnson, supra, 478 F.2d at 1132-33. In cross-examination of government witnesses, attorney Burge showed that his client’s description matched Romanello and Mendez in details that the government had neglected to mention. See Trial Record, Vol. XII, 76-79,141. In addition, Burge constantly reminded the jury of the state charges against the co-defendants. Even the government objected to this testimony. Id. at 80-81. Finally, Vertucci’s defense depicted Romanello and Mendez as violent thugs who threatened to kill him if he testified. The totality of these accusations was-truly prejudicial. Romanello and Mendez did not receive a fair trial. D. Prejudice to Vertucci Whether Vertucci suffered sufficient prejudice to deserve a new trial is a more complicated issue. Since Romanello and Mendez did not base their defenses on a direct accusation of Vertucci, he is superficially different from the typical co-defendant receiving a new trial for failure to sever. Cf. United States v. Crawford, supra, 581 F.2d at 492 (each defendant accusr ing the other). Moreover, although United States v. Johnson, supra, seems at first to bear a resemblance to our case, it too is not on point. The formal similarity is that defendant Smith (like Vertucci) incriminated Johnson without having Johnson base his defense on Smith’s guilt. The distinction, however, is that Johnson (unlike Romanello and Mendez) did not attack Smith at all. In addition, Smith did not appeal the denial of severance. 478 F.2d at 1131. Therefore we are faced with a question of first impression: whether Vertucci may deserve a new trial if the core of his defense is his co-defendants’ guilt, but the core of their defense does not directly accuse him. We hold that under the circumstances of this case, Vertucci does deserve a new trial. The prejudice to Vertucci arising from the joint trial was compelling. Although the core of Romanello’s and Mendez’ defense was not Vertucci’s guilt, they did have to disprove his defense. They chose to attack the credibility of his statement to the police. They painted him as an abettor of gold smugglers who fabricated the robbery story in order to shift suspicion from themselves to Romanello and Mendez, the innocent couriers. The attorney for Romanello (Mr. Borg) cross-examined Agent Hensely about Ver-tucci’s statement and elicited testimony that the robbery defense was suspicious from the start. Trial Record, Vol. XHI, 55-59. Then, in closing argument, Borg declared that “Vertucci was not robbed.” Id., Vol. XV, 187. The discrepancies between the actual appearance of his co-defendants and his description of the “supposed gunmen” proved that he had been told by smugglers to give the description of Romanello and Mendez. Id. at 286-87. The attorney for Mendez (Mr. Clark) also argued that Vertucci had been coached to give a fabricated story. Vertucci had given a flawed description of his co-defendants’ “getaway car;” therefore, he could not have seen it himself; he must have been primed. Id. at 171-72. In addition, he could not have been handcuffed to the light pole as long as he claimed, because he had been yelling from the pole and would have been discovered earlier. Id. at 172.. Clark concluded that the smugglers had taken Vertucci to the pole late at night and directed him to say that the gold was stolen. Thus, customs officials would be put off the trail. Id. at 174. Vertucci’s involvement with a smuggling operation would also explain his failure to fill out certain customs documents: “[I]f he smuggles, you want to get it through, that’s it; that’s all.” Id. at 175. In attacking the truth of Vertucci’s defense, attorneys Borg and Clark aided the prosecution. They substantiated the government’s contention that Vertucci had never been robbed, but had been handcuffed to the pole by colleagues. Moreover, they presented the jury with a basic conflict: either Vertucci’s defense was untrue or theirs was. In other words, either Vertucci was guilty or Romanello and Mendez were guilty. In the typical case of antagonistic accusations, “a substantial possibility exists that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.” United States v. Berkowitz, supra, 662 F.2d at 1134. The same problem arose in the present case. The conflict between the two defense camps created a substantial possibility the jury would infer that neither defense was true. This was especially the case where the very antagonism between the defendants fit neatly into the government’s conspiracy theory. Vertucci had stated that he was robbed in order to further the conspiracy; and he had given an accurate description of his “assailants” in order to avoid contradicting himself during later questioning. Naturally, when he came to trial, he had to press the robbery as his only defense. Equally naturally, when Romanello and Mendez-were tried, they had to deny the robbery and show that Vertucci was lying. Given the accuracy of his description, they could not just claim that someone else had robbed him. The conspiracy plan itself produced and explained the antagonism between the defenses. The government could not lose when each defendant attacked the other. The attacks merely weakened each defense and underscored the strength of the government’s theory. Thus, in the circumstances of this case, Vertucci suffered the very prejudice that the severance rules are designed to rectify. Although the coré of his co-defendants’ defense was not his own guilt, they nevertheless had to undermine Vertucci’s defense to establish their own innocence. We hold that a defendant like Vertucci deserves a new, severed trial when: 1. the core of his defense is the guilt of his co-defendant; 2. to disprove his defense would establish his guilt; 3. his defense and the defense of his co-defendant are irreconcilable and mutually exclusive; 4. the co-defendant actively attacks his defense at trial; and 5. he sufferes compelling prejudice as a result. Such was the case here. A fair trial was impossible under the circumstances. “[Whether or not] the evidence of each defendant’s guilt was strong, this joint trial was intrinsically prejudicial.” United States v. Crawford, supra, 581 F.2d at 492. On the other hand, “[b]ecause the evidence was uncomplicated and only two [defense camps] were involved, the inconvenience and expense of separate trials would not have been great.” Id.; see also United States v. Johnson, supra, 478 F.2d at 1134. The trial court abused its discretion in failing to grant a severance. The convictions of all three defendants must be reversed. IV. CONCLUSION Conspiracy trials, with their world-girdling potential, are given more extensive thrust by the admission of hearsay testimony, the use of conspiratorial acts to prove substantive offenses, and the joint trial of defendants. These pressures alone threaten to undermine the fair consideration of individual conspiracy defendants. However, the dangers inherent in joint trials become intolerable when the co-defendants become gladiators, ripping each other’s defenses apart. In their antagonism, each lawyer becomes the government’s champion against the co-defendant, and the resulting struggle leaves both defendants vulnerable to the insinuation that a conspiracy explains the conflict. We find that Vertucci, Roma-nello and Mendez did not receive a fair trial under these conditions. Vertucci should have been tried separately from the other two. Romanello and Mendez may still be tried together. We REVERSE all convictions and REMAND for further proceedings in accordance with this opinion. . Dante, The Inferno, Canto XXV, Circle 8, Bolgia 7, lines 46-48, 58-60 (J. Ciardi, transl.). . Vertucci also alleged that Romanello and Mendez would exculpate him if he were tried separately. The trial court did not grant a severance, stating that Vertucci had failed in his burden of specifying: (1) a bona fide need for the testimony, (2) the likelihood of such testimony, (3) the substance of such testimony, and (4) the exculpatory nature and effect of such testimony. See United States v. Butler, 611 F.2d 1066, 1071 (5th Cir.1980). . Vertucci argues on appeal that the trial court erred in admitting the statements of two.witnesses (Longhin and Farneda) and in refusing to give a requested jury instruction on the law concerning property held “in bond” in Customs. Romanello and Mendez claim that the denial of severance coupled with Vertucci’s decision not to take the witness stand denied them their Sixth Amendment rights to confront a witness against them. They also argue that certain testimony concerning Farneda should not have been excluded; and they join Vertucci in attacking the admission of Longhin’s statements. Finally, each defendant argues that the evidence was not sufficient to support a verdict against him. . We do hold, however, that the evidence was sufficient to support the verdicts against all three defendants. . The conviction of Smith was not reversible, because he was “not highly prejudiced in the presentation of his defense by Johnson’s presence at trial.” Id. at 1132. Moreover, Smith had not appealed on this ground. Id. at 1131. . Our case is distinguishable from others in which severance has been denied. In Berkow-itz, each defendant admitted his own participation in the crime but described his co-defendant as more deeply involved. 662 F.2d at 1132-33. In Sheikh, both defendants denied knowledge that heroin was contained in a packing crate, but neither indicated that he believed the co-defendant to have that knowledge. In contrast to both Berkowitz, and Sheikh, Vertucci’s claim of innocence was premised on his co-defendants’ guilt; and the co-defendants in turn attempted to disprove his defense. Our case is likewise distinguishable from United States v. Swanson, 572 F.2d 523, 529 (5th Cir.1978) (defense of lack of intent not irreconcilable with co-defendant’s claim of non-involvement); United States v. Salomon, 609 F.2d 1172, 1175 (5th Cir.1980) (entrapment defense did not necessarily prove that co-defendant guilty); and United States v. Marable, 574 F.2d 224 (5th Cir.1978) (claim of non-involvement not irreconcilably antagonistic to defendant who offered no defense). . The government also argues that the three defendants could not be antagonistic, because Romanello and Mendez had offered to exculpate Vertucci if he were tried separately. Brief of Appellee at 42-43. This argument appears somewhat specious, however, since Romanello and Mendez never actually exculpated Vertucci before the jury after their motion for severance was denied. . The government argues that references to the state indictments did not prejudice Romanello and Mendez, because other trial testimony proved that the indictments had been dismissed. Brief of Appellee at 42. The prejudice can remain, however, as evidenced by eviden-tiary rules preventing the jury from learning of certain indictments that did not lead to convictions. See, e.g., Fed.R.Evid. 404(b), 608(b), 609. More important, the government’s argument does not contradict our basic point that William Burge identified Romanello and Mendez as the men who attacked Vertucci. . Throughout criminal jurisprudence, we identify clients with their lawyers. There is no reason to treat them any differently in the context of Rule 14. . For example, in United States v. Crawford, supra, 581 F.2d at 490-491, the jury was faced with conflicting testimony about the possession of a shotgun. Although the jury might have concluded that neither co-defendant possessed the gun, this court held that their defenses were antagonistic. Id. at 492. . Q [by Mr. Borg]: Now when you heard this description at an area that you knew had people coming and going, you were suspicious of that story, weren’t you? A: Yes, sir. Q: As a matter of fact, even on December 8th, you thought Vertucci was a suspect? A: He was a suspect, yes. Q: And you had doubts about his story even then, didn’t you? A: Yes, sir. Q: Because you didn’t believe it, did you? A: I had doubts. Mr. Borg: I have nothing else. The Court: All right. Id. at 55, 58-59. . Borg argued: Oh, we have heard about the description of the supposed gunmen that came to Vertucci and said-, if you identify me harm will come to you. Well, do you know the description he gave? .. . [T]hat is not the description of a person that Vertucci claims he actually saw, but had to be somebody that was told about it. [sic] He was told. Id. . As Clark pointed out: The identification of the car was all botched up. The car was dark outside with light blue inside; he had it just the opposite. Someone must have told him that, whoever he may have been working with. Id. . Clark theorized how Vertucci had become involved: You remember Mr. Hensely said, Customs is supposed to check you out on the phone? Oh, got a problem; • what are we going to do? Couple of characters we don’t even know are driving crazy to New York with our gold. The agent wants to see it in the morning. Mr. Vertucci, we got an assignment for you. We are going to take you out, put you at a post and you are going to say it was stolen. Id. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
sc_lcdisagreement	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent. HINKLE, ADMINISTRATRIX, et al. v. NEW ENGLAND MUTUAL INSURANCE COMPANY OF BOSTON, MASSACHUSETTS. No. 28. Argued October 15, 1958. Decided November 10, 1958. Leland S. Forrest argued the cause and filed a brief for petitioners. Phineas M. Henry argued the cause for respondent. With him on the brief was Vincent V. B. Booth. Per Curiam. The writ of certiorari in this case is dismissed as improvidently granted. See Layne & Bowler Corp. v. Western Well Works, 261 U. S. 387; Estate of Spiegel v. Commissioner of Internal Revenue, 335 U. S. 701, 707-708; General Box Co. v. United States, 351 U. S. 159, 165. 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_appnatpr	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. DELAWARE & H. R. CORPORATION v. BONZIK, and five other cases. Nos. 6587-6592. Circuit Court of Appeals, Third Circuit. March 22, 1938. Paul Bedford, of Wilkes-Barre, Pa. (Joseph Rasch and Thomas L. Ennis, both of New York City, of counsel), for appellant. R. L. Levy and A. M. Lucks, both of Scranton, Pa., for appellees. Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges. PER CURIAM. In the court below the plaintiffs brought suit against the defendant railroad to recover damages suffered by them while riding on a freight train, through the alleged negligence of the railroad. The court refused the defendant’s request to give binding instructions and submitted the case to the jury. It, however, failed to agree. Thereupon, defendant moved for judgment n. o. v., which the court refused and'granted a new trial. Following this the railroad took these appeals. Without discussing the facts or indicating any opinion on the defendant’s motion, we regard the cases before us as appeals from the court’s grant of a new trial. In the absence of abuse of discretion, which cannot be contended in these cases, and regarding them as appeals from the grant of a new trial, no appeal lies, and accordingly the appeals are dismissed. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_casetyp1_7-2	E	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". RIVERWAY COMPANY, Plaintiff-Appellee, v. TRUMBULL RIVER SERVICES, INC., Defendant-Third Party Plaintiff, Appellee-Cross-Appellant, v. CAIRO MARINE SERVICE, INC., Third Party Defendant-Appellant. Nos. 81-1515, 81-1612. United States Court of Appeals, Seventh Circuit. Argued Nov. 12, 1981. Decided March 17, 1982. W. J. Larzelere, Jr., New Orleans, La., for third party defendant-appellant. Gary Mayers, Thompson & Mitchell, East St. Louis, 111., for plaintiff-appellee. Before CUMMINGS, Chief Circuit Judge, WOOD, Circuit Judge, and GRANT, Senior District Judge. Honorable Robert A. Grant, Senior District Judge of the United States District Court for the Northern District of Indiana, sitting by designation. GRANT, Senior District Judge. This action originated with a complaint filed by Riverway Company (hereinafter “Riverway”) on July 27, 1978, which alleged that Barge RW-381, owned by Riverway, sunk as a result of the negligence of Trumbull River Services, Inc. (hereinafter “Trumbull”), while the barge was in the care, custody and control of Trumbull. The district court found that the subject matter of the complaint was within its admiralty and maritime jurisdiction under 28 U.S.C. § 1333 and Fed.R.Civ.P. 9(h). On October 11,1978, Trumbull filed an answer to River-way’s complaint and a third-party complaint against Cairo Marine Service, Inc. (hereinafter “Cairo”) under Fed.R.Civ.P. 14(c), which alleged that the sinking of the barge “occurred as a result of the primary and active fault, negligence and carelessness of Cairo.. . . ” The action was tried without a jury on January 26 and 27, 1981. Judgment was entered against Trumbull and Cairo jointly and severally in the amount of $111,350.10, plus prejudgment interest in the total amount of $33,329.04. The district court further concluded that Trumbull’s negligence was two-thirds responsible for the sinking of the barge and Cairo’s negligence was one-third responsible. Ultimate responsibility for the total damages was apportioned according to these percentages. Both Trumbull and Cairo appeal from the district court’s decision. Each claims the other should be assessed full liability. I. Riverway is a Minnesota corporation with its principal place of business in Minneapolis, Minnesota and its operation offices in St. Louis, Missouri. It is engaged in the business of owning and operating barges on inland rivers of the United States. Trumbull is an Illinois corporation with its only office and place of business in Lacón, Illinois. It operates a fleeting and harbor service business on the Illinois River near Lacón. Cairo is an Illinois corporation with its principal place of business in Cairo, Illinois. It is engaged in the business of marine surveying, consulting and salvage on the inland rivers. At the time of the events underlying this suit, Riverway was the owner of Barge RW-381 which was used for the transportation of bulk cargo. On January 16 and 17, 1978, about nine miles up the Illinois River from Lacón, Illinois, this barge was loaded with approximately 50,000 bushels of corn. The barge was then transported on January 18, 1978, to one of Trumbull’s fleets and moored alongside Barge MWT-122 and fastened to it by a steel cable. On that same morning, severe ice conditions forced Trumbull to suspend its fleet operations. Before doing so, it sent some employees on a final inspection of all the barges. Nothing unusual was discovered regarding either MWT-122 or RW-381, even though MWT-122 had previously been taking on water. Trumbull suspended all operations as of noon that day. It did institute a radio monitoring system whereby passing towboats were requested to advise Trumbull whether any of the barges were experiencing difficulty. On January 20, 1978, a towboat reported to Trumbull that MWT-122 and RW-381 looked somewhat low in the water. On January 22, 1978, Trumbull was advised that MWT-122 was very low in the water. No reports after January 20, 1978, indicated that RW-381 appeared low in the water. On January 23, 1978, a towboat advised Trumbull that RW-381 had little freeboard. With some improvement in the weather conditions and the sighting of a greater number of towboats passing through Lacón that morning, Trumbull decided to temporarily resume operations and dispatched the M/V NIANTIC to check the fleet, primarily RW-381. The NIANTIC arrived at RW-381 around 12:30 p. m. The barge was boarded and inspected. Although one compartment had taken on some water, it was characterized as normal condensation. The most troublesome discovery was that MWT-122 was completely submerged immediately to the port side of RW-381. The cable connecting the two barges was under strain and appeared to be pulling or holding down RW~381’s port stern corner. Apparently, RW-381 was not in any imminent danger of sinking at that time. No crew member of the NIANTIC took any action regarding the cable connecting the two barges. Edward Trumbull, Trumbull’s general manager, was soon informed of RW-381’s condition. He immediately notified Riverway and advised it that Trumbull would not assume any further responsibility for the safety of RW-381 under those conditions. Trumbull, in fact, did not take any further action with respect to RW-381. After receiving Trumbull’s report of RW-381’s condition, its disclaimer of responsibility and refusal to take necessary action, Riverway quickly hired Cairo to act as its representative with respect to RW-381. More specifically, the district court found that Cairo was hired “to send a surveyor to Trumbull, take charge of the situation, inspect RW-381, determine what needed to be done, and do whatever needed to be done or arrange for others to do whatever needed to be done to keep RW-381 from sinking.” Late in the afternoon of January 23, 1978, Cairo called and informed Trumbull that it had been hired by Riverway and that a surveyor would arrive that evening. Edward Trumbull told his employees that they, were to transport the surveyor to RW-381 and to provide him with their full cooperation. He specifically highlighted his view that the surveyor was to be in charge of the situation. The surveyor who arrived on the scene was Peter Rukes. At about 7:30 p. m. that evening he was taken on the NIANTIC to RW-381 where he conducted an inspection of the barge. The condition of the barge at that time was described as follows by the district court: At this time, the port stern corner of the barge was approximately 3" under water, and there was about 1 foot of freeboard at the starboard stern corner. Rukes and Roberts inspected the void compartments of the RW-381. They observed that there was no appreciable water in the stern compartment. The starboard # 3 compartment contained about 9' of water; the port # 3 compartment apparently was nearly full of water, because the barge was listing to port and water was entering through the submerged manhole cover of that compartment. The # 2 port compartment contained approximately 18"-24" of water, which was entering through a fracture in the bulkhead between the # 3 compartment and the # 2 compartment. Rukes obtained several wooden shingles from aboard the NI-ANTIC and drove them into the bulkhead fracture, apparently stopping the leak. Inspection of the other void compart- ■ ments did not reveal any water in them. When Rukes and Adams, a Trumbull employee, returned to the NIANTIC they discussed the barge’s condition. The two versions were in conflict and the district court credited the testimony of Adams. Adams told Rukes that the mooring cable should be cut so that the sunken MWT-122 would not pull down or hold down the port stern corner of RW-381. Adams also advised Rukes that an ax was aboard the ship to perform the task and that he would even do it. Rukes stated that he was not concerned with the possibility RW-381 would sink that night and that he would attend to it the next morning. Adams offered to pump the water out of RW-381’s compartments, but Rukes stated that it would not be necessary and reiterated that he would attend to it the next morning. An important finding by the district court was that “[s]ince Rukes had been sent by Riverway as the ‘expert’ and the man in charge of the situation on behalf of Riverway Company, Adams deferred to Rukes’ judgment.” The court also found in light of conflicting testimony that Rukes had failed to even report to River-way the results of his on-site inspection of RW-381. Upon returning to shore, Rukes immediately left for his motel. The next morning Rukes, along with some Trumbull employees, proceeded to RW-381. They discovered that the situation had drastically changed for the worse in that the barge was now approximately 'A to % sunk at its stern end. In this condition, it was impossible to prevent total sinking. Upon his initial observation, the district court found that Rukes: began swearing at himself, stated that the wire should have been cut the night before, stated that it was no one’s fault but his own that the wire had not been cut, and, in his own words “blamed myself for the whole situation.” The men then returned to the Trumbull office where Rukes, in an apparent state of rage, threw his hat on the floor and admitted that he had “just sunk a barge.” The barge was not salvaged until March, 1978. The evidence showed that an examination of the barge revealed various cracks and fractures in several places but that they were insufficient to have rendered the barge unseaworthy or to cause the barge to sink as it did. The district court specifically found that: RW-381 was delivered to Trumbull in a seaworthy condition and that it sank because of the failure to sever the mooring wire between RW-381 and MWT-122, or the failure to pump the water out of the barge compartments on the night of January 23, 1978, or both. II. Before examining the apportionment of liability issue which both parties contend was incorrectly decided by the district court, it is necessary to first examine the respective conduct of each party separately to determine whether their conduct, viewed in isolation, constituted negligence as was found by the district court. Trumbull Neither party challenges the district court’s finding that a bailment relationship existed between Riverway and Trumbull with respect to RW-381. As such, Trumbull had the duty to be free of negligence and to exercise reasonable care over the barge while it was in its exclusive care, custody and control. See United Barge Company v. Notre Dame Fleeting & Towing, 568 F.2d 599, 601-02 (8th Cir. 1978); Matter of Flowers, 526 F.2d 242, 244 (8th Cir. 1975); Stegemann v. Miami Beach Boat Slips, Inc., 213 F.2d 561, 564 (5th Cir. 1954); Selame Associates, Inc. v. Holiday Inns, Inc., 451 F.Supp. 412, 419 (D.Mass. 1978). Trumbull contends that it was free from negligence throughout this entire matter. Under the clearly erroneous standard this court must apply to district court findings with respect to negligence, Allegheny Airlines, Inc. v. United States, 504 F.2d 104, 108 (7th Cir. 1974), cert. denied, 421 U.S. 978, 95 S.Ct. 1979, 44 L.Ed.2d 470 (1975), Grayson v. Cordial Shipping Co., 496 F.2d 710, 717 (7th Cir. 1974), we reject that argument and affirm the district court’s finding that Trumbull failed to fulfill its duty. Trumbull was first placed on notice of some possible problems with RW 381 on January 20, 1978, when a towboat reported that the barge looked low in the water. Action was not required at that time, but Trumbull was at least made aware of a possible abnormal situation. In the early afternoon of January 23, 1978, more disturbing information about RW-381 was received by Trumbull and the NIANTIC was dispatched to inspect. The gravity of the potential danger to the barge is highlighted by the fact that Trumbull dispatched the NIANTIC even though the weather, while somewhat improved, was still severe. Although the inspection revealed no imminent danger of sinking, the situation was far from one which required no action to be taken at all. We agree with the district court’s conclusion that “some action should have been taken at that time.” Consideration should have certainly been given to the need for cutting the cable connecting the RW 381 and MWT-122 which was completely submerged. The evidence showed that RW-381’s port side was being pulled or held down as a result which could have led and apparently did lead to the barge taking on water. Under these circumstances, preparation for the possible pumping of the barge should also have been undertaken and periodic inspections would have been called for in light of the real potential that the barge’s condition might quickly worsen. The coupling of the notice of January 20, 1978, and the circumstances found on the afternoon of January 23, 1978, required that some type of action be taken. Trumbull failed to do anything even though it had ample time and the means to do so. Had Trumbull taken any of the above actions that afternoon, it is possible that the barge’s condition would not have worsened and the sinking prevented. Additional evidence of unreasonable conduct by Trumbull was its report to River-way of RW-381’s condition and its refusal to assume any further responsibility with respect to the barge. As bailee and still with exclusive possession and control of the barge, it could not unilaterally disclaim any further responsibility. This unilateral refusal to take reasonable and necessary action constituted a breach of its duties as bailee. See Martin Marietta Corp. v. Peter Kiewit Sons’ Co., 346 F.Supp. 892, 894 (E.D.N.Y.), aff’d, 472 F.2d 1404 (2d Cir. 1972); Mid-America Transportation Co. v. St. Louis Fleeting Service, Inc., 229 F.Supp. 409, 411 (E.D.Mo.1964), aff’d, 348 F.2d 920 (8th Cir. 1965). Moreover, Trumbull cannot now be heard to claim that no action was required that afternoon when its telephone conversation with Riverway indicated quite the otherwise. The condition of the barge found later that evening by Trumbull also supports a finding of unreasonable conduct. The evidence shows that remedial action was absolutely necessary to prevent the barge from sinking. This case is in sharp contrast to Midland Enterprises, Inc. v. Notre Dame Fleeting & Towing Service, Inc., 538 F.2d 1356 (8th Cir. 1976), where the court concluded that it was unlikely anyone would have noticed through a normal inspection that there was anything particularly wrong with the barge. Trumbull admits both the need for action, its ability and willingness to take action and its failure to take any. It argues, however, that its duty as bailee to exercise reasonable care was extinguished by the appearance of Rukes on the scene and the specific responsibilities which he was assigned. We must disagree with Trumbull’s position. Rukes’ appearance did not affect Trumbull’s status as bailee and its corresponding duty to exercise reasonable care over the barge on the evening of January 23, 1978. However, it did have an effect on what reasonable care would entail. Trumbull argues that because Rukes possessed the responsibility to take all necessary action to save the barge, its duty to take such action was extinguished. We are mindful of the bailment principle that when the owner remains with the bailed property or has an independent agent responsible for it or for certain aspects of its care, there is a corresponding limitation on the bailment and the duty of the bailee. See Stegemann, 213 F.2d at 565. In this case, however, we agree with the district court that “Trumbull’s responsibility for the barge did not terminate with Rukes’ arrival.” Whatever effect Rukes’ appearance had on Trumbull’s duties as bailee must be ascertained from the intent of the parties to the bailment based on all of the circumstances. The evidence here indicates to this court that Riverway did not intend and Trumbull should not have understood that the hiring of Cairo absolved Trumbull of its duty to take reasonable and necessary action to prevent the barge from sinking. It is critical to initially recognize that the primary reason why Cairo’s services had to be secured in the first place was because Trumbull informed Riverway that it refused to take any remedial action. Absent this obvious breach of bailment duties, Cairo quite likely would have never become involved in this matter. We will not permit Trumbull to lay the responsibility for taking reasonable and necessary action to save the barge exclusively on Cairo as a result. Moreover, we are unwilling to conclude under these circumstances that Trumbull’s duty to exercise reasonable care over the barge did not encompass taking reasonable and necessary action to save the barge throughout the evening of January 23. While Rukes was at the barge and considering what action needed to be taken, Trumbull’s duty to exercise reasonable care did not require it to cut the cable or pump the barge. That duty during that time belonged exclusively to Rukes. However, when Rukes refused to take any action, Trumbull’s duty to exercise reasonable care then required it to take those actions. Sitting idly by while knowing action was required does not constitute reasonable and prudent conduct in light o'f what transpired earlier that afternoon between Riverway and Trumbull and the imminency of grave danger to the barge. This is especially true here inasmuch as the problems experienced by the barge had been created by Trumbull’s failure to act earlier in the day and the actions which were necessary to save the barge could have easily and immediately been performed. It is true that Rukes instructed the Trumbull employees not to take any action with respect to the barge. Generally, such an instruction would also have extinguished Trumbull’s duty to cut the cable and pump the barge. But in this case, the seriousness and imminency of the danger to the barge as well as Trumbull’s admitted knowledge that action was absolutely and immediately necessary outweigh application of this general rule. Furthermore, the amount of control which Riverway vested in Cairo was unknown to Trumbull. Trumbull was never hired or directed by Riverway to obey the commands of Cairo. Trumbull never even spoke with Riverway about Cairo. Even when advising Trumbull that it had been hired by Riverway, Cairo did not state that it was to be in exclusive control of the situation. In light of this apparent confusion in responsibilities, Trumbull at the very least had the obligation to call Riverway and inform it of the condition of the barge as well as Rukes’ failure to act. For all of these reasons, we conclude that Trumbull had the duty to cut the cable or pump the barge on the evening of January 23, irrespective of Rukes. It failed to do so. Such conduct was unreasonable and constituted a breach of its duties as bailee. Trumbull’s final argument is that Rukes’ failure to take necessary action and his instruction to Trumbull employees not to take any action were the sole causes of the sinking of the barge. We find no error in the district court’s finding that Trumbull contributed to the sinking. As previously discussed, Trumbull continued to possess the duty to exercise reasonable care over the barge on the evening of January 23, 1978, even after Rukes’ appearance. The evidence shows that this duty included the cutting of the cable or the pumping of the barge. Such action would have prevented the sinking. Thus, Trumbull’s failure to perform these acts was a contributing cause to the sinking. The fact that Rukes possessed the duty to perform these same acts does not change this finding. Each were concurrent and independent causes. Cairo As established earlier, there is no question based upon the evidence that the condition of the barge on the night of January 23, 1978, indicated that action was necessary and none was taken by Rukes. The critical question which must be addressed is whether Rukes had a duty to take any action. In this regard, we must carefully examine the district court’s finding that Cairo was hired to “take charge of the situation, inspect RW-381, determine what needed to be done, and do whatever needed to be done or arrange for others to do whatever needed to be done to keep RW-381 from sinking." (emphasis supplied). Cairo argues in general terms that marine surveyors sent to a scene of distress do not possess the authority or ability to take remedial action and that, therefore, in this case, Rukes did not have any duty to cut the cable or to pump water out of the barge. This court will not engage in a general discussion of the duties and responsibilities assumed by a marine surveyor upon arrival. We will limit ourselves to the specific contractual responsibilities assumed by Cairo in this specific instance as established by the evidence. We reject Cairo’s claim that there is no evidence to support the finding that Cairo undertook a responsibility to salvage, protect and keep the barge from sinking. The testimony at trial from representatives of Riverway (Tr. 78, 88), an expert witness on behalf of Trumbull (Tr. 447- 48), an expert witness on behalf of Cairo (Tr. 521 -22), and Rukes himself (Tr. 156-57, 160), sufficiently establish that as the surveyor sent by Cairo, Rukes had the responsibility to take any action reasonable and necessary to prevent the barge from sinking. Cairo was hired to conduct an inspection and to take appropriate remedial action. Everyone knew that. Otherwise, it is difficult to understand why Riverway would have even hired Cairo and why Cairo accepted after being briefed and realizing that the situation might likely demand more than it was prepared and able to give. Furthermore, the conduct of Rukes at the barge site is inconsistent with Cairo’s claim that Rukes was sent only to investigate. He did not deny that he had the authority or responsibility to take action that evening. He merely postponed taking action until the next morning. Thus, Rukes in fact acknowledged that he possessed the responsibility to take action. The credited evidence also shows that Rukes failed to report to Riverway what he found that evening. Surely such a report would be the least responsibility assumed by Cairo under these near crisis conditions. Simply stated, Cairo did absolutely nothing after being hired by Riverway. For these reasons, we find there to be sufficient evidence in the record to support the district court’s conclusion regarding the scope of Rukes’ duties. Inasmuch as Rukes admits that he failed to sever the wire cable between RW-381 and MWT-122, and also failed to have RW-381 pumped, and as the district court found, he expressly instructed the Trumbull employees not to do either, we find that Rukes breached his duty to act. In its written decision, the district court analogized the relationship of Cairo to Riverway with the relationship between a salvor and a ship in distress. Once a salvor is hired to render assistance to a ship in distress, the salvor must exercise reasonable care for the vessel to rescue it from a distressed condition. The Noah’s Ark v. Bentley & Felton Corp., 292 F.2d 437 (5th Cir. 1961); The Cape Race, 18 F.2d 79 (2d Cir. 1927). Cairo too was hired in this instance to render assistance to a barge in distress. Therefore, Rukes was required to exercise reasonable care. Cairo objects to the district court’s analogy by citing Great American Insurance Co. v. Bureau Veritas, 338 F.Supp. 999 (S.D.N.Y.1972), aff’d, 478 F.2d 235 (2d Cir. 1973) and Steamship Mutual Underwriting Ass’n, Ltd. v. Bureau Veritas, 380 F.Supp. 482 (E.D.La.1973), which addressed the general duties and responsibilities of a marine surveyor. We find these cases inapplicable. Our single concern is what the evidence establishes as ■the responsibilities Cairo assumed by its contract with Riverway. The status or title of Rukes is unimportant where the evidence defines the specific responsibilities Cairo assumed. As discussed previously, the responsibility in this case called for more than simply looking over the situation. Cairo’s final argument is that Rukes’ failure to take any remedial action with respect to the barge was not the proximate cause of its sinking. For the same reasons which applied to Trumbull’s identical argument, we must disagree. Rukes had the contractual duty to take reasonable and necessary remedial action to save the barge. This included the cutting of the cable and the pumping of the barge or instructing others to do the same. Failure to do so, especially in instructing the Trumbull employees not to take action, contributed to the sinking. Thus, Rukes’ conduct was a contributing cause of the sinking. The fact that Trumbull possessed and failed this same duty as bailee does not change this conclusion. As stated earlier, Trumbull’s and Rukes’ conduct each were concurrent and independent causes. Apportionment of Liability Having concluded that both Trumbull and Cairo failed to exercise reasonable care and that their actions contributed to the sinking of the barge, we must examine the apportionment of liability made by the district court. It concluded that: [u]nder all of the circumstances of this case, the court concludes that the negligence of Trumbull River Services, Inc. was two-thirds responsible for the sinking of Barge RW-381, and the negligence of Cairo Marine Service, Inc. was one-third responsible for the sinking of Barge RW-381. Cairo contends that even assuming Rukes was negligent, Trumbull must be fully liable as bailee for the loss suffered by Riverway. It argues that inasmuch as Cairo could not be liable to Trumbull in the third party action, it cannot therefore be assessed direct liability for any portion of Riverway’s loss. The procedural structure of this admiralty action is governed by Fed.R.Civ.P. 14(c), which provides: (c) Admiralty and Maritime Claims. When a plaintiff asserts an admiralty or maritime claim within the meaning of Rule 9(h), the defendant or claimant, as a third-party plaintiff, may bring in a third-party defendant who may be wholly or partly liable, either to the plaintiff or to the third-party plaintiff, by way of remedy over, contribution, or otherwise on account of the same transaction, occurrence, or series of transactions or occurrences. In such a case the third-party plaintiff may also demand judgment against the third-party defendant in favor of the plaintiff, in which event the third-party defendant shall make his defenses to the claim of the plaintiff as well as to that of the third-party plaintiff in the manner provided in Rule 12 and the action shall proceed as if the plaintiff had commenced it against the third-party defendant as well as the third-party plaintiff. (emphasis supplied). The unique features of Rule 14(c) which distinguishes it from traditional third-party practice are described in 3 J. Moore, Federal Practice ¶ 14.34 (2d ed. 1980): A third-party defendant may be brought in not only on a theory of liability over to the third-party plaintiff for any recovery the original plaintiff may secure from such third-party plaintiff (the original defendant), but also on a theory that the third-party defendant is directly liable to the original plaintiff either jointly with the original defendant or instead of the original defendant. (footnotes omitted). See also Rosario v. American Export-Isbrandtsen Lines, Inc., 531 F.2d 1227, 1231-32 (3d Cir.), cert. denied, 429 U.S. 857, 97 S.Ct. 156, 50 L.Ed.2d 135 (1976); Tri-State Oil Tool Industries, Inc. v. Delta Marine Drilling Company, 410 F.2d 178, 186-87 (5th Cir. 1969); MISR Insurance Company v. M-V Har Sinai, 80 F.R.D. 438, 440 (S.D.N.Y.1978); Northern Contracting Co. v. C. J. Langenfelder & Sons, Inc., 439 F.Supp. 621, 623 n.1 (E.D.Pa.1977); Stinson v. S. S. Kenneth McKay, 360 F.Supp. 674, 675 (S.D.Tex.1973). This interpretation of Rule 14(c) was made clear in Ohio River Company v. Continental Grain Company, 352 F.Supp. 505, 512 (N.D.Ill.1972). There, the district court reasoned in part as follows: If the contention of Oil Transport [third-party defendant] were correct, either a separate suit for contribution or repetitious pleadings and testimony on the part of the plaintiff and the third-party plaintiff would be necessary in the original trial. Such cannot be the meaning of Rule 14(c). The rule provides instead that the third-party plaintiff may demand judgment against the third-party defendant in favor of the plaintiff and shall be construed as meaning precisely that. Ohio River [plaintiff] is thus entitled to recover its damages from both Continental [third-party plaintiff] and the Bayou La Reine [third-party defendant]. (emphasis supplied). In its third-party complaint against Cairo, Trumbull prayed for the following: (1) That process in due form of law, according to the practice of this Court in causes of admiralty and maritime jurisdiction pursuant to the provisions of Rules 4 and 14(c) of the Federal Rules of Civil Procedure, issue against Third Party Defendant Cairo Marine Service, Inc. requiring it to appear and answer this Third Party Complaint and answer the Complaint of Plaintiff; As in United States v. Isco, Inc., 463 F.Supp. 1293 (E.D.Wis.1979), we believe the unmistakable meaning of this language was to designate Cairo as a defendant to River-way’s complaint. Thus, the district court properly applied Rule 14(c) and was correct in treating this action as if Riverway had commenced it against Cairo and Trumbull as joint defendants. The last issue we must address is the percentage allocation made by the district court. There is ample support in the record to support an equal allocation of liability. However, we also conclude that there is ample support for the district court’s allocation. Greater culpability can be found in Trumbull in two regards. First, it had the opportunity to take preventive action on the afternoon of January 23 but failed to do so. The most obvious action would have been to sever the connecting cable between RW-381 and the submerged barge MWT-122. Second, it breached its duties as bailee by informing Riverway it would not assume any further responsibility for the barge. Our review of the district court’s allocation of liability is governed by the same “clearly erroneous” standard as was our review of the district court’s negligence findings. For the reasons above, we conclude the district court’s allocation, “under all of the circumstances of this case,” satisfies this standard. The decision of the district court is AFFIRMED in all respects. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
songer_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. Wilmer D. BEKEWEG, as Guardian of Mitchell D. Onstott, a Minor, and Harvey H. Onstott, Plaintiffs-Appellants, v. FEDERAL MUTUAL INSURANCE COMPANY and J. B. Guthrie, Defendants-Appellees. No. 14171. United States Court of Appeals Seventh Circuit. Oct. 23, 1963. See also D.C., 27 F.R.D. 431. J. Gareth Hitchcock, Paulding, Ohio, Howard S. Grimm, Auburn, Ind., for-appellants. William E. Borror and Leigh L. Hunt, Hunt, Suedhoff & Wilks, Fort Wayne, Ind., for appellees. Before CASTLE, KILEY and' SWYGERT, Circuit Judges. CASTLE, Circuit Judge. This diversity action was brought in-the District Court by plaintiffs-appellants, Wilmer D. Rekeweg, guardian, and Harvey H. Onstott, father, of Mitchell-D. Onstott, a minor who was injured in a collision between a bicycle he was riding- and an automobile driven by John S. Fett.. Fett died nineteen days after the collision. Plaintiffs seek damages from defendants-appellees, Federal Mutual Insurance Company, carrier of Fett’s automobile liability insurance, and J. B. Guthrie, an adjuster for the insurance company. Liability is predicated upon alleged deceitful and fraudulent action of the defendants by reason of which plaintiffs assert they were barred from prose- • cuting their claims against the estate of Fett, whose negligence caused the collision and resulting injuries, due to failure to file claims within the prescribed statutory period. The District Court granted defendants’ motion for summary judgment and plaintiffs appealed. The collision occurred in Ohio and Fett was a resident of Ohio. The parties agree that plaintiffs’ alleged causes of action for being fraudulently prevented from presenting their claims against decedent’s estate in Ohio are governed by the law of Ohio, where the loss occurred. The pertinent facts disclosed by the pleadings and the affidavits and documents presented in connection with the motion for summary judgment may be .summarized as follows. The collision giving rise to the injuries to and hospitalization of Mitchell D. Onstott occurred on May 25, 1958. John ,S. Fett, the allegedly negligent driver of the automobile involved, who was defendants’ insured, died June 13, 1958. In -June 1958, David Peters, a Fort Wayne, Indiana, attorney was retained to represent the Onstotts’ interests. Defendant Guthrie, an adjuster representing the defendant insurance company called on the '.boy’s mother on June 18, 1958. She refused to discuss the matter and referred •Guthrie to the Onstotts’ attorney, David Peters. Guthrie had no further contacts with the Onstotts. He telephoned Peters .and they mutually agreed to discuss the claim at a later date when more information was available. On July 1, 1958, an administrator of Fett’s estate was appointed by the Probate Court of Paulding County, Ohio. Under the law of Ohio, upon the expiration of nine months from the administrator’s appointment presentation of the minor’s claim against the estate was barred. In response to a telephone call from Guthrie on August 8, 1958, inquiring whether a medical report had been received, Peters wrote Guthrie August 11, 1958, enclosing a report and requesting . a discussion of the claim. Guthrie and Peters conferred on September 11, 1958. Peters had briefed the Ohio law and was aware of the time limitations governing -. the filing of claims against Ohio estates. Both knew of Fett’s death; neither knew of any assets except the automobile; and neither knew that an administrator of Fett’s estate had been appointed. In a deposition Peters testified concerning his September 11, 1958, conversation with Guthrie, as follows: “I stated that if I learned an estate was opened in Ohio I would communicate with him [Guthrie] and that if he learned of an estate being opened in Ohio I would like to have him advise me that such procedure had taken place. On that occasion we both concluded that as far as we knew Fett had no assets and he had no estate.” Peters further stated that the boy was still under the care of physicians and surgeons at that time and, as yet, he had no evaluation with reference to the injuries. On September 24,1958, Guthrie learned that Fett’s estate had been opened up on July 1,1958. He was next in Fort Wayne on October 3, 1958, at which time he telephoned Peters’ office but was informed Peters was not in. He left word with one claiming to be a secretary for Peters, to tell him that Guthrie had called, and requested that she inform Peters that an estate for John S. Fett had been opened July 1, 1958. Guthrie was again in Fort Wayne on October 24,1958, at which time he talked with Peters by telephone and was informed by him that the latest medical report Peters was expecting had not been received but that a copy would be sent to Guthrie when it was received. On December 2, 1958, Guthrie received a letter from Peters advising that Peters had requested another medical examination of the boy, which would be final, and that as soon as information was received from this examination he would be in a position to negotiate toward disposition of the matter and would advise Guthrie. Guthrie heard no further from Peters until after April 1, 1959, the date the period for presenting a claim against Fett’s estate expired. Plaintiffs had filed no claims. On May 14, 1959, Peters wrote Guthrie that Mitchell D. Onstott had been released by his physicians and that Peters would like to talk with Guthrie with reference to the matter. Peters wrote again on June 2, 1959, inquiring if Guthrie desired to meet with him in reference to the matter. Guthrie telephoned Peters on June 3, 1959, and advised him that no payment would be made because the claim was barred. Peters did not actually learn that Fett’s estate had been opened July 1, 1958, until this June 3, 1959, conversation with Guthrie. We perceive no error in the District Court’s award of summary judgment to defendants-appellees. The fact that Guthrie shortly after he learned' the estate had been opened, and long before expiration of the period for filing of the plaintiffs’ claims, left word at Peters’ office that the estate had been opened July 1, 1958, negates the presence of intent to deceive either at the time of the September 11, 1958, conversation or thereafter. Surely, in the absence of further inquiry from Peters concerning the opening of the estate Guthrie had no basis to assume that the information had not been given to Peters and to therefore repeat the same in his October 24, 1958 telephone conversation with Peters. Peters had until April 1, 1959, to present the minor’s claim against the estate and he did not contact the defendants after December 2, 1958, at which time he stated he would advise defendants when a report on the final medical examination was received and “we should be in a position to negotiate toward a termination and disposition of this matter”, until May 14, 1959, after the limitation period had expired. Apart from the absence of any showing of intent on the part of the defendants to deceive plaintiffs, or to induce them not to file claims against the estate, there was no misrepresentation on which plaintiffs had a right to reply. Plaintiffs’ former attorney was well aware of the Ohio limitations governing the filing of claims against decedents’ estates. The opening of an estate for the decedent-insured in Paulding County, Ohio, was a fact equally accessible to both the attorney and the defendants. The September 11, 1958, conversation between the attorney and Guthrie does not import that Peters was to rely upon Guthrie to knake the inquiries which might be necessary from time to time to learn if an estate had been opened, ascertain the fact, and supply Peters with the information. Nor under the circumstances here presented did the attorney have a right to rely that such was the understanding nor, under controlling principles stated in the Ohio decisions, to reply upon future silence on Guthrie’s part as equating an affirmative representation that no estate had been opened and excusing inquiry on the attorney’s part. Peters and Guthrie represented adverse interests and were dealing at arm’s length. The attendant circumstances here are not those such as a relation of trust, or of confidence, or of inequality of condition or knowledge, which may give rise to a legal duty to communicate material matter to another and make silence in such circumstances an actionable fraud. Cf. Schubert v. Neyer, Ohio App. (1959), 165 N.E.2d 226, 231-232. And “[rjeliance — with a right to rely” is an element which “must be present if actionable fraud is to be found.” Crabbe v. Freeman, Ohio Mun. Ct., (1959), 160 N.E.2d 583, 585. Plaintiffs’ reliance upon Pumphrey v. Quillen, 165 Ohio St. 343, 135 N.E.2d 328, and other cases which involved affirmative false statements and positive misrepresentations is misplaced. Such cases are not apposite on the facts of the case at bar. Here actionable fraud is attempted to be predicated upon silence under circumstances where no right to rely upon that silence existed. Cf. Sigler v. Allstate Insurance Company, 7 Cir., 319 F.2d 418, where, in affirming summary judgment for the defendant, this Court held that plaintiffs’ attorney’s access to sources of information which would have furnished information as to another State’s statute of limitations made it unnecessary for the District Court to have resolved the apparent conflict as to whether affirmative misrepresentation with respect thereto had been made to the plaintiffs. The judgment order of the District Court is affirmed. Affirmed. . David Peters, an Indiana attorney, who was first retained to represent the interests of the injured ward, Mitchell D. Onstott, and of plaintiff Harvey H. Onstott, was also originally named as a defendant but was dismissed from the action for a consideration. The complaint asserted liability against him on the ground of negligence through which plaintiffs’ claims, became barred. 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_genapel1	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. GALLARDO, Commissioner of Education, v. GONZALEZ. No. 3943. Circuit Court of Appeals, First Circuit. July 28, 1944. David L. Kreeger, Sp. Asst, to Atty. Gen. (Francis M. Shea, Asst. Atty. Gen., and Hubert Margolis, Atty., of Washington, D. C., and Edmund J. Brandon, U. S. Atty., of Boston, Mass., on the brief), for appellant. Virgilio Brunet, of San Juan, P. R., for appellee. Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges. WOODBURY, Circuit Judge. This is an appeal from a judgment of the Supreme Court of Puerto Rico reversing a judgment of the District Court of San Juan and ordering the appellant, who is the Commissioner of Education of Puerto Rico, to reinstate the appellee in his former office of assistant superintendent of schools of the school district of Lares. On September 3, 1942, the appellee filed a petition for mandamus in the Insular District Court in which he alleged that he was a school teacher who had worked for over ten years in the public schools of the Municipality of Lares; that “When Law No. 312, approved May 15, 1938, came into effect, the Commissioner of Education, respondent in this case, appointed the petitioner to work on a permanent basis as assistant superintendent of the Public Schools of Lares, Puerto Rico, at a salary of $125 per month;” that he was so employed on August 4, 1942, when he received a letter from the appellant directing him to report to the Aguada-Moca district on August 10,, 1942, for work of the same kind and at the same salary; that no reason for the transfer whatever was given in the letter, and that, although repeatedly requested, the appellant has refused and still refuses “without any legal justification” to reinstate him in his former position in Lares. The. appellant demurred generally to this petition and also answered admitting the facts alleged but asserting his legal right under Act No. 312 referred to above and § 17 of the Organic Act, 48 U.S.C.A. § 783, to make the transfer, which, he said, was “in order to improve the seiwice.” The Insular District Court sustained the demurrer and finding the petition not amendable, entered a judgment dismissing the petition. On appeal the Supreme Court of Puerto Rico reversed, and thereupon the Commissioner of Education took this appeal to us. Two questions are presented. The first is whether Act No. 312 Laws of Puerto Rico 1938, prevents the Commissioner of Education of Puerto Rico from transferring a teacher who has attained a permanent status from one municipality to another whenever in the Commissioner’s judgment such a transfer will “improve the service” in some unspecified particular, and, second, if it does, whether it is in conflict with § 17 of the Organic-Act. The Supreme Court of Puerto Rico answered the first question in the affirmative and the second in the negative and we agree Act No. 312 of the Laws of Puerto Rico 1938, entitled “An Act, to establish the permanent appointment of public-school teachers after a specified probation period; to determine the procedure for the removal of said teachers, and for other purposes,” reads, so far as here material, as follows: “Section 1. — Every public-school teacher in active service through an appointment made in accordance with the school law and the regulations of the Department of Education, who shall have practised as such in a school of any category during the probation period hereinafter specified, except special teachers, shall be entitled to be contracted as a permanent teacher in the category in which he may be practising his profession at the expiration of the said probation period, without any further proof of classification or professional ability than the holding of a life license which shall be issued at the termination of the probation period to such teacher as, in the judgment of the Department of Education, shall have shown sufficient professional ability : Provided, That for the purposes of this Act, no consideration shall be given to the time such teachers may have been practising as substitutes or by virtue of provisional licenses; And provided, further, That such teachers shall be entitled to be contracted as permanent teachers in the municipality where they may be teaching at the expiration of the probation period.” “Section 4. — Resignations, leaves without pay, transfers, and promotions of permanent teachers shall be governed by the regulations promulgated for the purpose by the Commissioner of Education.” We assume from the pleadings that the appellee, although an assistant superintendent of schools, is a “teacher”, and that Section 1 of the Act is applicable to him, that is, that he had satisfactorily completed his probationary teaching period, attained permanent status, and had been licensed and “contracted as a permanent teacher” in the Municipality of Lares, according to § 1 of the Act. Furthermore the regulation with respect to the transfer of teachers promulgated by the. Commissioner under § 4 authorizes the transfer of a-permanent teacher for the general purpose alleged in the appellant’s answer. So we come directly to the question of the meaning of Sections 1 and 4 of Act No. 312 quoted above. These sections are, to some extent at least, in apparent conflict. Section 1 provides that teachers who have attained a permanent status “shall be entitled to be contracted as permanent teachers in the municipality where they may be teaching at the expiration of the probation period”— in the case at bar, Lares — but Section 4 provides that “transfers, * * * 0f per_ manent teachers shall be governed by the regulations promulgated for the purpose by the Commissioner of Education.” The Commissioner argues that the sections can be harmonized by construing them to mean that the Commissioner cannot transfer a permanent teacher from one municipality to another arbitrarily, unreasonably, or in bad faith, but that he can make such a transfer without specifying his reasons therefor whenever in his judgment such transfer “would be advantageous, as sub-serving one or more of the needs of the school system.” He says that this is not only the most logical construction of the two provisions hut also that it is the construction which we ought to adopt in order to avoid raising any question of conflict between the Insular Act and Section 17 of the Organic Act. As a practical matter this view of the Act would prevent the second proviso of § 1 from having any real braking effect on .administrative action of the Commissioner trausferring a teacher from one municipality to another. The Supreme Court of Puerto Rico did not adopt, it, but expressly leaving open “the vital question of whether the Commissioner may under Section 4 provide in the future regulations for transfer because schools are closed or because courses are curtailed due to shifts in population, or for similar reasons,” held that § 1 gives permanent teachers a vested right to teach permanently in the municipality where the probationary period was satisfactorily completed, of which they cannot be divested by the Commissioner without a specification of the particular reasons therefor. That is to say, it held that § 4 of the Act did not authorize a regulation giving the Commissioner broad powers of transfer for “the good of the school system” or “for the needs of the system” generally, but only authorized regulations governing transfers for specified reasons, the sufficiency of which the court could consider in particular cases as they arise. It seems to us that the Supreme Court of Puerto Rico adopted a reasonable interpretation of Act No. 312 giving substantial meaning to both § 1 and § 4 and that its decision is clearly correct. Certainly we cannot say that it is “inescapably wrong” or “patently erroneous” and from this it follows that we must accept it as though it were our own. Bonet v. Texas Co, 308 U.S. 463, 60 S.Ct. 349, 84 L.Ed. 401; DeCastro v. Board of Commissioners of San Juan, 64 S.Ct. 1121. We come now to the question which gives us jurisdiction to pass upon the meaning of the insular act (Municipality of Rio Piedras v. Serra, Garabis & Co, 1 Cir, 65 F.2d 691, 701), that is, the question whether that Act, as above construed, is in conflict with the Organic Act. Section 17 of this latter statute, 39 Stat. 956, 957, provides: “That the commissioner of education shall superintend public instruction throughout Puerto Rico; all proposed disbursements on account there-0 f must be approved by him, and all courses of study shall be prepared by him, subject to disapproval by the governor if he desires to act. He shall prepare rules governing the selection of teachers, and appointments of teachers by local school boards shall be subject to his approval, and he shall perform such other duties, not inconsistent with this Act, as may be prescribed by law.” The Commissioner’s argument is, to quote from his brief, that: “Section 17 of the Organic Act, authorizing the Commissioner of Education to ‘superintend public. instruction throughout Puerto Rico’, to approve ‘appointments of teachers’ and to prepare ‘rules governing’ their selection, empowers him to transfer teachers within the Insular school system; for the power to superintend is the power to control, and the power of appointment is normally accompanied by the power of removal — a power not here involved but far broader than the power to make transfers within the school system.” In short he says “that the Commissioner’s specific powers of appointment and his general powers of superintendence must include the power to make transfers within the school system.” The Supreme Court of Puerto Rico rejected this argument. It said that the provision of § 17 that the Commissioner “shall superintend public instruction” does not confer upon him any specific powers which he would not otherwise have, and that power over the appointment of a teacher does not include the power to transfer him, transfer being an incident of tenure — a matter not mentioned in the Organic Act and therefore one which can be dealt with by the Insular Legislature. This conclusion is in no sense binding upon us. We can adopt or reject it without reference to the opinion of the court below, “except for the weight of the intrinsic authority of all lower court opinions” (Deputy v. Du Pont, 308 U.S. 488, 499, 60 S.Ct. 363, 369, 84 L.Ed. 416), but it seems to us correct. Congress in § 17 of the Organic Act saw fit to clothe the Commissioner with general supervisory powers over the school system of Puerto Rico, with specific power over disbursements and the curriculum, and over the appointment of teachers by local school boards. It did not specifically give, him direct authority over the removal or demotion of teachers (matters with which we are not here concerned) nor did it give him specific authority to assign teachers to any particular locality or to transfer them from one locality to another. These omissions seem to us significant. There can be no doubt that transfer is an incident of tenure and the omission in Section 17 of any reference to tenure, an omission which Congress could readily have supplied had it wished to do so, seems to us to indicate clearly that Congress intended as part of its program of insular self-government to give control over teachers’ tenure to the Puerto Rican Legislature. The judgment of the Supreme Court of Puerto Rico is affirmed, with costs to the appellee. “Section 1. Any teacher employed in the public schools in a position of a permanent, probationary, or any other nature, whatever his category or rank, may be transferred from the school in which he may be discharging his duties or from the municipality in which he may be exereising liis office to a position of equal category in any other school or municipality in which his services may be considered more necessary and more conducive to the good of the school system, or when, for any other reason, the needs of the system demand such transfer.” 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_appnatpr	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. LOCAL NO. 149 OF The AMERICAN FEDERATION OF TECHNICAL ENGINEERS (AFL), Plaintiff, Appellant, v. GENERAL ELECTRIC COMPANY, Defendant, Appellee. No. 5201. United States Court of Appeals First Circuit. Heard Oct. 3,1957. Decided Dec. 16, 1957. Arthur J. Flamm, Boston, Mass., with whom Robert M. Segal, Boston, Mass., was on brief, for appellant. Warren F. Farr, Boston, Mass., with whom A. Lane McGovern and Ropes, Gray, Best, Coolidge & Rugg, Boston, Mass., were on brief, for appellee. Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges. MAGRUDER, Chief Judge. We have been much perplexed by this case, involving § 301(a) of the Labor Management Relations Act of 1947 (61 Stat. 156), 29 U.S.C.A. § 185(a). Appellant Union filed a petition under the United States Arbitration Act, as amended (43 Stat. 883, 61 Stat. 669, 68 Stat. 1233, 9 U.S.C.A. § 1 et seq.), and under § 301 of the Labor Management Relations Act (61 Stat. 156), seeking a decree of specific performance to compel the employer to perform an agreement to arbitrate, as provided in a collective bargaining agreement executed on November 1, 1955, to be operative for a term of five years, with an automatic renewal provision thereafter from year to year. An .understanding of the controversy here requires an examination of several articles of the collective bargaining agreement. Article VII, entitled “Wage Rates,” contains the following provisions: «* * -x- * -x- -* “2. Job classifications, job rates and step rates are as shown on Exhibit ‘B’. “ * * * * * * “4. When an employee is hired or transferred through the Company Personnel Department and assigned to a job within the bargaining unit, he will be given a card showing his job classification, starting rate, job rate, and rate of progression, if any, applicable to the job for which he is hired or to which transferred. In addition, the employee’s new supervisor will explain the general scope of his duties and responsibilities on the new job. Similarly, the employee will be given such information when re-assigned to another job within the bargaining unit. “5. (a) Rates paid will be on steps. Job rates will be designated by grade. “(b) The minimum starting rate for an inexperienced employee will be three steps below the Grade 9 job rate. “(c) Employees will progress on steps, from the starting rate to the Grade 9 job rate, as follows: 6 months after hiring— increase one step After each additional 6 months — increase one step “(d) An employee who is receiving the Grade 9 job rate and is assigned to a Grade 11 job, or higher, will be given a one step increase at the end of 6 months dating from assignment to such Grade 11 or higher job. “(e) Any further increase in rate, up to the job rate for his job, shall be based solely on the employee’s performance on the job. “ (f) Subject to the foregoing provisions of this Section 5, the job rate shall be paid for normal performance. “Exhibit ‘B’ '‘Job Rates and Progressive Step Rates ‘Grade 8-15-55 9-15-56 9-15-57 9-15-58 9-15-59 14 $130.13 $134.03 $138.05 $142.85 $147.79 13 120.27 123.88 127.60 132.03 136.60 12 110.93 114.25 117.68 121.77 125.99 11 102.58 105.65 108.82 112.61 116.50 10 93.56 96.37 99.26 102.71 106.27 9 86.55 89.15 91.82 95.01 98.30 79.78 82.17 84.63 87.58 90.61 74.99 77.24 79.56 82.32 85.17 70.92 73.04 75.23 77.85 80.54” It will be observed that this so-called Exhibit “B” in Art. VII contains no detailed job specifications setting forth the types of duties falling into grades 14, 13, etc. There is no language in the collective bargaining agreement to be interpreted and applied for the purpose of determining whether the duties performed by a particular employee entitle him to be classified in any particular “grade,” carrying with it a corresponding wage rate. Article XIV, entitled “Grievance Procedure,” established a conventional three-step procedure for adjustment of employee grievances between the Union and the Company, by which negotiation was to continue at progressively higher levels if an agreement was not reached. Article XV, entitled “Arbitration,” read in full as follows: “1. Any grievance which involves the interpretation or application of this Agreement, and which remains unsettled after having been fully processed pursuant to the provisions of Article XIV shall be submitted to arbitration upon request of either the Union or the Company provided such request is made within 90 days after the decision of the Company has been given to the Union pursuant to Article XIV. In each case, the arbitrator shall be selected and the arbitration proceeding conducted pursuant to procedures mutually satisfactory to the Company and the Union. “2. The award of an arbitrator so selected upon any grievance so submitted to him shall be final and binding upon all parties to this Agreement. The arbitrator shall have no authority to add to, detract from, or in any way alter the provisions of this Agreement. In addition, it is specifically agreed that no arbitrator shall have the authority to establish a wage rate or job classification, or authority to enter an award pertaining to Article XIX, and that no provision of this Agreement or other agreements between the parties shall be subject to arbitration pertaining in any way to the establishment, administration, interpretation or application of Insurance or Pension Plans in which employees covered by this Agreement are eligible to participate.” Article XXVI, entitled “Management Authority,” contains provisions which might perhaps be deemed to have added little or nothing to what would otherwise be implied from the other terms of the collective bargaining agreement. The article is as follows: “Subject only to any express limitations provided in this Agreement or in any other written agreement between the Company and the Union, the Company retains the exclusive right to manage its business including (but not limited to) the right to determine the methods and means by which its operations are to be carried on, to direct the work force and to conduct its operations in a safe and effective manner. “This Article does not modify or limit the rights of the parties or of the employees under any other provisions of this Agreement or under any other written agreement between the Company and the Union, nor will it operate to deprive employees of any wage or other benefits to which they have been or will become entitled by virtue of an existing or future written agreement between the Company and the Union. Neither will this Article be used to limit or modify the rights of the Union to process grievances pursuant to Article XIV.” The petition filed by the Union in the present case, after numerous formal allegations, set forth the following: “On or about November 7, 1955, the Union filed grievances with the Company alleging that the jobs performed by employees, Paul Nolan, Fred Lang, Robert Tivey and Ashley Corporon were incorrectly graded. The Union alleged that under the grades established by the Company and set forth in Article VII of the contract, the duties performed by these employees came within Grade 13 and that the Company had not properly applied the contract in its payments to said employees.” The petition went on to allege that these-grievances had been processed in accordance with the procedures set forth in Art. XIV of the contract; that after such grievance procedure had been exhausted without coming to any agreement, the Union on April 23, 1956, requested the Company to proceed with an arbitration pursuant to § 1 of Art. XV of the contract; that the Company on May 1, 1956, notified the Union that it would not submit said grievances to arbitration and had continually thereafter adhered to its refusal to arbitrate; that the Company’s refusal to arbitrate, as aforesaid, “was and is a violation and breach of the collective bargaining agreement between the Union and the Company.” The prayer of the petition was that the Company “be specifically ordered to perform its agreement to arbitrate by .•submitting to arbitration the grievances involving Paul Nolan, Fred Lang, Robert Tivey and Ashley Corporon.” The district court, on December 3, 1956, after a hearing entered a judgment ■dismissing the petition for an order to compel arbitration. In an accompanying memorandum the ■district court, referring to the provision in § 2 of Art. XV, said the following: “It seems to me that the condition in this Section, ‘It is specifically agreed that no arbitrator shall have the authority to establish a wage rate or job classification * * * ’ places a distinct limitation upon the arbitrator that covers the situation in hand. “Apparently the jobs performed by the employees in question were newly created jobs, and since the ■contract makes no provision for the Union to be heard on the question •of such grading, it seems to me that the question of grading these positions is not open to arbitration. “From the foregoing I conclude ■and rule that the petition for an order to compel arbitration must be and is dismissed.” On this appeal by the Union from the .judgment dismissing its petition, we are constrained to affirm the judgment of the district court. We are aware of a viewpoint urged in responsible quarters that the interests of effective labor arbitration would best be served by committing to the arbitrator in the first instance the question of ar-bitrability, that is, the question whether there is any issue to be arbitrated under the collective bargaining agreement. It is said that a collective bargaining contract is a very special type of document, in respect of interpretation, as to which an arbitrator has certain advantages over a court; that a collective bargaining agreement, though embracing a multitude of terms covering numerous employees working at various tasks, cannot be expected to have pin-pointed each of many problems to be dealt with in relations between the management and the union; that the contract instead contains unexpressed assumptions that many procedures and practices will continue; that under the more simplified and speedy procedures of an arbitration, more evidence with regard to these unexpressed assumptions may be available, and an arbitrator may have the additional advantage of background knowledge derived from past experiences with the parties. Therefore it may be desirable in the first instance to have an arbitrator pass on the threshold question of arbi-trability, instead of running the possible risk that a court, in the guise of ruling on this preliminary question of the jurisdiction of the arbitrator, may in effect make a ruling upon the merits of the asserted grievance. See Summers, “Judicial Review of Labor Arbitration or Alice Through the Looking Glass,” 2 Buffalo L.Rev. 1 (1952); Cox, “Some Lawyers’ Problems in Grievance Arbitration,” 40 Minn.L.Rev. 41 (1955); Clifton, “Arbitration and Arbitrability,” 3d Annual Conference on Labor N.Y.U. 187 (1950). See also Greyhound Corp. v. Division 1384 of Amalgamated Association of Street, etc., Employees of America, 1954, 44 Wash.2d 808, 271 P.2d 689. See also an address by Professor Cox at the University of Cincinnati Conference on Labor Arbitration, November 14, 1957, entitled “Current Problems in the Law of Grievance Arbitration.” While not ignoring the force of these considerations, it seems to us that they would be persuasive not so much in a case like the present, but rather in inducing the parties to make a voluntary submission to arbitration, and in inducing the parties to include terms in a collective bargaining agreement giving wide scope to the questions to be submitted to arbitration. But when one of the parties needs the aid of a court, and asks the court for a decree ordering specific performance of a contract to arbitrate, we think that the court, before rendering such a decree, has the inescapable obligation to determine as a preliminary matter that the defendant has contracted to refer such issue to arbitration, and has broken this promise. The petitioning Union in the present case has indeed recognized this necessity, for the petition alleges that the refusal of the defendant Company to submit the stated grievance to arbitration constituted a breach of the Company’s contract to arbitrate as contained in Art. XV of the collective bargaining agreement. In our elaborate opinion in Local 205, etc. v. General Electric Co., 1 Cir., 1956, 233 F.2d 85, 101, we dealt with the foregoing matter as follows: “Arbitrability is a question which the district court must pass on in the first instance. By way of guidance, it may be appropriate to note here a brief comment on some general principles. The scope of an arbitration pledge is solely for the parties to set, and thus the determination of whether a particular dispute is arbitrable is a problem of contract interpretation. * * * However, an arbitration clause, either expressly or by broadly stating its scope to include disputed interpretations of any contract term, may refer the very question of arbitrability to the arbitrator for decision. That is, just as a court has jurisdiction to determine its own jurisdiction, the arbitrator in such a case has power to interpret the scope of the arbitration terms of the contract, including questions of whether the dispute at issue is made arbitrable therein and whether the applicant has satisfied the contract procedures prerequisite to arbitration. * * * Thus the district court must first determine whether the contract in suit puts matters of arbitrability to the arbitrator or leaves them for decision by the court. If it is the latter, the court must decide such points before it can give relief under §§ 3 or 4 of the Arbitration Act. If it is the former, and the applicant’s claim of arbitrability is not frivolous or patently baseless, an order can be given, with the decision on arbitra-bility to be made in the arbitration proceedings that follow, subject of course to §§ 10-11 of the Act.” See to the same effect Davenport v. Procter & Gamble Mfg. Co., 2 Cir., 1957, 241 F.2d 511; International Union, United Automobile Aircraft, etc. v. Benton Harbor Malleable Industries, 6 Cir., 1957, 242 F.2d 536; “Matters arbitrable under arbitration provisions of collective labor contract,” 1952, 24 A.L.R.2d 752, 766. What we said in Local 205, etc. v. General Electric Co., supra, was stated' on the assumption that the provisions of the United States Arbitration Act were applicable to an agreement to arbitrate contained in a collective bargaining agreement. If that assumption is correct, it is pretty clear from the provisions of § 3 and § 4 of the Arbitration Act (61 Stat. 670-71) that the trial court, as a preliminary to giving the relief therein set forth, must necessarily determine as a matter of law whether there has been any contract agreement to submit the issue in question to an arbitration. It is true that § 301 of the Labor Management Relations Act of 1947 can no longer be challenged on the score of unconstitutionality. Textile Workers Union of America v. Lincoln Mills of Alabama, 1957, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972; International Brotherhood, etc. v. W. L. Mead, Inc., 1 Cir., 1956, 230 F.2d 576. But despite the fact that the petitioning Union in the case at bar professed to base its petition on the United States Arbitration Act as well as on § 301 of the Labor Management Relations Act of 1947, it may well be that we are not entitled to dispose of the present case by reliance upon any provision in the Arbitration Act. When Local 205, ■etc. v. General Electric Co. was before “this court, we were troubled by “the hoary though probably misguided judge-made reluctance to give full effect to arbitration agreements”. 233 F.2d at page 96. We therefore thought we were not justified in reading into the very general language of § 301(a) authority in a federal court to decree specific performance of an agreement to arbitrate unless we could find that the provisions of the United States Arbitration Act, by proper interpretation, were made applicable by the Congress to agreements to arbitrate •contained in collective bargaining agreements. We suggested the following “practical grounds” in support of this •conclusion: “A glance at a typical arbitration statute shows that it lays down procedural specifications for use of the new power to compel arbitration. Topics covered may include requisites of a submission, selection of an arbitrator, procedure and subpoena power for the arbitrator, stay and .specific enforcement authority in a •court, grounds and procedure for confirming or vacating an award. A •court decision could overrule the common law bars to specific enforcement, but could not substitute for them the comprehensive and consistent scheme that legislative action could afford, and which is necessary for effective yet safeguarded arbitration.” (Ibid.) And so, after a full consideration of the terms and legislative history of the United States Arbitration Act (233 F.2d .at pages 97-101), we came to the conclusion that though the Congress, in enacting the Arbitration Act, undoubtedly was focusing its attention on the field of commercial arbitration, it nevertheless had chosen to enact a statute which was broad enough in terms to apply to collective bargaining agreements. Our opinion also stated: “The case will therefore be remanded for further proceedings under the Arbitration Act. Since our decision makes clear for the first time in this circuit that that Act is applicable, the district court should now permit the parties to amend their pleadings so as to allege, respectively, compliance with the requisites of the Act and defenses afforded by it.” 233 F.2d at page 101. Since the district court had dismissed the union’s complaint for a decree of specific performance on what we held to be a mistaken view that the Norris-La-Guardia Act, 29 U.S.C.A. § 101 et seq. forbid the district court to grant the requested decree, we entered a judgment in the case vacating the district court’s judgment of dismissal and remanding the case to that court for further proceedings not inconsistent with our opinion. Certiorari was granted in this and other cases. The main opinion of the Supreme Court was in Textile Workers Union of America v. Lincoln Mills of Alabama, 1957, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972. In that case, without mentioning the Arbitration Act, the Supreme Court concluded that the- general language in § 301 of the Labor Management Relations Act of 1947 was in and of itself sufficient authority to a federal district court to decree specific performance of an agreement to arbitrate. Only a brief opinion was written by the Supreme Court in General Electric Co. v. Local 205, 353 U.S. 547, 77 S.Ct. 921, 1 L.Ed.2d 1028, which the Court regarded as a companion case to Textile Workers Union of America v. Lincoln Mills of Alabama. Referring to our opinion in 233 F.2d 85, the Supreme Court said: “It first held that the Norris-La-Guardia Act did not bar enforcement of the arbitration agreement. It then held that while § 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185(a) gave the District Court jurisdiction of the cause, it supplied no body of substantive law to enforce an arbitration agreement governing grievances. But it found such a basis in the United States Arbitration Act, which it held applicable to these collective bargaining agreements. It accordingly reversed the District Court judgment and remanded the cause to that court for further proceedings. “We affirm that judgment and remand the cause to the District Court. We follow in part a different path than the Court of Appeals, though we reach the same result. As indicated in our opinion in No. 211, Textile Workers Union of America v. Lincoln Mills of Alabama, supra, we think that § 301(a) furnishes a body of federal substantive law for the enforcement of collective bargaining agreements in industries in commerce or affecting commerce and that the Norris-LaGuardia Act does not bar the issuance of an injunction to enforce the obligation to arbitrate grievance disputes.” 353 U.S. 547, at page 548, 77 S.Ct. 921, at page 922. The Supreme Court sent down to us a ■certified copy of its judgment in the case, which judgment, under paragraph 3 of Rule 59, Revised Rules of the Supreme Court (346 U.S. 1009), 28 U.S.C.A., served also as the Supreme Court’s mandate to the district court. That judgment by the Supreme Court contained the following: “It is now here ordered and adjudged by this Court that the judgment of the said United States Court of Appeals, in this cause, be, and the same is hereby, affirmed; and that this cause be, and the same is hereby, remanded to the United States District Court for the District of Massachusetts.” It may perhaps be surmised that if the Supreme Court had agreed with our analysis as to the applicability of the Arbitration Act, it would have said so, for that conclusion would have rendered the case before the Supreme Court easier to decide. On the other hand, it is possible that the Supreme Court found the proper interpretation of the Arbitration Act a difficult question to decide, which it was justified in side-stepping as unnecessary to the disposition of the case, since, in its view, in any event the broad provisions of § 301(a) of the Labor Management Relations Act of 1947 were sufficient in and of themselves to authorize a federal district court to decree specific performance of an agreement to arbitrate. The foregoing, of course, is pure speculation on our part. Perhaps it is a speculation in which we ought not to indulge, in the absence of an express ruling by the Supreme Court on the matter. Anyhow, though we are still convinced of the correctness of our ruling as to the applicability of the Arbitration Act, we think that in disposing of the present case we should, as an alternative ground, proceed on the assumption that the provisions of the Arbitration Act are by their terms inapplicable to collective bargaining agreements. We are unable to say whether, on that assumption, in fashioning the federal substantive law to be applied in suits under § 301(a), the Supreme Court would adopt, as a guiding analogy, the provisions of the United States Arbitration Act, as was done by Judge Wyzanski in Textile Workers Union of America (CIO) v. American Thread Co., D.C.D.Mass.1953, 113 F.Supp. 137, at page 142. However that may be, and focusing our attention exclusively on the language of § 301(a), it is obvious that the plaintiff, in a suit under § 301(a), has the burden of establishing that it is bringing a suit for appropriate relief, legal or equitable, for violation of a term of a collective bargaining agreement; and that therefore the district court, before undertaking to decree specific performance of a contract for arbitration, must necessarily first determine, as a matter of law, whether the alleged refusal to arbitrate is a violation of any term in the collective bargaining agreement. Hence, whether we look to the terms of the Arbitration Act, or whether we look exclusively to the terms of § 301(a), the issue of arbitrability under the collective bargaining agreement is inescapably an issue which the district court must determine for itself as a matter of interpretation of the terms of the arbitration article in the collective bargaining agreement. We find nothing in the terms of the carefully guarded arbitration agreement here to warrant the conclusion that the employer has agreed to arbitrate the question of the arbitrability of the grievance stated in the petition. We doubt whether the district court should have rested its dismissal upon the provision of § 2 of Art. XV that “it is specifically agreed that no arbitrator shall have the authority to establish a wage rate or job classification”. The Union may well be correct in saying that this language, properly interpreted, was limited to forbidding the arbitrator to establish new job grades or wage rates, but was not intended to prevent the arbitrator from applying the established job grades and wage rates to existing jobs. More fundamentally, what is submitted to arbitration is defined in § 1 of Art. XV as “Any grievance which involves the interpretation or application of this Agreement”. As we have previously pointed out in this opinion, there is no language in the collective bargaining agreement to be interpreted and applied for the purpose of determining whether the duties performed by any particular employee entitle him to be classified in any particular grade. The provisions of Art. VII of the present collective bargaining agreement may perhaps be contrasted with the provision of the collective bargaining agreement found in Local 205, etc. v. General Electric Co., supra, which, in Art. IX, contained the following, absent in the present case: “The Company shall furnish the Union, within 30 days after the signing of this Agreement, at complete list of job classifications and' rate ranges.” Under such an agreement, it may perhaps be argued that once the Company has supplied the Union with a list, as aforesaid, the terms of the job classifications and rate ranges become incorporated in the collective bargaining-agreement by reference, and become-binding on the Company, so that a dispute-regarding whether the duties performed by a particular employee fall within the job description of the particular grade-relates to “the application or interpretation of any provisions of this Agreement”, the type of grievance which the Company agreed to arbitrate in Art. XIII of that collective bargaining agreement. In the case at bar, the collective bargaining agreement contains absolutely no language by way of job descriptions which could be interpreted or applied for the purpose of determining whether the duties performed by a particular employee fall within any particular grade.. A judgment will be entered affirming the judgment of the District Court. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. 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. Glenn Beverly REED, Appellant, v. UNITED STATES of America, Appellee. No. 72-1193. United States Court of Appeals, Eighth Circuit. Submitted June 16, 1972. Decided June 22, 1972. Glenn Beverly Reed, pro se. Allen L. Donielson, U. S. Atty., Des Moines, Iowa, for appellee. Before MATTHES, Chief Judge, ROSS, Circuit Judge, and URBOM, District Judge. Chief Judge, District of Nebraska, sitting by designation. PER CURIAM. Glenn Beverly Reed stands convicted of aggravated bank robbery. See United States v. Reed, 446 F.2d 1226 (8th Cir. 1971). He is serving his sentence in the United States Penitentiary at Fort Leavenworth, Kansas. Reed is again here, this time on his appeal from the order of the district court denying his 'petition to vacate the judgment and sentence under 28 U.S.C. § 2255. Reed’s pro se petition is premised on the claimed denial of a public trial guaranteed by the Sixth Amendment to the United States Constitution. He alleged that his six daughters were not permitted in the courtroom during his trial, but were required to remain in a designated room, separate and apart from the courtroom. The district court did not hold an evi-dentiary hearing but held that even if appellant’s assertion was based on fact, the absence or exclusion of the children from the courtroom did not deprive Reed of a public trial since the trial was otherwise open to and attended by the public. We affirm. Although not of decisive importance, we cannot fail to observe that Reed, represented by an able and experienced lawyer during the trial and on appeal from the judgment of conviction, made no objection to the exclusion of the children either during the trial or on appeal. Certainly, Reed was aware during the trial of the incident he now seizes upon for the purpose of having his judgment and sentence vacated in this collateral proceeding. In any event, we find no support in any caselaw for the claim that Reed was deprived of his constitutional right to a public trial merely because his children were not permitted in the courtroom. United States ex rel. Mayberry v. Yeager, 321 F.Supp. 199 (D.N.J.1971), involved a similar factual situation. In considering this issue, Judge Cohen aptly observed: “[t]he decisive factor is whether the public was excluded. * * * The only exclusion was of the three children; aged 5, 6 years and 15 months.” 321 F.Supp. at 204 (citation omitted). Analogous in principle are United States v. Kobli, 172 F.2d 919 (3rd Cir. 1949); Davis v. United States, 247 F. 394 (8th Cir. 1917). We are convinced that Reed’s claim is lacking in substance and that the district court properly denied him relief. 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_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. William J. SMITH, Plaintiff, Appellant, v. Gilbert J. PASQUALETTO, Defendant, Appellee. No. 5205. United States Court of Appeals First Circuit. July 1, 1957. Alfred Sigel, Boston, Mass., with whom Hubert Thompson, Boston, Mass., was on brief, for appellant. Thomas F. Maher,n Boston, Mass., for appellee. Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges. WOODBURY, Circuit Judge. The plaintiff-appellant, Smith, a citizen of Massachusetts, brought this action sounding in tort for negligence against the defendant-appellee, Pasqualetto, a citizen of Illinois, in the United States District Court for the District of Massachusetts, under the diversity of citizenship jurisdiction conferred by Title 28 U.S.C. § 1332. The court below entered judgment for the defendant on the ground that the action was barred by the Massachusetts statutes governing limitation of actions. Insofar as relevant the facts of the case are as follows. Plaintiff-appellant was injured when an automobile he was driving and one owned and operated by the defendant collided at a street intersection in Boston in June, 1953. The plaintiff filed his complaint on June 21, 1854, in which he alleged that the collision and his injury occurred on June 24, 1953. However, during the course of the trial it was established without contradiction that the actual date of the injury was June 20, 1953. At the close of the evidence the defendant moved for a directed verdict on the ground that the action was barred by Mass.G.L.(Ter.Ed.) c. 260, § 4 which provides: “actions of tort for bodily injuries * * ' the payment of judgments in which is required to be secured by chapter ninety * * shall be commenced only within one year next after the cause of action accrues.” The District Court denied the motion and submitted the case to the jury which returned a verdict for the plaintiff. Thereupon, the defendant moved for judgment notwithstanding the verdict and the court granted the motion. In the course of a bench conference following the return of the verdict the court noted on its own initiative that the 20th of June, 1954, was a Sunday, which fact might afford some basis for arguing that that day should be excluded in determining the statutory period. However, the court passed over the point by further noting that “[t]he usual Massachusetts rule, where more than seven days is involved, is not to exclude Sunday.” The appellant had made no mention of this “Sunday factor” in his pleadings nor did his counsel advert to it at the trial. Now on this appeal he for the first time argues the applicability of Mass.G.L. (Ter.Ed.) c. 4, § 9 which provides as follows : “Except as otherwise provided, when the day or the last day for the performance of any act, including the making of any payment or tender of payment, authorized or required by statute or by contract, falls on Sunday or a legal holiday, the act may, unless it is specifically authorized or required to be performed on Sunday or on a legal holiday, be performed on the next succeeding business day.” Certainly a federal court may on its own initiative take notice of relevant rules of state law. Bowen v. Johnston, 1939, 306 U.S. 19, 23, 59 S.Ct. 442, 83 L.Ed. 455. Perhaps in some circumstances it is required to do so. See Am. Law Inst. Model Code of Evidence, Rule 801. However, occasionally as here an applicable rule of law eludes not only counsel, but also, since omniscience can hardly be expected, of the trial judge. Although there are situations in which the overall needs of justice require that parties on appeal be denied recourse to rules of law to which the attention of the trial court has not been specifically directed, see Fed.R.Civ.P. 51, 28 U.S.C. (objections to instruction to jury) and Fed.R.Civ.P. 46 (objections to evidence), appellate courts are understandably reluctant to impose injustice upon a party by affirming a judgment which would have no legal basis were it not for the laxity of his counsel. See Fourth National Bank v. Francklyn, 1887, 120 U.S. 747, 751-752, 7 S.Ct. 757, 30 L.Ed. 825; Keene Lumber Co. v. Leventhal, 1 Cir., 1948, 165 F.2d 815. In this case we will consider the appellant’s rights under the Massachusetts “Sunday statute,” for to do so imposes no substantial injustice upon either the appellee, or other litigants awaiting access to the courts, since no further proceedings of any significant duration will result which would be otherwise unnecessary were it not for the laxity of appellant’s trial counsel. To the extent that appellee may have suffered the expense of the appeal solely because of the appellant’s delay in raising the critical issue, appropriate compensation can be made by awarding costs on appeal to the appellee. Murdock v. Ward, 1900, 178 U.S. 139, 149, 20 S.Ct. 775, 44 L.Ed. 1009. Proceeding now to the merits of appellant’s argument with respect to the applicability of the so-called “Sunday statute,” Mass.G.L.(Ter.Ed.) c. 4, § 9, we conclude that said legislation, is effective to extend the expiration date of the period of limitations to Monday, June 21, 1954, on which date the complaint was properly filed. While there are no Massachusetts cases directly in point, the so-called “Sunday statute” expressly provides that “[e]xcept as otherwise provided, when * * * the last day for the performance of any act * * * required by statute * * * falls on Sunday * * * the act may, unless it is specifically authorized or required to be performed on Sunday * * , be performed on the next succeeding business day.” Mass.G.L.(Ter.Ed.) c. 4, § 9. In disputing the applicability of this statute to the case at bar appellee; makes several arguments, none of which appear to us to have sufficient weight to counteract the clear language of the statute. Appellee’s arguments are directed to the “except as otherwise provided” clauses with the assertions that 1. the common law rule cited by the court below, and 2. the language of the “short statute,” Mass.G.L. (Ter.Ed.) c. 260, § 4, do “otherwise provide.” Gonsidering the latter statutory provision first we note that the allegedly applicable language reads as follows: “[Ajctions of tort for bodily injuries or for death the payment of judgments in which is required to be secured by chapter ninety * * shall be commenced only within one year next after the cause of action accrues.” Mass.G.L.(Ter.Ed.) c. 260 §4. Appellee contends that the phrase “only within one year next” must be strictly construed as providing that without exception the action must be brought by the first anniversary date of the accrual thereof or be barred. We do not agree that such a strict construction is required in order to give effect to the phrase in question. Rather, in view of the fact-that the short statute is an exception carved out of the longer two year statute of limitations for torts in general, we consider that a more natural construction of the language places the emphasis upon the word ’’one” in recognizing an intention to set off “one year” as against “two years.” It seems to us an excessively strained interpretation of both language and legislative intent to place predominant emphasis upon the word “only” in order to effectuate an alleged purpose to disallow the extra day provided in certain situations by the previously enacted “Sunday statute.” Therefore we conclude that the statute does not “otherwise provide” and*, proceed to consider the possible applicability of the common law rule invoked by the court below, which rule purports to restrict the exclusion of Sundays in computation of expiration date to periods shorter than seven days. See Haley v. Young, 1883, 134 Mass. 364; Stevenson v. Donnelly, 1915, 221 Mass. 161, 163, 108 N.E. 926. First we must point out that the common law rule in question is not necessarily inconsistent with the “Sunday statute.” The “Sunday statute” relates only to situations where Sunday (or any other legal holiday) is the last day of the period, whereas the common law rule extends to situations where Sunday falls within the period. To the slight extent that the two rules might be considered contradictory we are obliged to give force to the statute. To give force to the statute undercuts but slightly the application of the common law rule, whereas to give full force to the common law rule would thoroughly frustrate the purpose of the statute. In concluding that the statute rather than the common lav/ provision governs this case we consider it further significant that the Massachusetts cases applying the common law rule to terminal dates falling on Sunday, see e. g., Cooley v. Cook, 1878, 125 Mass. 406, antedate the enactment of the statute in 1907, and in the subsequently decided case of Grant v. Pizzano, 1928, 264 Mass. 475, 163 N.E. 162, the Supreme Judicial Court of Massachusetts recognized that the “Sunday statute” effectively modified the common law rule. A judgment will be entered vacating the judgment of the District Court and remanding the case to that Court for further proceedings not inconsistent with this opinion. Costs on appeal to the appellee. . Under the rule of Erie RR. v. Thompkins, 1938, 304 U.S. 64, 58 S.Ct, 817, 82 L.Ed. 1188, as evolved in subsequent Supreme Court decisions, the District Court in this case would clearly be obliged to apply the state statute of limitations if the action would be barred thereunder were it brought in the state court. See Guaranty Trust Co. v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079. Whatever reservations might be entertained concerning the scope of the holding in Guaranty Trust Co. v. York, see Hart & Wechsler, Federal Courts and the Federal System, 659-00, do not apply here since this cause arises solely under the laws of Massachusetts and the Massachusetts “short statute” of limitations here involved appears to be directed primarily at protecting defendants from extended uncertainty as to liability rather than reducing the burden of stale litigation upon courts of the state. . Whether actions against non-resident motorists are among those “the payment of judgments in which [are] required to be secured by chapter ninety” and thereby subject to the special one year rather than the general two year statute of limitations, Mass.G.L.(Ter.Ed,) c. 260, § 2A, is a difficult question of statutory interpretation, as yet unresolved by Massachusetts cases, which we do not reach since it is not necessary to the decision in this case. . Since wo are here largely concerned with the extent to which the federal judicial system should be protected from ■relitigation necessitated by laxity of counsel, we consider it proper in a diversity case, as in any other, to refer to federal rather than state precedent. Cf. footnote 1, supra. 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_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. Francis A. LOVELY, Petitioner, Appellant, v. Michael J. CUNNINGHAM, Warden, New Hampshire State Prison, Respondent, Appellee. No. 85-1379. United States Court of Appeals, First Circuit. Argued March 3, 1986. Decided June 24, 1986. Eleanor Krasnow, Manchester, N.H., by Appointment of the Court, for petitioner, appellant. Amy L. Ignatius, Asst. Atty. Gen., Civil Bureau, with whom Stephen E. Merrill, Atty. Gen., Concord, N.H., was on brief, for respondent, appellee. Before COFFIN and BREYER, Circuit Judges, and MALETZ, Senior Judge. Of the United States Court of International Trade, sitting by designation. COFFIN, Circuit Judge. This appeal from the district court’s denial of a writ of habeas corpus challenges the retroactive application to petitioner of the New Hampshire Supreme Court’s construction of the state’s Aggravated Felonious Sexual Assault statute, RSA 632-A:2 (Supp.1983). In particular, the challenge addresses the court’s interpretation of “extortion”, one of the listed means of coercing sexual penetration, as embracing “threats of economic reprisal”. State v. Lovely, 124 N.H. 690, 695, 480 A.2d 847, 850 (1984). We affirm the judgment below. The indictments, containing twelve counts, charged the felony of Aggravated Felonious Sexual Assault (involving sexual penetration), and eight complaints charged the misdemeanor of Sexual Assault (not involving sexual penetration). They all contained the basic allegations that defendant “did, knowingly by coercion engage in [a sexual act with victim and] coerced [victim] ... by threatening him with [one or more of the following:] loss of his employment, housing and possible criminal charges involving monies owed by the victim to the defendants should he not submit.” The factual background was, in brief, that petitioner, a state liquor, store manager, befriended victim, a drifter, and over a period of four months spent in excess of one thousand dollars on him, hired him as an employee at the liquor store, paid $60 to the Hanover police by way of restitution for a theft committed by victim, paid his room rent, and even urged victim to live in petitioner’s home. As time went on, according to victim’s testimony, petitioner coerced victim on many occasions into performing sexual acts by making threats. The most numerous threats were of the loss of victim’s job, which required little work for the money. A few threats were that victim would no longer be allowed to stay in petitioner’s home or in victim’s rented room. Still other threats were of a generalized nature, referring to the police. At several points victim gave some more details to his perception of the threats relating to the police. On one exchange, victim stated that his fear was that petitioner would sue him for the money paid the Hanover police by way of restitution. Since victim had no money, he speculated that “if you get sued maybe you could end up in jail.” [Tr. 384]. At another point, victim referred to a threat by petitioner “to take me to court, criminal court, or whatever, about the money that he had spent on me.” [Tr. 536]. On another occasion victim said that he submitted to sexual advances against his will because “I didn’t know exactly what suing meant, so I was scared____” [Tr. 392], Another source of victim’s apprehension was that he interpreted petitioner’s “keeping me out of trouble” talk to refer to two other crimes concerning which the Hanover police were looking for him. [Tr. 507]. The court, in instructing the jury, read the twelve felony counts and the eight misdemeanor counts, .and quoted the relevant statutory definitions of the crimes and of the element of coercion by “threatening to retaliate”, mentioning “extortion” as included in the latter. The court also charged that the state had to prove absence of consent beyond a reasonable doubt, adding, “in considering the issue of consent you may consider what steps [victim] took to resist performing the alleged acts.” There were no objections to any of these instructions. The jury returned verdicts of guilty on all twelve felony counts and on seven of the eight misdemeanor counts. On appeal petitioner’s argument was that threats of financial retribution, as distinguished from threats of violence, were not criminalized by the Aggravated Felonious Sexual Assault statute. The New Hampshire Supreme Court disagreed, stating, “[t]hreats of mental punishment, extortion (as defined by RSA 637:5 II to include threats of economic reprisal) ... clearly extend beyond threats of physical violence to reach acts that undermine consent through the use of non-violent coercion. See generally ALI Model Penal Code and Commentaries § 213.1, at 312 (1980).” Lovely, 124 N.H. at 695, 480 A.2d at 850. One month after the New Hampshire decision, petitioner filed a “Motion to Supplement Motion to Reconsider”, arguing that the state court’s construction of the Aggravated Felonious Sexual Assault Statute was unforeseeable and therefore constituted a violation of the ex post facto principle and rendered the statute unconstitutionally vague. This motion being denied, petitioner filed a petition for a writ of habeas corpus in the district court for the District of New Hampshire. It was subsequently dismissed and this appeal followed. Before addressing petitioner’s arguments, we set forth New Hampshire’s statutory scheme. The Aggravated Felonious Sexual Assault statute, RSA 632-A:2, provides in pertinent part: “A person is guilty of a class A Felony if he engages in sexual penetration with another person under any of the following circumstances: IV. When the actor coerces the victim to submit by threatening to retaliate against the victim, or any other person, and the victim believes that the actor has the ability to execute these threats in the future.” RSA 632-A:1 defines “Retaliation” as follows: “II. ‘Retaliation’ means threats of future physical or mental punishment, kidnapping, false imprisonment, extortion or public humiliation or disgrace.” The statute referring to “extortion” is the following: “RSA 637:5 Theft by Extortion I. A person is guilty of theft as he obtains or exercises control over the property of another by extortion and with a purpose to deprive him thereof. II. As used in this section, extortion occurs when a person threatens to: ---- (g) Take action as an official against anyone ... or cause such action---- (i) Do any other act which would not in itself substantially benefit him but which would harm substantially any other person with respect to that person’s health, safety, business, calling, career, financial condition, reputation, or personal relationships.” This assortment of statutes poses a threshold problem of parsing. Indeed, petitioner would call this another basis for reversal. When one tries to diagram the relevant provisions, the structure looks like this: The felony of Aggravated Felonious Sexual Assault is committed when the actor coerces the victim to engage in sexual penetration By “threatening to retaliate” (632-A.2, IV) means I Threaten extortion (632-A:I, II) means Threaten to “cause [official! action” (637:5 11(g)) or “do ... act . . . which would harm substantially any other person” (637:5 II(i)). A literal substitution of definitions for key words, therefore, would result in the following definition of aggravated sexual assault: “Sexual penetration when the actor coerces the victim by threatening to threaten to threaten to do any other act____” Such a reading, of course, might rival Gertrude Stein’s “A rose is a rose is a rose” but would treat the legislature’s efforts as a nullity. For example, the second clause in 632-A:2 IV, “and the victim believes that the actor has the ability to execute these threats in the future” would have no meaning; the promise of a future threat to make yet another future threat would seem to require no abilities other than survival and voice retention. Moreover, the statutory definition of retaliation in 632-A:1 II as “threats of” various acts seems sorely off base; it leaves no room for a definition of the threatened act itself, and is at odds with the dictionary definition of “paying back” or “punishment in kind”, American Heritage Dictionary 1109 (1973), “reprisal”, Webster’s New World Dictionary 1242 (1957), or “[t]he action of retaliating; the return of like for like; repayment in kind; requital, reprisal.” Compact Edition of the Oxford English Dictionary 2520 (1981). It seems highly likely that the definition of “retaliation” was intended to read “physical or mental punishment ... extortion”, etc., resulting from a prior threat. This, however, leaves something to be desired. There are still two “threatens” in sequence: to threaten extortion is (by substituting the definition of extortion in the theft by extortion statute, 637:5 II) to threaten to threaten to “do any other act____” This, of course, makes no sense; a threat to make a future threat would hardly be a source of coercion except against the most acquiescent. This problem, it should be noted, does not arise with the other forms of “retaliation”; one can threaten imminent physical or mental punishment, kidnapping, false imprisonment, and public humiliation or disgrace in return for sexual favors, with an understandably coercive effect. Extortion fits into this role only if it also means an act flowing from one, and only one, present threat. What the New Hampshire Supreme Court did, without explicit analysis, was to elide the surplus “threaten’s” in the various definitions so that coercion could be accomplished by a threat to do an act if submission was not forthcoming. It also equated with “violent or personally endangering threats” “[t]hreats of mental punishment” and extortion, which it characterized as including “threats of economic reprisal”. Lovely, 124 N.H. at 690, 480 A.2d at 850. One might have wished for a more precise and explicit rationale. One might even disagree with the result. But we simply cannot say that the construction by the supreme court of a state statute in some need of syntactical surgery, resulting in the elision of some words to achieve a sensible interpretation raises a constitutional issue. As is stated and well-documented in 2A N. Singer, Sutherland Statutory Construction § 45.12, at 54 (C. Sands 4th ed. 1984) (footnote omitted), “departure from the literal construction of a statute is justified when such a construction would produce an absurd and unjust result and would clearly be inconsistent with the purposes and policies of the act in question.” Petitioner’s more basic claim is that New Hampshire’s Aggravated Felonious Sexual Assault statute including, as one of the proscribed means of coercing sex through threats to retaliate, a threat to extort, has implicit reference to the traditional statutory crime of extortion, i.e., the obtaining of the property of another through threats. In other words, for the crime of aggravated sexual assault to be committed, he argues, one must have coerced his victim through threatening to take adverse action against him unless the victim handed over his property. When the New Hampshire Supreme Court held that, for purposes of the Aggravated Felonious Sexual Assault statute, coercion through extortion includes coercion through threats of economic reprisal without the objective of acquiring a victim’s property, it, claims petitioner, was so novel and unforeseeable a construction that, under Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), due process forbids its retroactive application to petitioner. In Bouie, petitioners, “sit-in” demonstrators who refused, though requested, to leave a drug store, were convicted under a criminal trespass statute providing that “Every entry upon ... lands of another, after notice ... prohibiting such entry, shall be a misdemeanor----” Id. at 349 n. 1, 84 S.Ct. at 1700 n. 1. The Court held that the state court, in construing the statute to cover the act of remaining on premises after receiving notice to leave and applying such construction to petitioners, had. violated the Due Process Clause, because “[t]he crime for which these petitioners stand convicted was ‘not enumerated in the statute’ at the time of their conduct.” Id. at 363, 84 S.Ct. at 1707. Specifically, petitioner claims in this case that the state court unforeseeably widened the definition of “extortion” beyond its prior use as a synonym for the statutory crime of “theft by extortion”. In this case, the elements of the statutory offense were not “so changed by judicial interpretation as to deny to [petitioner] fair warning of the crime prohibited”. Splawn v. California, 431 U.S. 595, 601, 97 S.Ct. 1987, 1991, 52 L.Ed.2d 606 (1977). An important, though not indispensable, factor in Bouie was that the state supreme court has adopted an expansive construction of “narrow and precise” statutory language. Bouie, 378 U.S. at 352, 84 S.Ct. at 1702. See also Marks v. United States, 430 U.S. 188, 195, 97 S.Ct. 990, 994, 51 L.Ed.2d 260 (1977). The Supreme Court explained that “[w]hen a statute on its face is narrow and precise ... it lulls the potential defendant into a false sense of security, giving him no reason even to suspect that conduct clearly outside the scope of the statute as written will be retroactively brought within it by an act of judicial construction.” Bouie, 378 U.S. at 352, 84 S.Ct. at 1702. The instant case did not involve “narrow and precise statutory language”. The term in question —“extortion”—is itself not precise. Its meaning differs depending on whether one refers to the dictionary, to the common-law crime, or to the various state and federal statutory schemes. Moreover, when alternative statutes in the New Hampshire Criminal Code contain the definition of an imprecise word (extortion), it was not unforeseeable that the court would borrow from one rather than the other. Petitioner argues that he was deprived of his freedom through violation of the basic due process requirement of notice, saying that the crime of extortion was, at the time of his coercive efforts, the only fair referent. His candidate for that position is 637:1 in the Theft Statutes chapter of the New Hampshire Criminal Code: “Conduct denominated theft in this chapter constitutes a single offense embracing the separate offenses such as those heretofore known as larceny ... extortion____” Although “extortion” in this section is certainly idéntified as a free standing crime, ambiguity is introduced by referring to it as an offense “heretofore known” as such. The New Hampshire Supreme Court, as we have noted, chose section II of USA 637:5. Section I contains the definition of the crime of. theft by extortion — i.e., obtaining control of the property of another by extortion with a purpose to deprive him of such property. Section II states that “extortion occurs” when, inter alia, one threatens official action or threatens to harm another’s financial condition substantially. The court obviously looked on such threats as extortion, whether the objective be sex or property. Petitioner, insisting that “extortion” could properly refer only to the complete crime of theft by extortion, would read Section II as saying that “theft by extortion occurs when a person threatens to ... take action as an official ... [or] do any other [harmful] act____” (Emphasis supplied). But such a reading would omit the critical elements of obtaining control of another’s property with the purpose of depriving him of such property and would therefore be incomplete. Petitioner’s efforts fall short of persuading us that the New Hampshire Supreme Court’s reliance on 637:5 II for its definition of “extortion” resembles the situation in Bouie where the state court’s opinion drastically expanded the reach of a statute punishing unlicensed entry to include unlicensed continued occupancy. Petitioner has one other claim — that the Aggravated Felonious Sexual Assault statute, as construed by the New Hampshire Supreme Court, is void for vagueness. Petitioner’s main contention is that the New Hampshire Aggravated Felonious Sexual Assault statute, as interpreted by the state court, would permit, as he asserts happened in the case at bar, the criminal prosecution of one who endeavors to exert pressure on a lover for continued favors. Indeed, we share the concern that the statute not be used to criminalize lover’s quarrels. We therefore look for guidance in applying the statute and check to see if it was misapplied in this case. In understanding the scope and direction of the New Hampshire Supreme Court’s opinion, we look first at the cited page of the ALI Model Penal Code and Commentaries, Part II, § 213.1, at 312 (1980). Here is found a discussion of the Code’s closest analogy to the New Hampshire statute, a crime subordinate to rape, “gross sexual imposition”. Id. at § 213.1(2). One variation of this crime is sexual intercourse between a man and a female not his wife if the female is compelled to submit “by any threat that would prevent resistance by a woman of ordinary resolution”. Id. at § 213.1(2)(a). The commentary proceeds in part as follows: “Examples might include threat to cause her to lose her job or to deprive her of a valued possession. This provision extends liability for coercion by threat far beyond anything contemplated by prior law. It rests on the judgment that using one’s ability to cause harm in order to override the will of a reluctant female is wrongful and should be punished. “Stated abstractly, the rationale for Subsection (2)(a) seems self-evident. Yet there are obvious dangers in extending the prospect of criminal sanctions into the shadow area between coercion and bargain. To take an extreme example, the man who ‘threatens’ to withhold an expensive present unless his girlfriend permits his advances is plainly not a fit subject for punishment under the law of rape.” (Emphasis supplied.) The New Hampshire court, in specifically referencing this discussion, indicated its general acceptance of the Code’s approach to distinguishing “illegitimate threat from the process of bargain.” Id. at 314. The Commentary noted that “[t]he most refined resolution of this issue is achieved under the law of extortion ____ [and] guidance can be drawn from this source in the effort .to distinguish between coercion and bargain in the application of the Model Code provision on gross sexual imposition.” Id. at 314-315. We are then referred to the Code’s section on “Theft by Extortion”, § 223.4, at 201, with provisions similar to but not identical with New Hampshire’s 637:5. We now briefly address the evidentiary record, as the jury had a right to view it. We note at the outset that we must interpret this record, not only taking all facts and inferences therefrom favorable to respondent, but measuring them against the standard of constitutional adequacy applicable to state court convictions. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (“question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”) (emphasis in original). We would concede that the evidence of threats to end victim’s privilege of living with petitioner and his family would, without more, seem to us to resemble the withholding of an expensive present. But we are persuaded that the combination of petitioner’s various threats to make trouble for victim with the police, see n. 3 and accompanying text, supra, and his threats to cause victim to lose his job, see n. 1, supra, constitute a supportable basis for a finding of extortion. Not only were there the numerous generalized threats to talk to the police about victim and the money owed petitioner, but petitioner allegedly threatened to take him to criminal court and victim told of his fear of ending up in jail and of being prosecuted for two crimes for which he was being sought by the police. Such threats fall within both 637:5 11(g) (“cause [official] action [against anyone]) and 637:5 II(i) (“[d]o any other act which would not in itself substantially benefit [petitioner] but which would harm substantially [victim] with respect to that person’s health, safety, business, calling, career, financial condition, reputation, or personal relationships”). Moreover, the plethora of petitioner’s threats to fire victim, together with the dire consequences apprehended by petitioner of being without any financial resources, seem clearly to qualify as threats under 637:5 II(i). Indeed, as we have noted, the Model Penal Code commentary to § 213.1(2)(a) specifically cites as an example of a punishable threat a “threat to cause [victim] to lose [his] job”. It may well be that the job in this case involved very little work, but the jury was entitled to find the disproportion between benefit to petitioner and harm to victim sufficient to bring the threats within the realm of coercion. Additionally, the jury was specifically instructed to consider any evidence of resistance by victim in connection with determining whether the state had carried its burden of proving lack of consent. In sum, although the prosecution’s case was far from overpowering, we are satisfied that the combination of circumstances testified to supported the jury’s implicit finding that the situation in which victim found himself was that of coercion rather than bargain. We acknowledge, as does the Model Penal Code commentary, that there will be problems of drawing a boundary between unpunishable bargain and punishable coercion. The instant case, as it could reasonably have been viewed by the jury, did not so approach the margins as to prejudice petitioner by any vagueness that might exist as to boundaries. For the reasons discussed above, the decision of the district court is affirmed. No costs. . Transcript 255, 256, 257, 258, 260, 261, 262, 263, 269, 271, 280, 283, 286, 297, 298, 300, 309, 393, 399, 418. . Transcript 286, 297, 300, 546. . “[Y]elling about ... how he was helping me with the police." [Tr. 258]; "mention something about ... The Hanover Police.” [260]; “I would be in trouble with the police.” [261]; "I think he might have said something about the police.” [262]; "[Petitioner] started yelling about the job and the Hanover Police, and that I would get into serious trouble if he decided to let me go from the store.” [271]; "talking about the Hanover Police Department, the payment, and the job and that I could be picked out of his house at any time he wanted.” [309]; "if I went out the door that I would be sorry.” [484]; "He just stated something about the Hanover police____ He was keeping me out of trouble with the Hanover police.” [505-506]; "he threatened me with the Hanover police, saying that he was keeping me out of trouble.” [508-509]; "he was protecting me, keeping me out of trouble with the law.” [546]. . The state court’s construction is, of course, binding on us. The question here is not what the statute means or says, but whether the court’s construction can be applied retroactively to petitioner consistent with due process. Royal v. Superior Court, 531 F.2d 1084, 1088 n. 14 (1st Cir.1976) (citing Bouie). Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_appnatpr	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. FREEMAN v. SMITH. No. 6923. Circuit Court of Appeals, Ninth Circuit. Dec. 12, 1932. H. L. Faulkner, of Juneau, Alaska, and Lund & Lund, of Seattle, Wash., for appellant. John Rustgard, Atty. Gen., of Alaska, for appellee. Pillsbury, Madison & Sutro, F. D. Madison and L. B. Groezinger, all of San Francisco, Cal., amici curias. Before WILBUR and SAWTELLE, Circuit Judges, and CAYANAII, District Judge. WILBUR, Circuit Judge. This is a second appeal in this case. The former one was from a decree of dismissal after the court had sustained a demurrer to the bill of complaint based upon the ground that the facts alleged did not state a cause of action. Freeman v. Smith, 44 F.(2d) 703, 704. After the ease had been remanded to the lower court, the defendant, Smith, treasurer of the territory of Alaska, filed an answer denying the allegation of the bill that the average catch of salmon for each year by members of the trolling fleet did not exceed $500 and alleging “that trailers who, during the entire season trolled for salmon in the territorial waters of Alaska, caught during each such seasons an average of more than $3,000 worth of salmon in such waters over and above expenses of operation,” and alleging “that an experienced trailer devoting his time to trolling for salmon within the territorial waters of Alaska, will each season earn not less than $3,000 over and above expenses of operation.” Evidence was adduced upon this issue and the trial court rendered a decree denying the plaintiff any relief. It appears from the opinion of the trial court, which is incorporated in the transcript, that the court based its conclusion upon the inability of the plaintiff to prove the average annual earnings of those fishermen who trolled in Alaskan waters. Eight or ten fishermen testified that their average net earnings as salmon trailers had been approximately $500 per annum, or less. The appellee introduced evidence that certain fishermen had made more than $500 per annum; one of the defendant’s witnesses testified “that approximately he made something like around $1,000 a year above expenses; that tjie average for the trolling fleet would be below this average.” • It is argued .by the app ellee that the decision of this court upon the former appeal is no longer controlling in that there was a failure to prove the above mentioned allegation of the bill which had been admitted on the former appeal. The appellee, therefore, reargues the questions which were argued and submitted on the previous hearing. The basic question presented on the former appeal was the effect of the Act of Congress adopted June 6, 1924 (43 Stat. 464 [48 USCA § 221 et seq.] ).upon the power of a territorial Legislature by its act of 1929 (Session Laws of Alaska, 1929,' c. 96, p. 192), to impose a fishing license tax of $250 upon all persons resident or nonresident who had not resided in the territory of Alaska for one year previous to their application for the license to troll for fish, while at the same time imposing a tax’ of only $1 for the same fishing privilege upon residents of Alaska who had so resided in the territory for a year or more. Upon this question we held that the Act of Congress of June 6, 1924, above referred to (43 Stat. 464), granted or reserved the right to all citizens of the United States to fish within areas where such fishing was not prohibited by regulation adopted by the Secretary of Commerce. This decision was based upon the proviso contained in section 1 of the act (48 USCA § 222) which is as follows: “Provided, That every such regulation made by the Secretary of. Commerce shall be of general application within the particular area to which it applies, and that no exclusive or several right of. fishery shall be granted therein, nor shall any citizen of the United States be denied the right to take, prepare, cure, or preserve fish or shellfish in any area of the waters of Alaska where fishing is permitted by the Secretary of Commerce.” We quote from our opinion, written by Judge Rudkin on the former appeal, as follows : “It will thus be seen that the right to take, prepare, cure, or preserve fish or shellfish in any area of the waters of Alaska, where fishing is permitted by the Secretary of Commerce, is guaranteed to every citizen of the 'United States without reservation, whether he be a resident of Alaska or not; and the right so granted cannot be impaired or destroyed by the legislative assembly of the territory. If it can, the grant is an idle and empty one at best. Nor is the right thus conferred in anywise impaired by the last section of the act, which provides in general terms that nothing therein contained shall abrogate or curtail the powers granted the territorial Legislature to impose taxes or licenses nor limit or curtail any powers granted the territorial Legislature by the Organic Act.” Further, from our opinion: “The naked power to impose taxes and licenses, or to make reasonable discrimination between residents and nonresidents, is not involved.” Appellee on this appeal attacks the conclusion reached on the former appeal and argues that as the territorial Legislature had power to impose the taxes, fix license fees, the question of whether or not such fees are reasonable cannot be considered by a court. This contention is based upon section 8 of the Act of June 6, 1924 (48 USCA § 228), which expressly provides that nothing contained in the act should deprive the Alaskan Legislature of power to levy taxes and license fees and that nothing in the act contained should restrict the legislative power conferred on it by the Organic Act of .1912. The Organic Act of 1912 (section 3, 37 Stat. 512 [48 USCA § 24]), as we have seen, prohibited the territorial Legislature from later altering, amending, or modifying or repealing laws relating to game and fishing in Alaska. Auk Bay Salmon Canning Co. v. U. S. (C. C. A.) 300 F. 907. This power was reserved to Congress. The exercise of that right by Congress in subsequent legislation could not have the effect of altering or modifying the Organic Act for the reason that by the terms of the Organic Act itself this power was reserved to Congress.» The exercise of that right by Congress of course would not change or modify the powers of the territorial Legislature which was denied that right by the Organic Act. Nor would the fact that the Congress granted the right to all citizens of the United States to fish in the territorial waters of Alaska where fishing was allowed by regulations of the Secretary of Commerce alter or amend the right of the territorial Legislature to levy taxes or license fees. That power when exercised by the territorial Legislature was necessarily by the Organic Act itself so limited that it could not be used to nullify an act of Congress granting fishing rights. Consequently it makes no difference whether the right of a citizen of the United States to fish in Alaskan waters was granted before or after the Organic Act. In either event the right of taxation granted to the territorial Legislature could not be so unreasonably exercised as to deprive a citizen of the United States of a right granted by Congress. Although such rights were subject to reasonable taxation the power of taxation could not he used to deprive a citizen of a right granted by Congress nor to unreasonably restrict that right. This much we held, in effect, on the former appeal where section 8, supra, was construed. In that regard we are not only bound by our previous decásion which has become the law of the case [Roberts v. Cooper, 20 How. (61 U. S.) 467, 15 L. Ed. 969; Montana Mining Co. v. St. Louis Mining Co. (C. C. A. 9), 147 F. 897, 903; United States v. Axman (C. C. A. 9) 193 F. 644, 649; Bodkin v. Edwards (C. C. A. 9) 265 F. 621], but wo reaffirm that conclusion. The question then arises, Is the license tax in question an unreasonable tax ? On the previous appeal we concluded that the exaction of 50 per cent, of the not receipts of the average troller as a license fee was unreasonable and violative of the right granted by Congress to fish in Alaskan waters. We go a step further on the present appeal and hold that the imposition of a license fee of $250 upon all fishermen who* fish by trolling in Alaskan waters, regardless of whether they fish for one hour or one year, and regardless of the catch, is an infringement of the right to fish granted by Congress (43 Stat. 464, supra) notwithstanding the fact, if it he a fact, as alleged in the answer, that skillful fishermen who devote their entire time to fishing during the entire fishing season, can catch fish to the value of $3,000. In our opinion on the previous appeal, wo stated that the right of the territorial Legislature to make reasonable discrimination between residents and nonresidents, was not involved in our conclusion therein which was based upon the unreasonableness of the lisenee fee. The question of the right of the territorial Legislature to discriminate between citizens of the United States who are residents and those who are nonresidents of Alaska, where Congress has expressly granted a right to all citizens of the United States to fish in Alaskan waters unless prohibited by regulations of the Secretary of Commerce, is involved in the case, but in view of our conclusion that the license tax is an unreasonable abridgement of the right of a citizen of the United States, it is unnecessary to consider the discriminatory provisions except as they tend to illustrate the unreasonableness of requiring so large an amount to be paid by nonresidents for exercising the same right afforded to residents by the payment of only one l/250th of that amount. The decision of tho Supreme Court (Haavik v. Alaska Packers’ Ass’n, 263 U. S. 510, 44 S. Ct. 177, 68 L. Ed. 414) holding that the territorial Legislature could discriminate between residents and nonresidents in fixing license fees, was rendered before the enactment of the act of Congress now under consideration granting rights to all citizens to fish in areas designated by the Secretary of Commerce for that purpose. It is, therefore, not decisive of the right of the territorial Legislature to so discriminate between citizens of the United States who are residents and those who are nonresidents of Alaska where both have been granted a right by act of Congress. The decree is reversed and the trial court is directed to enter a decree permanently enjoining the defendant from enforcing the license fee of $250 fixed by the statute of Alaska in question. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
sc_partywinning	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. THOMPSON v. LAWSON, DEPUTY COMMISSIONER OF THE UNITED STATES BUREAU OF EMPLOYEES COMPENSATION, et al. No. 352. Argued March 9, 1954. Decided April 5, 1954. David Carliner argued the cause for petitioner. With him on the brief was Henry H. Glassie. George W. Ericksen argued the cause and filed a brief for the Gulf Florida Terminal Co., Inc. et al., respondents. Lester S. Jayson argued the cause for the Deputy Commissioner, respondent. With him on the brief were Robert L. Stern, then Acting Solicitor General, Assistant Attorney General Burger and Samuel D. Slade. Mr. Justice Frankfurter delivered the opinion of the Court. On June 15, 1951, Otis Thompson died from injuries suffered while loading a ship for his employer. Two women sought a death benefit under the Longshoremen’s and Harbor Workers’ Compensation Act, each claiming to be his “widow.” The Deputy Commissioner denied both claims, that of one woman on the ground that she was not the lawful wife of the decedent, and that of the other because at the time of Otis’ death she was living apart from him not “by reason of his desertion,” 33 U. S. C. § 902 (16). On a review of the latter dismissal, the District Court sustained the Deputy Commissioner’s order, and the Court of Appeals for the Fifth Circuit affirmed. 205 F. 2d 527. In doing so, that court rejected contrary decisions of the Courts of Appeals for the Second and Ninth Circuits, Associated Operating Co. v. Lowe, 138 F. 2d 916, Moore Dry Dock Co. v. Pillsbury, 169 F. 2d 988. We granted certiorari to resolve this conflict. 346 U. S. 921. The Deputy Commissioner made these findings. Otis and Julia Thompson were married in 1921, and lived together as husband and wife until November 1925, when Otis deserted her. They never lived together again, and he never contributed anything to the support of Julia or their two children, nor did she ever endeavor to secure such support. Meanwhile Otis had taken up with one Sallie Williams, and they went through a marriage ceremony in 1929. Julia, in turn, found another mate, one Jimmy Fuller, whom she “married” in 1940. Thereafter she was known as Julia Fuller. She was formally divorced from Fuller in 1949. Shortly before Otis’ death, he asked Julia to “take him back,” but she refused, having no intention of ever again living with him and resuming the relationship of husband and wife. The single, unentangled question before us is whether, on these unchallenged facts, Julia was at the time of Otis’ death in 1951, his statutory “widow,” as that term is described by Congress in the Longshoremen’s Act: “The term ‘widow’ includes only the decedent’s wife living with or dependent for support upon him at the time of his death; or living apart for justifiable cause, or by reason of his desertion at such time,” 33 U. S. C. § 902 (16). We agree with the court below that since she was not at the time of her husband’s death living apart from him “by reason of his desertion,” she was not a “widow” within the scope of this provision. Whatever may have been the situation prior to her “marriage” to Jimmy Euller in 1940, it is clear that after that date she lived as the wife of Jimmy Fuller, held herself out as his wife, and had severed all meaningful relationship with the decedent. We do not reach this conclusion by assessing the marital conduct of the parties. That is an inquiry which may be relevant to legal issues arising under State domestic relations law. Our concern is with the proper interpretation of the Federal Longshoremen’s Act. Congress might have provided in that Act that a woman is entitled to compensation so long as she is still deemed to be the lawful wife of the decedent under State law, as, for example, where a foreign divorce obtained by her is without constitutional validity in the forum State. But Congress did not do so. It defined the requirements which every claimant for compensation must meet. Considering the purpose of this federal legislation and the manner in which Congress has expressed that purpose, the essential requirement is a conjugal nexus between the claimant and the decedent subsisting at the time of the latter’s death, which, for present purposes, means that she must continue to live as the deserted wife of the latter. That nexus is wholly absent here. Julia herself, by her purported remarriage, severed the bond which was the basis of her right to claim a death benefit as Otis’ statutory dependent. The very practical considerations of this Compensation Act should not be subordinated to the empty abstraction that once a wife has been deserted, she always remains a deserted wife, no matter what— the no matter what in this case being the wife’s conscious choice to terminate her prior conjugal relationship by embarking upon another permanent relationship. The judgment is Affirmed. It was not contended before us that in the circumstances of this case the phrase “for justifiable cause” has a different reach than the phrase “by reason of his desertion.” Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case? A. Yes B. No Answer:

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