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songer_usc1sect	543	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". UNITED STATES of America, Appellant, v. 525 COMPANY, Appellee. No. 21857. United States Court of Appeals Fifth Circuit. March 22, 1965. Robert L. Waters, Atty., Dept, of Justice, Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Atty., De.pt. of Justice, Washington, D. C., Barefoot Sanders, U. S. Atty., Dallas, Tex., Melva M. Graney, Atty., Dept, of Justice, Washington, D. C„ Stanley McMurry, Asst. U, S. Atty., of counsel, for appellant. Harry C. Weeks, Frank B. Appleman, Fort Worth, Tex., Weeks, Bird, Cannon & Appleman, Fort Worth, Tex., of counsel, for appellee. Before BROWN and BELL, Circuit Judges, and HUNTER, District Judge. HUNTER, District Judge. This is an appeal by the United States from a judgment of the district court awarding taxpayer a refund of corporate and personal holding company taxes. The material facts, all of which are stipulated, appear in the district court’s opinion, reported in 230 F.Supp. 803. The Technical Amendments Act of 1958 (26 U.S.C.A. §§ 1371-1377) amended the Internal Revenue Code of 1954 by adding Subchapter S dealing with small business corporations. The provisions of that subchapter permit certain business corporations, upon filing a proper election, to be taxed after the fashion of a partnership; that is, the corporate entity is by-passed for tax purposes and the shareholders are taxed on their ratable shares of the corporate income. Plaintiff (taxpayer), 525 Company, qualified as such a corporation, and filed an appropriate election to which its two shareholders and their spouses consented. If this election continued in effect through the close of the 1962 taxable year, taxpayer’s income tax liability should have been determined pursuant to Subchapter S. But, the election to be taxed as a small business corporation terminates by operation of law if such corporation has gross receipts more than 20% of which is derived from personal holding company income, including inter alia, royalties (Sec. 1372(e) (5)), of the Internal Revenue Code of 1954. Taxpayer’s net income for the taxable year in suit amounted to $1,087.68 and all of it was derived from an undivided interest in two oil payments. Consequently, if oil payments are royalties within the meaning of the personal holding company provisions of the Internal Revenue Code, then the taxpayer’s election was terminated by operation of law and it owed both corporate and personal holding company taxes. The issue quickly narrows: Did the revenue from the oil payments constitute receipts from royalties within the purview of Section 1372(e) (5) and Section 543(a) (8) of the Internal Revenue Code of 1954 ? Taking the statute in light of its legislative and administrative history, we find nothing to indicate that Congress intended to include “oil payments” within the terms “royalties” or “mineral, oil or gas royalties.” Contrawise, such history as has been presented to us appears to support taxpayer’s contention. It must be presumed that in using terms undefined in the statute, Congress intended the words to have their natural, ordinary and familiar meaning. First National Bank of Cincinnati v. Flershem, 290 U.S. 504, 54 S.Ct. 298, 78 L.Ed. 465; United States v. Leslie Salt, 350 U.S. 383, 76 S.Ct. 416, 100 L.Ed. 441; United States v. Isham, 17 Wall 496, 21 L.Ed. 728. Both the dictionary definitions and the cases demonstrate that the term “royalty”, as used with respect to oil and gas matters, refers to the landowner’s royalty and not to oil payments. Sneed v. Commissioner, 33 B.T.A. 478; Twentieth Century Fox Film Corporation v. Tea, 286 F.2d 373 (5 C.C.A., 1961); Words and Phrases, Yol. 37A, 600-608 and pocket parts. Congress was conscious of the distinctions between the terms “royalties”, “overriding royalties” and “oil payments” at the time the Revenue Act of 1934 was enacted. This is authoritatively established by the legislative history of the 1934 Act which reveals that the question arose as to whether certain types of overriding royalties would be included in the term “royalty”. The report of the Conference Committee on the 1934 Act, 73rd Congress, Second Session, H.R. 1385, expressly stated: “As used in this section, the term ‘royalty’ is not intended to include overriding royalties received by the operating company.” Seidman’s Legislative History of Federal Income Tax Law, 1938-1861, page 399. The proposition that there was a distinction for personal holding company tax purposes between royalties and oil payments was for many years recognized by the Internal Revenue Service. At the time T.D. 6308 was promulgated in September of 1958, Mertens, Law of Federal Income Taxation, in Vol. 7, Para. 40.07 (K) contained the following statement: “Since the Revenue Service holds that payments collected on in-oil payment rights, which are carved out of larger depletable interests in oil and gas in place, do not ordinarily qualify as royalty income for the purpose of determining personal holding company income, oil production payments collected on in-oil payment rights which were originally granted or reserved in a leasing transaction do not qualify as mineral, oil, or gas royalties.” This interpretation had been consistently followed by the courts as well as the Commissioner, and Congress made no change until 1964, although the Code was re-enacted time and time again. This bespeaks congressional approval. In September of 1958 the Internal Revenue Service, in contrast to the position it had taken throughout the many years, declared that the term “mineral, oil or gas royalties” means all royalties, including production payments and overriding royalties. Explicit recognition that this attempt to characterize oil payments as royalties was a departure from prior Treasury practice is found in T.D. 6308 itself, which contained this language: “(iii) The first sentence of subdivision (ii) of this subparagraph shall apply to overriding royalties received from the sublessee by the operating company which originally leased and developed the natural resource property in respect of which such overriding royalties are paid, and to mineral, oil, or gas production payments, only with respect to amounts received after September 30, 1958.” Against the Treasury’s prior long-standing and consistent administrative interpretation, its promulgation of September 30, 1958, as to how the statute should be construed cannot stand. Surely a contemporaneous construction by persons charged with the responsibility of setting the statute’s machinery into motion should not be overturned except for very cogent reasons. Norwegian Nitrogen Prod. Co. v. United States, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796. This Court appreciates the fact that the Treasury has been upheld in many cases where it altered regulations. An examination of the controlling cases upholding the Treasury in such cases will show that they relate either to spheres in which the Congress has delegated special regulatory power to the Treasury or the Service, such as matters relating to depletion allowances, or which deal with items of deductions, but that in other cases where a substantial change is made in the incidence of the tax, the Supreme Court and this Court, as well as others, have held the attempted change invalid. Appellant attempts to uphold the validity of T.D. 6308 by the assertion that prior to the promulgation of that regulation the Internal Revenue Service had not been fully cognizant of the nature of oil payments and their similarity to royalties. Be that as it may, it is nevertheless for Congress, not the Treasury, to make the change. T.D. 6308 constituted a plain administrative endeavor to amend the law as enacted by the Congress and to make it reach subjects and objects which the Congress had deliberately omitted. The effect of such an effort comes within the condemnation of the decisions of the Supreme Court. This is exemplified by Commissioner of Internal Revenue v. Acker, 361 U.S. 87, 80 S.Ct. 144, 4 L.Ed.2d 127 (1959), where the Court stated: “But the section contains nothing to that effect, and, therefore, to uphold this addition to the tax would be to hold that it may be imposed by regulation, which, of course, the law does not permit. United States v. Calamaro, 354 U.S. 351, 359, 77 S.Ct. 1138, 1143, 1 L.Ed.2d 1394; Kosh-land v. Helvering, 298 U.S. 441, 446-447, 56 S.Ct. 767, 769-770, 80 L.Ed. 1268; Manhattan General Equipment Co. v. Commissioner, 297 U.S. 129, 134, 56 S.Ct. 397, 399, 80 L.Ed. 528.” Equally applicable is the Supreme Court’s opinion in United States v. Leslie Salt Co., 350 U.S. 383, 76 S.Ct. 416, 100 L.Ed. 441 (1955) and this Court’s opinions in United States v. Marett, 5 Cir., 325 F.2d 28 (1963); and United States v. Mississippi Chemical Company, 5 Cir., 326 F.2d 569 (1964). The trial court correctly determined that as applied to the facts of this case, the reserved oil payments were not receipts from royalties within the purview of Section 1372(a) (5) or Section 543(a) (8) of the Internal Revenue Code of 1954. The judgment is affirmed. . 525 Company filed an appropriate income tax return as a Subchapter S corporation, and its stockholders in their individual income tax returns for the calendar year 1962 duly reported as parts of their taxable incomes their ratable shares of the net income so reported. . Section 1372(e) (5), as noted by its caption, deals with “personal holding company income”, including “royalties.” Section 543 of the Internal Revenue Code of 1954 defines personal holding company income to include “mineral, oil or gas royalties.” Both taxpayer and the United States agree that for the purposes of this case, the term “royalties” in Sec. 1372(e) (5) is equivalent to the term “mineral, oil or gas royalties” in Section 543. . The oil payments were created in 1955 when one Eugene Gill excepted the same from his assignment of certain oil and gas leases and related equipment. No other interests were retained by Gill when he assigned the leases and equipment. The taxpayer acquired its undivided interests from M. Morse and Company, Ltd. on June 29, 1962. Those oil payment reservations were assignable and of the conventional type. . Revenue Ruling 55-194, published in C.B. 1955-1, page 434; Kiesau Petroleum Co. v. Commissioner, 42 B.T.A. 69; Nemours Corporation v. Commissioner, 38 T.C. 585. . Before the present ease was decided by the district court, Congress, in 1964, added Section 543(b) (4) of the Code which defines “adjusted income from mineral, oil and gas royalties”, as meaning “the gross income from mineral, oil and gas royalties including production payments and overriding royalties.” But, this change was prospective. Senate Report No. 830, Part 2, 88th Congress, 2nd Session, page 250, stated: “However, it has been brought to the attention of your committee that this interpretation of existing section 543 (a) (8) is disputed by some taxpayers. Your committee’s amendment would make it clear that production payments and overriding royalties are to be treated as mineral, oil, and gas royalties under proposed section 543(b) (4). This amendment is not intended to affect any case involving interpre-tions of section 543(a) (8) of existing law.” (Italics supplied). 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_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. SOUTHERN MOTOR CARRIERS RATE CONFERENCE, INC., et al., Petitioners, v. UNITED STATES of America and Interstate Commerce Commission, Respondents. BURLINGTON NORTHERN INC., et al., Petitioners, v. UNITED STATES of America and Interstate Commerce Commission, Respondents. Nos. 79-3856, 80-7170. United States Court of Appeals, Eleventh Circuit. Feb. 12, 1982. Amended Opinion May 28, 1982. See 676 F.2d 1374. Rea, Cross & Auchincloss, Patrick McEligot, Washington, D. C., for petitioners Southern Motor Carriers Rate Conference, Inc., et al. Harry McCall, Jr., New Orleans, La., for Aberdeen and Rockfish R. Co., et al. Robert S. Rooth, New Orleans, La., Albert B. Russ, Jr., Jacksonville, Fla., Wm. H. Bassett, pro se., for Stupp Corp. Robert B. Nicholson, Dept, of Justice, Evelyn G. Kitay, I.C.C., Washington, D. C., Wayne M. Senville, I.C.C., Philadelphia, Pa., for respondents. James E. Sykes, Chicago, 111., for petitioners Burlington Northern, Inc., et al. Before GODBOLD, Chief Judge, and TJOFLAT and VANCE, Circuit Judges. GODBOLD, Chief Judge: Petitioners and intervenors in this consolidated appeal seek review of several orders by the Interstate Commerce Commission establishing a new procedure for detecting and remedying errors in the publishing of tariffs. Common carriers are required to publish and file their transportation rates with the Commission, and they must adhere to these rates. When a carrier wishes to change its rates or establish rates for a new service it must file its proposed schedule of rates, or a tariff, with the Commission 30 days before the tariff’s effective date, 20 days for a rail carrier. 49 U.S.C.A. § 10762 (Supp.1981). The Commission requires rate changes to be flagged by an appropriate symbol to denote an increase, decrease or no net change in accordance with 49 U.S.C. § 10762(b)(1)(E). Prior to this controversy the Commission inspected proposed tariffs during the 30/20 day waiting period for defects in form or manner of publishing, such as improper symbolization or typographical errors. If a tariff contained such errors the Commission could reject the proposed tariff and require the carrier to resubmit the corrected tariff. If the Commission did not reject the tariff within the 30/20 day notice period it became effective and was then considered the applicable rate. Thereafter the tariff could be attacked for any errors by the Commission or a shipper but only through a formal complaint procedure. 49 U.S.C. § 11701; 49 C.F.R. § 1100.24 et seq. In 1979 the Commission published a notice of proposed rulemaking entitled Ex Parte No. 367, Tariff Integrity Board. 49 Fed.Reg. 39558. The notice stated that the Commission planned to abandon its examination of all submitted tariffs because of budgetary restraints and an increased number of filings. Instead it would perform a random sampling. Since many more defective tariffs would become effective under the random sampling method, the Commission proposed the following procedure which it adopted by its order of October 5, 1979 after receiving public comment: Within 60 days after a tariff becomes effective a party may bring an informal complaint that the tariff has been unlawfully established before a newly created employee board, the Tariff Integrity Board. 49 C.F.R. § 1011.-6(i). The carrier has 10 days to respond, and the complainant has 10 days to reply. 49 C.F.R. § 1100.22a(d). The proceedings are informal, which means no transcript is made, no subpoenas are issued and no oaths are administered. If the Board finds that a tariff was unlawfully established it may strike the tariff from the Commission’s files. 49 C.F.R. § 1100.22a(e)(3). The striking of a tariff has a retroactive effect, that is, the tariff was never effective and the carrier had no legal right to charge the rates contained in it. Assuming the defective tariff had changed previous rates, the carrier must refund any charges in excess of the previous rate or collect any undercharges. The Board does not have the authority to hear complaints alleging substantive violations, such as unreasonableness of rates, undue preference or discrimination; rather, it may strike tariffs only on those grounds that would have caused the Commission to reject tariffs before they became effective. 49 C.F.R. § 1100.6(i). In addition, if there is a disputed issue of material fact the Board must refer the complaint to the Commission for handling under the formal complaint procedure. 49 C.F.R. § 1100a(e)(5). The Board’s decision is automatically stayed upon the filing of an administrative appeal. The Commission later announced that it had discontinued the random sampling procedure in favor of examining only the title page of each tariff submitted. Petitioners raise several claims, only one of which we need address: whether the Commission has the statutory authority to reject or strike an effective tariff because of publication errors without formal hearing procedures. We hold that it does not. 49 U.S.C. § 10762(e) authorizes the Commission to reject a tariff submitted to it for failure to comply with the publishing requirements of § 10762 or the regulations carrying out that section. In giving the Tariff Integrity Board the power to strike an improperly established tariff the Commission drew upon its authority to reject. The Commission reasoned that if a tariff does not meet all publication requirements it cannot legally amend the old rate on file, regardless of when the error is discovered. The Commission’s interpretation of its authority under the Interstate Commerce Act is entitled to deference if its construction is reasonable and consistent with its past decisions. Bayside Enterpris es, Inc. v. NLRB, 429 U.S. 298, 303, 97 S.Ct. 576, 580, 50 L.Ed.2d 494 (1977). However, this court cannot abdicate its ultimate responsibility to construe the statute. Zuber v. Allen, 396 U.S. 168, 192-93, 90 S.Ct. 314, 327-28, 24 L.Ed.2d 345 (1969). The plain meaning of reject is “to refuse to receive” or “to decline to accept.” Webster’s New Collegiate Dictionary. Section 10762(e) is worded accordingly: “The Commission may reject a tariff submitted to it ...” (emphasis added). The purpose of § 10762 is to give to the public notice of proposed changes and opportunity to protest. In keeping with this purpose it is appropriate for the Commission to reject a proposed rate and require a refiling if an error obscures pertinent information, as when the carrier omits to flag a rate increase with the correct symbol. Other courts have interpreted the purpose of tariff rejection similarly. See Delta Air Lines, Inc. v. CAB, 543 F.2d 247, 264 (D.C.Cir.1976) (Federal Aviation Act), quoting Municipal Light Bds. v. FPC, 146 U.S.App.D.C. 294, 450 F.2d 1341, 1346 (1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 31 L.Ed.2d 445 (1972) (Federal Power Act) (“[rejection is a] peremptory form of response to filed tariffs which classically is used not to dispose of a matter on the merits but rather as a technique for calling on the filing party to put its papers in proper form and order.”) In Delta Air Lines the court held that the Civil Aeronautics Board cannot reserve its power of rejection once it permits a tariff to become effective. It must follow the procedures for challenging effective tariffs set forth in the Federal Aviation Act. The court concluded, “We find implicit in Judge Leventhal’s [author of Municipal Light Bds. v. FPC, supra] description [of rejection] a recognition that rejection is a regulatory device properly used only prior to the effective date.” 543 F.2d at 268 (emphasis in the original). See also CAB v. Delta Air Lines, Inc., 367 U.S. 316, 81 S.Ct. 1611, 6 L.Ed.2d 869 (1961) (Board cannot alter an effective certificate of public convenience without providing formal notice and hearing). That § 10762 does not specify rejection of effective tariffs and accords the carrier no procedural rights indicates that Congress intended the consequences of rejection to be minimal, namely refiling. By contrast Congress set out in detail elsewhere in the Act the Commission’s power to rectify an effective tariff’s substantive violations and the appropriate procedures. Section 10704 gives the Commission power to prescribe reasonable rates after an investigation and full hearing of either proposed or effective rates. When the Commission investigates the reasonableness of proposed rates it may either suspend or let a tariff become effective. §§ 10707 and 10708. If a tariff under investigation becomes effective the Commission may order the carrier to keep account of all payments collected under the new rates pending a final determination to facilitate refunds or collections of undercharges if necessary. Id. Even the general enforcement authority provision, § 11701, permits the Commission to compel a carrier to comply with the Act only after giving the carrier notice of the investigation and an opportunity for a proceeding. Even if we found § 10762 to be ambiguous on the issue of rejecting effective tariffs, we would resolve the ambiguity in favor of the Commission only if its construction “enhance[d] the general policies underlying the legislation.” Zuber v. Allen, supra, 396 U.S. at 192-93, 90 S.Ct. at 327-28. Although the Commission’s purpose of bolstering consumer protection in the face of budgetary restraints is consonant with the policies of the Act, the means undercuts the Act’s goal of market stability and strict application of filed rates, National Pressed Steel Co. v. Alabama G.S.R. Co., 289 ICC 673, 683 (1953), by introducing an element of uncertainty in the transportation market. Carriers, desiring to respond quickly to market conditions, must still wait 20 or 30 days for rate changes to take effect under the statutory scheme to allow time for public comment or complaint. When the tariff becomes effective carriers and shippers alike rely upon those rates to market their goods and services. Under the new tariff review procedure no one can be certain a rate will be applicable for at least 60 days. The Commission has in effect extended the public notice period by 60 days. Also unsettling is the retroactive effect of striking the tariff from the Commission’s files. The carrier may be forced to repay substantial sums of money collected before the Board strikes the tariff with little or no opportunity for a hearing. The Commission’s position that it may reject effective tariffs for violations of § 10762 is inconsistent with its prior decisions. In a long line of cases where shippers brought formal complaints of overcharge on grounds that the current tariff had been improperly established, the Commission held that the applicability of tariffs or rates does not depend upon strict complianee with the Commission’s publication rules. A tariff not rejected by the Commission is a valid tariff. Ennis, Brown Co. v. Atchison, Topeka & Santa Fe R. Co., 39 ICC 209, 210 (1916); Bacon Bros. v. Alabama Great Southern R. Co., 263 ICC 587, 590 (1945); Atlantic Commission Co. v. Bangor & Aroostook R. Co., 266 ICC 651, 668 (1946); Acme Peat Products, Ltd. v. Akron, Canton & Youngstown R. Co., 277 ICC 641, 644 (1950); Heavy and Specialized Carriers Tariff Bureau v. U.S.A.C. Transport, Inc., 302 ICC 487, 488 (1957); Phillips Petroleum Co. v. Akron, Canton & Youngstown R. Co., 308 ICC 257, 260 (1959); Western Peat Co., Ltd. v. Great Northern R. Co., 308 ICC 541, 544 (1959); Shobe, Inc. v. Bowman Trans., Inc., 350 ICC 664, 669-71 (1975). Some exceptions to this principle exist, as where the carrier has increased rates on less than statutory notice, Chicago, M. St. P. & P. R. v. Alouette Peat Products, 253 F.2d 449 (9th Cir. 1957) or where a procedural defect is coupled with another violation, such as an increase in rates above an amount set by the Commission, H. J. Baker & Bros. Inc.— Statute of Limitations, 357 ICC 640 (1978). These cases present more compelling examples of the Commission’s need, to take drastic action against carriers after a formal hearing, but they do not support the Commission’s contention that it has the right to reject without a formal hearing any effective tariff that violates its publishing regulations. In only one case has the Commission directly asserted the authority to reject tariffs after their effective date. In Acme Fast Freight, Inc. Common Carrier Applica tion, 17 MCC 549, 556-57 (1939) sustained, 30 F.Supp. 968 (S.D.N.Y.1940), aff'd, 309 U.S. 638, 60 S.Ct. 810, 84 L.Ed. 993 (1940), the Commission stated: If tariffs are unlawful, .. . they may not lawfully be used, [and] have no proper place in our files. If we are not bound to accept them and if we should accept them upon misapprehension, or inadvertently without examination or without determination as to whether they are proper subjects for filing, we may later reject them and strike them from our files. A careful review of the facts in Acme Freight and the cases upon which the Commission relied to support its position in Acme reveals that the Commission struck the tariff involved for jurisdictional reasons, not procedural errors. The Commission found that Acme Freight was a freight forwarder not subject to the Interstate Commerce Act rather than a common carrier which must file its tariffs with the Commission. Accord: Wharfage, Handling, and Storage Charges at Municipal Terminals, Norfolk, Va., 59 ICC 488 (1920), Mercer Valley R. Co. v. Pa. R. Co., 69 ICC 233 (1922). In addition, the Commission did not suggest that the tariffs should be stricken without a formal hearing procedure. The Commission refers to its dilemma created by a shrinking budget and a growing number of tariff submissions, but the Commission is “no more authorized than are the courts to rewrite acts of Congress.” Talley v. Mathews, 550 F.2d 911 (4th Cir. 1977), cited in Louisiana Chemical Association v. Bingham, 657 F.2d 777 at 779 (5th Cir. 1981). The Commission’s orders of October 5, 1979 and October 1, 1980 are REVERSED. . Section 10762(b)(1)(E) requires tariffs to identify plainly any rules that change, affect, or determine any part of the published rate. A ♦ or (A) indicates an increase, a l or (R) means a reduction and a A or (C) denotes a change which results in no net increase or decrease in rates. 49 C.F.R. § 1310.6(n)(6). . 49 U.S.C. § 10762(e) provides: The Commission may reject a tariff submitted to it by a common carrier under this section if that tariff violates this section or regulation of the Commission carrying out this section. . The Commission may also suspend the effective date of a proposed tariff pending an investigation into its lawfulness. Generally the subject of the investigation is the reasonableness of the rate. 49 U.S.C. §§ 10707, 10708. . A tariff is unlawfully established if it omits or improperly uses symbols; contains typographical errors that prevent proper tariff application; contains erroneous cancellations; violates Commission regulations or orders or statutory provisions; purports to change rate schedules that have been in effect less than 30 days; contains duplicating rate schedules; or if the carrier gives less than the statutory notice. . Although the regulations provide for informal proceedings before the Tariff Integrity Board as well as other employee boards, 49 C.F.R. § 1100.225(a), the regulations appear to permit the Board to reach a decision after reviewing the pleadings without any hearing. 49 C.F.R. § 1100.22a(e)(2). . The regulations do not list any other remedial power. . The Commission adopted the automatic stay provision in response to intervenor Southern and Eastern Territory Railroads’ petition for reconsideration. Order of October 1, 1980. . Petitioners also argue that the Commission abandoned its long-standing program of comprehensive tariff examination without notice and opportunity to comment under the Administrative Procedures Act, 5 U.S.C. § 553. Petitioner National Motor Freight Traffic Association, Inc. contends that the application of the new procedure to its publication of freight classifications, or groupings of commodities which are given similar rates, is arbitrary and capricious because symbolization errors are often unavoidable when classifications are amended. . The Commission described the Board’s purpose as determining if a tariff has been unlawfully established “for which the tariff would have been subject to rejection had the violation been detected before the tariff became effective.” 49 C.F.R. § 1011.6(i). . When Congress revised the Act in 1978 it substituted the word “submitted” for “filed” for clarification. U.S.Code Cong. & Adm.News (1978) at 3116. . We recognize that the Delta Air Lines, Inc. v. CAB holding is not completely applicable to our case because of its different facts. The Board had rejected both proposed and effective tariffs because of the airlines’ refusal to carry hazardous materials. The court found that the Board could not even reject proposed tariffs on this ground, let alone effective ones, without hearing evidence on the economic cost of transporting hazardous materials. In our case, however, the Commission’s authority to reject a proposed tariff for publishing errors with no procedure rights provided to the carrier is unquestioned. Still, the discussion in Delta Air Lines is pertinent for the distinction the court draws between proposed and effective tariffs. . The pleadings process then takes another 20 days. The Board is not under any time limit to render a decision. . We need not address whether through formal hearing procedures the Commission may strike a tariff retroactively for procedural publishing errors. . In H. J. Baker & Bros. Inc., the carriers increased their rates 14% for Canadian shipping where the Commission had only authorized a 12% increase for export-import traffic. When actions for overcharges were brought by numerous shippers the Commission determined that the shippers were only entitled to a refund of 2% — the difference between the rate charged and the maximum rate the carriers could have charged. See Genstar Chemical Ltd. v. ICC, 665 F.2d 1304 (D.C.Cir.1981). The Court of Appeals upheld the Commission’s decision even though the shippers argued that the tariff increase had been unlawfully established in violation of the Commission’s order (authorizing only a 12% increase) and thus the old tariff remained in effect. The court recognized that tariffs on file should not be treated as nonexistent merely because of some element of substantive unlawfulness or irregularity in tariff filing formalities. Id. at 1308. 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_respond1_7_2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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"). Raymond J. DONOVAN, SECRETARY of LABOR, United States Department of Labor, Plaintiff-Appellant, v. Lee NICHOLS, Defendant-Appellee. No. 80-1568 Summary Calendar. United States Court of Appeals, Fifth Circuit. Unit A May 28, 1981. Allen H. Feldman, Andrea C. Casson, U.S. Dept, of Labor, Washington, D. C., for plaintiff-appellant. Kullman, Lang, Inman & Bee, Walter W. Christy, Stephen Rose, New Orleans, La., for defendant-appellee. Before AINSWORTH, GARZA and SAM D. JOHNSON, Circuit Judges. PER CURIAM: This is an appeal by plaintiff, the Secretary of Labor, from an order of the district court granting the motion of defendant Lee Nichols for summary judgment, and ordering the Secretary to pay Nichols’ attorneys’ fees. The Secretary appeals only from that portion of the district court’s order that grants attorneys’ fees. On March 5, 1979, a well blew out on an oil drilling platform located on the outer continental shelf in the Gulf of Mexico. The blowout resulted in a fire and explosion that killed at least three employees, and which seriously injured three others. The drilling platform on which the accident occurred was owned by Placid Oil Company and was situated on a lease granted by the Secretary of the Interior, acting through the United States Geological Survey. On the date of the accident, Penrod Drilling Company, as contractor, was drilling a well on Placid’s platform. On March 12, 1979, the United States Coast Guard, jointly with the United States Geological Survey, and under the authority of 43 U.S.C. § 1333 and 33 C.F.R. part 146, commenced an investigation of the March 5th well blowout. Representatives of the Occupational Safety and Health Administration (OSHA) attended, but did not participate in the hearings. Pursuant to sections 8(a) and 8(c)(2) of the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., OSHA subsequently commenced its own investigation of the accident. On March 14, 1979, OSHA issued under the authority of section 8(b) of the Act, a subpoena ad testificandum requiring Nichols, an employee of Pen-rod, to appear to testify regarding the working conditions on the platform. Nichols dishonored the subpoena and failed to appear to testify. The Secretary then filed this action in the district court, pursuant to section 8(b) of the Act, to order Nichols to comply with the subpoena. The district court, on Nichols’ motion for summary judgment, denied enforcement of the Secretary’s subpoena on the ground that the Secretary’s authority to investigate the accident was preempted by section 4(b)(1) of the Act, and, finding that the lawsuit was “oppressively commenced and prosecuted ... in order to harass the defendant,” ordered the Secretary to pay the attorneys’ fees incurred by Nichols in defense of the lawsuit. The Secretary appeals the award of attorneys’ fees only, and argues (1) that the doctrine of sovereign immunity, as codified in 28 U.S.C. § 2412, precludes an award of attorneys’ fees against the United States in this case; and (2) that, in any event, the Secretary’s actions do not constitute “bad faith”. 28 U.S.C. § 2412(a) provides in part that: Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title but not including the fees and expenses of attorneys may be awarded to the prevailing party in any civil action brought by or against the United States or any agency or official of the United States acting in his official capacity, in any court having jurisdiction of such action. As the above-quoted language indicates, awards for attorneys’ fees are expressly excluded from the section 2412 waiver. Accordingly, under section 2412, the United States, or any agency or official thereof, is immunized against awards of attorneys’ fees absent express statutory authority to the contrary. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 267-68, 95 S.Ct. 1612, 1626, 44 L.Ed.2d 141 (1975). In the present case, the district court referred to no statutory authority for its award of attorneys’ fees against the Secretary. Rather, the court relied upon the traditional equitable power of the federal courts to award attorneys’ fees against parties who litigate in bad faith. See Hall v. Cole, 412 U.S. 1, 4, 93 S.Ct. 1943, 1945, 36 L.Ed.2d 702 (1973). The district court’s holding, however, confuses the preclusive effect of section 2412 with that of the so-called “American Rule,” which generally recognizes the obligations of litigants to bear their own cost of counsel. In recognizing in the context of an award of attorneys’ fees against a private party a “bad faith” exception to the American Rule, the Supreme Court has “nowhere suggested that § 2412’s prohibition of attorney’s fees contained, by implication, a bad faith exception.” Gibson v. Davis, 587 F.2d 280, 282 (6th Cir. 1978), cert. denied 441 U.S. 905, 99 S.Ct. 1993, 60 L.Ed.2d 374 (1979); Rhode Island Committee on Energy v. General Services, 561 F.2d 397, 405 (1st Cir. 1977). In Rhode Island Committee on Energy, the First Circuit correctly reasoned that: By its literal terms § 2412 admits of no judicially fashioned “bad faith” exception. Only exceptions “specifically provided by statute” will subject the United States or its agencies to liability for attorney’s fees. Section 2412 is a limited waiver of sovereign immunity and as such, it’s “limitations and conditions . .. must be strictly observed . ... ” Rhode Island Committee on Energy v. General Services, 561 F.2d at 405, quoting Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957) (citations omitted). See also Knights of the Ku Klux Klan v. East Baton Rouge Parish School Board, 643 F.2d 1034 (5th Cir. 1981). Wholly apart from the question whether a private party in these circumstances would be subject to an award of attorneys’ fees under the “bad faith” exception, no such award may be imposed against the Secretary absent a clear and express statutory waiver. Consequently, the district court erred in awarding attorneys’ fees in this case. In view of this holding, it is unnecessary to review the district court’s finding that the Secretary prosecuted this action in bad faith. For the reasons stated above, the district court’s award of attorneys’ fees in the amount of $11,757.34 against the Secretary is reversed. REVERSED. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". 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_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 UNITED STATES of America, Appellee, v. John R. FRITSCH, Appellant. No. 89-5003. United States Court of Appeals, Eighth Circuit. Submitted Sept. 12, 1989. Decided Dec. 12, 1989. Scott F. Tilsen, Minneapolis, Minn., for appellant. Douglas R. Peterson, Minneapolis, Minn., for appellee. Before ARNOLD and BEAM, Circuit Judges, and HENLEY, Senior Circuit Judge. BEAM, Circuit Judge. John R. Fritsch appeals his three-month sentence imposed by the district court following his plea of guilty to theft of mail by a postal service employee in violation of 18 U.S.C. § 1709 (1982). Fritsch asserts for the first time in this appeal that the Sentencing Guidelines are invalid as applied to him because they do not provide statutorily mandated guidance regarding sentences of probation. Fritsch failed to raise this issue in the district court; therefore, we decline to review it here. I. BACKGROUND Fritsch was indicted on three counts of theft of mail and agreed to plead guilty to one count in exchange for dismissal of the remaining two counts. The plea agreement acknowledged the applicability of the Sentencing Guidelines and set forth that the maximum possible time of imprisonment was five months, based on the applicable range of 0-5 months. At the sentencing hearing, the judge stated that under the terms of the plea agreement he was “free to impose a sentence of anywhere from zero to five months of imprisonment” and asked counsel if this statement was correct. Both counsel responded that it was correct. Sentencing Transcript at 4. Fritsch stated that he had no comments to make before he was sentenced. II. DISCUSSION Fritsch contends that the Sentencing Commission failed to set forth guidelines that sufficiently guide the sentencing court in making the incarceration or probation decision. Specifically, he asserts that the Commission is required, under 28 U.S.C. § 994 (Supp. V 1987), to promulgate guidelines that set forth probation as the only available sentence for specific offenses. Because the Commission did not follow the statutory requirements, the guidelines promulgated, according to Fritsch, are invalid. Fritsch did not assert his challenge to the validity of the probation guidelines in the district court. “Issues not properly preserved at the district court level and presented for the first time on appeal ordinarily will not be considered by this court as a basis for reversal unless there would be a plain error resulting in a miscarriage of justice.” United States v. Meeks, 857 F.2d 1201, 1203 (8th Cir.1988); United States v. Sanders, 834 F.2d 717, 719 (8th Cir.1987); see also United States v. Thornley, 733 F.2d 970, 971 (1st Cir.1984) (holding that a challenge to the constitutionality of a dangerous special offender sentence enhancement statute not raised in the district court would not be reviewed on appeal); Carpenter v. United States, 720 F.2d 546, 548 (8th Cir.1983) (holding that defendant’s failure to raise the voluntariness of his guilty plea in the district court barred review on appeal). “This rule is followed ‘in all but exceptional cases where the obvious result would be a plain miscarriage of justice or inconsistent with substantial justice.’ ” Edwards v. Hurtel, 724 F.2d 689, 690 (8th Cir.1984) (quoting Kelley v. Crunk, 713 F.2d 426, 427 (8th Cir.1983)). Cf. United States v. Corn, 836 F.2d 889, 893-95 (5th Cir.1988) (holding miscarriage of justice to impose $6,000,000 in restitution without warning defendant at time of plea of possibility of restitution). We fail to see how enforcement of the plea agreement will result in a miscarriage of justice. Fritsch approved the proposal with full knowledge of the potential penalties. Furthermore, Fritsch, by accepting the benefits of the plea agreement (the dismissal of two counts of the indictment) and by agreeing that the guidelines should be applied (including a possible five-month sentence), waived any objection to the validity of the Sentencing Guidelines. This court has held that a defendant who explicitly and voluntarily exposes himself to a specific sentence may not challenge that punishment on appeal. United States v. Pratt, 657 F.2d 218, 220 (8th Cir.1981). In Pratt, the defendant pleaded guilty to two counts of distributing a controlled substance in exchange for the dismissal of four other counts. He also acknowledged that he was subject to punishment for both offenses. On appeal, he challenged his sentences, which included two consecutive five-year terms, because he claimed the offenses actually involved only one transaction, thus creating a violation of the double jeopardy clause. The court recognized that a waiver of a constitutional right “is not lightly to be presumed” but held that the defendant had waived any double jeopardy claims. Id. at 221. Fritsch’s challenge does not involve a factual issue and, therefore, is somewhat distinguishable from Pratt. However, we believe that it would be unjust to allow Fritsch to agree to the application of the Sentencing Guidelines and reap the benefits of his plea and then assert that they are invalid. See also United States v. Lemire, 720 F.2d 1327, 1352 & n. 37 (D.C.Cir.1983), cert. denied, 467 U.S. 1226, 104 S.Ct. 2678, 81 L.Ed.2d 874 (1984) (holding defendant’s statement that he was fully prepared to pay restitution was a waiver of challenge to the court’s power to impose restitution). Even if we were inclined to address the validity of the probation guidelines, it is unlikely that we would reverse the district court. Congress did not require the Sentencing Commission to establish a mandatory sentence of probation for certain offenses. See 28 U.S.C. § 994. Section 994 sets forth the duties of the Commission and requires the Commission to establish guidelines “for use of a sentencing court in determining the sentence to be imposed in a criminal case, including ... a determination whether to impose a sentence to probation, a fine, or a term of imprisonment.” Id. § 994(a)(1)(A). This section further sets forth the appropriate factors the Commission should take into account when considering whether a sentence to probation, a fine, or imprisonment should be imposed. Id. § 994(b)(2)(c), (d). Section 994 does not appear to require the Commission to establish probation as the only sentence for specific offenses. “[T]he Commission enjoys significant discretion in formulating guidelines.” Mistretta v. United States, — U.S. —, 109 S.Ct. 647, 657, 102 L.Ed.2d 714 (1989). In the absence of a clear statutory requirement of mandatory sentences to probation, we would find it difficult to hold that the probation guidelines promulgated under the broad delegation contained in section 994 are invalid. III. CONCLUSION Fritsch did not properly preserve his claim for review by this court; therefore, the district court’s judgment is affirmed. . The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota. 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_genresp1	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. UNITED STATES of America v. Flemming ANDERSON, Appellant. UNITED STATES of America v. William G. HALE, Appellant. Nos. 72-1848 and 72-2066. United States Court of Appeals, District of Columbia Circuit. Argued April 17, 1973. Decided May 21, 1974. Rehearing En Banc Denied Aug. 1,1974. Louis J. Briskman, Pittsburgh, Pa., with whom Sherman L. Cohn, Washington, D. C., Larry J. Ritchie, Washington, D. C., and Alan S. Gover, Houston, Tex., (all appointed by this court) were on the brief, for appellants. David G. Larimer, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and John R. Dugan, Asst. U. S. Attys., were on the brief, for appellee. Before BAZELON, Chief Judge, WISDOM, United States Circuit Judge for the Fifth Circuit, and WILKEY, Circuit Judge. Entered appearances as student counsel pursuant to Rule 20 of the General Rules of this court. Sitting by designation pursuant to Title 28 U.S.C. § 291(a). BAZELON, Chief Judge: In a joint trial appellants were convicted by. a jury of robbery. Anderson received a two to eight year sentence ; imposition of Hale’s sentence was suspended, and he was placed on probation for three years. Hale seeks reversal on the ground that the prosecutor impermissibly sought to elicit his reason for not asserting his alibi to the police when arrested. Anderson seeks reversal on the ground that he was prejudiced by several comments in Hale’s closing argument. We reverse Hale’s conviction, and affirm Anderson’s. I The government’s case rested largely on the testimony of Lonnie Arrington, the complaining witness. Arrington testified that on June 1, 1971, he was on his way to purchase a pair of shoes when he stopped to chat with Hale, whom he had seen in the neighborhood, but did not know by name. Hale then followed him into the shoe store. Upon leaving, Arrington was accosted and robbed by a group of men. He immediately reported the robbery to the police. At first he claimed that $65 had been stolen, but later, after checking with his wife, he changed the figure to $96. While waiting for the police to escort him through the neighborhood in search of his attackers, Arrington noticed two men, and shouted, “there go [sic] a guy that was in the robbery.” When the police ran toward the two men, they fled. Upon their capture, Arrington identified Hale as one of the robbers. Several months later, Arrington picked out Anderson from a group of photos shown to him by the police, and then identified him at a lineup. The arresting officer testified that Hale had $123 in his pocket and $35 in his wallet when arrested. He also claimed that Arrington had stated, before Hale had been arrested, “that he believed one of [the robbers] was a man by the name of Billy Hale.” This testimony directly contradicted Arrington’s earlier testimony to the effect that he did not “tell the police [Hale’s name], because I didn’t know if it was [him] or not.” Hale took the stand in his own defense and testified that he had encountered Arrington on the day in question. He asserted, however, that after separating from Arrington he was approached by three men who asked if Arrington had any money, and that he replied he “didn’t know.” Hale claimed that he then went to the Narcotics Treatment Center where he remained during the time of the alleged robbery. He left the Center with a friend who subsequently purchased narcotics. Shortly after the purchase, the two men were approached by the police, and Hale fled because he feared another drug conviction. Hale also testified that his estranged wife had received her welfare check on the day in question, and that she had given him about $150 so that he could purchase some money orders for her, as he had done in the past. His wife corroborated this testimony. Anderson presented no evidence. II — HALE’S CLAIM Appellant Hale argues that the trial court committed reversible error in failing to grant his motion for a mistrial after the prosecutor, on cross-examination, elicited from Hale an admission that he had not explained to the police the presence of $158 found on his person at the time of arrest. We find that: (A) the prosecutor’s question was constitutionally impermissible; and (B) the court’s failure to declare a mistrial was prejudicial error. The record indicates that after arrest appellant was taken to the police station and informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), including his “right to remain silent.” He was then searched and found in possession of $158. A police interrogator thereupon asked “[w]here did you get the money ?” Hale made no response. At trial, in an effort to impeach Hale’s testimony that he was carrying a large sum of money because his wife had received her welfare check and had asked him to purchase some money orders for her, the prosecutor led Hale to admit that he had not offered that explanation to the police at the time of his arrest: Prosecutor: Did you in any way indicate [to the police] where the money came from? Hale: No, I didn’t. Prosecutor: Why not? Hale: I didn’t feel it was necessary at the time. In Miranda, after holding that a defendant had a right to be advised that he could remain silent in the face of police interrogation, the Supreme Court went on to note: In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed at his privilege in the face of accusation. 384 U.S. at 468 n. 37 (emphasis supplied). Relying on this dictum, several Circuits, including our own, have held that cross-examination of the sort in question in this case was improper. Recently, however, one Circuit has held, and another has implied, that Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), undercuts the portion of Miranda quoted above, and permits cross-examination regarding a defendant’s refusal to offer an alibi or explanation to his police interrogators. In Harris the Court held that a defendant could be impeached by “prior inconsistent utterances” made at the time of his arrest even when they were made before the defendant was adequately apprised of his rights. The Fifth Circuit extended the Harris rationale to approve “the right of the prosecution to show [a defendant’s] prior inconsistent act of remaining silent The Tenth Circuit, on the other hand, has disagreed with the Fifth Circuit observing that: silence at the time of arrest is not an inconsistent or contradictory statement. Silence at the time of arrest is simply the exercise of a constitutional right that all persons must enjoy without qualification. We agree with the Tenth Circuit. The premise underlying Harris is that if a defendant voluntarily gives statements to the police that contradict his trial testimony those statements are admissible because they are obviously relevant for assessing credibility. When, however, a defendant is informed that he has a right to remain silent, and then exercises that right, there is nothing inconsistent if he subsequently offers exculpatory testimony at trial. Virtually the same issue was considered in Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). There, petitioner refused to answer several questions put to him before the grand jury “on the ground that the answers would tend to incriminate him and that the Fifth Amendment therefore entitled him not to answer.” At trial these same questions were answered “in a way consistent with innocence,” and “the Government was then allowed [for impeachment purposes] ... to bring out in cross-examination that petitioner had pleaded his privilege before the grand jury as to these very questions.” The Court found that the exercise of the privilege was “wholly consistent with innocence,” and therefore concluded, without dissent, that there was “no inconsistency” to support the cross-examination. The Court relied on three factors: (a) petitioner repeatedly maintained his innocence before the grand jury; (6) a grand jury inquiry, unlike a trial, is in the nature of a secret proceeding, and “[i]nnocent men are more likely to plead the privilege in secret proceedings, where they testify without advice of counsel and without opportunity for cross-examination, than in open court proceedings . . . ”; (c) “most important,” at the time petitioner appeared before the grand jury he was “already considered a potential defendant” and therefore “it was quite natural for him to fear that he was being asked questions for the very purpose of providing evidence against himself.” These reasons have even greater validity in the present case: (a) while the record does not disclose whether Hale insisted upon his innocence at the time of arrest, it clearly reveals that he steadfastly maintained his innocence throughout the proceedings; (6) police interrogation may be viewed as more “secret” than a grand jury proceeding which is conducted on the record and in the presence of the prosecutor and grand jurors. Miranda’s rules were aimed precisely at dangers presented by the secret nature of police interrogation; (c) Hale was more clearly a “potential defendant” then Grünewald since he had been identified by the victim as one of the robbers, and had been arrested by the police on suspicion of the instant offense. In sum, application of the principles enunciated in Grünewald compels a finding that, as a matter of law, there was nothing inconsistent between Hale’s silence in interrogation and his alibi at trial. Thus, the basic premise required for triggering the Harris rationale is absent. Even if it could be said that appellant’s silence at the police station was inconsistent with his testimony at trial Harris would nevertheless be inapplicable in the present circumstances. In Harris the accused did not exerciee his constitutional right to remain silent, but rather spoke, albeit without first being advised of his rights. In the instant case, on the other hand, "the accused explicitly availed himself of his right to remain silent. The Supreme Court has proscribed comment by a court or prosecutor on the fact that a defendant did not testify at trial on the ground that such comment “cuts down on the privilege by making its assertion costly.” Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965). The Court, relying upon this analysis, then ruled in Miranda that it is “impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation.” The rationale for this rule was articulated by Justice Black in his Grünewald concurrence: [There are] no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it. The value of constitutional privileges is largely destroyed if persons can be penalized for relying on them. It seems peculiarly incongruous and indefensible for courts which exist and act only under the Constitution to draw inferences of lack of honesty from invocation of a privilege deemed worthy of enshrinement in the Constitution. 353 U.S. at 425-426. Nothing in Harris undercuts this fundamental constitutional principle since Harris did not "involve assertion of the constitutional right. Our conclusion that the prosecutor’s question was improper is buttressed by the fact it would be grossly unfair to advise an accused simply that he had “a right to remain silent,” and then use his silence against him at trial without at the very least having also informed him that if he chooses to exercise his right he may subsequently be impeached by that. fact. The Sixth Circuit noted almost fifty years ago that if an accused’s silence is to be used against him he “should be told, ‘If you say anything, it will be used against you; if you do not say anything, that will be used against you.’ ” The Supreme Court embraced these principles in Johnson v. United States, 818 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943), where a defendant who testified was allowed to assert his privilege against self-incrimination as to some questions without having been told that the prosecutor would be permitted to comment upon this assertion. The Court ruled that even if it was error to allow petitioner to invoke his privilege, it was nonetheless improper to permit prosecutorial comment because the defendant was thereby “deprive [d] . . . of an intelligent choice between claiming or waiving his privilege.” B. The government argues that the error was harmless since the trial court interrupted the prosecutor and informed the jury that Hale “was not required to indicate where the money came from You may disregard it, ladies and gentlemen.” To avoid reversal, however, the error, being of constitutional magnitude, must be harmless beyond a reasonable doubt. The government’s case against Hale rests on three limbs: (I) the testimony of the complaining witness; (2) appellant’s flight at the time of arrest; and (3) appellant’s possession of $158. (1) The testimony of the complaining witness was confused and contradictory. The trial court characterized it as follows: [O]ne view . . . with respect to this complainant might be that he has been contradicted to such a point that he wouldn’t be believed. Another perfectly fair view ... is that he is an entirely sincere witness who has a limited intellectual ability, [and] who was in part confused and misled in some of his answers. . . (2) With respect to appellant’s flight upon apprehension, he explained that his companion had purchased heroin, and, since he had a prior narcotics conviction, he was afraid. He claimed that his former narcotics conviction arose in the same circumstances; that is, when he was not himself in possession of drugs. (3) In the face of the weak testimony by the complaining witness, and the limited probity of the evidence on flight, evidence of the large sum of money found on appellant played a central part in the government’s case. Appellant attacked this evidence in two ways: first, by showing that the sum of money found on him was much greater than the amount allegedly stolen; and second, by offering an alibi, corroborated by his wife, explaining his possession of the large sum. In this context the improper question by the prosecutor leading to Hale’s admission that he did not offer his alibi to the police was calculated to break a critical point in the defense since it was apparently intended to indicate that the alibi had been fabricated sometime between arrest and trial. In Stewart v. United States, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961), petitioner, who had been convicted three times — his first two convictions having been reversed by this court — declined to testify at the first two trials, but took the stand at the third “in an apparent effort to bolster [his] contention of insanity [the sole issue in the case].” On cross-examination, after the defendant admitted that he had been “tried on two other occasions,” the prosecutor asked: “This is the first time you have gone on the stand, isn’t it ?” The Court found the question improper and concluded that the error was not harmless. Speaking of a potential cautionary instruction to the jury, such as the one given in this case, the Court said: [T]he danger of the situation would have been increased by a cautionary instruction in that such an instruction would have again brought the jury’s attention to petitioner’s prior failure to testify. 366 U.S. at 10. Thus, the error in the present case, when considered in light of the evidence against appellant, cannot be deemed harmless beyond a reasonable doubt. Ill — ANDERSON’S CLAIM Appellant Anderson contends that his constitutional right to remain silent was abridged by Hale’s closing argument to the jury: All they can do — all people can do is come in and tell you exactly what they did that day. . . . That is all they are required to do. They are not even required to do that, ladies and gentlemen. And, of course, Mr. Hale took the stand and did just that. Anderson maintains that this statement urged the jury to draw a negative inference from Anderson’s failure to testify. We have studied Hale’s closing argument, and find that this statement, by itself, did not “invite an inference of [Anderson’s] guilt.” United States v. Hines, 147 U.S.App.D.C. 249, 455 F.2d 1317, 1335-1336 (1971) (Bazelon, C. J„ dissenting). Indeed, shortly after completion of Hale’s closing argument, the court instructed the jury that it “must not draw any inference of guilt against the defendant because he did not testify.” In these circumstances, we find no error warranting reversal of Anderson’s conviction. So ordered. . Both appellants argue that the trial court’s refusal to grant a motion for judgment of acquittal was erroneous since the testimony of the complaining witness was “inherently incredible.” We find sufficient evidence to sustain the verdicts. The question of credibility was for the jury. See, e. g., Bush v. United States, 126 U.S.App.D.C. 174, 375 F.2d 602 (1967). . Arrington also stated that there was a witness to the robbery, who was never identified, who had told him that one of the robbers was named “Billy Hale or Bobby Hale.” Although he initially testified that he did not identify Hale by name to the police, his subsequent testimony is confused. Counsel for Hale asked: “So you neglected to mention to the police that one of the individuals had given you the name of one of the robbers, is that right?” And Arrington answered, “I told them.” The record does not reveal what it is that Arrington told the police. . An administrator from the Center testified that his records indicated that Hale had visited the Center on the day in question, but that they did not reveal the time of the visit. . Hale claimed that his previous conviction resulted from being arrested in the presence of a friend who was in possession of narcotics. . The owner of a local liquor store testified that he knew Hale, and that Hale had purchased money orders from him on several occasions. . Tr. at 259. . Tr. at 262. . Tr. at 259. . See also Schmerber v. California, 384 U.S. 757, 765-766, 86 S.Ct. 1826, 16 L.Ed.2d 908 n. 9 (1966). . See, e. g., Fowle v. United States, 410 F.2d 48 (9th Cir. 1969); United States v. Brinson, 411 F.2d 1057 (6th Cir. 1969); United States v. Semensohn, 421 F.2d 1206 (2nd Cir. 1970). See also Fagundes v. United States, 340 F.2d 673 (1st Cir. 1965). But see Sharp v. United States, 410 F.2d 969 (5th Cir. 1969). The Sharp majority inexplicably omits reference to the portion of Miranda at issue despite forceful reliance on it by Chief Judge Brown in dissent. 410 F.2d at 972. . Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586 (1968). . Our dissenting colleague argues that the Miranda dictum is inapplicable to the facts of this case. The record, however, clearly indicates otherwise. Appellant was under police interrogation, the sort of “accusation” to which Miranda referred. See 384 U.S. at 444 & 468 n. 37. And, when he was asked “[w]here did you get the money?” he stood "mute.” This fact was then “use[dY’ against him “at trial." As the eases cited in note 10 supra demonstrate, the Miranda dictum applies precisely to these facts. Nor would it matter, despite the suggestion by the dissent, that Hale answered some questions before remaining silent: “[Tjhere is no room for the contention that the privilege is waived if the individual answers some questions or gives some information on his own prior to invoking his right to remain silent .” Miranda supra, 384 U.S. at 475-476. In fact, the record does not reveal whether appellant answered any questions or made any statements. . United States v. Ramirez, 441 F.2d 950 (5th Cir. 1971). . In United States ex rel. Burt v. New Jersey, 475 F.2d 234 (3rd Cir. 1973), a defendant was arrested for a crime other than the homicide at issue in the appeal before the Third Circuit. At trial he explained that the homicide was accidental. The court held that defendant was properly impeached by his silence at the police station because he had not been accused of committing any homicide, and therefore should have notified the police if he knew about an accidental homicide. Two judges issued a concurring opinion seemingly on the ground that Harris allows impeachment by prior silence at the police station. In a subsequent case a different panel of the same Circuit held that it was improper to impeach a defendant by pointing out that he invoked another of his Miranda rights, namely, the right to an attorney. United States ex rel. Macon v. Yeager, 476 F.2d 613 (3rd Cir. 1973). In the face of these two decisions a district court in the Third Circuit has recently held that a defendant can, be impeached by his prior silence only when police interrogation does not concern the crime for which the defendant is subsequently indicted. The district court then concluded that cross-examination of the sort at issue in this case was improper notwithstanding Harris. United States v. Holland, 360 F.Supp. 908 (E.D.Pa.1973). . United States v. Ramirez, 441 F.2d 950, 954 (5th Cir. 1971) (emphasis supplied). . Johnson v. Patterson, 475 F.2d 1066, 1068 (10th Cir. 1973). With respect to Ramirez supra, the Tenth Circuit said, “[t]he premise of Ramirez is that silence at the time of arrest is an act inconsistent with the testimony given at trial. . . . We simply deny the validity of the premise.” 476 F.2d at 1068 n. 3. See also Deats v. Rodriguez, 477 F.2d 1023 (10th Cir. 1973). . 353 U.S. at 416. In the instant case Hale did not decline to answer on the ground that his answers might tend to incriminate him, but simply remained silent in the face of the police interrogator’s instruction that he had “a right to remain silent.” . 353 U.S. at 417. . 353 U.S. at 421, 422. See also Stewart v. United States, 366 U.S. 1, 7 n. 14, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961). . 353 U.S. at 422-423. . 353 U.S. at 423. . See Miranda supra, 384 U.S. at 445 (“The difficulty in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place incommunicado.”). . The Grünewald Court acknowledged that “the question whether a prior statement is sufficiently inconsistent to be allowed to go 'to the jury on the question of credibility is usually within the discretion of the trial court. But where such evidentiary matter has grave constitutional overtones, as it does here, we feel justified in exercising this Court’s supervisory control . . . ” 353 U.S. at 423-424. . See Fowle v. United States, 410 F.2d 48, 51 (9th Cir. 1969) (“Surely . . . [petitioner’s] silence was no more contradictory of his later testimony than was the silence of [the petitioner m Grünewald].”) ; Johnson v. Patterson, 475 F.2d 1066 (10th Cir. 1973). . 384 U.S. at 468 n. 37. See Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586, 587 (1968) (“The distance between [Grif/m] and the prosecutor’s comments here ... is infinitesimal.”); Fowle v. United States, 410 F.2d 48, 51-55 (9th Cir. 1969); Johnson v. Patterson, 475 F.2d 1066, 1067-1068 (10th Cir. 1973). See generally Spevak v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967); United States ex rel. Macon v. Yeager, 476 F.2d 613, 616 (3rd Cir. 1973) (“Griffin holds broadly that, at least in the criminal context, the relevant question is whether the particular defendant has been harmed by the state’s use of the fact that he engaged in constitutionally protected conduct . . .”) (emphasis in original). . The dissent relies heavily on Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926), where the Court held that a defendant who testifies at his second trial, but who did not testify at the first trial, may be impeached by his prior silence when his purpose in testifying is to deny some statements attributed to him by a witness who has offered the same testimony at both trials. In Grünewald supra, the Court explicitly declined to reaffirm Raffel. 353 U.S. at 421. Four Justices concurring .in Grünewald indicated that Raffel should be overruled. The rationale of that concurrence provided the framework for the Court’s subsequent decision in Griffin. Accordingly, there is a serious question whether Raffel has any remaining vitality. See Note, Use of Silence, 33 Md.L.Rev. 363, 367 n. 21 (1973). See also Stewart v. United States, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961) (cannot attack witness’s demeanor by introducing fact that he failed to testify at former trials). In any event, Raffel is clearly distinguishable from the present circumstances because there the petitioner was impeached hy his refusal to testify at a former trial, whereas in the instant case appellant declined to speak with police interrogators. There are good reasons why a • defendant would refuse to speak to the police in a proceeding that is off the record, and at a time when he is without the advice of counsel, and then decide to testify at trial. See Grünewald supra. . McCarthy v. United States, 25 F.2d 298 (6th Cir. 1928). See also Johnson v. Patterson, 475 F.2d 1066 (10th Cir. 1973); United States v. Brinson, 411 F.2d 1057 (6th Cir. 1969); Fowle v. United States, 410 F.2d 48 (9th Cir. 1969). . 318 U.S. at 198. The Court noted : Elementary fairness requires that an accused not be misled on th [is] score. If advised by the court that his claim of privilege though granted would be used against him, he well might never claim it. Id. at 197. This rationale is equally compelling in the face of police interrogation and advice. . Tr. at 259. . See Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586, 588 n. 8 (1968). . Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Tr. at 187. . See generally Bailey v. United States, 135 U.S.App.D.C. 95, 416 F.2d 1110, 1114 & n. 29 (1969); Miller v. United States, 116 U.S.App.D.C. 45, 320 F.2d 767 (1963). . Stewart v. United States, 94 U.S.App.D.C. 293, 214 F.2d 879 (1954); Stewart v. United States, 101 U.S.App.D.C. 51, 247 F.2d 42 (1957). . 366 U.S. at 3. . 366 U.S. at 4. . See, e. g., United States ex rel. Macon v. Yeager, 476 F.2d 613, 616-617 (3rd Cir. 1973); Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586, 588 (1968). Compare Leake v. Cox, 432 F.2d 982 (4th Cir. 1970) (“overwhelming evidence of guilt”); United States v. Wick, 416 F.2d 61 (7th Cir. 1969) (“overwhelming evidence against the defendant”). . Tr. at 294. . Anderson argues that this statement was particularly prejudicial because other parts of Hale’s closing argument attempted to place the blame on Anderson while exonerating Hale. Anderson cites several statements in Hale’s argument indicating that Arringtonhad testified before the grand jury that Hale had committed certain inculpatory acts, whereas at trial he testified that Anderson, did these acts. The record, however, does not support Anderson’s claim. When placed in context, it is clear that the statements in Hale’s closing argument were aimed solely at convincing the jury that Arrington was wholly incredible since he continually changed his story. Thus, Anderson was not harmed. See DeLuna v. United States, 308 F.2d 140 (5th Cir. 1962); United States v. Barney, 371 F.2d 166 (7th Cir. 1966). Compare United States v. Hines, 147 U.S.App.D.C. 249, 455 F.2d 1317 (1971), with id. at 1335 (Bazelon, C. J., dissenting). . In Hines, counsel for one co-defendant argued “you and I, if we were innocent, we would take the stand to try to exonerate ourselves.” 455 F.2d at 1334. . Tr. at 308. 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:
sc_lcdispositiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations NATIONAL LEAD CO. v. COMMISSIONER OF INTERNAL REVENUE. No. 124. Argued December 13, 1956. Decided January 22, 1957. Karl Riemer argued the cause for petitioner. With him on the brief was Lawrence S. Lesser. Hilbert P. Zarky argued the cause for respondent. With him on the brief were Solicitor General Rankin, Assistant Attorney General Rice, Philip Elman and Joseph F. Goetten. Mr. Justice Black delivered the opinion of the Court. This is a companion case to No. 78, United States v. Allen-Bradley Co., ante, p. 306, which was also decided today. During World War II petitioner manufactured engine bearings. In 1944 petitioner expanded its plant in an effort to increase the output of these essential war products. At the same time it applied to the War Production Board for certification that the various additions were necessary in the interest of national defense. However the Board, as in Allen-Bradley, granted certificates of necessity for only a part of the cost of petitioner’s new facilities. In its income tax return for 1944 petitioner exercised the privilege such certification conferred by taking as a deduction a sum based on the accelerated amortization of that part of the costs which had been certified by the Board. In 1951 the Commissioner of Internal Revenue asserted a deficiency against petitioner on grounds unrelated to the present controversy. Petitioner subsequently filed a petition for redetermination with the Tax Court claiming that it was entitled to a refund for overpayment of income taxes in 1944. The amount of this overpayment was calculated on the basis that petitioner was entitled to accelerate the amortization of the full cost of those facilities covered by the Board’s “partial certifications.” Petitioner contends that the Board was not authorized to certify only a part of the cost of a facility when the Board had determined that the facility as a whole was necessary to the national defense. The Tax Court granted petitioner’s claim, but on appeal the Second Circuit reversed, holding that petitioner had forfeited its right to challenge the Board’s action by waiting too long after accepting the tax benefits of the “partial certificates” to attack their validity. 230 F. 2d 161. The Court of Appeals did not reach the question whether the Board was authorized to issue such “partial certificates.” For reasons stated in our opinion in No. 78, United States v. Allen-Bradley Co., supra, we hold that the Board was empowered to issue certificates covering only a part of the cost of petitioner’s improvements. Accordingly, we affirm the judgment of the Court of Appeals. Affirmed. Mr. Justice Harlan joins in the Court’s decision for the reasons stated in his concurring opinion in United States v. Allen-Bradley Co., ante, p. 311. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_usc1sect	158	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 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PLASKOLITE, INC., Respondent. No. 14875. United States Court of Appeals Sixth Circuit. Nov. 7, 1962. Vivian Asplund, Washington, D. C., for petitioner, Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Samuel M. Singer, Atty., N. L. R. B., Washington, D. C., on the brief. Helen F. Humphrey, Washington, D. C., for respondent, Samuel H. Porter, Columbus, Ohio, on the brief. Before CECIL, Chief Judge, WEICK, Circuit Judge, and PECK, District Judge. CECIL, Chief Judge. This case is before the Court on a petition of the National Labor Relations Board for enforcement of its order issued against the respondent, Plaskolite, Inc., on November 29, 1961. The Board found that the respondent violated section 8(a) (1) of the Act (Sec. 158(a) (1), Title 29 U.S.C.) by interfering with, restraining and coercing employees in the exercise of their right to engage in union activity. The Textile Workers Union of America, AFL-CIO began a campaign to organize respondent’s employees, in August 1960. A representation petition was filed with the Board and on September 14th an election was held which was lost by the Union. The Union contested the election and it was set aside by the Regional Director. The complaint in the unfair labor practice case now before us contained some of the same acts of misconduct as were alleged in the objections to the election. The Board consolidated the two cases. It sustained the Regional Director in setting the election aside and found the respondent guilty of unfair labor practices. (134 N.L.R.B. No. 63.) Only the Board’s order pertaining to the unfair labor practices is before the Court on this review. The alleged unfair labor practices occurred at respondent’s plant, in Columbus, Ohio, where it is engaged in the manufacture of custom plastic products. No question of jurisdiction is presented. It is claimed that the employer, through its officers and foremen, threatened that the employees would have to take physical examinations and intelligence tests, if the Union prevailed and that, if they failed to measure up to required physical and mental standards, they would be discharged. Other claimed threats were made, such as the employees would have to work harder under the Union and that the job of one Smith, who was agitating for the Union, could be done away with. It was further claimed that the employer made promises of wage increases, if the Union did not come into the plant, and that the employees were interrogated as to their Union sympathies. The trial examiner found a violation in each of these categories of charges. The Board sustained the examiner and found a violation of Section 8(a) (1) as above stated. It is provided in Section 160(e), Title 29 U.S.C., “The findings of the Board with respect to question of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.” Substantial evidence has been held to mean “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126. We have reviewed the evidence as printed in the appendices and conclude that it substantially supports the find- ' ings of the trial examiner as affirmed by the Board. The respondent discharged an employee, William O. Friend, on November 16, 1960. The discharge was alleged to be for cause. It was claimed by the employer that Friend could not read or write and could not make out a report, the use of which was inaugurated about the middle of October 1961, after the election. The trial examiner found that Friend was discriminatorily discharged because of his Union activities and in order to discourage membership in and adherence to the Union. This was in violation of Section 8(a) (3) and (1) of the Act. This ruling was also supported by the Board. Upon a review of the evidence on this charge, we conclude that considering the testimony as a whole and the logical inferences drawn therefrom by the examiner, his finding was supported by substantial evidence. “It is well settled that the credibility of witnesses and the reasonable inferences to be drawn from the evidence are matters for determination by the Trial Examiner and the Board.” N. L. R. B. v. Bendix Corp., 299 F.2d 308, 310, C.A.6, cert. denied 83 S.Ct. 47. Where credibility accorded witnesses by the trial examiner is such as would justify conflicting inferences, with reference to a discharge, “we are not permitted to weigh the evidence, resolve its conflicting inferences, nor draw our own inferences therefrom. The Board’s choice between two conflicting views may not be set aside even though the court would justifiably have made a different choice had the matter been before it de novo.” 299 F.2d at page 310. The objections of the Union to the election were based on two allegations: (1) A letter dated September 12, 1960, attempting to repudiate the rumor that the plant would close down for examinations, if the Union won, and (2) pre-election conduct of agents of the employer. The respondent claims that unfair labor practices cannot be based on either of these allegations. We find no merit to this contention. If an election were won by the employer through illegal conduct and in violation of law, the Union was wronged and it had a right to have such an election set aside. Unfair labor practices whether by employer, employee or Union are a matter of public interest. This Court said, in N. L. R. B. v. Thompson, 6 Cir., 130 F.2d 363, 367: “We are, however, obliged to bear in mind that a proceeding under the National Labor Relations Act is not litigation between private parties even though the inquisitorial and corrective powers of the Board may not be invoked without a charge being lodged by individual employees or an employee union. It is a proceeding by a public regulatory body in the public interest. It is neither punitive nor compensatory but preventative and remedial in its nature. (Citations) As we said of orders of the Board in N. L. R. B. v. Colten, [6 Cir.] 105 F.2d 179, 182, ‘they are to implement a public social or economic policy not primarily concerned with private rights, and through remedies not only unknown to the common law but often in derogation of it.’ ” Peyton Packing Co., 129 N.L.R.B. 1358, cited by counsel for the respondent, is not in point. In this case the Board held that it was not proper to twice litigate the same act of conduct as a violation of different sections of the Act. Enforcement of the Board’s order is decreed. 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 29? Answer with a number. Answer:
songer_state	06	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". Clifford O. BOREN, Appellant, v. R. A. RIDDELL, District Director of Internal Revenue, Appellee. No. 15203. United States Court of Appeals Ninth Circuit. Feb. 19, 1957. John A. Brant and Torrance & Wan-sley, San Diego, Cal., for appellant. Charles K. Rice, Asst. Atty. Gen., Laughlin E. Waters, U. S. Atty., Los Angeles, Cal., Helen A. Buckley, Washington, D. C., Edward R. McHale, Robert H. Wyshak and Bruce I. Hochman, Asst. U. S. Attys., Los Angeles, Cal., for appel-lee. Before STEPHENS, CHAMBERS and BARNES, Circuit Judges. BARNES, Circuit Judge. Appellant sought an injunction in the District Court restraining and enjoining appellee from making any seizure, collection or distraint of any property belonging to appellant under the authority of an assessment for income taxes, interest and penalties made by the Commissioner of Internal Revenue against appellant, for the calendar year 1951. This income tax return appellant had duly filed. Appellee moved to dismiss, filing a supporting affidavit. The District Court treated the motion as one for summary judgment, heard the matter, and ordered dismissal. This is an appeal from that order of dismissal. A taxpayer’s right to enjoin the collection of taxes is limited by statute under the Internal Revenue Code of 1954, effective August 17, 1954. In that Code, § 7421 provides: “(a) Tax. — Except as provided in sections 6212(a) and (c), and 6213 (a), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” § 6212(a) provides that after the Secretary or his delegate determines there is a deficiency, he “is authorized to send notice of such deficiency to the taxpayer by registered mail.” § 6213 provides that within ninety days after the notice authorized in § 6212 is mailed, the taxpayer may file a petition with the Tax Court for a redetermination of the proposed deficiency. In such an event, § 6212(c) (1) provides that the Secretary or his delegate shall have no right to determine any additional deficiency of the taxpayer for the same taxable year. Under the Internal Revenue Code of 1939, similar restrictions on the taxpayer’s right of injunction existed. Section 272, as amended, provided: “If in the ease of any taxpayer, the Commissioner determines that there is a deficiency in respect of the tax imposed by this chapter, the Commissioner is authorized to send notice of such deficiency to the taxpayer by registered mail * * This Section then gives the taxpayer the right, within ninety days, to petition for a redetermination of the deficiency, and no assessment, distraint or proceeding in court for collection shall be made, begun, or prosecuted “until such notice has been mailed to the taxpayer, nor until the expiration of such ninety day period,” nor if such a petition is filed, “until the decision of the Board has become final,” and if attempted, “[it] may be enjoined.” The facts are undisputed. On March 11, 1955, the Commissioner sent a notice of deficiency by registered mail to the taxpayer at the wrong address. This notice is conceded by both parties to be ineffective for any purpose. On April 14, 1955, the Commissioner mailed a notice of deficiency by ordinary mail to the taxpayer at his correct address. It was received by taxpayer the following day. The appellant filed no petition for re-determination of the deficiency with the Tax Court at any time. On July 22 1955 (more than ninety days after the notice had been received) when no action was taken by the taxpayer, appellee gave written notice and demand for payment, and issued a warrant of distraint. The sole question presented is whether the notice of deficiency so received by the taxpayer is a valid statutory notice. If so, appellant has no defense to the threatened levy and distraint. If not, appellee has no authority to levy and distrain, and should be enjoined from doing so until after notice has been given by registered mail, the expiration of the ninety day period, and the failure of taxpayer to petition. The earlier cases, particularly those heard by the Tax Court, applied the statutory construction rule, expressio unius est exclusio alterius, and held that “notice by registered letter” meant notice in that way, and in no other way; that notice by ordinary mail, or manual delivery, was insufficient. “Any other method of notice does not comply with the statute and is invalid. The method directed by the statute is mandatory.” Day v. Commissioner, 12 B.T.A. 161; Hamilton v. Commissioner, 13 T.Ct. 747, 749; Wilson v. Commissioner, 16 B.T.A. 1280, 1290; Heinemann Chemical Co. v. Heiner, 3 Cir., 1937, 92 F.2d 344; citing Botany Worsted Mills v. United States, 278 U.S. 282, 49 S.Ct. 129, 73 L.Ed. 379, where there appears this language, interpreting the 1924 Act: “When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.” 278 U.S. 282, 49 S.Ct. 129, 132. But, argues the Government, the statute now has been revised; it does not now so “limit”; it merely “authorizes” one method of giving notice. It points out that the 1924 Act provided that notice “shall be sent by registered mail,” the 1926 Act, § 274(a), 26 U.S.C.A.Int. Rev.Acts, p. 203 was revised to provide that the Government was “authorized” to so send the notice; that this word “is a permissive word at most; ” that the real objective is actual notice. If notice by registered mail was deemed indispensable, runs the Government’s argument, it would have been simple for the Congress to have so provided; i. e., “notice must be served by registered mail.” We believe that this Court should attempt to give effect to the manifest intent of Congress, when it changed the requirement “shall use registered mail,” to the permissive “may use registered mail.” We presume the purpose of using registered mail is first, to provide the safest economical. method of insuring that in the greater majority of cases, notice is actually received by the taxpayer from his Government; second, to create some commonly accepted factual basis to permit, in good conscience, the initiation of the ninety day period against the taxpayer, without requiring the Government to face the almost impossible task of proving actual notice to the taxpayer. But the heart of the taxpayer’s right is to have actual notice, which enables him to petition his Government if he so desires. This he had here, under the notice he admittedly received by ordinary mail. We believe a broader interpretation of the language is followed in the more recent court cases. See Commissioner of Internal Revenue v. Stewart, 6 Cir., 186 F.2d 239, 241, 24 A.L.R.2d 793: “The taxpayer contends that since the statute requires the notice of the deficiency assessment to be sent ‘to the taxpayer by registered mail,’ the action of the Commissioner in sending it to the taxpayer’s auditor and attorney, instead of to the taxpayer himself, was not a compliance with the provisions of the statute, and was therefore an invalid notice. The Tax Court ruled that since the statute limited the way in which the notice could be sent it negatived any other mode of action; that the Commissioner was required to send the notice of deficiency to the taxpayer in strict accord with the statutory requirements; and since he did not do so, the petition must be dismissed for lack of jurisdiction. “We are of the opinion that such a strict literal construction of the statute is not authorized in the present case. It is clear that the purpose of the deficiency notice is to give the taxpayer notice that the Commissioner means to assess a deficiency tax against him and to give him an opportunity to have such ruling reviewed by the Tax Court before it becomes effective. Commissioner [of Internal Revenue] v. New York Trust Co., 2 Cir., 54 F.2d 463, 465; Commissioner [of Internal Revenue] v. Forest Glen Creamery Co., 7 Cir., 98 F.2d 968, 971; Olsen v. Helvering, 2 Cir., 88 F.2d 650, 651. In addition to giving the taxpayer notice of the proposed deficiency assessment, the mailing of the deficiency notice limits the period of time thereafter to ninety days in which the taxpayer can have the question reviewed by the Tax Court. If the taxpayer receives notice of the proposed assessment, and during the ninety-day period thereafter files his petition for review with the Tax Court, the purposes of the Act have been accomplished. Although some courts have said that strict compliance with the statutory notice provisions is necessary in order to validate the assessment and to give the Tax Court jurisdiction to review it, we do not think that such a view is the correct one. In Commissioner [of Internal Revenue] v. Forest Glen Creamery Co., supra, the Court said, 98 F.2d at page 971: 'x‘ * there is no indication in the statute of an intention to require the notice to be on the basis of jurisdiction of the Board in a technical sense.’ As pointed out by Commissioner [of Internal Revenue] v. New York Trust Co., supra, 54 F.2d at page 465, it is the taxpayer who invokes the jurisdiction of the Board by filing his petition to review. This Court has previously ruled that a failure to strictly comply with the statutory notice provisions does not necessarily deprive the Tax Court of its jurisdiction to act in the matter. Warner Collieries Co. v. United States, 6 Cir., 63 F.2d 34; Commissioner [of Internal Revenue] v. Nichols & Cox Lumber Co., 6 Cir., 65 F.2d 1009. See also Burnet v. San Joaquin Fruit & Investment Co., 9 Cir., 52 F.2d 123, 128. Under Section 272(d) Internal Revenue Code, the required mailing of the deficiency notice can be waived by the taxpayer without invalidating the validity of the assessment. In the following cases it was held that defects or irregularities in giving the required statutory notice were waived by the taxpayer’s action in proceeding with a petition for review in the Tax Court, which thereupon acquired jurisdiction to determine the matter: Haag v. Commissioner, 7 Cir., 59 F.2d 516, 518; Commissioner [of Internal Revenue] v. New York Trust Co., supra, 54 F.2d at page 466. “In the present case, the taxpayer received the full measure of protection guaranteed to him by Section 272(a) of the Code.” We do not go as far as the majority did in Dolezilek v. C. I. R., 1954, 94 U.S. App.D.C., 97, 212 F.2d 458, in here holding that actual notice, plus a ninety-day period thereafter within which the taxpayer may act, satisfies the statute, and that a literal compliance is unnecessary. There the majority opinion held that the mailing of an undelivered registered letter starts the ninety-day period running, where the taxpayer had actual notice within the ninety-day period by manual delivery and “adequate time remaining within such period for preparing and filing * * * ” his protest. The dissent of Judge Miller points out that he believes the legislative intent was that “the notice must actually reach the taxpayer * * * before limitation begins to run from the date of mailing,” and in conclusion he states: “My opinion is that Congress intended to permit an application to the Tax Court within ninety days after the mailing of a final or ninety-day deficiency letter which was actually delivered to the taxpayer by the post office; and, in the absence of notice by registered letter, within ninety days after the taxpayer’s actual receipt of notice delivered to him by some other method. Section 272 does not, as the majority say, provide for manual delivery. But such delivery is not forbidden, and the use of registered mail is not mude exclusive. The essential thing is that the taxpayer have notice, and not that he have it in any particular way.” (Emphasis added.) We agree with this reasoning. Here' the essential purpose of the statute was accomplished. The rights of the taxpayer were protected. He received ae-tual notice in sufficient time to petition the: Tax Court to stay the levy and dis-traint, had he desired so to do. He chose not to do so, and he cannot now complain of an alleged technical deficiency which deprived him of no rights. Our conclusion herein as to the sufficiency of the notice is based upon the circumstances of this case and our reasoning is not meant as authority for holding that actual notice is sufficient in all cases where another specific kind of notice is prescribed. Affirmed. . 28 U.S.C.A. § 1340. . Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C.A. . 28 U.S.C.A. § 1291. . 26 U.S.C.A. § 7421. . 26 U.S.C.A. § 6212. . 26 U.S.C.A. § 6213. . 26 U.S.C.A. (I.R.C.1939), § 272. . Internal Revenue Act of 1924, § 274(a), 26 U.S.C.A.Int.Rev.Acts, p. 56. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_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 Matilda ALOUF, also known as Matty Joy, doing business under the name and style of House of Joy, Plaintiff-Appellant, v. EXPANSION PRODUCTS, INC., Defendant-Appellee. No. 72, Docket 33533. United States Court of Appeals Second Circuit. Argued Oct. 3, 1969. Decided Nov. 5, 1969. Bernard A. Helfat, (Helfat & Helfat, New York City, J. Nathan Helfat, New York City, of counsel), for plaintiff-appellant. Ruben Schwartz, New York City (Martin W. Fogel and Richard Kaye, New York City, of counsel), for defendant-appellee. Before FRIENDLY, SMITH and FEINBERG, Circuit Judges. PER CURIAM: Plaintiff, a manufacturer of costume jewelry, brought this action in the District Court for the Southern District of New York for infringement of copyright on ten “works of art,” to wit, stained glass or “cookie-cutter” pins described respectively as Apple, Mouse, Butterfly, Yesterday’s Fish, Wiggly-Eyed Owl, Boy, Dog, Cat, Lute and Spiderweb. Judge McLean granted summary judgment determining infringement, issuing an injunction and directing trial of the amount of damages and profits payable by defendant. Judge Murphy, before whom that issue was tried, found that the evidence “was so scanty that we cannot with any degree of permissible speculation make a fair estimate of damages either as to the profits of defendant or the lost profits suffered by plaintiff, assuming there was a nexus.” He therefore availed himself of the provision of the Copyright Act, 17 U.S.C. § 101(b), permitting the award “in lieu of actual damages and profits” of “such damages as to the court shall appear to be just.” He entered judgment for $5,000, which he then regarded as the maximum permissible in light of his finding that there was no proof how many “Apple” pins were sold after defendant had received a letter from plaintiff’s lawyer dated June 3, 1965 complaining in that regard or that any sales were made after the service of process on January 21, 1966. He also allowed $3,500 as counsel fees. Plaintiff sought reconsideration, questioning the conclusion concerning absence of proof of sales after “actual notice [to a defendant], either by service of process in a suit or other written notice,” § 101(b), and pointing out that, since ten copyrights were involved, $50,-000 could be allowed. Adhering to his conclusion on the former point and adverting to the fact that “plaintiff’s entire submission was put to us on the theory that her pins were sold as a collection or assortment and not on an individual basis,” the judge modified the judgment so as to award damages fo,r $500 on each of the ten copyrighted pins, for a total of $5,000. In light of the broad powers necessarily confided to trial judges to determine the adequacy of proof of damages for copyright infringement, we cannot properly upset Judge Murphy’s conclusion that plaintiff failed to demonstrate a right to recover more than the amount awarded. She did prove that defendant made profits of $2,502.00 on the identifiable infringements and claimed to have proved loss of profits of $9,813.13 on the same items. However, assuming, as we do, the correctness of this court’s ruling in Peter Pan Fabrics, Inc. v. Jobela Fabrics, Inc., 329 F.2d 194 (2 Cir. 1964), that § 101(b) means what it says in allowing recovery both of the owner’s damages and of the infringer’s profits, despite a contrary statement in the legislative history, see 329 F.2d at 196 & footnotes 3 and 4, plaintiff still did not have enough to carry the day. She conceded that she lost sales only on the West Coast and defendant adduced testimony that only a third of its purchases of infringing items were sold there. Moreover, in light of plaintiff’s high price policy, it was not clear that she would have made all the sales that defendant did. Plaintiff’s main contentions were that she was entitled to profits and damages not simply on the infringing items but on the “assortments” of which they formed a part, and that a drastic drop in her West Coast business was due to the infringements. While the claims were arguable, the judge was warranted in concluding that they were not established with the necessary specificity. We have had somewhat more difficulty with respect to the rather limited award of in lieu damages: The record does reveal a purchase by defendant of three dozen “Apple” pins in October 1965, and the shipment to it of substantial quantities of infringing pins shortly before and even after the service of process. Since no pins were found to remain in defendant’s possession, the judge very likely should thus have found the existence of infringements to which the statutory limitation of recovery would not apply, and we might feel compelled to remand for further consideration of the award in that light if only his first decision were before us. But his decision on rehearing makes plain that, realizing he could go as high as $50,000 even in the absence of infringements after “actual notice,” § 101(b), he did not consider more than $5,000 “to be just.” Moreover, the judge stated during trial that he would assume the infringements were willful. Taking these facts as given, ap-pellee relies on a statement by the Supreme Court with respect to “in lieu” damages that “the court’s conception of what is just in the particular case, considering the nature of the copyright, the circumstances of the infringement and the like, is made the measure of the damages to be paid, but with the express qualification that in every case the assessment must be within the prescribed limitations, that is to say, neither more than the maximum nor less than the minimum. Within these limitations the court’s discretion and sense of justice are controlling, * * L. A. West-ermann Co., v. Dispatch Printing Co., 249 U.S. 100, 106, 39 S.Ct. 194, 196, 63 L.Ed. 499 (1919). See also F. W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 73 S.Ct. 222, 97 L.Ed. 276 (1952). Although we might well have awarded a larger sum had we been the triers of the fact, we find no abuse of discretion here. Similar considerations apply to the award of counsel fees, Affirmed, 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_partywinning	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. UNITED MINE WORKERS OF AMERICA v. RAILING et al., dba C & P COAL CO. No. 1059. Decided March 22, 1971 Per Curiam. The petition, for a writ of certiorari is granted, the judgment is vacated, and the case is remanded to the Court of Appeals for further consideration in light of Zenith Radio Corp. v. Hazeltine Research, Inc., ante, p. 321. Both § 303 of the Labor Management Relations Act, 1947, 61 Stat. 158, as amended, 29 U. S. C. § 187, and § 4 of the Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. § 15, give a cause of action for injury to business or property. Whether suits under the two statutes are distinguishable for purposes of determining the time at which a cause of action accrues warrants further exploration by the Court of Appeals. Further attention should also be given to the question of why a § 303 cause of action has sufficiently accrued to bring suit as soon as the plaintiff suffers damage but has not sufficiently accrued to start the running of the statute of limitations on the damages already suffered and for which suit may be but is not brought. • The Chief Justice and Mr. Justice Harlan would grant the petition for a writ of certiorari and set the case for argument on the merits. Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case? A. Yes B. No Answer:
songer_usc2	29	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 29. 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. S. W. NOGGLE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 72-1678. United States Court of Appeals, Eighth Circuit. Submitted April 11, 1973. Decided May 1, 1973. Harry L. Brovvne, Kansas City, Mo., for petitioner. M. Namrow, Atty., N. L. R. B., Washington, D. C., for respondent. Before GIBSON, BRIGHT and ROSS, Circuit Judges. GIBSON, Circuit Judge. Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. The Board’s Decision and Order are reported at 199 NLRB No. 107. The S.W. Noggle Company was found by the NLRB to have committed an unfair labor practice in violation of §§ 8(a) . (1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3), by threatening to discipline and later by the discharge of Mike Masonbrink. It is the contention of the General Counsel that the employer discharged Mason-brink because he advocated that the employees go out on strike for a new contract. The Department Store, Package, Grocery, Paper House, Liquor and Meat Drivers, Helpers and Warehousemen, Local No. 955, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union), had represented a unit consisting of the employer’s ware-housemen and drivers for 30 years. On September 30, 1971, the three-year contract between the employer and the Union expired. Negotiations were in progress at the time of the events with which this action is concerned. Masonbrink was a part-time employee of the Noggle Company from October 1969 to May 1970 when he enlisted in the Coast Guard. He returned from this military service in June 1971. At the end of June, through the efforts of his sister, Vickie Harrison, an order clerk for Noggle, he was rehired on a full time basis. He worked as a truck driver until mid-October when he requested and received a transfer to the warehouse. He worked in the warehouse about six weeks, until his discharge on December 1, 1971. During the period when he was employed in the warehouse the Trial Examiner found that Masonbrink “was far from being a model employee.” On several occasions he refused to perform his duties as he was instructed to do although he stated that he later would go ahead and do them. He was reported by Bramer, the leadman, to Thomas Turner, the general manager for Noggle, who in turn complained of his conduct to the Union. Several witnesses testified that they had heard Mansonbrink state that he would like to draw “rocking chair money” which was explained as meaning state unemployment compensation. Ma-sonbrink did not deny this but only stated that he could not remember saying it. On November 15, at a meeting between the unit employees and several union representatives Masonbrink strongly advocated that the Union strike the company because of its failure to negotiate a new collective bargaining agreement. Leadman Bramer reported Masonbrink’s position to General Manager Turner. Turner spoke to Vickie Harrison on about November 29, and told her, “Vickie, we’re going to have to do something about Mike. He has the men upset about going out on strike.” When she replied that it was because the company had not negotiated a new contract yet he responded, “I can’t help that. He still has to get his orders out.” The Trial Examiner found that this was a threat to discipline Masonbrink. Two days later, after Vickie had spoken to her brother concerning this conversation, Masonbrink called to Turner while he was in the warehouse, and told him that if he had anything to say to him he should do so directly and not to tell his sister. Turner made no response to this. At this point the stories of the parties diverge. Masonbrink states that they then began to discuss the performance of his work. Turner stated that he asked Masonbrink to fill a rush order and that Masonbrink refused because he was already working on another order. One of the other warehousemen heard this conversation and his version, while not identical to that of Turner’s tends to support Turner’s version. Both Mason-brink and Turner testified that Mason-brink said that if Turner thought he could do a better job he could do it himself, and that Turner stated to Mason-brink that if he did not like working there he could quit. Masonbrink admits that he told Turner that if he did not like the way he was doing his job Turner could fire him. This challenge was repeated several times and finally Turner did fire Masonbrink. The sole issue on this appeal is a factual one, whether the finding of the Trial Examiner and the Board that Mason-brink was discharged for his advocacy of a strike was supported by substantial evidence in the whole record. 29 U.S.C. § 160(e). ■ The Supreme Court has defined “substantial evidence” as: “ ‘. . . such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 '[I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.’ Labor Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660. This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence Labor Board v. Nevada Consolidated Copper Corp., 316 U.S. 105, 106, 62 S.Ct. 960, 961, 86 L.Ed. 1305; Keele Hair & Scalp Specialists, Inc. v. FTC, 275 F.2d 18, 21.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 619-621, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) (footnotes omitted). Considering first the finding by the Board that Turner had not requested Masonbrink to fill a rush order and been refused, we hold that this finding is not supported by substantial evidence on the whole record. The issue was decided by the Trial Examiner as a matter of credibility, balancing the testimony of Turner that he had told Masonbrink to fill the order and been refused against Masonbrink’s denial of the incident and testimony that the conversation concerned only his work performance generally. The Trial Examiner appeared to ignore the testimony of Ralph Roberts, one of the other warehousemen, to the effect that he had heard the conversation between Turner and Masonbrink, and that he had heard Turner tell Masonbrink to fill an order. Although Roberts did not testify that Masonbrink had openly refused to comply with the instruction, Robert’s version of the confrontation is more consistent with Turner’s version than was Masonbrink’s in that Mason-brink denied that he was even told to fill an order. Turning next to the statement made by Turner to Vickie Harrison with regard to Masonbrink’s advocacy of striking, the Examiner failed to fully examine this incident. Beyond reciting the facts of the statement and the bare finding that “I also find that Turner’s statement to Vickie constituted a violation of Section 8(a)(1) of the Act” there was no analysis of the statement. Turner denied that it was a threat to discharge Masonbrink. He stated that he wanted Vickie to see if she could get Mike to settle down. In view of the fact that Vickie Harrison had been instrumental in getting Masonbrink the job, and the cordial relationship which obviously existed between the small group of employees and the management, this is not an unlikely explanation for the conversation. From the record of this conversation it would be erroneous to draw the conclusion that Turner was threatening to fire Masonbrink for advocating a strike. In view of the fact that Masonbrink had been employed in the warehouse only a short time, and that after the one occasion when a complaint had been made of Masonbrink’s sub-par performance Turner had promptly notified the Union, this record cannot support the finding by the Examiner that Turner had “put up with quite a bit” or condoned the prior misconduct of Masonbrink. This finding appears incredible. By employing such reverse logic, the mere condoning of inferior work, would give the employee a shield against dismissal for cause. Even without the refusal by Masonbrink to fill the order on the day of his discharge, the record does not support the finding that he was not discharged for cause but for his union activities. It is clear that he initiated the confrontation with Turner. It is further undisputed that he several times challenged Turner to discharge him if Turner did not like the way he did his work, indicating that he would not even attempt to meet the standards which his employer would expect. This sort of defiant attitude by employees is not protected by either a Union shield or the National Labor Relations Act. Considering the record as a whole, it is clear that the finding of a discriminatory discharge of this hostile and contentious employee is not supported by substantial evidence. Accordingly, the Board’s Order which required his reinstatement with back pay will not be enforced. Enforcement denied. . Of course, an employee, absent a protective agreement, may be discharged with or without cause so long as it is not for a reason prohibited by the National Labor Relations Act. “It must be remembered that it is not the purpose of the Act to give the Board any control whatsoever over an employer’s policies, including his policies concerning tenure of employment, and that an employer may hire and fire at will for any reason whatever, or for no reason, so long as the motivation is not violative of the Act.” NLRB v. Ace Comb Co., 342 F.2d 841, 847 (8th Cir. 1965). See also NLRB v. Red Top, Inc., 455 F.2d 721, 726 (8th Cir. 1972) (cases cited at n. 4). Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 29. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_r_stid	37	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. Vicki H. BROWN, Plaintiff-Appellant, v. HARTSHORNE PUBLIC SCHOOL DISTRICT #1, Defendant-Appellee. No. 86-2852. United States Court of Appeals, Tenth Circuit. Dec. 20, 1988. James D. Wadley of Wadley & Bartheld, McAlester, Okl., for plaintiff-appellant. Richard C. Lerblance, Hartshorne, Okl., for defendant-appellee. Before McKAY, SEYMOUR, and TACHA, Circuit Judges. SEYMOUR, Circuit Judge. Vicki Brown filed a civil rights action against Hartshorne Public School District # 1 under 42 U.S.C. § 2000e-5 (1982) (Title VII of the 1964 Civil Rights Act) and under 42 U.S.C. § 1983 (1982). The district court granted defendant’s Motion for Summary Judgment because it believed that plaintiff had failed to exhaust her administrative remedies. Because the district court misread plaintiff’s complaint and erred in its legal conclusions, we reverse. I. Brown, a Mexican-American, unsuccessfully applied for a teaching position with the District in each of the last ten years. She filed her first EEOC charge alleging national origin discrimination in January 1979, and filed her first suit in April of that year. That suit was dismissed without prejudice. Brown refiled the suit in November 1980, and it was again dismissed in September 1981. She filed a second administrative charge of discrimination with respect to the 1984-85 school year on August 7, 1984, received a right-to-sue letter from the EEOC October 5, 1985, and filed this action January 2,1986. In the instant complaint, Brown seeks relief under Title VII and section 1983, alleging both that the District has discriminated against her during the last ten years because she is Mexican-American, and that the District refused to hire her for the 1985-86 school year in retaliation for her previous suits. The District moved for summary judgment, alleging, inter alia, that Brown had not exhausted her administrative remedies due to various procedural irregularities. The district court granted the motion and dismissed the entire complaint solely because Brown had not filed an EEOC charge with respect to the District’s failure to hire her for the 1985-86 school year. The court did not address the section 1983 claim. II. The district court’s grant of summary judgment was based on a number of factual and legal errors. Most importantly, the court ignored the fact that Brown, in addition to her retaliation claim for the District’s refusal to hire her for the 1985-86 school year, asserted that the District had discriminated against her for the 1984-85 school year. Rec., vol. I, doc. 1, at 4 (hereinafter “Complaint”). Brown had exhausted this claim by filing a charge of national origin discrimination with the EEOC, receiving notice of her right to file suit in district court, and timely filing this action. Thus, the district court’s reasoning with respect to Brown’s claims for the 1985-86 school year is simply inapplicable to any claims asserted in the 1984 EEOC complaint. The district court also erred in its legal conclusion that plaintiff's claims for the 1985-86 school year were not properly before it. The court correctly pointed out that a discrimination claim may not be filed in federal court before administrative remedies have been exhausted. However, [w]hen an employee seeks judicial relief for incidents not listed in his original charge to the EEOC, the judicial complaint nevertheless may encompass any discrimination like or reasonably related to the allegations of the EEOC charge, including new acts occurring during the pendency of the charge before the EEOC. Oubichon v. North American Rockwell Corp., 482 F.2d 569, 571 (9th Cir.1973). See also Loe v. Heckler, 768 F.2d 409, 420 (D.C.Cir.1985); Brown v. Continental Can Co., 765 F.2d 810, 813 (9th Cir.1985); Almendral v. New York State Office of Mental Health, 743 F.2d 963, 967 (2d Cir.1984); Waiters v. Parsons, 729 F.2d 233, 237-38 (3d Cir.1984). Courts have held that an act committed by an employer in retaliation for the filing of an EEOC complaint is reasonably related to that complaint, obviating the need for a second EEOC complaint. See Kirkland v. Buffalo Bd. of Educ., 622 F.2d 1066, 1068 (2d Cir.1980); see also Gottlieb v. Tulane Univ., 809 F.2d 278, 284 (5th Cir.1987) (holding that district court has ancillary jurisdiction over claims of retaliation for filing of EEOC complaint properly before the court); Gupta v. East Texas State Univ., 654 F.2d 411, 414 (5th Cir.1981) (same). Courts have also held that acts committed pursuant to a pattern of discrimination challenged in an EEOC complaint, but occurring after its filing, are reasonably related to that complaint, and may be challenged in district court without filing another EEOC complaint. See e.g., Almendral, 743 F.2d at 967; Waiters, 729 F.2d at 237-38; Ramirez v. Nat. Distillers & Chemical Corp., 586 F.2d 1315, 1320 (9th Cir.1978). In this case, Brown has alleged that the District’s decision not to hire her for the 1985-86 school year, which occurred during the pendency of her EEOC complaint, was both in retaliation for her EEOC filing and part of an ongoing pattern of discrimination. We conclude that if either of these claims is true, Brown’s 1985-86 related claims would be properly before the district court. She should have the opportunity, through discovery and at trial, to prove the truth of her allegations and the propriety of jurisdiction. Oubichon, 482 F.2d at 571. Finally, in dismissing Brown’s Title VII action the district court ignored the fact that she also asserts a section 1983 claim. A state employee suffering from discrimination may assert claims under both section 1983 and Title VII. In enacting Title VII, Congress did not intend to eliminate a public employee’s right to sue under section 1983, see generally Keller v. Prince George’s County, 827 F.2d 952, 958-62 (4th Cir.1987) (discussing relevant legislative history of Title VII), and Courts of Appeals addressing the issue have held that causes of action exist under both section 1983 and Title VII for public sector employment discrimination. See, e.g., Keller, 827 F.2d at 955, 962 (citing cases); Ratliff v. City of Milwaukee, 795 F.2d 612, 623-24 (7th Cir.1986); Trigg v. Fort Wayne Comm. Schools, 766 F.2d 299, 301-02 (7th Cir.1985). While this Court has never addressed the issue directly, it has tacitly approved the assertion of section 1983 and Title VII claims in the same suit. See Poolaw v. City of Anadarko, 738 F.2d 364, 366 n. 1 (10th Cir.1984), cert. denied, 469 U.S. 1108, 105 S.Ct. 784, 83 L.Ed.2d 779 (1985). Similarly, the Supreme Court has acknowledged that the actions of public employers are subject to the potentially differing requirements of Title VII and the Fourteenth Amendment itself. Local Number 93, Int’l Assoc. of Firefighters v. City of Cleveland, 478 U.S. 501, 517 n. 8, 106 S.Ct. 3063, 3073 n. 8, 92 L.Ed.2d 405 (1986). Claims under section 1983 and Title VII differ significantly in their statutes of limitations, exhaustion requirements, and available remedies. See Keller, 827 F.2d at 955. The most important distinction with respect to the district court’s holding is that a section 1983 plaintiff need not comply with the exhaustion requirements of Title VII. See id.; Trigg, 766 F.2d at 302; see also Gillette v. McNichols, 517 F.2d 888, 890 (10th Cir.1975) (Section 1983 employment discrimination plaintiff need not exhaust state administrative remedies). On remand, the district court should note these differing standards and procedures and apply them to the separate causes of action in this case. The decision of the district court is reversed, and the case is remanded for proceedings consistent with this opinion. . Plaintiff had 90 days from the receipt of a right-to-sue notice, or until January 3, 1986, to file this complaint. Question: What is the state of the first listed state or local government agency that is a respondent? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_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. WOOTTEN v. WOOTTEN et al. (two cases). Nos. 3120, 3121. Circuit Court of Appeals, Tenth Circuit. Aug. 27, 1945. HUXMAN, Circuit Judge, dissenting. Harry Hammerly, of Chickasha, Okl. (Seth & Montgomery, of Santa Fe, N. M., on the brief), for appellants. H. A. Kiker, of Santa Fe, N. M., for appellees. Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges. PHILLIPS, Circuit Judge. These are actions to establish constructive trusts in certain shares of stock of the Red River Ranch, Inc. The court below held that the complaints failed to state claims upon which relief could be granted, and dismissed the actions. The facts alleged in the complaints are these: On or about July 30, 1936, R. K. Wootten was the owner of certain ranch properties located in Mora, Colfax, and Harding Counties, New Mexico, consisting of 10,000 acres of deeded land, 46,000 acres of leased land, 4,000 acres of land purchased under contract from the State of New Mexico, 1300 head of ranch cattle, and horses, milk cows, and ranch equipment. On that date, R. K. Wootten sold and conveyed to his brother, John B. Wootten, an undivided one-half interest in the real estate and other ranch properties, and thereafter, until the death of R. K. Wootten, he and John B. Wootten were partners in the ownership, management, and operation of the ranch. On July 30, 1936, R. K. Wootten and John B. Wootten entered into a contract with W. R. Ferguson for the management and operation of the ranch properties for a term of six years. The contract recited that the ranch properties, other than cattle, had a value of $88,000, and that the cattle had a value of $57,587.50. It provided that Ferguson would manage and superintend the ranch and its operations for a period of six years from January 1, 1936; that the Woottens would pay him a salary of $100 per month and provide funds for the economical operation of the ranch; that the net profits or losses sustained in the conduct and operation of the ranch, excluding increases in the value of the lands, should be determined annually; that, in the event the net operating profit for the full term of six years should equal 100 per cent of the total investment during such period, including the fixed value of the lands and leases, Ferguson should be entitled to an undivided one-third interest in the ranch lands, leases, livestock, and equipment, and that such interest, at the end of six years, would be transferred to Ferguson; and that, in the event the net operating profit should not equal 100 per cent, an interest in the ranch properties on the basis of the net profits earned would be transferred to Ferguson at the end of the six-year period. R. K. Wootten died testate, January 2, 1938. John B. Wootten was the executor named in the will and duly qualified as such and has continued to act as such executor. Under the will, one-tenth of the ranch properties were devised and bequeathed to Vendía E. Wootten, widow of R. K. Wootten, deceased, and one-tenth to each of the four children of R. K. Wootten, deceased. The will provided that each of the shares of the four children should vest in John B. Wootten, as trustee. The will gave the executor power and authority to manage, control, sell, transfer, and convey any and all property of the estate and to invest and reinvest any and all money coming into his possession in such securities and upon such terms and conditions as he might, in the exercise of his judgment and discretion, determine. During the continuance of the Ferguson contract, it became necessary, from time to time, to purchase supplies, make advancements, purchase additional deeded land, and finance the operation of the ranch properties. The funds therefor were contributed equally by R. K. Wootten during his lifetime, and thereafter by the executor of his estate, and by John B. Wootten. After the death of R. K. Wootten, John B. Wootten formulated a plan to create a corporation under the laws of New Mexico and to transfer all of the ranch properties to such corporation. In December, 1939, John B. Wootten, acting for himself individually and as executor of the estate of R. K. Wootten, deceased, and as trustee for the children, Vendía E. Wootten, and Ferguson entered into a contract whereby they agreed to create such corporation and to transfer the ranch properties to the corporation in exchange for 2500 shares of the corporate stock of the par value of $100 per share; to deliver two-thirds of such stock to John B. Wootten individually and as trustee for the children, and to Vendía E. Wootten, and to retain, as treasury stock for the protection of Ferguson,'under the contract, one-third of the authorized capital stock, and at the end of the six-year period, to issue to Ferguson, the one-third of the shares retained in the treasury or such portion thereof as he might be entitled to. The corporation was duly created under the name of Red River Ranch, Inc. Six hundred and ten shares of the capital stock were issued to John B. Wootten individually, 122 shares to Vendía E. Wootten, and 488 shares to John B. Wootten, as trustee for the children. The remaining one-third of the stock, except one share issued to Ferguson, was held in the treasury. At the expiration of the six-year period, a controversy arose between John B. Wootten and Ferguson as to the interest in the ranch properties that Ferguson was entitled to receive under the contract. Ferguson brought an action in the District Court of the Eighth Judicial District of New Mexico against the Red River Ranch, Inc., and others. On December 4, 1942, a decree was entered in that case. It adjudged that Vendía E. Wootten was entitled to 126 shares of the corporate stock; that John B. Wootten, as trustee for the four children, was entitled to 504 shares of such stock; that John B. Wootten individually was entitled to 630 shares of such stock; and that Ferguson was entitled to 570 shares of such stock. Following the entry of such decree, John B. Wootten discontinued the services and employment of Ferguson and took over the sole and exclusive operation and management of the corporation and its ranch properties. In January, 1944, John B. Wootten began negotiations with Ferguson to purchase all of the latter’s corporate stock. Ferguson had disposed of 34 shares of the stock issued to him. John B. Wootten consummated the purchase of the remaining 536 shares of stock held by Ferguson for $87.50 per share. At the time of such purchase, such stock had an actual value of $175 per share. John B. Wootten, as trustee of the trust estates, had sufficient funds in his hands to purchase two-fifths of such stock for the benefit of the children. Carl Eklund Wootten, one of the children, brought an action in which he alleged the foregoing facts and sought a decree adjudging that John B. Wootten held 53.6 shares of the 536 shares purchased from Ferguson, as trustee for Carl Eklund Wootten. Each of the other children brought a like action. Vendía E. Wootten brought an action against John B. Wootten in which she alleged the foregoing facts and further alleged that John B. Wootten, as executor of the estate of R. K. Wootten, deceased, and as president and sole manager, and in full control of the ranch properties, was acting in a fiduciary capacity with respect to Vendía E. Wootten when he purchased the Ferguson stock, and sought a decree adjudging that John B. Wootten held 53.6 shares of such stock as trustee for Vendía E. Wootten. No. 3120 is an appeal from the judgment entered in the action brought by Carl Eklund Wootten. No. 3121 is an appeal from the judgment entered in the action brought by Vendía E. Wootten. In this drama of real life, John B. Wootten was the principal actor. At its inception, he owned individually one-half of the ranch properties; the widow and children of his deceased brother owned the beneficial interest in the remaining one-half thereof; and Ferguson, under his contract, had a contingent interest which might ripen into an ownership of one-third of such properties. John B. Wootten, as executor under the will, occupied a fiduciary relationship to Vendía E. Wootten, and, as trustee under such will, a fiduciary relationship to the children. Ferguson was the active manager of the ranch properties. John B. Wootten, as an individual, had a voice equal to, but not greater than, that of the other parties to the joint adventure. John B. Wootten first brought about the formation of the corporation, the transfer of the ranch properties to it, and the issuance of two-thirds of the shares of stock in the corporation to himself individually and as trustee, and to Vendía E. Wootten, in proportion to their respective interests in the ranch properties. At that stage the stock held by John B. Wootten individually did not give him control of the corporation. He could only dominate the corporation by joining the voting power of his individual stock and the stock held by him as trustee. By acquiring the Ferguson stock, he passed from a position where his individual interest was equal to the interests of the widow and children to the dominating position of a majority stockholder. The plan under which he organized the corporation, conveyed the ranch properties to it, and ultimately acquired a controlling interest in the corporation was all carried out during the time when he occupied such fiduciary relationships. Many forms of conduct regarded as permissible for those acting at arm’s length are forbidden to those bound by fiduciary ties. The standards of conduct for a trustee rise far above the ordinary morals of the market place. Not honesty alone, but a punctilio of honor the most sensitive is the standard of behavior required of a trustee. He must completely efface self-interest. His loyalty and devotion to his trust must be unstinted. Its well-being must always be his first consideration. These principles are inveterate and unbending. A trustee must not compete with his beneficiary in the acquisition of property. The principle is not limited to cases where the fiduciary acquires property entrusted to him, nor to cases where the fiduciary competes with the beneficiary in the purchase of property which the trustee has undertaken to purchase for the beneficiary. Even though the interest purchased by the fiduciary for himself is not property of the beneficiary entrusted to the fiduciary, nor property which the fiduciary has undertaken to purchase for the beneficiary, the principle applies if the property purchased by the fiduciary for himself is so connected with the trust property or the scope of his duties as fiduciary, that it is improper for him to purchase it for himself. It was to the advantage of John B. Wootten to secure a majority interest in the stock of the corporation, which gave him control. It was also to the disadvantage of the widow and children because it placed them in the position of minority stockholders. Because as an individual and fiduciary John B. Wootten was in control of the corporation and its management, he was able to purchase the Ferguson stock at a very advantageous price. Knowledge that came to him in his capacity as fiduciary was used to his individual advantage. It is true that he might have had that knowledge had he not been trustee and executor, but had he not been trustee and executor, a disinterested person would have been serving in those capacities, who would have had the knowledge from which John B. Wootten profited and who could have protected the interests of the widow and children. The motions to dismiss admitted all the facts well pleaded and all facts that can be reasonably inferred from the facts alleged. It is our opinion that under the facts well pleaded and the facts reasonably to be inferred therefrom, John B. Wootten, in acquiring all of the 536 shares of the Ferguson stock solely for himself individually, failed to measure up to those high standards of conduct which courts of equity have laid down as a measure of behavior required of a fiduciary and that the motions to dismiss should have been overruled. It may be on a hearing, John B. Wootten can satisfy the chancellor that, in failing to purchase half of such stock for the estate and for the trusts, he acted in good faith and in the exercise of a wise discretion. That issue, however, we think should be resolved after a full and searching inquiry into the facts. The judgments are reversed and the causes remanded with instructions to overrule the motions to dismiss. Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 546, 62 A.L.R. 1; Johnston v. Loose, 201 Mich. 259, 167 N.W. 1021, 1023; Ball v. Hopkins, 268 Mass. 260, 167 N.E. 33S, 341. Scott oh Trusts, Vol. 3, p. 2424, § 504; Id., Vol. 3, p. 2413, § 499; Johnston v. Loose, 201 Mich. 259, 167 N.W. 1021, 1022-1024; In re Robbins’ Estate, 94 Minn. 433, 103 N.W. 217, 110 Am.St.Rep. 375; Pine v. White, 175 Mass. 585, 56 N. E. 967. Gannaway v. Standard Acc. Ins. Co. of Detroit, 10 Cir., 85 F.2d 144, 145; Riskel v. Pacific Mut. Life Ins. Co. of California, 10 Cir., 78 F.2d 881, 886, 131 A.L.R. 414; Blanchar v. City of Casper, 10 Cir., 81 F.2d 452, 453. Hammond v. Mason and Hamlin Organ Co., 92 U.S. 724, 726, 23 L.Ed. 767; Weeks v. Denver Tramway Corporation, 10 Cir., 108 F.2d 509, 510. Cf. Pine v. White, 175 Mass. 585, 56 N.E. 967, 968. 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_weightev	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Leroy SMITH, Jr., Plaintiff-Appellant, Cross-Appellee, v. FIRESTONE TIRE AND RUBBER COMPANY, Defendant-Appellee, Cross-Appellant. Nos. 88-1841, 88-1916. United States Court of Appeals, Seventh Circuit. Submitted Feb. 10, 1989. Decided May 26, 1989. Gregory L. Barnes, Brinkoetter & Barnes, P.C., Decatur, Ill., for plaintiff-appellant, cross-appellee. C. Daniel Karnes, Jones Day Reavis & Pogue, Chicago, Ill., Glen D. Nager, Washington, D.C., for defendant-appellee, cross-appellant. Before CUMMINGS, CUDAHY, and FLAUM, Circuit Judges. CUMMINGS, Circuit Judge. Plaintiff filed this action under 42 U.S.C. § 1981 on October 21, 1986, alleging that his employer, defendant Firestone Tire and Rubber Company (“Firestone”), demoted him on the basis of his race on September 20, 1984. Defendant’s motions for summary judgment on the grounds of expiration of the statute of limitations and the absence of any genuine issues of material fact as to whether defendant’s decision to demote plaintiff was motivated by race were denied on January 8 and 13, 1988, respectively. 675 F.Supp. 1134. The case was tried on March 29, 1988. On March 30, 1988, the jury informed the court that it was unable to reach a decision and was discharged. On March 31, 1988, Judge Mills granted defendant’s motion for directed verdict on which he had earlier reserved ruling until deliberation of the jury and judgment was entered in favor of defendant. Plaintiff appeals the entry of directed verdict and defendant cross-appeals the denial of summary judgment based on the statute of limitations. We affirm. I. Statute of Limitations Defendant contends that plaintiff’s action, filed over twenty-five months from plaintiff’s demotion, is barred by Illinois’ two-year statute of limitations for personal injuries (Ill.Rev.Stat. ch. 110, ¶ 13-202 (1983)), rendered applicable to Section 1981 actions by Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987). Because Sections 1981 and 1983 do not contain a statute of limitations, courts applied various types of state statutes of limitations to the federal claims based on analogies to state causes of action, resulting in an undesirable lack of uniformity among jurisdictions. This inconsistency as to Section 1983 actions was resolved by Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), which held that for purposes of choosing the most appropriate state statute of limitations, Section 1983 claims are essentially claims for personal injury. Accordingly, the appropriate state statute of limitations for personal in-juiy should be borrowed from the forum state. Goodman merely applied the holding of Wilson to Section 1981 claims. Goodman, 107 S.Ct. at 2621. Defendant argues that Goodman should be applied retroactively to bar plaintiff’s claim under the general rule that “cases should be decided in accordance with the law existing at the time of decision.” Goodman, 107 S.Ct. at 2621. An exception to this general maxim exists where: (1) the decision at issue overrules clear precedent on which litigants may have relied or addresses an issue of first impression which was not foreshadowed; (2) retroactive application of the decision would retard the operation of a federal statute; and (3) retroactive application would result in substantial inequity. Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349, 355-356, 30 L.Ed.2d 296 (1971). We agree with the district court that such an exception to retroactive application is warranted here. Prior to the decision in Goodman on June 19, 1987, precedent in this Circuit beginning with Waters v. Wisconsin Steel Works, 427 F.2d 476, 488 (7th Cir.1970), certiorari denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151, 911, established that the Illinois five-year statute of limitations for residual claims (Ill.Rev.Stat. ch. 110, 1113-205 (1983)), applied to actions under Section 1981. This case is therefore distinguishable from Goodman in which the Court determined that there was no clear precedent within the Third Circuit on which plaintiffs could have relied in filing their suit and applied the statute of limitations retroactively to the claims of that class of plaintiffs. Plaintiff here, however, was clearly justified in relying on this Court’s case law applying the five-year statute of limitations prior to Goodman. Conceding that the five-year statute of limitations had been applied to Section 1981 actions in this Circuit prior to Goodman, defendant argues that plaintiff should have been forewarned as to the holding in Goodman by the Supreme Court’s earlier decision in Wilson. By analogy to Section 1983 actions, defendant contends, plaintiff should have concluded that Section 1981 actions would likewise be subject to the two-year Illinois personal injury statute of limitations. This Court rejected similar reasoning in Nazaire v. Trans World Airlines, Inc., 807 F.2d 1372, 1380 (7th Cir.1986). There this Court refused to apply the Illinois two-year statute of limitations to a Section 1981 action in spite of Wilson since “ ‘Section 1981 ... is more fundamentally concerned with injury to the contractual or economic rights of minorities [than Section 1983], and as such should appropriately be governed by the longer contract statute of limitations.’ ” Nazaire, 807 F.2d at 1380, quoting Judge Garth’s dissent in the Goodman court oí appeals decision, 777 F.2d 113, 132 (3rd Cir.1985). Accordingly, even after Wilson, this Circuit continued to apply the Illinois five-year statute of limitations to Section 1981 actions. Even if plaintiff should have been on notice after Wilson but prior to Goodman that the statute of limitations in Section 1981 cases was an open question, his claim would nonetheless be timely filed under Anton v. Lehpamer, 787 F.2d 1141 (7th Cir.1986), which established transitional statutes of limitations for Section 1983 decisions which accrued prior to Wilson. In Anton, this Court decided that Wilson should not be applied retroactively to Section 1983 causes of action that accrued prior to that decision on April 17, 1985. Instead, such plaintiffs should be given the first to expire of either the five-year residual statute of limitations on which they may have relied or the two-year personal injury statute of limitations from the date of the Wilson decision. Therefore even if plaintiff is deemed to have been on notice that the Wilson decision was likely to be extended to Section 1981 claims, he still met the Anton time limitations for actions accruing before Wilson by commencing this action within two years of the Wilson decision. The second factor of the Chevron test, whether retroactive application of the law will further or retard the operation of a federal statute, militates in favor of prospective application of Goodman as well. Both Goodman and Wilson serve the interests of safeguarding the rights of federal civil rights litigants, achieving uniformity and certainty and minimizing unnecessary collateral litigation. Wilson, 105 S.Ct. at 1947-1949; Goodman, 107 S.Ct. at 2622. Fully retroactive application of Goodman would clearly interfere with the rights of federal litigants who were injured prior to Goodman by shortening the limitations period from five to two years. Further, the interests of uniformity and certainty will be only minimally affected by prospective application of Goodman since only those actions which accrued prior to Goodman would be subject to a different limitations period. Although for a period of time there will be two effective limitations periods, thereby temporarily undermining the goal of uniformity, the delineation is clearly demarcated by the date of the Goodman decision, reducing the likelihood of unnecessary litigation. The final Chevron factor requires us to examine the inequity that may be caused by retroactively applying a shorter limitations period than previously applied by this Circuit. The inequity in terminating this action by a two-year statute of limitations while this Court’s precedent clearly allowed the plaintiff five years to commence this litigation is self-evident. This is certainly not a situation where plaintiff “slept on his rights” and equity warranted retroactive application to cut off his cause of action. Plaintiff commenced this action well within the five-year statute of limitations applicable when his action accrued. Prospective application only of the Goodman decision is therefore clearly appropriate. Consistent with Anton we hold that a plaintiff whose Section 1981 cause of action accrued prior to the decision in Goodman should be allowed to file that action within the period first to expire of: (1) five years from the accrual of the cause of action or (2)two years from the decision in Goodman on June 19, 1987. Plaintiffs action is not time-barred under this rule. II. Directed Verdict In reviewing the entry of a directed verdict by the district court, this Court must determine “whether a fairminded jury could return a verdict for the plaintiff on the evidence presented.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). In order to establish a violation of Section 1981, plaintiff must have presented sufficient evidence to enable a reasonable jury to conclude that defendant’s decision to demote plaintiff was motivated by his race. Goodman, 107 S.Ct. at 2623. Plaintiff may meet this burden by either direct evidence of the employer’s discriminatory motive or circumstantial evidence showing that the employer’s articulated rationale for demotion was merely a pretext for underlying discrimination. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983). We agree with the district court that plaintiff has failed to establish a case of racial discrimination. However, we disagree with the district court’s conclusion that plaintiff has failed to meet his prima facie case. Once a Section 1981 claim has been fully tried on the merits, the issue of whether plaintiff has established a prima facie case is no longer relevant. Aikens, 460 U.S. at 714-715, 103 S.Ct. at 1481-1482. If plaintiff has failed to make out a prima facie case of race discrimination, the district judge should grant the defendant’s motion for directed verdict relieving the defendant of its burden of establishing nondiscriminatory reasons for the employment action. “Where [as in this case] the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.” Aikens, 460 U.S. at 715, 103 S.Ct. at 1482. Accordingly, we address the ultimate issue of whether plaintiff has been the victim of his employer’s racial discrimination. The evidence presented at trial, appropriately viewed in the light most favorable to the plaintiff, reveals that plaintiff failed to perform his job satisfactorily on at least four separate occasions. Plaintiff entered employment with the defendant as an hourly employee at one of defendant’s tire manufacturing plants in Akron, Ohio, in April 1968. He was eventually promoted to a supervisory position several years later, but was laid off in 1981 when defendant closed its Akron, Ohio, facilities. Plaintiff was able to find alternative employment as a supervisor in defendant’s Decatur, Illinois, plant and was hired to work in the “banbury” department by its manager, Jerry Mills, beginning work on April 13, 1981. Plaintiffs employment as a production supervisor in the banbury department was apparently satisfactory from the commencement of his employment until December 1983, after which four incidents occurred which defendant represents formed the basis for plaintiff’s demotion. On January 4, 1984, one of the banbury machines under the supervision of plaintiff began to malfunction. Plaintiff diagnosed the problem as a failure of the automatic oil-injection system. He accordingly instructed two hourly employees to drop the oil manually into the machine. Subsequently, plaintiff received a phone call from his spouse informing him that her car was incapacitated. Plaintiff received permission to leave the factory to assist his wife, but failed to inform his supervisor of the machine malfunction. Plaintiffs supervisor later determined that 18,000 pounds of defective rubber had been processed by the malfunctioning machine. The malfunction was later found to be caused by a closed air valve. Plaintiff was reprimanded by Jerry Mills and a shift foreman, Gary Mol-lohan, for his failure to diagnose the cause of the mechanical malfunction accurately and for risking the safety of his workers by stationing them inside the banbury machine. In June of 1984, plaintiff was observed by another shift foreman, Dale Hubner, lying with his eyes closed on a conveyor belt behind a banbury machine during work hours. Plaintiff denied actually sleeping on the conveyor belt and offered the alternative characterization that he was merely resting his eyes. He was reprimanded for this incident and was requested to take a few days’ leave from work as discipline. Plaintiff subsequently twice failed to report for work in August of 1984. The failure apparently resulted from plaintiff’s neglect to check the work shift and overtime schedule. He was informed that a note documenting his failure to report would be placed in his personnel file. The final incident occurred on September 7, 1984, when one of the machines under the supervision of plaintiff ran thirteen bad batches of rubber before the error in the rubber recipe was detected. Plaintiff offered the explanation that the operator of the machine must have changed the rubber recipe after plaintiff had checked it prior to initiating the machine. Jerry Mills, however, testified that it would have been physically impossible for the operator to have changed the recipe after the run was started and concluded that plaintiff must have failed to check the recipe prior to commencing the process or checked it inaccurately. Plaintiff was asked to take a period of vacation as a result of the incident. Upon returning to work, he was informed that due to the recent occurrences he was requested to resign voluntarily from his supervisory position to become an hourly employee or leave the employ of the defendant. Plaintiff chose the former option and this suit was commenced twenty-five months later. Although at trial plaintiff disputed whether the four incidents were evidence of inadequate performance on the job, he did not deny that the incidents occurred. As proof that defendant’s proffered reasons for demotion were pretextual, plaintiff produced evidence of statements made by Jerry Mills that plaintiff would not be promoted, that Mills did not like plaintiff’s “type” and that one of plaintiff’s “type” was enough. Plaintiff admits that Mills never specifically referred to plaintiff’s race in making the above comments, although plaintiff assumed and it would be a reasonable inference that Mills was referring to plaintiff’s race. Plaintiff offered no other evidence that any employment procedure had been ignored or that white supervisors were treated differently. In response to the statements offered by Smith as evidence that Mills harbored racial prejudice, the defendant presented evidence that Mills had hired the plaintiff initially, Mills demoted a white supervisor merely for sleeping on the job, and that Mills had promoted another black supervisor. The standard for review of a directed verdict requires “this Court to view all of the evidence in the light most favorable to [the appellant].” Panter v. Marshall Field & Co., 646 F.2d 271, 281 (7th Cir.), certiorari denied, 454 U.S. 1092, 102 S.Ct. 658, 70 L.Ed.2d 631 (1981), emphasis original (quoting Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427 (7th Cir.1980)). Crediting as we must the statements offered by the plaintiff to be inferential evidence of racial prejudice, such statements are not, however, sufficient to demonstrate that the defendant relied on both legitimate and illegitimate criteria, or mixed motives. In its recent reexamination of mixed motive employment decisions, the Supreme Court determined that where a plaintiff has demonstrated that an illegitimate consideration was a substantial factor in the employment decision, the defendant must demonstrate by a preponderance of the evidence that the same decision would have been made absent the illegitimate motive. Price Waterhouse v. Hopkins, — U.S. -, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). As Justice O’Connor explained in her concurring opinion in Price Waterhouse, “stray remarks in the work place, while perhaps probative of sexual harassment, ... cannot justify requiring the employer to prove that its hiring or promotion decisions were based on legitimate criteria.” Price Waterhouse, — U.S. at -, 109 S.Ct. at 1804 (O’Con-nor, J., concurring). Such remarks, as offered by the plaintiff, when unrelated to the decisional process, are insufficient to demonstrate that the employer relied on illegitimate criteria, even when such statements are made by the decision-maker in issue. Plaintiff has failed to provide the requisite nexus between the statements made by the defendant and the demotion of the plaintiff to demonstrate that plaintiff’s race was a “substantial factor” in the defendant’s decision. The burden-shifting framework for mixed motive cases in Price Waterhouse is therefore inapplicable here. Instead, employing the framework established in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), we examine whether the legitimate reasons proffered by the defendant were the “ ‘true reasons’ ” for the demotion of Smith. Price Waterhouse, — U.S. at -, 109 S.Ct. at 1787 (Brennan, J., plurality), at -, 109 S.Ct. at 1795 (White, J., concurring), at -, 109 S.Ct. at 1800 (O’Connor, J., concurring). We agree with the district judge that defendant demoted plaintiff for non-discriminatory reasons. Plaintiff has failed to offer any evidence, other than the statements by Mills, to demonstrate that the justifications offered by the defendant were pretextual. The statements made by Mills were not shown to be related to Smith’s demotion and are simply insufficient to rebut the weight of the detailed and documented testimony by the defendant concerning Smith’s work performance. Plaintiff’s poor performance involved more than a single isolated incident of failing to appear for work on time. Several thousand pounds of defective rubber were produced on two separate occasions. In addition, plaintiff was found lying down on the job which plaintiff himself does not deny, claiming merely to have been resting his eyes. Plaintiff was also late for work on two other occasions. He was questioned and reprimanded regarding each of these occurrences, providing him with some opportunity to confront the criticism of him and improve his performance prior to his demotion. Although his job performance while employed with the defendant prior to 1984 was satisfactory, his quality of work during 1984 was seriously marred by the four incidents cited by defendant. Plaintiff cannot expect to be retained in a supervisory position based on his past performance in light of his sharply deteriorating performance in 1984. It is not our province to second-guess the business judgment of an employer where, as here, it acted on ample legitimate justification for demoting the plaintiff. Mason v. Pierce, 774 F.2d 825, 829 (7th Cir.1985). The judgment of the district court is affirmed. . Accord, Usher v. City of Los Angeles, 828 F.2d 556 (9th Cir.1987); Derstein v. Van Buren, 828 F.2d 653 (10th Cir.1987). But see Thomas v. Shipka, 829 F.2d 570 (6th Cir.1987); Smith v. Pittsburgh, 764 F.2d 188 (3rd Cir.), certiorari denied 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985); Wycoff v. Menke, 773 F.2d 983 (8th Cir.1985); Rivera v. Green, 775 F.2d 1381 (9th Cir.1985), in each of which Wilson was applied retroactively either because in the former three cases there was no clear contrary precedent while in Rivera retroactive application would actually lengthen the period of filing for the plaintiff. . See, however, Baker v. Gulf & Western Industries, Inc., 850 F.2d 1480 (11th Cir.1988), and Larkin v. Pullman-Standard Div., Pullman, Inc., 854 F.2d 1549 (11th Cir.1988), where Goodman was applied retroactively because no one statute of limitations had been applied to Section 1981 cases to establish clear precedent on which plaintiffs could have relied. . Indeed, plaintiff seems to recognize the futility of his argument in his brief which contains less than five pages of argument replete with grammatical errors and which is devoid of sufficient substance to enable this Court to determine that any error was committed by the district court. .Defendant moved for a directed verdict at the close of both plaintiffs and defendant’s cases. The district judge denied the first motion, but reserved ruling on the second, which was eventually granted following the jury deadlock. . The banbury department prepares raw materials according to a rubber recipe to be used in producing tires. 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_appel1_1_4	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant. INTERNATIONAL PRODUCTS CORPORATION, Plaintiff-Appellee, v. Charles A. KOONS, and Jane Roe, Richard Roe and Charles A. Koons, individually and as co-partners doing business under the firm name and style of Charles A. Koons & Company, Defendants-Appellants. No. 159, Docket 28430. United States Court of Appeals Second Circuit. Argued Oct. 4, 1963. Decided Oct. 28, 1963. See also, D.C., 33 F.R.D. 21. Gustave B. Garfield, Francis X. Stephens, Jr., New York City, for defendants-appellants. Robert B. Block, Pomerantz, Levy, Haudek & Block, New York City, for plaintiff-appellee. Arthur S. Olick, Asst. U. S. Atty., Robert M. Morgenthau, U. S. Atty. for the Southern Dist. of New York, for the United States. Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges. . This conclusion that the order was not an “injunction” in the sense used in the federal statutes and rules also answers appellants’ contentions as to alleged violations of F.R.Civ.Proc. 65. FRIENDLY, Circuit Judge. This is an appeal, allegedly pursuant to 28 U.S.C. § 1292(a) (1), from an order of Judge Metzner in an action brought in the District Court for the Southern District of New York, on the basis of diverse citizenship, by International Products Corporation against Koons, its former president, and others. Koons has counter-claimed and also has instituted a suit for libel against International and its directors. The order concerns a deposition of Jose Seldes, now president of International, taken at defendants’ instance, in which questions were asked as to payments by officers of International to officials of a South American government, and related matters; for convenience we quote the ordering portions in the margin. The proceedings leading to the order began with an order to show cause signed by Judge Croake on May 24, 1963, itself providing for similar relief pending disposition of the motion which was to be heard on June 6; the order to show cause directed that service be made not only upon defendants and their counsel but,, also upon the Legal Adviser to the Department of State and the Deputy Attorney General. The moving affidavit had claimed that the described material, if publicized in South America, not merely “could be extremely embarrassing and •cause great inconvenience and hardship to International and Jose Seldes” but “would be contrary to the best interests of the foreign policy of the United States,” and that the affiant had “been advised that the Department of State has been informed of this situation and has requested that it and the Department of Justice be notified of this application in order that the Court might ascertain the position of the United States Government with respect thereto.” On June 5, the Assistant Secretary of State for Inter-American Affairs sent the Attorney General a letter which, after referring to the action and the order to show cause, requested the Attorney General to support International’s attempt to preclude disclosure. The next day the United States Attorney for the Southern District of New York filed a Suggestion of Interest of the United States at the direction of the Attorney General pursuant to 5 U.S.C. § 316. A copy of the Assistant Secretary’s letter was attached, and the United States Attorney submitted “to the Court that an order limiting disclosure, as described in this Court’s order to show cause, dated May 24, 1963, would further the foreign policy objective of the United States.” Appellants contend that the Suggestion of Interest was unauthorized by 5 U.S.C. § 316 and that the order deprived them of rights to freedom of speech and to proper preparation of their case which are guaranteed by the First and Fifth Amendments. We must deal first with appealability. Appellants claim the order was an injunction pendente lite appeal-able under 28 U.S.C. § 1292(a) (1). Appellee responds that the order was simply a pre-trial order under F.R.Civ.Proc. 30 (b), which authorizes the court to seal a deposition and to “make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression”; it calls attention to some of the decisions cited below that the mere presence of words of restraint or direction in an order that is only a step in an action does not make § 1292(a) (1) applicable. Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233 (1955) ; Fleischer v. Phillips, 264 F.2d 515, 516 (2 Cir.), cert. denied, 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959); Armstrong-Norwalk Rubber Corp. v. Local 283, United Rubber Workers, 269 F.2d 618, 621 (2 Cir. 1959); Greenstein v. National Skirt & Sportswear Ass’n, 274 F.2d 430 (2 Cir. 1960); Grant v. United States, 282 F.2d 165, 169 (2 Cir. 1960); Taylor v. Board of Educ., 288 F.2d 600, 604 (2 Cir.), cert. denied, 368 U.S. 940, 82 S.Ct. 382, 7 L.Ed.2d 339 (1961); Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 84-86 (2 Cir. 1961), cert. denied, 368 U.S. 986, 82 S.Ct. 601, 7 L.Ed.2d 524 (1962). These decisions make it plain, for example, that an order sealing a deposition would not be rendered appealable by the addition of a direction to those who attended its taking to refrain from disclosing what they had heard. See 6 Moore, Federal Practice (1953), pp. 46 and 147, and cases there cited. But that does not altogether settle the issue here, since the order enjoined defendants from utilizing not only the deposition but also documents or writings which they had themselves produced or submitted. The single order entered by the district judge might therefore be viewed as in effect two orders: one under F.R.Civ.Proc. 30 (b), which is not appealable, and another going beyond the authority of the Rule, which is. Support for doing this might] be sought in the principle that when a, distinction has to be drawn between a' temporary restraining order, which is, not appealable, and a preliminary injunction, which is, “the label put on the order by the trial court is not decisive,” 3 Barron & Holtzoff, Federal Practice and Procedure (Wright ed. 1958) § 1440, at 509. See Sims v. Greene, 160 F.2d 512 (3 Cir. 1947); Connell v. Dulien Steel Products, Inc., 240 F.2d 414, 417-418 (5 Cir. 1957), cert. denied, 356 U.S. 968, 78 S.Ct. 1008, 2 L.Ed.2d 1074 (1958); Pennsylvania Motor Truck Ass’n v. Port of Philadelphia Marine Terminal Ass’n, 276 F.2d 931 (3 Cir. 1960); Parker v. Columbia Broadcasting System, 320 F.2d 937 (2 Cir. 1963). We think it better, in line with our prior decisions, to continue to read § 1292(a) (1) as relating to injunctions which give or aid in giving some or all of the substantive relief sought by a complaint (including stays of proceedings “at law,” as in Enelow v. New York Life Ins. Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440 (1935) and Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176 (1942)) and not as including restraints or directions in orders concerning the conduct of the parties or their counsel, unrelated to the. substantive issues in the action, while awaiting trial. As explained in Baltimore Contractors, Inc. v. Bodinger, supra, 348 U.S. at 181, 75 S.Ct. at 252 and Grant v. United States, supra, 282 F.2d at 169, such a construction provides a better fit with the language of the statute, “where, upon a hearing in equity in a district court,” as this first appeared in § 7 of the Evarts Act, c. 517, 26 Stat. 828 (1891) and later in the Judicial Code of 1911, § 129, 36 Stat. 1134; with the conclusion that the omission of the words “in equity” in the Act of February 13, 1925, 43 Stat. 937, “was not intended to remove that limitation,” Schoenamsgruber v. Hamburg American Line, 294 U.S. 454, 457, fn. 3, 55 S.Ct. 475, 477, 79 L.Ed. 989 (1935); and with the policy considerations which led Congress to create this exception to the federal final judgment rule. Furthermore, to read § 1292(a) (1) so broadly as to include an order, purportedly under F.R.Civ. Proc. 30(b), which grants injunctive relief beyond what the Rule authorizes, would also bring within the- sweep of the statute orders denying requests for such relief, although there would be no such need for appellate intervention as is -created by appellants’ claim that the instant order violates their constitutional rights, and thus to extend our jurisdiction under § 1292(a) (1) would seem quite inconsistent with the federal policy of finality. A decision like Sims v. Greene, supra, that what had been label-led a temporary restraining order was appealable as a temporary injunction, does not run counter to what we deem the correct construction of the statute, since the order related to the very equitable relief sought by the complaint. Neither would we regard the instant order as falling “in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the .action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated,” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-547, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), as we recently did in National Equipment Rental, Ltd. v. Mercury Typesetting Co., 323 F.2d 784 (2 Cir., 1963). It does not follow, however, "that an order purportedly made under F.R.Civ.Proc. 30(b) which exceeds the power there given to a district court is altogether beyond appellate scrutiny. The normal remedy for action taken in excess of jurisdiction is mandamus. See Rabekoff v. Lazere & Co., 325 F.2d 865, 867 fn. 1 (2 Cir. 1963). In contrast with at least one other circuit, this court has generally declined to consider an appeal from a nonappealable order as a petition for mandamus. See the authorities cited in United States v. O’Connor, 291 F.2d 520, 523-524 (2 Cir. 1961), in which we did so consider an unauthorized appeal in a case where the judge had died. As indicated in the O’Connor opinion, the only justification for what has been thought to be a rather formalistic attitude on our part, see 6 Moore, Federal Practice (1953 ed.), p. 93, is a desire to afford an opportunity for response by the judge, in addition to that made by the party favored by his order. Since this opportunity is rarely availed of, a suitable accommodation can be reached by treating such an appeal, in an appropriate case, as a motion for leave to file a petition for mandamus. An expression of this Court’s views on such a motion will generally obviate any need for a petition or a writ, while still leaving it open to the judge to await a formal petition in the rare case where he wishes to be heard, The portion of the order which seals the deposition of Seldes and limits defendants and others in their use of information obtained therefrom was plainly authorized by F.R.Civ.Proc. 30(b), and we entertain no doubt as to the constitutionality of a rule allowing a federal court to forbid the publicizing, in advance of trial, of information obtained by one party from another by use of the court’s processes. Whether or not the Rule itself authorizes so much of the order as also seals all affidavits submitted by defendants on various motions, we have no question as to the court’s jurisdiction to do this under the inherent “equitable powers of courts of law over their own process, to prevent abuses, oppression, and injustices,” Gumbel v. Pitkin, 124 U.S. 131, 144, 8 S.Ct. 379, 31 L.Ed. 374 (1888); Parker v. Columbia Broadcasting System, supra, 320 F.2d at 938, or as to the propriety of the exercise of discretion here. Even though the affidavits were defendants’ own productions, their quasi-official appearance might give them more weight with the uninformed than they were entitled to receive, and newspapers might feel freer to publish them, under the privilege to report judicial proceedings, than extra-judicial statements. What causes concern here is that the order went further and curtailed disclosure of information and writings which defendants and their counsel possessed before they sought to take Seldes’ deposition. We fail to see how the use of such documents or information in arguing motions can justify an order preventing defendants and their counsel from exercising their First Amendment rights to disclose such documents and information free of governmental restraint. Indeed, so far as concerns any claim based on the private interests of International or of Seldes, that question was settled against appellee by our decision in the Parker case, supra, 320 F.2d at 939, a few weeks after the order here under attack was entered. The issue that re^ mains is whether any different conclusion' is called for in this ease because of the Suggestion of Interest of the United States. Appellants claim in the first instance that the suggestion was unauthorized since the United States has no financial interest in the litigation. But the statute, 5 U.S.C. § 316, is not limited by its terms to cases of financial interest; it authorizes the Attorney General to send any officer of the Department of Justice “to attend to the interests of the United States in any suit pending in any of the courts of the United States, or in the-courts of any State * * Long before the present statute, which derives from the Act of June 22, 1870, c. 150, § 5, 16 Stat. 162, the Attorney General had submitted suggestions as to the immunity of the property of foreign sovereigns, The Schooner Exchange v. M’Faddon, 7 Cranch 116, 147, 11 U.S. 116, 147, 3 L.Ed. 287 (1812), as he has frequently done thereafter. Yet “the interests of the United States” in such cases are simply its interests in friendly intercourse with other nations and in avoiding reprisals by them — the same interests asserted here. Whatever the case may be as to suggestions of sovereign immunity, see American Law Institute, Restatement of Foreign Relations Law (Proposed Official Draft), § 75 (1962), it is plain that the suggestion here did not bind the court and certainly did not relieve it of the necessity of considering whether the action proposed to be taken would violate the First Amendment. We know of no authority that a court may restrain a private citizen in peace time from giving vent to his views, or publicizing his own information, as to the conduct of officials of foreign governments — any more than it may exert prior restraint on his publication of views concerning officials of our own. Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1934). The facts here are far, indeed, from the “exceptional cases” of valid prior restraints recognized in Near — “No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops,” 283 U.S. at 716, 83 S.Ct. 631, 75 L.Ed. 1357; we need not attempt to determine just where the line runs. The conduct of our country’s international relations might indeed be somewhat easier if citizens could be prevented from publicly reflecting on officials of foreign governments even when their information had been privately obtained. But the price of any such facilitation is higher than we have chosen to pay; we rely instead on the responsibility of the press and on the ability of the foreign service to explain to other governments that our Constitution does not permit such suppression of private thought. We therefore suggest that the District Court modify its order so as to make it plain that no restrictions are imposed on the freedom of the persons named therein to make whatever use they wish of writings (other than papers filed in court) or information which have come into their possession otherwise than through the court’s processes; if this is not done, as we are confident that it will be, appellants may apply for a writ. Since the briefs and appendices of the parties contain some matter the publicizing of which was properly restricted the Clerk is directed to obtain and impound all copies of the same. Appellants may recover their costs as on appeal. . “Ordered, that the defendants, their attorney, Francis X. Stephens, Jr., Esq., their counsel, Gustave B. Garfield, Esq., and the Bar Association Reporting Service, and any of their representatives or employees, be enjoined from publishing or disclosing to any third party any of the testimony, documents or writing contained or referred to in any of the depositions in the action or documents or writings produced or submitted to this Court, concerning payments to officials of any South American Government, but not restricting the defendants in the use of the discovered information, documents or writing, for trial preparation, includ- ing depositions of witnesses and pre-trial discovery in connection therewith, or for the trial proper of this action or any other lawsuit in the City, State, or Federal courts in the United States, the use in other lawsuits, however, being subject to the aforesaid restrictions pertaining to disclosure to parties unrelated to the lawsuit in which such information, documents or writings is used; and it is further “Ordered, that after the deposition of Jose Seldes, held on January 14, 1963, May 23, 1963, and any continuance thereof, and the exhibits marked in connection therewith, is sealed, said deposition shall only be opened by order of this Court; and it is further “Ordered, that the affidavit of Gustave B. Garfield, Esq., dated April 3, 1963, and the exhibit thereto, submitted in testimony, and now on file in this Court, be impounded by this Court and be subject to the same restrictions applicable to the said deposition of Jose Seldes; and it is further “Ordered, that all papers on this motion, including the Order to Show Cause, signed by the Honorable Thomas F. Oroake, United States District Judge, and dated May 24, 1963, be impounded by this Court and be subject to the same restrictions applicable to the said deposition of Jose Seldes.” Garfield’s affidavit of April 3, 1963, referred to in the penultimate paragraph, was made in support of a motion to compel Seldes to answer certain questions. . The letter said in relevant part: “The Department of State understands that certain payments, allegedly improper, may have been made by parties or deponents in this litigation to officials of a friendly South American Government. Disclosures and publication to the public at large of the facts alleged in the course of the pretrial proceedings could, in the opinion of the Department of State, lead the Government of the aforesaid friendly country to react in a manner inimical to private American business interests in that country and contrary to the foreign policy objective of the United States. “Accordingly, this Department requests that you support the attempt to preclude disclosure of the information described above, and that you bring to the attention of the Court the undesirability of premature public disclosure of these allegations. “This request is subject, of course, to the recognized right of interested parties to apply in the future for orders releasing such information as the interests of justice may require.” . This would seem to us to have been the appropriate course in Parker v. Columbia Broadcasting System, supra. The Parker case came before the court without formal briefs. The only question considered as to . appealability was whether the order under appeal was a temporary restraining order or a preliminary injunction — not whether it was the kind of command that constituted an “injunction” within § 1292 (a) (1). . For other types of suggestions of interest on behalf of the Department of State, see Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633 (1947); Ivancevic v. Artukovic, 211 F.2d 565, 566, fn. 4 (9 Cir.), cert, denied, 348 U.S. 818, 75 S.Ct. 28, 99 L.Ed. 698 (1954); Pierre v. Eastern Air Lines, Inc., 152 F.Supp. 486 (D. N. J.1957); Note, Federal Intervention in Private Actions Involving tbe Public Interest, 65 Harv.L.Rev. 319 (1951); Bilder, The Office of the Legal Adviser, 56 Am.J.Int’l Law 633, 676-78 (1962). . Although we sustain the power of the Attorney General to submit the State Department’s letter, the case raises a question, already mooted as to suggestions of sovereign immunity, see Cardozo, Sovereign Immunity: The Plaintiff Deserves a Day in Court, 67 Harv.L.Rev. 608, 617-18 (1954), whether the Department of State ought not adopt procedures — which could be quite informal — to assure a hearing of the other side before it moves into a case like this. Although a hearing is not required by statute, neither § 4 nor § 5 of the Administrative Procedure Act being applicable, the weight propeily given by the courts to representations from the Department of State would appear to make it desirable that, before deciding to interpose its views in a private litigation, the Department normally should hear why it ought not as well as why it ought. It seems not unlikely that if appellants had been given an opportunity to present their views, the Department might have concluded that, in the light of considerations which it has regarded as generally militating against its intervention in private litigation, well described in Bilder, supra, 56 Am.J.Int’l Law at 67S, the interests of the United States were not in such jeopardy as to warrant the action taken here, or, at least, that the Government should not indorse the full relief sought. However, the order to show cause should have alerted appellants to the likelihood of action by the Department of State, and there is nothing to indicate a request on their part for a conference with the Legal Adviser. See American Law Institute Restatement of Foreign Relations Law, Proposed Official Draft, Reporters’ Notes on § 74. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant? A. auto industry B. chemical industry C. drug industry D. food industry E. oil & gas industry F. clothing & textile industry G. electronic industry H. alcohol and tobacco industry I. other J. unclear Answer:
sc_lcdisposition	C	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. STANTON v. STANTON No. 76-512. Decided January 25, 1977 Per Curiam. This appeal brings before us for the second time the Utah Supreme Court’s construction of Utah Code Ann. § 15-2-1 (1973), which established 21 as the age of majority for males, and 18 as the age for females, as applied to a parent’s obligation to support his children. In our first opinion, we held that this distinction between males and females violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Stanton v. Stanton, 421 U. S. 7 (1975) (Stanton I). We, of course, did not decide how Utah was to eliminate the discrimination between the genders, and thereby to determine at what age the appellee’s duty to support his daughter terminated. Instead, we remanded the case to the Utah court for it to resolve this issue of state law. Id., at 17-18. Our mandate also directed that appellant should receive $437.38 for her costs on appeal to this Court. On the remand, the Utah Supreme Court did not consider the issue presented to it and held, instead, that the age-of-majority statute was constitutional as applied to females without considering the discrimination. That action does not comply with our mandate. Upon receiving the mandate in Stanton I, the Utah Supreme Court remanded the case, without directions, to the District Court of Salt Lake County. That court" correctly recognized, pursuant to the parties’ stipulation, that the only issue before it was whether, in the absence of a validly worded statutory provision governing child-support age of majority, both sexes should be deemed to attain majority either at age 18 or at age 21. It resolved the issue by holding that, “for purposes of child support, children attain their majority at age 21.” Accordingly, it awarded appellant a total of $3,646.18, consisting of $2,700 past due support money, $508.80 interest on the judgment, and the $437.38 costs award from this Court. On appeal, the Utah Supreme Court, by a 3-2 vote, reversed. 552 P. 2d 112 (1976). Instead of deciding the issue before it, the majority held that the portion of the statute setting the age for females could be viewed in isolation from the portion setting the age for males: “Obviously the two provisions of the statute are separable and the Supreme Court of the United States in remanding this matter directed that we decide which age was correct and then legislate a bit on our own and say that the age of majority so chosen for the one sex is also the age of majority for the other sex. “The oath we took when chosen as justices of the Supreme Court of Utah forbids us to encroach on the duties and functions of the legislature. However, we need not make any such determination. The age of the male child in this divorce case has never been called into question.” Id., at 113. The court reasoned that the only child before it was a female and, therefore, that the age of 18 provided in § 15-2-1 was constitutional and still applied. As further support for its result, the court declared that the mother had no interest in the equal protection issue and that the parties expected the age discrepancy to apply when the divorce decree was drafted. Finally, as if to erase any remaining doubt about the basis of its decision, the court declared: “Regardless of what a judge may think about equality, his thinking cannot change the facts of life. . . . “To judicially hold that males and females attain their maturity at the same age is to be blind to the biological facts of life.” Id., at 114. The court then undertook to reverse the entire judgment of the District Court, even including the $437.38 derived from this Court’s mandate. This decision, obviously, is inconsistent with our opinion in Stanton I. The thrust of Stanton I, and therefore the starting point for the Utah court' on remand, was that males and females cannot be treated differently for child-support purposes consistently with the Equal Protection Clause of the United States Constitution. Cf. Craig v. Boren, 429 U. S. 190 (1976). Apparently the Utah Supreme Court did not read our opinion as requiring that the child-support law must be nondiscriminatory to comply with the constitutional standard. That, of course, is a misunderstanding. Accordingly, the judgment of the Utah Supreme Court is vacated, and the case once again is remanded for further proceedings not inconsistent with this opinion. “15-2-1. Period of minority. — The period of minority extends in males to the age of twenty-one years and in females to that of eighteen years; but all minors obtain their majority by marriage.” After the decision in Stanton I, the Utah Legislature amended the statute to read: “15-2-1. Age of Majority. — The period of minority extends in males and females to the age of eighteen years; but all minors obtain their majority by marriage. It is further provided that courts in divorce actions may order support to age 21.” 1975 Utah Laws, c. 39. The parties agree that the amendment does not apply to the present controversy. Even the appellee recognizes the impropriety of the reversal of the costs factor, and acknowledges that the $437.38 amount is “due and owing and agrees to pay said amount.” Appellee’s Motion to Dismiss 13. As we did in Stanton I, we emphasize that Utah is free to adopt either 18 or 21 as the age of majority for both males and females for child-support purposes. The only constraint on its power to choose is the principle set out in Stanton I, and reiterated here, that the two sexes must be treated equally. There are at least two lines of authority that the Utah court legitimately might choose to follow. On the one hand, Utah Code Ann. § 68-3-1 (1968) provides that the common law of England is the rule of decision in the state courts, except where it conflicts with the Constitution or laws of the State or of the United States. Relying on that statute, the Utah court- might elect to adopt age 21 as the age of majority in the absence of a valid statute governing child-support cases. On the other hand, the court might take note of the Utah Legislature’s response to Stanton I in its enactment of the 1975 amendment of § 15-2-1 and read the amendment as an expression by the legislature that the public policy of Utah is to treat both males and females as adults at the younger age. By suggesting these two options, we do not mean to exhaust all other possibilities; we simply mention them to illustrate the fact that our opinión leaves open this state-law issue for the state courts to decide. Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:
songer_r_bus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. BENTON STATE BANK, Appellant, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Appellee. No. 71-1146. United States Court of Appeals, Eighth Circuit. Dec. 9, 1971. Fred E. Briner, Benton, Ark., Robert D. Cabe, Wright, Lindsey & Jennings, Edward L. Wright, Little Rock, Ark., for appellant. E. DeMatt Henderson, Catlett & Henderson, Little Rock, Ark., for appellee. Before VAN OOSTERHOUT, Senior Circuit Judge, MEHAFFY and ROSS, Circuit Judges. PER CURIAM. This diversity appeal involves a suit brought on a bankers’ blanket bond issued by the defendant, Hartford Accident and Indemnity Company, to plaintiff, Benton State Bank. The district court granted Hartford’s motion for partial summary judgment, ruling that the coverage under Hartford’s bond was limited to an aggregate sum of $25,000.-00. We affirm. Briefly the facts are that Benton State Bank was the victim of a fraudulent scheme whereby a real estate developer had obtained loans from the bank by the use of promissory notes and real estate mortgages bearing the names of fictitious persons or persons who had no connection with or knowledge of the transactions. The bank brought this action seeking recovery of $600,000.00, the face amount of the bond, and alleging losses in excess of that amount. Both parties moved for partial summary judgment. The district court found that the only coverage under the bond as applied to this case was Clause E which provided protection with respect to losses sustained by the bank on account of reliance on forged documents, which would include notes, mortgages, or deeds of trust. It found that a rider denominated Partial Fraudulent Signature Coverage Rider, Form F-2890, did not apply. It found that Clause E was modified by a rider Form F-2849, which in pertinent part is as follows: “In consideration of the premium charged for the attached bond as limited by this rider, it is agreed that: “2. The total liability of the Underwriter under Insuring Clause (E) of the attached bond, with respect to any loss or losses sustained at any time but discovered after the date and hour this rider becomes effective, is limited to the sum of TWENTY FIVE THOUSAND and NO/lOO - - - DOLLARS ($25,000.00). “3. The liability of the Underwriter as limited in each of the paragraphs numbered 1 and 2 of this rider shall be a part of and not in addition to the amount of the attached bond; subject, nevertheless, to the Non-Reduction of Liability Section of the attached bond.” The Non-Reduction of Liability Section referred to in the rider is Section 6 of the bond and is as follows: “Section 6. Payment of loss under this bond shall not reduce the liability of the Underwriter under this bond for other losses whenever sustained; PROVIDED, however, that the total liability of the Underwriter under this bond on account of (c) any loss or losses other than those specified in (a) and (b) preceding, caused by acts or omissions of any person (whether one of the Employees or not) or acts or omissions in which such person is concerned or implicated, . . is limited to the sum above stated in the opening paragraph of this bond irrespective of the total amount of such loss or losses.” The position of the defendant Hartford in this court and in the court below is that when rider Form F-2849 and Section 6 of the bond are construed together the limit of defendant’s liability under Clause E is $25,000.00 for loss occasioned by any one forgery and $25,000.00 for plural losses resulting from a number of separate forgeries perpetrated by the same person. Plaintiff bank contends here as it did below that with respect to plural losses occasioned by a series of forgeries committed by one person defendant’s limit of liability for each loss is limited to $25,000.00 but that it is also liable for the aggregate of losses up to the face amount of the bond or $600,000.00. At the outset we agree with the district court that the only coverage provided is under Clause E of the bond as modified by rider F-2849 and that the rider denominated Partial Fraudulent Signature Coverage Rider, Form F-2890, does not apply since it deals with induced signatures, a factor not involved in this case. The .appellant bank does not appear to contend otherwise in this court. We can find no controlling Arkansas law on the proper construction to be given the language of the bond. “This being so, it devolved upon the District Court in the case at bar, sitting in that State, to - determine what would probably be the decision of the highest court of the State in a similar factual situation. * * * In such a situation this Court will not substitute its judgment for that of the District Court, unless it is clearly demonstrated that it misapplied the local law of Arkansas.” State Farm Mut. Automobile Ins. Co. v. Jackson, 346 F.2d 484 (8th Cir. 1965). In reviewing cases of this nature this court has also stated: “ ‘Finally, and in any event, we revert to principles well established by decision of this court: that our task is not to formulate the legal mind of the State but merely to ascertain and apply it: that the standard for review here on a doubtful question of state law is only whether the trial court has reached a permissible conclusion: that the appellants’ burden of showing misconception or misapplication of local law by the trial court is a heavy one; and that where we feel that the trial court has reached a permissible conclusion we do not interfere with it. * * * ’ ” State Farm Mut. Automobile Ins. Co. v. Pennington, 324 F.2d 340, 342 (8th Cir. 1963). With these rules in mind, we turn to the district court’s holding. It held that the rider Form F-2849 provided a total bond limit on Clause D and E losses. It held that under the Non-Reduction of Liability clause, Section 6 of the bond, there was no reinstatement of this total limit. We find support for this position in Securities & Exchange Comm. v. Arkansas Loan & Thrift Corp., 297 F.Supp. 73 (W.D.Ark.1969), aff’d, 427 F.2d 1171 (8th Cir. 1970), and Roodhouse Nat’l Bank v. Fidelity & Deposit Co. of Maryland, 426 F.2d 1347 (7th Cir. 1970). The Arkansas Loan & Thrift case, although not dealing directly with the matter, held that similar bond language did not operate to reinstate the face amount of the bond. The court in Roodhouse agreed with the Arkansas Loan & Thrift case, and as we interpret Roodhouse held that a similar rider provided a total limit on a similar Clause E coverage of a similar bond. We cannot say that the district court’s holding was an impermissible one or that it clearly misapplied the local law of Arkansas. We recognize the rules of Arkansas law on ambiguous insurance contracts but we are not required to use a forced construction of the terms of the contract when no ambiguity exists. State Farm Mut. Automobile Ins. Co. v. Pennington, supra. Accordingly, the judgment of the district court is affirmed. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_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. SCHOOL COMMITTEE OF the TOWN OF MONSON, MASSACHUSETTS, Petitioner, v. Gregory R. ANRIG, as Commissioner of Education and Chief Executive Officer of the Department of Education, Commonwealth of Massachusetts, Respondent. No. 74-1365. United States Court of Appeals, First Circuit. Argued March 5, 1975. Decided June 30, 1975. William A. Waldron, Boston, Mass., with whom Paul E. Clifford, and Gaston Snow & Ely Bartlett, Boston, Mass., were on brief, for petitioner. Michael Eby, Deputy Asst. Atty. Gen., with whom Francis X. Bellotti, Atty. Gen., and James P. Kiernan, Asst. Atty. Gen., were on brief, for respondent. Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges. COFFIN, Chief Judge. Review is here sought of the Massachusetts Department of Education’s (hereinafter the “Department”) rejection of an application by the town of Monson on behalf of sixteen communities constituting the “Monson Cooperative” (hereinafter “Monson”) for a grant under Title III of the Elementary and Secondary Education Act of 1965, as amended, 20 U.S.C. §§ 841-848 (hereinafter the “Act”). Jurisdiction to review the Department’s action is lodged in this court by 20 U.S.C. § 844a(f). Monson contends that the procedures followed by the Department in reviewing its application did not comport with the requirements of the Act and relevant regulations. The Act structures with some specificity the procedural framework within which Title III funds are to be administered. The United States Commissioner of Education is required to allot available funds among the states according to a statutory formula. 20 U.S.C. § 842(a)(2). In order to receive the funds allotted, a state must submit to the Commissioner a state plan which complies with the Act and regulations promulgated under it. 20 U.S.C. § 844a; 45 C.F.R §§ 118.6-118.20. The allotted funds then become available for grants pursuant to the plan to local education agencies. 20 U.S.C. § 844(a). The form in which applications by local agencies must be made, and the purposes for which grants may be awarded are set forth in detail in the Act and regulations. 20 U.S.C. §§ 843, 844; 45 C.F.R. §§ 118.21-118.27. The Act reposes in the state education agency, here the Department, responsibility for the selection of proposals by local agencies for funding pursuant to the state plan. The Act specifies, however, that each state plan must provide for the establishment of an advisory council “broadly representative of the cultural and educational resources of the State . . . and of the public . ” which shall “review, and make recommendations to the State educational agency on the action to be taken with respect to, each application for a grant under the State plan. . . . ” 20 U.S.C. § 844a(a)(2). Regulations promulgated by the United States Commissioner of Education further provide for the appointment of a “ . . . panel of experts, consisting of persons who are not officers or employees of the State educational agency, or the State advisory council to review all local project applications prior to their approval or other disposition. The State educational agency shall determine the number of experts to be utilized and the qualifications to be required of such experts (including one or more experts in the education of handicapped children and one or more experts in guidance, counseling, and testing).....” 45 C.F.R. § 118.23(c). The “review and disposition” of local agency proposals is to follow procedures established by the state agency “in accordance with the requirements of Title III of the Act and these regulations. Such procedures shall provide for coordinating the roles of the State advisory council . . . and the panel of experts . . . with the role of the State educational agency.” 45 C.F.R. § 118.23(d). The Monson proposal was reviewed by five “readers”, one an outside expert, and the other four employees of the Department. These five readers individually rated the Monson proposal and then met, and, after discussion, agreed on a negative recommendation, transmitted by the chairman of the team of readers to the chairman of the advisory council and to the director of the Bureau of Curriculum Services in the Department. The minutes of the advisory council meeting of May 24, 1974, show that the chairman “distributed a memo listing those proposals which the teams approved for recommendation to the Commissioner.” One member moved that a subcommittee be formed to determine whether the approved proposals were in compliance with the portion of the Act requiring the involvement of private schools. The council then proceeded to approve the memorandum listing proposals to be recommended for funding. The Department concedes that there was no discussion of any rejected proposal, including the Monson proposal which was among those rejected, nor do the minutes reflect any discussion of the proposals approved. The Department suggests that the procedures followed in disposing of the Monson application represented tolerable interpretations of pertinent language in the Act and regulations. We should, the Department urges, defer to these interpretations as those of the “agency charged with [the Act’s] administration.” Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). In Tail-man the Court, after a careful review of the relevant legislative history, determined that the Interior Department’s interpretation of its power under a series of Executive and Public Land Orders to lease oil and gas rights in the Kenai National Moose Range was reasonable. W.é deal here not only with interpretations of procedural rather than substantive provisions, but with interpretations developed by only one of the many states receiving funds which each must administer consistently with the provisions interpreted. The legislative history of § 844a indicates that it represents a compromise between the House which preferred to lodge full responsibility for the use of the funds available with the states, and the Senate which sought to retain such authority in the United States Office of Education. S.Rep.No.726, 90th Cong., 1st Sess., 1967 U.S.Code Cong. & Admin. News at pp. 2748-2750. The states are granted authority to dispose of federal funds, but is an authority webbed about with both procedural and substantive limitations. It would be anomalous in light of this history for the courts, following a policy of deference, to permit the states to develop widely varying interpretations of the very strictures imposed to limit state discretion in the use of federal funds. Indeed, even in the absence of such manifestations of legislative intent, in reviewing administrative actions not subject to explicit procedural limitations the courts have interpolated procedural standards that seemed necessary to assure the fair execution of statutory functions. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Bell Telephone Co. of Pennsylvania v. F.C.C., 503 F.2d 1250 (3d Cir. 1974); Brennan v. Occupational Safety and Health Review Comm’n, 492 F.2d 1027 (2d Cir. 1974); Municipal Electric Utility Ass’n of Alabama v. F.P.C., 158 U.S.App.D.C. 188, 485 F.2d 967 (1973); see also Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584, 597 (1971). The Department states that the advisory council has delegated to its chairman authority to receive the collective recommendation of the readers, and has established procedures whereby it discusses, with rare exceptions, only those applications approved for funding. We find this procedure wholly inconsistent with the statutory requirement that the advisory council “[r]eview, and make recommendations . . . with respect to, each application for a grant. . . . ” 20 U.S.C. § 844a(a)(2)(C) [emphasis supplied]. The Act requires that advisory council membership reflect the entire spectrum of interests affected by Title III grants, and specifies that the council must review each application. The evident purpose of these provisions is to forestall any tendency of state education authorities to limit grants to those proposals harmonious with the insular views of a single segment of the community. The advisory council functions to introduce a heterogeneous array of perspectives into the grant award process. The history and plain meaning of the Act govern our interpretation. United States v. New England Coal and Coke Co., 318 F.2d 138, 142 (1st Cir. 1963). We discern a similar purpose in the regulation requiring review of each proposal by a “panel of experts” who are not employees of the state. Here the Department argues that “panel” of experts means a “roster” of experts from which it may select one to be a member of the team of five readers. The Department’s interpretation is untenable in the face of the language of the regulation. While the Department determines the number and qualifications of the experts, it must include “one or more experts in the education of handicapped children, and one or more experts in guidance, counseling, and testing . . . .” 45 C.F.R. § 118.23(c). Further, the regulation provides that the “panel” shall review “all local project applications”. Id. This language evinces the Commissioner’s determination that the diversity of lay interests represented by the advisory council should be supplemented by diverse professional assessments, providing state authorities, the advisory council, and reviewing courts alike with a broader basis on which to evaluate the recommendations of the Departmental readers. We conclude that Monson is correct in asserting that the Department departed from the required procedures in reviewing its application. We think that the Act must be taken at its word in requiring advisory council review of each application. We also think that meticulous compliance with the regulations requires a review of each application by a panel of at least three experts, independent of, and resulting in a separate recommendation from any Departmental review. Burdensome these procedures may be, but they are mandated by the language and history of the Act and attendant regulations. Vacated and remanded for further proceedings consistent with this opinion. . Section 844a(a)(2) provides in full: “(2) The State advisory council, established pursuant to paragraph (1) shall— (A) be appointed by the State educational agency, and be broadly representative of the cultural and educational resources of the State (as defined in section 844(a) of this title) and of the public, including persons representative of— (i) elementary and secondary schools, (ii) institutions of higher education, and (iii) areas of professional competence in dealing with children needing special education because of physical or mental handicaps; (B) advise the State educational agency on the preparation of, and policy matters arising in the administration of, the State plan, including the development of criteria for approval of applications under such State plan; (C) review, and make recommendations to the State educational agency on the action to be taken with respect to, each application for a grant under the State plan; (D) evaluate programs and projects assisted under this subchapter; and (E) prepare and submit through the State educational agency a report of its activities, recommendations, and evaluations, together with such additional comments as the State educational agency deems appropriate, to the Commissioner and to the National Advisory Council, established pursuant to this subchapter, at such times, in such form, and in such detail, as the Secretary may prescribe.” . The recommendation was communicated orally to the director of the Bureau of Curriculum Services. Monson contends that the oral report was inadequate under the provisions of the state plan. Since we find the Department’s procedures at odds with the Act and the regulations, see infra, we need not address this argument. Further we are reluctant to consider claims based on the state plan when the parties have supplied us with only small parts of that plan. . The Court emphasized that the Interior Department’s interpretation was consistent with the relevant statute, and had been long on the public record. 380 U.S. at 17-18, 85 S.Ct. 792. . The case would be different if the provisions at issue were intended primarily as internal organizational guidelines, not designed to protect or actually relied on by affected parties. See American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 538, 90 S.Ct. 1288, 25 L.Ed.2d 547 (1970); United States v. Pierce, 505 F.2d 1053 (1st Cir. 1974). 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_execord	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of executive order or administrative regulation by the court favor the appellant?" This does include whether or not an executive order was lawful. 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". Sam KADEMENOS v. EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, a corporation, Appellant. No. 74-1128 United States Court of Appeals, Third Circuit. Submitted on Briefs Under Third Circuit Rule 12(6) Sept. 9, 1974. Argued Jan. 8, 1975. Decided April 9, 1975. Thomas Lewis Jones, Richard C. Witt, Jones, Gregg, Creehan & Gerace, Pittsburgh, Pa., for appellant. Anthony V. DeCello, Joseph D. Talari-co, DeCello, Búa & Manifesto, Pittsburgh, Pa., for appellee. Submitted Under Rule 12(6) Sept. 9, 1974. Before KALODNER, ALDISERT and ROSENN, Circuit Judges. OPINION OF THE COURT ROSENN, Circuit Judge. The conduct of competitors in the insurance marketplace claims our attention on this appeal in which we are asked to determine whether the acts of the defendant come within the privilege to interfere with the contractual relations of a competitor. Plaintiff, an insurance agent, seeks to recover the commission he would have received on the issuance by Jefferson Standard Life Insurance Company (Jefferson Standard) of a one million dollar policy which, as a result of the alleged interference of the defendant Equitable Life Assurance Society (Equitable), was cancelled by the insured. This diversity case was tried to a jury which returned a verdict for plaintiff in the amount of $27,000 upon which judgment was entered in the United States District Court for the Western District of Pennsylvania. The district court denied Equitable’s motions for a directed verdict and for judgment notwithstanding the verdict. Equitable appealed; we reverse. Since plaintiff has the benefit of a jury verdict, in reviewing the district court’s denial of Equitable’s motion for judgment notwithstanding the verdict, we must consider the evidence in the light most favorable to plaintiff, drawing all reasonable inferences in favor of the plaintiff and against the defendant. Andrews v. Dravo Corp., 406 F.2d 785, 789 (3d Cir. 1969); Delaware & H. R. R. v. Bonzik, 105 F.2d 341, 344 (3d Cir. 1939); Baltimore & O. R. R. v. Muldoon, 102 F.2d 151, 152 (3d Cir. 1939). Until shortly before the alleged interference, plaintiff was an agent of Equitable under a written contract in which he “agree[d] not to submit to any other company proposals for any forms of policies or annuity contracts, of a class of business issued by [Equitable], unless authorized by [Equitable].” In return, Equitable provided plaintiff with office space, secretarial services, telephone, stationery, and technical advice and assistance. In May 1970 plaintiff solicited Nick Manganas for the purchase of an Equitable life insurance policy. Thereafter, Equitable paid for two physical examinations of Manganas, performed on May 29 and July 9, 1970. The expense of a third examination, conducted on August 3, 1970, was borne at least in part by Equitable. During May and June 1970, Jay Harrison, a specialist employed by Equitable, was called in to assist plaintiff by formulating a plan of insurance tailored to achieve specific objectives of Manga-nas. On July 17, 1970, Manganas signed a formal application for insurance with Equitable. Unknown to Equitable, plaintiff had on the day before met with Gerald H. Bertelotti, Jefferson Standard’s local manager, and secured from him a blank application for insurance with that company which plaintiff had Manganas complete on August 1, 1970. On August 20, 1970, plaintiff executed a broker’s contract with Jefferson Standard and ordered insurance contracts issued by both Jefferson Standard and Equitable. On August 28, 1970, Equitable made available to plaintiff a policy issued to Manganas subject to payment of the first premium. Plaintiff resigned as agent for Equitable on August 31, 1970, effective September 1, 1970. On September 1, 1970, plaintiff signed an agency contract with Jefferson Standard which provided him with significantly more emoluments than his contract with Equitable. Subsequently, on September 5, 1970, Jefferson Standard delivered its policy to Manganas, at which time Man-ganas tendered a check for one-half the first premium. When Harrison discovered that a Jefferson Standard policy had been delivered and learned for the first time that Jefferson Standard was competing with Equitable, he promptly called Manganas’ accountant for verification and was referred to Manganas himself. Harrison’s telephone conversation with Manganas constitutes the alleged interference on which this action is based. The jury permissibly could have found that Harrison, in explaining the differences between the Equitable and Jefferson Standard policies, told Manganas that the Jefferson Standard policy would “hurt [him] more than help [him].” The jury further could have found that Harrison volunteered the advice that Manga-nas could stop payment on his check to Jefferson Standard until the merits of the two policies could be reevaluated. Manganas thereupon consulted with his accountant and his attorney, and then stopped payment on the check. Several days later, after meeting with representatives of Equitable and Jefferson Standard, Manganas concluded that both insurance companies were lying to him and decided not to purchase insurance from either. Because a sale was not consummated, plaintiff did not receive a commission. Both parties assume, as did the district court, that Pennsylvania law governs this case. The Jefferson Standard policy, with which Equitable allegedly interfered, was delivered in Pennsylvania. Moreover, although Harrison apparently placed his call to Manganas from Virginia, Manganas received the call and cancelled the Jefferson Standard policy in Pennsylvania. We therefore believe that Pennsylvania has the greatest interest in the resolution of the issues presented in this case and that its law is applicable. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Neville Chem. Co. v. Union Carbide Corp., 422 F.2d 1205, 1211 (3d Cir. 1970); Griffith v. United Air Lines, Inc., 416 Pa. 1, 10—25, 203 A.2d 796, 800-07 (1964). Despite contrary inferences which might be drawn from the meager and vague allegations in the complaint, the theory of plaintiff’s action is essentially that Equitable interfered with plaintiff’s contractual relations with Jefferson Standard. The corollary alleged is that Equitable’s interference with the insurance contract between Jefferson Standard and Manganas ipso facto interfered with plaintiff’s contract with Jefferson Standard for a sales commission. The theory of the defense was twofold: first, that plaintiff’s negotiations for the sale of the Jefferson Standard policy to Man-ganas were in direct violation of his written agency contract with Equitable and in dereliction of his duties as an agent; second, that the telephone conversation of Equitable’s employee, Harrison, was privileged and did not constitute interference with Jefferson Standard’s insurance contract with Manganas. Pennsylvania closely follows the Restatement in defining the tort of interfering with contractual relations. Lanard & Axilbund, Inc. v. Binswanger, 212 Pa.Super. 350, 356, 242 A.2d 912, 914 (1968). The Restatement provides that one who, without a privilege to do so, induces or otherwise purposely causes a third person not to (a) perform a contract with another, or (b) enter into or continue a business relation with another is liable to the other for the harm caused thereby. Restatement of Torts § 766 (1939). In Birl v. Philadelphia Electric Co., the Pennsylvania Supreme Court expressly adopted the Restatement definition and enumerated its elements. 402 Pa. 297, 301, 167 A.2d 472, 474 (1960). [T]he actor must act (1) for the purpose of causing this specific type of harm to the plaintiff, (2) such act must be unprivileged, and (3) the harm must actually result. Id. The question on this appeal is whether the plaintiff adduced sufficient evidence to support the jury’s finding of an absence of privilege. The Pennsylvania Supreme Court recently dealt with the issue of privilege in Glenn v. Point Park College, 441 Pa. 474, 481-82, 272 A.2d 895, 899 (1971). In the course of its opinion, the court cited with approval section 768 of the Restatement which defines the privilege of a competitor. § 768. Privilege of Competitor. (1) One is privileged purposely to cause a third person not to enter into or continue a business relation with a competitor of the actor if (a) the relation concerns a matter involved in the competition between the actor and the competitor, and (b) the actor does not employ improper means, and (c) the actor does not intend thereby to create or continue an illegal restraint of competition, and (d) the actor’s purpose is at least in part to advance his interest in his competition with the other. (2) The fact that one is a competitor of another for the business of a third person does not create a privilege to cause the third person to commit a breach of contract with the other even under the conditions stated in Subsection (1). Restatement of Torts § 768 (1939). In determining the scope of a competitor’s privilege, the law seeks to foster competition while simultaneously protecting existing contract obligations. In this case, we also are confronted by another fundamental policy of the law which requires an agent subject to a duty to his principal “to act solely for the benefit of the principal in all matters connected with the agency.” Restatement (Second) of Agency § 387 (1957). He may, therefore, as comment (b) to section 387 observes, “take no unfair advantage of his position in the use of information or things acquired by him because of his position as agent or because of the opportunities which his position affords.” Pennsylvania has adopted this view. An agent owes a duty of loyalty to his principal, it is his duty in all dealings affecting the subject matter of his agency, to act with the utmost good faith and loyalty for the furtherance and advancement of the interests of his principal. Kribbs v. Jackson, 387 Pa. 611, 619, 129 A.2d 490, 494 (1957); accord, Sylvester v. Beck, 406 Pa. 607, 610, 178 A.2d 755, 757 (1962). Even without any specific agreement, but in recognition of an agent’s duty of loyalty to and fair dealing with his principal, an agent is, unless otherwise agreed, “subject to a duty not to compete with the principal concerning the subject matter of his agency.” Restatement (Second) of Agency § 393 (1957). In this instance, plaintiff specifically agreed, in the “prior right” provision of his written contract with Equitable, “not to submit to any other company proposals for any forms of policies or annuity contracts, of a class of business issued by [Equitable], unless authorized by [Equitable].” Nonetheless, plaintiff deliberately and methodically embarked upon a plan to bring a competing company into the sales arena. Plaintiff admitted under cross examination: Q: When this idea of the insurance for Mr. Manganas arose, the company you were dealing with and for was the Equitable only? A: Yes. Q: And you yourself brought the Jefferson Standard into the matter? A: Yes sir. Plaintiff personally generated the competition between the two companies to advance his personal interests, in violation of his written commitment to Equitable and of his duty to deal fairly and honorably with his principal. He permitted Equitable to pay for his office facilities and for medical examinations of the prospect when, in fact, he was engaged duplicitously in bringing Jefferson Standard into competition for the business. Under such circumstances, the wail of a double agent, who has subverted his duties and obligations to his principal, that counteractivity by his principal is unprivileged violates our instincts of fair dealing and justice. In the present case, Harrison merely took one last opportunity, upon discovery of plaintiff’s duplicity, to state his views to Manganas free from the impediment of the wayward agent. We hold, therefore, as we believe Pennsylvania would, that the privilege to compete and cause a third person not to continue the relationship with a competitor is not terminated when the contract with the competitor is the direct product of an agent’s breach of duty to his principal. The sanctity of the later contract may not be preserved at the expense of the breach of the first. Because careful study of the record has failed to reveal sufficient evidence to negate the existence of privilege and thus support the jury’s verdict, we need not reach appellant’s other arguments. The judgment of the district court will be reversed and the ease remanded with instructions to enter judgment in favor of the defendant. . Upon notice that this case was to be submitted under Rule 12(6) of this court, Equitable moved for leave.to file a reply brief, appending a copy thereof for the information of the court. We have considered the reply brief in our deliberations and, in an order accompanying this opinion, grant Equitable’s motion for leave to file. . Manganas was concerned with eliminating a cash surplus in his privately owned corporation. Harrison was joined by Robert A. Cleary, Director of Equitable’s advanced underwriting for the Eastern division, in formulating the plan and assisting plaintiff. . It is not altogether clear that plaintiff falls within the reach of the language of section 766 of the Restatement of Torts since the breach he alleges is not of his contract with Jefferson Standard but of the contract between Manga-nas and Jefferson Standard. Plaintiff may be a third-party beneficiary of the latter contract but it is not clear that section 766 protects third-party beneficiaries. Assuming arguendo that it does, plaintiff may not recover for reasons we state later in this opinion. . Plaintiff asserts on appeal that consideration of the privilege issue is foreclosed by Equitable’s failure to plead privilege as an affirmative defense in its answer. Contrary to this assertion, however, the burden of pleading and proving the absence of privilege lies with the plaintiff under Pennsylvania law. Barlow v. Brunswick Corp., 311 F.Supp. 209, 212-13 (E.D.Pa.1970); Glenn v. Point Park College, 441 Pa. 474, 482, 272 A.2d,895, 900 (1971). . Plaintiff does not assert on appeal that Equitable employed improper means but relies solely on his contention that Equitable’s actions were not privileged under section 768(2) of the Restatement. . Although not raised in the pleadings or pretrial stipulation, plaintiff attempted at trial to justify his actions on the basis that “brokering out” of insurance contracts to other companies is a custom among insurance agents. Even assuming such a custom prevails generally, however, the custom was abrogated with respect to plaintiff by the specific language of the “prior right” clause in his agency contract with Equitable. Moreover, because the “prior right” clause and the alleged custom simply are irreconcilable, we cannot interpret the “prior right” clause in the light of this custom without rendering the contractual provision a nullity. Recognizing this, the trial court properly sustained Equitable’s objection to testimony concerning the custom, although some reference to the custom did seep into the record. The contractual provision must govern. Plaintiff does not raise on appeal, nor did he raise at trial, the question whether Equitable waived compliance with the “prior right” clause. Equitable’s agency manager in Pittsburgh, Frank Hill, apparently learned of plaintiff’s breach of duty between August 20 and 25, 1970. We note that Hill gained this knowledge indirectly long after plaintiff entered preliminary negotiations with Jefferson Standard (July 16) and secured from Manganas an application for insurance with Jefferson Standard (August 1). Moreover, nothing in the record supports the theory that Hill waived or had authority to waive Equitable’s right to plaintiff’s exclusive services. Question: Did the interpretation of executive order or administrative regulation by the court favor the appellant? This does include whether or not an executive order was lawful. 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. Lucy J. BUCKLEY, Plaintiff, Appellant, v. AMERICAN HONDA MOTOR COMPANY, INC., Defendant, Appellee. No. 85-1346. United States Court of Appeals, First Circuit. Argued Sept. 6, 1985. Decided Dec. 19, 1985. Robert V. Lizza with whom Stephen A. Hopkins and Sherburne, Powers & Need-ham, . Boston, Mass., were on brief for plaintiff, appellant. Peter M. Durney with whom Cornell & Gollub, Boston, Mass., was on brief for defendant, appellee. Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge and CEREZO, District Judge. Of the District of Puerto Rico, sitting by designation. CEREZO, District Judge. Plaintiff appeals from the judgment dismissing her products liability suit as time barred. Applying Massachusetts’ three-year statute of limitations period for this type of case, Mass. G.L. c. 260, sec. 2A and c. 106, sec. 2-318, and that state's particular criteria of accrual for inherently unknowable wrongs, see Fidler v. Eastman Kodak Co., 714 F.2d 192, 196-99 (1st Cir.1983), the district court concluded that once plaintiff had knowledge of her injuries and the fact that contact with the steering wheel and engine was involved in causing her injuries, she was on notice that the design of her 1979 Honda may have been a cause of her injury and had the responsibility to investigate and determine whether she had a claim against defendant. We review the factual setting in light of the requirements of Fed.R.Civ.P. 56 and its case law. On March 2, 1980, plaintiff’s 1979 Honda Civic collided at an approximate speed of fifteen miles per hour with a Buick sedan. The front end of her car bore the brunt of the impact. Despite the low speed, she was seriously injured when the front end of her car was pushed back causing the steering column to strike her chest and the engine to enter the driver’s compartment. In April 1981, plaintiff filed an action in state court against the driver of the Buick. That case was settled for the full value of the insurance policy. Three years later, on March 2, 1984, she sued American Honda Motor Co., Inc., the distributor of her 1979 Honda Civic, for breach of warranty, negligent design, failure to warn of design deficiencies and strict liability. The alleged defect was the inability of the vehicle to withstand normal crash impact in a safe manner by reducing the backward movement of the steering column and the engine. A timetable for discovery and motions was established to explore the issue of whether the products liability claims were time barred. Defendant requested summary judgment contending that the date of the accident set the time for accrual. Plaintiff argued that until June of 1983, when she read a magazine article which described the results of crash testing the 1980 Honda Civic, she had no warning or other information which could have given her notice that her injuries were far more serious because of design deficiencies in her 1979 Honda Civic. After further investigation, her attorney found a November 1981 report prepared by the MGA Research Corp. for the National Highway Traffic Safety Administration (NHTSA) which stated that significant reduction of potential injury by front end impact to front seat passengers had been achieved by changing the steering column and seat belts in the Honda Civic 1981 model as compared to the 1980 model, which was similar to the 1979 model. Plaintiff argues on appeal that there were issues of fact which barred summary disposition of this case and that the application of Massachusetts law was erroneous. In an attempt to preclude defendant from using the doctrine that sets accrual at the time the claimant has reasonable notice of the injury, plaintiff asks that we infer that Honda deliberately withheld information concerning the crash characteristics of the 1979 and 1980 models of the Honda Civic which it must have known prior to the time she bought her car in February of 1980. The basis for this inference is the assumption that prior testing had to be done before the NHTSA report was issued. Appellant suggests that had she been given more time for discovery she might have come up with something to buttress her estoppel argument. Her position on the application of Massachusetts accrual criteria is that, even assuming that the date on which she read the magazine article were irrelevant for accrual purposes, there is still no way she could have reasonably discovered the causal relationship between her injuries and the design deficiencies of her car prior to publication of the November 1981 report. She claims that a products liability claim against the Honda manufacturer or distributor, without the benefit of this particular report, would have been speculative and would possibly have violated federal pleading requirements. Although appellant contends, in general terms, that there are issues of fact that precluded summary dismissal, she has pointed to none which meet the rule’s genuineness and materiality requirements. See Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). The suggestion that a genuine controversy exists as to whether defendant is estopped from resorting to the limitations defense because of the possibility of deliberately withholding information is based on groundless assumptions. The “favorable inferences” generally afforded parties opposing summary judgment must be reasonable and based on factual elements, not on conjecture, id., see White v. Hearst Corp., 669 F.2d 14, 19 (1st Cir.1982). The bare hope that additional discovery will provide the factual support that past discovery has failed to muster is insufficient to thrust aside a well-grounded motion for summary judgment. See Over the Road Drivers, Inc. v. Transport Insurance Co., 637 F.2d 816, 820 (1st Cir.1980). The district court did not commit reversible error in its application of Rule 56 criteria. Appellant admits that neither she nor her attorney ever undertook any investigation prior to the summer of 1983 regarding the automobile’s design and its possible link to her injuries. At the time of the accident she was aware that her chest injuries were caused by the backward movement of the steering wheel and column and that she hurt her right knee when the engine entered the passenger compartment. The circumstances surrounding the crash, i.e., the low speed, the extent of her car’s damage despite the relatively light impact, the fact that contact with the steering wheel and the engine caused her injuries, were all known to her at the time of the accident. Even assuming the correctnéss of plaintiff’s conclusory, albeit unrebutted, statement that there were no published reports similar to the NHTSA report prior to November 1981, the circumstances surrounding the collision and the state of the law at the time were sufficient indicia to place her on notice that design deficiencies were a contributing cause of her injuries and to trigger an inquiry into defendant’s potential liability. See Fidler, 714 F.2d at 196-99. As plaintiff herself points out, at the time of the accident the general doctrine that automobile manufacturers could be found liable if their cars were not crash-worthy had long been established by federal case law, see, e.g., Larsen v. General Motors, 391 F.2d 495 (8th Cir.1968) (excessive backward thrust of the steering column in General Motors’ Corvair model upon front end impact), and by the Supreme Judicial Court of Massachusetts, see Back v. Wickes Corp., 375 Mass. 633, 378 N.E.2d 964 (1978). It cannot seriously be argued that the 1981 NHTSA report was a scientific “breakthrough,” given the existence of the earlier doctrine that automobiles in general, regardless of the make, could be defective if not built to respond to a crash situation in a reasonably safe manner. This theory of causation was well known at the time of the accident in the legal and scientific communities. The fact that there was no specific report on plaintiff’s particular car model is not indicative of such a lack of adequate scientific knowledge which would make plaintiff’s theory of causation “not sufficiently understood to support a legal claim.” Fidler, 714 F.2d at 200. She could have conducted a routine investigation by inquiring of knowledgeable individuals who did not necessarily have to be NHTSA car design engineers. There is nothing in the record from which to' show that a reasonable and effective preliminary investigation would have been prohibitively costly, or that such an investigation would have been futile. The defect which made the model “unerashworthy” in the present case, the alleged lack of collapsibility of the 1980 model’s steering column, could also have been ascertained through regular discovery after filing the case. It would be unreasonable to require litigants to file complaints only after the completion of all testing has established the definite and exact cause of their injuries. Given the existence of the doctrine of crashworthiness at the time of the accident and the circumstances surrounding this collision, we find that appellant had enough data to reasonably conclude that the defective design of defendant’s product was a likely contributing cause to the seriousness of her serious injuries. From that moment on she had the duty to make inquiry as to whether or not she had a valid legal claim to bring before the courts. The judgment of the district court is Affirmed. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
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. BARRETT v. UNITED STATES No. 74-5566. Argued November 4, 1975 Decided January 13, 1976 Blackmun, J., delivered the opinion of the Court, in which BüRger, C. J., and Brennan, White, Marshall, and Powell, JJ., joined. White, J., filed a concurring opinion, post, p. 225. Stewart, J., filed a dissenting opinion, in which Rehnquist, J., joined, post, p. 228. Stevens, J., took no part in the consideration or decision of the case. Thomas A. Schaffer, by appointment of the Court, 421 U. S. 908, argued the cause and filed a brief for petitioner. Robert B. Reich argued the cause for the United States pro hac vice. With him on the brief were Solicitor General Bork, Acting Assistant Attorney General Keeney, and Sidney M. Glazer. Mr. Justice Blackmun delivered the opinion of the Court. Petitioner Pearl Barrett has been convicted by a jury in the United States District Court for the Eastern District of Kentucky of a violation of 18 U. S. C. § 922 (h), a part of the Gun Control Act of 1968, Pub. L. 90-618, 82 Stat. 1213, amending the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 90-351, 82 Stat. 197, enacted earlier the same year. The issue before us is whether § 922 (h) has application to a purchaser’s intrastate acquisition of a firearm that previously, but independently of the purchaser’s receipt, had been transported in interstate commerce from the manufacturer to a distributor and then from the distributor to the dealer. I In January 1967, petitioner was convicted in a Kentucky state court of housebreaking. He received a two-year sentence. On April 1, 1972, he purchased a .32-caliber Smith & Wesson revolver over the counter from a Western Auto Store in Booneville, Ky., where petitioner resided. The vendor, who was a local dentist as well as the owner of the store, and who was acquainted with petitioner, was a federally licensed firearms dealer. The weapon petitioner purchased had been manufactured in Massachusetts, shipped by the manufacturer to a distributor in North Carolina, and then received by the Kentucky dealer from the distributor in March 1972, a little less than a month prior to petitioner’s purchase. The sale to Barrett was the firearm’s first retail transaction. It was the only handgun then in the dealer’s stock. Tr. 36-47. Within an hour after the purchase petitioner was arrested by a county sheriff for driving while intoxicated. The firearm, fully loaded, was on the floorboard of the car on the driver’s side. Petitioner was charged with a violation of § 922 (h). He pleaded not guilty. At the trial no evidence was presented to show that Barrett personally had participated in any way in the previous interstate movement of the firearm. The evidence was merely to the effect that he had purchased the revolver out of the local dealer’s stock, and that the gun, having been manufactured and then warehoused in other States, had reached the dealer through interstate channels. At the close of the prosecution’s case, Barrett moved for a directed verdict of acquittal on the ground that § 922 (h) was not applicable to his receipt of the firearm. The motion was denied. The court instructed the jury that the statute’s interstate requirement was satisfied if the firearm at some time in its past had traveled in interstate commerce. A verdict of guilty was returned. Petitioner received a sentence of three years, subject to the immediate parole eligibility provisions of 18 U. S. C. §4208 (a)(2). On appeal, the Court of Appeals affirmed by a divided vote on the question before us. 504 F. 2d 629 (CA6 1974). Because of the importance of the issue and because the Sixth Circuit’s decision appeared to have overtones of conflict with the opinion and decision of the United States Court of Appeals for the Eighth Circuit in United States v. Ruffin, 490 F. 2d 557 (1974), we granted certiorari limited to the § 922 (h) issue. 420 U. S. 923 (1975). II Petitioner concedes that Congress, under the Commerce Clause of the Constitution, has the power to regulate interstate trafficking in firearms. Brief for Petitioner 7. He states, however, that the issue before us concerns the scope of Congress’ exercise of that power in this statute. He argues that, in its enactment of § 922 (h), Congress was interested in “the business of gun traffic,” Brief for Petitioner 11; that the Act was meant “to deal with businesses, not individuals per se” (emphasis in original), id., at 14, that is, with mail-order houses, out-of-state sources, and the like; and that the Act was not intended to, and does not, reach an isolated intrastate receipt, such as Barrett’s transaction, where the handgun was sold within Kentucky by a local merchant to a local resident with whom the merchant was acquainted, and where the transaction “has no apparent connection with interstate commerce,” despite the weapon’s manufacture and original distribution in States other than Kentucky. Id., at 6. We feel, however, that the language of § 922 (h), the structure of the Act of which § 922 (h) is a part, and the manifest purpose of Congress are all adverse to petitioner’s position. A. Section 922 (h) pointedly and simply provides that it is unlawful for four categories of persons, including a convicted felon, “to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” The quoted language is without ambiguity. It is directed unrestrictedly at the felon’s receipt of any firearm that “has been” shipped in interstate commerce. It contains no limitation to a receipt which itself is part of the interstate movement. We therefore have no reason to differ with the Court of Appeals’ majority’s conclusion that the language “means exactly what it says.” 504 F. 2d, at 632. It is to be noted, furthermore, that while the proscribed act, “to receive any firearm,” is in the present tense, the interstate commerce reference is in the present perfect tense, denoting an act that has- been completed. Thus, there is no warping or stretching of language when the statute is applied to a firearm that already has completed its interstate journey and has come to rest in the dealer’s showcase at the time of its purchase and receipt by the felon. Congress knew the significance and meaning of the language it employed. It used the present perfect tense elsewhere in the same section, namely, in § 922 (h)(1) (a person who “has been convicted”), and in § 922 (h) (4) (a person who “has been adjudicated” or who “has been committed”), in contrast to its use of the present tense (“who is”) in §§922 (h)(1), (2), and (3). The statute’s pattern is consistent and no unintended misuse of language or of tense is apparent. Had Congress intended to confine § 922 (h) to direct interstate receipt, it would have so provided, just as it did in other sections of the Gun Control Act. See § 922 (a) (3) (declaring it unlawful for a nonlicensee to receive in the State where he resides a firearm purchased or obtained “by such person outside that State”); § 922 (j) (prohibiting the receipt of a stolen firearm “moving as . . . interstate . . . commerce”); and § 922 (k) (prohibiting the receipt “in interstate . . . commerce” of a firearm the serial number of which has been removed). Statutes other than the Gun Control Act similarly utilize restrictive language when only direct interstate commerce is to be reached. See, e. g., 18 U. S. C. §§ 659, 1084, 1201, 1231, 1951, 1952, 2313, 2315, and 2421, and 15 U. S. C. § 77e. As we have said, there is no ambiguity in the words of § 922 (h), and there is no justification for indulging in uneasy statutory construction. United States v. Wiltberger, 5 Wheat. 76, 95-96 (1820); Yates v. United States, 354 U. S. 298, 305 (1957); Huddleston v. United States, 415 U. S. 814, 831 (1974). See United States v. Sullivan, 332 U. S. 689, 696 (1948). There is no occasion here to resort to a rule of lenity, see Rewis v. United States, 401 U. S. 808, 812 (1971); United States v. Bass, 404 U. S. 336, 347 (1971), for there is no ambiguity that calls for a resolution in favor of lenity. A criminal statute, to be sure, is to be strictly construed, but it is “not to be construed so strictly as to defeat the obvious intention of the legislature.” Ameri-can Fur Co. v. United States, 2 Pet. 358, 367 (1829); Huddleston v. United States, 415 U. S., at 831. B. The very structure of the Gun Control Act demonstrates that Congress did not intend merely to restrict interstate sales but sought broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous. These persons are comprehensively barred by the Act from acquiring firearms by any means. Thus, § 922 (d) prohibits a licensee from knowingly selling or otherwise disposing of any firearm (whether in an interstate or intrastate transaction, see Huddleston v. United States, 415 U. S., at 833) to the same categories of potentially irresponsible persons. If § 922 (h) were to be construed as petitioner suggests, it would not complement § 922 (d), and a gap in the statute’s coverage would be created, for then, although the licensee is prohibited from selling either interstate or intrastate to the designated person, the vendee is not prohibited from receiving unless the transaction is itself interstate. Similarly, § 922 (g) prohibits the same categories of potentially irresponsible persons from shipping or transporting any firearm in interstate commerce or, see 18 U. S. C. § 2 (b), causing it to be shipped interstate. Petitioner’s proposed narrow construction of § 922 (h) would reduce that section to a near redundancy with § 922 (g), since almost every interstate shipment is likely to have been solicited or otherwise caused by the direct recipient. That proposed narrow construction would also create another anomaly: if a prohibited person seeks to buy from his local dealer a firearm that is not currently in the dealer’s stock, and the dealer then orders it interstate, that person violates § 922 (h), but under the suggested construction, he would not violate § 922 (h) if the firearm were already on the dealer’s shelf. We note, too, that other sections of the Act clearly apply to and regulate intrastate sales of a gun that has moved in intrastate commerce. For example, the licensing provisions, §§ 922 (a)(1) and 923 (a), apply to exclusively intrastate, as well as interstate, activity. Under § 922 (d), as noted above, a licensee may not knowingly sell a firearm to any prohibited person, even if the sale is intrastate. Huddleston v. United States, 415 U. S., at 833. Sections 922 (c) and (a)(6), relating, respectively, to a physical presence at the place of purchase and to the giving of false information, apply to intrastate as well as to interstate transactions. So, too, do §§ 922 (b) (2) and (5). Construing § 922 (h) as applicable to an intrastate retail sale that has been preceded by movement of the firearm in interstate commerce is thus consistent with the entire pattern of the Act. To confine § 922 (h) to direct interstate receipts would result in having the Gun Control Act cover every aspect of intrastate transactions in firearms except receipt. This, however, and obviously, is the most crucial of all. Congress surely did not intend to except from the direct prohibitions of the statute the very act it went to such pains to prevent indirectly, through complex provisions, in the other sections of the Act. C. The legislative history is fully supportive of our construction of § 922 (h). The Gun Control Act of 1968 was an amended and, for present purposes, a substantially identical version of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968. Each of the statutes enlarged and extended the Federal Firearms Act, 52 Stat. 1250 (1938). Section 922 (h), although identical in its operative phrase with § 2 (f) of the Federal Firearms Act, expanded the categories of persons prohibited from receiving firearms. The new Act also added many prophylactic provisions, hereinabove referred to, governing intrastate as well as interstate transactions. See Zimring, Firearms and Federal Law: The Gun Control Act of 1968, 4 J. Legal Studies 133 (1975). But the 1938 Act, it was said, was designed “to prevent the crook and gangster, racketeer and fugitive from justice from being able to purchase or in any way come in contact with firearms of any kind.” S. Rep. No. 1189, 75th Cong., 1st Sess., 33 (1937). Nothing we have found in the committee reports or hearings on the 1938 legislation indicates any intention on the part of Congress to confine § 2 (f) to direct interstate receipt of firearms. The history of the 1968 Act reflects a similar concern with keeping firearms out of the hands of categories of potentially irresponsible persons, including convicted felons. Its broadly stated principal purpose was “to make it possible to keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.” S. Rep. No. 1501, 90th Cong., 2d Sess., 22 (1968). See also 114 Cong. Rec. 13219 (1968) (remarks by Sen. Tydings); Huddleston v. United States, 415 U. S., at 824-825. Congressman Celler, the House Manager, expressed the same concern: “This bill seeks to maximize the possibility of keeping firearms out of the hands of such persons.” 114 Cong. Rec. 21784 (1968); Huddleston v. United States, 415 U. S., at 828. In the light of this principal purpose, Congress could not have intended that the broad and unambiguous language of § 922 (h) was to be confined, as petitioner suggests, to direct interstate receipts. That suggestion would remove from the statute the most usual transaction, namely, the felon’s purchase or receipt from his local dealer. Ill Two statements of this Court in past cases, naturally relied upon by petitioner, deserve mention. The first is an observation made over 30 years ago in reference to the 1938 Act’s § 2 (f), the predecessor of § 922 (h): “Both courts below held that the offense created by the Act is confined to the receipt of firearms or ammunition as a part of interstate transportation and does not extend to the receipt, in an intrastate transaction, of such articles which, at some prior time, have been transported interstate. The Government agrees that this construction is correct.” Tot v. United States, 319 U. S. 463, 466 (1943). In that case, the Court held that the presumption contained in § 2 (f), to the effect that “the possession of a firearm or ammunition by any such person [one convicted of a crime of violence or a fugitive from justice] shall be presumptive evidence that such firearm or ammunition was shipped or transported or received, as the case may be, by such person in violation of this Act,” was violative of due process. The quoted observation, of course, is merely a recital as to what the District Court and the Court of Appeals in that case had held and a further statement that the Government had agreed that the construction by the lower courts was correct. Having made this observation, the Court then understandably moved on to the only issue in Tot, namely, the validity of the statutory presumption. The fact that the Government long ago took a narrow position on the reach of the 1938 Act may not serve to help its posture here, when it seemingly argues to the contrary, but it does not prevent the Government from arguing that the current gun control statute is broadly based and reaches a purchase such as that made by Barrett. The second statement is more recent and appears in United States v. Bass, supra. The Bass comment, of course, is dictum, for Bass had to do with a prosecution under 18 U. S. C. App. § 1202 (a), a provision which was part of Title VII, not of Title IV, of the Omnibus Crime Control and Safe Streets Act of 1968, as amended. Section 1202 (a) concerned any member of stated categories of persons “who receives, possesses, or transports in commerce or affecting commerce . . . any firearm.” The Government contended that the statute did not require proof of a connection with interstate commerce. The Court held, however, that the statute was ambiguous and that, therefore, it must be read to require such a nexus. In so holding, the Court noted the connection between Title VII and Title IV, and observed that although subsections of the two Titles addressed their prohibitions to some of the same people, each also reached groups not reached by the other. Then followed the dictum in question. The Court went on to state: “While the reach of Title IV itself is a question to be decided finally some other day, the Government has presented here no learning or other evidence indicating that the 1968 Act changed the prior approach to the 'receipt’ offense.” 404 U. S., at 343 n. 10. The Bass dictum was just another observation made in passing as the Court proceeded to consider § 1202 (a). The observation went so far as to intimate that Title IV was to be limited even with respect to a transaction possessing an interstate commerce nexus, a situation that Barrett here concedes is covered by §922 (h). In any event, the Court, by its statement in n. 10 of the Bass opinion, reserved the question of the reach of Title IV for “some other day.” That day is now at hand, with Barrett’s case before us. And it is at hand with the benefit of full briefing and an awareness of the plain language of § 922 (h), of the statute’s position in the structure of the entire Act, and of the legislative aims and purpose. Furthermore, we are not willing to decide the present case on the assumption that Congress, in passing the Gun Control Act 25 years after Tot was decided, had the Court’s casual recital in Tot in mind when it used language identical to that in the 1938 Act. There is one mention of Tot in the debates, 114 Cong. Rec. 21807 (1968), and one mention in the reports, S. Rep. No. 1097, 90th Cong., 2d Sess., 272 (1968) (additional views of Sens. Dirksen, Hruska, Thurmond, and Burdick). These reflect a concern with the fact that Tot eliminated the presumption of interstate movement, thus increasing the burden of proof on the Government. They do not focus on what showing was necessary to carry that burden of proof. Similarly, the few references to Tot in the hearings reflect objections to the elimination of the presumption, but mention only in passing the type of proof that the witness believed was necessary to satisfy § 2 (f). See, e. g., Hearings on S. 1, Amendment 90 to S. 1, S. 1853, and S. 1854 before Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., 46 (1967); Hearings on H. R. 5037, H. R. 5038, H. R. 5384, H. R. 5385, and H. R. 5386 before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 561-562, 564, 677-678. Nothing in this legislative history persuades us that Congress intended to adopt Tot’s limited interpretation. If we were to conclude otherwise, we would fly in the face of, and ignore, obvious congressional intent at the price of a passing recital. See Girouard v. United States, 328 U. S. 61, 69-70 (1946). To hold, as the Court did in Bass, 404 U. S., at 350, that Title VII, directed to a receipt of any firearm “in commerce or affecting commerce,” requires only a showing that the firearm received previously traveled in interstate commerce, but that Title IY, relating to a receipt of any firearm “which has been shipped or transported in interstate . . . commerce,” is limited to the receipt of the firearm as part of an interstate movement, would be inconsistent construction of sections of the same Act and, indeed, would be downgrading the stronger language and upgrading the weaker. We conclude that § 922 (h) covers the intrastate receipt, such as petitioner’s purchase here, of a firearm that previously had moved in interstate commerce. The judgment of the Court of Appeals, accordingly, is affirmed. 7 It %s so ordered. Mr. Justice Stevens took no part in the consideration or decision of this case. “§ 922. Unlawful acts. “(h) It shall be unlawful for any person— “(1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; “(2) who is a fugitive from justice; “(3) who is an unlawful user of or addicted to marihuana or any depressant or stimulant drug (as defined in section 201 (v) of the Federal Food, Drug, and Cosmetic Act) or narcotic drug (as defined in section 4731 (a) of the Internal Revenue Code of 1954) ; or “(4) who has been adjudicated as a mental defective or who has been committed to any mental institution; "to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Petitioner at the time of the purchase was not asked to complete Treasury Form 4473, designed for use in the enforcement of the gun control provisions of the statute. Tr. 45-47. Accordingly, there is no issue here as to the making of any false statement, in violation of § 922 (a) (6). See Huddleston v. United States, 415 U. S. 814 (1974). The defense also moved to quash the indictment on the ground that on June 20, 1969, the Governor of Kentucky, by executive order in the nature of a pardon, had granted petitioner “all the rights of citizenship denied him in consequence of said judgment of conviction.” It was suggested that this served to wipe out petitioner’s state felony conviction of January 1967. The motion to quash was denied. The same argument was made in the Court of Appeals, but that court unanimously rejected it for reasons stated in the court’s respective majority and dissenting opinions. 504 F. 2d 629, 632-634 (CA6 1974). The issue is not presented here. “Now, interstate commerce, ladies and gentlemen, is the movement of something of value from one political subdivision, which we call a state, to another political subdivision, which we call a state. Interstate commerce occurs when something of value crosses a state boundary line. Now, if you believe that from this evidence . . . the firearm in question was manufactured in a state other than Kentucky, then you are entitled to make the permissible inference that in order for that firearm to be physically located in Kentucky, ... it had to be engaged in interstate transportation at some point or another, but this is a permissible inference. You are not required to make that inference unless you believe from the evidence that that is a logical, reasonable determination to make from the facts.” Tr. 99-100. Section 2 (f) provided: “It shall be unlawful for any person who has been convicted of a crime of violence or is a fugutive [sic] from justice to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce . . . 52 Stat. 1251. There is, of course, no rule of law to the effect that the Government must be consistent in its stance in litigation over the years. It has changed positions before. See, e. g., Automobile Club of Michigan v. Commissioner, 353 U. S. 180, 183 (1957). “Even under respondent’s view, a Title VII offense is made out if the firearm was possessed or received ‘in commerce or affecting commerce’; however, Title IV apparently does not reach possessions or intrastate transactions at all, even those with an interstate commerce nexus, but is limited to the sending or receiving of firearms as part of an interstate transportation.” 404 U. S., at 342-343. “The verdict of quiescent years cannot be invoked to baptize a statutory gloss that is otherwise impermissible. This Court has many times reconsidered statutory constructions that have been passively abided by Congress. Congressional inaction frequently betokens unawareness, preoccupation, or paralysis.” Zuber v. Allen, 396 U. S. 168, 185-186, n. 21 (1969). 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_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. AMERICAN PRESIDENT LINES, LTD., et al., Petitioners, v. FEDERAL MARITIME BOARD (now Federal Maritime Commission) and United States of America, Respondents. No. 16198. United States Court of Appeals District of Columbia Circuit. Argued Nov. 8, 1961. Decided May 24, 1962. Mr. Seymour H. Kligler, New York City, with whom Mr. Elkan Turk, New York City, was on the brief, for petitioners. Mr. Edward Aptaker, Asst. Gen. Counsel, Federal Maritime Commission, at the time of argument, with whom Mr. Robert E. Mitchell, Deputy Gen. Counsel, Federal Maritime Commission, and Mr. Irwin Seibel, Atty., Dept. of Justice, were on the brief, for respondents. Mr. Richard A. Solomon, Atty., Dept. of Justice, entered an appearance for respondent United States of America. Before Wilbur K. Miller, Chief Judge, Edgerton, Circuit Judge, and Prettyman, Senior Circuit Judge. PRETTYMAN, Senior Circuit Judge. This is a petition to review an order of the Federal Maritime Board, for which the successor Federal Maritime Commission is now responsible. Petitioners are common carriers by water in the foreign commerce of the United States. The subject of the controversy is demurrage charged for cargo on docks in New York. Ships bringing transoceanic freight into port are required by their transportation obligation, absent a special contract, to unload the cargo onto a dock, segregate it by bill of lading and count, put it at a place of rest on the pier so that it is accessible to the consignee, and afford the consignee a reasonable opportunity to come and get it. This was settled by the courts many years ago. Circuit Judge Goodrich stated, in North American Smelting Co. v. Moller S. S. Co., that “There is no doubt that in discharging the cargo onto the pier and notifying the consignee the carrier was no longer in possession of the goods so as to suffer the risk of loss not due to any negligence on its part.” The work of unloading and putting the cargo on the dock is done on behalf of the carrier by longshoremen, who are laborers skilled in this sort of thing, or by stevedoring companies under contract with the carriers, these stevedores employing longshoremen. There is not now, and does not appear ever to have been, absent a special contract, any obligation on the part of the carriers to put such cargo actually into the hands of consignees, as by putting it into trucks and hauling it to the consignees’ places of business. Consignees are obligated, after notice and reasonable opportunity, to come and pick up their goods at the pier. A public interest is involved in the problem created when consignees leave cargo on piers for indefinite periods. A port could be blocked by such practice, to the great, detriment of the whole community. This problem became acute in-the port of New York. The Maritime-Commission, by an order of May 29,1947, instituted an investigation and rule-making procedure. After long consideration, involving hearings before an Examiner, exceptions, and argument before-the Commission, the Commission on October 19, 1948, issued its General Order-69, dealing with the amount of time a consignee must be given to remove his-goods from a pier (called “free time”), and the charges to be made upon him if he leaves his goods there too long (called' demurrage charges), on import property at the port of New York. The supporting “Report of the Commission” was long- and carefully done. The practices of the industry are clearly described. The Commission pointed out mishaps which may-prevent a carrier from performing its-duty of tender for delivery, and it diagnosed the responsibility. It pointed out that a period of “free time” is part of the transportation service of the carrier. It concluded that under conditions prevailing in New York “five days is the shortest time that affords to consignees, a reasonable opportunity to take delivery of imports.” It held a tariff which failed “to assure to consignees a minimum of five days of free time” would be unjust and unreasonable. The Commission then discussed the-matter of demurrage charges, which are, on a progressively increasing scale, authorized after “free time” has expired on a shipment. The Commission said “it is undisputed that the demurrage rate structure is penal in purpose, intended to clear the piers.” Then the Commission discussed the problems posed by inability of either party to perform its obligation. It depicted the difference between events which affect the carrier, so that “cargo •cannot be tendered for delivery”, and a •case in which an event “effectively prevents consignees from removing their ■shipments.” It referred, by way of example, to a trucking strike which blockaded the port so that “many shipments which, although available for delivery, •consignees could not remove.” The Commission said, “In such cases, neither carriers nor consignees are at fault.” Neither, said the Commission, should be ■subjected to an avoidable penalty or permitted to profit from the other’s disability. It held that a carrier was entitled to fair compensation for sheltering •and protecting the consignee’s property under such circumstances, that the demurrage charge at the lowest rate (i. e., for the first period after “free time”) represented a compensatory charge, but "that the increased demurrage rates were penal and could not be charged under these conditions. In the order then entered (General Order 69) were two provisions as to demurrage, one in respect to carriers and the other in respect to consignees. They were: “3. Where a carrier is for any reason unable, or refuses, to tender cargo for delivery, free time must be extended for a period equal to the duration of the carrier’s disability or refusal. “4. Where a consignee is prevented from removing his cargo by factors beyond his control (such as, but not limited to, trucking strikes or weather conditions) which affect an entire port area or a substantial portion thereof, carriers shall (after expiration of free time) assess demurrage against imports at the rate applicable to the first demurrage period, for such time as the inability to remove the cargo may continue. * * ” The ruling was quite clear, it seems to us. Its language fitted precisely into the practice of the trade. Referring to the carriers it said that if a carrier is for any reason unable, or refuses, “to tender cargo for delivery,” free time must be extended. The clear underlying premise was that the obligation of the carrier was to tender for delivery, i. e., leave the goods in the designated place of pick-up, for five days. We pause at this point to note what will become important to a decision here. “[Tjender for delivery” and “deliver” are distinct and different terms. The point comes up in various contexts. “Delivery”, as respects goods contracted to be sold and delivered, and “tender of delivery” are distinct terms. Under a contract of carriage the carrier made a proper “tender” when it offered the goods to the consignee at the pier. If a seller notifies his buyer of the time and place of delivery according to the terms of a contract, and delivers at the time and place, there is a tender. In the industry concerned in this case there seems to us to be no room for dispute over the nature of the obligation of the carrier. It tenders for delivery; it does not deliver. It makes a valid and complete tender when it puts the cargo on the dock, reasonably accessible, properly segregated and marked, and leaves it there for five days; with notice, of course. The second pertinent part (par. 4) of General Order 69 is likewise clear. It uses language which describes precisely what happens. Its expression is “Where a consignee is prevented from removing his cargo by factors beyond his control”, and it goes on to insure its meaning by specifying “such as, but not limited to, trucking strikes”. Under those circumstances, says the General Order, the carrier shall assess demurrage at the first demurrage period rate. Years later (November, 1956, and February, 1957) massive strikes of longshoremen at New York occurred. Cargo was immobilized on the docks. A dispute arose between carriers and consignees as to wharf demurrage during these periods. The carriers said that under General Order 69, where demurrage had begun before the strike took eifeet, they would charge the first period rate for the time during which the goods could not be moved. In other words, the carriers said that, where consignees, unimpeded, had left their goods on the dock after the free time had expired and demurrage had begun to accrue, the consignees should continue to pay, but not at penalty rates. The Board was notified of the practice. Two years later the Board instituted a proceeding. Arguments were presented in written form. The Board then promulgated the order here and now disputed. It read: “It is Ordered that General Order No. 69 (46 C.F.R. 226) is interpreted to bar common carriers by water from assessing demurrage or storage charges against import property at New York for any period during which they are unable to deliver such property because of a strike by longshoremen, regardless of whether the cargo has been made available for delivery during the entire prescribed period of free time.” In the Federal Register the foregoing order appears under its opening designations thus: “Chapter II — Federal Maritime Board, Maritime Administration, Department of Commerce “Subchapter B — Regulations Affecting Maritime Carriers and Related Activities “[Docket No. 859; General Order 69, Amdt. 2] “PART 226 — FREE TIME AND DEMURRAGE CHARGES ON IMPORT PROPERTY APPLICABLE TO ALL COMMON CARRIERS BY WATER -»» “Part 226 is hereby amended by adding the following new section and center heading: “Interpretation “§ 226.2 Applicability of decision and order. “This part is interpreted by the Federal Maritime Board to * * The first phase of the controversy is whether the new order is an interpretation of General Order 69 or is an amendment of it. We think it is clearly an amendment. Whereas General Order 69 deals, correctly, with the carriers’ obligation to tender for delivery, the new order speaks of a period “during which they [the carriers] are unable to deliver such property * * *, regardless of whether the cargo has been made available for delivery during the entire prescribed period of free time.” The Board’s position, as made clear by its brief and argument here, is that the legal duty of the carrier to deliver continues until the consignee calls for the cargo; that even after free time has expired the carrier has the duty of making the eargo physically available to the consignee’s trucks; and that the carrier must provide the labor to load the consignee’s trucks. A longshore strike, the Board says, prevents the carrier from fulfilling this obligation. This is a violent shift from the provisions of General Order 69 and introduces a new concept into the industry. A carrier does not, as we have pointed out, under long-established customs and official rules, deliver goods to consignees; it tenders them for delivery, makes them available for delivery. We think the proposal to deny the carriers demurrage charges at the first period demurrage rate, where goods have been properly marked, etc., on the dock for more than five days before the strike began, is a violation of General Order 69; and, as the Commission itself pointed out in its 1948 Report, is a denial of just compensation for a service rendered. The next question is whether the order is invalid for procedural defects. Section 4(b) of the Administrative Procedure Act provides that, after the notice required for proposed rule-making (excepting interpretative rules), opportunity for interested persons to participate, and “consideration of all relevant matter presented, the agency shall incorporate in any rules adopted a concise general statement of their basis and purpose.” In the Senate Judiciary Committee print of June, 1945, which is explanatory of the proposed Administrative Procedure Act and is included in the Legislative History of the Act printed by order of the ■ Senate, the following appears: “The statement of the ‘basis and purpose’ of rules issued will vary with the rule, but in any case should be fully explanatory of the complete factual and legal basis as well as the real object or objects sought.” No statement of the basis and purpose of the new rule appears, either in the rule itself or in any accompanying report or opinion. The Board says a complete statement of basis and purpose accompanied General Order 69. This is true, but that statement cannot encompass the different rule incorporated in the new order. The Board argues that the new order is an interpretation and therefore this statutory requirement does not apply. We have held hereinabove that the order is not an interpretation but is an amendment of the existing rule. It establishes a new requirement as to the payment of demurrage, clearly different from the requirement which is in the heretofore existing order (General Order 69). Since the premise for the Board’s argument falls, the argument falls. We hold that the quoted provision of Section 4(b) of the Administrative Procedure Act applies and that therefore the new order of the Board must, for procedural validity, include or be accompanied by a statement of the basis and purpose of the order. For the foregoing reasons the order entered by the Board on December 15, 1960, in Docket No. 859, Free Time and Demurrage Charges — New York, is set aside as invalid and the matter is remanded to the Board for further proceedings in accordance with this opinion. So ordered. . See, e. g., The Eddy, 5 Wall. 481, 495, 72 U.S. 481, 495, 18 L.Ed. 486 (1866) ; Ex parte Easton, 95 U.S. 68, 75, 24 L.Ed. 373 (1877) ; The Grafton, 10 F.Cas. 907 (No. 5656) (S.D.N.Y.1844), aff’d, 10 F.Cas. 905 (No. 5655) (C.C.S.D.N.Y. 1846) ; The Titania, 131 F. 229 (2d Cir. 1904) ; Southern Pac. Co. v. Van Hoosear, 72 F.2d 903, 907 (9th Cir. 1934) ; Baltimore & O. R. Co. v. United States, 201 F.2d 795, 797 n. 3 (3d Cir. 1953) ; Miami Struct. Iron Corp. v. Cie Nationale, Etc., 224 F.2d 566, 568 (5th Cir. 1955). . 204 F.2d 384, 386 (3d Cir. 1953). . For simplicity’s sake we omit discussion of lighterage, which sometimes is involved. . The problem in connection with the port of San Francisco was rather exhaustively discussed in California v. United States, 320 U.S. 577, 64 S.Ct. 352, 88 L.Ed. 322 (1944). . Free Time and Demurrage Charges at New York, Docket No. 659, 3 U.S.M.C.. 89, as amended, 46 C.F.R. § 226. . Inland Products Corp. v. Donovan, Inc., 240 Minn. 865, 62 N.W.2d 211, 218 (1954). . Dohrmann Hotel Supply Co. v. Owl Transfer & Storage Co., 19 Wash.2d 522, 143 P.2d 441, 149 A.L.R. 1108 (1943). . Carnation v. Pridgen, 84 Ga.App. 768, 67 S.E.2d 485 (1951). . 46 C.F.R. § 226.1(d). . The facts recited in the text were developed in exchanges of correspondence, which was complicated in its detail. . 25 Fed.Reg. 13696 (1960). . 60 Stat. 238 (1946), 5 U.S.C.A. § 1003 (b). 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_appel1_1_2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the 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". Mayo S. LEVENSON, Respondent, Appellant, v. Peter MILLS, United States Attorney, Movant, Appellee. No. 5810. United States Court of Appeals First Circuit. Aug. 24, 1961. Alan J. Levenson, Portland, Me., for appellant. Peter Mills, U. S. Atty., Portland, Me., with whom Elmer E. Runyon, Asst. U. S. Atty., Portland, Me., was on brief, for appellee. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. WOODBURY, Chief Judge. This is an appeal from an order entered after full hearing disbarring the appellant from practicing in the United States District Court for the District of Maine and striking his name from the roll of attorneys permitted to practice in that court. The procedures adopted by the court below were fully agreed to in advance by counsel on both sides. There is no need to review those procedures here. It will be enough to say that the appellant was given ample notice of the charges laid against him and afforded every opportunity for explanation and defense. The procedures adopted by the court below were eminently fair in every respect and in no way prejudicial to the appellant’s rights. See Randall v. Brigham, 1868, 7 Wall. 523, 540, 19 L.Ed. 285; Ex Parte Wall, 1883, 107 U.S. 265, 271, 272, 2 S.Ct. 569, 27 L.Ed. 552. The basic question on this appeal is whether the evidence supports the trial court’s finding that the appellant had threatened and attempted to intimidate the Referee in Bankruptcy with respect to a matter pending before him, had used abusive, scandalous and indecent language in addressing the Referee in an attempt to influence, obstruct and impede the administration of justice and had threatened to conduct a campaign of vilification against the Referee aimed at preventing his reappointment and the destruction of his personal and professional reputation. A full rehearsal of the evidence would serve no purpose other than to give further publicity to the appellant’s misconduct. The following general comments will suffice. A careful examination of the record shows that the court below was fully aware of the delicate and important question it was required to decide. It shows that the court fully appreciated the vital importance of maintaining the purity of the judicial process and the reputation of the bar for respectability and integrity. And it shows that the court was not by any means unmindful of the grave consequences to the appellant, not only professionally but also personally, of loss of the right to practice before the court. With this in mind the court was exceedingly careful, and on occasion may even have leaned over backward, to give the appellant every opportunity to present any evidence he or his counsel thought pertinent in the way of mitigation, explanation and defense. The evidence is sharply conflicting on the key issues. In this situation the court below could only decide those issues on the basis of the relative credibility of the witnesses and, that, of course, is a matter it is peculiarly competent to decide. Indeed, in this case it is especially appropriate for us to heed the admonition in Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. to give “due regard * * * to the opportunity of the trial court to judge of the credibility of the witnesses”, for one of the most important witnesses was the court’s Referee in Bankruptcy and many of the others were members of the Maine bar and so could not have been strangers to the district judge who practiced actively at that bar before his elevation to the bench. The findings of fact made by the court below cannot by any means be said to be “clearly erroneous.” A question of the admissibility of certain testimony calls for brief consideration. The Trustee of an estate in bankruptcy testified to telephone conversations with the appellant on December 20 and December 21, 1960, in both of which he said the appellant threatened to conduct a campaign of vilification against the Referee to prevent his reappointment. When the appellant took the stand in his own defense he admitted his telephone conversations with the Trustee but not their content. He said that he did not mention the Referee at all in the telephone conversation with the Trustee of December 20, but conceded that he talked with the Trustee about the Referee’s behavior in the telephone conversation on December 21 but not in the abusive and threatening vein testified to by the Trustee. In rebuttal the Trustee was called back to the stand to testify in corroboration of his earlier testimony that immediately after the telephone conversation of December 20 he rushed up to the bankruptcy court and reported to the clerk of that court in confidence that the appellant was making threats against the Referee. This testimony was excluded, and thereupon the clerk of the bankruptcy court was called to the stand to testify to the same conversation with the Trustee. After considerable hesitation the court below over the strenuous objection of the appellant admitted the clerk’s testimony, but only for the limited purpose of corroborating the Trustee’s testimony that the appellant had discussed the Referee in their telephone conversation of December 20 as well as on December 21. It is a close question whether the clerk’s testimony was admissible under the holding of the Supreme Judicial Court of the State of Maine in Dwyer v. State of Maine, 1958, 154 Me. 179, 145 A.2d 100, on which the court below relied for its ruling. We need not undertake to resolve that question, however, for if it was error to admit the evidence the error was harmless for the reason that nothing vital to the appellant hinged on whether he mentioned the Referee in his telephone conversation with the Trustee on December 20 or not until the next day. The issue resolved by the court below against the appellant, obviously on the basis of credibility, is the language used by the appellant, i. e., whether he castigated the Referee in violent and abusive language and threatened to conduct a campaign against him in talking with the Trustee over the telephone. It is not particularly significant whether he did so once or twice or on one day rather than the next. Perhaps the clerk’s testimony has some tendency to corroborate the Trustee’s version of the conversation as vitriolic and threatening instead of mild, as the appellant asserted. But the court below was careful not to use the clerk’s testimony for the purpose of determining the tenor of the appellant’s remarks but only on the question of the timing of the remarks. In the context of this case that is not a vital matter. The error, if it was error to admit the clerk’s testimony, could not have affected any substantial right of the appellant. It was harmless. See Rule 61, Federal Rules of Civil Procedure. As to the appellant’s further contention that the order of the court below is unnecessarily severe, it is enough to say that although the order is permanent in form it is not irrevocable. It does not necessarily prevent the appellant from reinstatement on proof of “a sincere and timely change of attitude.” See footnote 5 of Mr. Justice Reed’s dissenting opinion in Sacher v. Association of the Bar of the City of New York, 1954, 347 U.S. 388, 393, 74 S.Ct. 569, 573, 98 L.Ed. 790. Judgment will be entered affirming the order of the District Court. 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_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". SHOEMAKER v. BURKE, Postmaster, et al. No. 6895. United States Court of Appeals for the District of Columbia. Decided June 1, 1937. Frederick A. Ballard, of Washington, D. G, for appellant. Leslie C. Garnett and Howard Boyd, both of Washington, D. C., for appellees. Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices. MARTIN, Chief Justice. This is an appeal from a decree of the District Court of the United States for the District of Columbia, dismissing the appellant’s bill of complaint upon a motion alleging lack of substance. The appellant was plaintiff below and filed a bill of complaint against the appellees Vincent C. Burke, as Postmaster of Washington, D. G, and James A. Farley, as Postmaster General of the United States, praying for an injunction to restrain the defendants from enforcing an order withdrawing from the mails,a letter tendered by the appellant for mailing, on the envelope of which was affixed a sticker bearing the words, “I don’t read Hearst,” these words being encircled by a curved line. The appellant undertook to mail this letter and similar letters but was denied mailing privileges by force of the Postmaster General’s determination that the letters were subject to the prohibition of the Act approved June 18, 1888, § 2, as amended, title 18 U.S.C.A. § 335, which provides as follows: “All matter otherwise mailable by law, upon the envelope or outside cover or wrapper of which, or any postal card upon which, any delineations, epithets, terms, or language of an indecent, lewd, lascivious, obscene, libelous, scurrilous, defamatory, or threatening character, or calculated by the terms or manner or style of display and obviously intended to reflect injuriously upon the character or conduct of another, may be written or printed or otherwise impressed or apparent, are hereby declared nonmailable matter, and shall not be conveyed in the mails nor delivered from any post office nor by any letter carrier, and shall be withdrawn from the mails under such regulations as the Postmaster General shall prescribe. . Whoever shall knowingly deposit or cause to be deposited, for mailing or delivery, anything declared by this section to be nonmailable matter, or shall knowingly take the same or cause the same to be taken from the mails for the purpose of circulating or disposing of or aiding in the circulation or disposition of the same, shall be fined not more than $5,000, or imprisoned not more than five years, or both.” This statute first prohibits the mailing of any matter otherwise mailable by law if upon the envelopes there is written or printed any delineations, epithets, terms, or language .of an indecent, lewd, lascivious, obscene, libelous, scurrilous, defamatory, or threatening character. It is not contended that the inscription in question is subject to condemnation under any of these provisions. The statute further prohibits the mailing of any matter otherwise mailable if upon the envelopes thereof there is written or printed any matter calculated by the terms or manner or style of display and obviously intended to reflect injuriously upon the character or conduct of another. The Postmaster General held that the inscription upon the sticker, to wit, “I don’t read Hearst” fell within the provisions of the latter subdivision, for the reason that it was calculated by the terms and obviously intended to reflect injuriously upon the character or conduct of another. We are of the opinion that the decree of the lower court dismissing the appellant’s bill of complaint should be sustained. In the first place we may' say that in our opinion the inscription on the sticker which was attached to the envelope in question was “calculated by the terms or manner or style of display and obviously intended to reflect injuriously upon the character or conduct of another.” It is clear that this inscription bore no relation to the information required by the Postmaster when receiving and sending the mail to the addressee. It was a purely gratuitous intrusion of an expression of opinion by the writer denunciatory in its nature of Hearst and the Hearst publications. It was an effort to induce others to join in the same opinion and to agree with the writer in condemning the character and conduct of Hearst. Accordingly, it was obviously intended to reflect injuriously upon the character and conduct of another, and it is plain that it could have no other purpose or effect. The appellant cites the case of American Civil Liberties Union v. Kiely (C.C.A.) 40 F.(2d) 451, 453, wherein it was held that matter otherwise defamatory when used with reference to a state does not come within the purview of the present statute, but that the statute applies only to reflections upon individual persons and not to reflections upon a state. The court said: “In our opinion, the, act relates to persons and not to systems of administration or other abstractions.” This reference does not seem to apply to the present case. The implied denunciation herein does not relate to a state or an abstraction, but to a well-known publisher and by innuendo to his publication. Moreover, it should be observed that the authority to pass upon such a subject is in the first instance intrusted by statute to the Postmaster General, and that his decision thereon is conclusive unless he has exceeded his authority or the court should be of the opinion that his action was clearly wrong. In Bates & Guild Co. v. Payne, 194 U.S. 106, 24 S.Ct. 595, 597, 48 L.Ed. 894, in a suit brought to compel the Postmaster General to transmit through the mails, as second-class matter, a publication alleged to be a periodical, the bill was discharged with the following statements: “ * * * where Congress has committed to the head of a department certain duties requiring the exercise of judgment and discretion, his action thereon, whether it involve questions of law or fact, will not be reviewed by the courts unless he has exceeded his authority or this court should be of opinion that his action was clearly wrong. * * * “The rule upon this subject may be summarized as follows: That where the decision of questions of fact is committed by Congress to the judgment and discretion of the head of a department, his decision thereon is conclusive; and that even upon mixed questions of law and fact, or of law alone, his action will carry with it a strong presumption of its correctness, and the courts will not ordinarily review it, although they may have the power, and will occasionally exercise the right of so doing. * * * , “ * * * While, as already observed, the question is one of doubt, we think the decision, of the Postmaster General, who is vested by Congress with the power to exercise his judgment and discretion in the matter, should be accepted as final.” See, also, Smith v. Hitchcock, 226 U.S. 53, 33 S.Ct. 6, 57 L.Ed. 119; Masses Publishing Co. v. Patten (C.C.A.) 246 F. 24, L.R.A.1918C, 79 Ann.Cas.l918B, 999. The decree of the lower court is affirmed. Affirmed. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
sc_adminactionstate	58	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the state agency associated with the administrative action that occurred prior to the onset of litigation. GRIFFIN v. WISCONSIN No. 86-5324. Argued April 20, 1987 Decided June 26, 1987 Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Powell, and O’Connor, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Marshall, J., joined, in Parts I-B and I-C of which Brennan, J., joined, and in Part I-C of which Stevens, J., joined, post, p. 881. Stevens, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 890. Alan G. Habermehl, by appointment of the Court, 479 U. S. 1053, argued the cause and filed briefs for petitioner. Barry M. Levenson, Assistant Attorney General of Wisconsin, argued the cause for respondent. With him on the brief was Donald J. Hanaway, Attorney General. Arthur Eisenberg filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal. Solicitor General Fried, Assistant Attorney General Weld, Deputy Solicitor General Bryson, Richard G. Taranto, and Kathleen A. Felton filed a brief for the United States as amicus curiae urging affirmance. Briefs of amici curiae were filed for the State of California by John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, and Ronald E. Niver and Stan M. Helfman, Deputy Attorneys General; and for the State of New York et al. by Robert Abrams, Attorney General of New York, O. Peter Sherwood, Solicitor General, Lawrence S. Kahn, Deputy Solicitor General, Judith T. Kramer, Assistant Attorney General, Robert K. Corbin, Attorney General of Arizona, John J. Kelly, Chief State’s Attorney of Connecticut, Charles M. Oberly III, Attorney General of Delaware, Robert A. Butterworth, Attorney General of Florida, James T. Jones, Attorney General of Idaho, Neil F. Hartigan, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Stephen E. Merrill, Attorney General of New Hampshire, E. Cary Edwards, Attorney General of New Jersey, Lacy H. Thornburg, Attorney General of North Carolina, and T. Travis Medlock, Attorney General of South Carolina. Justice Scalia delivered the opinion of the Court. Petitioner Joseph Griffin, who was on probation, had his home searched by probation officers acting without a warrant. The officers found a gun that later served as the basis of Griffin’s conviction of a state-law weapons offense. We granted certiorari, 479 U. S. 1005 (1986), to consider whether this search violated the Fourth Amendment. I On September 4, 1980, Griffin, who had previously been convicted of a felony, was convicted in Wisconsin state court of resisting arrest, disorderly conduct, and obstructing an officer. He was placed on probation. Wisconsin law puts probationers in the legal custody of the State Department of Health and Social Services and renders them “subject . . . to . . . conditions set by the court and rules and regulations established by the department.” Wis. Stat. § 973.10(1) (1985-1986). One of the Department’s regulations permits any probation officer to search a probationer’s home without a warrant as long as his supervisor approves and as long as there are “reasonable grounds” to believe the presence of contraband — including any item that the probationer cannot possess under the probation conditions. Wis. Admin. Code HSS §§ 328.21(4), 328.16(1) (1981). The rule provides that an officer should consider a variety of factors in determining whether “reasonable grounds” exist, among which are information provided by an informant, the reliability and specificity of that information, the reliability of the informant (including whether the informant has any incentive to supply inaccurate information), the officer’s own experience with the probationer, and the “need to verify compliance with rules of supervision and state and federal law.” HSS §328.21(7). Another regulation makes it a violation of the terms of probation to refuse to consent to a home search. HSS § 328.04(3)(k). And still another forbids a probationer to possess a firearm without advance approval from a probation officer. HSS § 328.04(3)(j). On April 5, 1983, while Griffin was still on probation, Michael Lew, the supervisor of Griffin’s probation officer, received information from a detective on the Beloit Police Department that there were or might be guns in Griffin’s apartment. Unable to secure the assistance of Griffin’s own probation officer, Lew, accompanied by another probation officer and three plainclothes policemen, went to the apartment. When Griffin answered the door, Lew told him who they were and informed him that they were going to search his home. During the subsequent search — carried out entirely by the probation officers under the authority of Wisconsin’s probation regulation — they found a handgun. Griffin was charged with possession of a firearm by a convicted felon, which is itself a felony. Wis. Stat. §941.29(2) (1985-1986). He moved to suppress the evidence seized during the search. The trial court denied the motion, concluding that no warrant was necessary and that the search was reasonable. A jury convicted Griffin of the firearms violation, and he was sentenced to two years’ imprisonment. The conviction was affirmed by the Wisconsin Court of Appeals, 126 Wis. 2d 183, 376 N. W. 2d 62 (1985). On further appeal, the Wisconsin Supreme Court also affirmed. It found denial of the suppression motion proper because probation diminishes a probationer’s reasonable expectation of privacy — so that a probation officer may, consistent with the Fourth Amendment, search a probationer’s home without a warrant, and with only “reasonable grounds” (not probable cause) to believe that contraband is present. It held that the “reasonable grounds” standard of Wisconsin’s search regulation satisfied this “reasonable grounds” standard of the Federal Constitution, and that the detective’s tip established “reasonable grounds” within the meaning of the regulation, since it came from someone who had no reason to supply inaccurate information, specifically identified Griffin, and suggested a need to verify Griffin’s compliance with state law. 131 Wis. 2d 41, 52-64, 388 N. W. 2d 535, 539-544 (1986). II We think the Wisconsin Supreme Court correctly concluded that this warrantless search did not violate the Fourth Amendment. To reach that result, however, we find it unnecessary to embrace a new principle of law, as the Wisconsin court evidently did, that any search of a probationer’s home by a probation officer satisfies the Fourth Amendment as long as the information possessed by the officer satisfies a federal “reasonable grounds” standard. As his sentence for the commission of a crime, Griffin was committed to the legal custody of the Wisconsin State Department of Health and Social Services, and thereby made subject to that Department’s rules and regulations. The search of Griffin’s home satisfied the demands of the Fourth Amendment because it was carried out pursuant to a regulation that itself satisfies the Fourth Amendment’s reasonableness requirement under well-established principles. A A probationer’s home, like anyone else’s, is protected by the Fourth Amendment’s requirement that searches be “reasonable.” Although we usually require that a search be undertaken only pursuant to a warrant (and thus supported by probable cause, as the Constitution says warrants must be), see, e. g., Payton v. New York, 445 U. S. 573, 586 (1980), we have permitted exceptions when “special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” New Jersey v. T. L. O., 469 U. S. 325, 351 (1985) (Blackmun, J., concurring in judgment). Thus, we have held that government employers and supervisors may conduct warrantless, work-related searches of employees’ desks and offices without probable cause, O’Connor v. Ortega, 480 U. S. 709 (1987), and that school officials may conduct warrantless searches of some student property, also without probable cause, New Jersey v. T. L. O., swpra. We have also held, for similar reasons, that in certain circumstances government investigators conducting searches pursuant to a regulatory scheme need not adhere to the usual warrant or probable-cause requirements as long as their searches meet “reasonable legislative or administrative standards.” Camara v. Municipal Court, 387 U. S. 523, 538 (1967). See New York v. Burger, 482 U. S. 691, 702-703 (1987); Donovan v. Dewey, 452 U. S. 594, 602 (1981); United States v. Biswell, 406 XJ. S. 311, 316 (1972). A State’s operation of a probation system, like its operation of a school, government office or prison, or its supervision of a regulated industry, likewise presents “special needs” beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements. Probation, like incarceration, is “a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.” G. Killinger, H. Kerper, & P. Cromwell, Probation and Parole in the Criminal Justice System 14 (1976); see also 18 U. S. C. § 3651 (1982 ed. and Supp. III) (probation imposed instead of imprisonment); Wis. Stat. § 973.09 (1985-1986) (same). Probation is simply one point (or, more accurately, one set of points) on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service. A number of different options lie between those extremes, including confinement in a medium- or minimum-security facility, work-release programs, “halfway houses,” and probation — which can itself be more or less confining depending upon the number and severity of restrictions imposed. See, e. g., 18 U. S. C. §3563 (1982 ed., Supp. III) (effective Nov. 1, 1987) (probation conditions authorized in federal system include requiring probationers to avoid commission of other crimes; to pursue employment; to avoid certain occupations, places, and people; to spend evenings or weekends in prison; and to avoid narcotics or excessive use of alcohol). To a greater or lesser degree, it is always true of probationers (as we have said it to be true of parolees) that they do not enjoy “the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions.” Morrissey v. Brewer, 408 U. S. 471, 480 (1972). These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large. See State v. Tarrell, 74 Wis. 2d 647, 652-653, 247 N. W. 2d 696, 700 (1976). These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed. Recent research suggests that more intensive supervision can reduce recidivism, see Petersilia, Probation and Felony Offenders, 49 Fed. Probation 9 (June 1985), and the importance of supervision has grown as probation has become an increasingly common sentence for those convicted of serious crimes, see id., at 4. Supervision, then, is a “special need” of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large. That permissible degree is not unlimited, however, so we next turn to whether it has been exceeded here. B In determining whether the “special needs” of its probation system justify Wisconsin’s search regulation, we must take that regulation as it has been interpreted by state corrections officials and state courts. As already noted, the Wisconsin Supreme Court — the ultimate authority on issues of Wisconsin law — has held that a tip from a police detective that Griffin “had” or “may have had” an illegal weapon at his home constituted the requisite “reasonable grounds.” See 131 Wis. 2d, at 64, 388 N. W. 2d, at 544. Whether or not we would choose to interpret a similarly worded federal regulation in that fashion, we are bound by the state court’s interpretation, which is relevant to our constitutional analysis only insofar as it fixes the meaning of the regulation. We think it clear that the special needs of Wisconsin’s probation system make the warrant requirement impracticable and justify replacement of the standard of probable cause by “reasonable grounds,” as defined by the Wisconsin Supreme Court. A warrant requirement would interfere to an appreciable degree with the probation system, setting up a magistrate rather than the probation officer as the judge of how close a supervision the probationer requires. Moreover, the delay inherent in obtaining a warrant would make it more difficult for probation officials to respond quickly to evidence of misconduct, see New Jersey v. T. L. O., 469 U. S., at 340, and would reduce the deterrent effect that the possibility of expeditious searches would otherwise create, see New York v. Burger, 482 U. S., at 710; United States v. Biswell, 406 U. S., at 316. By way of analogy, one might contemplate how parental custodial authority would be impaired by requiring judicial approval for search of a minor child’s room. And on the other side of the equation — the effect of dispensing with a warrant upon the probationer: Although a probation officer is not an impartial magistrate, neither is he the police officer who normally conducts searches against the ordinary citizen. He is an employee of the State Department of Health and Social Services who, while assuredly charged with protecting the public interest, is also supposed to have in mind the welfare of the probationer (who in the regulations is called a “client,” HSS § 328.03(5)). The applicable regulations require him, for example, to “[p]rovid[e] individualized counseling designed to foster growth and development of the client as necessary,” HSS § 328.04(2)(i), and “[m]onito[r] the client’s progress where services are provided by another agency and evaluate] the need for continuation of the services,” HSS §328.04(2)(o). In such a setting, we think it reasonable to dispense with the warrant requirement. Justice Blackmun’s dissent would retain a judicial warrant requirement, though agreeing with our subsequent conclusion that reasonableness of the search does not require probable cause. This, however, is a combination that neither the text of the Constitution nor any of our prior decisions permits. While it is possible to say that Fourth Amendment reasonableness demands probable cause without a judicial warrant, the reverse runs up against the constitutional provision that “no Warrants shall issue, but upon probable cause.” Arndt. 4. The Constitution prescribes, in other words, that where the matter is of such a nature as to require a judicial warrant, it is also of such a nature as to require probable cause. Although we have arguably come to permit an exception to that prescription for administrative search warrants, which may but do not necessarily have to be issued by courts, we have never done so for constitutionally mandated judicial warrants. There it remains true that “[i]f a search warrant be constitutionally required, the requirement cannot be flexibly interpreted to dispense with the rigorous constitutional restrictions for its issue.” Frank v. Maryland, 359 U. S. 360, 373 (1959). Justice Blackmun neither gives a justification for departure from that principle nor considers its implications for the body of Fourth Amendment law. We think that the probation regime would also be unduly disrupted by a requirement of probable cause. To take the facts of the present case, it is most unlikely that the unauthenticated tip of a police officer — bearing, as far as the record shows, no indication whether its basis was firsthand knowledge or, if not, whether the firsthand source was reliable, and merely stating that Griffin “had or might have” guns in his residence, not that he certainly had them — would meet the ordinary requirement of probable cause. But this is different from the ordinary case in two related respects: First, even more than the requirement of a warrant, a probable-cause requirement would reduce the deterrent effect of the supervisory arrangement. The probationer would be assured that so long as his illegal (and perhaps socially dangerous) activities were sufficiently concealed as to give rise to no more than reasonable suspicion, they would go undetected and uncorrected. The second difference is well reflected in the regulation specifying what is to be considered “[i]n deciding whether there are reasonable grounds to believe ... a client’s living quarters or property contain contraband,” HSS §328.21(7). The factors include not only the usual elements that a police officer or magistrate would consider, such as the detail and consistency of the information suggesting the presence of contraband and the reliability and motivation to dissemble of the informant, HSS §§328.21(7) (c), (d), but also “[ijnformation provided by the client which is relevant to whether the client possesses contraband,” and “[t]he experience of a staff member with that client or in a similar circumstance.” HSS §§ 328.21(7)(f), (g). As was true, then, in O’Connor v. Ortega, 480 U. S. 709 (1987), and New Jersey v. T. L. O., 469 U. S. 325 (1985), we deal with a situation in which there is an ongoing supervisory relationship —and one that is not, or at least not entirely, adversarial— between the object of the search and the decisionmaker. In such circumstances it is both unrealistic and destructive of the whole object of the continuing probation relationship to insist upon the same degree of demonstrable reliability of particular items of supporting data, and upon the same degree of certainty of violation, as is required in other contexts. In some cases — especially those involving drugs or illegal weapons — the probation agency must be able to act based upon a lesser degree of certainty than the Fourth Amendment would otherwise require in order to intervene before a probationer does damage to himself or society. The agency, moreover, must be able to proceed on the basis of its entire experience with the probationer, and to assess probabilities in the light of its knowledge of his life, character, and circumstances. To allow adequate play for such factors, we think it reasonable to permit information provided by a police officer, whether or not on the basis of firsthand knowledge, to support a probationer search. The same conclusion is suggested by the fact that the police máy be unwilling to disclose their confidential sources to probation personnel. For the same reason, and also because it is the very assumption of the institution of probation that the probationer is in need of rehabilitation and is more likely than the ordinary citizen to violate the law, we think it enough if the information provided indicates, as it did here, only the likelihood (“had or might have guns”) of facts justifying the search. The search of Griffin’s residence was “reasonable” within the meaning of the Fourth Amendment because it was conducted pursuant to a valid regulation governing probationers. This conclusion makes it unnecessary to consider whether, as the court below held and the State urges, any search of a probationer’s home by a probation officer is lawful when there are “reasonable grounds” to believe contraband is present. For the foregoing reasons, the judgment of the Wisconsin Supreme Court is Affirmed. HSS § 328 was promulgated in December 1981 and became effective on January 1, 1982. Effective May 1, 1986, HSS § 328.21 was repealed and repromulgated with somewhat different numbering and without relevant substantive changes. See 131 Wis. 2d 41, 60, n. 7, 388 N. W. 2d 535, 542, n. 7 (1986). This opinion will cite the old version of § 328.21, which was in effect at the time of the search. We have recently held that prison regulations allegedly infringing constitutional rights are themselves constitutional as long as they are “ ‘reasonably related to legitimate penological interests.’” O’Lone v. Estate of Shabazz, 482 U. S. 342, 349 (1987) (quoting Turner v. Safley, 482 U. S. 78, 89 (1987)). We have no occasion in this case to decide whether, as a general matter, that test applies to probation regulations as well. If the regulation in question established a standard of conduct to which the probationer had to conform on pain of penalty — e. g., a restriction on his movements — the state court could not constitutionally adopt so unnatural an interpretation of the language that the regulation would fail to provide adequate notice. Cf. Kolender v. Lawson, 461 U. S. 352, 357-358 (1983); Lambert v. California, 355 U. S. 225, 228 (1957). That is not an issue here since, even though the petitioner would be in violation of his probation conditions (and subject to the penalties that entails) if he failed to consent to any search that the regulation authorized, see HSS §328.04(3)(k), nothing in the regulation or elsewhere required him to be advised, at the time of the request for search, what the probation officer’s “reasonable grounds” were, any more than the ordinary citizen has to be notified of the grounds for “probable cause” or “exigent circumstances” searches before they may be undertaken. In the administrative search context, we formally require that administrative warrants be supported by “probable cause,” because in that context we use that term as referring not to a quantum of evidence, but merely to a requirement of reasonableness. See, e. g., Marshall v. Barlow’s, Inc., 436 U. S. 307, 320 (1978); Camara v. Municipal Court, 387 U. S. 523, 528 (1967). In other contexts, however, we use “probable cause” to refer to a quantum of evidence for the belief justifying the search, to be distinguished from a lesser quantum such as “reasonable suspicion.” See O’Connor v. Ortega, 480 U. S. 709, 724 (1987) (plurality); New Jersey v. T. L. O., 469 U. S. 325, 341-342 (1985). It is plainly in this sense that the dissent uses the term. See, e. g., post, at 881-883 (less than probable cause means “a reduced level of suspicion”). 5 See Marshall v. Barlow’s, Inc., supra, at 307 (“We hold that. . . the Act is unconstitutional insofar as it purports to authorize inspections without warrant or its equivalent”). The “neutral magistrate,” Camara, supra, at 532, or “neutral officer,” Marshall v. Barlow’s, Inc., supra, at 323, envisioned by our administrative search cases is not necessarily the “neutral judge,” post, at 887, envisioned by the dissent. It is irrelevant whether the probation authorities relied upon any peculiar knowledge which they possessed of petitioner in deciding to conduct the present search. Our discussion pertains to the reasons generally supporting the proposition that the search decision should be left to the expertise of probation authorities rather than a magistrate, and should be supportable by a lesser quantum of concrete evidence justifying suspicion than would be required to establish probable cause. That those reasons may not obtain in a particular case is of no consequence. We may note, nonetheless, that the dissenters are in error to assert as a fact that the probation authorities made no use of special knowledge in the present case, post, at 890. All we know for certain is that the petitioner’s probation officer could not be reached; whether any material contained in petitioner’s probation file was used does not appear. The dissenters speculate that the information might not have come from the police at all, “but from someone impersonating an officer.” Post, at 888. The trial court, however, found as a matter of fact that Lew received the tip on which he relied from a police officer. See 131 Wis. 2d, at 62, 388 N. W. 2d, at 543. The Wisconsin Supreme Court affirmed that finding, ibid., and neither the petitioner nor the dissenters assert that it is clearly erroneous. The dissenters assert that the search did not comport with all the governing Wisconsin regulations. There are reasonable grounds on which the Wisconsin court could find that it did. But we need not belabor those here, since the only regulation upon which we rely for our constitutional decision is that which permits a warrantless search on “reasonable grounds.” The Wisconsin Supreme Court found the requirement of “reasonable grounds” to have been met on the facts of this case and, as discussed earlier, we hold that such a requirement, so interpreted, meets constitutional minimum standards as well. That the procedures followed, although establishing “reasonable grounds” under Wisconsin law, and adequate under federal constitutional standards, may have violated Wisconsin state regulations, is irrelevant to the ease before us. Question: What is the state of the state agency associated with the administrative action? 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_respond1_1_3	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. Abraham WELDON, Appellant, v. KRAFT, INC. No. 89-1519. United States Court of Appeals, Third Circuit. Argued Nov. 16, 1989. Decided Feb. 22, 1990. Richard J. Orloski (Argued), Orloski & Hinga, Allentown, Pa., for appellant. William F. Kershner (Argued), Pepper, Hamilton & Scheetz, Berwyn, Pa., for ap-pellee. Before HIGGINBOTHAM, Chief Judge SCIRICA, Circuit Judge, and POLITAN, District Judge The Honorable A. Leon Higginbotham, Jr. became Chief Judge on January 16, 1990. The Honorable Nicholas H. Politan, United States District Judge for the District of New Jersey, sitting by designation. OPINION OF THE COURT SCIRICA, Circuit Judge. This is an appeal from a grant of summary judgment in favor of defendant, Kraft, Inc. (“Kraft”). Plaintiff Abraham Weldon brought suit in district court against Kraft, his former employer, claiming that Kraft terminated his employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982) (“Title VII”), as well as 42 U.S.C. § 1981 (1982) (“§ 1981”). Moreover, Weldon alleged violations of the Employee Retirement Income Security Act (“ERISA”) and Pennsylvania’s Wage Payment and Collection Law (“WPCL”). We will affirm the dismissal of the ERISA and WPCL claims but because we find that the evidence creates a genuine issue of material fact as to whether Kraft intentionally discriminated against Weldon, we will reverse the dismissal of Weldon’s discrimination claims. I. Weldon, a black male, was employed as an assistant supervisor in Kraft’s Lehigh Valley, Pennsylvania plant from June 1986 until he was fired, effective April 14, 1987. Kraft claims that it terminated Weldon because: 1) his job performance was unsatisfactory; 2) he failed to produce adequate medical documentation for a month-long absence; and 3) he failed to follow company policy requiring the return of unused advance money within seven days of the completion of a business trip. Weldon contends that the asserted reasons are pretex-tual and that his termination was racially motivated. The depositions and documents included in the record set forth the following information. Kraft recruited Weldon through an employment agency specializing in minority applicants. Prior to his hiring, Weldon visited the plant and was interviewed by several Kraft managers and supervisors. It was standard practice at Kraft to check references and contact the applicant’s former employers. Satisfied that Weldon was the best candidate of those interviewed, Kraft hired him on June 30, 1986. Prom June 1986 through February 1987, Weldon was assigned to the first shift in the salads department under John Gier, an experienced supervisor with a reputation as one of Kraft’s most demanding trainers. In a December 1986 written evaluation, Gier rated Weldon’s performance as “below expectations.” The report indicated that Weldon had failed to meet a number of his performance objectives and that productivity had decreased in the department by ten percent. According to Gier, Apparent lack of sense of priorities deters performance enhancement. Desire to increase knowledge of company policies and procedures seems questionable. Manager needs to affirm a concerted effort (presently insufficient) to broaden the overall skills and knowledge required to be a good Kraft manager. Improvement in employee relations remains a priority In addition, Gier reportedly wrote a letter to his direct supervisor, in which he stated that Weldon lacked the intelligence necessary for the position. Later, as part of his deposition testimony, however, Gier stated that Weldon was both intelligent and capable but lacked motivation. Weldon contends that Gier treated blacks unfairly. He claims that Don Griffin, a black trainee under Gier, was forced to seek the help of another supervisor to learn the technical aspects of the job, and that another black trainee transferred out of Gier’s department to avoid losing his job. Weldon also claims that several black coworkers reported to him their personal experiences or the experiences of other blacks who had received poor evaluations from Gier or who had personal confrontations with him. According to Weldon, Richard Cliffe, a personnel manager, admitted that Gier had difficulty working with minority employees. In addition, Weldon claims that white coworkers warned him that Gier would disapprove if Weldon became too friendly with them. He concluded, however, that Gier’s disapproval was unrelated to the fact that Weldon was black. Finally, Weldon claims that Cliffe had promised to assign him to Carlos Delgado, whom Weldon alleges is a “minority trainer.” Gier confirmed that several black trainees under his supervision had experienced difficulties mastering job skills but contends that there was no personal animosity between himself and his trainees. Gier claims to have been instrumental in the promotion of the black trainee who allegedly transferred to save his job. Richard Cliffe denies telling Weldon that Gier had problems with minority employees. He claims to have been present when Don Griffin and Weldon discussed their problems working with Gier. Cliffe states that Griffin indicated that his difficulties were job-related and that he considered Gier to be an extremely demanding trainer. According to Cliffe, Griffin did not represent that Gier had any particular difficulty with black trainees. The record contains no deposition of Griffin and the parties cite to none. Finally, Cliffe states that he never promised to assign Weldon to Delgado and that Kraft has not designated any supervisor as a “minority trainer.” In February 1987, Cliffe arranged to have Weldon transferred to the third shift in the portion control department under the supervision of Ellen Williams. According to Cliffe, the transfer was arranged to “give [Weldon] a fresh start under another supervisor” and to ensure that Weldon’s performance problems were not related to the conflict with Gier. Williams claims that she was not satisfied with Weldon’s performance. She contends that Weldon had difficulty mastering and completing the various reports for which he was responsible, that he lacked initiative, and that he avoided active involvement in the day-to-day operations of the department. According to Williams, because of these perceived deficiencies, she and Jerry Serfass, the third shift superintendent, developed an “action plan” for Weldon that indicated areas for development and listed reports that Weldon should complete on a regular basis. Serfass claims to have met with Weldon on several occasions to discuss the plan, but contends that Weldon never forwarded any of the requested reports. Williams also claims to have met with Weldon numerous times to explain the plan and to monitor his progress. She contends that she never observed Weldon working on the reports. Weldon notes that he was the first trainee to be placed under William’s supervision and that Williams had very little contact with blacks prior to the assignment. Moreover, Weldon challenges William’s claim that she worked with him on improving the areas identified in the “action plan.” The plan was contained in a memo from Serfass dated March 23,1987. Williams testified at her deposition that she met and worked with Weldon after she received the memo. However, Weldon did not return to work on a regular basis after March 19, 1987. As part of his training, Weldon was scheduled to attend a week-long seminar conducted by Kraft beginning on Sunday, March 23, 1987, in Chicago, Illinois. The company had provided Weldon with airplane tickets and a $1000 cash advance to cover expenses. Weldon asked to be excused from work on the preceding Friday to prepare for the trip. Williams denied the request, claiming she needed his assistance in performing the sanitation tasks generally conducted on Friday nights. Nonetheless, on Friday, March 20, Weldon called Williams to inform her that he could not work that day because he was ill. Weldon never attended the seminar and did not return to work until April 13, 1987. During his absence, Weldon spoke with Williams several times by telephone. They discussed making arrangements for the return of the cash advance and the airplane tickets. Moreover, Cliffe claims that Weldon received specific instructions to present medical documentation covering the duration of his absence upon his return. Weldon returned to work on April 13 and, after his shift ended at 7:30 A.M. on April 14, he met with Serfass and Charles Harlin, the general superintendent. Weldon submitted a doctor’s certificate covering three days of absence and the plane ticket. Although he did not return the $1000 advance as requested, he presented a $110 traveler’s check and offered to sign over his last paycheck for $890, which had been withheld pending Weldon’s return of the cash advance. Harlin refused to accept the traveler’s check, insisting that Weldon return the entire amount of the cash advance. He reminded Weldon of previous instances where Weldon had reimbursed cash advances with personal checks that were returned for insufficient funds. Moreover, he stated that he was disappointed with Weldon’s job performance. At the conclusion of the meeting, Harlin suspended Weldon until further notice. On April 16, Weldon again met with Ser-fass. He presented a doctor’s certificate covering the period from March 20 to March 27. He signed over his withheld paycheck and again tendered the traveler's check, which this time was accepted. Nonetheless, on May 5, Cliffe issued a termination notice to Weldon, effective April 14, 1987. The letter stated that the termination resulted from Weldon’s “ongoing performance deficiencies,” and “lack of cooperation in resolving the question of [his] alleged disability.” Moreover, it stated: “We still await requested documentation on your alleged disability which began on March 20, 1987 so we can resolve the matter of your Short Term Disability benefits. Please be reminded that this is the fourth request for this ... information.” On May 7, Weldon produced a medical certificate covering the entire period of his absence. Weldon claims that Kraft’s insistence on medical certification evidenced racial animus because as a general rule Kraft required medical certification only from those with a history of abusing sick leave. Weldon did not have such a history and he contends that a similarly situated white employee would not have been treated as he was. Moreover, he claims that Kraft would not have withheld the paycheck of a white employee under the circumstances and that he was forced to use the cash advance until he was well enough to return to work. Finally, Weldon contends that his statistical evidence indicates that minorities constitute 37.9%, “a disproportionate amount,” of the involuntary terminations at Kraft between 1985 and 1988. According to Weldon, this suggests that Kraft has a “revolving door” policy for minority employees. Kraft counters that Weldon improperly grouped together all minorities in reaching its conclusion and that only 9.6% of the involuntary terminations within that period were black employees, while blacks comprised 14% of the employees in Weldon’s job group. II. To prevail on a claim of disparate treatment under Title VII or § 1981, the plaintiff must demonstrate purposeful discrimination. See Patterson v. McLean Credit Union, — U.S. -, 109 S.Ct. 2363, 2377, 105 L.Ed.2d 132 (1989). Absent direct evidence, the plaintiff may prove intent through the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See Patterson, 109 S.Ct. at 2377-78; Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621, 83 L.Ed.2d 523 (1985). Under this framework, the plaintiff has the initial burden of proving a prima facie ease by a preponderance of the evidence, which if successful, raises the inference of unlawful discrimination. Burdine, 450 U.S. at 250-52, 101 S.Ct. at 1092-93. This burden is not onerous. The plaintiff must show that he is a member of a racial minority, qualified for the job from which he was discharged, and that others not in the protected class were treated more favorably. See Hankins v. Temple University, 829 F.2d 437, 440 (3d Cir.1987). If the plaintiff establishes a prima facie case, the burden of production shifts to the defendant to clearly set forth a legitimate, nondiscriminatory reason for the discharge. Burdine, 450 U.S. at 255, 101 S.Ct. at 1094. A satisfactory explanation dispels the inference of discrimination arising from the plaintiff’s initial evidence. Id. The ultimate burden of persuasion remains with the plaintiff, who then must prove by a preponderance of the evidence that the reasons asserted by the defendant were a pretext for discrimination. Id. at 253, 101 S.Ct. at 1093. This may be accomplished either directly, by showing that a discriminatory reason more likely motivated the employer, or indirectly, by showing that the asserted reason is unworthy of credence. Id. at 256, 101 S.Ct. at 1095. The plaintiff’s initial evidence may be considered by the trier of fact in making this determination. Id. at 255 n. 10, 101 S.Ct. at 1095 n. 10. A plaintiff need not carry this burden, however, to withstand a motion for summary judgment. Furthermore, the evidence must be viewed in the light most favorable to the nonmoving party. Sorba v. Pennsylvania Drilling Co., 821 F.2d 200, 204 (3d Cir.1987), cert. denied, 484 U.S. 1019, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988). A trial court may enter summary judgment only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “genuine” if there is sufficient evidence upon which a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The role of the trial judge “is not himself to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.” Id. at 250, 106 S.Ct. at 2511. Our review of the district court’s decision is plenary. We must apply the same test the court should have used initially. Hankins, 829 F.2d at 440. In a discrimination case, we must decide whether sufficient evidence exists to create a genuine issue as to whether the employer intentionally discriminated. Id. The defendants must show that “the plaintiff will be unable to introduce either direct evidence of a purpose to discriminate or indirect evidence by showing that the proffered reason is subject to factual dispute.” Id. at 440-41. A plaintiff who has made a prima facie showing of discrimination can withstand a summary judgment motion by pointing to “evidence establishing a reasonable inference that the employer’s proffered explanation is unworthy of credence.” Sorba, 821 F.2d at 205. In this case, the district court concluded that Weldon had established a prima facie case of discrimination. Although Kraft apparently conceded that Weldon was discharged while similarly situated white coworkers were retained, Kraft argued that Weldon was not qualified for his position as evidenced by his poor performance evaluations. Nonetheless, the court accepted, arguendo, that Weldon’s recruitment and employment by Kraft established his qualifications for purposes of the prima facie case. The district court also held that Weldon had failed to discredit Kraft’s assertion that poor job performance and failure to provide adequate medical documentation were legitimate, nondiscriminatory reasons for his termination. According to the court, the only evidence Weldon presented to defeat the assertion of poor performance was his own unsupported testimony that in his view, he performed satisfactorily. The court held that Weldon "cannot rebut defendant’s position solely by reference to his own self-interested assertions.” Similarly, with respect to the lack of medical documentation, the court stated that Weldon’s only rebuttal evidence was his own assertion that similarly situated whites would not have been required to provide such documentation. The court found that there was nothing in the record to show that Kraft would not have required the same from whites and that Weldon’s failure to provide the documentation after repeated requests was a legitimate reason for his termination. Because the court found that Weldon had not met his burden of showing that Kraft’s assertions concerning job performance and failure to provide medical certification were unworthy of credence, the court did not discuss in detail Kraft’s third asserted reason for the discharge, Weldon’s failure to follow company policy with respect to advance money. The court stated, however, that in light of Weldon’s offer and actual return of the full amount of the advance, it could not “conclude as a matter of law that his delay in reimbursing Kraft, standing alone, would constitute a sufficient reason for his discharge.” In response to Weldon’s statistical data, the district court noted that statistics highlighting an employment practice with a disproportionately adverse effect on minorities may be probative of an intent to discriminate. Nonetheless, the court found that a 9.6% termination rate for black employees was insufficient to show that Kraft maintained a “revolving door” policy. III. To establish a prima facie case, Weldon must show that he was qualified for his position. On appeal, Kraft argues that Weldon's poor performance evaluations indicate that he was not qualified. Under the circumstances, we believe that Weldon has established a prima facie case. The framework set forth in McDonnell Douglas, which begins with proof of a pri-ma facie case, was “never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). The importance of the framework lies in “its recognition of the general principal that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on discriminatory criterion illegal under the Act.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977); see E.E.O.C. v. Metal Service Co., 892 F.2d 341, 348 (3d Cir.1990) (courts should be sensitive to myriad of ways such an inference can be created). Kraft’s claim that Weldon cannot establish a prima facie case is intertwined with its assertion that Weldon’s poor performance evaluations constitute a legitimate reason for the discharge. We have held that while objective job qualifications should be considered in evaluating the plaintiff’s prima facie case, the question of whether an employee possesses a subjective quality, such as leadership or management skill, is better left to the later stage of the McDonnell Douglas analysis. We noted that subjective evaluations “are more susceptible of abuse and more likely to mask pretext.” Fowle v. C & C Cola, 868 F.2d 59, 64-65 (3d Cir.1989). Thus, to deny the plaintiff an opportunity to move beyond the initial stage of establishing a prima facie case because he has failed to introduce evidence showing he possesses certain subjective qualities would improperly prevent the court from examining the criteria to determine whether their use was mere pretext. Id. at 65. In this case, Kraft does not contend that Weldon lacked the background qualifications for the position at the time he was hired. Moreover, Gier testified that Weldon had both the intelligence and the ability required for the position but lacked motivation. The negative evaluations Weldon received from Gier and Williams are couched largely in subjective terms. Gier found that Weldon lacked “a sense of priorities,” the “[djesire to increase knowledge of company policies and procedures,” and that he failed to put forth a “concerted effort” to broaden his skills. Williams indicated that Weldon had difficulty understanding and preparing the reports that were required of him, that he lacked initiative, and that he avoided active involvement in the day-to-day operations of the department. On the other hand, Gier’s evaluation that Weldon failed to meet performance goals in the areas of productivity, output, and efficiency is based on objective criteria. In this instance, however, it is unclear whether the goals constituted a standard of performance expected of all assistant supervisors or instead represented a subjective determination by Gier of the performance level Weldon had to achieve to be deemed a satisfactory assistant supervisor in that department. Indeed, there is no dispute that Gier was one of the most demanding supervisors at Kraft. We certainly do not question Kraft’s prerogative to set any standards it wishes for employee performance nor do we seek to substitute our view of what constitutes adequate performance. We simply decline to treat these subjective assessments as evidence that Weldon has failed to establish a ;prima facie case, thereby collapsing the entire analysis into a single initial step at which all issues are resolved. See Fowle, 868 F.2d at 64. Rather, we will consider the assessments in the context of Weldon’s charge that the poor evaluations he received were a pretext for racial discrimination and unworthy of credence. IV. Weldon contends that Kraft’s asserted nondiscriminatory reasons are pre-textual and that his termination was racially motivated. According to Weldon, his assignment to one of the toughest supervisors at Kraft, who allegedly had a history of difficulties with black trainees, and then to a supervisor who lacked experience both as a trainer and in dealing with black employees raises an inference that Kraft neither intended nor expected him to succeed in his position. Weldon contends that his discussions with and about other black employees show that his experience as a black trainee was not unique. Moreover, he argues that the statistical evidence regarding the involuntary termination of minority employees at Kraft supports an inference that Kraft’s asserted reasons are unworthy of credence. Finally, Weldon claims that Kraft would not have required medical documentation or strict adherence to the advance money policy from similarly situated white employees. Although we consider this a close case, we conclude that Weldon’s evidence is sufficient to create a genuine issue of fact and that the district court erred in granting summary judgment. If a factfinder were to credit Weldon’s testimony regarding the harshness of the treatment he and other blacks received as well as his view of the statistical evidence, it could conclude that the performance evaluations were unfair and that Kraft’s explanations were pretex-tual. Rather than determining whether the evidence could support an inference of pretext, however, we believe the district court weighed the competing testimony and resolved factual issues that should have been left for another day. For example, the district court balanced Weldon’s testimony that certain black employees had been the target of Gier’s racism, against the contrary testimony of Gier and Cliffe, and concluded that “the record establishes that Gier ... did not have specific problems with black employees.” Although Weldon was extraordinarily tardy in providing his supervisors with complete medical documentation, he did present certificates covering approximately one-third of his absence prior to his termination. In view of this, the district court decided that Weldon’s proof had “not overcome defendant’s assertion that his failure to provide medical documentation ... was a legitimate, nondiscriminatory reason for his termination.” We recognize that the district court, sitting as a trier of fact, ultimately may decide that Weldon failed to meet his burden of showing by a preponderance of the evidence that Kraft’s explanations were pre-textual. At this stage, however, the only question before the district court was whether the evidence established a reasonable inference that Kraft did not discharge Weldon for the reasons asserted. See Sorba, 821 F.2d at 205. We cannot agree that Weldon’s uncorroborated deposition testimony is insufficient to create a genuine issue on the question of discriminatory intent. As we have stated in the past, there is no rule of law that the testimony of a discrimination plaintiff, standing alone, can never make out a case of discrimination that could withstand a summary judgment motion. Jackson v. University of Pittsburgh, 826 F.2d 230, 236 (3d Cir.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 732, 98 L.Ed.2d 680 (1988); see Graham v. F.B. Leopold Co., Inc., 779 F.2d 170, 173 (3d Cir.1985) (plaintiff’s deposition testimony could suffice to create genuine dispute about material issue). Discriminatory conduct is often subtle and difficult to prove. For this reason, our legal system permits discrimination plaintiffs to prove their cases with circumstantial evidence. Jackson, 826 F.2d at 236. This record contains circumstantial evidence from which a reasonable trier of fact could find that Kraft’s claims are pretextual and that racial animus played a role in Weldon’s discharge. The issue of pretext in this case turns largely on the credibility of the competing testimony. As such, it is inappropriate to decide on a motion for summary judgment. Id. V. The district court dismissed Weldon’s ERISA claim after finding that Weldon had failed to exhaust his administrative remedies. Except in limited circumstances that are not alleged here, a federal court will not entertain an ERISA claim unless the plaintiff has exhausted the remedies available under the plan. Wolf v. National Shopmen Pension Fund, 728 F.2d 182, 185 (3d Cir.1984). Under the Kraft plan, a claimant may appeal an adverse determination to the plan administrator within ninety days of receiving notice of denial of benefits. It is undisputed that Weldon failed to appeal the denial of his claim to the administrator. He argues, however, that he should be deemed to have exhausted his administrative remedies because his attorney was in contact with Kraft’s in-house counsel regarding the claim. As the district court correctly noted, however, Weldon has not provided us with any information regarding the substance of those contacts. On the undisputed facts before us, we must conclude that Weldon has failed to present any evidence that he has exhausted his administrative remedies and thus Kraft is entitled to summary judgment on this issue. The district court also dismissed Weldon’s claim under WPCL, Pa.Stat.Ann. tit. 43, § 260.1 et seq. (Purdon 1964 & Supp. 1989). Weldon does not contest the district court ruling that ERISA preempts WPCL with respect to his disability benefits claim. He contends, however, that a genuine factual dispute exists with respect to his claim for wages lost during his suspension. WPCL provides in part: Whenever an employer separates an employe from the payroll, or whenever an employee quits or resigns his employment, the wages or compensation earned shall become due and payable not later than the next regular payday of his employer on which such wages would otherwise be due and payable. Pa.Stat.Ann. tit. 43, § 260.5 (Purdon Supp.1989). WPCL does not create a right to compensation. Rather, it provides a statutory remedy when the employer breaches a contractual obligation to pay earned wages. The contract between the parties governs in determining whether specific wages are earned. Sendi v. NCR Comten, Inc., 619 F.Supp. 1577, 1579 (E.D.Pa.1985), aff'd, 800 F.2d 1138 (3d Cir.1986); Laborers Combined Funds v. Mattei, 359 Pa.Super. 399, 403, 518 A.2d 1296, 1298 (1986). Kraft contends that it is company policy not to pay wages during suspension and that only employees who are reinstated become eligible for back pay. Moreover, Kraft states that Weldon performed no services for the company during his suspension that would entitle him to wages. Weldon claims that as a salaried employee, he was eligible to receive wages during his suspension. In support of his position, Weldon cites a statement by Richard Cliffe indicating that Cliffe could not recall a specific case involving the suspension without pay of a white salaried employee. Cliffe explained, however, that he had no specific recollection “[bjecause terminating a management employee is ... a rare case.... But the same procedure would have been utilized.” There is no evidence to indicate that Kraft had an express contractual obligation to pay wages to a salaried employee during a suspension that ultimately resulted in termination. Nor do we believe that a reasonable trier of fact could infer from Cliffe’s statement the existence of an implied contractual obligation. Therefore, we find that Kraft is entitled to summary judgment on this issue. VI. For the foregoing reasons, we will affirm the dismissal of Weldon’s claims under ERISA and WPCL. Because we find that the evidence creates a genuine issue as to whether Weldon’s termination was racially motivated, we will reverse the dismissal of the discrimination claims and remand to the district court. Each side to bear its own costs. . Weldon's complaint also contained a Fourteenth Amendment claim against Kraft. The district court held that Weldon could not proceed on that claim because Kraft is a private corporation and Weldon made no showing of state action. . There is some discrepancy in the record over whether the $110 check presented by Weldon was a traveler’s check, a certified check, or a money order. The parties appear to agree, however, that it was not a personal check. . Faced only with the question of whether Weldon’s offer of proof on the issue of intentional discrimination is sufficient to withstand summary judgment, we need not decide whether Weldon has stated a claim cognizable under § 1981, as explained by the Supreme Court in Patterson v. McLean Credit Union, — U.S. -, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). . In light of our decision that Weldon's evidence is sufficient to withstand summary judgment under the McDonnell Douglas framework, we need not decide whether the evidence is suffi-dent to withstand a similar motion as a "mixed motive" case under the framework established in Price Waterhouse v. Hopkins, — U.S. -, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
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. Francis E. JACKSON, Appellant, v. UNITED STATES of America, Appellee. No. 18144. United States Court of Appeals District of Columbia Circuit. Argued Jan. 14, 1964. Decided Feb. 20, 1964. Mr. James E. Hogan, Washington, D. C. (appointed by this court), for appellant. Mr. Gerald A. Messerman, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Harold H. Titus, Jr., Asst. U. S. Attys., were on the brief, for appellee. Before Bazelon, Chief Judge, and Bastian and Burger, Circuit Judges. PER CURIAM. Appellant was convicted on three counts of violation of narcotics laws; three concurrent sentences were imposed. At trial the principal defense was that appellant was not guilty by reason of insanity. Various errors in the conduct of the trial are asserted and we find that they are without merit save as to one contention, i. e., the claim of undue intervention in the trial by the judge in a manner prejudicial to the defendant. The appellant’s brief of necessity takes utterances and questions of the trial judge out of context and there is no way to evaluate his claims of undue and prejudicial intervention except by an examination of the entire transcript of the trial, which we have done, in order to be sure that we “guard against the magnification on appeal of instances which were of little importance in their setting.” Even a close examination of a transcript cannot, as everyone experienced in litigation knows, truly reflect the trial itself. Sometimes a trial judge intercedes because of seeming inadequacy of examination or cross-examination of witnesses by counsel; sometimes to draw more information from reluctant witnesses or experts who are either inarticulate, less than candid or not adequately interrogated. This is permissible, of course. At best it is difficult on appellate review to appraise the impact of intervention by the presiding judge and determine whether his participation exceeded permissible bounds. However this transcript reveals what seem to us an inordinate number of instances of extensive ■examination and cross-examination of witnesses and comments by the court. Fairly read, no single comment or question, or line of questioning, can be regarded as prejudicial, but the cumulative impact of all the trial judge's activist participation could well have been prejudicial at the very least and could have led jurors to give undue weight to points treated by the judge. In this case the responses elicited by the judge were largely adverse to appellant. In itself this does not render the judicial intervention impermissible but in it were the ■seeds of tilting the balance against the .accused and casting the judge, in the eyes of some jurors, on the side of the prosecution. This risk is always present when a presiding judge undertakes ■to interrogate witnesses at length. If a trial judge has definite ideas as to what lines of inquiry ought to be pursued, he is free to call both counsel to the bench, •or in chambers and suggest what he ■wants done. That the judge may be able to examine witnesses more skillfully or •develop a point in less time than counsel requires does not ordinarily justify such participation. That is not his function. There are and can be no hard and fast rules as to how much questioning a judge may or should engage in because what would be appropriate in one setting would be otherwise in another. •One obvious general rule is that, since the judge is something more than a moderator, but always a neutral umpire, the interrogation of witnesses is ordinarily best left to counsel, who presumably have an intimate familiarity with the case. A presiding judge can control the trial without participating actively in examination of witnesses. In a non-jury case, as in an appellate court, needless or active interrogation by judges, although not always helpful, is rarely prejudicial. But in a jury case, a trial judge should exercise restraint and caution because of the possible prejudicial .consequences of the presider’s intervention. Cf. United States v. Paroutian, 299 F.2d 486 (2d Cir. 1962). On the whole record we cannot say, with that degree of assurance required in a criminal case, that the activities of the trial judge may not have prejudiced the defendant, notwithstanding the strong evidence presented against him. Accordingly there must be a new trial. Reversed and remanded for a new trial. . Glasser v. United States, 315 U.S. 60, 83, 62 S.Ct. 457, 471, 86 L.Ed. 680 (1942). 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_district	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". DIMENSTEIN v. NEW ENGLAND MUT. LIFE INS. CO. OF BOSTON, MASS. No. 10600. Circuit Court of Appeals, Fifth Circuit. Nov. 3, 1943. Rehearing Denied Dee. 6, 1943. James L. Permutt, Griffith R. Harsh Jr., and Francis H. Hare, all of Birmingham, Ala., for appellant. Borden Burr, of Birmingham, Ala., for appellee. Before SIBLEY, McCORD, and WALLER, Circuit Judges. WALLER, Circuit Judge. Finding that the policy had lapsed for nonpayment of premiums, the court below directed a verdict against the appellant, in her suit on an $8,000 policy of insurance on the life of her husband wherein appellant was the beneficiary. The policy was issued on April 13, 1938, in consideration of the payment of an annual premium of $204 with the privilege of paying the premiums in quarterly installments plus six per cent, interest in lieu of the lump sum payment. Assured elected to pay on the quarterly basis and managed, by the use of the soliciting agent’s credit and the use of a $37.44 dividend, to pay the first five quarterly installments. He failed, however, to pay the quarterly installments that fell due on July 13, October 13, and January 13, in the second year of the policy, and died on January 23 of that year. Grace periods of thirty-one days were permitted for the payment of any premium, quarterly or otherwise. His death was within the grace period permitted under the January 13, 1940, quarterly installment. If kept in force for two years the policy would have had a cash or loan value of $152.48 Failure to pay any premium or premium note when due or during the period of grace caused the policy to cease to be in force and have no value except as provided by the nonforfeiture and loan provisions. It was provided that upon the payment of the second annual premium, each year thereafter, while the policy was in force, the policy would be' credited with such share of the surplus as was apportioned by the company, and which surplus, at the option of the holder of the policy, should be payable: (A) in cash; (B) applied in reduction of premiums; (C) used to purchase a paid-up participating addition; or (D) left with the company to accumulate with interest; and that if no election was made the share for that year would be held by the company as provided in option (D), but that if any premium remained unpaid the company would apply the accumulated surplus, if sufficient to make said payment in full, to the payment of unpaid premiums. But no surplus had been apportioned by the company during the second year of the policy in question. The following provisions in the policy relating to premium loans produce the main controversy: “After one full annual premium has been paid, and while this Policy is in force, upon receipt of the loan agreement, duly executed, pledging the Policy, and until otherwise directed, the amount of any premium which thereafter becomes due and remains unpaid will be charged against the Policy as a premium loan, with interest at six per cent per annum, provided the entire indebtedness on the Policy with interest shall not exceed the cash value.” The policy also provided that after two full annual premiums had been paid, the holder, within thirty-one days after default in payment of a subsequent premium, could elect, in writing: (a) to surrender the policy and receive in cash the value of the .policy, less any indebtedness; (b) to take participating paid-up insurance for such amount as the cash value of the policy would purchase as a net single premium; (3) to have the policy continued as paid-up insurance for such term as the then cash value of the policy, less any indebtedness, would purchase as a net single premium. None of these last three options were available to the insured because the second annual premium had not been paid in full. The policy had not been in force two years at the time of the default in the payment of the premiums, nor at the time of his death. However, appellant contends that under the premium loan provisions quoted above the policy had a value which was sufficient to carry the policy until after the date of the death of the insured, or that it was at least sufficient to cover the second and third quarterly premiums of July 13 and October 13 respectively, and that the insured died within the grace period of the fourth quarter-annual premium of the second year. This contention is predicated upon the premium loan provisions of the policy and the offer of the company to make a premium loan of $143 to the assured for the purpose of paying the remainder of the second annual premium, provided the assured would pay in cash the sum of $8.84. The total of the premium loan note of $143, plus $8.84, added to the $52.16 paid for the first quarterly premium of that year, totaled $204, the amount of the annuial premium. The assured did not execute the loan agreement nor return the policy nor pay the $8.84, nor did he ever pay any of the quarterly premiums of the second year except the first. Appellant insists that- assured had the right to pay the premiums quarterly and that the proposal by the company to make the loan and to exact the $8.84 in cash would have required the assured to pay the premium annually, contrary to the contract, and that the assured had the right to take advantage of the loan provisions for the payment of any premium, quarterly or otherwise, notwithstanding the provision of the policy, relative to premium loans, that the indebtedness should not exceed the cash value of the policy. It is evident that the policy had no cash surrender value, or all-purpose loan value (as distinguished from premium loan value), at the time of the failure to pay the July quarterly premium, for the policy had been in effect only eighteen months, instead of the requisite two years. It appears from the testimony of an actuary produced by the plaintiff that prior to the expiration of two years such a policy would have an interpolated, or reserve, value and that at the end of the first premium year the policy would have a reserve, or interpolated, value of $11.75 per thousand, and that such value would increase at the rate of approximately $3 per quarter during the second year. We need not concern ourselves as to the total interpolated value at the end of the second year because that time was not reached. The interpolated, or reserve, value at the time the sixth quarterly premium became due, ac-c rding to- the actuary, was approximately $17.85 per thousand, making a total of $142.00 of reserve, or interpolated, value for the $8,000 policy, in which situation the additional sum of $8.84, which the company provided should be added to this interpolated value, would have totaled the balance of the entire premium for the second year of $204. The proposal of the company to make the premium loan was satisfactory to the insured and an appropriate premium note was forwarded to him, but he never executed it, nor sent in the policy, nor paid the $8.84. Doubtless, he would have had the right to have borrowed, for premium purposes only, any portion of the $142 of reserve, or interpolated, value at the time that his July 13 premium was due, but he made no such request. Instead he instructed the local or soliciting agent to go ahead and effectuate the proposal to lend him a sufficient amount, when $8.84 in cash was paid by him, to pay the premium for the balance of the year. Not having requested of the company or its agent a loan sufficient only to pay the sixth quarterly premium, but on the contrary having acquiesced in the proposal made by the company, which he failed to comply with, it seems clear that he elected to allow his policy to lapse. The premium loan provision was not automatic. The reserve, or interpolated value, was not available for any loan, except to pay premiums, nor did it have a cash surrender value, and it was available for premium payments only upon receipt of the loan agreement, duly executed, pledging the policy, provided the loan did not exceed the cash value of the policy. In view of the proposal of the company to make the premium loan when the policy had no actual cash value or cash surrender value until after the policy had been in force for two full years, and in view of the undisputed testimony of the actuary that the policy did have a reserve, or interpolated, value, it would appear that the use of the term “cash value” in the premium loan provision of the policy was inaccurate, or else the offer of the company to make the loan when the policy had no cash value was a concession by the company beyond the express provisions of the policy. The policy does not read: “Provided the indebtedness shall not exceed the cash value or ‘reserve, or interpolated, value’ ”. Under the strict wording of the policy the insured was not entitled to demand a premium loan prior to the end of two full years because the policy had no cash value prior to that time, but only a reserve, or interpolated, value. The loan which the company offered to make would have been based on the reserve, instead of the cash, value of the policy, and if the loan had been made the indebtedness would have exceeded the cash value as that term is elsewhere used throughout the policy. However, this is unimportant because the assured did not avail himself of the offer made nor did he request the right to execute a premium note only for the amount of the quarterly premium then due. No other conclusion can be reached but that he abandoned his policy. The lower court was without error in directing a verdict for the defendant and the judgment 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_procedur	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. UNITED STATES of America, Appellee, v. Larry Nelson BODE, Appellant. No. 81-2045. United States Court of Appeals, Eighth Circuit. Submitted Jan. 13, 1982. Decided Jan. 25, 1982. Raymond C. Conrad, Federal Public Defender, W. D. Missouri, Kansas City, Mo., for .appellant. Robert G. Ulrich, U.S. Atty., Mark J. Zimmermann, Asst. U.S. Atty., Kansas City, Mo., for appellee. Before HEANEY, BRIGHT and STEPHENSON, Circuit Judges. PER CURIAM. Larry Nelson Bode was charged in an eleven-count indictment with making fraudulent claims against the United States for income tax refunds in violation of 18 U.S.C. § 287. He was convicted on all eleven counts. He was sentenced to consecutive five-year prison terms on Counts 1 and 2, a five-year term on Counts 3-11 to run concurrently with the sentences imposed on Counts 1 and 2, and, on Count 11, a fiveyeár probation term to commence at the end of his incarceration. Bode appeals his conviction, arguing that: (1) the district court erred in refusing to suppress a witness’s in-court identification of the defendant, and (2) the court erred in admitting Internal Revenue Service transcripts of the accounts in which the fraudulent refund claims at issue were made. After carefully reviewing the record and the briefs on appeal, we conclude that these contentions are without merit. The district court conducted a hearing to consider Bode’s motion to suppress the testimony of William McGeehan, a post office employee who identified the defendant as the person who had leased the post office box to which the fraudulent refunds were to be sent. The defendant contended that McGeehan’s identification was based on an allegedly impermissible photo display conducted by an IRS agent two months before trial. In ruling on the motion, the court expressly considered those factors which the Supreme Court established in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), as indicative of the reliability vel non of a witness’s identification. The court overruled the suppression motion, finding that McGeehan’s identification of the defendant was independently made and was “not brought about by any improper display of photograph or photographs.” This conclusion is well supported by the record. It is also clear from the record that the district court did not abuse its discretion by admitting the IRS account transcripts. This evidence was neither irrelevant nor highly prejudicial. Affirmed. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_respond1_3_3	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 16175. United States Court of Appeals Seventh Circuit. March 26, 1969. Lee C. Shaw, Walter P. Loomis, Jr., Chicago, 111., George G. Gallantz, New York City, for petitioner. Marcel Mallet-Prevost, Asst. Gen. Counsel, Richard S. Rodin, Warren M. Davison, Attys., N.L.R.B., Washington, D. C., for respondent. Before CASTLE, Chief Judge, MAJOR and HASTINGS, Senior Circuit Judges, and KILEY, SWYGERT, FAIRCHILD, CUMMINGS and KERNER, Circuit Judges, KILEY, Circuit Judge. The National Labor Relations Board found that State Farm Mutual Automobile Insurance Company violated Sections 8(a) (5) and (1) of the National Labor Relations Act by refusing to bargain with the Insurance Workers International Union, AFL-CIO, which had been certified to represent a unit of employees. The Board ordered the Company to bargain with the Union. The Company petitioned this court to review and set aside the Board’s order, and the Board cross-petitioned for enforcement of its order. A panel of this court, in an opinion (one judge dissenting) issued August 8, 1968, set aside the Board’s order. Subsequently, this court granted the Board’s petition for rehearing en banc. We now enforce the Board’s order. Petitioner is a multi-state insurance company. All of its business decisions, such as job benefits, holidays, overtime, sick leave, recruitment and salary ranges are made at its home office in Blooming-ton, Illinois. Petitioner is divided into twenty-one regions across the country. The Northeastern Region, pertinent to this ease, comprises New York, New Jersey, and the New England states, and its headquarters is at Wayne, New Jersey. It is headed by a regional vice-president assisted by two deputy regional vice-presidents. The vice-president directs all operations in the region, including recruitment, interviewing job applicants, promotions, and salaries. The Northeastern Region is divided into four divisions, including two automobile insurance divisions, one covering New York and the other New Jersey and New England. A division manager, who is responsible for overseeing the claim processing operations of the company, heads each division. He also makes salary and employment recommendations to the regional vice-president. The New York automobile division is divided into four districts, each headed by a division claims superintendent, who is in charge of about five offices and supervises about thirty-five adjusters. The responsibilities of a divisional claims superintendent include: supervising the instruction of claims personnel under his jurisdiction; training the claims supervisory personnel; examining claims files; recommending company action concerning promotion, salary changes, hiring, and disciplinary action; interviewing and initially screening applicants for claims agent jobs; administering the over-all day to day claims handling within his jurisdiction; and visiting the claims field offices. The proceedings before us began with a representation petition filed by the Union. The Company moved to dismiss the petition on the ground of inappropriateness of the unit. The Board rejected both the Union’s contention that the smallest appropriate unit was a single claims office, and the Company’s contention that the smallest appropriate unit was the Northeastern Region, or, alternatively, the New York State unit. The Board designated “the divisional unit of employees supervised by a divisional superintendent” as the smallest appropriate unit. Thereafter the Board conducted representational elections in two claims districts in New York. In the unit before us, the Union won the election and was certified as the bargaining representative. The Union then requested the Company to bargain. The Company refused on the ground that the unit found by the Board was inappropriate. The Union filed an unfair labor practice charge alleging an unlawful refusal to bargain. The General Counsel issued a complaint, and the Company’s response admitted the refusal to bargain, reasserting the inappropriateness of the unit. The Board granted the General Counsel’s “Motion for Summary Judgment and Judgment on the Pleadings,” over the Company’s objection that it was entitled to a further hearing on the appropriate unit and issued the order which is now before this court. The Company contends that the order should be set aside because the unit determination is unreasonable and the Board’s refusal to hold the further hearing requested by the Company violated Section 10(b) of the National Labor Relations Act. The Board has a wide discretion in designating appropriate units. It is not required by the Act to choose the most appropriate unit, but only to choose an appropriate unit within the range of several appropriate units in a given factual situation. The Board may look to various factors to determine what units are appropriate. The company organization, the numerical size of the unit, the geographical distribution of the employees in the unit, the type of work done by the employees in the unit, the responsibilities of the unit supervisor, the organizability of the unit, and the extent to which the unit has already been organized, are all revelant considerations and no one factor is determinative. NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965). Section 9(b) itself states that the unit shall be chosen “in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act.” Where the facts underlying a Board determination of an appropriate unit are not contested, the Board’s determination will not be overturned unless it is arbitrary or unreasonable. May Dept. Stores Co. v. NLRB, 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145 (1945); NLRB v. Krieger-Ragsdale & Co., 379 F.2d 517 (7th Cir. 1967), cert. denied, 389 U.S. 1041, 88 S.Ct. 780, 19 L.Ed.2d 831 (1968). The unit chosen by the Board in this case contains about thirty-five employees who do similar work under similar conditions; geographically the unit, on the average, covers one-fourth of New York State; the Union has successfully organized one of the units; the leader of the unit chosen is the Company official who directly controls and supervises the day to day work of the employees; under the Company’s organization the next larger unit would, on the average, cover a multi-state area; the smallest unit under the Company’s organization which has a leader, the regional vice-president, with any formal control over employee policy would cover all of New York, New Jersey, and New England; and the smallest unit where there is substantial control over employee policy, the Bloomington Home Office, is nation-wide. Under these circumstances, the reasonableness of the Board’s determination is clear. The fact that the next largest unit available under the Company’s organizational structure covers a multi-state area is of particular significance. In 1944 the Board adopted a policy of refusing to authorize an appropriate unit in the insurance industry which was less than state-wide, on the theory that this would promote the organization of employees by unions. Metropolitan Life Ins. Co., 56 N.L.R.B. 1635 (1944). The Board, however, subsequently abandoned this rule because As a practical matter * * * such state-wide or company-wide organization has not materialized, and the result of the rule has been to arrest the organizational development of insurance agents to an extent certainly never contemplated by the Act, or for that matter by the Board that decided the Metropolitan Life case. Quaker City Life Ins. Co., 134 N.L.R.B. 960, 962 (1961). Adoption of the Company’s position here would prevent the Board from choosing a less than state-wide unit for bargaining and would therefore “arrest the organizational development of insurance agents” in highly centralized insurance companies and would prevent the employees from enjoying “the fullest freedom in exercising the rights guaranteed by” the National Labor Relations Act, 29 U.S.C. 159(b). The Quaker City rationale also refutes the Company’s alternative contention that the most appropriate unit covers all of New York State. Finally, the Board’s decision is consistent with other Board decisions that the courts have previously approved. NLRB v. Quaker City Life Ins. Co., 319 F.2d 690 (4th Cir. 1963); Singer Sewing Machine Co. v. NLRB, 329 F.2d 200, 12 A.L.R.3d 775 (4th Cir. 1964). In Quaker City the duties of the head of the unit chosen as appropriate by the Board were described by the court as follows: The District Manager generally supervises the day to day operations of the office, operating under general rules set by the home office. He recommends the hiring, firing, and disciplining of the office employees and he may, under certain conditions, fire summarily. He trains the local employees, and, within limits set out by the company, makes recommendations as to promotions, increases and allowances. That authority does not significantly differ from the authority of the divisional claims superintendent in the case before us, and in Quaker City the Board’s choice of an appropriate bargaining unit was approved. Moreover, in Quaker City the district manager had only six employees under him, while the supervisor in this case has approximately five times that number. The head of the unit in Singer also had substantially the same power as the divisional claims superintendent here, and in that case the Board’s unit determination was also approved. The Company relies mainly on NLRB v. Frisch’s Big Boy Ill-Mar. Inc., 356 F.2d 895 (7th Cir. 1966), and on NLRB v. Purity Food Stores, Inc., 376 F.2d 497 (1st Cir.), cert. denied, 389 U.S. 959, 88 S.Ct. 337, 19 L.Ed.2d 368 (1967). In Frisch this court rejected the Board’s determination that a single retail store was an appropriate unit, where the Company had ten stores in Indianapolis, Indiana. The store managers there had considerably less authority than the district managers here. Yet the court recognized that an eleventh store located sixty miles away in Muncie, Indiana, might constitute, a separate bargaining unit. In Purity the First Circuit rejected the Board’s determination that a single retail outlet constituted an appropriate unit where the Company operated a chain of seven outlets, all located within thirty miles of the Company’s central office. The court stated that Purity was “a small, compact, homogeneous, centralized and integrated operation” and that “the ‘independence’ of the stores * * * amounts to no more than a few miles of physical separation.” Neither of these cases is controlling or persuasive on the facts here. The Board states that in each similar case since Quaker City it has relied primarily upon the “autonomous” character of the “single district office” and the “over-all immediate supervision” exercised by the district office manager. In each ease, on different facts, the district office head may possess varying degrees of autonomy depending upon the degree to which he may exercise significant managerial power over the employees he superintends. We think the Board could find sufficient autonomy and supervisory authority here to justify its choice of an appropriate unit. The Board did not abuse its discretion in entering the order before us, and the order does not offend the Act’s limitation that designation of an appropriate unit must not be controlled by the extent to which the unit has already been organized. NLRB v. Quaker City Life Ins. Co., 319 F.2d 690 (4th Cir. 1963). We conclude that we should not set aside the Board’s order on the ground that the unit chosen was inappropriate. In opposing the General Counsel’s motion for summary judgment, the Company moved for an order transferring the ease to a Trial Examiner for further hearing on the unit issue. The Board denied the motion, finding that no issue had been presented requiring a hearing. In the Board’s view, the factual issues concerning the appropriateness of the unit were resolved in the representation proceeding, and absent newly discovered or previously unavailable evidence, the issues need not be relitigated. The Company insisted that since the Board, in the representation proceeding, chose as appropriate a unit advocated by neither party, the Company did not present evidence in its possession with respect to that unit. The Company claimed it was entitled to an opportunity to present this evidence in the unfair labor practice proceedings. The Board denied the further hearing on two grounds: It stated that the evidence sought to be introduced was available at the representation proceeding, and the Company’s failure to produce it at that time precluded introduction of the evidence on the same issue in the unfair labor practice proceeding. The Board also concluded that the proffered evidence was merely cumulative to evidence heard in the representation proceeding. We agree with the Board. NLRB v. International Die Sinker’s Conference, 402 F.2d 407, 411 (7th Cir. 1968). A representation proceeding is not adversary in the usual sense, but is designed primarily to enable the Board to fulfill its statutory function with respect to the certification of bargaining representatives. Part of the function is, of course, determination of an appropriate bargaining unit. When that determination is an issue in a lepresentation proceeding, all persons concerned have the duty to produce all information relevant to the issue. The Board’s determination is not confined to the units suggested by the parties, but it may choose any unit which it reasonably deems appropriate. Local 620, Allied Industrial Workers of America v. NLRB, 375 F.2d 707, 710-11 (6th Cir. 1967); S. D. Warren Co. v. NLRB, 353 F.2d 494, 499 (1st Cir. 1965). The issue of an appropriate unit was the subject of an extensive hearing in the representation proceeding. There was substantial evidence introduced of the entire organizational structure of the Company. Having failed to produce relevant evidence it possessed in that proceeding, the Company had no right to another opportunity to present evidence at the expense of the exercise of the employees’ collective bargaining rights. Rockwell Mfg. Co., Kearney Div., v. NLRB, 330 F.2d 795, 797-798 (7th Cir. 1964). The evidence proffered in the unfair labor practice hearing was intended to show that the unit chosen in the representation hearing was subject to change in the geographical area supervised by divisional claims superintendents. But in the representation proceeding it was specifically found that “The number of these superintendents in each division is subject to change according to the volume of business and geographic distribution of field claims offices in the division; * * * ” The Board, therefore, did not abuse its discretion in denying the motion for a further hearing, as no useful purpose would have been served by receiving the Company’s evidence. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 157-158, 61 S.Ct. 908, 85 L.Ed. 1251 (1940). Having concluded that none of the grounds urged by the Company for setting aside the order is valid, the Board’s order will be enforced. MAJOR, Senior Circuit Judge, dissents, with which HASTINGS, Senior Circuit Judge, concurs. I feel obliged to dissent from the majority opinion rendered on the Board’s petition for rehearing en banc which allows the Board’s petition for enforcement, thereby nullifying the August 8, 1968 panel decision of this court. This dissent is directed squarely at the decision under review, with the findings and conclusions contained therein. I am not concerned with the many cases which stand for the well recognized proposition that our scope of review is limited and that the Board has a wide discretion in determining an appropriate bargaining unit. Such cases are not controlling here because the Board’s order, in my view, is based upon a fallacious premise and its decision is clearly erroneous, arbitrary and capricious. Furthermore, I am not impressed with the Board’s two-fold argument in support of its unit determination, apparently embraced by the majority, (1) that it is in accordance with its policy, and (2) that owing to the circumstances of the case it would have great difficulty in determining a more appropriate unit. I realize the Board’s policy is entitled to serious consideration but I disagree with the idea that it can be utilized as a substitute for facts, which it appears the Board would have us do. Likewise, the fact that the Board might have difficulty in determining some other unit as appropriate furnishes no justification for its determination that the unit under consideration is appropriate. In the beginning it is well to keep in mind what the Board characterizes as the descending supervisory chain: (1) the company’s home office at Blooming-ton, Illinois; (2) its regional office at Wayne, N. J.; (3) its division managers; (4) its divisional claims superintendents, and (5) its claims superintendents. The functions of each link of this chain are described in the Board’s decision as follows: “National personnel policies are determined at the home office in Bloom-ington ; sick leave, group medical, life, and other insurance programs, vacations, credit unions, travel allowances, promotion procedures, and similar conditions and benefits of employment. These policies are effectively construed and implemented by the several regional offices. Against the background of policies and practices established by the home office, decisions as to the applicability of these policies and procedures to claim representatives are made by the regional supervisory authorities. Ultimately, most of the final decision-making authority in each Region is vested in the office of the Regional Vice-President. For instance, the Region makes annual reviews of the performance of each employee, for the purpose of determining whether he should be granted a salary increase (within a range predetermined by the home office). The Claim Superintendent will fill out a form to initiate such reviews, giving its comments and recommendations. The Divisional Superintendent will then make his recommendation in the portion of the form designed for his entry. Finally, the Division manager will add his recommendation, and the form will then be submitted to the office of the Regional Vice-President, where this official or his deputy will approve or disapprove the increase.” (Italics supplied.) It states: “Looking primarily to the autonomous character of the single district office petitioned for in Quaker City [134 N.L.R.B. 960], and the overall immediate supervision exercised by the district office manager, we concluded that a unit consisting of the employees in the district office was an appropriate bargaining unit. Since that case, we have found appropriate other single-office units which exhibited a similar degree of autonomy, and have also authorized groupings of single offices where considerations of geography or the employer’s administrative structure lent coherence to such multiple-office units.” (Italics supplied.) Then follows the heart of the decision: “The evidence of record in the case before us presents a significantly different picture of field operating procedure from that developed in the insurance agents cases cited above. It seems clear that the smallest component of the Employer’s business structure which may be said to be relatively autonomous in its operation is not the field claims office, but rather the divisional unit of employees supervised by a Divisional Superintendent. By virtue of the managerial authority reposed in the three Divisional Superintendents, who represent a supervisory focal point for their respective groups of 39, 32, and 29 claim representatives, these functionaries appear to exercise powers most closely analogous to those possessed by the district office managers in the earlier cases. A finding, therefore, that bargaining units could properly be demarcated by the supervisory jurisdiction of each Divisional Superintendent would be wholly in keeping with the principles applied in the insurance agents cases.” (Italics supplied.) Thus, the Board concedes that the operating procedure in this case “presents a significantly different picture” from that of the insurance agents cases upon which it relies, but nevertheless concludes that its unit determination “would be wholly in keeping with the principles” applied in such cases. Neither on brief nor in oral argument before this court did the Board criticize or take issue with a statement contained in our panel decision: “The Board’s reasoning rests upon two premises: (1) the unit determination was ‘relatively autonomous in its operation,’ and (2) ‘the managerial authority reposed in the three Divisional Superintendents.’ It is significant to note that the Board did not find that the unit was autonomous but only that it was ‘relatively’ so, without explanation as to why the qualifying word. Perhaps the explanation can be found in the dictionary, which defines ‘autonomous’ as ‘having the right or power of self-government; undertaken or carried on without outside control; existing or capable of existing independently.’ Webster’s Seventh New Collegiate Dictionary.” In my judgment, the record is devoid of any proof that the unit determined by the Board possessed autonomy, “relative autonomy” as found in its decision, or “substantial autonomy” as stated in its brief. On the contrary, the record clearly demonstrates that the unit determined was non-autonomous. The Board in its decision states that “sick leave, group medical, life and other insurance programs, vacations, credit unions, travel allowances, promotion procedures, similar conditions and benefits of employment” are established in the home office and “are effectively construed and implemented by the several regional offices.” The Board further found that “decisions as to the applicability of these policies and procedures” are “vested in the office of the Regional Vice President.” Further support for the view that the divisional claim superintendents were without managerial authority to resolve issues subject to collective bargaining is shown by a statement in the Board’s original brief: “Most of the final decision-making authority in each Region ultimately resides in the office of the regional vice president. Thus, for example, the Region annually reviews each claims representative’s performance for the purpose of determining whether he should be granted a salary increase (within a range established by the home office in Bloomington). The claim superintendent initiates such reviews by filling out a prescribed form, in which he includes comments and recommendations. In turn, the divisional claim superintendent will add his recommendation in the portion of the form designated for such use. Finally, the division manager will add his recommendation, and the form will then be submitted to the office of the regional vice president or his deputy will make the final decision.” (Italics supplied.) In short, the divisional claim superintendents were without authority to make any decisions on matters which might be involved in collective bargaining. On such matters they accepted recommendations from those below (claim superintendents) ; approved or disapproved and passed them on to those above (division managers), and received orders and directions from those above which they executed in an administrative but not in a managerial capacity. There are numerous court decisions which support the view that the autonomous nature of the unit determined and the managerial authority of the divisional claim superintendents, admittedly the basis for the Board’s decision, should be rejected. In N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., 356 F.2d 895, this court refused to enforce the Board’s order concerned with a single restaurant in an integrated chain because the unit designated was inappropriate. The main issue in the case was whether the unit determined was autonomous, as found by the Board. Relative to this issue we stated (page 896): “The only factual contention made by petitioner [the Board] which requires notice is that each restaurant has ‘autonomy’ because each restaurant manager has certain powers. However, the undisputed facts appearing in the record show that a common labor policy affecting all employees is formulated and administered by the president, as chief executive, and certain other officers of the corporations. Reporting to him are three area supervisors each of whom has a share of the Indianapolis restaurants to cover. These area supervisors visit the restaurants frequently.” (Italics supplied.) In deciding this issue we stated (page 897): “It is evident to us that the decisions left to the managers do not involve any significant element of judgment as to employment relations. * * * “It is obvious to us that none of the store managers will be deciding questions affecting the employees in the context of collective bargaining.” (Italics supplied.) The majority opinion, in the attempt to distinguish this case on its facts, states, “The store managers there had considerably less authority than the district managers here.” With this statement I disagree but, in any event, the pertinent point is the court’s reasoning and conclusion, which read as though written for this case. In N.L.R.B. v. Purity Food Stores, Inc., 376 F.2d 497, 501, the First Circuit cited with approval our opinion in Frisch’s and refused to enforce the Board’s order on the ground that its unit determination was inappropriate. The Board found a single supermarket to be an appropriate bargaining unit, based on the authority of the manager and the autonomy of the store. In rejecting the Board’s determination the court stated (page 500): “The Board rested its conclusion basically on lack of store-wide bargaining history and on its view that the Peabody store was so economically independent of the other retail stores and possessed such ‘significant autonomy’ within the respondent’s over-all operation that separation of that store from the others for purposes of collective bargaining would not obstruct centralized control and effective operation of the chain. We cannot agree.” (Italics supplied.) The Board in its brief, in support of the instant petition, states: “ * * * individual cases in which the courts of appeals have set aside such determinations as arbitrary or capricious may be regarded either as proper reversals of administrative action, under all the circumstances, or as aberrational abuses of judicial power.” In a footnote the Board states: “For purposes of the instant petition for rehearing, it is irrelevant whether the Court’s decision in N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., 356 F.2d 895 (1966) is regarded as the former or the latter.” While the Board does not state in which category it places this court, the implication is plain. Even so, our feelings are soothed by the opinion of the Fifth Circuit in N.L.R.B. v. Davis Cafeteria, Inc., 396 F.2d 18. In that case the court refused to enforce the Board’s order on the ground that the bargaining unit selected was inappropriate. Referring to Frisch’s and Purity, the court stated (page 20): “In view of the elucidating opinions in the Purity Foods case, in N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., supra, * * * it would serve no precedental value for us to repeat what we have previously said, or what the First and Seventh Circuits have already so well said. In the circumstances of this case, labor policy is centrally determined, and where local managers do not have authority to decide questions which would be subjects of collective bargaining, the two respondent cafeterias do not constitute an appropriate bargaining unit.” (Italics supplied.) Called to our attention subsequent to the instant hearing en banc is a decision of the Second Circuit in N.L.R.B. v. Solis Theatre Corp., and Interboro Circuit, Inc., 403 F.2d 381, decided November 14, 1968. In that case the court refused enforcement of the Board’s order on the ground that the Board improperly determined the bargaining unit. Concluding its statement of the facts, the court stated (page 383): “It appears, therefore, that instead of being in a decision making position, the ‘manager’ has little or no authority on labor policy but is subject to detailed instructions from the central office. “The Courts of Appeals have been reluctant to sanction bargaining units whose managers lack the authority to resolve issues which would be the subject of collective bargaining.” Following this statement, the court cites with approval our opinion in Frisch’s, the First Circuit opinion in Purity, and the Fifth Circuit opinion in Dams. I would deny enforcement of the Board’s order for reasons so clearly revealed in its decision. . 29 U.S.C. §160 sjí $ 5}C 8}í }¡í The person so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint. * * * * * . In Singer the Board’s order was denied enforcement on other grounds. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant? A. Food & Drug Administration B. General Services Administration C. Government Accounting Office (GAO) D. Health Care Financing Administration E. Immigration & Naturalization Service (includes border patrol) F. Internal Revenue Service (IRS) G. Interstate Commerce Commission H. Merit Systems Protection Board I. National Credit Union Association J. National Labor Relations Board K. Nuclear Regulatory Commission Answer:
songer_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. UNITED STATES of America, Appellee, v. Wayland WHITE, Jr., Appellant. No. 8488. United States Court of Appeals Fourth Circuit. Argued June 6, 1962. Decided June 8, 1962. Robert S. Cahoon, Greensboro, N. C., for appellant. R. Roy Mitchell, Jr., Asst. U. S. Atty. (William H. Murdock, U. S. Atty., on brief), for appellee. Before HAYNSWORTH and J. SPENCER BELL, Circuit Judges, and CRAVEN, District Judge. PER CURIAM. This is a companion case to United States v. Copeland, 4 Cir., 295 F.2d 635. Wayland White, Jr., the defendant here, was jointly indicted with Copeland and others for an alleged conspiracy to violate Internal Revenue Laws relating to whisky. White could not be present when his codefendants were tried and convicted. Later, he was tried separately. Testimony was then introduced, which is summarized in our opinion in Copeland. The principal witness for the prosecution testified that he purchased whisky from White, that White was present during another transaction alleged to have been in furtherance of the conspiracy, that White, himself, negotiated with the witness for the sale and delivery of whisky and the procurement of jars and sugar. This witness also testified that White told him some of the details of the conspiracy. White now seeks a reversal of his conviction upon the ground that the court erroneously received in evidence statements of certain of the alleged co-conspirators, showing the conspiracy and White’s participation. He particularly objects to some of the statements received in evidence before direct evidence of White’s participation in the conspiracy had been received. These are identically the same contentions raised by White’s co-conspirator, Copeland, and which we have fully considered on Copeland’s appeal from his conviction. For the reasons stated in United States v. Copeland, the judgment of conviction is affirmed. Affirmed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_genapel1	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. UNITED STATES of America, Appellee, v. Fernando RODRIGUEZ, Defendant-Appellant. No. 345, Docket 89-1313. United States Court of Appeals, Second Circuit. Argued Nov. 14, 1989. Decided Dec. 26, 1989. Jo Ann Harris, New York City, for defendant-appellant. Peter K. Vigeland, New York City, Asst. U.S. Atty. for the S.D.N.Y. (Benito Romano, U.S. Atty. for the S.D.N.Y., Kerri Martin Bartlett, Asst. U.S. Atty., of counsel), for appellee. Before LUMBARD, FEINBERG and MESKILL, Circuit Judges. FEINBERG, Circuit Judge: Defendant Fernando Rodriguez appeals from a judgment of conviction, dated June 15, 1989 in the United States District Court for the Southern District of New York, Thomas P. Griesa, J. Rodriguez pled guilty to possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841, and was sentenced to ten years in prison. Rodriguez appeals, contending, among other things, that the government’s notice of appeal in an earlier phase of this case was untimely. According to Rodriguez, this prevented the district court from imposing the sentence he now claims is a nullity. We affirm. Background To understand Rodriguez’s argument on appeal, it is necessary to know the timing of certain events in the district court. Thus, we spell out in detail the complicated procedural history of this case. Following his arrest, Rodriguez engaged in plea negotiations with the government. Rodriguez’s offense occurred in April 1988, well after November 1, 1987, the effective date of the new Sentencing Guidelines under the Sentencing Reform Act of 1984, which we shall refer to collectively as “the new law.” The district judge, however, had held the Sentencing Guidelines unconstitutional, and it became clear that he intended to sentence Rodriguez under the statutes in effect prior to the new law, which we shall call “the old law.” A key difference between the old law and the new law concerned the rate at which a prisoner can earn “good time,” i.e., credit against the length of the sentence by good conduct. Under the old law, a person serving a 10-year sentence could earn good time at the rate of 10 days a month, or 120 days a year, for a total of 1,200 days over 10 years. Under the new law, see 18 U.S.C. § 3624(b), a prisoner could earn no good time until after he had served a year, and could earn no more than 54 days of good time a year, for a total of 486 days over 10 years. This disparity was obviously significant for Rodriguez. Before he formally pled guilty, he moved in the district court for a ruling that he would be sentenced under the good time provisions of the old law. The basis of the motion was that the Sentencing Guidelines, which the judge had already held unconstitutional, were not sev-erable from other provisions of the Sentencing Reform Act, including the new, restrictive good time provisions. The government opposed this position, and asked the judge to rule that the good time provisions of the new law applied even if he declined to sentence Rodriguez under the Sentencing Guidelines. In a written opinion, dated October 11, 1988, the judge held that the Sentencing Guidelines and the good time provisions of the Sentencing Reform Act were non-sever-able and that Rodriguez would be sentenced “in all respects” under the old law. Thereafter, on October 26, 1988, Rodriguez pled guilty to possession, with intent to distribute, of 14 kilograms of cocaine the preceding April. On January 10, 1989, the judge sentenced Rodriguez to ten years in prison, which was the minimum mandatory sentence under the old law for the offense. The judgment of conviction was actually entered in the criminal docket on January 13, 1989, and we shall refer to the judgment hereafter by that date. On January 18, 1989, the United States Supreme Court decided Mistretta v. United States, — U.S. -, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), which held the Sentencing Guidelines constitutional. Shortly thereafter, on February 9, 1989, the government moved in the district court for reconsideration of Rodriguez’s sentence under the old law in light of Mistretta. On March 6, 1989, however — before the district court had ruled on the government’s motion for reconsideration — the government sent a letter to the district court withdrawing the motion. The government stated that it had “upon review, determined that the better course is to appeal the sentence and obtain a remand.” It asked the district court, under Federal Rule of Appellate Procedure (FRAP) 4(b), to extend its time for appeal, presumably under the provision that allows an extension for a period “not to exceed 30 days,” upon a showing of “excusable neglect.” The district court granted the motion and extended the time to appeal to March 15, 1989. On the same day, it endorsed the government’s motion for reconsideration with the words “[mjotion denied as withdrawn. So ordered.” Also on the same day, the government filed its notice of appeal. In April 1989, while its appeal was pending, the government moved in this court for remand to the district court for resen-tencing under the new law in light of Mis-tretta. We granted the motion on consent in May 1988. After remand, on June 15, 1989, the district court resentenced Rodriguez, this time under the new law, and again sentenced him to ten years in prison. It also made clear that the restrictive good time provisions of the new law should apply. This appeal followed. Discussion Rodriguez raises several contentions on appeal, only one of which merits full discussion. He points out that the government’s March 15, 1989 notice of appeal from the district court’s first sentence, i.e., under the old law, was filed 61 days after entry of the judgment of conviction in the criminal docket of the district court on January 13, 1989. Because FRAP 4(b) only authorizes a district court to extend the government’s time for appeal to a total of 60 days after the judgment of conviction is entered “in the criminal docket,” Rodriguez argues that the government’s notice of appeal was untimely. Thus, he contends that this court had no power to remand for resentencing, and that the district court could not impose a second sentence on June 15, 1989 under the new law, including the new law’s restrictive good time provisions. Accordingly, appellant argues, the June 15, 1989 sentence is a nullity and the January 13, 1989 sentence under the old law remains in effect. The key issue in appellant’s argument is whether the government’s March 15, 1989 notice of appeal from the January 13 sentence was timely. We believe that it was. The FRAP 4(b) clock stops when a party files a motion for reconsideration; that is, a timely motion for reconsideration renders the judgment non-final for appeal purposes, United States v. Dieter, 429 U.S. 6, 8, 97 S.Ct. 18, 19, 50 L.Ed.2d 8 (1976) (per curiam), and thus tolls the time for appeal under FRAP 4(b). See United States v. Lefler, 880 F.2d 233, 235 (9th Cir.1989). Once the district court denies the motion, the clock is reset to zero, and the full time for appeal “begins to run anew from the date of the entry of the order disposing of the motion.” 9 Moore's Federal Practice ¶ 204.17, at 4-137 (2d ed. 1989) (footnote omitted). “Accordingly, the government has thirty days from the denial of its motion for reconsideration to file a notice of appeal.” United States v. Shaffer, 789 F.2d 682, 686 n. 3 (9th Cir.1986). It is conceded that the government had at least 30 days to appeal from the January 13, 1989 judgment of conviction. Within that period—on February 9, 1989—the government moved for reconsideration. Under the cases just cited, this stopped the running of the time period clock. On March 15, the district court endorsed the motion for reconsideration of the January 13 sentence with the words “[mjotion denied as withdrawn.” It seems reasonable to construe this as a denial of the government’s motion. Under Dieter, the finality of the judgment was thus suspended until March 15. See Dieter, 429 U.S. at 8, 97 S.Ct. at 19. The full 30-day clock started running again on March 15, and the government’s notice of appeal filed the same day was obviously timely. However, the government candidly concedes that it withdrew its motion for reconsideration in its letter of March 6, before the district court had ruled, and does not make the argument set forth above. It claims instead that if a motion for reconsideration that is ultimately denied stops the running of the FRAP 4(b) appeal period until the motion is decided, a motion that is ultimately withdrawn has the same effect — at least until the day it is withdrawn. The question whether a withdrawn motion for reconsideration tolls the time for appeal under FRAP 4(b) seems to be one of first impression. The government does not cite us to any case in which this court — or, indeed, any court — has considered the issue. Nor has our research revealed any such decision. Nevertheless, we agree with the government that the filing of the motion for reconsideration stayed the running of the time for appeal under FRAP 4(b), even though the motion was withdrawn on March 6. We need not decide whether the time period was tolled only until March 6, when the motion was withdrawn, or until March 15, when the district court acknowledged that the motion was withdrawn and denied it on that basis; in either event, the subsequent notice of appeal was timely, because it was filed within 30 days of either of these two dates as required by FRAP 4(b). The government’s argument seems sound, at least in the absence of evidence that the government filed and then withdrew its motion for reconsideration in bad faith, as part of some sort of hardball litigation strategy, or that the government was guilty of neglect. If that were the case, we might well rule differently. But here, the government was understandably unsure how to proceed after the Supreme Court’s decision in Mistretta upholding the Guidelines. Although the government initially decided to move in the district court for reconsideration of Rodriguez’s sentence, the Justice Department later advised that the government should instead proceed via appeal. As the district court put it, “all that was involved here was a consideration of what is the appropriate procedural path to take. I mean, they were not sitting around with the ... thing lying in a drawer being neglected.” We note also that at least two other reported decisions have concluded that withdrawn motions in analogous situations toll the time for appeal. See Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1442 (9th Cir.1986) (FRAP 4(a)(4) appeal period tolled by timely motion to vacate or stay judgment under FRCP 59, even though motion withdrawn before district court ruled on the motion); United States v. McGrath, 613 F.2d 361, 366 (2d Cir.1979) (notice of appeal that is withdrawn still tolls time period under Speedy Trial Act), cert, denied sub nom. Buckle v. United States, 446 U.S. 967, 100 S.Ct. 2946, 64 L.Ed.2d 827 (1980). Thus, we conclude that a timely motion staying the finality of a judgment will toll the period for appeal at least until the motion is withdrawn, and probably until the district court takes some official action to acknowledge the withdrawal of the motion. Accordingly, the government’s March 15, 1989 notice of appeal was timely, and the district court properly resentenced Rodriguez under the new law, including the new good time provisions. Rodriguez also argues that the resentence, which exposed him to harsher good time provisions, was invalid because it subjected him to double jeopardy and violated the doctrine of separation of powers. We do not agree. Rodriguez’s double jeopardy argument is foreclosed by United States v. DiFrancesco, 449 U.S. 117, 136, 101 S.Ct. 426, 437, 66 L.Ed.2d 328 (1980). The separation of powers argument is similarly without merit. The judge did not direct the executive branch (the Bureau of Prisons) to determine good time in a particular way — the Sentencing Reform Act does that. The judge merely ruled, correctly, that the new law applies to the sentence. Judgment 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_appel2_8_2	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "miscellaneous". Your task is to determine which of the following categories best describes the litigant. Liberi P. BERARDI et al., Plaintiffs-Appellants, v. The PURE OIL CORPORATION et al., Defendants-Appellees. No. 71-1611. United States Court of Appeals, Sixth Circuit. March 14, 1972. Jack Schulman, Cleveland, Ohio, for plaintiff s-appellants; C. D. Lambros, Cleveland, Ohio, on brief. Dennis D. Grant, Columbus, Ohio, for defendants-appellees; Bricker, Evatt, Barton & Eckler, Columbus, Ohio, John H. Gherlein and Daniel W. Hammer, Cleveland, Ohio, on brief. Before CLARK, Associate Justice, and McCREE and MILLER, Circuit Judges. Tlie Honorable Tom O. Clark, Associate Justice of the United States Supreme Court, Retired, sitting by designation. PER CURIAM. Appellants filed a complaint in the District Court that purported to assert three “causes of action.” The court dismissed the complaint for failure to state a claim upon which relief could be granted but allowed appellants leave to amend to cure defects that the court specifically noted. Appellants then filed an amended complaint, which the court again dismissed for the reason that appellants had not complied sufficiently with the court’s orders and thus had not stated claims upon which relief could be granted. Pursuant to the court’s directions, appellants filed a second amended complaint. This time the court found that appellants’ first “cause of action” did not state a claim upon which relief could be granted and that appellants’ second “cause of action” was defective in the manner twice previously specified. Accordingly, the court dismissed the complaint with prejudice for failure to state claims upon which relief could be granted and for failure to comply with the court’s prior orders. This appeal followed. Appellants’ counsel has conceded in argument upon this appeal that the first “cause of action” did not state a claim upon which relief could be granted, and we therefore affirm the judgment of the District Court with respect to this part of the complaint. With respect to the remainder of the complaint, we are hard-pressed to find an abuse of discretion in the court’s dismissal, and do so only because we believe that the interests of justice require that appellants be afforded one more opportunity to conform their pleadings to the court’s orders. Therefore, with respect to the first “cause of action” stated in the complaint, the judgment of the District Court is affirmed, and with respect to the remainder of the complaint, the judgment of the District Court is reversed and the case is remanded with directions to allow appellants leave to amend their complaint to conform specifically to the previous orders of the District Court and to such further requirements as the court in its discretion may direct. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "miscellaneous". Which of the following categories best describes the litigant? A. fiduciary, executor, or trustee B. other C. nature of the litigant not ascertained Answer:
songer_civproc1	52	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited. Everett R. LYON, Dennis E. Fisher, Richard A. Lamphere, Edward W. Don, Russell J. Fitz, Robert R. Padgett and Clayton C. Manning, Appellants, v. Hal FARRIER, Crispus C. Nix, Paul Hedgepeth, Larry Moline, Correctional Officers Rooney, Woodall, Pyley, Ware, Gutman, Sliffer, Clostermery, Robinson, Leach, Ossion, McMaines, Fisher, Blythe, and Eight Unknown Corrections Officers, all individually and in their official capacities, Appellees. No. 83-2062. United States Court of Appeals, Eighth Circuit. Submitted March 14, 1984. Decided March 20, 1984. Thomas J. Miller, Atty. Gen. of Iowa, Gordon E. Allen, Sp. Asst. Atty. Gen., Layne M. Lindebak Asst. Atty. Gen., Des Moines, Iowa, for appellees. Everett R. Lyon, Dennis E. Fisher, pro se. Before HENLEY, Senior Circuit Judge, and JOHN R. GIBSON and FAGG, Circuit Judges. PER CURIAM. • Appellants are protective custody inmates of the Iowa State Penitentiary (ISP) who brought a civil rights action under 42 U.S.C. § 1983. Appellants alleged that prison officials unconstitutionally deprived them of their personal property. The district court dismissed appellants’ claims and this appeal followed. For reversal appellants argue that the district court erred (1) in finding that they were not denied equal protection with respect to female and general population inmates; (2) in holding that they were not deprived of property without due process of law; (3) in holding that appellant Fitz had not shown that destruction of a painting possessed by him was without due process; and (4) in determining that the uncorroborated testimony of appellant Padgett was insufficient to find a denial of his right of access to the courts. We affirm. On September 2, 1981, a riot occurred at ISP. For health and security reasons, the warden issued a directive on September 28, 1981, limiting the amount and types of personal property inmates could keep in their cells. During the riot, prison officials often had a difficult time distinguishing inmates from other persons because inmates were allowed to wear a wide variety of street clothing. The warden’s directive severely restricted the clothing inmates were permitted to possess and wear. In addition, fire officials had inspected the prison and determined that the large amounts of property inmates were storing in their cells created a fire hazard. The warden’s property reduction order was in direct response to these problems. To implement this new policy the warden ordered a series of shakedown searches between September 1981 and January 1982. Inmates whose property was seized could direct that it be mailed home, donated to charity, or destroyed. Appellants were in protective custody at the time of these shakedowns. Although prison officials removed numerous items of clothing, grooming implements, appliances, and hobbycraft materials from appellants’ cells, these articles were forwarded to appellants’ relatives, returned, or stored in the prison’s property room. A painting in the cell of appellant Fitz, which belonged to a former inmate, was removed and destroyed as contraband pursuant to a prison regulation forbidding inmates to possess or store another’s property. Prison officials also allegedly removed from the cell of appellant Padgett some of his legal materials pertaining to Veterans’ Administration and Social Security proceedings. Appellants contend that rules pertaining to their possession of personal property are different from the rules applicable to prisoners in the general population at ISP and to both male and female inmates at other penal institutions in Iowa, and that these differences violate equal protection guarantees. We begin our analysis by noting that “[pjrison administrators * * * should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979), quoted in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 872, 74 L.Ed.2d 675 (1983). To succeed on an equal protection claim the appellants were required to show that they received treatment which was invidiously dissimilar to that received by other inmates. Peck v. Hoff, 660 F.2d 371, 373 (8th Cir.1981); Burns v. Swenson, 430 F.2d 771, 778 (8th Cir.1970), cert. denied, 404 U.S. 1062, 92 S.Ct. 743, 30 L.Ed.2d 751 (1972). Appellants have not shown that the claimed differences in treatment were on account of sex or any other basis that might require heightened scrutiny. In view of the special status of protective custody inmates vis-a-vis other inmates incarcerated at ISP and at other institutions, and in the wake of the prison riot, prison officials were well within their authority in limiting the amounts and types of personal property possessed by appellants. Appellants claim that the warden’s property reduction order deprived them of property without due process of law. In Bell v. Wolfish, supra, 441 U.S. at 554, 99 S.Ct. at 1882, the Supreme Court stated that the “due process rights of prisoners and pretrial detainees [against the deprivation of their property without due process of law] are not absolute; they are subject to reasonable limitation or retraction in light of the legitimate security concerns of the institution.” (Emphasis added.) The property reduction order in the present case was adopted both to reduce a fire hazard caused by the abundance of personal property prisoners were keeping in their cells and to make prisoners easily distinguishable from other persons in the event of a disturbance. The property reduction policy was a measured response to serious health and security problems, and “substitution of judicial judgment for that of the expert prison administrators in matters such as this is inappropriate.” Id. We find without merit the argument that destruction of a painting possessed by appellant Fitz constituted a deprivation of property without due process of law. The rules of the prison did not allow Fitz to possess the painting since it belonged to someone else. Because the property was contraband, Fitz cannot seriously argue that he had a protected property interest in it. Therefore, the destruction of the painting did not implicate any due process concerns. See Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 2708-09, 33 L.Ed.2d 548 (1972). Finally, appellant Padgett testified at the evidentiary hearing that prison officials confiscated from his cell legal materials regarding Veterans’ Administration and Social Security proceedings. The district court accepted the magistrate’s determination that Padgett’s uncorroborated testimony was insufficient to support a finding of a violation of his right of access to the courts. This factual finding is governed by the clearly erroneous standard of review on appeal. See Fed.R.Civ.P. 52(a). Appellants have presented no evidence indicating that this finding was clearly erroneous. Accordingly, the judgment of the district court is affirmed. Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number. Answer:
songer_appfiduc	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Gloria THERIAULT et al., Plaintiffs-Appellants, v. David E. SMITH, Defendant-Appellee. No. 75-1221. United States Court of Appeals, First Circuit. Submitted Sept. 12, 1975. Decided Sept. 30, 1975. Susan Calkins, Robert Edmond Mittel and Sidney St. F. Thaxter, Portland, Me., on brief for plaintiffs-appellants. Joseph M. Kozak, Asst. Atty. Gen., Augusta, Me., on brief for defendant-appellee. Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges. McENTEE, Circuit Judge. This is an interlocutory appeal, certified on May 23, 1975, by the district court under 28 U.S.C. § 1292(b) (1970). At issue is the district court’s order of May 6, 1975, vacating a consent decree to which defendant had agreed on July 29, 1974. In an opinion dated July 30, 1975, we denied plaintiff’s motion for a stay pending appeal. Theriault v. Smith, 519 F.2d 809 (1st Cir. 1975). To decide the stay motion, we analyzed the merits in some detail so as to be able to evaluate plaintiffs’ likelihood of prevailing. Careful consideration of plaintiffs’ arguments on appeal has not led us to any different view of the merits than we then expressed. We believe that the district court acted properly, in accordance with Fed.R. Civ.P. 60(b)(5), in vacating the consent decree in this ease. The Supreme Court’s decision in Burns v. Alcala, 420 U.S. 575, 95 S.Ct. 1180, 43 L.Ed.2d 469 (1975), construing 42 U.S.C. § 606(a), represented a fundamental change in the legal predicates of the consent decree. This is arguably the kind of situation in which relief should be available under Rule 60(b)(5). Defendant sought prospective relief only, and he did so only as a result of an important decision of the Supreme Court. It may well be unreasonable to require defendant, for the indefinite future, to abide by a consent decree based upon an interpretation of law that has been rendered incorrect by a subsequent Supreme Court decision. As Mr. Justice Cardozo stated in the leading case of United States v. Swift & Co.: “A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need.” 286 U.S. 106, 114, 52 S.Ct. 460, 462 (1932). See also System Federation No. 91 v. Wright, 364 U.S. 642, 646-48, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961); 11 C. Wright & A. Miller, Federal Practice & Procedure, § 2863 (1973). Any hesitation we might have in applying Swift to the case at bar is removed by the wording of the consent decree itself. That decree contained the undertaking that “Defendant beginning August 1, 1974 will, pursuant to 42 U.S.C. § 602(a)(10) and 42 U.S.C. § 606(a), grant AFDC benefits . to otherwise eligible women on behalf of their unborn children.” As the Court made clear in Alcala, the referenced provisions do not authorize such benefits. Defendant is therefore precluded from granting such benefits under their authority. We find that, in vacating the consent decree, the district court exercised sound discretion, comporting with established principles of equity and the Federal Rules of Civil Procedure. Accordingly, its decision is affirmed. . For a summary of the factual and legal issues involved in this case, see Theriault v. Smith, 519 F.2d 809 (1st Cir. 1975). . The first item in the consent decree indicates that defendant agreed to grant the disputed AFDC benefits on the basis of his understanding of 42 U.S.C. § 606(a): 1. Defendant beginning August 1, 1974 will, pursuant to 42 U.S.C. § 602(a)(10) and 42 U.S.C. § 606(a), grant AFDC benefits or additional AFDC benefits to otherwise eligible pregnant women (whose pregnancies have been medically determined) on behalf of their unborn children. At the time of the consent decree, our decision in Carver v. Hooker, 501 F.2d 1244 (1974) was controlling as to AFDC benefits for otherwise qualified mothers of unborn children. That decision was subsequently vácated by the Supreme Court, 420 U.S. 1000 (1975), and directly contradicted by Burns v. Alcala, supra. . Rule 60(b) reads, in pertinent part: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable' that the judgment should have prospective application; . . As we held in Lubben v. Selective Service Board No. 27, 453 F.2d 645 (1st Cir. 1972), the final clause of Rule 60(b)(5) should be read in light of the decision in United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932). The criteria to guide the court’s discretion in determining whether to grant prospective relief from a consent decree or injunction are contained in this crucial sentence from Mr. Justice Cardozo’s opinion in Swift: “Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned.” Id. at 119, 52 S.Ct. at 464. Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number. Answer:
sc_issuearea	D	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. LORETTO v. TELEPROMPTER MANHATTAN CATV CORP. et al. No. 81-244. Argued March 30, 1982 Decided June 30, 1982 Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Powell, Rehnquist, Stevens, and O’Connor, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Brennan and White, JJ., joined, post, p. 442. Michael S. Gruen argued the cause and filed briefs for appellant. Erwin N. Griswold argued the cause for appellees. With him on the brief for appellees Teleprompter Manhattan CATV Corp. et al. was Michael Lesch. Frederick A. O. Schwarz, Jr., and Leonard Koemer filed a brief for appellee City of New York. Michael D. Botwin and James J. Bierbower filed a brief for the National Satellite Cable Association et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed by Robert Abrams, Attorney General, pro se, Shirley Adelson Siegel, Solicitor General, and Lawrence J. Logan, Assistant Attorney General, for the Attorney General of New York; by Brenda L. Fox, James H. Ewalt, and Robert St. John Roper for the National Cable Television Association, Inc.; and by Stuart Robinowitz and Richard A. Rosen for the New York State Cable Television Association. Justice Marshall delivered the opinion of the Court. This case presents the question whether a minor but permanent physical occupation of an owner’s property authorized by government constitutes a “taking” of property for which just compensation is due under the Fifth and Fourteenth Amendments of the Constitution. New York law provides that a landlord must permit a cable television company to install its cable facilities upon his property. N. Y. Exec. Law §828(1) (McKinney Supp. 1981-1982). In this case, the cable installation occupied portions of appellant’s roof and the side of her building. The New York Court of Appeals ruled that this appropriation does not amount to a taking. 53 N. Y. 2d 124, 423 N. E. 2d 320 (1981). Because we conclude that such a physical occupation of property is a taking, we reverse. I Appellant Jean Loretto purchased a five-story apartment building located at 303 West 105th Street, New York City, in 1971. The previous owner had granted appellees Teleprompter Corp. and Teleprompter Manhattan CATV (collectively Teleprompter) permission to install a cable on the building and the exclusive privilege of furnishing cable television (CATV) services to the tenants. The New York Court of Appeals described the installation as follows: “On June 1, 1970 TelePrompter installed a cable slightly less than one-half inch in diameter and of approximately 30 feet in length along the length of the building about 18 inches above the roof top, and directional taps, approximately 4 inches by 4 inches by 4 inches, on the front and rear of the roof. By June 8, 1970 the cable had been extended another 4 to 6 feet and cable had been run from the directional taps to the adjoining building at 305 West 105th Street.” Id., at 135, 423 N. E. 2d, at 324. Teleprompter also installed two large silver boxes along the roof cables. The cables are attached by screws or nails penetrating the masonry at approximately two-foot intervals, and other equipment is installed by bolts. Initially, Teleprompter’s roof cables did not service appellant’s building. They were part of what could be described as a cable “highway” circumnavigating the city block, with service cables periodically dropped over the front or back of a building in which a tenant desired service. Crucial to such a network is the use of so-called “crossovers” — cable lines extending from one building to another in order to reach a new group of tenants. Two years after appellant purchased the building, Teleprompter connected a “noncrossover” line— i. e., one that provided CATV service to appellant’s own tenants — by dropping a line to the first floor down the front of appellant’s building. Prior to 1973, Teleprompter routinely obtained authorization for its installations from property owners along the cable’s route, compensating the owners at the standard rate of 5% of the gross revenues that Teleprompter realized from the particular property. To facilitate tenant access to CATV, the State of New York enacted § 828 of the Executive Law, effective January 1, 1973. Section 828 provides that a landlord may not “interfere with the installation of cable television facilities upon his property or premises,” and may not demand payment from any tenant for permitting CATV, or demand payment from any CATV company “in excess of any amount which the [State Commission on Cable Television] shall, by regulation, determine to be reasonable.” The landlord may, however, require the CATV company or the tenant to bear the cost of installation and to indemnify for any damage caused by the installation. Pursuant to § 828(l)(b), the State Commission has ruled that a one-time $1 payment is the normal fee to which a landlord is entitled. In the Matter of Implementation of Section 828 of the Executive Law, No. 90004, Statement of General Policy (New York State Commission on Cable Television, Jan. 15,1976) (Statement of General Policy), App. 51-52; Clarification of General Policy (Aug. 27, 1976), App. 68-69. The Commission ruled that this nominal fee, which the Commission concluded was equivalent to what the landlord would receive if the property were condemned pursuant to New York’s Transportation Corporations Law, satisfied constitutional requirements “in the absence of a special showing of greater damages attributable to the taking.” Statement of General Policy, App. 52. Appellant did not discover the existence of the cable until after she had purchased the building. She brought a class action against Teleprompter in 1976 on behalf of all owners of real property in the State on which Teleprompter has placed CATV components, alleging that Teleprompter’s installation was a trespass and, insofar as it relied on § 828, a taking without just compensation. She requested damages and injunctive relief. Appellee City of New York, which has granted Teleprompter an exclusive franchise to provide CATV within certain areas of Manhattan, intervened. The Supreme Court, Special Term, granted summary judgment to Teleprompter and the city, upholding the constitutionality of §828 in both crossover and noncrossover situations. 98 Misc. 2d 944, 415 N. Y. S. 2d 180 (1979). The Appellate Division affirmed without opinion. 73 App. Div. 2d 849, 422 N. Y. S. 2d 550 (1979). On appeal, the Court of Appeals, over dissent, upheld the statute. 53 N. Y. 2d 124, 423 N. E. 2d 320 (1981). The court concluded that the law requires the landlord to allow both crossover and noncrossover installations but permits him to request payment from the CATV company under § 828(l)(b), at a level determined by the State Cable Commission, only for noncrossovers. The court then ruled that the law serves a legitimate police power purpose — eliminating landlord fees and conditions that inhibit the development of CATV, which has important educational and community benefits. Rejecting the argument that a physical occupation authorized by government is necessarily a taking, the court stated that the regulation does not have an excessive economic impact upon appellant when measured against her aggregate property rights, and that it does not interfere with any reasonable investment-backed expectations. Accordingly, the court held that § 828 does not work a taking of appellant’s property. Chief Judge Cooke dissented, reasoning that the physical appropriation of a portion of appellant’s property is a taking without regard to the balancing analysis courts ordinarily employ in evaluating whether a regulation is a taking. In light of its holding, the Court of Appeals had no occasion to determine whether the $1 fee ordinarily awarded for a noncrossover installation was adequate compensation for the taking. Judge Gabrielli, concurring, agreed with the dissent that the law works a taking but concluded that the $1 presumptive award, together with the procedures permitting a landlord to demonstrate a greater entitlement, affords just compensation. We noted probable jurisdiction. 454 U. S. 938 (1981). II The Court of Appeals determined that §828 serves the legitimate public purpose of “rapid development of and maximum penetration by a means of communication which has important educational and community aspects,” 53 N. Y. 2d, at 143-144, 423 N. E. 2d, at 329, and thus is within the State’s police power. We have no reason to question that determination. It is a separate question, however, whether an otherwise valid regulation so frustrates property rights that compensation must be paid. See Penn Central Transporta tion Co. v. New York City, 438 U. S. 104, 127-128 (1978); Delaware, L. & W. R. Co. v. Morristown, 276 U. S. 182, 193 (1928). We conclude that a permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve. Our constitutional history confirms the rule, recent cases do not question it, and the purposes of the Takings Clause compel its retention. A In Penn Central Transportation Co. v. New York City, supra, the Court surveyed some of the general principles governing the Takings Clause. The Court noted that no “set formula” existed to determine, in all cases, whether compensation is constitutionally due for a government restriction of property. Ordinarily, the Court must engage in “essentially ad hoc, factual inquiries.” Id., at 124. But the inquiry is not standardless. The economic impact of the regulation, especially the degree of interference with investment-backed expectations, is of particular significance. “So, too, is the character of the governmental action. A ‘taking’ may more readily be found when the interference with property can be characterized as a physical invasion by government, than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.” Ibid, (citation omitted). As Penn Central affirms, the Court has often upheld substantial regulation of an owner’s use of his own property where deemed necessary to promote the public interest. At the same time, we have long considered a physical intrusion by government to be a property restriction of an unusually serious character for purposes of the Takings Clause. Our cases further establish that when the physical intrusion reaches the extreme form of a permanent physical occupation, a taking has occurred. In such a case, “the character of the government action” not only is an important factor in resolving whether the action works a taking but also is determinative. When faced with a constitutional challenge to a permanent physical occupation of real property, this Court has invariably found a taking. As early as 1872, in Pumpelly v. Green Bay Co., 13 Wall. 166, this Court held that the defendant’s construction, pursuant to state authority, of a dam which permanently flooded plaintiff’s property constituted a taking. A unanimous Court stated, without qualification, that “where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution.” Id., at 181. Seven years later, the Court reemphasized the importance of a physical occupation by distinguishing a regulation that merely restricted the use of private property. In Northern Transportation Co. v. Chicago, 99 U. S. 635 (1879), the Court held that the city’s construction of a temporary dam in a river to permit construction of a tunnel was not a taking, even though the plaintiffs were thereby denied access to their premises, because the obstruction only impaired the use of plaintiffs’ property. The Court distinguished earlier cases in which permanent flooding of private property was regarded as a taking, e. g., Pumpelly, supra, as involving “a physical invasion of the real estate of the private owner, and a practical ouster of his possession.” In this case, by contrast, “[n]o entry was made upon the plaintiffs’ lot.” 99 U. S., at 642. Since these early cases, this Court has consistently distinguished between flooding cases involving a permanent physical occupation, on the one hand, and cases involving a more temporary invasion, or government action outside the owner’s property that causes consequential damages within, on the other. A taking has always been found only in the former situation. See United States v. Lynah, 188 U. S. 445, 468-470 (1903); Bedford v. United States, 192 U. S. 217, 225 (1904); United States v. Cress, 243 U. S. 316, 327-328 (1917); Sanguinetti v. United States, 264 U. S. 146, 149 (1924) (to be a taking, flooding must “constitute an actual, permanent invasion of the land, amounting to an appropriation of, and not merely an injury to, the property”); United States v. Kansas City Life Ins. Co., 339 U. S. 799, 809-810 (1950). In St. Louis v. Western Union Telegraph Co., 148 U. S. 92 (1893), the Court applied the principles enunciated in Pumpelly to a situation closely analogous to the one presented today. In that case, the Court held that the city of St. Louis could exact reasonable compensation for a telegraph company’s placement of telegraph poles on the city’s public streets. The Court reasoned: “The use which the [company] makes of the streets is an exclusive and permanent one, and not one temporary, shifting and in common with the general public. The ordinary traveler, whether on foot or in a vehicle, passes to and fro along the streets, and his use and occupation thereof are temporary and shifting. The space he occupies one moment he abandons the next to be occupied by any other traveller. . . . But the use made by the telegraph company is, in respect to so much of the space as it occupies with its poles, permanent and exclusive. It as effectually and permanently dispossesses the general public as if it had destroyed that amount of ground. Whatever benefit the public may receive in the way of transportation of messages, that space is, so far as respects its actual use for purposes of highway and personal travel, wholly lost to the public. . . . “. . . It matters not for what that exclusive appropriation is taken, whether for steam railroads or street railroads, telegraphs or telephones, the state may if it chooses exact from the party or corporation given such exclusive use pecuniary compensation to the general public for being deprived of the common use of the portion thus appropriated.” Id., at 98-99,101-102 (emphasis added). Similarly, in Western Union Telegraph Co. v. Pennsylvania R. Co., 195 U. S. 540 (1904), a telegraph company constructed and operated telegraph lines over a railroad’s right of way. In holding that federal law did not grant the company the right of eminent domain or the right to operate the lines absent the railroad’s consent, the Court assumed that the invasion of the telephone lines would be a compensable taking. Id., at 570 (the right-of-way “cannot be appropriated in whole or in part except upon the payment of compensation”). Later cases, relying on the character of a physical occupation, clearly establish that permanent occupations of land by such installations as telegraph and telephone lines, rails, and underground pipes or wires are takings even if they occupy only relatively insubstantial amounts of space and do not seriously interfere with the landowner’s use of the rest of his land. See, e. g., Lovett v. West Va. Central Gas Co., 65 W. Va. 739, 65 S. E. 196 (1909); Southwestern Bell Telephone Co. v. Webb, 393 S. W. 2d 117, 121 (Mo. App. 1965). Cf. Portsmouth Harbor Land & Hotel Co. v. United States, 260 U. S. 327 (1922). See generally 2 J. Sackman, Nichols’ Law of Eminent Domain § 6.21 (rev. 3d ed. 1980). More recent cases confirm the distinction between a permanent physical occupation, a physical invasion short of an occupation, and a regulation that merely restricts the use of property. In United States v. Causby, 328 U. S. 256 (1946), the Court ruled that frequent flights immediately above a landowner’s property constituted a taking, comparing such overflights to the quintessential form of a taking: “If, by reason of the frequency and altitude of the flights, respondents could not use this land for any purpose, their loss would be complete. It would be as complete as if the United States had entered upon the surface of the land and taken exclusive possession of it.” Id., at 261 (footnote omitted). As the Court further explained, “We would not doubt that, if the United States erected an elevated railway over respondents’ land at the precise altitude where its planes now fly, there would be a partial taking, even though none of the supports of the structure rested on the land. The reason is that there would be an intrusion so immediate and direct as to subtract from the owner’s full enjoyment of the property and to limit his exploitation of it.” Id., at 264 — 265. The Court concluded that the damages to the respondents “were not merely consequential. They were the product of a direct invasion of respondents’ domain.” Id., at 265-266. See also Griggs v. Allegheny County, 369 U. S. 84 (1962). Two wartime takings cases are also instructive. In United States v. Pewee Coal Co., 341 U. S. 114 (1951), the Court unanimously held that the Government’s seizure and direction of operation of a coal mine to prevent a national strike of coal miners constituted a taking, though members of the Court differed over which losses suffered during the period of Government control were compensable. The plurality had little difficulty concluding that because there had been an “actual taking of possession and control,” the taking was as clear as if the Government held full title and ownership. Id., at 116 (plurality opinion of Black, J., with whom Frankfurter, Douglas, and Jackson, JJ., joined; no other Justice challenged this portion of the opinion). In United States v. Central Eureka Mining Co., 357 U. S. 155 (1958), by contrast, the Court found no taking where the Government had issued a wartime order requiring nonessential gold mines to cease operations for the purpose of conserving equipment and manpower for use in mines more essential to the war effort. Over dissenting Justice Harlan’s complaint that “as a practical matter the Order led to consequences no different from those that would have followed the temporary acquisition of physical possession of these mines by the United States,” id., at 181, the Court reasoned that “the Government did not occupy, use, or in any manner take physical possession of the gold mines or of the equipment connected with them.” Id., at 165-166. The Court concluded that the temporary though severe restriction on use of the mines was justified by the exigency of war. Cf. YMCA v. United States, 395 U. S. 85, 92 (1969) (“Ordinarily, of course, government occupation of private property deprives the private owner of his use of the property, and it is this deprivation for which the Constitution requires compensation”). Although this Court’s most recent cases have not addressed the precise issue before us, they have emphasized that physical invasion cases are special and have not repudiated the rule that any permanent physical occupation is a taking. The cases state or imply that a physical invasion is subject to a balancing process, but they do not suggest that a permanent physical occupation would ever be exempt from the Takings Clause. Penn Central Transportation Co. v. New York City, as noted above, contains one of the most complete discussions of the Takings Clause. The Court explained that resolving whether public action works a taking is ordinarily an ad hoc inquiry in which several factors are particularly significant— the economic impact of the regulation, the extent to which it interferes with investment-backed expectations, and the character of the governmental action. 438 U. S., at 124. The opinion does not repudiate the rule that a permanent physical occupation is a government action of such a unique character that it is a taking without regard to other factors that a court might ordinarily examine. In Kaiser Aetna v. United States, 444 U. S. 164 (1979), the Court held that the Government’s imposition of a navigational servitude requiring public access to a pond was a taking where the landowner had reasonably relied on Government consent in connecting the pond to navigable water. The Court emphasized that the servitude took the landowner’s right to exclude, “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Id., at 176. The Court explained: “This is not a case in which the Government is exercising its regulatory power in a manner that will cause an insubstantial devaluation of petitioner’s private property; rather, the imposition of the navigational servitude in this context will result in an actual physical invasion of the privately owned marina. . . . And even if the Government physically invades only an easement in property, it must nonetheless pay compensation. See United States v. Causby, 328 U. S. 256, 265 (1946); Portsmouth Co. v. United States, 260 U. S. 327 (1922).Id., at 180 (emphasis added). Although the easement of passage, not being a permanent occupation of land, was not considered a taking per se, Kaiser Aetna reemphasizes that a physical invasion is a government intrusion of an unusually serious character. Another recent case underscores the constitutional distinction between a permanent occupation and a temporary physical invasion. In PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980), the Court upheld a state constitutional requirement that shopping center owners permit individuals to exercise free speech and petition rights on their property, to which they had already invited the general public. The Court emphasized that the State Constitution does not prevent the owner from restricting expressive activities by imposing reasonable time, place, and manner restrictions to minimize interference with the owner’s commercial functions. Since the invasion was temporary and limited in nature, and since the owner had not exhibited an interest in excluding all persons from his property, “the fact that [the solicitors] may have ‘physically invaded’ [the owners’] property cannot be viewed as determinative.” Id., at 84. In short, when the “character of the governmental action,” Penn Central, 438 U. S., at 124, is a permanent physical occupation of property, our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner. B The historical rule that a permanent physical occupation of another’s property is a taking has more than tradition to commend it. Such an appropriation is perhaps the most serious form of invasion of an owner’s property interests. To borrow a metaphor, cf. Andrus v. Allard, 444 U. S. 51, 65-66 (1979), the government does not simply take a single “strand” from the “bundle” of property rights: it chops through the bundle, taking a slice of every strand. Property rights in a physical thing have been described as the rights “to possess, use and dispose of it.” United States v. General Motors Corp., 323 U. S. 373, 378 (1945). To the extent that the government permanently occupies physical property, it effectively destroys each of these rights. First, the owner has no right to possess the occupied space himself, and also has no power to exclude the occupier from possession and use of the space. The power to exclude has traditionally been considered one of the most treasured strands in an owner’s bundle of property rights. See Kaiser Aetna, 444 U. S., at 179-180; see also Restatement of Property §7 (1936). Second, the permanent physical occupation of property forever denies the owner any power to control the use of the property; he not only cannot exclude others, but can make no nonpossessory use of the property. Although deprivation of the right to use and obtain a profit from property is not, in every case, independently sufficient to establish a taking, see Andrus v. Allard, supra, at 66, it is clearly relevant. Finally, even though the owner may retain the bare legal right to dispose of the occupied space by transfer or sale, the permanent occupation of that space by a stranger will ordinarily empty the right of any value, since the purchaser will also be unable to make any use of the property. Moreover, an owner suffers a special kind of injury when a stranger directly invades and occupies the owner’s property. As Part II-A, supra, indicates, property law has long protected an owner’s expectation that he will be relatively undisturbed at least in the possession of his property. To require, as well, that the owner permit another to exercise complete dominion literally adds insult to injury. See Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1228, and n. 110 (1967). Furthermore, such an occupation is qualitatively more severe than a regulation of the use of property, even a regulation that imposes affirmative duties on the owner, since the owner may have no control over the timing, extent, or nature of the invasion. See n. 19, infra. The traditional rule also avoids otherwise difficult line-drawing problems. New would disagree that if the State required landlords to permit third parties to install swimming pools on the landlords’ rooftops for the convenience of the tenants, the reqfiirement would be a taking. If the cable installation here occupied as much space, again, few would disagree that the occupation would be a taking. But constitutional protection for the rights of private property cannot be made to depend on the size of the area permanently occupied. Indeed, it is possible that in the future, additional cable installations that more significantly restrict a landlord’s use of the roof of his building will be made. Section 828 requires a landlord to permit such multiple installations. Finally, whether a permanent physical occupation has occurred presents relatively few problems of proof. The placement of a fixed structure on land or real property is an obvious fact that will rarely be subject to dispute. Once the fact of occupation is shown, of course, a court should consider the extent of the occupation as one relevant factor in determining the compensation due. For that reason, moreover, there is less need to consider the extent of the occupation in determining whether there is a taking in the first instance. C Teleprompter’s cable installation on appellant’s building constitutes a taking under the traditional test. The installation involved a direct physical attachment of plates, boxes, wires, bolts, and screws to the building, completely occupying space immediately above and upon the roof and along the building’s exterior wall. In light of our analysis, we find no constitutional difference between a crossover and a noncrossover installation. The portions of the installation necessary for both crossovers and noncrossovers permanently appropriate appellant’s property. Accordingly, each type of installation is a taking. Appellees raise a series of objections to application of the traditional rule here. Teleprompter notes that the law applies only to buildings used as rental property, and draws the conclusion that the law is simply a permissible regulation of the use of real property. We fail to see, however, why a physical occupation of one type of property but not another type is any less a physical occupation. Insofar as Teleprompter means to suggest that this is not a permanent physical invasion, we must differ. So long as the property remains residential and a CATV company wishes to retain the installation, the landlord must permit it. Teleprompter also asserts the related argument that the State has effectively granted a tenant the property right to have a CATV installation placed on the roof of his building, as an appurtenance to the tenant’s leasehold. The short answer is that § 828(l)(a) does not purport to give the tenant any enforceable property rights with respect to CATV installation, and the lower courts did not rest their decisions on this ground. Of course, Teleprompter, not appellant’s tenants, actually owns the installation. Moreover, the government does not have unlimited power to redefine property rights. See Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 164 (1980) (“a State, by ipse dixit, may not transform private property into public property without compensation”). Finally, we do not agree with appellees that application of the physical occupation rule will have dire consequences for the government’s power to adjust landlord-tenant relationships. This Court has consistently affirmed that States have broad power to regulate housing conditions in general and the landlord-tenant relationship in particular without paying compensation for all economic injuries that such regulation entails. See, e. g., Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241 (1964) (discrimination in places of public accommodation); Queenside Hills Realty Co. v. Saxl, 328 U. S. 80 (1946) (fire regulation); Bowles v. Willingham, 321 U. S. 503 (1944) (rent control); Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398 (1934) (mortgage moratorium); Edgar A. Levy Leasing Co. v. Siegel, 258 U. S. 242 (1922) (emergency housing law); Block v. Hirsh, 256 U. S. 135 (1921) (rent control). In none of these cases, however, did the government authorize the permanent occupation of the landlord’s property by a third party. Consequently, our holding today in no way alters the analysis governing the State’s power to require landlords to comply with building codes and provide utility connections, mailboxes, smoke detectors, fire extinguishers, and the like in the common area of a building. So long as these regulations do not require the landlord to suffer the physical occupation of a portion of his building by a third party, they will be analyzed under the multifactor inquiry generally applicable to nonpossessory governmental activity. See Penn Central Transportation Co. v. New York City, 438 U. S. 104 (1978). III Our holding today is very narrow. We affirm the traditional rule that a permanent physical occupation of property is a taking. In such a case, the property owner entertains a historically rooted expectation of compensation, and the character of the invasion is qualitatively more intrusive than perhaps any other category of property regulation. We do not, however, question the equally substantial authority upholding a State’s broad power to impose appropriate restrictions upon an owner’s use of his property. Furthermore, our conclusion that § 828 works a taking of a portion of appellant’s property does not presuppose that the fee which many landlords had obtained from Teleprompter prior to the law’s enactment is a proper measure of the value of the property taken. The issue of the amount of compensation that is due, on which we express no opinion, is a matter for the state courts to consider on remand. The judgment of the New York Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Teleprompter Manhattan CATV was formerly a subsidiary, and is now a division, of Teleprompter Corp. The Court of Appeals defined a “crossover” more comprehensively as occurring: “[W]hen (1) the line servicing the tenants in a particular building is extended to adjacent or adjoining buildings, (2) an amplifier which is placed on a building is used to amplify signals to tenants in that building and in a neighboring building or buildings, and (3) a line is placed on a building, none of the tenants of which are provided CATV service, for the purpose of providing service to an adjoining or adjacent building.” 53 N. Y. 2d, at 133, n. 6, 423 N. E. 2d, at 323, n. 6. New York Exec. Law §828 (McKinney Supp. 1981-1982) provides in part: “1. No landlord shall “a. interfere with the installation of cable television facilities upon his property or premises, except that a landlord may require: “i. that the installation of cable television facilities conform to such reasonable conditions as are necessary to protect the safety, functioning and appearance of the premises, and the convenience and well-being of other tenants; “ii. that the cable television company or the tenant or a combination thereof bear the entire cost of the installation, operation or removal of such facilities; and “iii. that the cable television company agree to indemnify the landlord for any damage caused by the installation, operation or removal of such facilities. “b. demand or accept payment from any tenant, in any form, in exchange for permitting cable television service on or within his property or premises, or from any cable television company in exchange therefor in excess of any amount which the Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:
sc_authoritydecision	G	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. HAINES v. KERNER et al. No. 70-5025. Argued December 6, 1971 Decided January 13, 1972 Stanley A. Bass, by appointment of the Court, 401 U. S. 1008, argued the cause for petitioner. With him on the briefs were Jack Greenberg, James M. Nábrit III, William B. Turner, Alice Daniel, and Max Stern. Warren K. Smoot, Assistant Attorney General of Illinois, argued the cause for respondents pro hac vice. With him on the brief were William J. Scott, Attorney General, Joel M. Flaum, First Assistant Attorney General, and James B. Zagel, Morton E. Friedman, and Jayne A. Carr, Assistant Attorneys General. Briefs of amici curiae were filed by Charles H. Baron for Boston College Center for Corrections and the Law, and by Julian Tepper and Marshall J. Hartman for the National Law Office of the National Legal Aid and Defender Assn. Per Curiam. Petitioner, an inmate at the Illinois State Penitentiary, Menard, Illinois, commenced this action against the Governor of Illinois and other state officers and prison officials under the Civil Rights Act of 1871,17 Stat. 13, 42 U. S. C. § 1983, and 28 U. S. C. § 1343 (3), seeking to recover damages for claimed injuries and deprivation of rights while incarcerated under a judgment not challenged here. Petitioner’s pro se complaint was premised on alleged action of prison officials placing him in solitary confinement as a disciplinary measure after he had struck another inmate on the head with a shovel following a verbal altercation. The assault by petitioner on another inmate is not denied. Petitioner’s pro se complaint included general allegations of physical injuries suffered while in disciplinary confinement and denial of due process in the steps leading to that confinement. The claimed physical suffering was aggravation of a preexisting foot injury and a circulatory ailment caused by forcing him to sleep on the floor of his cell with only blankets. The District Court granted respondents’ motion under Rule 12 (b) (6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim upon which relief could be granted, suggesting that only under exceptional circumstances should courts inquire into the internal operations of state penitentiaries and concluding that petitioner had failed to show a deprivation of federally protected rights. The Court of Appeals affirmed, emphasizing that prison officials are vested with “wide discretion” in disciplinary matters. We granted certiorari and appointed counsel to represent petitioner. The only issue now before us is petitioner’s contention that the District Court erred in dismissing his pro se complaint without allowing him to present evidence on his claims. Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U. S. 41, 45-46 (1957). See Dioguardi v. Durning, 139 F. 2d 774 (CA2 1944). Accordingly, although we intimate no view whatever on the merits of petitioner’s allegations, we conclude that he is entitled to an opportunity to offer proof. The judgment is reversed and the case is remanded for further proceedings consistent herewith. Reversed and remanded. Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case. Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:
songer_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. DIKEMAN et al. v. JEWEL GOLD MINING CO. et al. (Circuit Court of Appeals, Ninth Circuit. June 14, 1926.) No. 4829. Execution @=»302. Under Alaska Statute, execution sale of property of lessor to satisfy specific liens against it-held to exhaust such liens, and after redemption of property 'by lessee it was not subject to resale to satisfy same demands. Appeal from the- District Court of the United States for the Third Division of the Territory of Alaska; E. E. Ritchie, Judge. Action by J. M.' Dikeman and others against the Jewel Gold Mining Company and others. From an order denying a petition for resale of property of the named defendant to satisfy certain claims, plaintiffs appeal. Affirmed. See, also, 2 F.(2d) 665. Arthur Frame and. Jas. S. Truitt, both of Anchorage, Alaska, and Walter Christie, of San Francisco, Cal., for appellants. W. H. Rager, of Anchorage, Alaska, for appellee Jewel Gold Mining Co. Before GILBERT, HUNT, and RUD-KIN, Circuit Judges. RUDKIN, Circuit Judge. This case was before this-court on writ of error in Dikeman v. Jewel Gold Mining Co., 2 F.(2d) 665, where a full, statement of the facts may be found. After the writ of error was there dismissed for want of jurisdiction, the plaintiffs in the court below petitioned that court for an order directing a resale of the property of the Jewel Gold Mining Company, the lessor, to satisfy the balance due on the personal decrees against the lessee. The present appeal is from an order denying that petition. As will appear from the statement referred to, personal decrees were entered in favor of the several plaintiffs and against the lessee, Jewel Mining Syndicate, but no relief was awarded against the lessor, Jewel Gold Mining Company, beyond a decree establishing certain liens against its property and directing a sale thereof to satisfy them. Briefly stated, the appellants now contend that the redemption by the lessee reinstated their liens against the property of the lessor, and the property should be resold to satisfy those liens. On the other hand, the appellees contend that the liens against the property of the lessor were exhausted by the sale, and that the same property cannot be resold to satisfy the same demands, even though there has been a redemption from the prior sale. This latter contention must be sustained. As is well known, the Alaska statute was taken from the laws of Oregon, and both sides invoke the construction placed on the laws of Oregon by its Supreme Court. In Flanders v. Aumack, 32 Or. 19, 51 P. 447, 67 Am. St. Rep. 504, it was held that the redemption of real property from an execution sale by the grantee of the judgment debtor, when the property was bid in for less than the amount of the judgment, reinstates the lien.for the unpaid balance, and a resale of the property may be had to satisfy the same. But the court was careful to distinguish between specific liens and general judgment liens. Thus, it was said: “A mortgage is a specific lien, which attaches by virtue of the contract of the parties concerned; but the lien of a judgment is general, and attaches by operation of law, as a sequence of its rendition. Foreclosure is a remedy by which the property covered by the mortgage may be subjected to sale for the payment of the demand for which the mortgage stands as security, and, when the decree is had and the property sold to satisfy it, the mortgagee has obtained all he contracted for; but, if there is also a personal decree against the mortgage debtor, this becomes, from the date of its docketing, a general.lien upon his real property, as in ease of a judgment; and, if a deficiency remains after the; application of the proceeds of the sale of the lands covered by the mortgage, the decree may be enforced by execution, as in ordinary cases. * * • The resale does not take place under the order for the sale of the specific property covered by the mortgage lien, for that has been exhausted, but under the personal decree which remains as a deficiency decree against the mortgage debtor after the application of the proceeds arising under the order of sale; and a redemption will not reinstate the specific mortgage lien, while it will the general lien acquired by the personal decree. This distinction is clear, and is bottomed both upon principle and authority. The redemption is from the sale, and not from the mortgage; and if the lien of the personal decree has never attached, by reason of the mortgagor not having the fee of the property at the time it was rendered, there never existed any lien to be reinstated against his successor in interest, who purchased prior to the decree.” See, also, Williams v. Wilson, 42 Or. 299, 70 P. 1031, 95 Am. St. Rep. 745. It will thus be seen that, under the decisions of the Supreme Court of Oregon, the specific liens against the property of the lessor were exhausted by the sale, and were not reinstated by the subsequent redemption. The decree is therefore 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:
sc_authoritydecision	D	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. NATIONAL BROILER MARKETING ASSN. v. UNITED STATES No. 77-117. Argued February 21, 1978 — Decided June 12, 1978 Blackmun, J., delivered the opinion of the Court, in which Burgee, C. J., and BreNnaN, Marshall, Powell, Rehnquist, and Stevens, JJ., joined. BreNNAN, J.,, filed a concurring opinion, post, p. 829. White, J., filed a dissenting opinion, in which Stewart, J., joined, post, p. 840. Richard A. Posner argued the cause for petitioner. With him on the briefs were Michael A. Doyle and Frederick H. Von Unwerth. Assistant Attorney General Shenefield argued the cause for the United States. With on the brief were Solicitor General McCree, Frank H. Easterbrook, John J. Powers III, and Bruce E. Fein. A brief of amici curiae urging affirmance was filed for their respective States by William J. Baxley, Attorney General of Alabama; Carl R. Ajello, Attorney General of Connecticut; John D. MacFarlane, Attorney General of Colorado; Robert L. Shevin, Attorney General of Florida; William J. Scott, Attorney General of Illinois; Robert F. Stephens, Attorney General of Kentucky; Francis X. Bellotti, Attorney General of Massachusetts; Frank J. Kelley, Attorney General of Michigan; William F. Hyland, Attorney General of New Jersey; William J. Brown, Attorney General of Ohio; Robert P. Kane, Attorney General of Pennsylvania; Richard C. Turner, Attorney General of Iowa; William J. Guste, Jr., Attorney General of Louisiana; John D. Ashcrojt, Attorney General of Missouri; Louis J. Lefkowitz, Attorney General of New York; Larry Derryberry, Attorney General of Oklahoma; James A. Redden, Attorney General of Oregon; Julius C. Michaelson, Attorney General of Rhode Island; and Marshall Coleman, Attorney General of Virginia, joined by Emmet Bondurant, David I. Shapiro, and James vanR. Springer. Allen A. Lauterbach filed a brief for the American Farm Bureau Federation as amicus curiae urging affirmance. Mr. Justice Blackmun delivered the opinion of the Court. Once again, this time in an antitrust context, the Court is confronted with an issue concerning integrated poultry operations. Petitioner phrases the issue substantially as follows: Is a producer of broiler chickens precluded from qualifying as a “farmer,” within the meaning of the Capper-Volstead Act, when it employs an independent contractor to tend the chickens during the “grow-out” phase from chick to mature chicken? The issue apparently is of importance to the broiler industry and in the administration of the antitrust laws. I In April 1973, in the United States District Court for the Northern District of Georgia, the United States brought suit against petitioner National Broiler Marketing Association (NBMA). It alleged that NBMA had conspired with others not named, but including members of NBMA, in violation of § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1 (1976 ed.). It prayed for injunctive relief and that NBMA “be ordered to make whatever changes are necessary in its organization and operation to insure compliance with the judgment” of the court. Record 10. In its answer NBMA alleged, among other things, that its status, as a cooperative association of persons engaged in the production of agricultural products, sheltered it from antitrust liability for the acts alleged, under § 1 of the Capper-Volstead Act, also known as the Cooperative Marketing Associations Act, 42 Stat. 388, 7 U. S. C. §291 (1976 ed.). On motion and cross-motion for partial summary judgment, the District Court concluded that the involvement of all the members of NBMA in the production of broiler chickens was sufficient to justify their classification as “farmers,” within the meaning of the Act, and that NBMA therefore was a cooperative entitled to the limited exemption from the antitrust laws the Act afforded. 1975-2 Trade Cases ¶ 60,509. On appeal, the United States Court of Appeals for the Fifth Circuit reversed. It held that all the NBMA members were not farmers in the ordinary, popular meaning of that word and as it was employed in. 1922 when the Capper-Volstead Act became law. 550 F. 2d 1380 (1977). Because of the importance of the issue for the agricultural community and for the administration of the antitrust laws, we granted certiorari. 434 U. S. 888 (1977). II NBMA is a nonprofit cooperative association organized in 1970 under Georgia law. It performs various cooperative marketing and purchasing functions on behalf of its members. App. 7. Its membership has varied somewhat during the course of this litigation, but apparently it has included as many as 75 separate entities. Id., at 172. These members are all involved in the production and marketing of broiler chickens. Production involves a number of distinct stages: the placement, raising, and breeding of breeder flocks to produce eggs to be hatched as broiler chicks; the hatching of the eggs and placement of those chicks; the production of feed for the chicks; the raising of the broiler chicks for a period, not to exceed, apparently, 10 weeks; the catching, cooping, and hauling of the “grown-out” broiler chickens to processing facilities; and the operation of facilities to process and prepare the broilers for market. Id., at 7. The broiler industry has become highly efficient and departmentalized in recent years, and stages of production that in the past might all have been performed by one enterprise may now be split and divided among several, each with a highly specialized function. No longer are eggs necessarily hatched where they are laid, and chicks are not necessarily raised where they are hatched. Conversely, some stages that in the past might have been performed by different persons or enterprises are now combined and controlled by a single entity. Also, the owner of a breeder flock may own a processing plant. All the members of NBMA are “integrated,” that is, they are involved in more than one of these stages of production. Many, if not all, directly or indirectly own and operate a processing plant where the broilers are slaughtered and dressed for market. All contract with independent growers for the raising or grow-out of at least part, and usually a substantial part, of their flocks. Id., at 8. Often the chicks placed with an independent grower have been hatched in the member’s hatchery from eggs produced by the member’s breeder flocks. The member then places its chicks with the independent grower for the grow-out period, provides the grower with feed, veterinary service, and necessary supplies, and, with its own employees, usually collects the mature chickens from the grower. Generally, the member retains title to the birds while they are in the care of the independent grower. Ibid. It is established, however, ibid.; Brief for Petitioner 5 n. 2, that six NBMA members do not own or control any breeder flock whose offspring are raised as broilers, and do not own or control any hatchery where the broiler chicks are hatched. And it appears from the record that three members do not own a breeder flock or hatchery, and also do not maintain any grow-out facility. These members, who buy chicks already hatched and then place them with growers, enter the production line only at its later processing stages. Ill The Capper-Yolstead Act removed from the proscription of the antitrust laws cooperatives formed by certain agricultural producers that otherwise would be directly competing with each other in efforts to bring their goods to market. But if the cooperative includes among its members those not so privileged under the statute to act collectively, it is not entitled to the protection of the Act. Case-Swayne Co. v. Sunkist Growers, Inc., 389 U. S. 384 (1967). Thus, in order for NBMA to enjoy the limited exemption of the Capper-Volstead Act, and, as a consequence, to avoid liability under the antitrust laws for its collective activity, all its members must be qualified to act collectively. It is not enough that a typical member qualify, or even that most of NBMA’s members qualify. We therefore must determine not whether the typical integrated broiler producer is qualified under the Act but whether all the integrated producers who are members of NBMA are entitled to the Act’s protection. The Act protects “[p'Jersons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers” (emphasis added). A common-sense reading of this language clearly leads one to conclude that not all persons engaged in the production of agricultural products are entitled to join together and to obtain and enjoy the Act’s benefits! The italicized phrase restricts and limits the broader preceding phrase “[pjersons engaged in the production of agricultural products . . . .” The purposes of the Act, as revealed by the legislative history, confirm the conclusion that not all those involved in bringing agricultural products to market may join cooperatives exempt under the statute, and have the cooperatives retain that exemption. The Act was passed in 1922 to remove the threat of antitrust restrictions on certain kinds of collective activity, including processing and handling, undertaken by certain persons engaged in agricultural production. Similar organizations of those engaged in farming, as well as organizations of laborers, were already entitled, since 1914, to special treatment under § 6 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 17 (1976 ed.). This treatment, however, had proved to be inadequate. Only nonstock organizations were exempt under the Clayton Act, but various agricultural groups had discovered that, in order best to serve the needs of their members, accumulation of capital was required. With capital, cooperative associations could develop and provide the handling and processing services that were needed before their members’ products could be sold. The Capper-Yolstead Act was passed to make it clear that the formation of an agricultural organization with capital would not result in a violation of the antitrust laws, and that the organization, without antitrust consequences, could perform certain functions in preparing produce for market. Mr. Justice Black summarized this legislative history in his opinion for a unanimous Court in Maryland & Virginia Milk Producers Assn. v. United States, 362 U. S. 458, 464-468 (1960), and it is further discussed in Case-Swayne, 389 U. S., at 391. Farmers were perceived to be in a particularly harsh economic position. They were subject to the vagaries of market conditions that plague agriculture generally, and they had no means individually of responding to those conditions. Often the farmer had little choice about who his buyer would be and when he would sell. A large portion of an entire year’s labor devoted to the production of a crop could be lost if the farmer were forced to bring his harvest to market at an unfavorable time. New farmers, however, so long as they could act only individually, had sufficient economic power to wait out an unfavorable situation. Farmers were seen as being caught in the hands of processors and distributors who, because of their position in the market and their relative economic strength, were able to take from the farmer a good share of whatever profits might be available from agricultural production. By allowing farmers to join together in cooperatives, Congress hoped to bolster their market strength and to improve their ability to weather adverse economic periods and to deal with processors and distributors. NBMA argues that this history demonstrates that the Act was meant to protect all those that must bear the costs and risks of a fluctuating market, and that all its members, because they are exposed to those costs and risks and must make decisions affected thereby, are eligible to organize in exempt cooperative associations. The legislative history indicates, however, and does it clearly, that it is not simply exposure to those costs and risks, but the inability of the individual farmer to respond effectively, that led to the passage of the Act. The congressional debates demonstrate that the Act was meant to aid not the full spectrum of the agricultural sector but, instead, to aid only those whose economic position rendered them comparatively helpless. It was, very definitely, special-interest legislation. Indeed, several attempts were made to amend the Act to include certain processors who, according to preplanting contracts, paid growers amounts based on the market price of processed goods; these attempts were roundly rejected. Clearly, Congress did not intend to extend the benefits of the Act to the processors and packers to whom the farmers sold their goods, even when the relationship was such that the processor and packer bore a part of the risk. Petitioner suggests that agriculture has changed since 1922, when the Act was passed, and that an adverse decision here “might simply accelerate an existing trend toward the absorption of the contract grower by the integrator,” or “might induce the integrators to rewrite their contracts with the contract growers to designate the latter as lessor-employees rather than independent contractors.” Brief for Petitioner 13; see id., at 24, 26, and Tr. of Oral Arg. 17. We may accept the proposition that agriculture has changed in the intervening 55 years, but, as the second Mr. Justice Harlan said, when speaking for the Court in another context, a statute “is not an empty vessel into which this Court is free to pour a vintage that we think better suits present-day tastes.” United States v. Sisson, 399 U. S. 267, 297 (1970). Considerations of this kind are for the Congress, not the courts. IV We, therefore, conclude that any member of NBMA that owns neither a breeder flock nor a hatchery, and that maintains no grow-out facility at which the flocks to which it holds title are raised, is not among those Congress intended to protect by the Capper-Volstead Act. The economic role of such a member in the production of broiler chickens is indistinguishable from that of the processor that enters into a preplanting contract with its supplier, or from that of a packer that assists its supplier in the financing of his crops. Their participation involves only the kind of investment that Congress clearly did not intend to protect. We hold that such members are not “farmers,” as that term is used in the Act, and that a cooperative organization that includes them — or even one of them — as members is not entitled to the limited protection of the Capper-Yolstead Act. The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings. It is so ordered. See Bayside Enterprises, Inc. v. NLRB, 429 U. S. 298 (1977). The Court of Appeals described the issue in this manner: “We must decide whether broiler industry companies that neither own nor operate farms can be 'farmers’ within the meaning of a 1922 federal statute called the Capper-Volstead Act, which gives farmers’ cooperatives some measure of protection from the antitrust laws” (footnote omitted). 550 F. 2d 1380, 1381 (CA5 1977). Nineteen States have filed a brief amicus curiae and assert interests as antitrust litigants. See In re Chicken Antitrust Litigation, M. D. L. No. 237, ND Ga. No. C74r-2454A. See also Brown, United States v. National Broiler Marketing Association: Will the Chicken Lickin’ Stand?, 56 N. C. L. Rev. 29 (1978); Department of Agriculture, Farmer Cooperative Service, Legal Phases of Farmer Cooperatives (1976); Note, Trust Busting Down on the Farm: Narrowing the Scope of Antitrust Exemptions for Agricultural Cooperatives, 61 Va. L. Rev. 341 (1975). Section 1 of the Capper-Yolstead Act provides in pertinent part: “Persons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit .growers may act together in associations, corporate or otherwise, with or without capital stock, in collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged. Such associations may have marketing agencies in common; and such associations and their members may make the necessary contracts and agreements to effect such purposes . . . The statute further provides that any such association must be operated for the mutual benefit of its members; that it may not pay dividends of more than 8% annually on its stock or membership capital; and that it “shall not deal in the products of nonmembers to an amount greater in value than such as are handled by it for members.” Section 2 of the Act, 7 U. S. C. §292 (1976 ed.), provides for certain regulation of the association by the Secretary of Agriculture. In order to facilitate the appeal, the United States, after the District Court’s decision, amended the complaint to limit its allegations of conspiracy to the members of NBMA. App. 94r-95. This was done without prejudice to any later renewal of allegations abandoned by the amendment. Id., at 91. Noting that the United States did not dispute that if NBMA were a qualified cooperative, the exemption afforded by the Capper-Volstead Act provided a complete defense to the amended complaint, and restating its conclusion that NBMA’s members were entitled to join in a cooperative under the Act, the District Court dismissed the amended complaint with prejudice. Id., at 105-108; 1976-1 Trade Cases ¶ 60,801. Georgia Cooperative Marketing Act, Ga. Code § 65-201 et seq. (1975). The Act authorizes cooperative associations of “persons engaged in the production of . . . agricultural products.” § 65-205. When first organized, NBMA was chartered as a cooperative association with capital stock. In December 1973, after the complaint in this suit had been filed, its articles of incorporation were amended to authorize the cancellation of its capital stock and the conversion of the association to a nonprofit membership cooperative association not having stock. App. 6. There is no suggestion by the parties that this change in organization in any way affects the issue presented in the case. The record includes more specific but nevertheless limited references to NBMA’s activities. It has been involved in the purchasing of feed ingredients and of other specialized products used by its members in raising broilers and preparing them for market, in market research and planning, and in conducting a foreign trade sales program. Id., at 137-139. The full range of NBMA’s activities may well be put in issue on remand. Broilers are chickens that a.re slaughtered at 7 to 9 (or 8 to 10) weeks of age and processed for sale to supermarkets, restaurants, hotels and other institutions. Id., at 8, 93, 98. The United States has conceded that, for the purposes of this litigation, a broiler chicken is an agricultural product. Id., at 7. Compare, for example, Department of Agriculture, Agricultural Adjustment Administration, W. Termohlen, J. Kinghorne, & E. Warren, An Economic Survey of the Commercial Broiler Industry (1936), with V. Benson & T. Witzig, The Chicken Broiler Industry: Structure, Practices, and Costs (Dept, of Agriculture, Economic Rep. No. 381, 1977). See generally E. Roy, Contract Farming and Economic Integration, ch. 4, “Broiler Chickens” (2d ed. 1972); Department of Agriculture, Packers and Stockyards Administration, The Broiler Industry: An Economic Study of Structure, Practices and Problems (1967); Ohio Agricultural Research and Development Center, B. Marion & H. Arthur, Dynamic Factors in Vertical Commodity Systems: A Case Study of the Broiler System (1973). See Table G-1, and the data as to Members 2, 3, and 20, attached to affidavit of I. R. Barnes, submitted by petitioner and accepted as to accuracy by the United States. Record 467; App. 187-188. The Act does not remove from the general operation 'of the antitrust laws the deahngs of such cooperatives with others. United States v. Borden Co., 308 U. S. 188, 203-205 (1939). See Malat v. Riddell, 383 U. S. 669, 571 (1966); Addison v. Holly Hill Fruit Products, Inc., 322 U. S. 607, 618 (1944). The report on the bill that became the Act stressed that the limitations on “the kind of associations to which the legislation applies” were “aimed to exclude from the benefits of this legislation all but actual farmers and all associations not operated for the mutual help of their members as such producers.” H. R. Rep. No. 24, 67th Cong., 1st Sess., 1 (1921). See also H. R. Rep. No. 939, 66th Cong., 2nd Sess., 1 (1920). Senator Kellogg, a supporter of the bill, read this language to have a restrictive meaning: “Mr. CUMMINS .... Are the words 'as farmers, planters, ranch-men, dairymen, nut or fruit growers’ used to exclude all others who may be engaged in the production of agricultural products, or are those words merely descriptive of the general subject? “Mr. KELLOGG. I think they are descriptive of the general subject. I think 'farmers’ would have covered them all. “Mr. CUMMINS. I think the Senator does not exactly catch my point. Take the flouring mills of Minneapolis: They are engaged, in a broad sense, in the production of an agricultural product. The packers are engaged, in a broad sense, in the production of an agricultural product. The Senator does not intend by this bill to confer upon them the privileges which the bill grants, I assume? “Mr. KELLOGG. Certainly not; and I do not think a proper construction of the bill grants them any such privileges. The bill covers farmers, people who produce farm products of all kinds, and out of precaution the descriptive words were added. “Mr. TOWNSEND. They must be persons who produce these things. “Mr. KELLOGG. Yes; that has always been the understanding.” 62 Cong. Rec. 2052 (1922). Section 6 of the Clayton Act reads: “The labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws.” See also, e. g., 59 Cong. Rec. 7851-7852 (1920) (remarks of Rep. Morgan.); id., at 8017 (remarks of Rep. Volstead). See generally Ballan-tine, Co-operative Marketing Associations, 8 Minn. L. Rev. 1 (1923) ; L. Hulbert, Legal Phases of Cooperative Associations 43-47 (Department of Agriculture Bull. No. 1106,1922). The Court specifically has acknowledged the relationship of the exemption for labor unions and that for farm cooperatives: “These large sections of the population — those who labored with their hands and those who worked the soil — were as a matter of economic fact in a different relation to the community from that occupied by industrial combinations. Farmers were widely scattered and inured to habits of individualism; their economic fate was in large measure dependent upon contingencies beyond their control.” Tigner v. Texas, 310 U. S. 141, 145 (1940). See also Liberty Warehouse Co. v. Tobacco Growers, 276 U. S. 71, 92-93 (1928); Frost v. Corporation Comm’n, 278 U. S. 515, 538-543 (1929) (Brandéis, J., dissenting). See, e. g., 59 Cong. Rec. 8025 (1920) (remarks of Rep. Hersman); id., at 9154 (extended remarks of Rep. Michener); 61 Cong. Rec. 1040 (1921) (remarks of Rep. Towner); 62 Cong. Rec. 2048-2049 (1922) (remarks of Sen. Kellogg); id., at 2058 (remarks of Sen. Capper). Essentially the same argument was made and rejected by the Court in Case-Swayne Co. v. Sunkist Growers, Inc., 389 U. S. 384, 393-396 (1967), in which it concluded that a cooperative of orange growers, which included some members who operated packing houses but grew no fruit, was not entitled to the protection of the Act. NBMA asserts that the integrator bears 90%, or more, of broiler production costs, as compared with the grower’s 10%, or less. Tr. of Oral Arg. 13; Brief for Petitioner 16, 21. This amendment, repeatedly introduced by Senator Phipps, would have inserted the following language after “nut or fruit growers” (see n. 4, supra): “and where any such agricultural product or products must be submitted to a manufacturing process, in order to convert it or them into a finished commodity, and the price paid by the manufacturer to the producer thereof is controlled by or dependent upon the price received by the manufacturer for the finished commodity by contract entered into before the production of such agricultural product or products, then any such manufacturers.” 62 Cong. Ree. 2227,2273-2275, 2281 (1922). The dissent suggests, post, at 849, that petitioner’s members “partake in substantially all of the risks of bringing a crop . . . from ohick to broiler.” Although it is true that petitioner’s members bear some of the risks associated with bringing each flock to market, they do not bear all the risks. Growers dealing with many of petitioner’s members, including M2, M3, and probably M20, receive no payment for their labor if a flock is lost due, in some cases, to the weather, and in other cases, to disease. See Table G-2, App. 195. And, perhaps more importantly, petitioner’s members do not bear all the risks associated with changes in demand over a longer period of time. Very few of petitioner’s members, not including M2 or M3, provide the growers with whom they deal anything more than “informal assurances” that the member will continue to place flocks with the grower and therefore that the grower will receive a return on the investment he has in his grow-out facilities. See Table G-7, App. 219. Because we conclude that these members have not made the kind of investment that would entitle them to the protection of the Act, we need not consider whether, even if they had, they would be ineligible for the protection of the Act because their economic position is such that they are not helplessly exposed to the risks about which Congress was concerned. Thus we need not consider here the status under the Act of the fully integrated producer that not only maintains its own breeder flock, hatchery, and grow-out facility, but also runs its own processing plant. Neither'do we consider the status of the less fully integrated producer that, although maintaining a grow-out facility, also contracts with independent growers for a large portion of the broilers processed at its facility. There is nothing in the record that would allow us to consider whether these integrators are “too small” to own their own breeder flocks, hatcheries, or grow-out facilities, or whether, because of the history of their economic development, they have concentrated only on the feed production and processing aspects of broiler production. Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:
songer_casetyp1_3-2	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. Your task is to determine the specific issue in the case within the broad category of "First Amendment". GREAT ATLANTIC AND PACIFIC TEA COMPANY, a corporation, Appellant, v. Sherman LETHCOE, Appellee. No. 8074. United States Court of Appeals Fourth Circuit. Argued May 27, 1960. Decided June 29, 1960. L. R. Coulling, Jr., Bluefield, W. Va., for appellant. Billy E. Burkett, Princeton, W. Va. (Walter G. Burton, Princeton, W. Va., on the brief), for appellee. Before HAYNSWORTH, Circuit Judge, and BARKSDALE and DALTON, District Judges. DALTON, District Judge. In this case the Great Atlantic & Pacific Tea Company appeals from a judgment of the District Court for the Southern District of West Virginia rendered on a jury verdict which awarded Sherman Lethcoe $1,000 compensatory damages and $2,000 punitive damages on account of two incidents of alleged false arrest and false imprisonment and one incident of alleged slander. The first wrong complained of occurred at the Bluefield, West Virginia supermarket of appellant on November 18, 1957, and, according to Lethcoe, he was detained by Mr. Dye, the manager of the store, as he, Lethcoe, had left the premises where he had purchased some groceries. Lethcoe’s evidence is that the store manager “come out hollering, ‘Hey there, Shorty’ ”, demanded to know what Lethcoe had in his pocket, and took hold of the pocket which contained a bulky camera belonging to a Mrs. Bright which Dye suspected as stolen groceries, and was asked by Mr. Dye, “Did you pay for that stuff you have got in your poke?”; that the store manager, “acting on a hunch” (according to his testimony), took the poke and checked its contents and the check-out slip, and found that Lethcoe had in fact paid for his groceries at the check-out counter. Some 9 days later — on November 27— Lethcoe, after the purchase of more groceries and after leaving the store for some 100 to 150 yards, was again accosted by the store manager who demanded to know what Lethcoe had in the poke, laid his hand on Lethcoe’s shoulder, took the poke out of his arms, and examined its contents, and found that Lethcoe had again paid for his purchases. The third complaint is a sequel to the incident of November 27 — the allegation being that the store manager said in the presence of others in reference to Lethcoe, “Well the s-o-b will never come in my store again.” Appellant contends that there is no substantial evidence of false arrest, false imprisonment or slander; that the verdict is excessive and that the finding of punitive damages is not justified under the law and evidence. Considering the case, as is our duty to do, in the light most favorable to the plaintiff, and bearing in mind that any restraint of one’s personal liberty may constitute false imprisonment, it is our view there was sufficient evidence upon which the jury’s verdict of $1,000 compensatory damages could be based. Perhaps, if we were to consider only the incident of November 18 — it standing alone might be insufficient to justify 'a verdict, and appellant, sensing this point, urges that this part should have been eliminated from the jury’s consideration. However, we feel that it was not prejudicial for the jury to consider it because at least it furnished a background which might be considered by the jury in determining the attitude and relationship of the parties, and to show whether or not there was an intentional invasion of plaintiff’s rights by the store manager. The alleged incidents of November 27, viewed from plaintiff’s version, are sufficient to uphold the jury award of $1,000 as compensatory damages. We do not agree with defendant’s contention that $1,000 as compensatory damages is excessive. It could be just as easily argued that even a hundred dollars would be too much. There is no showing of bias or prejudice, and if we are to uphold our jury system, the courts should not disturb jury verdicts rendered upon proper evidence and proper instructions, unless there is present a showing of improper motive or prejudice. The difficulty in this case comes on the consideration of the award of $2,000 punitive damages. Bear in mind that this suit is only against the employer. Our view is that the Great Atlantic & Pacific Tea Company should not be required to pay punitive damages unless there was a showing of authorization or ratification by the principal of the alleged wrongs. This statement of law of West Virginia, which governs us here, is accepted by both the parties, and there is tacit admission by plaintiff’s counsel that there was no authorization, and, therefore, retention of Dye in the employment of defendant is the only evidence of ratification. This, according to the decisions, is not enough. In the case of Southern Ry. Co. v. Grubbs, 115 Va. 876, 80 S.E. 749, 751 (1914) there appears a discussion of this point, which reads: “The plaintiff relies upon the failure of the defendant company to discharge the conductor, before trial, as a ratification of the conductor’s alleged wrongful act. This position is not tenable. “As said in Toledo R. Co. v. Gordon, 143 Fed. 95, 74 C.C.A. 289: ‘It would indeed be a harsh rule — - harsh in its effect on all employes — - that would hold a railroad company to have ratified the employe’s act merely because before trial the employé was not discharged. Such a rule would put their continued employment in jeopardy every time an accident occurred, not because the employé was shown to have been guilty of wanton conduct, but because the railway company stood in danger that wantoness might be established.’ ” A Fourth Circuit opinion written by Judge Parker, Pullman Co. v. Hall, 46 F.2d 399, 405, states the law as follows: “Ratification involves the adoption of the act of the servant with knowledge of the facts; and mere retention of the servant in the service of the master does not necessarily amount to ratification, although in some cases it may be a circumstance to be considered by the jury, with the other evidence in the case, as bearing upon that question. Norolk & Portsmouth Traction Co. v. Miller, supra; Toledo, St. L. & W. R. Co. v. Gordon (C.C.A.7th) 143 F. 95; Dillingham v. Russell, 73 Tex. 47, 11 S.W. 139, 3 L.R.A. 634, 15 Am.St.Rep. 753, 762. Under the circumstances of this case, retention of the employee in the service of defendant not only did not of itself establish a ratification by the 'defendant of his improper conduct, but we do not think that that cir■cumstance taken with the other evi•denee in the case would have warranted a finding that there was such ratification.” We can visualize instances wherein cir-cumstances of retention of a servant, knowing of his incompetence, might warrant responsibility of a punitive nature on the part of the employer, but the case at bar does not present circumstances that would warrant exemplary damages. Therefore, we affirm the judgment of the District Court as to actual damages, but deny plaintiff’s right to the recovery •of punitive damages, and the case will be remanded to the District Court for entry ■of judgment for actual damages only. Affirmed in part and reversed in part. Question: What is the specific issue in the case within the general category of "First Amendment"? A. religion, press, commercial B. speech and other expression Answer:
songer_circuit	D	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. DAY v. ATLANTIC GREYHOUND CORPORATION. No. 5803. United States Court of Appeals Fourth Circuit. Dec. 7, 1948. Martin A. Martin, of Richmond, Va. (■Hill, Martin & Robinson, of Richmond, Va., on the brief), for appellant. Robert Lewis Young, of Richmond, Va. (Oscar L. Shewmake, John C. Goddin, and John G. May, Jr.,, all of Richmond, Va., on the brief), for appellee. Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges. SOPER, Circuit Judge. This action for personal damages grew out of the enforcement of a regulation of the carrier which required the segregation of white and colored passengers in its motor busses. The plaintiff, a Negro woman 67 years of age, refused to conform to the regulation or to leave the bus in which she was a passenger, and, as a consequence, ■was forcibly ejected from the vehicle by police officers summoned by the driver, and then arrested by the police officers and confined on the charge of disorderly conduct. The reasonableness of the regulation was submitted by the District Judge to the jury which returned a verdict for the defendant. The most important legal question on this appeal is raised by the contention of the plaintiff that any rule of a common carrier which imposes racial segregation upon its passengers not only contravenes the principles of the common law, but violates the Fourteenth Amendment of the Federal Constitution. This question, however, is not open to debate in this court. It is foreclosed by binding decisions of the Supreme Court which hold that an interstate carrier has a right to establish rules and regulations which require white and colored passengers to occupy separate accomfhodations provided there is no dis-' crimination in the arrangement. See Hall v. DeCuir, 95 U.S. 485, 24 L.Ed. 547; Chiles v. Chesapeake & Ohio R. Co., 218 U.S. 71, 30 S.Ct. 667, 54 L.Ed. 936, 20 Ann.Cas. 980. It is true that in more recent' decisions, notably Morgan v. Virginia, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317, 165 A.L.R. 574, and Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28, 68 S.Ct. 358, the right of colored passengers in public vehicles to fair and reasonable treatment has been sustained, and the limits to the power of the states to enact segregation statutes have been defined. In Morgan v. Virginia, for example, it was held that a Virginia statute which requires motor carriers to allocate seats to white and colored passengers so as to separate the races, and requires passengers, if necessary, to change their seats repeatedly in order to comply with the allocation, imposes an undue burden on interstate commerce and therefore violates Article 1, § 8, Cl. 3 of the Federal' Constitution. Nevertheless, in this very case the court pointed out that it was dealing with a state statute and not with a regulation of the carrier; and the court referred specifically to its earlier decision in Chiles v. Chesapeake & Ohio R. Co., supra, in the following language, 328 U.S. 373, 377, Note 12, 66 S.Ct. 1050, 1053, 90 L.Ed. 1317, 165 A.L.R. 574: “When passing upon a rule of a carrier that required segregation of an interstate passenger, this Court said, ‘And we must keep in mind that we are not dealing with the law of a state attempting a regulation of interstate commerce beyond its power to make.’ Chiles v. Chesapeake & Ohio R. Co., 218 U.S. 71, 75, 30 S.Ct. 667, 668, 54 L.Ed. 936, 20 Ann.Cas. 980.” Since the Chiles case expressly sustained the power of an interstate carrier to issue a segregation regulation, provided that • it is not discriminatory, our inquiry must be limited to the nature of the regulation enforced in the pending case, and we may not inquire whether the segregation of the races in public vehicles is in itself inherently discriminatory. When the present controversy arose, the bus company had on file with the Interstate Commerce Commission, pursuant to the requirements of Sections 216(a) and 217(a) of the Interstate Commerce Act of 1935 as amended, and pursuant to the regulations of the Commission promulgated thereunder, 49 U.S.C.A. 316(a), 317(a), a reservation which makes the following provision: “Reservations: ****** “(2) The carriers reserve to themselves full control and discretion as to seating of passengers and reserve the right to change such seating at any time during the trip.” On August 15, 1946, shortly after the decision in the Morgan case, the carrier issued an instruction to its drivers plainly intended to obviate the shifting of seats criticized in that decision. Reservation (2) was set out, and the drivers were directed with respect to the seating of white and colored passengers in the following language: “Where such has been the accepted usage, custom and tradition, it is suggested that, as far as practicable and pursuant to the authority of the rule above quoted, colored passengers be seated from the rear forward, and white passengers from the front toward the rear. This rule is based upon established usage induced by general sentiment of the community, and is designed not only to promote the comfort, safety and security of all the passengers, but to preserve peace and good order and avoid undue discrimination. This will also serve the purpose of accomplishing uniformity, and will avoid requiring passengers from repeatedly shifting seats to meet the seating requirements of a changing passenger group. “It is essential in any assignment of seats that there be no undue discrimination of any kind shown against any passenger, whether colored or white, and that all be given seats which are substantially equal, in comfort and convenience to other available seats in the coach. This is a requirement of the law and of good common sense, and must be strictly followed. * * # * * * “Should a passenger refuse to comply with your seating assignment, you must not use force. If, after every persuasive method has failed and the passenger still refuses to comply and has been courteously advised of our rules and regulations, and that you will have to obtain the assistance of a law enforcement officer, you may then call for and appeal to a police or law enforcement officer and have such passenger removed from the bus. Under the law a peace officer does hot need a warrant to arrest a person who has committed a misdemeanor in his presence. Therefore, in the event you find it necessary to seek the assistance of a peace officer, you should repeat your request in. the presence and hearing of this officer, and then leave the matter of enforcement to him. Passengers should not be removed from the bus except at points where we maintain depots, where they will be safe and protected.” On December 22, 1946, at Syracuse, New York, the plaintiff purchased a round trip bus ticket from Syracuse to Florida, with stopover privileges at Richmond, Virginia. She rode in the busses of connecting carriers from Syracuse to Richmond, where she stayed three weeks, and on January 22, 1946, boarded a bus of the defendant company at Richmond for transportation to Winter Haven, Florida. She was the first person aboard the bus, and took the second seat from the front on the side opposite the driver, and occupied this seat beside a white woman without objection during the afternoon until the bus arrived at South Hill, Virginia. All the passengers, except the plaintiff, and the driver then left the bus during a stop for supper. When the driver returned he found the plaintiff alone in the bus and directed her to change her seat. According to her testimony, she was ordered to take a place on the last seat; indeed such an order was in accord with the company’s instructions which required the driver to seat colored passengers from the rear of the bus forward. The plaintiff, however, refused to move although the driver explained that he was merely carrying out the company’s orders. She was under the impression that the Supreme Court in the Morgan case had declared the segregation of the races in public vehicles a violation of the constitutional rights of colored persons. Moreover, she had been permitted to ride unmolested in the same seat with a white passenger during the two and a half hours ride from Richmond to South Hill. On the latter point the driver testified that the bus was crowded with passengers standing in the aisles when he left Richmond, and he did not notice that the plaintiff was seated in the same part of the bus as the white passengers. When the plaintiff refused to move, the driver called police officers who were compelled to use force to eject the plaintiff since she resisted and clung to her seat. After they had taken her from the vehicle, they attempted to take her to a police car but she again resisted and the officers then walked her some distance to the jail where she was charged with disorderly conduct and locked up. At the end of three hours she was allowed to deposit $20 in lieu of bail and released. She left Virginia shortly thereafter on another bus and did not return for her trial. During her struggles with the police officers, she lost a number of items of personal property, but there is no claim that the police officers used more force than was necessary to accomplish their purpose. It is not disputed that all the seats in the bus with the exception of the rearmost seat are equally convenient and comfortable. In respect to that seat the evidence was conflicting, some of the witnesses claiming that it is not so comfortable, others, that it furnishes to passengers substantially the same accommodations as the other seats afford. This question was submitted to the jury by the judge in his instruction as to the right of the carrier to promulgate reasonable regulations and its duty not to discriminate between passengers on account of their race. He said: “ * * * If you believe that those rules and regulations adopted by the Defendant, Atlantic Greyhound Corporation, are reasonable and fair in their application; that under the rules substantially equal facilities and accommodations are extended members of both the white and colored race, then the rule's and regulations are reasonable and enforceable. Of course, minor or trifling differences may appear, the accommodations do not have to be absolutely identical, but if they are substantially equal then the regulation and rules are valid and proper. If upon the other hand, in your opinion the facilities offered the plaintiff and members of her race * * * were unequal, * * * or were not substantially equal to those furnished white passengers, then the rules and regulations result in discrimination against members of the colored race, and should be declared invalid and unenforceable. “Now, if you believe from the evidence that the rules and regulations result in discrimination against the plaintiff by reason of her race or color, your verdict should be for the plaintiff. If upon the other hand you believe that the rules and regulations shown in evidence are not discriminatory and that the plaintiff was afforded substantially equal facilities with those furnished other passengers, * * * if you believe that to be the case the bus driver under the circumstances here related had the right and he was required to enforce or carry out the rules and regulations and to designate the seat to be occupied by the various passengers, which included the plaintiff. * * * if you believe that they were non-discriminatory, the driver has the right to change passengers within reason, and under reasonable conditions designate their seats and to apply those rules in a reasonable common sense way and if a passenger refuses to conform with the requirements of the bus driver then it was the right of the bus driver and his responsibility to eject that passenger from the bus. He had the right to call to his assistance, if necessary, a police officer, one or more, for the purpose of ejecting the passenger, the plaintiff in this case, but he was not permitted to use more force than was reasonable and proper under all the circumstances, in ejecting the passenger. Before ejecting the passenger he should acquaint such passenger with the existence or terms of the rules and regulations and request conformity therewith, if, after having done so, the passenger refuses to comply as I said, then he has the right to have the passenger removed. He has no right to use any greater force than is reasonable and proper under all the circumstancés existing.” In our .opinion, this charge fairly presented the case to the determination of the jury. We do not doubt that a regulation or course of conduct on the part of a carriel* which involves the repeated shifting of seats by colored passengers would in itself amount to discriminatory treatment in deprivation of their just rights; but that is not the case before us. When the plaintiff was requested to move, the bus was empty except for herself, and the shift could have been made without substantial inconvenience either to the other passengers or to herself. The adoption of a reasonable regulation by an interstate carrier for the segregation of passengers does not violate the law as laid down by the Supreme Court; and in this case both the reasonableness of the regulation and the manner in which it was enforced were fairly submitted to the jury and determined against the plaintiff. 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_civproc1	59	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited. SOMERVILLE v. CAPITAL TRANSIT CO. SOMERVILLE v. DAY. Nos. 10599, 10698. United States Court of Appeals District of Columbia Circuit. Argued June 1, 1951. Decided Sept. 21, 1951. Mr. Dorsey K. Offutt, Washington, D. C., for appellant. Mr. Paul R. Connolly, Washington, D. C., with whom Mr. John J. Sirica, Washington, D. C., was on the brief, for appel-lee Capital Transit Co. Mr. Albert F. Adams, Washington, D. C., for appellee Howard Day. Before CLARK, WILBUR K. MILLER and FAHY, Circuit Judges. FAHY, Circuit Judge. The appellant, Margaret Elizabeth Som-erville, brought suit in the District Court against appellees Howard Day and the Capital Transit Company. She sought to recover for injuries allegedly sustained in a collision between the taxicab in which she was riding and which was operated by Day and a streetcar owned and operated by the Capital Transit Company. The case was tried before a jury who returned a verdict against appellant as to the Capital Transit Company but in appellant’s favor against Day. Upon timely motion thereafter filed by the latter, the District Court granted a new trial as to the issues between appellant and Day and denied a new trial against the Capital Transit Company. On the second trial the jury found in Day’s favor. In due course appellant brought these appeals which are consolidated for hearing. She urges that it was an abuse of discretion for the trial court, in granting a new trial, to fail to do so as to the Capital Transit Company, and in not limiting the new trial against Day to the issue of damages only. It is a familiar principle that the grant or denial of a new trial rests in the sound discretion of the trial judge and that the exercise of this discretion will not be disturbed on review except for abuse. Kenyon v. Youngman, 1930, 59 App.D.C. 300, 40 F.2d 812; Atlantic Greyhound Lines v. Keesee, 1940, 72 App.D.C. 45, 111 F.2d 657; Ecker v. Potts, 1940, 72 App.D.C. 174, 112 F.2d 581; Ryan v. U. S., Duncan v. U. S., 89 U.S.App.D.C. -, 191 F.2d 779, decided July 26, 1951. Abuse is ordinarily established by showing that the trial court acted without authority, Freid v. McGrath, 1942, 76 U.S.App.D.C. 388, 133 F.2d 350, for an erroneous reason, cf. National Ben. Life Ins. Co. v. Shaw-Walker Co., 1940, 71 App.D.C. 276, 286, 111 F.2d 497, 507, or arbitrarily and without justification in light of all the circumstances as shown by a review of the record as a whole, Cornwell v. Cornwell, 1941, 73 App.D.C. 233, 118 F.2d 396; Boyle v. Bond, 1951, 88 U.S.App. D.C. 178, 187 F.2d 362. In the instant case the motion for a new trial filed by Day recited numerous grounds, including, inter alia, that the verdict was contrary to the evidence, error of the trial court in refusing to give proffered instructions, excessiveness of the verdict, and newly discovered evidence. Which of these grounds were relied upon by the trial court in acting on the motion does not appear from the court’s order, from ‘anything printed in the joint appendix, or from anything in the transcripts lodged with this court. Neither does the joint appendix nor said transcripts contain any record of the evidence produced on the first trial. In short, the state of the record before us precludes at the outset a finding of abuse in this case, unless we were to rule that the granting of a new trial as to one of two defendants sued jointly in tort is per se an abuse. That this is not the case is clear from the terms of Rule 59(a), Fed.R. Civ.P., 28 U.S.C.A., alone. See also Dollar S. S. Lines v. Merz, 9 Cir., 1934, 68 F.2d 594, 595; United Retail C. & T. Ass’n v. Denahan, D.C.Mun.App.1945, 44 A.2d 69. Indeed, prior to the Federal Rules of Civil Procedure it was the practice for courts to order “a new trial only for those parties prejudiced by the judgment.” 3 Moore’s Federal Practice 3248 (1st Ed.). Accordingly, we cannot characterize the action of the trial court in granting a new trial in the manner done here as an abuse of discretion. The appellant also urges as error the denial of three requested instructions in the second trial. Two of these were drawn on the premise that the Capital Transit Company was a party defendant in the second trial. The other was drawn on the premise that the retrial was limited solely to the question of damages. These premises being contrary to the ‘actual situation which pertained, the requests were properly denied. Affirmed. . Capitol Cab Association was also named as a party defendant in the complaint, but the appellant .dismissed the action as against it at pretrial proceedings. . Rule 59. New Trials; Amendment o£ Judgments “(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States; * * (Emphasis added.) . An affidavit accompanied the motion of Day for new trial. It set forth at some length that plaintiff had suffered injuries in another accident, prior to the trial, and did not inform the jury of these injuries, alleged to be similar to those claimed to have resulted from the accident in suit. Were we to infer that this affidavit furnished the basis for the award of a new trial to Day, our conclusion would be the same; that is, we could not say the court abused its discretion in denying a new trial against the Capital Transit Company, no error appearing in the trial which resulted favorably to that defendant, or in opening the new trial as to Day to both liability and injury. We have no solid basis on the record for holding that the affidavit, assuming it was the basis of the court’s action, might not have justified a rehearing of the testimony as to liability as well as to injury. Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number. Answer:
sc_lcdisposition	C	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. SECURITIES & EXCHANGE COMMISSION v. CHENERY CORPORATION et al. NO. 81. Argued December 13, 16, 1946. Decided June 23, 1947. Roger S. Foster argued the cause for petitioner. With him on the brief were Solicitor General McGrath and Theodore L. Thau. Spencer Gordon argued the cause and filed a brief for respondents in No. 81. Allen S. Hubbard argued the cause and filed a brief for respondent in No. 82. Mr. Justice Murphy delivered the opinion of the Court. This case is here for the second time. In S. E. C. v. Chenery Corp., 318 U. S. 80, we held that an order of the Securities and Exchange Commission could not be sustained on the grounds upon which that agency acted. We therefore directed that the case be remanded to the Commission for such further proceedings as might be appropriate. On remand, the Commission reexamined the problem, recast its rationale and reached the same result. The issue now is whether the Commission’s action is proper in light of the principles established in our prior decision. When the case was first here, we emphasized a simple but fundamental rule of administrative law. That rule is to the effect that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis. To do so would propel the court into the domain which Congress has set aside exclusively for the administrative agency. We also emphasized in our prior decision an important corollary of the foregoing rule. If the administrative action is to be tested by the basis upon which it purports to rest, that basis must be set forth with such clarity as to be understandable. It will not do for a court to be compelled to guess at the theory underlying the agency’s action; nor can a court be expected' to chisel that which must be precise from what the agency has left vague and indecisive. In other words, “We must know what a decision means before the duty becomes ours to say whether it is right or wrong.” United States v. Chicago, M., St. P. & P.R. Co., 294 U.S. 499, 511. Applying this rule and its corollary, the Court was unable to sustain the Commission’s original action. The Commission had been dealing with the reorganization of the Federal Water Service Corporation (Federal), a holding company registered under the Public Utility Holding Company Act of 1935, 49 Stat. 803. During the period when successive reorganization plans proposed by the management were before the Commission, the officers, directors and controlling stockholders of Federal purchased a substantial amount of Federal’s preferred stock on the over-the-counter market. Under the fourth reorganization plan, this preferred stock was to be converted into common stock of a new corporation; on the basis of the purchases of preferred stock, the management would have received more than 10% of this new common stock. It was frankly admitted that the management’s purpose in buying the preferred stock was to protect its interest in the new company. It was also plain that there was no fraud or lack of disclosure in making these purchases. But the Commission would not approve the fourth plan so long as the preferred stock purchased by the management was to be treated on a parity with the other preferred stock. It felt that the officers and directors of a holding company in process of reorganization under the Act were fiduciaries and were under a duty not to trade in the securities of that company during the reorganization period. 8 S. E. C. 893, 915-921. And so the plan was amended to provide that the preferred stock acquired by the management, unlike that held by others, was not to be converted into the new common stock; instead, it was to be surrendered at cost plus dividends accumulated since the purchase dates. As amended, the plan was approved by the Commission over the management’s objections. 10 S. E. C. 200. The Court interpreted the Commission’s order approving this amended plan as grounded solely upon judicial authority. The Commission appeared to have treated the preferred stock acquired by the management in accordance with what it thought were standards theretofore recognized by courts. If it intended to create new standards growing out of its experience in effectuating the legislative policy, it failed to express itself with sufficient clarity and precision to be so understood. Hence the order was judged by the only standards clearly invoked by the Commission. On that basis, the order could not stand. The opinion pointed out that courts do not impose upon officers and directors of a corporation any fiduciary duty to its stockholders which precludes them, merely because they are officers and directors, from buying and selling the corporation’s stock. Nor was it felt that the cases upon which the Commission relied established any principles of law or equity which in themselves would be sufficient to justify this order. The opinion further noted that neither Congress nor the Commission had promulgated any general rule proscribing such action as the purchase of preferred stock by Federal’s management. And the only judge-made rule of equity which might have justified the Commission’s order related to fraud or mismanagement of the reorganization by the officers and directors, matters which were admittedly absent in this situation. After the case was remanded to the Commission, Federal Water and Gas Corp. (Federal Water), the surviving corporation under the reorganization plan, made an application for approval of an amendment to the plan to provide for the issuance of new common stock of the reorganized company. This stock was to be distributed to the members of Federal’s management on the basis of the shares of the old preferred stock which they had acquired during the period of reorganization, thereby placing them in the same position as the public holders of the old preferred stock. The intervening members of Federal’s management joined in this request. The Commission denied the application in an order issued on February 8,1945. Holding Company Act Release No. 5584. That order was reversed by the Court of Appeals, 80 U. S. App. D. C. 365, 154 F. 2d 6, which felt that our prior decision precluded such action by the Commission. The latest order of the Commission definitely avoids the fatal error of relying on judicial precedents which do not sustain it. This time, after a thorough reexamination of the problem in light of the purposes and standards of the Holding Company Act, the Commission has concluded that the proposed transaction is inconsistent with the standards of §§ 7 and 11 of the Act. It has drawn heavily upon its accumulated experience in dealing with utility reorganizations. And it has expressed its reasons with a clarity and thoroughness that admit of no doubt as to the underlying basis of its order. The argument is pressed upon us, however, that the Commission was foreclosed from taking such a step following our prior decision. It is said that, in the absence of findings of conscious wrongdoing on the part of Federal’s management, the Commission could not determine by an order in this particular case that it was inconsistent with the statutory standards to permit Federal’s management to realize a profit through the reorganization purchases. All that it could do was to enter an order allowing an amendment to the plan so that the proposed transaction could be consummated. Under this view, the Commission would be free only to promulgate a general rule outlawing such profits in future utility reorganizations; but such a rule would have to be prospective in nature and have no retroactive effect upon the instant situation. We reject this contention, for it grows out of a misapprehension of our prior decision and of the Commission’s statutory duties. We held no more and no less than that the Commission’s first order was unsupportable for the reasons supplied by that agency. But when the case left this Court, the problem whether Federal’s management should be treated equally with other preferred stockholders still lacked a final and complete answer. It was clear that the Commission could not give a negative answer by resort to prior judicial declarations. And it was also clear that the Commission was not bound by settled judicial precedents in a situation of this nature. 318 U. S. at 89. Still unsettled, however, was the answer the Commission might give were it to bring to bear on the facts the proper administrative and statutory considerations, a function which belongs exclusively to the Commission in the first instance. The administrative process had taken an erroneous rather than a final turn. Hence we carefully refrained from expressing any views as to the propriety of an order rooted in the proper and relevant considerations. See Siegel Co. v. Federal Trade Commission, 327 U. S. 608, 613-614. When the case was directed to be remanded to the Commission for such further proceedings as might be appropriate, it was with the thought that the Commission would give full effect to its duties in harmony with the views we had expressed. Ford Motor Co. v. Labor Board, 305 U. S. 364, 374; Federal Radio Commission v. Nelson Bros. Co., 289 U. S. 266, 278. This obviously meant something more than the entry of a perfunctory order giving parity treatment to the management holdings of preferred stock. The fact that the Commission had committed a legal error in its first disposition of the case certainly gave Federal’s management no vested right to receive the benefits of such an order. See Federal Communications Commission v. Pottsville Broadcasting Co., 309 U. S. 134, 145. After the remand was made, therefore, the Commission was bound to deal with the problem afresh, performing the function delegated to it by Congress. It was again charged with the duty of measuring the proposed treatment of the management’s preferred stock holdings by relevant and proper standards. Only in that way could the legislative policies embodied in the Act be effectuated. Cf. Labor Board v. Donnelly Co., 330 U. S. 219, 227-228. The absence of a general rule or regulation governing management trading during reorganization did not affect the Commission’s duties in relation to the particular proposal before it. The Commission was asked to grant or deny effectiveness to a proposed amendment to Federal’s reorganization plan whereby the management would be accorded parity treatment on its holdings. It could do that only in the form of an order, entered after a due consideration of the particular facts in light of the relevant and proper standards. That was true regardless of whether those standards previously had been spelled out in a general rule or regulation. Indeed, if the Commission rightly felt that the proposed amendment was inconsistent with those standards, an order giving effect to the amendment merely because there was no general rule or regulation covering the matter would be unjustified. It is true that our prior decision explicitly recognized the possibility that the Commission might have promulgated a general rule dealing with this problem under its statutory rule-making powers, in which case the issue for our consideration would have been entirely different from that which did confront us. 318 U. S. 92-93. But we did not mean to imply thereby that the failure of the Commission to anticipate this problem and to promulgate a general rule withdrew all power from that agency to perform its statutory duty in this case. To hold that the Commission had no alternative in this proceeding but to approve the proposed transaction, while formulating any general rules it might desire for use in future cases of this nature, would be to stultify the administrative process. That we refuse to do. Since the Commission, unlike a court, does have the ability to make new law prospectively through the exercise of its rule-making powers, it has less reason to rely upon ad hoc adjudication to formulate new standards of conduct within the framework of the Holding Company Act. The function of filling in the interstices of the Act should be performed, as much as possible, through this quasi-legislative promulgation of rules to be applied in the future. But any rigid requirement to that effect would make the administrative process inflexible and incapable of dealing with many of the specialized problems which arise. See Report of the Attorney General’s Committee on Administrative Procedure in Government Agencies, S. Doc. No. 8, 77th Cong., 1st Sess., p. 29. Not every principle essential to the effective administration of a statute can or should be cast immediately into the mold of a general rule. Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations. In performing its important functions in these respects, therefore, an administrative agency must be equipped to act either by general rule or by individual order. To insist upon one form of action to the exclusion of the other is to exalt form over necessity. In other words, problems may arise in a case which the administrative agency could not reasonably foresee, problems which must be solved despite the absence of a relevant general rule. Or the agency may not have had sufficient experience with a particular problem to warrant rigidifying its tentative judgment into a hard and fast rule. Or the problem may be so specialized and varying in nature as to be impossible of capture within the boundaries of a general rule. In those situations, the agency must retain power to deal with the problems on a case-to-case basis if the administrative process is to be effective. There is thus a very definite place for the case-by-case evolution of statutory standards. And the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency. See Columbia Broadcasting System v. United States, 316 U. S. 407, 421. Hence we refuse to say that the Commission, which had not previously been confronted with the problem of management trading during reorganization, was forbidden from utilizing this particular proceeding for announcing and applying a new standard of conduct. Cf. Federal Trade Commission v. Keppel & Bro., 291 U. S. 304. That such action might have a retroactive effect was not necessarily fatal to its validity. Every case of first impression has a retroactive effect, whether the new principle is announced by a court or by an administrative agency. But such retroactivity must be balanced against the mischief of producing a result which is contrary to a statutory design or to legal and equitable" principles. If that mischief is greater than the ill effect of the retroactive application of a new standard, it is not the type of retroactivity which is condemned by law. See Addison v. Holly Hill Co., 322 U. S. 607, 620. And so in this case, the fact that the Commission’s order might retroactively prevent Federal’s management from securing the profits and control which were the objects of the preferred stock purchases may well be outweighed by the dangers inherent in such purchases from the statutory standpoint. If that is true, the argument of retroactivity becomes nothing more than a claim that the Commission lacks power to enforce the standards of the Act in this proceeding. Such a claim deserves rejection. The problem in this case thus resolves itself into a determination of whether the Commission’s action in denying effectiveness to the proposed amendment to the Federal reorganization plan can be justified on the basis upon which it clearly rests. As we have noted, the Commission avoided placing its sole reliance on inapplicable judicial precedents. Rather it has derived its conclusions from the particular facts in the case, its general experience in reorganization matters and its informed view of statutory requirements. It is those matters which are the guide for our review. The Commission concluded that it could not find that the reorganization plan, if amended as proposed, would be “fair and equitable to the persons affected thereby” within the meaning of § 11 (e) of the Act, under which the reorganization was taking place. Its view was that the amended plan would involve the issuance of securities on terms “detrimental to the public interest or the interest of investors” contrary to §§ 7 (d) (6) and 7 (e), and would result in an “unfair or inequitable distribution of voting power” among the Federal security holders within the meaning of § 7 (e). It was led to this result “not by proof that the interveners [Federal’s management] committed acts of conscious wrongdoing but by the character of the conflicting interests created by the interveners’ program of stock purchases carried out while plans for reorganization were under consideration.” The Commission noted that Federal’s management controlled a large multi-state utility system and that its influence permeated down to the lowest tier of operating companies. The financial, operational and accounting policies of the parent and its subsidiaries were therefore under the management’s strict control. The broad range of business judgments vested in Federal’s management multiplied opportunities for affecting the market price of Federal’s outstanding securities and made the exercise of judgment on any matter a subject of greatest significance to investors. Added to these normal managerial powers, the Commission pointed out that a holding company management obtains special powers in the course of a voluntary reorganization under § 11 (e) of the Holding Company Act. The management represents the stockholders in such a reorganization, initiates the proceeding, draws up and files the plan, and can file amendments thereto at any time. These additional powers may introduce conflicts between the management’s normal interests and its responsibilities to the various classes of stockholders which it represents in the reorganization. Moreover, because of its representative status, the management has special opportunities to obtain advance information of the attitude of the Commission. Drawing upon its experience,-the Commission indicated that all these normal and special powers of the holding company management during the course of a § 11 (e) reorganization placed in the management’s command “a formidable battery of devices that would enable it, if it should choose to use them selfishly, to affect in material degree the ultimate allocation of new securities among the various existing classes, to influence the market for its own gain, and to manipulate or obstruct the reorganization required by the mandate of the statute.” In that setting, the Commission felt that a management program of stock purchase would give rise to the temptation and the opportunity to shape the reorganization proceeding so as to encourage public selling on the market at low prices. No management could engage in such a program without raising serious questions as to whether its personal interests had not opposed its duties “to exercise disinterested judgment in matters pertaining to subsidiaries’ accounting, budgetary and dividend policies, to present publicly an unprejudiced financial picture of the enterprise, and to effectuate a fair and feasible plan expeditiously.” The Commission further felt that its answer should be the same even where proof of intentional wrongdoing on the management’s part is lacking. Assuming a conflict of interests, the Commission thought that the absence of actual misconduct is immaterial; injury to the public investors and to the corporation may result just as readily. “Questionable transactions may be explained away, and an abuse of investors and the administrative process may be perpetrated without evil intent, yet the injury will remain.” Moreover, the Commission was of the view that the delays and the difficulties involved in probing the mental processes and personal integrity of corporate officials do not warrant any distinction on the basis of evil intent, the plain fact being “that an absence of unfairness or detriment in cases of this sort would be practically impossible to establish by proof.” Turning to the facts in this case, the Commission noted the salient fact that the primary object of Federal’s management in buying the preferred stock was admittedly to obtain the voting power that was accruing to that stock through the reorganization and to profit from the investment therein. That stock had been purchased in the market at prices that were depressed in relation to what the management anticipated would be, and what in fact was, the earning and asset value of its reorganization equivalent. The Commission admitted that the good faith and personal integrity of this management were not in question; but as to the management’s justification of its motives, the Commission concluded that it was merely trying to “deny that they made selfish use of their powers during the period when their conflict of interest, vis-a-vis public investors, was in existence owing to their purchase program.” Federal’s management had thus placed itself in a position where it was “peculiarly susceptible to temptation to conduct the reorganization for personal gain rather than the public good” and where its desire to make advantageous purchases of stock could have an important influence, even though subconsciously, upon many of the decisions to be made in the course of the reorganization. Accordingly, the Commission felt that all of its general considerations of the problem were applicable to this case. The scope of our review of an administrative order wherein a new principle is announced and applied is no different from that which pertains to ordinary administrative action. The wisdom of the principle adopted is none of our concern. See Board of Trade v. United States, 314 U. S. 534, 548. Our duty is at an end when it becomes evident that the Commission’s action is based upon substantial evidence and is consistent with the authority granted by Congress. See National Broadcasting Co. v. United States, 319 U. S. 190, 224. We are unable to say in this case that the Commission erred in reaching the result it did. The facts being undisputed, we are free to disturb the Commission’s conclusion only if it lacks any rational and statutory foundation. In that connection, the Commission has made a thorough examination of the problem, utilizing statutory standards and its own accumulated experience with reorganization matters. In essence, it has made what we indicated in our prior opinion would be an informed, expert judgment on the problem. It has taken into account “those more subtle factors in the marketing of utility company securities that gave rise to the very grave evils which the Public Utility Holding [Company] Act of 1935 was designed to correct” and has relied upon the fact that “Abuse of corporate position, influence, and access to information may raise questions so subtle that the law can deal with them effectively only by pfóhibitions not concerned with the fairness of a particular transaction.” 318 U. S. at 92. Such factors may properly be considered by the Commission in determining whether to approve a plan of reorganization of a utility holding company, or an amendment to such a plan. The “fair and equitable” rule of § 11 (e) and the standard of what is “detrimental to the public interest or the interest of investors or consumers” under § 7 (d) (6) and § 7 (e) were inserted by the framers of the Act in order that the Commission might have broad powers to protect the various interests at stake. 318 U. S. at 90-91. The application of those criteria, whether in the form of a particular order or a general regulation, necessarily requires the use of informed discretion by the Commission. The very breadth of the statutory language precludes a reversal of the Commission’s judgment save where it has plainly abused its discretion in these matters. See United States v. Lowden, 308 U. S. 225; I. C. C. v. Railway Labor Assn., 315 U. S. 373. Such an abuse is not present in this case. The purchase by a holding company management of that company’s securities during the course of a reorganization may well be thought to be so fraught with danger as to warrant a denial of the benefits and profits accruing to the management. The possibility that such a stock purchase program will result in detriment to the public investors is not a fanciful one. The influence that program may have upon the important decisions to be made by the management during reorganization is not inconsequential. Since the officers and directors occupy fiduciary positions during this period, their actions are to be held to a higher standard than that imposed upon the general investing public. There is thus a reasonable basis for a judgment that the benefits and profits accruing to the management from the stock purchases should be prohibited, regardless of the good faith involved. And it is a judgment that can justifiably be reached in terms of fairness and equitableness, to the end that the interests of the public, the investors and the consumers might be protected. But it is a judgment based upon public policy, a judgment which Congress has indicated is of the type for the Commission to make. The Commission’s conclusion here rests squarely in that area where administrative judgments are entitled to the greatest amount of weight by appellate courts. It is the product of administrative experience, appreciation of the complexities of the problem, realization of the statutory policies, and responsible treatment of the uncontested facts. It is the type of judgment which administrative agencies are best equipped to make and which justifies the use of the administrative process. See Republic Aviation Corp. v. Labor Board, 324 U. S. 793, 800. Whether we agree or disagree with the result reached, it is an allowable judgment which we cannot disturb. Reversed. Mr. Justice Burton concurs in the result. The Chief Justice and Mr. Justice Douglas took no part in the consideration or decision of these cases. Mr. Justice Frankfurter and Mr. Justice Jackson dissent, but there is not now opportunity for a response adequate to the issues raised by the Court’s opinion. These concern the rule of law in its application to the administrative process and the function of this Court in reviewing administrative action. Accordingly, the detailed grounds for dissent will be filed in due course. Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:
sc_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. LINER et al. v. JAFCO, INC., et al. No. 43. Argued November 21, 1963. Decided January 6, 1964. S. Del Fuston argued the cause for petitioners. With him on the brief was H. G. B. King. John A. Chambliss, Jr. argued the cause for respondents. With him on the brief was James F. Com. Mr. Justice Brennan delivered the opinion of the Court. The Chattanooga Building Trades Council, AFL, is composed of 17 building trades unions, including Hod-Carriers Building and Common Laborers’ Union of America and its Local 846, two of the petitioners. Respondent Rea Construction Company, a large North Carolina building contractor, was engaged by respondent Jafco, Inc., as general contractor to erect a shopping center on a site in Cleveland, Tennessee. Rea operated an open shop, and workers on the project were paid lower wages than the union scale. The Council authorized the Hod-Carriers to place a single picket at the site in protest. The petitioner Liner, carrying a sign which read “Rea Construction Co., not under contract with Chattanooga Building Trades Council, A. F. of L.,” began peaceful picketing on August 8, 1960. Construction workers on the job promptly ceased work. On the same day respondent Jafco, Inc., sought an ex parte injunction against the picketing from the Tennessee Chancery Court, which ordered the injunction to issue upon the execution and filing of an injunction bond. See 5 Tenn. Code Ann., 1955, § 23-1901. The next day, August 9, Jafco filed a bond providing that, if the injunction action failed, Jafco “shall well and truly pay and satisfy the said [petitioners] all such costs, damages, interest, and other sums as may be awarded and recovered against the said Jafco, Inc. in any suit or suits which may be hereafter broyght [sic] for wrongfully suing out said Injunction . . . Thereupon the ex parte injunction issued, the picketing ceased in compliance with it, and work on the project was resumed. The petitioners moved promptly in the Chancery Court to dissolve the injunction on the ground that the state court was without jurisdiction to adjudicate the controversy because the subject matter of the picketing was exclusively within the cognizance of the National Labor Relations Board. The motion was denied on September 29 by an order which recited, “There is no bona fide labor dispute between the parties in this litigation and therefore the state court has jurisdiction of the matter and the same has not [been] preempted by the National Labor Relations Board.” Following a hearing, the injunction was made permanent by a final decree entered on June 16, 1961. Petitioners appealed to the Court of Appeals of Tennessee, Eastern Section, which affirmed on January 12, 1962. The opinion, not officially reported, is reported in 49 L. R. R. M. 2585. Pending decision on the appeal, construction at the site had been completed. Noting this fact, the court stated, “In the first place the questions in this case have become moot.” However, the court went on to say, “Further, we concur with the Chancellor’s finding that a bona fide labor dispute did not exist.” 49 L. R. R. M., at 2587. The Supreme Court of Tennessee, by an unreported order, denied certiorari. We brought the case here, 371 U. S. 961, to consider the validity of the injunction in light of our decision in Local 438, Construction Laborers v. Curry, 371 U. S. 542. We hold that the issuance of the injunction was beyond the power of the Tennessee courts and therefore reverse the judgment. We must first consider respondents’ challenge to our jurisdiction to review the Tennessee courts’ rejection of the petitioners’ federal preemption claim. The argument is that we are bound by the state appellate court’s holding that this case was rendered moot by the completion of construction. We think, however, that in this case the question of mootness is itself a question of federal law upon which we must pronounce final judgment. Love v. Griffith, 266 U. S. 32. In that case a Texas trial court dismissed a suit to enjoin the enforcement of an allegedly unconstitutional rule which barred Negroes from voting in a single Houston Democratic primary election. An appeal from the dismissal was in turn dismissed by the Texas Court of Civil Appeals on the ground that, since the election was, at that time, long since passed, the cause of action had ceased to exist. This Court, speaking through Mr. Justice Holmes, implicitly denied that the state court’s finding of mootness precluded our independent determination of that question, saying, “When as here there is a plain assertion of federal rights in the lower court, local rules as to how far it shall be reviewed on appeal do not necessarily prevail. Davis v. Wechsler, 263 U. S. 22, 24. Whether the right was denied or not given due recognition by the Court of Civil Appeals is a question as to which the plaintiffs are entitled to invoke our judgment. Ward v. Love County, 253 U. S. 17,22.” 266 U. S., at 33-34. The Court did not, however, think that the action of the Texas Court of Civil Appeals prejudiced the appellants’ constitutional rights. Since the election had been held, any order reversing the trial court and ordering the injunction to issue would have been futile; an injunction could not at that date redress the alleged constitutional injury. The Court said: “If the case stood here as it stood before the court of first instance it would present a grave question of constitutional law and we should be astute to avoid hindrances in the way of taking it up. But that is not the situation. The rule promulgated by the Democratic Executive Committee was for a single election only that had taken place long before the decision of the Appellate Court. No constitutional rights of the plaintiffs in error were infringed by holding that the cause of action had ceased to exist. The bill was for an injunction that could not be granted at that time. There was no constitutional obligation to extend the remedy beyond what was prayed.” 266 U. S., at 34. In contrast, the prejudice to the petitioners from the action of the Tennessee Court of Appeals in affirming the injunction which did issue in the instant case is clear. The petitioners plainly have “a substantial stake in the judgment . . . ,” Fiswick v. United States, 329 U. S. 211, 222, which exists apart from and is unaffected by the completion of construction. Their interest derives from the undertaking of respondent Jafco, Inc., in the injunction bond to indemnify them in damages if the injunction was “wrongfully” sued out. Whether the injunction was wrongfully sued out turns solely upon the answer to the federal question which the petitioners have pressed from the beginning. If the answer of the Tennessee Court of Appeals to that question may not be challenged here, the petitioners have no recourse against Jafco on the bond. Thus, unlike Love v. Griffith, supra, the federal issues remain of operative importance to the parties as they come to this Court; here it may be said that the Tennessee courts have in substance and effect denied a federal right, and the completion of construction cannot be deemed a hindrance to our review of the federal question. This is not a case where this Court’s decision on the merits of that question “cannot affect the rights of the litigants in the case before it.” St. Pierre v. United States, 319 U. S. 41, 42. Moreover, this is particularly a case in which “we should be astute to avoid hindrances in the way of taking” up that question. Despite the completion of construction, our superintendence of a state court injunction against conduct alleged to be cognizable exclusively by the National Labor Relations Board is desirable “if the danger of state interference with national policy is to be averted,” San Diego Building Trades Council v. Garmon, 359 U. S. 236, 245. This controversy involves the fundamental question of whether the Tennessee courts had any power whatever to adjudicate the dispute between the parties. Congress has invested the National Labor Relations Board with the exclusive power to adjudicate conduct arguably protected or prohibited by the National Labor Relations Act. San Diego Building Trades Council v. Garmon, supra. If the peaceful picketing complained of in this case is such conduct, Congress has ordained — to further uniform regulation and to avoid the inconsistencies which would result from the application of disparate state remedies — that only the federal agency shall deal with it. Weber v. Anheuser-Busch, Inc., 348 U. S. 468. The issuance of the state injunction in this case tended to frustrate this federal policy. This would be true even if the picketing were prohibited conduct. For although the National Labor Relations Board is not barred- from granting appropriate remedies by the fact that the challenged conduct has ceased, Labor Board v. Mexia Textile Mills, Inc., 339 U. S. 563, or that the construction has been completed, Local 74, Carpenters Union v. Labor Board, 341 U. S. 707, charges of unfair labor practices must be filed within six months of their occurrence, and an employer armed with a state injunction would have no incentive to initiate Board proceedings. It would encourage such interference with the federal agency’s exclusive jurisdiction if a state court’s holding of mootness based on the chance event of completion of construction barred this Court’s review of the state court’s adverse decision on the claim of federal preemption. We have given significant weight to the vital importance of preventing state injunctions from frustrating federal labor policy in situations wfiich the Congress has ordained shall be dealt with exclusively by the Board. In Construction Laborers v. Curry, supra, we considered whether a state court temporary injunction in a labor dispute should be considered to be a final judgment for purposes of our review under 28 U. S. C. § 1257. We held that the temporary injunction should be deemed a final judgment “particularly when postponing review would seriously erode the national labor policy requiring the subject matter of respondents' cause to be heard by the National Labor Relations Board, not by the state courts,” and said further, “The truth is that authorizing the issuance of a temporary injunction, as is frequently true of temporary injunctions in labor disputes, may effectively dispose of petitioner’s rights and render entirely illusory his right to review here as well as his right to a hearing before the Labor Board.” 371 U. S., at 550. In Sola Electric Co. v. Jefferson Electric Co., 317 U. S. 173, a patent licensee defended against a suit for unpaid royalties by attacking the validity under the Sherman Act of a price-fixing stipulation in his license. The lower courts held that having accepted the license with the price-fixing stipulation, the licensee was estopped to deny the validity of the stipulation. This Court reversed. The question presented was “whether the doctrine of estoppel as invoked below is so in conflict with the Sherman Act’s prohibition of price-fixing that this Court may resolve the question even though its conclusion be contrary to that of a state court.” 317 U. S., at 175. We held that local rules of estoppel would.not be permitted to thwart the purposes of statutes of the United States. We said, 317 U. S., at 176: “It is familiar doctrine that the prohibition of a federal statute may not be set at naught, or its benefits denied, by state statutes or state common law rules. In such a case our decision is not controlled by Erie R. Co. v. Tompkins, 304 U. S. 64. There we followed state law because it was the law to be applied in the federal courts. But the doctrine of that case is inapplicable to those areas of judicial decision within which the policy of the law is so dominated by the sweep of federal statutes that legal relations which they affect must be deemed governed by federal law having its source in those statutes, rather than by local law. . . . When a federal statute condemns an act as unlawful, the extent and nature of the legal consequences of the condemnation, though left by the statute to judicial determination, are nevertheless federal questions, the answers to which are to be derived from the statute and the federal policy which it has adopted. To the federal statute and policy, conflicting state law and policy must yield. Constitution, Art. VI, cl. 2; . . .” If in Sola a state substantive rule of law had to yield to the federal statute and policy, even more so here— where the claim is that the federal statute and policy oust state courts of any power whatever to deal with the conduct in question — local rules which purport to preclude state appellate court adjudication of the federal preemption claim cannot conclusively render the case moot for the purposes of this Court’s review. We turn then to the merits. Our discussion need not be extended, for in our view the case is squarely governed by our decision in Construction Laborers v. Curry, supra. Whether or not the facts showed a “labor dispute” within the meaning of 29 U. S. C. § 152 (9) is certainly at least arguable. Consequently, as we said in Curry, “the state court had no jurisdiction to issue an injunction or to adjudicate this controversy, which lay within the exclusive powers of the National Labor Relations Board.” 371 U. S., at 546-547. The judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion. It is so ordered. The respondent Rea Construction Company was added as a party complainant by an amended and supplemental bill filed August 10, 1960. In its opinion on making the injunction perpetual, the trial court also found “that the erection of the shopping center does not involve Interstate Commerce. It is a localized action and by no definition of the term can it be said that this operation amounts to Interstate Commerce.” The respondents do not support this finding in this Court. The proof was that, before the hearing, Rea Construction Company purchased outside Tennessee and brought to the site materials costing $147,099.67. This meets the direct inflow standards set by the National Labor Relations Board for the exercise of its jurisdiction. See 23 N. L. R. B. Ann. Rep. 8 (1958). Our lack of jurisdiction to review moot cases derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy. See Diamond, Federal Jurisdiction to Decide Moot Cases, 94 U. of Pa. L. Rev. 125 (1946); Note, 103-Ü. of Pa. L. Rev. 772 (1955). 29 U. S. C. §160 (b). The petitioners sought to advance the hearing and decision of their appeal to the Tennessee Court of Appeals. The court said, 49 L. R. R. M., at 2587: “The [petitioners] in brief filed June 22nd, 1961, in which they were seeking to advance the cause for hearing, stated: “ ‘In the instant case, the right of picketing will become moot by August 1, 1961, as the construction will be completed and the building ready for occupancy. Appellants know that they desire to picket one of the complainants, Rea Construction Company, this coming fall on a project which will require approximately six or eight months of construction. Without judicial review of this case they can only expect the same Trial Court to act the same, and again they cannot possibly get the case to the appellate court for a decision within that time.’ ” “The term 'labor dispute’ includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.” 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_sentence	A	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". UNITED STATES of America, Plaintiff-Appellee, v. An Chyi LIU, a/k/a Fat Frank, and Ai-Ti-Ting, a/k/a Eddie, Defendants-Appellants. No. 90-2976. United States Court of Appeals, Fifth Circuit. April 30, 1992. Martin D. Beirne, Houston, Tex. (Court-appointed), for Liu. George McCall Secrest, Jr., Houston, Tex. (Court-appointed), for Ting. Jeffrey A. Babcock, Paula C. Offenhau-ser, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, Tex., for U.S. Before WILLIAMS and WIENER, Circuit Judges, and LITTLE, District Judge. . District Judge of the Western District of Louisiana, sitting by designation. LITTLE, District Judge: Appellants Liu and Ting were found guilty by a jury of conspiring to bribe a public official, 18 U.S.C. § 201(b)(1)(C) and aiding and abetting the commission of the substantive offense of bribery of the same public official, 18 U.S.C. § 201(b)(1)(C). Liu was convicted of a separate bribery offense, and being an alien in possession of a firearm on two separate occasions. 18 U.S.C. § 922(g)(5) and § 924(a)(2). Subsequent to sentencing, Liu and Ting lodged a timely appeal with this court. Appellants raised a number of issues that they argue justify conviction reversal or sentence reduction. We decline to grant any relief to either appellant and affirm their convictions and sentence. An Chi Liu, born in Burma and now a Taiwan national, lived in Houston, Texas and operated a modeling studio in that city. During times material to this matter, Liu, as an alien, was without proper credentials to remain in this country. Thus, he is classified as an alien illegally and unlawfully in the United States. In late January, 1988, Houston police arrested Liu claiming that the modeling studio was a facade to mask the real operation on the premises — a whorehouse. After the arrest, Liu was approached by one of the Houston police arresting officers, Jeffrey Shaffer. Liu was asked to reveal any criminal activity of which he was aware occurring in the Houston-Asian community. Shaffer wanted Liu to be an informant. Liu accepted, and for a period of months Liu was paid to inform the Houston police department, through Shaffer, of criminal activities. Liu also provided, for pay, information to the F.B.I. Liu admitted to Shaffer that he was a member of a notorious group known as the United Bamboo Gang. Moreover, Liu was the bodyguard for one of the gang king pins — Fargo Chen a/k/a Yellowbird. Liu’s knowledge of the group’s illicit activities was the subject for sale to the police. On one occasion, Liu and Shaffer met at an oriental restaurant in Houston. Liu told Shaffer that he had purchased an Uzi automatic weapon, a prohibited act for an alien illegally and unlawfully in the United States. 18 U.S.C. § 922(g)(5) and 924(a)(2). Liu admitted that the acquisition was accomplished by use of false identification. He surrendered the weapon to Shaffer who, unbeknown to Liu, had it examined by the U.S. Bureau of Alcohol, Tobacco and Firearms. The weapon was then returned to Liu. Shaffer, through admissions from Liu, knew that Liu was in the United States illegally and needed a “green card” to authorize his continued stay and legalize his desired trip to Asia. Shaffer told Liu that he could arrange a meeting with an individual who could sell Liu a “green card.” Shaffer’s seemingly corrupt contact was actually a straight I.N.S. agent, Tom Ca-son. Cason met with Liu, and Liu agreed to buy five green cards. Liu coordinated a meeting among himself, five potential card purchasers, Cason, and Shaffer, but the transaction cratered when one of the would be purchasers was arrested on a smuggling charge by another governmental entity. This did not deter Liu from buying, by bribery, a green card for himself from Ca-son. During the period between March and November of 1989, Liu and Shaffer met many times. Liu’s interest in marketing, at a great profit, albeit illegal, green cards, was unsatisfied. Asians, living in the United States and desiring to purchase green cards, were known to Liu, and Liu was interested in satisfying their needs. Fellow defendant, Ai-Ti-Ting, was also in need of a green card. Ting, in this country illegally, had knowledge of immigration procedures, a knowledge which was essential to the sale of green cards to illegal aliens. In a Houston restaurant, Shaffer and Cason met with Liu, Ting, and a man known as Steve Huang. Huang was steamed with Liu as Liu collected a “green card” acquisition fee, but did not deliver as promised. Huang’s presence at the meeting was to insure receipt of the previously paid for document. Ting, the more credible and knowledgeable of the Ting-Liu duo, assured the group that Ting and Liu could sell ten green cards without any difficulty whatsoever. They agreed to acquire a ten-pack for $120,000.00 by paying cash upon receipt of the cards. The sale was set for sometime in January, 1990. Shaffer and Cason required that Ting and Liu prepare proper application documents for all the vendees, including a photograph of each prospective transferee. The show and tell event took place in a Houston motel and was recorded on video tape. Each candidate for green card acquisition was brought to the room. Forms were completed, and pictures provided. Ting and Liu supplied translations for those without a working knowledge of the English language. The film reveals that the purchasers were informed of the illegal nature of the transaction and that Shaffer and Cason were officers of the law. Officer Shaffer received $108,000 from Ting and Liu and, in their presence, called Cason to produce and deliver the green cards. Cason received the message and arrived at the Houston motel to make delivery. No cards were delivered. The purchasers had been duped. Liu, Ting and the others were arrested. The sting was complete. As an aside, the authorities obtained a general warrant to inspect Liu’s residence in search of the Uzi that Liu illegally possessed. The gun was located and confiscated. THE LIU APPEAL Liu raises two issues on appeal. We shall deal with each separately. EVIDENTIARY RULING DENYING TESTIMONY AS TO LIU’S STATED REASONS FOR BEING FEARFUL One of the defenses asserted by defendant Liu is that he played along with Shaffer and Cason not out of a desire to make money by distributing illegally acquired green cards, but out of fear of suffering injury or death at the hands of Shaffer. Without a knowledgeable person, such as Liu, Shaffer and Cason could not make money. Merely having green cards did not produce any cash. There had to be a purchaser, and that purchaser needed to be an Asian knowledgeable about illegal immigrants needing valid green cards. Thus, according to this argument, if Liu didn’t perform, Shaffer would physically abuse and possibly kill Liu. Liu now argues that the district court’s refusal to admit certain testimony on this issue constitutes reversible error. Liu’s cousin, Tung Shu, appeared as a witness at Liu’s trial. Shu testified that Liu told him that he was fearful for his life and that he was in a life threatening situation. Shu was prohibited from relating to the jury what Liu said to Shu about the cause of Liu’s fear. The evidence of what was said by Liu was offered, not for the truth of the statements, but to show Liu’s state of mind — i.e., the state of being fearful and what caused that fear. The ruling to exclude that evidence was subject to Liu’s objection and offer of proof. Liu links his quest for reversible error to Federal Rule of Evidence 803(3), an exception to the rule against admission of hearsay testimony. The following are not excluded by the hearsay rule, even though the declarant is available as a witnesses: (3) Then existing mental, emotional or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including the statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of the declarant’s will. Federal Rule of Evidence 803(3). We review evidentiary rulings by applying an abuse of discretion standard. If abuse is found, then the error is reviewed under the harmless error doctrine. United States v. Capote-Capote, 946 F.2d 1100, 1105 (5th Cir.1991); United States v. Moody, 903 F.2d 321, 326 (5th Cir.1990); United States v. Jimenez Lopez, 873 F.2d 769, 771 (5th Cir.1989). At trial Shu testified that during the four meetings that Liu had with Shu over a period of time, Liu “was scared” and that he had a fear of getting killed. The district court did not allow the witnesses to say that Liu was fearful because a governmental agent would do bad things to him, nor was he allowed to testify as to generalized conversations with Liu at indefinite times about Liu’s fear about injury to be received from a corrupt government agent. There was no abuse of discretion in the ruling by the district judge. Evidence of Liu’s fear was admitted. Properly excluded were the alleged reasons for that fear. We find guidance in the apt analysis of Federal Rule of Evidence 803(3), given by this court in 1980. That rule (referring to 803(3)) by its own terms excepts from the ban on hearsay such statements as might have been made by Cohen of his then existing state of mind or emotion, but expressly excludes from the operation of the rule a statement of belief to prove the fact be-lieved_ But the state-of-mind exception does not permit the witness to relate any of the declarant’s statements as to why he held the particular state of mind, or what he might have believed that would have induced the state of mind. If the reservation in the text of the rule is to have any effect, it must be understood to narrowly limit those admissible statements to declarations of condition — ‘I’m scared’ — and not belief — ‘I’m scared because Galkin threatened me.’ United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir.1980) reh’g denied, 636 F.2d 315 (5th Cir.1981) (footnote omitted). Evidence was admitted as to Liu’s state of mind but not hearsay evidence as to the exact nature of the cause of that condition. There was no error in the evidentiary ruling. JURY INSTRUCTION ON DURESS Liu’s submitted jury instruction on the issue of duress or justification (counsel for Liu uses both interchangeably) was rejected by the court. The tendered but denied instruction provided: One of the issues that the government must prove is that the defendant was not forced to commit the offenses charged in the indictment. The defendant was forced if: (1) He reasonably believed that participating in the offense was necessary to avoid specific and immediate threat of serious harm to himself or to another; and (2) He reasonably believed that participating in the offense was the only way to avoid this harm. The fact the defendant may have been wrong in what he believed does not matter so long as there was a reasonable basis for what he believed and he acted reasonably under the circumstances as they existed at that time. It is not up to the defendant to prove that he was forced to commit the offense as charged in the indictment. It is up to the government to prove that he was not. Failure to deliver an instruction constitutes reversible error when three conditions exist: 1) The instruction is substantially correct; 2) It is not substantially covered in the charge actually given the jury; and 3) It concerns an important point in the trial so that the failure to give it seriously impairs the defendant’s ability to present a given defense effectively. United States v. Hunt, 794 F.2d 1095, 1097 (5th Cir.1986). We have not been cited to, nor has our research unearthed, any Fifth Circuit case that defines a proper jury instruction on the issue of duress or justification. Although the Pattern Jury Instructions (Criminal Cases) prepared by the District Judges Association of the Fifth Circuit, 1990 Edition, published by West Publishing Company, is an excellent tool for the trial court, it does not contain a recommended instruction for the specific defense of duress, justification or coercion. The essential elements of such a defense, however, have been described in Fifth Circuit opinions. The prerequisites for entitlement to an instruction on duress were recently set forth in U.S. v. Harvey, 897 F.2d 1300 (5th Cir.1990). Before a defendant charged with such an offense is entitled to a jury instruction on the defense of justification, however, he must show: (1) that defendant was under an unlawful and 'present, imminent, and impending (threat) of such a nature as to induce a well-grounded apprehension of death or serious bodily injury.’; (2) that defendant had not ‘recklessly or negligently placed himself in a situation in which it was probable that he would be (forced to choose the criminal conduct)’; (3) that defendant had no ‘reasonable legal alternative to violating the law; a chance both to refuse to do the criminal act and also to avoid the threatened harm’; and (4) ‘that a direct causal relationship may be reasonably anticipated between the (criminal) action taken and the avoidance of (threatened) harm.’ Id. at 1304-5 quoting United States v. Harper, 802 F.2d 115, 117 (5th Cir.1986). The genesis of those four essential characteristics of duress or coercion in this circuit is United States v. Gant, 691 F.2d 1159, 1162 (5th Cir.1982). Other circuits describe the defense in a nearly identical manner. See, e.g., United States v. Michelson, 559 F.2d 567, 569 (9th Cir.1977); United States v. Lee, 694 F.2d 649, 654 (11th Cir.), cert. denied 460 U.S. 1086, 103 S.Ct. 1779, 76 L.Ed.2d 350 (1983); United States v. Campbell, 675 F.2d 815, 820-821 (6th Cir.), cert. denied, 459 U.S. 850, 103 S.Ct. 112, 74 L.Ed.2d 99 (1982). With that background we are not surprised to find that Pattern Jury Instructions for use in criminal cases in the Sixth, Seventh, Ninth and Eleventh Circuits adopt virtually identical instructions on coercion, intimidation, and duress. For example, the Eleventh Circuit adopts language that contains all of the elements required by this circuit’s jurisprudence: It is the theory of the defense in this case that although the Defendant may have committed the acts charged in the indictment, he did not do so voluntarily, but only because of force or coercion in the form of intimidation and threats of bodily harm to himself (or his family). As you have already been instructed willfulness is an essential element of the crime charged in the indictment, and acts done involuntarily because of coercion are not done willfully. In order to excuse an act that would otherwise be criminal, however, the intimidation or coercion must be present and immediate, and must be of such a nature that it induces a reasonable and well-founded fear of death or serious bodily injury to one’s self or someone else; and there must be no reasonable opportunity to escape from coercion without participating in the crime. If the evidence in the case leaves you with a reasonable doubt that the Defendant acted willfully as charged, then it is your duty to find the Defendant not guilty. Pattern Jury Instructions, Criminal Cases (U.S. 11th Cir., West Publishing Co. 1985). The charge submitted by Liu and Ting on the affirmative defense of duress does not comport with the requirements created by Fifth Circuit jurisprudence. It is clear that the jury should be informed that the defense is available if the defendant proves that he, or a member of his family, was under a present, imminent, or impending threat of death or serious bodily injury; that he had not recklessly or negligently placed himself in a situation in which it was probable that he would be forced to choose the criminal conduct; that he had no reasonable opportunity to escape from the situation and avoid the threatened harm; and that a direct causal relationship may be reasonably anticipated between the criminal act taken and the avoidance of the threatened harm. The submitted instruction is deficient because it contains no reference to the defendant’s burden to show proof that he did not negligently or recklessly place himself in a situation in which it was possible that he would be forced to choose the criminal conduct. Moreover, there is no specific reference in the instruction to the requirement that the defendant prove that he did not have a reasonable legal alternative to violating the law, i.e., a chance both to refuse to do the criminal act, and to avoid the threatened harm. In the submitted instruction the sentence, “He reasonably believed that participating in the offense was the only way to avoid this harm”, is opaque and lacks the direction for analysis that a jury is entitled to receive. Having concluded that the submitted instruction is not a correct statement of the law, we are not required to adjudicate the legal consequence of failing to give the instruction. We do note in passing, however, that a thorough review of the record leads the court to conclude that there is no evidence upon which a reasonable juror could find that Liu was laboring under a present, imminent and impending threat of such a nature as to indicate a well grounded apprehension of death or serious bodily injury. The testimony of fellow defendant Ting that Liu was concerned that his Quisling status would be disclosed to his fellow Asians by Shaffer, and that such action would mean serious retribution by the Asians, lacks any merit as being a present, imminent, impending threat of death or injury. Ting’s further testimony that Liu was afraid that Agent Shaffer would wipe him out if Liu failed to cooperate, reveals nothing definite as to when the damaging event would take place. Of even greater significance is the fact that the record does not reveal that Liu was without a reasonable legal alternative to violating the law, or that he had no chance to refuse to do the criminal act, or to avoid the threatened harm. Liu purchased a green card for himself. He used that card to travel between Asia and the United States. He returned to Houston from Taiwan and actively sought to market green cards to illegal aliens. Liu had a number of reasonable alternatives to the continued illegality. He could have surrendered to federal officials in any city in the United States. He could have communicated with federal officials in any city in the United States. He could have remained abroad. He could have sought protection in another city. We must remember that the initial meeting between Shaffer and Liu occurred in January of 1988. The arrest, as a result of presentation of cash for more green cards, was made in January of 1990. For obvious reasons, the record is a fertile field to find many reasonable legal alternatives to violating the law over a two year period. Liu is not entitled to an instruction on duress. THE TING APPEAL JURY INSTRUCTION ON DURESS Ai-Ti-Ting raises the same complaint voiced by Liu over the trial court’s failure to submit the duress instruction to the jury. For the reasons previously given, lye find the instruction is incorrect as a matter of law and therefore need not have been given. We take this opportunity to observe that even if the instruction were correct, Ting was not entitled to a duress instruction. Ting had ample opportunity to absent himself from the criminal surroundings. Ting met with agent Shaffer in November of 1989 at Steven Huang’s urgings. Others than Shaffer were the prime movers in getting Ting involved; for it was Ting who knew the immigration procedures, knew foreigners in need of green cards, and had a good community reputation. He traveled the crooked path not because he was forced to do so, but because he elected to do so. Ting had police connections of his own. He could have reported the crooked cop but chose not to do so. Instead, Ting called no less than forty of his friends in hopes of finding customers for the illicitly obtained green cards. Ting even accepted a reduced fee charge for a green card for himself. ENTRAPMENT Ting’s second argument is that he was the victim of the government’s entrapment and that he was never predisposed to traffic in green cards. Recently this court summarized the law of entrapment. Entrapment is an affirmative defense that requires a defendant to show he was induced to commit a criminal act by a government agent and that he was not predisposed to commit the act without the inducement. See Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988). ‘Entrapment, as a doctrine, asks ... what was the defendant’s mind before he did the charged acts.’ United States v. Kang, 934 F.2d 621, 624 (5th Cir.1991) (quoting United States v. Henry, 749 F.2d 203, 213 (5th Cir.1984) (en banc) emphasis in original)). ‘The critical determination is whether the criminal intent or design originated with the defendant or with the government agents.’ Id. (citing United States v. Nations, 764 F.2d 1073, 1079 (5th Cir.1985)). To rely upon the entrapment defense, the defendant must as a threshold matter ‘present evidence that government conduct created a substantial risk that an offense would be committed by a person other than one ready to commit it.’ Id. (quoting United States v. Johnson, 872 F.2d 612, 620 (5th Cir.), reh’g denied, 880 F.2d 413 (1989)). This requires the defendant to establish (1) that he lacked predisposition to commit the crime and (2) that government involvement and inducement amount to more than just an opportunity to commit the crime. Id. If the defendant succeeds in meeting his burden, the government must prove beyond a reasonable doubt that the defendant was predisposed to commit the offense.’ Id. U.S. v. Pruneda-Gonzalez, 953 F.2d 190, 197 (5th Cir.1992). The defendant failed to present evidence that he lacked a predisposition to commit the crime. The evidence reveals that Ting had a job that afforded him a position of respect and one that allowed him to make acquaintances with orientals of substance. He was in a position to provide important services to Taiwan nationals in this country. The dark side of Ting’s Texas life was that he did not possess the one thing necessary to perpetuate his comfortable status — a green card. He attempted to marry a partner with credentials to give him the protected status, but without success. With a green card, Ting could cement his presence in this country and also could travel to Taiwan. Thus, Ting was ripe for the enlistment by Liu (not a government agent) to participate in the green card scam. As a matter of law, Ting was not entrapped. The trial judge did not err in so ruling. STATUS AS A MANAGER . OR SUPERVISOR Ting argues on appeal, as he did prior to his sentencing, that he was not a manager or supervisor of any co-conspirators. He takes umbrage with the trial court awarding him a three level upward adjustment pursuant to U.S.S.G. § 3Bl.l(b). The finding of the trial court resulted in a sentence more severe than that which Ting might have received had he not been a manager or supervisor. We review the trial court’s determination that Ting was a manager or supervisor under a clearly erroneous standard. United States v. Barreto, 871 F.2d 511 (5th Cir.1989); United States v. Alfaro, 919 F.2d 962 (5th Cir.1990). While admitting that we are not controlled or governed by the Commentary to the Sentencing Guidelines, we observe that that source suggests that the court consider the following factors when making its decision: Factors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. Commentary, U.S.S.G. § 3Bl.l(b). Although Ting contends that he did no more than translate, the facts paint a picture of a manager, not a minion. The success of the caper was bottomed on customers willing to engage in an illicit transaction. Ting had the credentials, the contacts, and the reputation to find accomplices. Ting produced seven customers, administered the application process, provided a sense of safety and solace to his fellow conspirators, and stood to gain a green card for himself at little cost. The facts set forth in the PSI have not been assailed as unreliable, only the court’s conclusion drawn from those facts. We are not convinced that the findings by the district court are clearly erroneous. The sentence need not be vacated. For the foregoing reasons, the convictions are AFFIRMED. Question: Did the court conclude that some penalty, excluding the death penalty, was improperly imposed? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_opinstat	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. KRENTLER-ARNOLD HINGE LAST CO. v. LEMAN et al. No. 2525. Circuit Court of Appeals, First Circuit. March 10, 1931. On Rehearing June 29, 1931. ANDERSON, Circuit Judge, dissenting. See, also, 24 F.(2d) 423; 300 F. 834. Robert Cushman, of Boston, Mass., and P. R. Pocock, of Detroit, Mich. (Otto Barthel, of Detroit, Mich., on the brief), for appellant. Ellis Spear, Jr., of Boston, Mass. (Eiffel B. Gale and Edward N. Goding, both of Boston, Mass., on the brief), for appellees. Before BINGHAM, ANDERSON, and WILSON, Circuit Judges. BINGHAM, Circuit Judge. This is an appeal from a final decree of the District Court for Massachusetts of August 20, 1930; on a petition and motion to show cause why the Krentler-Amold Hinge Last Company should not be held in contempt for the violation of a permanent injunction issued against it by the District Court November 26, 1926, in an equity- suit there brought by the Krentler-Amold Company against J. Howard Leman, administrator, and the George E. Belcher Company, defendants-eounterelaimants, in which injunction it was provided that the Krentler-Amold Hinge Last Company “shall not, directly or indirectly, make, or cause to be made, use or cause to be used,- sell or cause to be sold lasts embodying or containing the invention covered by claims 1, 2, 3, 4, 6 and 7 of Letters Patent of the United States No. 1;195,266, issued August 22,1916, to Otto A. Peterson, and any substantial or material part thereof, or any substantial equivalent or colorable imitation thereof.” The Peterson patent is the property of the complainants in the contempt proceedings, who are the counterelaimants in the equity suit. In these contempt proceedings, by interlocutory decree of September 23, 1929, the Krentler-Amold Company was found guilty of civil contempt; that the complainants were entitled to equitable relief and should recover, by way of an award, the profits made by the Krentler-Arnold Company in violating the injunction; and that the respondent also should pay the complainants a further sum sufficient to compensate them for their expenses in these contempt proceedings, including the complainants’ counsel fees, and the usual costs; and a reference to a master for the purpose of determining these matters was ordered. In the final decree, the master having reported, after repeating the findings made in the interlocutory decree, it was decreed that the complainants recover for infringement of the Peterson patent the sum of $39;-576.26, being the profits made by the Krent-ler-Arnold Company from the sale of its infringing deviee; also $6,102.72 as counsel fees for services rendered from October, 1928, to the end of April, 1930, in the prosecution of the contempt proceedings; also $389'.15 for expenses; amounting in all to $46,068.13, with interest thereon from June 4,1929 (the date of the filing the contempt proceedings) to the date of the entry of final decree (August 20, 1930) at the rate of 6 per centum per annum, amounting to $3,224.76, and making the total sum payable $49,292.89. The Krentler-Amold Company is a Michigan corporation, having its place of business at Detroit, Mich. It manufactures hinges for shoe lasts and sells them to the manufacturers of shoe lasts, who sell the lasts to the shoe manufacturers. It has no place of business in Massachusetts; it manufactures its hinges or links in Detroit, and, so far as appears in these contempt proceedings, has committed no acts of infringement in Massachusetts. The Belcher Company is a Massachusetts corporation and Leman, administrator, is a citizen of that state. The Belcher Company is a manufacturer of shoe lasts, and makes and uses its own hinges under the Peterson patent No. 1,195,266. There is no direct competition between the two companies. The final decree in the equity suit was entered March 1, 1928. The term of court at which this decree was entered ended later in the same month. The petition and motion for order to show cause in the contempt proceedings were filed in the equity suit June 4, 1929, and the order to show cause was entered on the same day. The service directed and the only service that could be had in the Massachusetts district was by sending copies of the petition, the motion to show cause, and the order to show cause, together with the supporting affidavits of one Smith and one Soutkworth, by registered mail to the Krentler-Amold Company at Detroit, and by serving the same papers upon James R. Hodder at Boston, who had been the attorney for the Krentler-Amold Company in the equity suit. At the time of the service on Mr. Hodder his name appeared on the record in the equity suit as counsel and at that time had not been withdrawn, if that was necessary to render the purported service upon him of no avail. On or before the 15th day of July, 1929, the date set for the hearing on the petition for contempt, Mr. Cushman entered a special appearance for the Krentler-Amold Company for the sole purpose of objecting to the jurisdiction of the court, and filed a motion to dismiss the contempt proceedings for lack of jurisdiction. This motion was overruled, subject to exception. Without waiving the objection to the jurisdiction, the petition for contempt was then heard on the supporting affidavits of the complainants, counter affidavits of the Krentler-Amold Company, and reply affidavits of the complainants, resulting in the decree of August 20, 1930, above spoken of. The contempt proceedings, filed in the equity case, were entitled as of that case, and, while they asked for punitive as well as remedial relief, the proceedings were treated by counsel for the respective parties and by the court as only asking for remedial relief. In other words, the allegations and prayer for punitive relief were disregarded and treated as surplusage. And the court, in its final decree, awarded nothing in the way of a penalty, but only by way of remedial relief. The contempt proceedings, therefore, are to be regarded and treated as proceedings in civil contempt, for such was the mutual understanding of the parties throughout the trial. Kreplik v. Couch Patents Co. (C. C. A.) 190 F. 565; Mitchell v. Dexter (C. C. A.) 244 F. 926. Although the proceedings for contempt were civil in nature and were entitled and filed in the equity suit, the Krentler-Amold Company contends: (1) That inasmuch as the infringing device here complained of is not the same article held to have infringed the Peterson patent in the equity suit, and the term had expired at which the decree in that suit was entered, and the damages and profits awarded by that decree had been satisfied, an independent suit in equity and a reinvestigation and consideration of the scope and vitality of the claims of the Peterson patent were necessary to determine whether the present device, a so-called sliding hinge, infringed; and that this properly could not be done in a proceeding for civil contempt. The reason underlying this contention apparently is that, if a new and independent suit in equity were necessary, it would have to be brought in the District of Michigan, where the Krentler-Amold Company is incorporated and does business, for there alone could personal service be had upon that company. Its second contention is that, if proceedings for civil contempt are, under the circumstances of this case, proper, the District Court was without jurisdiction to entertain the same, as no personal service thereof was had on the Krentler-Amold Company in the District of Massachusetts; that, the term of court at which the final decree in the equity suit was entered having expired, and the decree, so far as it awarded compensation, having been satisfied, the power of the District Court over that decree had ceased, the parties had been discharged, and the court had no jurisdiction over the Krentler-Ar-nold Company, in the absence of personal service upon it within the District of Massachusetts. As to the first contention, it seems to be fairly clear from the decided cases that “whether or not the different structure made by the defendant [the Krentler-Amold Company] after being enjoined according to said final decree also infringed said patent [the Peterson patent] was a question with which the District Court might deal according to various methods, either of which it was at liberty to select in its discretion” (National Metal Molding Co. v. Tubular Woven Fabric Co. [C. C. A.] 239 F. 907, 908); and that, if the court below regarded it as “really a doubtful question” whether the new device or structure was an infringement or not of the claims of the Peterson patent, the infringement of which was enjoined in the equity suit, it could, in its discretion, have directed that the complainants bring a new suit in equity against the Krentler-Amold Company for •the alleged infringement (California Artificial Stone Paving Co. v. Molitor, 113 U. S. 609, 618, 5 S. Ct. 618, 28 L. Ed. 1106). On the other hand, if it regarded the new structure as a clear infringement of the claims of the Peterson patent, the infringement of which was enjoined, or merely a colorable departure therefrom, it could, in its discretion, direct the parties to proceed in the contempt proceedings already brought. Krep-lik v. Couch Patents Co. (C. C. A.) 190 F. 565. In this case the District Court adopted the latter alternative. The hearing was had, as above pointed out, on affidavits. But before the trial began the Krentler-Arnold Company, in addition to presenting its ease on affidavits, was given the opportunity “to put in expert evidence,” but declined to do so, stating that “it preferred to proceed on the present contempt record if we proceed on the contempt order,” meaning on the affidavits filed in the contempt proceedings. In its affidavits the Krentler-Amold Company set up a number of patents as anticipations of the Peterson patent, including therein patent No. 1,094,153, issued April 21, 1914, to W. A. Krentler, which it had previously set up as an anticipation of the Peterson patent in the original equity suit; it also set up a number of other patents not previously set up as anticipations in the original equity suit, and undertook to try anew the scope and validity of the claims of the Peterson patent. The District Court, however, had before jt the record and proceedings in the original equity suit, including the decree in that suit. The proceedings in that suit disclosed that the scope and validity of the claims here in question were put in issue in the original equity suit and actually tried; and that they were held not to be anticipated, but valid as drawn. In other words, that they were not too broad in view of the prior art as presented and litigated in that ease. The parties to that suit were the same as in the present proceedings, and, as the scope and validity of the Peterson claims here in issue were put in issue and actually tried and determined in that suit, the decree in that suit determining those issues is as evidence conclusive in these proceedings as to the scope and validity of the claims. Walter J. Rancourt v. Panco Rubber Co., 46 F.(2d) 625, decided February 11, 1931, and cases there cited. As the decree in the original suit, as between these parties, conclusively established the validity and scope of the Peterson claims,, nothing remained for the District Court to determine but the question whether the new device (the sliding link) of the Krentler-Ar-nold Company read upon and infringed any of the claims of the Peterson patent, the scope and validity of which were determined in the original equity suit, and the infringement of which, by any substantial equivalent or colorable imitation thereof, was there enjoined. It is clear that the new, device answers in every respect the provisions of claims 2, 4, 6, and 7 of the Peterson patent; and that the question of infringement is not doubtful or even merely colorable, but certain.' We are therefore of the opinion that the- District Court did not err or abuse its discretion in entertaining the contempt proceedings and ordering the parties to trial thereon. The second contention presents a question of first impression in this court, and the briefs and arguments of counsel have lent little or no aid to its solution. However, after a careful examination, the logic and reason of the situation seems to warrant no other answer than that the court had jurisdiction of the parties in the contempt proceedings. It is undoubtedly true that in the federal courts the power of the court, on motion, to alter, modify, amend, or revoke its judgments, except as to clerical errors, ends with the term at which the judgment is entered, although it retains power later to see that its judgment is executed. Schell v. Dodge, 107 U. S. 629; 2 S. Ct. 830, 27 L. Ed. 601; Casey v. Sterling Cider Co. (C. C. A.) 15 F.(2d) 52; Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 797; Brooks v. Railroad, 102 U. S. 107, 26 L. Ed. 91. It is also true that, while the federal courts of equity are for certain purposes always open (Equity Rule 1 [28 USCA § 723]), the same rule as to the power of the court over its decrees is applied as in the case of judgments in a court of law, viz., that, after the term at which the decree is entered, the power of the court, on motion, to alter, amend, or revoke it, except as to clerical errors, has ceased. McGregor v. Vermont Loan & Trust Co. (C. C. A.) 104 F. 709; E. G. Staude Mfg. Co. v. Labombarde (C. C. A.) 247 F. 879; Hart v. Wiltsee (C. C. A.) 25 F.(2d) 863, and cases there cited; United States v. Trogler (C. C. A.) 237 F. 181. Under the English practice the power of the court ceased when the final decree was enrolled, irrespective of the terms of court. Until the decree was enrolled and thereby became a record, it could be altered by the court that made it upon motion or petition, but not after enrollment. In a great majority of the states and, it would seem from the decisions of the Supreme Court, in the federal courts, the doctrine of enrollment is worked out by treating decrees as enrolled at the end of the term. Wetmore v. Karrick, 205 U. S. 141, 150, 27 S. Ct. 434, 51 L. Ed. 745; Goddard v. Ordway, 101 U. S. 745, 750, 751, 25 L. Ed. 1040; 21 C. J. p. 706, § 874. But in this proceeding no attempt is being made to alter, amend, or vacate the decree in the original equity suit, after the term at which it was entered. It is a proceeding to enforce the execution of that decree in so far as it granted a permanent injunction. It may be conceded that, as to the balance of the decree, execution has been had; but, so far as the question concerns the execution of the permanent injunction, the decree has not been satisfied or the parties dismissed from the control and jurisdiction of the court. If this were not so, the injunction granted against the Krentler-Arnold Company, a nonresident corporation, would at the end of the term at which the decree was entered become an empty thing. On the contrary, logic and reason lead to the conclusion that, as to the enforcement of the decree and so long as any part of it remains open for enforcement, the parties are before the court and subject to its jurisdiction; and we think the decided cases, where this matter has been considered, lead to this result. Pitt v. Davison, 37 N. Y. 235, was a civil contempt proceeding. An action (bill in equity) had been brought by the plaintiff against Joseph Davison for specific performance of a contract by which he agreed to convey certain premises to the plaintiff. A judgment or decree was rendered adjudging the plaintiff entitled to specific performance of the contract and directing another Davison (the defendant in the contempt proceeding and to whom Joseph Davison had fraudulently, as against the plaintiff, conveyed said premises) to convey them free from any incumbrance which he had put upon them. The Davison to whom the land had been transferred was personally served in the equity suit or action with a copy of the judgment and required to appear before a referee appointed by the court to make the conveyance under the direction of the referee. He did not appear, but his counsel appeared and offered to read an affidavit excusing his noncompliance with that part of the judgment which required him to convey, setting out that subsequent to the contract of sale to the plaintiff, but prior to the commencement of the suit for specific performance, he had mortgaged the property for $5,000, that the mortgage had been foreclosed, the premises sold, and he was unable to convey the premises to che plaintiff. The referee refused to receive the affidavit as an excuse and demanded compliance with the judgment, which was refused, and he reported the refusal to the court and the reason therefor. The final judgment or decree in the equity action was entered in May, 1856. On December 9, 1857, the plaintiff obtained from a judge of the court, in which the equity action was brought, an order requiring Davison to show cause why an attachment should not be issued against him and he be punished for his alleged contempt in not having conveyed the property. This order to show cause was founded on the judgment in the equity action and the'proceedings had thereon, and contained a direction that it be served on the defendant’s attorney. It was so served, but no service was made on the defendant personally. At the return term named in the order, the court adjudged the defendant guilty of contempt of court in willfully neglecting and refusing to comply with the terms of the judgment or decree and ordered him committed to jail until he should comply with it. A precept issued, and Davison was arrested and committed to jail. He then made a motion to set aside the order under which he was committed and to be discharged from imprisonment on the ground that he had no personal knowledge of the order to show cause until after the granting of the order directing him imprisoned. Counter affidavits were introduced, one showing that a similar order to show cause had been previously issued, and that after diligent search the officer was unable to make personal service thereof, and also controverting the facts stated in the defendant’s affidavit bearing on his want of knowledge of the order to show cause. This motion was denied at a special term of the court, and at a general term, on appeal, the order denying the motion was reversed and the defendant discharged from imprisonment. Prom that order an appeal was taken to the Court of Appeals. The question was whether personal service upon the defendant of the order to show cause, with the affidavits upon which it was granted, was necessary. The court below at the general term had held that personal service was indispensable. The Court of Appeals pointed out, however, that this was not a proceeding to punish for criminal contempt, but was a proceeding for contempt to enforce a civil remedy; that, where the proceeding is for civil contempt, “the party in default has already had the opportunity of contesting his liability to perform what the proceeding seeks to compel him to perform, and such proceeding is, in effect, but an execution of the judgment or order against him.” The court further said: “In the ease.at bar it is correct, I think, to say that the proceeding was one taken in the action. The judgment remained unexecuted, and the court was proceeding, in the mode prescribed by the statute, to execute its judgment. The order to show cause provided for by the statute, in the absence of any statutory provision to the contrary, was, then, governed by the practice of the court in regard to orders to show cause, both in respect to its service and the' further proceedings upon it. That,’ according, to such practice, an order to show cause may be served upon the attorney of the party, will not be denied. Indeed, that is the mode of service of all papers in the action prescribed by the Code, except the summons or other process, or any paper to bring a party into contempt. Code, §§ 417, 418. The papers in this case which brought the party into contempt, were the certified copy of the judgment and the summons and underwriting of the referee, requiring the defendant to appear before him and make the conveyance. These were personally served, and the defendant; by his refusal to comply with them, was brought into contempt.” As to the service of the order to show cause, the court said: “The order to show cause is, in effect; but a notice of motion, and according to the practice of the court may ordinarily be served upon the attorney of the adverse party. Although in this ease the judgment was entered in May, 1856, and the order to show cause was made and served on the defendant’s attorney on the 9th of December, 1857, yet, inasmuch as it appears that the defendant had avoided the service of a prior order to show cause, and that, after service of the second order by the direction of the court upon the attorney, and before the granting of the order on which the defendant was arrested and imprisoned, he consulted with his said attorney, and has not denied that the attorney was authorized to appear for him and oppose the granting of the order for his arrest and imprisonment, as he did appear, it must be clear that the attorney is to be regarded as the defendant’s attorney, when the service was made, and that the service of the' order to show cause was in all respects sufficient.” And, continuing, the court said: “A further ground for the decision of the General Term, put forth in the opinion, is, that inasmuch as the defendant was never personally before the court in this matter, the court had no jurisdiction of his person, and therefore the order for his arrest and imprisonment was unauthorized and void. If the proceeding is to be regarded as one in the action, as I have endeavored to show it is, then clearly this ground is not well taken. The court having obtained jurisdiction of the person of the defendant in the action, retains that jurisdiction for all purposes of enforcing the judgment, until its requirements are fully performed and executed.” In Merrimack River Savings Bank v. Clay Center, 219 U. S. 527, 31 S. Ct. 295, 296, 55 L. Ed. 320, Ann. Cas. 1912A, 513, the plaintiff brought a bill in equity in the federal Circuit Court for the District of Kansas claiming to be a creditor of the Clay Center Light & Power Company by bonds secured by a mortgage on the light and power company’s plant, etc., against the city of Clay Center, the light and power company, and certain individuals. It was alleged that the light and power company owned and conducted a light and power plant at Clay Center under a perpetual franchise authorizing it to place and maintain a line of poles and wires upon the streets of the city;, that the city, claiming that the franchise had expired, had, through its council, of which the individual defendants were members, required the light and power company to remove the poles and wires, and that the officials named as individual defendants were threatening to cut down and destroy its poles and wires, etc., to its irreparable damage in the loss of its security. A temporary injunction issued retraining the destruction of the poles and wires. The bill was dismissed for want of federal jurisdiction and an appeal was taken to the Supreme Court, but the injunction was continued pending the appeal. In the Supreme Court the appeal was dismissed for want of jurisdiction,,but before its mandate issued or could issue, and pending an application for rehearing, certain of the defendants to the appeal cut down and destroyed the poles and wires. The plaintiff then petitioned the Supreme Court, and, after setting out the above facts, alleged that thé defendants destroyed the poles and wires knowing that the appeal was pending, and that the Supreme Court had not lost control of the controversy, and that no mandate had issued. The prayer was that the defendants be cited and required to appear and show cause why they should not be proceeded against for contempt. Such a rule was made, and the defendants appeared and answered. They also moved to discharge the rule because the petition failed to allege that the defendants had violated any injunction or mandate of the Supreme Court, on the ground that the injunction issued pending the appeal was the injunction of the Circuit Court, and that its violation was only cognizable in that court; and, second, if that be so, the petition failed to show facts constituting contempt of the Supreme Court. It was held (1) that the Circuit Court had power to' continue the injunction in force pending appeal; (2) that “plainly, the effect of continuing the injunction operated to continue in the circuit court such jurisdiction over the subject-matter of the litigation and of the parties as to enable it to preserve the status quo pending the appeal, including power to take cognizance of a violation of its injunction”; anfl (3) the court expressed the opinion, although it did not decide the question, that a violation of the injunction was also a contempt of the appellate jurisdiction of the Supreme Court. In this ease, not only had the term of the Circuit Court ended at which the decree granting the injunction was made, but, at the time the alleged contempt took place and the contempt proceedings were brought, the case was in the Supreme Court on appeal, and it was held that the Circuit Court in which the injunction was pending had “such jurisdiction over the subject-matter of the litigation and of the parties as to enable it to preserve the status quo pending the appeal, including power to take cognizance of a violation of its injunction.” In Gompers v. Buck’s Stove & Range Co., 221 U. S. 418, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874, the range company had brought a suit in equity against Gompers, Mitchell, and Morrison in the Supreme Court for the District of Columbia, and, on March 23, 1908, obtained a permanent injunction restraining them from conspiring, agreeing, or combining in any manner to restrain, obstruct, or destroy the business of the complainant, etc. Erom this final decree the respondents appealed to the Court of Appeals for the District, and, while the ease was pending there, but before a decision had been reached, the Buck Stove & Range Company began contempt proceedings in the Supreme Court for the District by filing a petition therefor in the equity suit. All of the record in the original cause, including the testimony, was made a part of the petition. The petition set out publications charged to be violations of the temporary injunction of December 23, 1907, and other publications alleged to be violations of the final deeree and injunction of March 23, 1908. The Supreme Court of the District, on December 23, 1908, found the respondents guilty of contempt, they having disobeyed the plain mandates of the injunctions, and ordered them imprisoned in jail. Erom that deeree the respondents appealed to the Court of Appeals for the District. On March 26, 1909, the Court of Appeals rendered a decision in favor of the Buck Stove & Range Company on the appeal from the deeree of March 23, 1908, in the equity ease, and entered a deeree in its favor, modified somewhat from that of the Supreme Court. Erom the decree of the Court of Appeals in the equity case, both parties appealed to the Supreme Court of the United States. When the deeree of the Supreme Court of the District in the contempt proceeding came on for hearing in the Court of Appeals, the Buck Stove &' Range Company moved to dismiss the appeal, claiming that it was a criminal proceeding and should have been brought up by writ of error. The respondents, however, contended that it was a part of the equity ease and properly removable on appeal. The Court of Appeals held that the proceeding was for criminal contempt, and affirmed the judgment or deeree of the Supreme Court of the District. Erom that judgment or. decree the respondents applied for and obtained a writ of certiorari to the Supreme Court of the United States. In the Supreme Court of the United States it was held that the contempt proceedings were for civil contempt in the original equity proceeding. Having so held, that court must have been of the opinion, although the term at which the final deeree in the equity case was entered had ended and an appeal had been taken therefrom to the Court of Appeals for the District when the contempt proceedings were filed in the Supreme Court for the District, that the original equity suit was still pending in that court so far as the power of the court over the execution of the permanent injunction and the punishment of any infraction of it were concerned, for otherwise it could not have regarded the contempt proceedings for a violation of that injunction as being in the original equity proceeding, if 'the equity suit had ceased to exist after the term at which the final decree in it was entered had ended. It seems clear that the Supreme Court of the United States must have regarded the permanent injunction issued in the Supreme Court of the District as operating to continue in that court “such jurisdiction over the subject-matter of the litigation and of the parties as to enable it to preserve the status quo pending the appeal, including power to take cognizance of a violation of its injunction,” as it held in Merrimack River Savings Bank v. Clay Center, supra. See, also, Wilson v. Caleulagraph Co., 153 F. 961 (1st Cir.). So, in the instant case, the permanent injunction made a part of the final decree in the original equity suit in the District Court for Massachusetts, operated, even after the close of the term at which it was entered, to continue in that court such jurisdiction over the shbjeet-matter of the litigation and of the parties as was necessary for it to retain power over and take cognizance of a violation of its injunction; which ineludes power to cause notice to be given the defendant such as the District Court should consider reasonable and necessary to notify and apprise it of the filing of the petition for contempt in the original equity proceeding. Inasmuch as the District Court had jurisdiction over the subject-matter and the parties to the equity suit, in which the contempt proceedings were filed, for the purpose of protecting and enforcing its injunction, the only thing Requisite to its proceeding to a hearing and judgment in the contempt proceedings was notice to the defendant of the petition and motion to show eaüse, so that it might be present at the hearing and take such action with reference thereto as it deemed proper. Notice in this ease was brought to the attention of the Krentler-Arnold Company in two ways: One, by serving the requisite papers upon Mr. Hodder, then counsel of record in the equity suit; and, second, by mailing such papers to the Krentler-Arnold Company at Detroit. There is no question but that Mr. Hodder notified the Krentler-Arnold Company of the receipt of the papers served upon him, and no question about the receipt by the Krentler-Arnold Company of the papers that were mailed to it, and that it had full notice of the petition and motion for contempt in the equity suit. In fact it appeared and contested the matter. It is true that its appearance was special, but the court had jurisdiction over the subject-matter and the parties, and, the defendant having received actual notice, there was no basis for a special appearance. If nothing further appeared than that the papers were served upon Mr. Hodder, it might be regarded as a close question whether the District Court would have had authority to proceed to judgment in the contempt proceeding; that is, whether by reason of the final decree and the close of the term at which it was entered the authority of the attorney of record had terminated, so that notice could not properly be served upon him for the defendant. It would seem, however, that his authority as attorney of record did not then terminate, for the protection and enforcement of the permanent injunction, embodied in that deeree, still vested the court with jurisdiction over the subject-matter and the parties in the equity suit, and that his authority continued, so far as the service of notice of a violation of the injunction was concerned, the same as it would have had the de-eree in the equity suit been interlocutory, not final, granting an injunction. .But we do not find it necessary to decide that question in view of the fact that the defendant otherwise had actual notice of the petition and the motion to show cause, filed in the equity suit. The Krentler-Arnold Company also contends that the District Court was without authority to deeree remedial relief except as a fine; ánd that, when imposed as a fine, the only remedy for the enforcement of its payment is by committing the defendant to jail until it is paid. The defendant is a corporation. If the payment of money awarded as remedial relief in the character of a fine can only be enforced against it by imprisonment, the power of the court in the execution of such a deeree would be practically helpless. In such a situation we think the court .may properly issue an execution for the collection of the fine as in the case of a money judgment or decree. See Equity Rule 8 (28 USCA § 723), first sentence. It may not be amiss ,to say that the injunction was not simply against the manufacture, use, or sale of the old infringing device complained of in the equity suit, or one colorably like it, as the Krentler-Arnold Company contends and would seem to think, but against the manufacture, use, or sale of an article “embodying or containing the invention covered by claims 1, .2, 3, 4, 6 and 7 * * and any substantial or material part thereof, or any substantial equivalent or col-orable imitation thereof.” But we are of the opinion that the District Court went far afield and exceeded its authority in decreeing that the complainants recover profits made by the respondent by the infringement of the letters patent. In Gompers v. Buck’s Stove & Range Co., supra, and Kreplik v. Couch Patents Co., supra, 190 F. at page 569, it was pointed out that the proper remedial relief for the disobedience of an injunction in an equity case is to impose a “fine for the use of the complainant, measured in some degree by the pecuniary injury caused by the act of disobedience.” In other words, that the amount of the fine or remedial relief is to be governed largely by the pecuniary damage or injury which the aot of disobedience caused the complainant. This pecuniary damage surely does not include profits which the defendant made by reason of the infringement. The item of profits should not have been allowed or taken into consideration in determining the remedial relief to which the complainants were entitled by way of fine or otherwise. We also think that the court below erred in allowing the account of the complainants for fees for- legal services, to the extent that there was included therein charges for investigation of law and facts in regard to Mr. Drew’s liability, charges as to' matters affecting the licensees of the Krentler-Amold Company, and for the investigation of law and facts with reference to the bringing of a supplemental bill, and charges for services in regard to a contemplated contempt proceeding against Krentler, other than the one before the court. In other words the charges should be confined to the expenses incurred and the legal services rendered in these contempt proceedings, and to such as were reasonably necessary. The deeree of the District Court is affirmed, except so far as it relates to the amount of the fine. In that respect it is vacated and the ease is remanded to the District Court for further proceedings not inconsistent with this opinion. No costs. 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:
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. NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., v. BENNETT, ATTORNEY GENERAL OF ARKANSAS, et al. No. 757. Decided June 22, 1959. Robert O. Carter.and Herbert O. Reid for appellant. Per Curiam. When the validity of a state statute, challenged under the United States Constitution, is properly for adjudication before a United States District Court, reference to the state courts for construction of the statute should not automatically be made. The judgment is vacated and the case is remanded to the United States District Court for the ^Eastern District of Arkansas for consideration in light of Harrison v. N. A. A. C. P., ante, p. 167. 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_state	31	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". UNITED STATES of America v. ISMAILI, Lakbir Moulay. Appeal of Lakbir Moulay ISMAILI, Appellant. No. 86-5552. United States Court of Appeals, Third Circuit. Argued April 9, 1987. Decided Sept. 2, 1987. Rehearing and Rehearing In Banc Denied Sept. 25, 1987. Thomas W. Greelish, U.S. Atty., Marion Percell (argued), Asst. U.S. Atty., Samuel P. Moulthrop, Chief, Appeals Div., U.S. Atty.’s Office, Newark, N.J., for appellee. Alan Silber (argued), Peter Avenia, Mark B. Gombiner, Merrill N. Rubin, Silber & Rubin, P.C., New York City, for appellant. Before SLOVITER, BECKER and GARTH, Circuit Judges. OPINION OF THE COURT GARTH, Circuit Judge: Lakbir Ismaili appeals from the denial of several pretrial motions that were preserved for appeal at the time he entered a plea of nolo contendere pursuant to a plea agreement. See U.S. v. Zudick, 523 F.2d 848 (3d Cir.1975). We affirm. I. A. Between November 20, 1979 and December 31, 1980, the government claims that Lakbir Ismaili and the company that he operated, Incoser, allegedly engaged in a “bait and switch” fraud scheme which involved, inter alia, the promotion and sale of customized vans throughout the Middle East. According to the government, Ismaili would approach American manufacturers of customized vans and other vehicles, and claim that he could sell their products overseas through the use of a sales force which he maintained in several countries. He proposed to purchase their vans for resale abroad. The only commitment needed from the sellers, Ismaili indicated, was the money needed to produce “color separations.” Color separations are sets of color negatives used to produce magazine quality photographs allowing them to be advertised abroad. Using this approach, Ismaili received payments totaling $43,210.80 from nearly twenty individual van manufacturers. The government investigated the complaints which it received about Ismaili. The investigation disclosed that Ismaili had placed the color-separation money he had been paid into a Philadelphia bank account, and converted the money to his own personal use; that no color separations were made or brochures published; and that Ismaili never had purchased any vans from the manufacturers for resale. The investigations also revealed that Ismaili arranged visits for his customers at a New Jersey printing plant where he claimed color separations were to be made. In fact, that plant never processed any such color separations for Ismaili. The government investigation concluded, further, that Ismaili had no sales force to sell Ismaili’s vans in the Middle East; and that no advertising campaign for the vans had.ever been planned. The government presented its case to a grand jury in January of 1981. B. In Ismaili’s appearances before the first grand jury in 1981, he denied all allegations of fraud. Ismaili asserted that his company, Incoser, was a legitimate enterprise which failed as a consequence of difficulties created by the Iran-Iraq war. He claimed that he had been compelled to use for his personal purposes the funds received from the van manufacturers and Incoser’s corporate account. He explained that he did so because the currency laws in Morocco prevented him from obtaining his personal funds that were located in Morocco, and that he therefore used the funds in Incoser’s Philadelphia banking account for personal purposes. He claimed that he used his personal funds in Morocco for the purposes of advertising the vans. It was for this reason, Ismaili claimed, that he decided to have the color separations made in Morocco instead of in New Jersey. He claimed further that his brother Rachid had helped to organize on his behalf, a Middle Eastern sales force; and that he, Ismaili, had arranged with a Moroccan named Ezzarai or Zarai to produce the color separations for Ismaili’s sales brochures. In turn, Ismaili contends that Ezzarai engaged the Agadir Color studio to process the color separations. The grand jury’s 1981 investigation ended without the return of an indictment. In 1983, however, the grand jury investigation resumed. In September 1984, the grand jury returned a seventeen-count indictment, charging Ismaili with mail fraud under 18 U.S.C. §§ 1341 and 1342. C. Following his indictment, Ismaili made three pretrial motions which the district court denied and which are the subject of this appeal. Ismaili moved to depose a number of witnesses in Morocco, Syria and Saudi Arabia. Ismaili moved to dismiss the indictment on the grounds of abuse of the grand jury process, alleging that the prosecutor failed in his obligation to present to the grand jury an exculpatory telex that Ismaili discovered during the course of requesting Brady material. Pursuant to that motion, he also has claimed that the prosecutor abused the grand jury process in the course of presenting hearsay to it. Ismaili moved to dismiss the indictment because the government allegedly abused the grand jury process by its prejudicial pre-indictment delay in obtaining the indictment. After denying Ismaili’s motions, the district court on May 29, 1986 accepted Ismaili’s nolo contendere plea pursuant to a plea agreement. In the agreement, Ismaili pleaded nolo contendere to one count of mail fraud, but he reserved the right to appeal from the denial of his pretrial motions. On August 12, 1986, the court sentenced Ismaili. In so doing, the court suspended sentence and placed him on probation for five years. Imposing a fine of $1,000 as a special condition, the court ordered Ismaili to repay as restitution the $43,210.80 paid by the victims of Ismaili’s scheme, and recommended that Ismaili not be deported. Order of Aug. 4, 1986. Ismaili appealed. II. We turn first to the district court's denial of Ismaili’s motions to depose witnesses in Morocco, Syria and Saudi Arabia. A. The first motion filed by Ismaili, which pertained to the Saudi Arabian witnesses, was supported by a telex exhibit designed to establish that the three witnesses constituted a part of Ismaili’s sales force in the Middle East and would therefore refute the government’s argument that no marketing or sales structure existed. The telex indicated that the witnesses were unwilling to spend “time or money to come to the U.S. A.” App. at 34. The government argued that these witnesses would not exonerate the defendant, that their testimony was not material, and that there was “no showing of a good faith effort to produce the witnesses in the United States,” specifically because the witnesses seemed to be under the impression, “its up to them to pay their own way to the United States.” App. at 122. Ismaili contended that their testimony was material, that these were the marketing managers for the sale of the vans, and that the witnesses were not under the impression that they had to pay expenses. In denying Ismaili’s motion on June 5, 1985, the district court stated: Having viewed the telex [which pointed to the reluctance of three Saudi Arabian witnesses to come to the United States], and considering the arguments which have been made by counsel, I find an inadequate basis for ordering the depositions under our court rules. The witnesses should be brought to the United States and a showing should be made which is more convincing as to not only how they would assist in the defense, but that providing for them to come to the United States still is inadequate to get them here. In both areas, I have concluded that the showing is inadequate. There is a distinct preference for having witnesses in criminal trials present for the jury to view, to assess, themselves confront. The concept of having depositions is an inferior technique for presenting these witnesses to a jury. If there were a situation in which these witnesses could be shown to be essential to the defense and only available through depositions, the Court might order depositions. Indeed, I have ordered depositions in criminal cases in the past. However, viewing the papers and the arguments which have been made in this particular case, I do not find a basis for ordering depositions in a foreign country, and I would require that witnesses whose testimony is to be considered should be brought to the United States for trial. App. at 124. Thereafter, Ismaili changed counsel and on November 15, 1985, again sought depositions of foreign witnesses. Ismaili sought to depose Moroccan and Syrian witnesses and renewed his motion to depose Saudi Arabian witnesses. App. at 48-52. This time, however, Ismaili’s motions sought to have the government bear all expenses in connection with the depositions. Trial at that juncture had been set for November 20, 1985. In support of his second motion to depose witnesses abroad, Ismaili submitted two affidavits of Josiah Thompson, a private investigator retained by his new and present counsel. One affidavit included transcripts of interviews that Thompson conducted with four Syrian witnesses who were allegedly part of Ismaili’s Middle Eastern sales team. In the interviews, the witnesses stated that they were familiar with Incoser, but their familiarity stemmed from second-hand or third-hand hearsay. This affidavit, which reported the testimony of all four witnesses, indicated that one Ahmed was about to organize or was organizing the alleged sales team, but that the van-selling venture collapsed because of warring elements in the region. App. at 88-110. A second affidavit included an account by Thompson of conversations he had with Rachid and Ezzarai in Morocco. These conversations concerned the involvement of Rachid and Ezzarai with Ismaili and their willingness to come to the United States to testify on his behalf. Thompson’s affidavit recited that Ezzarai had met Rachid about 1975. Rachid gave Ezzarai film to develop beginning in 1980. Some fifty films were given to Ezzarai by Rachid over a period of two to four months. Because the film required special processing, it was forwarded to Agadir Color in Morocco, a firm which is no longer in business. Thompson also reported two interviews between Ezzarai and the police. During the interviews with the police, Ezzarai disclaimed any knowledge of Incoser, and denied even knowing the name. He also denied knowing Ismaili. According to Thompson, Ezzarai was asked by the police if he would go to the U.S. to testify, and replied, “Yes. If you get me a passport and pay my taxes and feed my children. Then I’ll say I’ve never heard of Incoser.” App. at 75. Thompson’s affidavit also reported an interview with Rachid Ismaili, Ismaili’s brother. Rachid stated, as reported by Thompson, that he had discussed with his brother [Ismaili] a project of making color separations in either Morocco or Egypt and he [Rachid] was to find someone who could make them, and if necessary to develop negatives sent from the U.S. He was also to begin organizing a sales force. The interview continued with Rachid stating that he had given Ezzarai 60,000 dirham from money Rachid was holding for his brother; in addition, Ezzarai was to get two cars as collateral. The cars, however, were seized by Customs authorities and were never retrieved. The project, Rachid claimed, terminated because of the outbreak of the Iran-Iraq war. App. at 73-79. Thompson also interviewed a U.S. vice-counsel, Julia R. Stanley. Thompson’s affidavit reports that although he was not permitted to see a cable which had been sent from the U.S. Embassy in Rabat, he was told by Stanley that it reportedly contained information about Ezzarai and his business, including an interview with someone who claimed that he was Ezzarai and who stated that he had been approached in 1979 by Incoser to do some work; that several cars had been left as collateral for the work, but that they had been seized by customs; that he had sent a bill to Incoser but had received no reply. Stanley apparently also stated that Ezzarai experienced difficulty in getting a passport and that passports are routinely denied to Moroccan subjects, but that she had sent a diplomatic note to the foreign ministry in order to get him a passport. She also reported that Ezzarai owed some back taxes. App. at 73-110. For reasons which do not appear of record, the November 20, 1985 trial date was evidently continued, and on February 25, 1986, at the request of Ismaili’s counsel, another hearing was held at which the district court received testimony from investigator Thompson. App. at 131, 140, 199. With respect to the Syrian witnesses, Thompson testified that they were “absolutely unavailable” because they were unwilling to come to the United States, due to anti-American prejudice in Syria. App. at 215. Thompson said that “Anyone who has anything to do with the American embassy or with Americans generally in the Arabic world are viewed with suspicion and it’s something people are enormously reluctant to do [come to the States] at this point in time.” App. at 213. “Many of them are subject to the Syrian draft, and for that reason would require special governmental permission to go out of the country. I suspect whatever the reasons they actually gave me on the tape, underneath that is this very heavy prejudice against having anything to do with the United States.” App. at 215-216. With respect to the Moroccan witnesses, Thompson stated that Rachid (Ismaili’s brother) was “certainly willing to come” to the United States, but “held a passport which had lapsed,” and learned that it was often difficult for Moroccan citizens to get passports. App. at 204-205. Thompson testified that Ezzarai, who is related to Ismaili, did not yet have a passport and was a reluctant witness. Thompson said that Ezzarai had taken the position that “I will come if you get me a passport; if you pay my back taxes; and if you pay for my wife and children to live.” According to Thompson, “He’s very reluctant and became ever more reluctant to have anything to do with this.” App. at 211. In an Order issued without opinion on February 28, 1986, the district court denied the deposition motions by stating, “the defendant’s motion to depose witnesses outside the United States and to require the Government to bear the expenses of the depositions be and it is hereby denied.” App. at 6 (docket entry). Shortly thereafter, Ismaili pleaded nolo contendere pursuant to a plea agreement, as set forth earlier in this opinion. B. Prior to 1975, Rule 15(a) of the Federal Rules of Criminal Procedure explicitly required that depositions could be taken in a criminal case upon a showing “that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that his testimony is material and that it is necessary to take his deposition in order to prevent a failure of justice.” The cases which interpreted the former Rule 15(a) required that the depositional testimony at a minimum, be material, and that the witness who was to be deposed, had to be unavailable for live testimony at trial. See e.g., United States v. Whiting, 308 F.2d 537 (2d Cir.1962), cert. den., 372 U.S. 909, 83 S.Ct. 722, 9 L.Ed.2d 718 (1963); United States v. Singleton, 460 F.2d 1148 (2d Cir.1972). The burden of proof rested with the party seeking to conduct the deposition to demonstrate both unavailability and materiality. See U.S. v. Rosenstein, 474 F.2d 705 (2d Cir.1973). Effective December 1975, Rule 15(a) was amended. As amended, a motion to take a deposition in a criminal case may be granted “[w]henever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial.” The 1975 amendment to Rule 15(a) not only carries forward the interpretations given by the cases to the earlier rule, but it also reflects other features, all but one of which, are relevant to the issues in this case. First, as a matter of historical significance only, the amendment authorized the government to take depositions. Under the earlier rule, the taking of depositions was limited to defendants. This change is not relevant to the present proceeding, however, because here it is only the defendant Ismaili who has applied to take depositions of his prospective witnesses. Second, the amendment continues to distinguish between the favored use of depositions in a civil context, and their disfavored use in the criminal context. For instance, although the term “deposition” in a civil context ordinarily connotes the taking of testimony for discovery purposes, that connotation is misleading with respect to the practice under Rule 15(a). See U.S. v. Cutler, 806 F.2d 933, 935 (9th Cir.1986). Rule 15(a) depositions are restricted to prospective witnesses of a party. The rule does not authorize taking the depositions of a witness of an adverse party, as is the case in civil practice. Third, criminal depositions must be authorized by order of court and are only to be taken to preserve the testimony for use at trial. See the Note of the Advisory Committee to Rule 15. The 1975 amendment emphasizes the use of discretion by the district court in determining whether “exceptional circumstances” exist to authorize the taking and preservation of testimony by deposition. Thus our review of the district court’s action centers on whether the district court properly exercised its discretion. See U.S. v. Johnpoll, 739 F.2d 702, 708 (2d Cir.), cert. den. 469 U.S. 1075, 105 S.Ct. 571, 83 L.Ed.2d 511 (1984) (“the decision to grant or deny a motion to take a deposition rests within the sound discretion of the trial court ... and will not be disturbed absent a clear abuse of that discretion”). The burden of proof in a Rule 15(a) motion continues to rest with the movant to demonstrate the necessity for preserving prospective witness’ testimony by a deposition, see U.S. v. Adcock, 558 F.2d 397, 406 (8th Cir.), cert. den., 434 U.S. 921, 98 S.Ct. 395, 54 L.Ed.2d 277 (1977). Notwithstanding the 1975 amendment of Rule 15(a), it nevertheless has been established that when the district court exercises its discretion in ruling on a Rule 15(a) motion, considerations of materiality (of the testimony) and unavailability (of the witnesses) remain critical. See United States v. Johnson, 752 F.2d 206, 209 (6th Cir.1985) (unavailability still an important factor in determining whether exceptional circumstances exist); United States v. Bello, 532 F.2d 422, 423 (5th Cir.1976) (testimony of foreign business associates not considered material so that “exceptional circumstances” or “interests of justice” did not compel a finding that the district court abused its discretion in denying depositions under Rule 15(a)); see also United States v. Sun Myung Moon, 93 F.R.D. 558 (S.D.N.Y.1982), cert. den., 466 U.S. 971, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984) (motion granted by district court upon determination of unavailability and materiality). Thus, although witness availability and the immateriality of proposed testimony to be obtained through depositions are not rigid or automatic grounds for the denial of a 15(a) motion as they once were, it is nonetheless evident that the post-amendment case law defining “exceptional circumstances” and “interests of justice” still focuses on those considerations. Hence, it is difficult to conceive of a district court abusing its discretion by denying a Rule 15(a) motion where the movant has not established both the materiality of the testimony and the unavailability of the witness. C. Ismaili suggests that pursuant to Rule 15 he has demonstrated “exceptional circumstances” which, as we have noted, must encompass both factors of materiality and unavailability. 1. The Moroccan Witness We need not reach the question of the materiality of the testimony by the Moroccan witnesses (Rachid and Ezzarai), because on the record before the district court, it was well within that court’s discretion to determine that Ismaili failed to carry his burden of showing that the Moroccan witnesses were unavailable. Even if we assume, without deciding, that the testimony of both the Moroccan witnesses was material to Ismaili’s defense, the record does not reveal that Rachid Ismaili or Ezzarai, both of whom are related to Ismaili, could not have been available to testify at trial. The record discloses that the proof of unavailability with respect to these witnesses is: Rachid: was “certainly willing to come” to the United States, but “held a passport which had lapsed, and learned that it was often difficult for Moroccan citizens to get passports.” App. at 204-205. Ezzarai: did not yet have a passport and was a reluctant witness. Vice Counsel of U.S. Embassy indicated that Ezzarai might have considerable difficulty getting a passport. App. at 234, 211. Thompson said Ezzarai experienced difficulties in the past and took the position that “I will come if you get me a passport; if you pay my back taxes; and if you pay for my wife and children to live.” Thompson claimed that Ezzarai was “very reluctant and became ever more reluctant to have anything to do with this.” App. at 211. There was no evidence offered that either Rachid or Ezzarai had tried and was in fact unable to procure a passport or would refuse or was unable to attend trial in the United States. At the time that the district court considered Ismaili’s motions, the record was also silent as to Ismaili’s ability to finance Ezzarai’s trip or to meet Ezzarai’s demands. Moreover, the record does not establish that any of the witnesses who were sought to be deposed by Ismaili including Rachid and Ezzarai, had been informed that they were entitled to have Ismaili bear their travel expenses, witness fees, and a subsistence allowance. For all that appears, all of Ismaili’s prospective witnesses may well have believed that they would be required to pay their own expenses if they travelled to the United States to trial. We are satisfied that the court could have understood the record as manifesting such a misapprehension on the part of the witnesses. If so, that misapprehension necessarily undermined the alleged good faith efforts of the defendant to have these witnesses appear at trial for live testimony. Furthermore, the unwillingness of a witness to travel to this country unless his expenses are paid does not necessarily mean that he is unavailable. C.f., United States v. Bronston, 321 F.Supp. 1269 (S.D.N.Y.1971). Given the equivocality of the evidence of unavailability and the strong preference for live testimony that the district court emphasized and that is central to the concerns expressed in the Federal Rules of Criminal Procedure and the Federal Rules of Evidence, it is evident that the district court did not abuse its discretion in holding that Ismaili failed to carry his burden of demonstrating the unavailability of Rachid and Ezzarai. 2. The Syrian Witnesses With respect to the four proposed Syrian witnesses, Ismaili’s investigator testified that they were “absolutely unavailable” because they were unwilling to come to the United States, due to anti-American prejudice in Syria. App. at 214, 232. We need not address the question of availability here, since we find that based upon the record in this case, there was an insufficient showing of materiality. Taking the representations of Thompson, Ismaili’s investigator, in the light most favorable to his case, the Syrian witnesses who Ismaili claimed were part of his sales force could, at best, as we have noted earlier, testify only to second or third-hand hearsay. Without specifying the time frame involved, their statements to Thompson indicate only that they had been approached to sell vans and other vehicles not by Ismaili, but by a third party, A1 Ahmed, who is no longer living. Ahmed, according to the Syrian witnesses themselves, claimed an inability to follow through upon any of his plans to establish a sales force because of political instability in the region. One Syrian witness was Bassam. His statements consisted only of knowledge which he received from A1 Ahmed. App. at 88-95. Witness Laham’s statements were drawn from information acquired from Bassam. App. at 96-100. Witness Holibi apparently acquired his information, which is reported in Thompson’s affidavit, from Bassam and Ahmed. App. at 101-105. Witness Manzalgy also became aware of Incoser from Bassam. App. at 106-110. The affidavit submitted by Thompson thus does not substantiate with any definitiveness that the Syrian witnesses could testify at first hand to the preparation of the color separations; or to the preparation of promotional literature, which was at the heart of Ismaili’s sales pitch to the American van manufacturers. Nor was there any indication that the Syrian witnesses could substantiate with anything other than hearsay Ismaili’s claim that a sales network existed throughout the Middle East. Even if the Syrian witnesses were able to testify that Ismaili had come directly to them and tried to form a sales group to sell vans — testimony which they could not provide — Ismaili’s various representations would still have provided a basis for an action against him based on fraud. Proposals by Ismaili to employ the Syrian witnesses in the future could not stand as proof that Ismaili had a marketing and distribution network already in place, and was actively engaged in the promotion and sale of vehicles — facts which Ismaili had represented to the van manufacturers. The indictment, after all, charged that Ismaili “did falsely represent to various prospects in various states ... that he was a well-financed importer and exporter ... with offices and agents in the Middle East ... [and that he falsely represented] that he had a marketing and distribution network in place and actively engaged in the promotion and sales of various motor vehicles.” App. at 10 (emphasis added). Even if a lowered materiality threshold may be appropriate where a deposition of a foreign national is involved, see U.S. v. Steele, 685 F.2d 793, 808 (3d Cir.1982), nonetheless if the testimony of witnesses in a criminal case could not negate the crux of the government’s indictment that Ismaili made false statements which induced the U.S. prospects to give him money, the district court cannot be held to have abused its discretion in denying authority to permit depositions of such witnesses under Rule 15(a). 3. The Saudi Arabian Witnesses Ismaili’s presentation in support of his initial motion to depose the Saudi Arabian witnesses was not added to or improved upon at the time Ismaili moved for reconsideration of the district court’s June 5, 1985 order. Thus, the motion to depose the Saudi Arabian witnesses depends upon the single telex exhibit, app. at 34, which the district court explicitly found insufficient to provide “exceptional circumstances” under Rule 15(a). App. at 123. The thrust of the telex sent by three Saudi witnesses, Wasfi, Ahmed Said and Fawzi, was to the effect that A1 Ahmed had engaged Wasfi sometime between 1970 and 1980 as a sales agent to sell vans for a company called Incoser. Wasfi was to organize a sales force, and was to find buyers in Saudi Arabia, until Ahmed told him that he, Ahmed, had advised Ismaili not to proceed with the sales program until the situation stabilized. Then, Wasfi, Fawzi and Ahmed Said, the three witnesses, allegedly, suspended their efforts. Thus the very telex on which Ismaili grounded his application for Rule 15(a) depositions by its own terms discloses that no Saudi Arabian sales force was in place, and that these witnesses were not actively engaged in the promotion and sales of Incoser’s motor vehicles. Moreover, the hearsay nature of the Saudi Arabian witnesses affects the materiality of their testimony just as the hearsay quality of the Syrian witnesses’ testimony affected the quality of the testimony they could provide. The telex in question, furthermore, provided clear evidence that the witnesses were under the impression that they would be obliged to spend their own money for expenses. We have discussed the factor of a witness’ unwillingness to pay his way at an earlier part of this opinion. As we stated there, a foreign witness who is unwilling to travel unless his expenses are paid is not necessarily unavailable within the terms of Rule 15(a) and Fed.R.Ev. 804. Under these circumstances, we are satisfied that the district court did not abuse its discretion when it did not authorize Ismaili to take Rule 15 depositions of the Saudi witnesses. D. Thus, we will affirm the district court’s denial of Ismaili’s motions to take Rule 15(a) depositions of the witnesses in Morocco, Syria, and Saudi Arabia. III. Ismaili also argues that the district court erred in refusing to dismiss the indictment. He claims that the government failed to inform the grand jury that evidence which it introduced consisted of multiple hearsay. He also claims that the government should have introduced before the grand jury evidence characterized by Ismaili as “exculpatory.” Our review is circumscribed by a presumption of validity afforded to the grand jury process. “An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for a trial of the charge on the merits. The Fifth Amendment requires nothing more.” Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). We review the district court’s denial of a motion to dismiss an indictment alleging prosecutorial misconduct for an abuse of discretion by the court. See U.S. v. Wander, 601 F.2d 1251, 1260 (3d Cir.1979); United States v. Bruzgo, 373 F.2d 383 (3d Cir.1967). A. Ismaili submits that the grand jury’s indictment should have been dismissed because the evidence presented to the grand jury consisted of multiple hearsay. He suggests that the crux of the case against him that was presented to the Grand Jury was a confidential report by the F.B.I., which related an interview with Ezzarai conducted by the local Moroccan police. He asserts on appeal that the fact of the report’s hearsay character was concealed from the grand jury. Appellant’s Brief at 41. We reject this argument on two grounds. First, the record reveals that although Ismaili has raised the hearsay objection on appeal, his motion before the district court was concerned with the general subject of abuse of grand jury process without identifying in particular the hearsay character of the reports in question. The gravamen of Ismaili’s motion to dismiss the indictment focused on the alleged abuse by the government in failing to introduce exculpatory evidence, a subject which we address in a later portion of this opinion. Our reading of the record discloses that before the district court, the only reference to the issue of mischaracterized and multiple hearsay occurred at the February 25, 1986 motions hearing, where Ismaili’s counsel urged the district court to release documents and to dismiss the indictment by reason of the government’s failure to produce exculpatory evidence before the grand jury. Counsel conjectured that the grand jury may have relied upon “the least reliable fact-finding method in the world” by relying on reports of interviews by third parties. App. at 151. In asking that the indictment be dismissed because the government failed to produce exculpatory evidence at the grand jury hearings, Ismaili’s counsel speculated that the grand jury which indicted Ismaili may have been told only that Ezzarai denied knowing Ismaili, (in effect rebutting Ismaili’s defense) without letting the jury know about other evidence which acknowledged an existing relationship with Ismaili. App. at 150-151; telex at 72. Therefore, although the district court did deny the motion to dismiss the indictment on the ground of grand jury abuse, it did not have any occasion to decide, nor did it decide, the question being urged here on appeal. From all that appears of record, the issue of “multiple hearsay constituting grand jury abuse” is raised here on appeal for the first time. As a court of review, we do not review issues on which the district court has yet to rule. Having neither the benefit of a lower court opinion on this subject, nor a specific motion to review, we do not consider the issue to have been properly preserved for appeal. The second basis for rejecting Ismaili’s argument is that, even if the issue of mischaracterized and multiple hearsay evidence were before us, there would have been no abuse of discretion by the district court in denying the motion to dismiss. There is no prohibition on the use of hearsay by a grand jury, see Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), unless (1) non-hearsay is readily available; and unless (2) the grand jury was also misled into believing it was hearing direct testimony rather than hearsay; and unless (3) there is also a high probability that had the jury heard the eye-witness it would not have indicted the defendant. United States v. Wander, supra, at 1260. We have no need to discuss these requirements, for this case does not present á Wander situation. Ismaili’s argument that the grand jury was misled is, simply, without factual foundation. We have read the Supplemental Appendix submitted by the government under seal, and it is clear that the grand jury was informed of the hearsay character of the evidence, and that it was not misled as to its contents. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_source	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. UNITED STATES of America, Appellee, v. ATOMIC FUEL COAL COMPANY, Appellant. No. 11219. United States Court of Appeals Fourth Circuit. Argued June 23, 1967. Decided Sept. 11, 1967. John M. Stephens, Pikeville, Ky. (Stephens, Combs & Page, Pikeville, Ky., on brief), for appellant. Robert M. Perry, Attorney, Department of Justice (Edwin L. Weisl, Jr., Asst. Atty. Gen., and Roger P. Marquis, Atty., Department of Justice, and Thomas B. Mason, U. S. Atty., on brief), for appellee. Before SOBELOFF, BOREMAN and BRYAN, Circuit Judges. ALBERT V. BRYAN, Circuit Judge: In the exercise of eminent domain the United States on June 4, 1964 acquired, with many other properties, varying interests in three small parcels of land for the construction and operation of a flood control dam and reservoir on Pound River, Dickenson County, Virginia. The parcels are contained in tracts designated as Nos. 111-1, 111-2 and 111E-4. These tracts were parts of a 581.88-acre boundary in which the Atomic Fuel Coal Company claimed an interest as lessee of the mineral rights. The District Court allowed Atomic no compensation, holding that it possessed nothing but a revocable license to remove the minerals. We reverse, and remand for a new trial, as to Atomic’s claim in tract No. 111-1, concluding that Atomic was a lessee, not merely a licensee, and entitled to Constitutional just compensation for the leasehold rights taken from it. As to the other two parcels the record is too obscure to allow an intelligent review. Neither the commission appointed to fix compensation in the case, nor the opinion of the Court, nor the briefs of the counsel give an account of the disposition in respect to them. The best we make out is that in No. 111-2 the take excluded any right to the surface and the minerals thereunder except to flood and submerge the land and, in addition, the unrestricted use of the land for two years from the date of possession. In No. 111E-4, the take included only the right to flood the land, title to the timber and improvements thereon (except structures used in connection with mining operations) and the right for two years from date of possession to an unrestricted use of the land. On remand, the trial court will state specifically, and file in the case, its findings of fact and conclusions of law as to these two properties. In No. 111-1 the fee simple title was condemned and its case history is as follows: 1. By an indenture dated December 17, 1874, Amos Willis, as owner in fee simple of the 581.88 acres, conveyed to J. D. Price and A. J. Steinman all the “Bituminous and other coals, iron, ore, and all other minerals, Except Manganese and fire clay, in, under, and upon” the entire tract, with the right of ingress and egress to remove them. 2. Steinman Development Company, a New Jersey corporation, succeeded Price and Steinman in this ownership. 3. That company in an indenture dated January 1, 1957, describing itself as “Lessor” and the other party, Pound River Coal Company, Inc., as “Lessee” declared that the “Lessor hereby leases to the Lessee for a period of Five (5) years from December 11, 1956, for coal mining purposes only, the seam or seams of coal lying within” the 581.88-acre tract, exacting certain royalties upon the production and also prepayment of sums on account thereof. 4. This instrument gave the Lessee the right to an extension for “another five-year period on the same terms” but upon increased royalties, and provided further that “if all the mineable and merchantable coal on this lease is not exhausted at the end of this additional five-year period, the Lessor agrees to extend this lease for a further period or periods not to exceed twenty (20) years.” The first extension of five years was granted pursuant to a letter from Pound River dated October 15, 1961. 5. By a written agreement dated December 9, 1963 Pound River Coal Company, Inc., reciting the consent thereto of Steinman Development Company and apparently without its objection, assigned “the existing coal lease” between Stein-man and Pound River to Atomic Fuel Coal Company, Inc., the appellant here. 6. On June 4, 1964 the United States filed its complaint in this action for the condemnation of land, as already noted, for the construction, operation and maintenance of the John W. Flannagan Dam and Reservoir, a flood control project. 7. An order of possession was issued, by the District Court under date of June 4, 1964 and a declaration of taking was filed on June 4, 1964; the complaint and declaration included within tract No. 111-1, 5.23 acres of the 581.88-acre area heretofore described; within tract 111-2, 6.66 acres thereof; and within tract 111E-4, 5.11 acres thereof. 8. Both the complaint and the declaration of taking noted among “purported owners” the Atomic Fuel Coal Company as well as the Steinman Development Company. 9. The United States, without notice to the appellant Atomic Fuel Coal Company, assignee of the Steinman Company of the latter’s mineral rights in the 581.88-acre tract, agreed with the Stein-man Development Company upon compensation, and paid it, for all the mineral rights Steinman had acquired from Willis in 1874 (para. 1 supra) within the condemned tracts, apparently concluding that Steinman had not parted to any extent with these rights; and that Atomic had procured no compensable rights in the minerals by the assignment from Steinman described in para. 5 supra. 10. The commission, on the same basis, denied Atomic any compensation, except $1.00, and the Court denied even that. This is the order from which Atomic now appeals. Time, money and litigation could have been saved the United States and the other parties if the customary procedure had been followed in this case. With notice of the claim of Atomic, its interest as well as that of all other claimants should have been determined by the Court before directing the ascertainment of just compensation. Certainly the legal question of the character of Atomic’s claim ought not to have been left to the commission. The validity of the claims once declared, all of the recogized claimants had the right to be heard by the commission upon the amount due for the whole of the take. This amount would then be put into the registry of the Court. Thereafter claimants would be heard by the Court upon the distribution of it among them. By this method the Government would be relieved of the problems of distribution, for its only obligation is to pay as a whole for what it expropriates. Messer v. United States, 157 F.2d 793, 795 fn. 5 (5 Cir. 1946). Looking at Atomic’s claim in Tract No. 111 — 1, we hold that the Steinman Company was the absolute owner, on conveyance from Willis (para. 1 supra), of all the minerals beneath the surface of the 581.88-acre tract, including the power to sell, lease or otherwise dispose of them; Atomic became the lessee thereof, through assignment from Pound River Company, under the agreement between Steinman and Pound River (para. 3 supra), with the irrevocable right during the stipulated initial and extended terms to mine the minerals. Of course, Steinman remained the owner of the reversion after expiration of the lease periods. The Government argues that a condemnation defendant who has only a license to abstract elements from the land, without ownership accruing until after severance, has no compensable interest as a condemnee. Assuming arguendo the soundness of this contention, it does not succeed here because we hold that Atomic received title to the minerals in situ. Guides in the determination of the legal nature of the rights in minerals are clearly set forth in 1 Minor on Real Property (2d ed. Ribble) at 71-74. As it is a classic on property in Virginia, we quote at length: “Interests in mining rights may be divided generally into two classes; (1) Title to minerals in place with such easements as may be necessary for their removal, and (2) the right to acquire ownership of minerals by severance although title to the property is in another. Such right to acquire ownership may be exclusive or it may be shared in common with the owner of the premises or with others. It is not exclusive unless clearly made so. The minerals in place under the surface are susceptible of an ownership distinct from that of the surface, and may constitute a separate corporeal hereditament. Thus the title to the surface and soil may be vested in one person and that to the mines and minerals under the surface in another. The owner of land may convey the surface without the minerals or convey the minerals and retain the surface. He may also lease the land for a limited time, giving the lessee the right to take minerals. In such case the lessee is in the same situation as the ordinary lessee except that he does not commit waste in opening and operating mines on the premises. Or the owner may convey the right to take minerals for a limited time and pass with it no right in the surface, except such as is necessary to work the mines. These cases are not properly considered as transfers of title to the minerals in place, but rather as transfers of the right to take minerals. “In construing grants of mining rights, care must be taken to distinguish between the conveyance of the minerals themselves in place (which usually confers upon the grantee the exclusive ownership and control thereof, and implies a license to dig for and remove them) and the grant of an authority, license or profit a prendre, under which the grantee is entitled to mine the ore, stone, etc., and remove it, in which case he has no interest in the land or in any ore save that actually mined. In the latter case the grantee’s right to mine is not necessarily exclusive of the right of the owner or his assignee to do likewise. It is exclusive only in those eases where it is so agreed between the grantor and grantee.” [Accent by author.] Enunciation of the Virginia doctrine in the same tenor is found in Bostic v. Bostic, 199 Va. 348, 99 S.E.2d 591, 66 A.L.R.2d 971 (1957) and Church v. Goshen Iron Co., 112 Va. 694, 72 S.E. 685 (1911). In short, entirely aside from the matter of compensability, it is that only a lease, and not a license, gives an immediate interest in minerals in their natural state. Examining the terms of the agreement between Steinman and Pound River Company, to which Atomic succeeded, we find it a lease — a mining lease. Features of the agreement warranting our conclusion it bestowed a leasehold upon Pound River Company and Atomic, the former’s assignee, are numerous. The parties designated each other as lessor and lessee, the operative phrase was “hereby leases”, and a specific term and extensions are prescribed. Limited rights of entry for inspection of the lessee’s operation were retained by the lessor — a reservation hardly necessary if, as the Government alleges, the lessor’s rights under the agreement were coextensive with those of the lessee. Again, the transferee and its assign were granted “all the mining surface and timber rights” which had been conveyed to Steinman by Willis, the owner of the whole, in 1874. The last circumstance is a conclusive indication that the grantee was given the exclusive right to these items and could have ejected anyone else from their enjoyment. A right of this breadth was held in Bostic v. Bostic, supra, 199 Va. 348, 99 S.E.2d 591, to be determinative that an agreement is a lease and not merely a license or profit a prendre. When an instrument has the characteristics we find in the agreement between Steinman and Pound River Company, predecessor of Atomic, it amounts to a mining lease. In Miller v. Kellerman, 228 F.Supp. 446, 459-460 (W.D. La.1964), aff’d 5 Cir., 354 F.2d 46, cert. den. 384 U.S. 951, 86 S.Ct. 1571, 16 L.Ed. 2d 548, it is said: “A mineral lease is a contract which permits the lessee to explore for minerals on the land of the lessor in consideration of certain commitments by lessee.” See also Gordon v. Empire Gas & Fuel Co., 63 F.2d 487 (5 Cir. 1933) and United States v. Gratiot et al., 39 U.S. (14 Pet.) 526, 538, 10 L.Ed. 573 (1840). We disagree with the Government’s position that the owner of the underlay, and not the surface, could not lease the mining rights. Steinman was the owner in fee of the minerals under the 581.88 acres with the right of access and egress for their removal. Possessed of this ownership and this right, Stein-man was empowered to contract with another so as to give the latter an exclusive and irrevocable right to remove the minerals for a specified time. In this Stein-man was conveying to the other party title to the minerals while in place, and according him the right to take them from the ground as and when he desired, provided he paid the reserved royalties. This lease clearly was something of value. This is recognized by the requirement that lump sums be paid — and had been paid by Atomic in the sum of $5,-865.00 — at the commencement of the first term and the extension, on account of the prospective royalties. These advance payments were not refundable. Presumably the lease had a market value, from which a commission, jury or a court could fix just compensation for its taking. Actually, Atomic paid $11,575.00 for the rights assigned it by Pound River. If there was no market, then the tribunal could have looked to the value as determined by its productivity — analogously to an evaluation by capitalization of rents or profits based on prior experience. United States v. 25.406 Acres of Land, 172 F.2d 990, 993 (4 Cir. 1949); Westchester County Park Commission v. United States, 143 F.2d 688, 693 (2 Cir. 1944). The evidence attests to a prior and profitable mining of this land in recent years. Allowance of compensation to Atomic is not payment for the frustration of a prospective business opportunity, as the Government suggests, citing United States ex rel. T.V.A. v. Powelson, 319 U.S. 266, 281, 63 S.Ct. 1047, 87 L.Ed. 1390 (1943). Here the United States has taken minerals in the ground belonging to Atomic in the lease periods. This is vastly different from the mere preclusion of a future exploitation of the mining lands. It is reimbursement for property actually taken. The potential productivity of the lease is looked to only to ascertain its value. As the case was not tried below on these principles, we must set aside the judgment now on appeal, and remand the action for the ascertainment of the fair value of the lease in the hands of Atomic. On retrial, the District Court will make specific findings and state its conclusions of law in respect to the part of tract 111-1, as well as in regard to tracts Nos. 111-2 and 111E-4 as heretofore directed. Reversed and remanded. Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:
songer_respond1_1_4	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant. COMMISSIONER OF INTERNAL REVENUE v. CELANESE CORPORATION OF AMERICA. No. 8570. United States Court of Appeals District of Columbia. Argued Dec. 10, 1943. Decided Jan. 17, 1944. Mr. Joseph M. Jones,' Sp. Asst, to the-Atty. Gen., with whom Messrs. Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst, to the Atty. Gen., were on the brief for petitioner. Messrs. J. P. Wenchel, Chief Counsel, and C. E. Lowery, Sp. Atty.,, Bureau of Internal Revenue, both of Washington, D. C., also entered appearances for petitioner. Mr. E. Barrett Prettyman, of Washington, D. C., with whom Messrs. Fred R^ Angevine, of New York City, F. G. Await,, and Raymond Sparks, both of Washington, D. C., were on the brief, for respondent. Before GRONER, C. J., and EDGER-TON and DOBIE JJ. Sitting by assignment of the Chief Justice of the 'United States, pursuant to the provisions of the Act of December 29, 1942, entitled “An Act to amend the Judicial Code to authorize the Chief Justice of the United States to assign circuit judges to temporary duty in circuits other than their own.” 56 Stat. 1094, 28 U.S.C.A. §§ 17-20, 22, 23. GRONER, C. J. This is a tax case in which the Commissioner determined deficiencies against respondent, as a withholding agent, of $14,-074.20, with penalties of $3,518.55 for 1937, and of $7,253.08 and penalties of $1,831.27 for 1938. The Tax Court held that there was no duty on respondent to withhold the tax. The Commissioner appealed. The question in the case is whether payments made by respondent to one Henri Dreyfus, a nonresident alien, were subject, in the two years in question, to the income tax withholding provisions of the Revenue Acts j and the answer turns upon whether the payments were royalties for the use of patents or were payments on their purchase price. The facts were stipulated in the Tax Court and for present purposes may be stated as follows: Henri and Camille Dreyfus were in November, 1918, citizens and residents of Switzerland. They had invented and owned certain secret manufacturing processes upon which patents had been granted by the United States. On November 30, 1918, they contracted with respondent’s predecessor corporation to assign and deliver to it all of such patents, with full and exclusive right and authority to manufacture and sell in the United' States, its territories and dependencies, Mexico, Cuba and South America. The contract was executed by the Dreyfuses in London. A cotemporaneous contract provided for their employment as Managing Directors of the corporation for a period of fifteen years. Pursuant to the terms of the first mentioned contract, the Dreyfuses executed written assignments of “the whole of the exclusive right, title and interest in and to each and all of said letters patent * * * and in and to the inventions therein described and claimed, the same to be held by the said, the American Cellulose & Chemical Manufacturing Company, Ltd. (respondent’s predecessor), for its own use and behoof and for the use and behoof of its successors, assigns, or legal representatives, subject to the terms and conditions of the said agreement of the 30th of November, 1918.” Camille Dreyfus subsequently became an American citizen and is not concerned with the appeal. His brother, Henri Dreyfus, continued a nonresident alien and at no time had an office or engaged in any trade or business in the United States. In 1937 and 1938 respondent paid Henri Dreyfus $140,742.04 and $72,530.79, respectively, under the 1918 sales contract. It did not withhold income tax on these payments. If the payments were made in the purchase of personal property, as was decided by the Tax Court, then respondent is not subject to the income tax withholding provisions. But the Commissioner claims that the payments were not purchase money payments, but were in fact royalties for the use of patents, (Sec. 119, Acts 1936, 1938, 26 U.S.C.A.Int.Rev.Acts, pages 876-879). If that be true, then admittedly respondent would be subject to the withholding provisions of the Act. The November, 1918, sales agreement, after reciting the circumstances under which the Dreyfuses obtained the patents and that respondent, called “the Purchaser”, desired to acquire them “to use, enjoy and exploit them in the Purchaser’s area,” provided that in consideration of the delivery by the Purchaser to the sellers of 150,000 shares of the Purchaser’s fully paid, non-assessable common stock and the payment of six per cent (three per cent to each of the brothers) of the Purchaser’s net profits to be paid in each year in which there should be payments of dividends to stockholders — “The Vendors hereby assign and make over to the Purchaser and its successors and assigns, the said processes and the full benefit thereof with the full and exclusive right and authority to manufacture and sell in the Purchaser’s area, namely, in the United States of America, its territories and dependencies and also similar rights in Mexico, Cuba, and the countries of South America provided patents are taken out by the purchasers in any of tbe said countries in which purchasers may wish to do business (but not elsewhere) articles made under, by or in accordance with the said processes or any of them,” etc. And the stipulated facts show that in accordance with the quoted provision, the Vendors did assign in writing the whole of their exclusive right, title, and interest in the patents within the described territory to the Purchaser, and that the assignments were accepted and recorded in the United States Patent Office and that the Purchaser has uninterruptedly had and used the same and their extensions as its own property for a quarter of a century. Considered in this aspect there can he no manner of doubt that the parties intended to effect a purchase and sale of the patents and not a royalty use. The 1918 contract confirms this purpose in unmistakable language, and this was the conclusion reached by the Tax Court. The stipulation, that Court said, categorically provides that the patents and processes covered in the 1918 contract were transferred to the petitioner before the tax years in question; and there is no reason to believe that when the parties drew their contract they intended to provide for licenses and royalties when they expressly provided for sale and price. This reasoning seems to us in all respects sound, and when it is considered that we were recently told by the Supreme Court, that the judicial function is exhausted when there is found to be a rational basis for the decision of the Tax Court, the conclusion reached by that Court, supported, as here we think it is, by the stipulated facts and the established law, necessarily forecloses the question, unless there is something else in the record which of itself impels a different result. The Commissioner’s case is, in the main, based on such a claim. He says that, notwithstanding the words of outright conveyance and sale, or the intention of the parties to make a purchase and sale, there are in the contract restrictions and limitations on the transfer which indicate that it was in law no more than a licensing agreement. To support this he points to various provisions from which he concludes that an absolute sale was not accomplished, since, as he thinks, respondent might, as the result of one or another of these provisions, in the contingencies named, lose the patents and the Vendors recover them. We find no merit in the claim. Most of the language to which the Commissioner alludes embraces precautionary provisions in the protection of the rights of the parties, respectively, under the contract. None of it affects the intent and purpose of the contract to vest immediately in the Purchaser absolute title to the patents. The clause most seriously challenged by the Commissioner is that the Vendors shall have the right to cancel the agreement and terminate the rights of the Purchaser if within ten years from the date of the agreement the Purchaser shall be dissolved and placed in bankruptcy or receivership. A quick answer to this is that the ten year period expired in 1928, without the happening of any of the conditioned events. The installment payments on the purchase price and the ownership rights of the Purchaser under the contract have continued unchallenged until now. Obviously, no right to demand a reconveyance of the patents can arise now under this clause. At most, the provision was intended to fix a definite period within which to determine whether the enterprise would succeed, with the right reserved to the Vendors, at their option, to retake in the event of bankruptcy. But, in no aspect, was this more than a condition subsequent whereby a title already vested might become divested. Since the named contingency never arose, and the condition long ago became obsolete, no more need be said on the subject. (Restatement, Property, Sec. 24). Other language provides that in the event of liquidation, the Vendors shall ■•be entitled to the payment of a capital sum representing the capitalized value of the percentages payable to the Vendors, but does not provide for a return of the patents. And so also the provision that the Purchaser will keep the patents in full force and effect, in default of which the Vendors have the right at the Purchaser’s expense to work the patents, is just another condition subsequent — looking to requiring the Purchaser to make such continuous use of the patents that the installments of the purchase price may be paid. In short, the various provisions to which we have referred, as well as the others referred to by the Commissioner, are provisions of a reciprocal nature in which each of the parties was seeking the most certain means of securing to the Purchaser the exclusive possession and use of the patents $vhich it had bought and to the sellers that they should be so used as to assure as far as possible payment of the installments which were a part of the consideration of the sale. Nor is there any more substance to the Commissioner’s claim that the clause which bound the Vendors, if called on by the Purchaser and at the Purchaser’s expense, to take proper action to prevent any one, acting without Purchaser’s sanction, from using the patents, is in derogation of the rights of Purchaser as owner. This provision reserved no rights in the Vendors and while it may have been redundant, its purpose obviously was to cover contingencies which might at the moment have been overlooked or not foreseen. But clearly it was to protect the interest of Purchaser against such contingencies as should arise. As counsel very well suggest, it was analogous to a covenant to defend title, a common provision in most deeds of conveyance of real property. The Commissioner’s final point— not raised or discussed in the Tax Court but which, in deference to the decision of the Supreme Court in the Hormel case, we notice — is that even if the transfer was-technically a full assignment, the payments under the contract are nevertheless subject to the broad provisions of the withholding statute section 143(b). The argument to support this theory is that the duty of withholding is not determined by ascertaining that the payments are “technical royalties,” but that the obligation exists in any case in which a seller of an invention still has an interest in the successful exploitation of the patent. But the trouble with this is that the statute itself makes the distinction and expressly declares a different rule for “royalties for the use of a patent” and for payments received in consideration of “the sale of personal property” which would necessarily include the sale of a patent. § 143(b), § 119(e), Revenue Acts of 1936 and 1938, respectively. The Treasury Regulations make this distinction clear. Article 212-l-(a) of Regulations 94 and 101 provides that the gross income of a nonresident alien individual not engaged in-trade or business within the United States and not having an office or place of business therein at any time during the taxable year, does not include profits derived from the effecting of transactions in the United States, including inter alia, profits derived from the sale within the United States of personal property or real property located therein. And Article 143-2 of Regulations 94 and 101 provides that the income derived from the sale in the United States of property, whether real or personal, is not fixed or determinable annual or periodical income; and hence not subject to the 10 per cent tax under the provisions of section 143(b) on income from annual or periodical gains and profits. Nothing more, we think, need be said to show the error of the argument on which the Commissioner’s case in this last respect rests. Accordingly, we are of opinion that the Tax Court was clearly right in holding the amounts paid by respondent corporation to Dreyfus were installments of the purchase price of the patents covered by the 1918 contract and were not royalties or income from which respondent was required to withhold the tax. Affirmed. § 143 (b), Revenue Act of 1936, 49 Stat. 1700; and § 143 (b), Revenue Act of 1938, 52 Stat. 511, 26 U.S.C.A. Int.Rev.Code, § 143(b). Treasury Department Regulations (Art. 212-1 (a) of Regs. 94, 101, etc.) Littlefield v. Perry, 21 Wall. 205, 220, 221, 22 L.Ed. 577; United States v. General Elec. Co., 272 U.S. 476-489, 47 S.Ct. 192, 71 L.Ed. 362; Rotorite Corp. v. Commissioner, 7 Cir., 117 F.2d 245; Commissioner v. Hopkinson, 2 Cir., 126 F.2d 406, 409, 410. Dobson v. Commissioner, 64 S.Ct. 239, 88 L.Ed. —. In tbe last cited case Mr. Justice Jackson very well says that no administrative decisions are entitled to greater weight than those of the Tax Court. I am in accord with the statement, but its significance to me lies in the reason given to sustain it. This is, that the Tax Court “is independent, and its neutrality is not clouded by prosecuting duties. Its procedures assure fair hearing. Its deliberations are evidenced by careful opinions. * * * It has established a tradition of freedom from 'bias and pressures. * * * Its members not infreguently bring to their task long legislative or administrative experience in •their subject. * * * Individual cases are disposed of wholly on records publicly made, in adversary proceedings, and the court has no responsibility for previous handling.” That the given reason indubitably impels the conclusion, no intelligent person will gainsay. And if this be true, why then should it not be a rule of general application? Why, if the present trend of diminishing power in the courts to review administrative decisions is to continue — as I think is implicit in the recent decisions of the Supreme Court — would it not materially aid in the re-establishment of public confidence, alike in all administrative tribunals, if the pattern of fitness so carefully drawn by Mr. Justice Jackson were adopted by the legislature and written into their respective constitutions? Certainly, no less than this will afford protection to the citizen in the lawful pursuit of his business, and it should not be forgotten that protection and patriotism, in the true spirit of union, are reciprocal. In this paragraph I speak only for myself. Hormel v. Helvering, 312 U.S. 552, 556, 557, 61 S.Ct. 719, 85 L.Ed. 1037. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant? A. auto B. chemical C. drug D. food processing E. oil refining F. textile G. electronic H. alcohol or tobacco I. other J. unclear Answer:
songer_genapel1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. GREAT SOUTHERN TRUCKING CO. v. NATIONAL LABOR RELATIONS BOARD. No. 4874. Circuit Court of Appeals, Fourth Circuit. Jan. 10, 1944. Winthrop A. Johns and A. Norman Somers, Attys., both of Washington, D. C. (Robert B. Watts, Gen. Counsel, and Howard Lichtenstein, Asst. Gen. Counsel, both of Washington, D. C., on the brief), for National Labor Relations Board. Whiteford S. Blakeney, of Charlotte, N. C. (Guthrie, Pierce & Blakeney, of Charlotte, N. C., on the brief), for Great Southern Trucking Co. and L. A. Raulerson. Before PARKER, SOPER, and DOBIE, Circuit Judges. DOBIE, Circuit Judge. This is a petition by the National Labor Relations Board (hereinafter called the Board) for an order adjudging the Great Southern Trucking Company (hereinafter called the Company) and L. A. Raulerson, its President, in contempt of the decree of this court entered on April 13, 1942, enforcing an order of the Board. Mandate was issued on May 14, 1942, 127 F.2d 180, and on October 12, 1942, the Supreme Court denied the application of the Company for a writ of certiorari. 317 U.S. 652, 63 S.Ct. 48. Our decree has at all times remained in full force and effect and both the Company and Raulerson have had knowledge of the decree since its entry. The Board in its petition alleges that the Company and Raulerson have disobeyed paragraphs 1(b) and 2(a) of our decree by failing and refusing to bargain collectively with The International Brotherhood of Teamsters, Chauffeurs, Stablemen, and Helpers of America, Local No. 71 (hereinafter called the Union), as the duly designated collective bargaining agent for the employees of the Company, although the Company and Raulerson have been repeatedly requested by the Union to do so. The Company and Raulerson frankly admit that they have refused to bargain with the Union as ordered. They seek to extricate themselves from the plight of their ■own wrongdoing, however, on the ground that the Union has lost its majority status inasmuch as after the entry of our decree, a petition was signed by a majority of the employees stating that they did not desire to be represented by the Union. On March 3, 1943, these circumstances were presented by the Company to the Board with a request that the Board redetermine the Union’s majority status. The Board denied this request apparently on the ground that the Company had at no time since the entry of pur decree bargained with the Union and that the effects of the Company’s unfair labor practices had therefore never been dissipated. Accordingly, the Board’s Director of Field Division informed the Company that it expected full compliance with our decree, Including the bargaining provision. We are thus squarely presented with the question of whether the loss of the Union’s majority status, occurring after the entry of our decree but prior to the taking of remedial action by the Company as required by our decree, relieves the Company from the obligation of complying with the bargaining provisions of the decree. We have already had occasion ~to consider this question in National Labor Relations Board v. Highland Park Mfg. Co., 4 Cir., 1940, 110 F.2d 632, and we there rejected the contention that an intervening loss of a majority status relieves an employer of the remedial obligation to bargain with a union with which it had previously unlawfully refused to bargain. Judge Parker there stated, 110 F.2d at page 640: “It is reasonable to assume, moreover, that any decline in union membership has been due in large measure to refusal of respondent to bargain with the union as representative of the employees in the manner contemplated by the Act of Congress; and, in such situation, an order requiring respondent to bargain as contemplated by the Act is reasonably neces sary to overcome the effect of the interference with self organization resulting from the refusal to bargain. An employer should not be allowed to discredit a bargaining agent selected by an overwhelming majority of his* employees by refusal to bargain with it and then take advantage of the loss of membership due to his wrongful act as an excuse for refusing to recognize it as a bargaining agent.” Moreover, in a subsequent order dated March 11, 1941, we adjudged the Highland Park Company in contempt when it attempted to urge this same argument as a defense for its failure to obey our decree. And a wealth of judicial utterance in the form of decisions and dicta by the Supreme Court and each of the Circuit Courts of Appeals sustains our position in this respect. N.L.R.B. v. P. Lorillard Co, 1942, 314 U.S. 512, 62 S.Ct. 397, 86 L.Ed. 380; International Ass’n of Machinists v. N.L.R.B, 1940, 311 U.S. 72, 61 S.Ct. 83, 85 L.Ed. 50; N.L.R.B. v. Bradford Dyeing Ass’n, 1940, 310 U.S. 318, 60 S.Ct. 918, 84 L.Ed. 1226; cf. N.L.R.B. v. Clinton E. Hobbs Co, 1 Cir., 1942, 132 F.2d 249; N.L.R.B. v. Medo Photo Supply Corp., 2 Cir., 1943, 135 F.2d 279; Oughton v. N.L.R.B, 3 Cir., 1941, 118 F.2d 486; N.L.R.B. v. Whittier Mills Co, 5 Cir., 1940, 111 F.2d 474; N.L.R.B. v. Burke Machine Tool Co., 6 Cir, 1943, 133 F.2d 618; N.L.R.B. v. Chicago Apparatus Co, 7 Cir., 1940, 116 F.2d 753; Bussmann Mfg. Co. v. N.L.R.B, 8 Cir, 1940, 111 F.2d 783; N.L.R.B. v. Biles Coleman Lumber Co, 9 Cir., 1938, 96 F.2d 197; Continental Oil Co. v. N.L.R.B., 10 Cir., 1940, 113 F.2d 473; N.L.R.B. v. Porcelain Steels, 6 Cir, 138 F.2d 840, decided Nov. 30, 1943. While it is true that the loss of majority in the instant case occurred, not among the employees composing the original working force of the Company, but rather among the changed personnel composed largely of new employees who replaced the discharged employees, the principle that the union is entitled to a reasonable presumption of the continuity of its majority status and an employer may not profit by its own wrongdoing is nonetheless applicable. The failure of the Company to take the curative action dictated by us necessarily must have had a telling impact on the new employees. Indeed, had the Company acted lawfully and obeyed the command of our decree by recognizing and bargaining with the Union, the Union probably would have recruited in its ranks' a proportionate share of adherents from the new employees. As was stated in N.L.R.B. v. Franks Bros. Co., 1 Cir., 1943, 137 F.2d 989, 994: “It appears in the case before us that the loss of a majority was due to a voluntary quitting on the part of certain employees of respondent. * * * The respondent’s dilatory tactics, its refusal to recognize the^union as a bargaining representative, and its campaign against the union deprived it of the opportunity of strengthening its organization. It demonstrated the union’s inability to reach an agreement with the employer with the result that as time went on the enthusiasm of its members waned and it made it more difficult for the union to capture the allegiance of other employees, either old employees who had previously not joined, or new employees who came on after the unfair labor practices were committed. The Board might reasonably conclude that had the union been recognized and installed as bargaining representative of the employees, as the lazo required, it probably would have retained its majority status by accessions from these sources, despite its loss of members resulting from normal labor turnover. In other words, the Board has taken the position that in a proceeding of this nature involving a violation of Section 8(5), it is imperative in order to effectuate the purposes of the Act, that an employer gain no advantage from his dilatory tactics in refusing to bargain collectively with a majority union. The fact that it may be shown that by lapse of time the union had been unable to retain its majority is not a sufficient basis for refusing to order affirmatively that the respondent bargain with the union.” (Emphasis supplied.) Inasmuch as the Company’s own unlawful conduct created an atmosphere which made normal union growth and allegiance difficult, it will not now be permitted to urge its labor turnover and ensuing loss of union majority status as the basis for avoiding compliance-with the remedial bargaining provision of our decree. This is particularly true in the instant case where the Company had a black record of active and insidious anti-union conduct since 1938. In our decision enforcing the Board’s order (127 F.2d 180) we outlined the obstructive and Fabian tactics of the Company which rendered abortive the statutory rights of its employees to collective bargaining by representatives of their own free choice. Apparently the Company’s unlawful labor practices have continued unabated since then. Under these circumstances it can hardly be said that this latest petition of a majority of the employees disavowing the Union is a true expression of their unhampered will. On the contrary, it rather indicates that at long last, after five years, the Company has been able successfully to thwart the employees’ attempt to bargain collectively through the representatives of their own untrammelled choice. Accordingly, to accept on its face value the Company’s contention that “it is clear and definite that the Union here in question does not any longer represent the majority” would be naive and unwarranted. If the employees do now affirmatively oppose the Company’s bargaining with the Union for a contract affecting them, it is only because the Company, in violation of our decree,'has continued its policy of unlawful antagonism to the Union. N.L.R.B. v. Bradford Dyeing Ass’n, 1940, 310 U.S. 318, 340, 60 S.Ct. 918, 84 L.Ed. 1226. We are thus unable to separate the alleged loss of majority representation by the Union from the proven unfair labor practices of the Company, N.L.R.B. v. Burke Machine Tool Co., 6 Cir., 1943, 133 F.2d 618. The Supreme Court’s decision in the Lorillard case is therefore binding on us for the court there stated, 314 U.S. at page 513, 62 S.Ct. at page 397, 86 L.Ed. 380: “The Board had considered the effect of a possible shift in membership, alleged to have occurred subsequent to Lorillard’s unfair labor practice. But it had reached the conclusion that in order to effectuate the policies of the Act, Loriblard must remedy the effect of its prior urnlazvful refusal to bargain by bargaining with the union shown to have had a majority on the date of Lorillard’s refusal to bargain. This was for the Board to determine, and the court below was in error in modifying the Board’s order in this respect. National Labor Relations Board v. Bradford Dyeing Ass’n, 310 U.S. 318, 339, 340, 60 S.Ct. 918, 929, 84 L.Ed. 1226; International Association of M., T. and D. M. L. v. [National] Labor [Relations] Board, 311 U.S. 72, 82, 61 S.Ct. 83, 85 L. Ed. 50.” (Italics ours.) In conclusion, we wish to clarify our position by stating that we do not mean to infer the existence of a pre-conceived policy on our part to the effect that our decree grants to the Union a permanent status as duly authorized and exclusive bargaining agent for any fixed period of time. After the conditions of free choice have been restored by collective bargaining, in good faith on the part of the Company, then should these employees desire to be represented by some body other than the Union, they may then avail themselves of the statutory procedure of the Act itself (Section 9(c), 29 U.S.C.A. § 159(c) in order to guarantee that their genuine desires can be ascertained and respected. But until the Company purges itself of its unlawful conduct in violating our decree, the employees’ true desires “are matters of speculation and argument.” N.L.R.B. v. Brown Paper Mill Co., 5 Cir., 1940, 108 F.2d 867, 872, certiorari denied 1940, 310 U.S. 651, 60 S.Ct. 1104, 84 L.Ed. 1416. In any event, the mere fact that the Union may have lost its majority status since the Company refused to bargain does not authorize us to direct a new election. N.L.R.B. v. Medo Photo Supply Corp., 2 Cir., 1943, 135 F.2d 279. This was a matter for the Board properly to determine and we see ho reason for disturbing its action adverse to the Company. N.L.R. B. v. P. Lorillard Co., 1942, 314 U.S. 512, 513, 62 S.Ct. 397, 86 L.Ed. 380. It would have been a perversion of the underlying policy of the Wagner Act for the Board to have granted the Company’s request for a redetermination of the Union’s majority status when the Company admittedly had not as yet complied with our decree and when the effects of the Company’s unfair labor practices had not as yet been dissipated. Oughton v. N.L.R.B., 3 Cir., 1941, 118 F.2d 486. An order adjudging the Company and Raulerson in contempt should therefore issue. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_partywinning	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. JENKINS v. McKEITHEN, GOVERNOR OF LOUISIANA, et al. No. 548. Argued March 25, 1969. Decided June 9, 1969. J. Minos Simon argued the cause and filed a brief for appellant. Ashton L. Stewart, Special Assistant Attorney General of Louisiana, argued the cause for appellees. With him on the brief was Jack P. F. Gremillion, Attorney General. Me. Justice Marshall announced the judgment of the Court and delivered an opinion in which Mr. Chief Justice Warren and Mr. Justice Brennan join. This case involves the constitutionality of a 1967 Louisiana statute, known as Act No. 2, which creates a body called the Labor-Management Commission of Inquiry. La. Rev. Stat. Ann. §§23:880.1-23:880.18 (Supp. 1969). The stated purpose of this Commission is “the investigation and findings of facts relating to violations or possible violations of criminal laws of the state of Louisiana or of the United States arising out of or in connection with matters in the field of labor-management relations Act No. 2, Preamble, [1967 Extra. Sess.] La. Acts 3. Appellant, a member of a labor union, filed this suit in the District Court for the Eastern District of Louisiana challenging the constitutionality of Act No. 2 and of certain actions taken by state officials in the administration of the Act and otherwise. He sought both declaratory and injunctive relief. A three-judge court was convened and that court ultimately granted appellees' motion to dismiss the complaint. Jenkins v. McKeithen, 286 F. Supp. 537 (D. C. E. D. La. 1968). We noted probable jurisdiction of an appeal brought under 28 U. S. C. § 1253. We reverse. Since the case was decided on a motion to dismiss, a rather detailed examination of the structure of the Act and of the allegations of the complaint is necessary. I. The impetus for the formation of the Commission was stated in the preamble of the Act. [1967 Extra. Sess.] La. Acts 2. It cited “unprecedented conditions” in the labor relations of the construction industry, and it particularly noted certain “allegations and accusations of violations of the state and federal criminal laws which should be thoroughly investigated in the public interest . . . Id,., at 3. The additional investigative facilities of the Commission were thought necessary to “supplement and assist the efforts and activities of the several district attorneys, grand juries and other law enforcement officials and agencies . . . Ibid. The Commission is composed of nine members appointed by the Governor. La. Rev. Stat. Ann. § 23:880.1 (Supp. 1969). It is empowered to act only upon referral by the Governor when, in his opinion, there is substantial indication that there are or may be “widespread or continuing violations of existing criminal laws” affecting labor-management relations. La. Rev. Stat. Ann. §23:880.5 (Supp. 1969). Upon referral by the Governor, the Commission is to proceed by public hearing to ascertain the facts pertaining to the alleged violations. La. Rev. Stat. Ann. § 23:880.6 (Supp. 1969). In order to carry out this function, the Commission has the power to make appropriate rules and regulations, to employ attorneys, investigators, and other staff members, to compel the attendance of witnesses, to examine them under oath, and to require the production of books, records, and other evidence. La. Rev. Stat. Ann. § 23:880.8 (Supp. 1969). It can enforce its orders by petition to the state courts for contempt proceedings. La. Rev. Stat. Ann. §23:880.9 (Supp. 1969). The scope of the Commission’s investigative authority is explicitly limited by the Act to violations of criminal laws. “The commission shall have no power, authority or jurisdiction to investigate, hold hearings or seek to ascertain the facts or make any reports or recommendations on any of the strictly civil aspects of any labor problem . . . .” La. Rev. Stat. Ann. § 23:880.6 B (Supp. 1969). Further, the Commission has no power to participate in any manner in any civil proceeding, except, of course, contempt proceedings. Ibid. The limitation of the Commission to criminal matters is further reinforced by the provision of the Act allowing the Commission, at the request of the Governor, to assign its investigatory forces to the state police to assist the latter in their investigatory activities. La. Rev. Stat. Ann. § 23:880.6 C (Supp. 1969). The Commission is required to determine, in public findings, whether there is probable cause to believe violations of the criminal laws have occurred. La. Rev. Stat. Ann. §23:880.7 A (Supp. 1969). Its power is limited to making these findings and recommendations: “The commission shall have no authority to and it shall make no binding adjudication with respect to such violation or violations; however, it may, in its discretion, include in its findings the conclusions of the commission as to specific individuals . . . and it may make such recommendations for action to the governor as it deems appropriate.” Ibid. The findings are to be a matter of public record, La. Rev. Stat. Ann. § 23:880.15 B (Supp. 1969), although they may not be used as prima facie or presumptive evidence of guilt or innocence in any court of law, La. Rev. Stat. Ann. §23:880.7 A (Supp. 1969). The Commission is required to report its findings to the proper state or federal authorities if it finds there is probable cause to believe that violations of the criminal laws have occurred, and it may file appropriate charges. La. Rev. Stat. Ann. § 23:880.7 B (Supp. 1969). Finally, the Commission may request the Governor to refer matters to the State Attorney General asking the latter to exercise his authority to cause criminal prosecutions to be instituted. La. Rev. Stat. Ann. § 23:880.7 D (Supp. 1969). Nothing in the Act makes any provision for preparation of findings or reports for submission to the Governor or the legislature for the explicit purpose of legislative action. Indeed, the preamble of the Act and the Act itself make it clear that the purpose of the Commission is to supplement the activities of the State’s law enforcement agencies in one narrowly defined area. As indicated above, the Commission has the power to compel the attendance of witnesses. A witness is given notice of the general subject matter of the investigation before being asked to appear and testify. La. Rev. Stat. Ann. §23:880.10A (Supp. 1969). A witness has the right to the presence and advice of counsel, “subject to such reasonable limitations as the commission may impose in order to prevent obstruction of or interference with the orderly conduct of the hearing.” La. Rev. Stat. Ann. § 23:880.10 B (Supp. 1969). Counsel may question his client as to any relevant matters, ibid., but the right of a witness or his counsel to examine other witnesses is limited: “In no event shall counsel for any witness have any right to examine or cross-examine any other witness but he may submit to the commission proposed questions to be asked of any other witness appearing before the commission, and the commission shall ask the witness such of the questions as it deems to be appropriate to its inquiry.” Ibid. With one limited exception to be discussed below, neither a witness nor any other private party has the right to call anyone to testify before the Commission. Although the Commission must base its findings and reports only on evidence and testimony given at public hearings, the Act does provide for executive session when it appears that the testimony to be given “may tend to degrade, defame or incriminate any person.” La. Rev. Stat. Ann. §23:880.12A (Supp. 1969). In executive session the Commission must allow the person who might be degraded, defamed, or incriminated an opportunity to appear and be heard, and to call a reasonable number of witnesses on his behalf. Ibid. However, the Commission may decide that the evidence or testimony shall be heard in a public hearing, regardless of its effect on any particular person. Ibid. In that case, the person affected has the right to appear as a “voluntary witness” and may submit “pertinent” statements of others. Ibid. He may submit a list of additional witnesses, but subpoenas will be issued only in the discretion of the Commission. Ibid.; see also La. Rev. Stat. Ann. § 23:880.12 C (Supp. 1969). II. Appellant’s complaint named as defendants the Governor of Louisiana and six members of the Commission. The complaint presented, inter alia, the question of whether the provisions of Act No. 2 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Appellant alleged that the Commission was an executive trial agency “aimed at conducting public trials concerning criminal law violations,” and that its function was publicly to condemn. Appellant asserted that the defendants “in connection with the administration of the provisions of said Act, have singled out complainant and members of Teamsters Local No. 5 as a special class of persons for repressive and willfully punitive action ... in furtherance of which a deliberate effort has been made and continues to be made by said officials ... to destroy the current power structure of the labor union aforesaid'. . . .” More specifically, the complaint alleged that appellees and their agents, acting under color of law and in conspiracy, procured false statements of criminal activities and used such statements to initiate baseless criminal proceedings against appellant, that they intimidated and coerced public officials into filing and prosecuting false criminal charges against appellant, and that they knowingly, willfully, and purposefully intimidated state court judges having under consideration legal controversies involving appellant. These acts of appellees allegedly deprived appellant and all others similarly situated of “rights, privileges and immunities secured to them by the Constitution and laws of the United States.” Finally, appellant alleged that the appellees intended to continue to deprive him and others of their rights and that there was no “plain, adequate or efficient remedy at law.” Appellant prayed that a three-judge district court be convened, that a temporary restraining order issue, that Act No. 2 be declared unconstitutional, that all civil and criminal actions against appellant be permanently restrained, and that other unspecified relief be granted. Temporary relief was denied by the District Court and a three-judge court was impanelled to hear the case. Appellees answered and moved to dismiss. They alleged that appellant lacked standing to question the constitutionality of Act No. 2 and that the complaint failed to state a cause of action. Thereafter, appellant filed a “Supplemental and Amending Petition” in which he alleged, in some detail, that appellees had continued the course of action described in the original complaint. After a hearing, the court dismissed the complaint. Jenkins v. McKeithen, supra. The court, relying largely on the opinion of the Louisiana Supreme Court in Martone v. Morgan, 251 La. 993, 207 So. 2d 770, appeal dismissed, 393 U. S. 12 (1968) (petition for rehearing pending), held that this Court’s decision in Hannah v. Larche, 363 U. S. 420 (1960), was dispositive of the issue of the constitutionality of the Act. The court further ruled that appellant had not stated any other claim for relief under §§ 1981, 1983, and 1988 of Title 42, United States Code. Rather, the court held that the other matters sought to be raised in the complaint were merely potential defenses to the pending criminal charges and that appellant had not alleged any basis for restraining prosecution of those charges. Finally, the court ruled that appellant’s suit was not a proper class action under Rule 23 of the Federal Rules of Civil Procedure. The court did not explicitly rule on the issue of whether appellant lacked standing to challenge the Act. Appellant presents two questions for review in this Court: Whether Act No. 2 is constitutional and whether the complaint otherwise states a cause of action under 42 U. S. C. §§ 1981, 1983, and 1988. III. We are met at the outset with appellees’ assertion that appellant lacks standing to attack the constitutionality of Act No. 2. This argument is based in part upon certain allegations in the complaint that Act No. 2 is unconstitutional because it denies to “a person compelled to appear before . . . [the] Commission” the right to effective assistance of counsel, the right of confrontation, and the right to compulsory process for the attendance of witnesses. Since appellant did not allege in his complaint that he was called to appear before the Commission or that he expected to be called, appellees assert that he lacks standing to assert the denial of rights to those who do appear. See, e. g., Tileston v. Ullman, 318 U. S. 44 (1943). Further, appellees argue that appellant lacks standing because he cannot demonstrate that he has been, or will be, “injured” by the operation of the challenged statute. We cannot agree. The present case was decided on appellees’ motion to dismiss, in which appellees contested appellant’s standing to challenge the constitutionality of the Act. As noted above, the court below made no explicit reference to the issue of standing. But since the question of standing goes to this Court’s jurisdiction, see Flast v. Cohen, 392 U. S. 83, 94-101 (1968), we must decide the issue even though the court below passed over it without comment. Cf. Tileston v. Ullman, supra. For the purposes of a motion to dismiss, the material allegations of the complaint are taken as admitted. See, e. g., Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U. S. 172, 174-175 (1965). And, the complaint is to be liberally construed in favor of plaintiff. See Fed. Rule Civ. Proc. 8 (f): Conley v. Gibson, 355 U. S. 41 (1957). The complaint should not be dismissed unless it appears that appellant could “prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, supra, at 45-46. With these rules in mind, we turn to an examination of the allegations of appellant’s complaint. It is true, as appellees assert, that appellant alleges deprivations of rights of those who are or will be called to testify before the Commission and that he fails to allege that he was or will be called to testify. If this were the extent of appellant’s allegations, we would agree that appellant lacks standing to challenge the Act. However, appellant’s allegations are not limited to those mentioned by appellees. Appellant alleged that the Commission was an “executive trial agency” whose function was to conduct public trials designed to find appellant and others guilty of violations of criminal laws, allegedly for the purpose of injuring him and destroying the labor union of which he was a member. More specifically, appellant alleged that “said Commission of Inquiry exercises (a) an accusatory function, (b) its duty to find that named individuals are responsible for criminal law violations, (c) it must advertise such findings, and (d) its findings serve as part of the process of criminal prosecution . . . .” Finally, the complaint alleged that the appellees, acting in concert with others and in connection with the administration of the Act, have actually engaged in a course of conduct designed publicly to brand appellant and others as criminals, including, as noted above, the filing of allegedly baseless criminal charges against appellant. Thus, although the complaint is inartfully drawn, it does allege that the Commission and those acting in concert with it have taken and will take in the future certain actions with respect to appellant. The issue is thus whether those allegations are sufficient to give appellant standing to challenge the constitutionality of the Act creating the Commission and the actions taken by the Commission under authority of that Act. We think that they are. The concept of standing to sue, as we noted in Flast v. Cohen, supra, “is surrounded by the same complexities and vagaries that inhere in [the concept of] justiciability” in general. 392 U. S., at 98. Nevertheless, the outlines of the concept can be stated with some certainty. The indispensable requirement is, of course, that the party seeking relief allege “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions . . . .” Baker v. Carr, 369 U. S. 186, 204 (1962); see Flast v. Cohen, supra; Joint Anti-Fascist Refugee Committee v. McGrath, 341U. S. 123, 151 (1951) (concurring opinion). In this sense, the concept of standing focuses on the party seeking relief, rather than on the precise nature of the relief sought. See Flast v. Cohen, supra, at 99-100. The decisions of this Court have also made it clear that something more than an “adversary interest” is necessary to confer standing. There must in addition be some connection between the official action challenged and some legally protected interest of the party challenging that action. See Flast v. Cohen, supra, at 101-106. In the present case, it is clear that appellant possesses sufficient adversary interest to insure proper presentation of issues facing the court. His allegations, if taken as true, indicate that the Commission and those acting in concert with it have carried out a series of public acts designed to injure him in various ways. Appellant’s interest in his own reputation and in his economic well-being guarantee that the present proceeding will be an adversary one. We also think that appellant has alleged that the Act’s administration was the direct cause of sufficient injury to his own legally protected interests to accord him standing to challenge the validity of the Act. We are not presented with a case in which any injury to appellant is merely a collateral consequence of the actions of an investigative body. See Hannah v. Larche, supra, at 443; cf. Sinclair v. United States, 279 U. S. 263, 295 (1929); McGrain v. Daugherty, 273 U. S. 135, 179-180 (1927). Rather, it is alleged that the very purpose of the Commission is to find persons guilty of violating criminal laws without trial or procedural safeguards, and to publicize those findings. Moreover, we think that the personal and economic consequences alleged to flow from such actions are sufficient to meet the requirement that appellant prove a legally redressable injury. Those consequences would certainly be actionable if caused by a private party and thus should be sufficient to accord appellant standing. See Greene v. McElroy, 360 U. S. 474, 493, n. 22 (1959); Joint Anti-Fascist Refugee Committee v. McGrath, supra, at 140-141 (opinion of Burton, J.); id., at 151-160 (Frankfurter, J., concurring). It is no answer that the Commission has not itself tried to impose any direct sanctions on appellant; it is enough that the Commission’s alleged actions will have a substantial impact on him. See, e. g., Columbia Broadcasting System, Inc. v. United States, 316 U. S. 407 (1942); cf. NAACP v. Alabama, 357 U. S. 449, 460-463 (1958). Finally, in the circumstances of the present case, we do not regard appellant’s opportunity to defend any criminal prosecutions as sufficient to deprive him of standing to challenge the Act. Cf. United States v. Los Angeles & S. L. R. Co., 273 U. S. 299 (1927). Appellant’s allegations go beyond the normal publicity attending criminal prosecution; he alleges a concerted attempt publicly to brand him a criminal without a trial. Further, he alleges that he has been unsuccessful in his attempts to secure prosecution of the charges against him. We hold that appellant’s complaint contains sufficient allegations of direct and substantial injury to his own legally protected interests to accord him standing to challenge the constitutionality of Act No. 2. IV. We thus reach the merits of appellant’s contention that Act No. 2 is unconstitutional. Appellant’s complaint is long and inartfully drawn; it contains many allegations of wrongdoing on the part of the Commission and other state officials. But the only issue presented by this aspect of the case is whether the Act creating the Commission is constitutional, either on its face or as applied. Many of appellant’s allegations are relevant to this latter contention, but many involve issues that the court below ruled were properly matters to be raised in defense,' of any criminal prosecutions which might take place. We will deal with those allegations in the final section of this opinion. Appellees, like the court below, rely heavily on this Court’s decision in Hannah v. Larche, supra. In Hannah, this Court upheld the Civil Rights Commission against challenges similar to those involved in the present case. Indeed, Act No. 2 was drafted with Hannah in mind and the structure and powers of the Commission here are similar to those of the Civil Rights Commission. See Jenkins v. McKeithen, 286 F. Supp., at 540; Martone v. Morgan, supra. We cannot agree, however, that Hannah controls the present case, for we think that there are crucial differences between the issues presented by this complaint and the issues in Hannah. The appellants in Hannah were persons subpoenaed to appear before the Civil Rights Commission in connection with complaints about deprivations of voting rights. They objected to the Civil Rights Commission’s rules about nondisclosure of the complainants and about limitations on the right to confront and cross-examine witnesses. This Court ruled that the Commission’s rules were consistent with the Due Process Clause of the Fifth Amendment. The Court noted that “ ‘[d]ue process’ is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. . . . Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account.” 363 U. S., at 442. In rejecting appellants’ challenge to the Civil Rights Commission’s procedures, the Court placed great emphasis on the investigatory function of the Commission: “[I]ts function is purely investigative and fact-finding. It does not adjudicate. It does not hold trials or determine anyone’s civil or criminal liability. It does not issue orders. Nor does it indict, punish, or impose any legal sanctions. It does not make determinations depriving anyone of his life, liberty, or property. In short, the Commission does not and cannot take any affirmative action which will affect an individual’s legal rights. The only purpose of its existence is to find facts which may subsequently be used as the basis for legislative or executive action.” 363 U. S., at 441. The Court noted that any adverse consequences to those being investigated, such as subjecting them to public opprobrium, were purely conjectural, and, in any case, were merely collateral and “not . . . the result of any affirmative determinations made by the Commission . . . 363 U. S., at 443. Morgan v. United States, 304 U. S. 1 (1938), Joint Anti-Fascist Refugee Committee v. McGrath, supra, and Greene v. McElroy, supra, were distinguished on the ground that “[t]hose cases ... involved . . . determinations in the nature of adjudications affecting legal rights.” 363 U. S., at 451. We reaffirm the decision in Hannah. In our view, however, the Commission in the present case differs in a substantial respect from the Civil Rights Commission and the other examples cited by the Court in Hannah. It is true, as the Supreme Court of Louisiana has held, Martone v. Morgan, supra, that the Commission does not adjudicate in the sense that a court does, nor does the Commission conduct, strictly speaking, a criminal proceeding. Nevertheless, the Act, when analyzed in light of the allegations of the complaint, makes it clear that the Commission exercises a function very much akin to making an official adjudication of criminal culpability. See Joint Anti-Fascist Refugee Committee v. McGrath, supra. The Commission is limited to criminal law violations; the Act explicitly provides that the Commission shall have no jurisdiction over civil matters in the labor-management relations field. Indeed, the Commision is even limited to certain types of criminal activities. As noted above, nothing in the Act indicates that the Commission’s findings are to be used for legislative purposes. Rather, everything in the Act points to the fact that it is concerned only with exposing violations of criminal laws by specific individuals. In short, the Commission very clearly exercises an accusatory function; it is empowered to be used and allegedly is used to find named individuals guilty of violating the criminal laws of Louisiana and the United States and to brand them as criminals in public. Given this view of the purpose of the Labor-Management Commission of Inquiry, we agree with Justice Frankfurter, concurring in the result in Hannah v. Larche: “Were the [Civil Rights] Commission exercising an accusatory function, were its duty to find that named individuals were responsible for wrongful deprivation of voting rights and to advertise such finding or to serve as part of the process of criminal prosecution, the rigorous protections relevant to criminal prosecutions might well be the controlling starting point for assessing the protection which the Commission’s procedure provides.” 363 U. S., at 488. When viewed from this perspective, it is clear the procedures of the Commission do not meet the minimal requirements made obligatory on the States by the Due Process Clause of the Fourteenth Amendment. Specifically, the Act severely limits the right of a person being investigated to confront and cross-examine the witnesses against him. Only a person appearing as a witness may cross-examine other witnesses. Cross-examination is further limited to those questions which the Commission “deems to be appropriate to its inquiry,” and those questions must be submitted, presumably beforehand, in writing to the Commission. We have frequently emphasized that the right to confront and cross-examine witnesses is a fundamental aspect of procedural due process. See, e. g., Willner v. Committee on Character and Fitness, 373 U. S. 96, 103-104 (1963); Greene v. McElroy, supra, at 496-499, and cases cited. In the present context, where the Commission allegedly makes an actual finding that a specific individual is guilty of a crime, we think that due process requires the Commission to afford a person being investigated the right to confront and cross-examine the witnesses against him, subject only to traditional limitations on those rights. Cf. Pointer v. Texas, 380 U. S. 400 (1965). The Commission’s procedures also drastically limit the right of a person investigated to present evidence on his own behalf. It is true that he may appear and call a “reasonable number of witnesses” in executive session, but should the Commission decide to hold a public hearing, he is limited to presentation of his own testimony and the “pertinent” written statements of others. The right to present oral testimony from other witnesses and the power to compel attendance of those witnesses may be denied in the discretion of the Commission. The right to present evidence is, of course, essential to the fair hearing required by the Due Process Clause. See, e. g., Morgan v. United States, supra, at 18; Baltimore & Ohio R. Co. v. United States, 298 U. S. 349, 368-369 (1936). And, as we have noted above, this right becomes particularly fundamental when the proceeding allegedly results in a finding that a particular individual was guilty of a crime. Cf. Washington v. Texas, 388 U. S. 14 (1967); In re Oliver, 333 U. S. 257, 273 (1948). We do not mean to say that the Commission may not impose reasonable restrictions on the number of witnesses and on the substance of their testimony; we only hold that a person’s right to present his case should not be left to the unfettered discretion of the Commission. Appellant argues that the procedures contemplated by the Act are deficient in other respects. In particular, he alleges that the Act provides no meaningful rules of evidence and fails to provide standards of guilt or innocence. He also alleges that the Act deprives him of effective assistance of counsel. We have, however, said enough to demonstrate that appellant has alleged a cause of action for declaratory and injunctive relief. Whether the Due Process Clause requires that the Commission provide all the procedural protections afforded a defendant in a criminal prosecution, or whether something less is sufficient, are questions that we think should be initially answered by the District Court on remand. As we have noted, “[w]hether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors.” Hannah v. Larche, supra, at 442. We think it inappropriate to rule on the extent to which the Commission’s procedures may run afoul of the Due Process Clause on the basis of the record before us, barren as it is of any established facts. That issue is best decided in the first instance by the District Court in light of the evidence adduced at trial. We do not mean to say that this same analysis applies to every body which has an accusatory function. The grand jury, for example, need not provide all the procedural guarantees alleged by appellant to be applicable to the Commission. As this Court noted in Hannah, “the grand jury merely investigates and reports. It does not try.” 363 U. S., at 449. Moreover, “[t]he functions of that institution and its constitutional prerogatives are rooted in long centuries of Anglo-American history.” Id., at 489-490 (Frankfurter, J., concurring in the result). Finally the grand jury is designed to interpose an independent body of citizens between the accused and the prosecuting attorney and the court. See Stirone v. United States, 361 U. S. 212, 218 (1960); Ex parte Bain, 121 U. S. 1, 11 (1887); Hannah v. Larche, supra, at 497-499 (dissenting opinion). Investigative bodies such as the Commission have no claim to specific constitutional sanction. In addition, the alleged function of the Commission is to make specific findings of guilt, not merely to investigate and recommend. Finally, it is clear from the Act and from the allegations of the complaint that the Commission is in no sense an “independent” body of citizens. Rather, its members serve at the pleasure of the Governor, La. Rev. Stat. Ann. §23:880.1 (Supp. 1969), and it cannot act in the absence of a “referral” from the Governor, La. Rev. Stat. Ann. §§23:880.5, 23:880.6 A (Supp. 1969). We also wish to emphasize that we do not hold that appellant is now entitled to declaratory or injunctive relief. We only hold that he has alleged a cause of action which may make such relief appropriate. It still remains for him to prove at trial that the Commission is designed to and does indeed act in the manner alleged in his complaint, and that its procedures fail to meet the requirements of due process. Y. As noted above, appellant also alleges in his complaint that appellees, and those acting in concert with them, have engaged in a course of conduct, both pursuant to the Act and otherwise, that has resulted in the filing of false criminal charges against appellant. He alleges numerous other related actions allegedly depriving him of his rights secured by the Constitution. The complaint seeks declaratory and injunctive relief with regard to these acts; in particular, appellant prays that the District Court enjoin all civil and criminal actions pending or to be instituted against him. To the extent that these allegations involve actions taken under the direct authority of Act No. 2, we think that they may properly be considered by the District Court in determining the constitutionality of the Act. However, the District Court characterized many of appellant’s allegations as involving merely potential defenses to the criminal charges assertedly pending. In the exercise of its discretion and because the issues were “intertwined” with the issue of the constitutionality of the Act, the court passed upon the question of whether appellant had alleged a cause of action for declaratory and injunctive relief. Relying in part on its determination that the Act was constitutional, the court held that appellant had not stated a claim for declaratory or injunctive relief and that appellant's remedy was to defend any criminal prosecutions then pending or that might be brought. Jenkins v. McKeithen, supra, 286 F. Supp., at 542-543. Whether the court will take the same view of the propriety of passing on the question or of the merits in light of our holding and the evidence adduced at trial cannot be determined at this time. Accordingly, we think that issue should be left open for reconsideration on remand. The judgment of the court below is reversed and the cause is remanded for further proceedings. It is so ordered. Mr. Justice Douglas concurs in the result for the reasons stated in his dissenting opinion in Hannah v. Larche, 363 U. S. 420, 493-508 (1960). The constitutionality of the Act was upheld in Martone v. Morgan, 251 La. 993, 207 So. 2d 770, appeal dismissed, 393 U. S. 12 (1968) (petition for rehearing pending). “[I]ts power, authority or jurisdiction shall in no case extend to (1) any matter which is solely an ‘unfair labor practice’ or an ‘unfair employment practice’ or a legitimate labor dispute under the provisions of any federal or state law; or (2) any matter which relates to legitimate economic issues arising between labor and management or the manner in which such labor practices or economic issues are to be settled between the parties, whether by-negotiation, arbitration, lockout or strike; or (3) any matter which relates solely to the internal affairs of labor organizations, including but not necessarily restricted to membership policies, election procedures, membership rights and like matters; or (4) any alleged acts of violence or threats of violence or so-called 'mass picketing,’ or like conduct by either an employer or a union, which is not related to bribery or extortion, as defined by law, but which is related only to an organizational objective of a labor union or which is related only to furthering the interests of one side or the other in a ‘labor dispute,’ as that term is defined by federal or state law, such conduct being already regulated by and subject to the police power of the state, exercised through such agencies as the Division of State Police; or (5) any matter which relates solely to the internal affairs of any business organization, including but not necessarily restricted to its labor and business policy and general operations, or (6) any matters which constitute a combination of any two or more of these.” La. Rev. Stat. Ann. §23:880.6 Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case? A. Yes B. No Answer:
songer_usc1	26	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. CATTLE FEEDERS TAX COMMITTEE, an unincorporated association, and Western Heritage Land and Cattle Company, a partnership, Plaintiffs-Appellees, v. Hon. George SHULTZ, Secretary of the Department of the Treasury of the United States of America, et al., DefendantsAppellants. No. 73-1896. United States Court of Appeals, Tenth Circuit. Oct. 4, 1974. Rehearing Denied Nov. 11, 1974. David H. Rosenberg and Ben L. Krage, of Rosenberg, Kasmir & Willing-ham, Dallas, Tex. (Cyril D. Kasmir, Dallas, Tex., with them on the briefs), for plaintiffs-appellees. Richard M. Roberts, Dept, of Justice, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwaeks, Crombie J. D. Garrett, and Carleton D. Powell, Tax Div., Dept, of Justice, Washington, D. C., on the briefs), for def endants-appellants. PICKETT, Circuit Judge. The purpose of this action is to enjoin United States Treasury officials from enforcing a departmental ruling and for judgment declaring the ruling to be invalid. The rule affects farmers who file income tax returns on a cash receipts and disbursements basis and deduct as an ordinary business expense the cost of feed to be consumed by livestock in years other than the taxable year. The trial court, following an evidentiary hearing on an application for a temporary injunction, considered the case on its merits, held that the Government could not ultimately prevail, and permanently enjoined the enforcement of the ruling. The decisive question presented is whether the action is barred by the Anti-Injunction Act, 26 U.S.C. § 7421(a). It is the Government’s position that there are no special circumstances in this case which would prevent the application of the statute. We ágree. As alleged in the complaint, the Tax Committee is an unincorporated association whose members sponsor and form limited partnerships which principally engage in the purchasing, grazing, feeding and marketing of cattle. Western Heritage Land and Cattle Company is a partnership doing business in Oklahoma as the sponsor and general partner of limited partnerships which purchase, graze, feed, and market cattle. Western Heritage and those represented by the Tax Committee solicit investments from the public to be used in the purchase of cattle and feed. Although the investors are limited partners, the management of these public funded cattle-feeding and marketing programs is exclusively in those offering the investments. The feed for the cattle is generally purchased in the late months of the year but is not utilized until a following taxable year. Consequently, during a year in which the purchases are made there is no income and the relationship between the - operating company and the investors is such that those who are on a cash basis of accounting may, in computing their income taxes for that year, deduct as an expense the full amount of their proportional share of the feed costs. The trial court found that the income distortion test provision of Rev. Rui. 73-530 may reasonably be expected to result in the disallowance of income tax deductions for prepaid feed to be used by farmers, resulting in a destruction of the incentive for investment in the cattle-feeding industry, thereby causing irreparable injury to appellees’ businesses by depriving them of investment capital. Income Tax Regulation § 1.471-6 (a) provides that a farmer “may make his return upon an inventory method instead of the cash receipts and disbursements method. It is optional with the taxpayer which of these methods of accounting is used.” Income Tax Regulation § 1.162-12 provides that the “purchase of feed and other costs connected with raising livestock may be treated as expense deductions insofar as such costs represent actual outlay. . . . ” No contention is made that the appellees are not farmers as the term is used in the regulations. See Hi-Plains Enterprises, Inc. v. C.I.R., 496 F.2d 520 (10th Cir. 1974). It is argued that the Internal Revenue Service is bound by these regulations and cannot require farmers, in computing their income taxes, to use inventories through the guise of the income distortion tést. The purpose of Section 7421(a) is to give the United States a free hand in assessing and collecting taxes claimed to be due without intervention on the part of the courts, and to limit a determination of disputed sums to a suit for refund. Enochs v. Williams Packing Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). The Williams Packing case recognized the broad sweep of the anti-injunction statute and held that an injunction could.be obtained against the assessment of tax only upon a showing that two factors exist: (1) That under no circumstances could the Government ultimately prevail, and (2) a basis for equity jurisdiction exists. In recent decisions the Supreme Court has discussed the purpose of Section 7421(a) as interpreted by Williams Packing, supra, and others, particularly Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422 (1932), and under facts analogous to those of the instant case it held the statute applicable. Alexander v. “Americans United” Inc., 416 U.S. 752, 94 S.Ct. 2053, 40 L.Ed.2d 518 (May 15, 1974); Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (May 15, 1974). In these two cases the complainants claimed they were within the tax exempt status of 26 U.S.C. § 501(c)(3) and the Internal Revenue Service had issued the required letters which established that they were organizations to which tax deductible contributions could be made. The Internal Revenue Service later announced that, for stated reasons, the ruling letters would be revoked and donors would no longer have advance assurance that donations to the organizations would be treated as charitable contributions. In these cases it was held that actions to enjoin the revocation of the letters, although not brought by a taxpayer, were primarily to restrain the assessment and collection of a tax and within the prohibition of Section 7421(a). In Bob Jones, supra, 416 U.S. at 739, 94 S.Ct. at 2047, it is said: . Moreover, petitioner seeks to restrain the collection of taxes from its donors — to force the Service to continue to provide advance assurance to . those donors that contributions to petitioner will be recognized as tax-deductible, thereby reducing their tax liability. Although in this regard petitioner seeks to lower the taxes of those other than itself, the Act is nonetheless controlling. Thus in any of' its implications, this case falls within the literal scope and the purposes of the Act. The appellees recognize the impact of the Bob Jones and Americans United decisions, but contend that if the action is one controlled by Section 7421(a), the record discloses that they are irreparably injured by the ruling with no adequate remedy at law and that the Government cannot ultimately prevail; therefore, they are within the Williams Packing exception. We think this contention is answered in the Bob Jones and Americans United cases. The Court, in Bob Jones, supra 416 U.S. at 742, 94 S.Ct. at 2048, said: Williams Packing indicates that the case was meant to be the capstone to judicial construction of the Act. It spells an end to a cyclical pattern of allegiance to the plain meaning of the Act, followed by periods of uncertainty caused by a judicial departure from that meaning, and followed in turn by the Court’s rediscovery of the Act’s purpose. The Court continued: Williams Packing switched the focus of the extraordinary and exceptional circumstances test from a showing of the degree of harm to the plaintiff absent an injunction to the requirement that it be established that the Service’s action is plainly without a legal basis. The Court in essence read Standard Nut not as an instance of irreparable injury but as a case where the Service had no chance of success on the merits. 370 U.S., at 7, 82 S.Ct. at 1129. And the Court explicitly held that the Act may not be evaded “merely because collection would cause an irreparable injury, such as the ruination of the taxpayer’s enterprise.” Id., at 6, 82 S.Ct. at 1129. Yet petitioner’s argument that we should find Williams Packing inapplicable turns, in the last analysis, on its claim that to do otherwise would subject it to great harm. The Court rejected that consideration in Williams Packing itself, and we reject it as a reason for finding that case not controlling. Under the language of the Act, the degree of harm is not a factor, and as a matter of judicial construction, it does not provide a meaningful stopping point between Standard Nut and Williams Packing. Acceptance of petitioner’s irreparable injury argument would simply revive the evisceration of the Act inherent in Standard Nut. (416 U.S. at 745, 94 S.Ct. at 2050) We are of the opinion that the appellees do not bring themselves with either of the two requirements of the Williams Packing case exception. The question of whether the Government can ultimately prevail must “be determined on the basis of the information available to it at the time of suit. Only if it is then apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained.” 370 U.S., supra, at 7, 82 S.Ct. at 1129. The court’s function in this injunction suit is not to try out the validity of Rev.Rul. 73-530, but to determine if there is any basis upon which the ruling can be upheld. 26 U.S.C. § 461(a) provides: The amount of any deduction or credit allowed by this subtitle shall be taken for the taxable year which is the proper taxable year under the method of accounting used in computing taxable income. The provisions of 26 U.S.C. § 471 are: Whenever in the opinion of the Secretary or his delegate the use of inventories is necessary in order clearly to determine the income of any taxpayer, inventories shall be taken by such taxpayer on such basis as the Secretary or his delegate may prescribe as conforming as nearly as may be to the best accounting practice in the trade or business and as most clearly reflecting the income. 26 U.S.C. § 446(a) provides that taxable income shall be computed under the method which the taxpayer regularly uses in computing his income. The Government argues that this provision is subject to that of Section 446(b), which requires the computation of' taxable income to be made on a basis which clearly reflects income. Sections 446 and 461(a) appear to implicitly allow the Commissioner to adjust a taxpayer’s method of computing taxable income in a manner which will clearly reflect income. Authority for this procedure is found in 26 U.S.C. § 7801 et seq. We can not hold that the action of the Government in promulgating Rev.Rul. 73-530 is plainly without any legal basis or that it cannot ultimately prevail under any circumstances. Nor can we say as a matter of law that the ruling is not an interpretative action authorized by 26 U.S.C. § 7801 et seq. The appellees are in substantially the same situation as the complainants in Bob Jones and Americans United. In each instance they are not the taxpayer but allege an injury because third parties are adversely affected by I.R.S. rulings. In each case it was alleged that irreparable injuries occurred because the rulings effectually “destroyed their business” with no remedy in the courts. As observed in Bob Jones and Americans United, allowing injunctive relief on irreparable injury alone would render Section 7421(a) meaningless. In Williams Packing the Court stated that if Congress had desired to make injunctive remedy available against the collection of federal taxes not lawfully due, it would have said so explicitly. It is now settled that the degree of harm is not a factor in determining the application of Section 7421(a). Bob Jones, supra; Williams Packing, supra. Furthermore, any investor in appellees’ businesses could litigate the validity of the ruling in a suit for refund or in the Tax Court. It is indicated that at least some of the organizations represented by the Tax Committee and possibly Western Heritage could claim the cost of prepaid feed costs as an expense deduction and would be in a position to challenge the order. Reversed and remanded with instructions to dismiss the action. . The ruling, Rev.Rul. 73-530 published in Internal Revenue Bulletin 1973-49 dated December 3, 1973, provides that before a farmer can deduct the cost of feed to be consumed by his livestock in the following year, three tests must be met: First, the expenditure must be a payment for the purchase rather than a mere deposit; second, the prepayment must be made for a business purpose, and not merely for tax avoidance; third, the deduction of such costs in the tax-, able year of prepayment must not result in a material distortion of income. . Section 7421(a) provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” . Tins statement had reference to the Standard Nut and like cases. Referring to Standard Nut, the Court said : . . . Read literally, the Court’s opinion effectively repealed the Act, since the Act was viewed as requiring nothing more than equity doctrine had demanded before the Act’s passage. . . . (416 U.S. at 744, 94 S.Ct. at 2050) . The legislative history of Section 461 states: Section 461 adopts the provisions of section 43 of the 1939 Code in rearranged form. The timing of deductions . . . is determined by the taxpayer’s method of accounting. The method must clearly reflect the income of the taxpayer. (3 U.S. Code Cong. & Admin.News (1954) p. 4300) Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_source	D	What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. In re MAIER BREWING CO., Inc. SIMONS v. WELLS. No. 6980. Circuit Court of Appeals, Ninth Circuit. June 5, 1933. Rex B. Goodeell and Frank L. Simons, both of Los Angeles, Cal., for appellant. Thomas C. Ridgway and Lawrence M. Cahill, both of Los Angeles, Cal., for appel-lee. Before WILBUR, SAWTELLE, and MACK, Circuit Judges. Rehearing denied September 6, 1933. MACK, Circuit Judge. The facts are stipulated as follows. More than four months before the petition in bankruptcy was filed, appellant commenced an action against alleged bankrupt in the state court for recovery of certain attorney’s fees, and caused an attachment, which is now a valid lien, to be duly levied on a twenty-year leasehold estate in real property. Within the four months’ period appellant recovered judgment in the action and bad execution levied on the leasehold. Thereafter, but before the date set for the sheriff’s sale, the petition in bankruptcy was filed, alleged bankrupt denied insolvency, and no adjudication has as yet been bad. Appellee, after qualifying as receiver, obtained from alleged bankrupt possession of the premises covered by the lease. Pursuant to an order directed to and served on appellant and the sheriff, to show cause why the sale should not be enjoined, a bearing was bad in the bankruptcy eourt over appellant’s objection to the summary jurisdiction. On the stipulated facts supplemented by testimony that the leasehold was worth far more than the judgment, the sheriff’s sale was enjoined and the receiver was directed to sell the leasehold premises with reasonable expedition and in any event within six months. The appeal is from this order. In Gross v. Irving Trust Co., 53 S. Ct. 605, 77 L. Ed. - (U. S. Supreme Court, May 8, 1933), the paramount summary jurisdiction of the bankruptcy court was held properly invoked, but under circumstances entirely different from those in the instant ease. There it was not to stay the enforcement of a valid lien, but to prevent the state eourt in a receivership proceeding begun within four months of bankruptcy from charging property in its control but belonging to the trustee in bankruptcy, with allowances for its receiver. In re Morse, 210 F. 900 (D. C. N. D. N. Y. 1914), cf. In re Hudson River Nav. Corp., 57 F.(2d) 175 (C. C. A. 2, 1932), a sheriff’s sale was enjoined temporarily until a trustee could be appointed, so as to enable him to bid and thus more effectively protect the interest of the estate, as against the eoneededly valid lien claimant. It is unnecessary to express any opinion on the soundness of this decision; the instant case, in any event, is entirely different, in that here the injunction was permanent and its sole purpose was to change the control of the property from the state eourt to the bankruptcy court, by substituting the receiver for the sheriff as the proper party to sell the property. If a state eourt, by proceedings to foreclose or otherwise enforce a valid lien, instituted even within four months preceding the filing of a petition in bankruptcy, has acquired control of the property, the bankruptcy eourt, whatever its jurisdictional power may be, will not enjoin the continuance of such proceedings. Metcalf v. Barker, 187 U. S. 165, 172, 175, 23 S. Ct. 67, 47 L. Ed. 122 (1902); Straton v. New (1931) 283 U. S. 318, 331, and cases collected in note 6, page 326, 51 S. Ct. 465, 75 L. Ed. 1060; In re Greenlie-Halliday Co., 57 F.(2d) 173, 174 (C. C. A. 2, 1932); Bryan v. Speakman, 53 F.(2d) 463 (C. C. A. 5, 1931); In re Gillette Realty Co., 15 F.(2d) 193 (C. C. A. 9th, 1926). In bankruptcy, as in equity, “one court will not snatch a res from another’s month.” In re Greenlie-Halliday Co., supra. Appellee urges, however, that where, as here, the bankruptcy court, through its receiver, is properly in actual possession of the res, that court may administer the property and stay further proceedings in another court to enforce even a concededly valid lien. This court has held in a ease of attachment of realty, in which, unlike personalty, levy is perfected by notice and recording without actual seizure and possession (Cal. Code Civ. Proc. § 542; Clark v. Sawyer, 48 Cal. 133, 138), that exclusive jurisdiction of the res is not thereby acquired (Pacific Coast Pipe Co. v. Conrad City Water Co., 245 F. 846 [C. C. A. 1917]). See, too, In re Hall & Stillson Co., 73 F. 527 (C. C. S. D. Cal. 1896). But as stated in Cooper v. Reynolds, 10 Wall. 308 on page 317, 19 L. Ed. 931 (1870) : While the general rule in regard to jurisdiction in rem requires the actual seizure and possession of the res by the officer of the court, such jurisdiction may be acquired by acts which are of equivalent import, and which stand for and represent the dominion of the court over the thing, and in effect subject it to the control of the court. Among this latter class is the levy of a writ of attachment or seizure of real estate, which being incapable of removal, and lying within the territorial jurisdiction of the court, is cor all practical purposes brought under the jurisdiction of the court by the officer’s levy of the writ and return of that fact to the court.” Our opinion last year in Ke-Sun Oil Co. v. Hamilton (C. C. A.) 61 F.(2d) 215, seriously questioned the soundness of the Pacific Coast Pipe decision. See, too, Farmers’ Loan & Trust Co. v. Lake St. El. R. Co., 177 U. S. 51, 20 S. Ct. 564, 44 L. Ed. 667 (1900); In re Greenlie-Halliday Co., 57 F. (2d) 173 (C. C. A. 2d, 1932); Bryan v. Speakman, 53 F.(2d) 463 (C. C. A. 5, 1931); Griffin v. Lenhart, 266 F. 671 (C. C. A. 4th, 1920); Beardslee v. Ingraham, 183 N. Y. 411, 76 N. E. 476, 3 L. R. A. (N. S.) 1073 (1906); McGrew v. Maxwell, 80 W. Va. 718, 94 S. E. 395 (1917); also eases cited in Ke-Sun Oil Case, supra, at page 217 of 61 F. (2d). On further consideration of these cases, we are of the opinion that, in so far as it conflicts with the views herein expressed, the Pacific Coast Pipe Case must be overruled. The order of the District Judge enjoining the sheriff’s sale and directing a- receiver’s sale must therefore be reversed. Of course the rule is inapplicable where foreclosure or enforcement of a lion is begun in another court after bankruptcy petition is filed. Isaacs v. Hobbs Tie & Timber Co., 282 U. S. 734, 51 S. Ct. 270, 75 L. Ed. 645 (1931). In equity, the principle is fortified by Judicial Code, § 265, 36 Stat. 1162, U. S. C., title 28, § 379 (28 USCA § 379). See Ke-Sun Oil Co. v. Hamilton (C. C. A. 9, 1932) 61 F.(2d) 215, especially cases cited at page 217. Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:
sc_petitionerstate	08	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. MAHER, COMMISSIONER OF SOCIAL SERVICES OF CONNECTICUT v. ROE et al. No. 75-1440. Argued January 11, 1977 Decided June 20, 1977 Powell, J., delivered the opinion of the Court, in which BuRGER, C. J., and Stewart, White, Rehnquist, and Stevens, JJ., joined. Burger, C. J., filed a concurring statement, post, p. 481. Brennan, J., filed a dissenting opinion, in which Marshall and Blackmun, JJ., joined, post, p. 482. Marshall, J., filed a dissenting opinion, ante, p. 454. Blackmun, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, ante, p. 462. Edmund C. Walsh, Assistant Attorney General of Connecticut, argued the cause for appellant. With him on the brief was Carl R. Ajello, Attorney General. Lucy V. Katz argued the cause for appellees. With her on the brief were Kathryn Emmett and Catherine Roraback. William F. Hyland, Attorney General, Stephen Skillman, Assistant Attorney General, and Erminie L. Conley, Deputy Attorney General, filed a brief for the State of New Jersey as amicus curiae urging reversal. Sylvia A. Law, Harriet F. Pilpel, and Eve W. Paul filed a brief for the American Public Health Assn, et al. as amici curiae urging affirmance. Patricia A. Butler and Michael A. Wolff filed a brief for Jane Doe as amicus curiae. Mr. Justice Powell delivered the opinion of the Court. In Beal v. Doe, ante, p. 438, we hold today that Title XIX of the Social Security Act does not require the funding of nontherapeutic abortions as a condition of participation in the joint federal-state Medicaid program established by that statute. In this case, as a result of our decision in Beal, we must decide whether the Constitution requires a participating State to pay for nontherapeutic abortions when it pays for childbirth. I A regulation of the Connecticut Welfare Department limits state Medicaid benefits for first trimester abortions to those that are “medically necessary,” a term defined to include psychiatric necessity. Connecticut Welfare Department, Public Assistance Program Manual, Yol. 3, c. Ill, §275 (1975). Connecticut enforces this limitation through a system of prior authorization from its Department of Social Services. In order to obtain authorization for a first trimester abortion, the hospital or clinic where the abortion is to be performed must submit, among other things, a certificate from the patient’s attending physician stating that the abortion is medically necessary. This attack on the validity of the Connecticut regulation was brought against appellant Maher, the Commisioner of Social Services, by appellees Poe and Roe, two indigent women who were unable to obtain a physician's certificate of medical necessity. In a complaint filed in the United States District Court for the District of Connecticut, they challenged the regulation both as inconsistent with the requirements of Title XIX of the Social Security Act, as added, 79 Stat. 343, as amended, 42 U. S. C. § 1396 et seq. (1970 ed. and Supp. V), and as violative of their constitutional rights, including the Fourteenth Amendment’s guarantees of due process and equal protection. Connecticut originally defended its regulation on the theory that Title XIX of the Social Security Act prohibited the funding of abortions that were not medically necessary. After certifying a class of women unable to obtain Medicaid assistance for abortions because of the regulation, the District Court held that the Social Security Act not only allowed state funding of nontherapeutic abortions but also required it. Roe v. Norton, 380 F. Supp. 726 (1974). On appeal, the Court of Appeals for the Second Circuit read the Social Security Act to allow, but not to require, state funding of such abortions. 522 F. 2d 928 (1975). Upon remand for consideration of the constitutional issues raised in the complaint, a three-judge District Court was convened. That court invalidated the Connecticut regulation. 408 F. Supp. 660 (1975). Although it found no independent constitutional right to a state-financed abortion, the District Court held that the Equal Protection Clause forbids the exclusion of nontherapeutic abortions from a state welfare program that generally subsidizes the medical expenses incident to pregnancy and childbirth. The court found implicit in Roe v. Wade, 410 U. S. 113 (1973), and Doe v. Bolton, 410 U. S. 179 (1973), the view that “abortion and childbirth, when stripped of the sensitive moral arguments surrounding the abortion controversy, are simply two alternative medical methods of dealing with pregnancy . . . 408 F. Supp., at 663 n. 3. Relying also on Shapiro v. Thompson, 394 U. S. 618 (1969), and Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974), the court held that the Connecticut program “weights the choice of the pregnant mother against choosing to exercise her constitutionally protected right” to a nontherapeutic abortion and “thus infringes upon a fundamental interest.” 408 F. Supp., at 663-664. The court found no state interest to justify this infringement. The State’s fiscal interest was held to be “wholly chimerical because abortion is the least expensive medical response to a pregnancy.” Id., at 664 (footnote omitted). And any moral objection to abortion was deemed constitutionally irrelevant: “The state may not justify its refusal to pay for one type of expense arising from pregnancy on the basis that it morally opposes such an expenditure of money. To sanction such a justification would be to permit discrimination against those seeking to exercise a constitutional right on the basis that the state simply does not approve of the exercise of that right.” Ibid. The District Court enjoined the State from requiring the certificate of medical necessity for Medicaid-funded abortions. The court also struck down the related requirements of prior written request by the pregnant woman and prior authorization by the Department of Social Services, holding that the State could not impose any requirements on Medicaid payments for abortions that are not “equally applicable to medicaid payments for childbirth, if such conditions or requirements tend to discourage a woman from choosing an abortion or to delay the occurrence of an abortion that she has asked her physician to perform.” Id., at 665. We noted probable jurisdiction to consider the constitutionality of the Connecticut regulation. 428 U. S. 908 (1976). II The Constitution imposes no obligation on the States to pay the pregnancy-related medical expenses of indigent women, or indeed to pay any of the medical expenses of indigents. But when a State decides to alleviate some of the hardships of poverty by providing medical care, the manner in which it dispenses benefits is subject to constitutional limitations. Appellees’ claim is that Connecticut must accord equal treatment to both abortion and childbirth, and may not evidence a policy preference by funding only the medical expenses incident to childbirth. This challenge to the classifications established by the Connecticut regulation presents a question arising under the Equal Protection Clause of the Fourteenth Amendment. The basic framework of analysis of such a claim is well settled: “We must decide, first, whether [state legislation] operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny. ... If not, the [legislative] scheme must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose and therefore does not constitute an invidious discrimination . . . ” San Antonio School Dist. v. Rodriguez, 411 U. S. 1, 17 (1973). Accord, Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 312, 314 (1976). Applying this analysis here, we think the District Court erred in holding that the Connecticut regulation violated the Equal Protection Clause of the Fourteenth Amendment. A This case involves no discrimination against a suspect class. An indigent woman desiring an abortion does not come within the limited category of disadvantaged classes so recognized by our cases. Nor does the fact that the impact of the' regulation falls upon those who cannot pay lead to a different conclusion. In a sense, every denial of welfare to an indigent creates a wealth classification as compared to nonindigents who are able to pay for the desired goods or services. But this Court has never held that financial need alone identifies a suspect class for purposes of equal protection analysis. See Rodriguez, supra, at 29; Dandridge v. Williams, 397 U. S. 471 (1970). Accordingly, the central question in this case is whether the regulation “impinges upon a fundamental right explicitly or implicitly protected by the Constitution.” The District Court read our decisions in Roe v. Wade, 410 U. S. 113 (1973), and the subsequent cases applying it, as establishing a fundamental right to abortion and therefore concluded that nothing less than a compelling state interest would justify Connecticut’s different treatment of abortion and childbirth. We think the District Court misconceived the nature and scope of the fundamental right recognized in Roe. B At issue in Roe was the constitutionality of a Texas law making it a crime to procure or attempt to procure an abortion, except on medical advice for the purpose of saving the life of the mother. Drawing on a group of disparate cases restricting governmental intrusion, physical coercion, and criminal prohibition of certain activities, we concluded that the Fourteenth Amendment’s concept of personal liberty affords constitutional protection against state interference with certain aspects of an individual's personal “privacy,” including a woman’s decision to terminate her pregnancy. I’d,, at 153. The Texas statute imposed severe criminal sanctions on the physicians and other medical personnel who performed abortions, thus drastically limiting the availability and safety of the desired service. As Mr. Justice Stewart observed, “it is difficult to imagine a more complete abridgment of a constitutional freedom . . . .” Id., at 170 (concurring opinion). We held that only a compelling state interest would justify such a sweeping restriction on a constitutionally protected interest, and we found no such state interest during the first trimester. Even when judged against this demanding standard, however, the State's dual interest in the health of the pregnant woman and the potential life of the fetus were deemed sufficient to justify substantial regulation of abortions in the second and third trimesters. “These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.' ” Id., at 162-163. In the second trimester, the State’s interest in the health of the pregnant woman justifies state regulation reasonably related to that concern. Id., at 163. At viability, usually in the third trimester, the State's interest in the potential life of the fetus justifies prohibition with criminal penalties, except where the life or health of the mother is threatened. Id., at 163-164. The Texas law in Roe was a stark example of impermissible interference with the pregnant woman’s decision to terminate her - pregnancy. In subsequent cases, we have invalidated other types of restrictions, different in form but similar in effect, on the woman’s freedom of choice. Thus, in Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, 70-71, n. 11 (1976), we held that Missouri’s requirement of spousal consent was unconstitutional because it “granted [the husband] the right to prevent unilaterally, and for whatever reason, the effectuation of his wife’s and her physician’s decision to terminate her pregnancy.” Missouri had interposed an “absolute obstacle to a woman’s decision that Roe held to be constitutionally protected from such interference.” (Emphasis added.) Although a state-created obstacle need not be absolute to be impermissible, see Doe v. Bolton, 410 U. S. 179 (1973); Carey v. Population Services International, 431 U. S. 678 (1977), we have held that a requirement for a lawful abortion “is not unconstitutional unless it unduly burdens the right to seek an abortion." Bellotti v. Baird, 428 U. S. 132, 147 (1976). We recognized in Bellotti that “not all distinction between abortion and other procedures is forbidden” and that “[t]he constitutionality of such distinction will depend upon its degree and the justification for it.” Id., at 149-150. We therefore declined to rule on the constitutionality of a Massachusetts statute regulating a minor’s access to an abortion until the state courts had had an opportunity to determine whether the statute authorized a parental veto over the minor’s decision or the less burdensome requirement of parental consultation. These cases recognize a constitutionally protected interest “in making certain kinds of important decisions” free .from governmental compulsion. Whalen v. Roe, 429 U. S. 589, 599-600, and nn. 24 and 26 (1977). As Whalen makes clear, the right in Roe v. Wade can be understood only by considering both the woman’s interest and the nature of the State’s interference with it. Roe did not declare an unqualified “constitutional right to an abortion,” as the District Court seemed to think. Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy. It implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds. The Connecticut regulation before us is different in kind from the laws invalidated in our previous abortion decisions. The Connecticut regulation places no obstacles — absolute or otherwise — in the pregnant woman’s path to an abortion. An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut’s decision to fund childbirth; she continues as before to be dependent on private sources for the service she desires. The State may have made childbirth a more attractive alternative, thereby influencing the woman’s decision, but it has imposed no restriction on access to abortions that was not already there. The indigency that may make it difficult — and in some cases, perhaps, impossible — for some women to have abortions is neither created nor in any way affected by the Connecticut regulation. We conclude that the Connecticut regulation does not impinge upon the fundamental right recognized in Roe. c Our conclusion signals no retreat from Roe or the cases applying it. There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy. Constitutional concerns are greatest when the State attempts to..impose its.will by force of law; the State’s power to encourage, actions deemed to be in the public interest is necessarily far Jbrpader. • This, distinction is implicit in two cases cited in Roe in support of the pregnant woman’s right under the Fourteenth Amendment, Meyer v. Nebraska, 262 U. S. 390 (1923), involved-' a ’Nebraska law making it criminal to teach foreign''languages to children who had not passed the eighth ’ gradé.' ‘ Id., at 396-397. Nebraska’s imposition of a .criminal .¡sanction on the providers of desired services makes Meyer closely analogous to Roe. In sustaining the. constitutional challenge brought by a teacher convicted under the law, the- Court held that the teacher’s “right thus to teach and the right of parents to engage him so to instruct their children’,’ were “within the liberty of the Amendment.” 262 U. S. at 400. In Pierce v. Society of Sisters, 268 U. S. 510 (1925), the. Court relied on Meyer to invalidate an Oregon criminal law requiring the parent or guardian of a child to sénd’ hiíírto a public school, thus precluding the choice of a private school.' Reasoning that the Fourteenth Amendment’s concept' of liberty “excludes any general power of the State to standardize, its children by forcing them to accept instruction from public teachers only,” the Court held that the law “unreasonably interfere [d] with the liberty of parents and guardians, to-direct the upbringing and education of children under their control;” 268 U. S., at 534 — 535. Both’ case\|. invalidated substantial restrictions on constitutionally protected liberty interests: in Meyer, the parent’s right to--.have.his child taught a particular foreign language; in Pierce', the.; parent’s right to choose private rather than public school 'education. But neither case denied to a State the policy choice of encouraging the preferred course of action. Indeed, in Meyer the Court was careful to state,,that-the power of the State “to prescribe a curriculum” that included English and excluded German in its free public schools “is not questioned.” 262 U. S., at 402. Similarly, Pierce casts no shadow over a State’s power to favor public .education, by funding it — a policy choice pursued in some . States for more than a century. See Brown v. Board of Education, 347 U. S. 483, 489 n. 4 (1954). Indeed, in Norwqod v. Harrison, 413 U. S. 465, 462 (1973), we explicitly rejected .the argument that Pierce established a “right of private or. parochial schools to share with public schools in state, largesse,” noting that “[i]t is one thing to say that a State ipay. not.prohibit the maintenance of private schools and quite another -to say that such schools must, as a matter of equal, protection, receive state aid.” Yet, were we to accept appellees’ argument, an indigent parent could challenge the state. spolicy ..of favoring public rather than private schools, or of preferring instruction in English rather than German, on grounds identical in principle to those advanced here. We think it abundantly clear that a State is not required to show a compelling interest for its policy choice to favor normal childbirth any more, than, a State must so justify its election to fund public but not private education. D The question remains whether Connecticut’s regulation can be sustained under the less demanding test of rationality that applies in the absence of a suspect classification or the impingement of a fundamental right. This test requires that the distinction drawn between childbirth and nontherapeutic abortion by the regulation be “rationally related” to a “constitutionally permissible” purpose. Lindsey v. Normet, 405 U. S. 56, 74 (1972); Massachusetts Bd. of Retirement v. Murgia, 427 U. S., at 314. We hold that the Connecticut funding scheme satisfies this standard. Roe itself explicitly acknowledged the State’s strong interest in protecting the potential life of the fetus. That interest exists throughout the pregnancy, “grow[ing] in substantiality as the woman approaches term.” 410 U. S., at 162-163. Because the pregnant woman carries a potential human being, she “cannot be isolated in her privacy. . . . [Her] privacy is no longer sole and any right of privacy she possesses must be measured accordingly.” Id., at 159. The State unquestionably has a “strong and legitimate interest in encouraging normal childbirth,” Beal v. Doe, ante, at 446, an interest honored over the' centuries. Nor can there be any question that the Connecticut regulation rationally furthers that interest. The medical costs associated with childbirth are substantial, and have increased significantly in recent years. As recognized by the District Court in this case, such costs are significantly greater than those normally associated with elective abortions during the first trimester. The subsidizing of costs incident to childbirth is a rational means of encouraging childbirth. We certainly are not unsympathetic to the plight of an indigent woman who desires an abortion, but “the Constitution does not provide judicial remedies for every social and economic ill,” Lindsey v. Normet, supra, at 74. Our cases uniformly have accorded the States a wider latitude in choosing among competing demands for limited public funds. In Dandridge v. Williams, 397 U. S., at 485, despite recognition that laws and regulations allocating welfare funds involve “the most basic economic needs of impoverished human beings,” we held that classifications survive equal protection challenge when a “reasonable basis” for the classification is shown. As the preceding discussion makes clear, the state interest in encouraging normal childbirth exceeds this minimal level. The decision whether to expend state funds for nonthera-peutic abortion is fraught with judgments of policy and value over which opinions are sharply divided. Our conclusion that the Connecticut regulation is constitutional is not based on a weighing of its wisdom or social desirability, for this Court does not strike down state laws “because they may be unwise, improvident, or out of harmony with a particular school of thought.” Williamson v. Lee Optical Co., 348 U. S. 483, 488 (1955), quoted in Dandridge v. Williams, supra, at 484. Indeed, when an issue involves policy choices as sensitive as those implicated by public funding of nontherapeutic abortions, the appropriate forum for their resolution in a democracy is the legislature. We should not forget that “legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” Missouri, K. & T. R. Co. v. May, 194 U. S. 267, 270 (1904) (Holmes, J.). In conclusion, we emphasize that our decision today does not proscribe government funding of nontherapeutic abortions. It is open to Congress to require provision of Medicaid benefits for such abortions as a condition of state participation in the Medicaid program. Also, under Title XIX as construed in Beal v. Doe, ante, p. 438, Connecticut is free — through normal democratic processes — to decide that such benefits should be provided. We hold only that the Constitution does not require a judicially imposed resolution of these difficult issues. Ill The District Court also invalidated Connecticut's requirements of prior written request by the pregnant woman and prior authorization by the Department of Social Services. Our analysis above rejects the basic premise that prompted invalidation of these procedural requirements. It is not unreasonable for a State to insist upon a prior showing of medical necessity to insure that its money is being spent only for authorized purposes. The simple answer to the argument that similar requirements are not imposed for other medical procedures is that such procedures do not involve the termination of a potential human life. In Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52 (1976), we held that the woman's written consent to an abortion was not an impermissible burden under Roe. We think that decision is controlling on the similar issue here. The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. [For dissenting opinion of Me. Justice Marshall, see ante, p. 454.] [For dissenting opinion of Mr. Justice Blackmun, see ante, p. 462.] The procedures governing abortions beyond the first trimester are not challenged here. Section 275 provides in relevant part: “The Department makes payment for abortion services under the Medical Assistance (Title XIX) Program when the following conditions are met: "1. In the opinion of the attending physician the abortion is medically necessary. The term ‘Medically Necessary’ includes psychiatric necessity. “2. The abortion is to be performed in an accredited hospital or licensed clinic when the patient is in the first trimester of pregnancy. . . . “3. The written request for the abortion is submitted by the patient, and in the case of a minor, from the parent or guardian. “4. Prior authorization for the abortion is secured from the Chief of Medical Services, Division of Health Services, Department of Social Services.” See n. 4, infra. At the time this action was filed, Mary Poe, a 16-year-old high school junior, had already obtained an abortion at a Connecticut hospital. Apparently because of Poe’s inability to obtain a certificate of medical necessity, the hospital was denied reimbursement by the Department of Social Services. As a result, Poe was being pressed to pay the hospital bill of $244. Susan Roe, an unwed mother of three children, was unable to obtain an abortion because of her physician’s refusal to certify that the procedure was medically necessary. By consent, a temporary restraining order was entered by the District Court enjoining the Connecticut officials from refusing to pay for Roe’s abortion. After the remand from the Court of Appeals, the District Court issued temporary restraining orders covering three additional women. Roe v. Norton, 408 F. Supp. 660, 663 (1975). The District Court’s judgment and order, entered on January 16, 1976, were not stayed. On January 26, 1976, the Department of Social Services revised § 275 to allow reimbursement for nontherapeutic abortions without prior authorization or consent. The fact that this revision was made retroactive to January 16, 1976, suggests that the revision was made only for the purpose of interim compliance with the District Court’s judgment and order, which were entered the same date. No suggestion of mootness has been made by any of the parties, and this appeal was taken and submitted on the theory that Connecticut desires to reinstate the invalidated regular tion. Under these circumstances, the subsequent revision of the regulation does not render the case moot. In any event, there would remain the denial of reimbursement to Mary Poe, and similarly situated members of the class, under the prerevision regulation. See 380 F. Supp., at 730 n. 3. The State has asserted no Eleventh Amendment defense to this relief sought by Poe and those whom she represents. Boddie v. Connecticut, 401 U. S. 371 (1971), cited by appellees, is not to the contrary. There the Court invalidated under the Due Process Clause “certain state procedures for the commencement of litigation, including requirements for payment of court fees and costs for service of process,” restricting the ability of indigent persons to bring an action for divorce. Id., at 372. The Court held: “[G]iven the basic position of the marriage relationship in this society’s hierarchy of values and the concomitant state monopolization of the means for legally dissolving this relationship, due process does prohibit a State from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages.” Id,., at 374. Because Connecticut has made no attempt to monopolize the means for terminating pregnancies through abortion the present case is easily distinguished from Boddie. See also United States v. Kras, 409 U. S. 434 (1973); Ortwein v. Schwab, 410 U. S. 656 (1973). In eases such as Griffin v. Illinois, 351 U. S. 12 (1956) and Douglas v. California, 372 U. S. 353 (1963), the Court held that the Equal Protection Clause requires States that allow appellate review of criminal convictions to .provide indigent defendants with trial transcripts and appellate counsel. These cases are grounded in the criminal justice system, a governmental monopoly in which participation is compelled. Cf. n. 5, supra. Our subsequent decisions have made it clear that the principles underlying Griffin and Douglas do not extend to legislative classifications generally. A woman has at least an equal right to choose to carry her fetus to term as to choose to abort it. Indeed, the right of procreation without state interference has long been recognized as “one of the basic civil rights of man . . . fundamental to the very existence and survival of the race.” Skinner v. Oklahoma ex rel. Williamson, 316 17. S. 535, 541 (1942). Appellees rely on Shapiro v. Thompson, 394 U. S. 618 (1969), and Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974). In those cases durational residence requirements for the receipt of public benefits were found to be unconstitutional because they “penalized” the exercise of the constitutional right to travel interstate. Appellees’ reliance on the penalty analysis of Shapiro and Maricopa County is misplaced. In our view there is only a semantic difference between appellees’ assertion that the Connecticut law unduly interferes with a woman’s right to terminate her pregnancy and their assertion that it penalizes the exercise of that right. Penalties are most familiar to the criminal law, where criminal sanctions are imposed as a consequence of proscribed conduct. Shapiro and Maricopa County recognized that denial of welfare to one who had recently exercised the right to travel across state fines was sufficiently analogous to a criminal fine to justify strict judicial scrutiny. If Connecticut denied general welfare benefits to all women who had obtained abortions and who were otherwise entitled to the benefits, we would have a close analogy to the facts in Shapiro, and strict scrutiny might be appropriate under either the penalty analysis or the analysis we have applied in our previous abortion decisions. But the claim here is that the State “penalizes” the woman’s decision to have an abortion by refusing to pay for it. Shapiro and Maricopa County did not hold that States would penalize the right to travel interstate by refusing to pay the bus fares of the indigent travelers. We find no support in the right-to-travel cases for the view that Connecticut must show a compelling interest for its decision not to fund elective abortions. Sherbert v. Verner, 374 U. S. 398 (1963), similarly is inapplicable here. In addition, that case was decided in the significantly different context of a constitutionally imposed “governmental obligation of neutrality” originating in the Establishment and Freedom of Religion Clauses of the First Amendment. Id., at 409. In Buckley v. Valeo, 424 U. S. 1 (1976), we drew this distinction, in sustaining the public financing of the Federal Election Campaign Act of 1971. The Act provided public funds to some candidates but not to others. We rejected an asserted analogy to cases such as American Party of Texas v. White, 415 U. S. 767 (1974), which involved restrictions on access to the electoral process: “These cases, however, dealt primarily with state laws requiring a candidate to satisfy certain requirements in order to have his name appear on the ballot. These were, of course, direct burdens not only on the candidate’s ability to run for office but also on the voter’s ability to voice preferences regarding representative government and contemporary issues. In contrast, the denial of public financing to some Presidential candidates is not restrictive of voters’ rights and less restrictive of candidates’. Subtitle H does not prevent any candidate from getting on the ballot or any voter from casting a vote for the candidate of his choice; the inability, if any, of minority party candidates to wage effective campaigns will derive not from lack of public funding but from their inability to raise private contributions. Any disadvantage suffered by operation of the eligibility formulae under Subtitle H is thus limited to the claimed denial of- the enhancement of opportunity to communicate with the electorate that the -formulae afford eligible candidates.” 424 U. S., at 94^95 (emphasis added; ’footnote-omitted). In his dissenting opinion, MR. Justice Brennan rejects the’distinction, between direct state interference with a protected activity„and,.state .encouragement of an alternative activity and argues that our previous abortion decisions are inconsistent with today’s decision. But as stated above, all of those decisions involved laws that placed substantial státe-created obstacles in the pregnant woman’s path to an abortion. Our recent deep sion in Carey v. Population Services International, 431 U. S. 678 (1977), differs only in that it involved state-created restrictions on .access, to contraceptives, rather than abortions. Mr. Justice BRENNAN.jSiinply, asserts-that the Connecticut regulation “is an obvious impairment of the fundamental right established by Roe v. Wade.” Post, at 484-485. The only suggested source for this purportedly “obvious” conclusion.is a.,quotation. from Singleton v. Wulff, 428 U. S. 106 (1976). Yet, as Mr. Justice Blackmun was careful to note at the beginning of his opinion in Singleton, that case presented “issues [of standing] not going to the merits of this dispute.” Id., at 108. Significantly, Mr. Justice Brennan makes no effort to distinguish or explain the much more analogous authority of Norwood v. Harrison, 413 U. S. 455 (1973). In addition to the direct interest in protecting the fetus, a State may have legitimate demographic concerns about its rate of population growth. Such concerns are basic to the future of the State and in some circumstances could constitute a substantial reason for departure from a position of neutrality between abortion and childbirth. See generally Wilkinson, The Supreme Court, the Equal Protection Clause, and the Three Faces of Constitutional Equality, 61 Ya. L. Rev. 945, 998-1017 (1975). Much of the rhetoric of the three dissenting opinions would be equally applicable if Connecticut had elected not to fund either abortions or childbirth. Yet none of the dissents goes so far as to argue that the Constitution requires such assistance for all indigent pregnant women. Question: What state is associated with the petitioner? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
songer_appel1_7_2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the 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"). Reba U. GASTON, Plaintiff-Appellant, v. Elliott L. RICHARDSON, Secretary, Health, Education and Welfare, Defendant-Appellee. No. 71-1056. United States Court of Appeals, Sixth Circuit. Dec. 1, 1971. Robert H. Gorman, Cincinnati, Ohio, for plaintiff-appellant; B. Wm. Heid-kamp, Cincinnati, Ohio, on brief. J. T. Frankenberger, Asst. U. S. Atty., Lexington, Ky., for defendant-ap-pellee; Eugene E. Siler, Jr., U. S. Atty., Lexington, Ky., on brief. Before MILLER and KENT, Circuit Judges, and. O’SULLIVAN, Senior Circuit Judge. O’SULLIVAN, Senior Circuit Judge. Reba U. Gaston appeals from a judgment of the United States District Court for the Eastern District of Kentucky, Covington Division, dismissing her complaint whereby she sought an award of social security benefits. Her claim had been denied by the Secretary of Health, Education and Welfare. Claiming to be unable “to engage in any substantial gainful activity” as the result of an industrial accident which occurred on February 28, 1958 , plaintiff, on August 8, 1966, filed an application for disability benefits. Her application was denied initially on December 9, 1966, and again, upon reconsideration, by order entered on June 21, 1967. In the initial notice of denial, appellant was told: “After studying all the facts in your case, including the medical evidence and your statements, and considering your age, education, training and experience, it has been determined that your condition was not disabling within the meaning of the law on February 28, 1959, (the date you state you became unable to work), or on any later date through March 31, 1965. This is the last day on which you still met the earnings requirement.” In the Notice of Reconsideration Determination, dated June 21, 1967, she was again told that her application was denied, and was also advised: “If you believe that the reconsideration determination is not correct, you may request a hearing before a hearing examiner of the Bureau of Hearings and Appeals. If you want a hearing, you must request it not later than 6 months from the date of this notice. You should make any such request through your Social Security District Office, Covington, Kentucky. Read the enclosed leaflet BHA-1 for a full explanation of your right to appeal.” No request for a hearing before an examiner was made, nor was any appeal or review of the June 21, 1967 Reconsideration Determination attempted. Notwithstanding the foregoing, appellant on June 28, 1968, filed another application. This gave the same date for the onset of disability, February 28, 1959, and described her disability as “severe pain in back, arms and legs.” She advised in this application that she was receiving Workmen’s Compensation benefits. No mention was made that a previous application had been denied. No new evidence, medical or otherwise, was proffered. An initial disposition of the second application was made by an order entered August 5, 1968, asserting as its basis: “Administrative res judicata. 20/40 last met 3/31/65. Previously denied for lack of severity in claim filed 8/8/66. New evidence in file does not reflect new facts for same adjudication period already decided on 12/6/66 and 6/15/67. No basis exists for reopening the prior determination on application dated 8/8/66.” (Emphasis supplied.) At that time and by that order Mrs. Gaston was told, inter alia: “On June 15, 1967, you were notified of the reconsideration determination, that your condition was not found to be disabling within the meaning of the law at any time on or before March 31, 1965, the date that you last met the earnings requirement. In that notice you were advised that you could request a hearing before a hearing examiner of the Bureau of Hearings and Appeals within 6 months if you believed this decision was not correct. Our records do not show that a review of that decision was requested. “We have studied the information furnished with your present application and find that the facts are the same as those previously considered in connection with your earlier application. Therefore, your present application must be denied. Since, as explained above, the disability must exist at a time when a person meets the earnings requirement, it has not been necessary to consider whether your condition is disabling at any time after March 31, 1965, the date you last met the earnings requirement. “If you have any evidence about your condition on or before March 31, 1965, which was not previously sent in for consideration, you may submit it for review. It is not necessary to file a new disability application for this purpose.” On January 28, 1969, appellant filed a Request for Reconsideration, advising that she had an attorney and naming him. The form called for submission of or reference to any additional evidence. To this, the answer was “none.” On February 5, 1969, both Mrs. Gaston and her attorney were notified of the denial of the Request for Reconsideration and the reasons therefor. A letter to appellant’s attorney told of his client’s right to a hearing before an examiner, and that: “At a hearing she can appear in person, submit any additional evidence, bring witnesses in her behalf and be represented by counsel.” A request for a hearing before an examiner was made and the matter came on for such hearing before Charles M. Gowdy, Hearing Examiner. On March 14, 1969, this examiner entered an Order of Dismissal which made reference to the 1967 denial of benefits to appellant and concluded: “In view of the fact that the claimant last met the special earnings requirement for disability purposes on March 31, 1965 and all issues were considered in prior determinations from which no appeal was taken, this request for hearing filed on January 9, 1969 is hereby dismissed under the doctrine of res judicata, pursuant to the 1965 provisions of the Social Security Act and the clarifications of the 1967 amendments to the Act.” The Appeals Council affirmed this action of the examiner on May 1, 1969, and the District Court proceeding before us was commenced by a Complaint filed June 30, 1969. When faced with a Motion to Dismiss for lack of jurisdiction, appellant’s principal reliance was upon the Administrative Procedure Act which in 5 U.S.C. § 706 permits review of any agency ruling which is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” District Judge Mac Swinford would not pass upon this contention without having the full administrative record before him. Accordingly, he directed the Secretary to file a transcript of the proceedings which had been had relating to plaintiff’s claim. Gaston v. Finch, 312 F.Supp. 1327, 1330 (E.D.Ky. 1970). In that opinion, Judge Swinford expressed his doubt as to the applicability of the Administrative Procedure Act to proceedings under the Social Security law. Upon the filing and his examination of the transcript returned to him, he held that they disclosed no “abuse of discretion” on the part of the Secretary, even if the Secretary’s action was subject to review under the Administrative Procedures Act. He concluded also that res judicata foreclosed further prosecution of appellant’s application. We are of the view that what was done by the Secretary and by the District Judge in this matter was proeedurally correct. Appellant’s main contention is that res judicata cannot attach until there has been a hearing. This is stated in appellant’s brief as follows: “The Doctrine of Res Judicata under the terms of the Social Security Act, 42 U.S.C. 405(h), does not attach until an administrative hearing has been held, and therefore, defendant’s motion to dismiss should have been overruled by the District Court.” But no request for such a hearing was made after the June 21, 1967, Reconsideration Determination. By the provisions of 20 C.F.R. § 404.916, such failure to request a hearing rendered the Reconsideration Determination final and binding. The mentioned section provides : “§ 404.916 Effect of reconsidered determination. “The reconsidered determination shall be final and binding upon all parties to the reconsideration unless a hearing is requested in accordance with § 404.918 and a decision rendered or unless such determination is revised in accordance with § 404.956.” The claimant again sought benefits after the denial of her first application in the form of a second application for disability benefits. The second claim was denied and the request for a hearing was refused by the hearing examiner, pursuant to 20 C.F.R. § 404.937(a) which states: “(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 (see §§ 404.911, 404.918, 404.946, and 404.951.” (Emphasis supplied.) Hearing Examiner Charles M. Gow-dy’s order conformed to the regulations. In appellant’s address to us she asserts that there can be no finality to any action by the Secretary until there has been “a hearing to which he [she] was a party.” This quoted language is taken from 42 U.S.C. § 405(g), which provides in part: “(g) Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow.” (Emphasis supplied.) In this case, denial, of appellant’s application for reconsideration was made on June 21, 1967, and notice of her right to have a hearing before an examiner was given to her. She made no request and her position here must be that repeated applications for benefits may be made without limit so long as, by her choice, no hearing is requested or had. We disagree with such contention. Appellant further argues that the Secretary’s Regulation, 20 C.F.R. § 404.916, cited above, is in conflict with the statute which provides for judicial review —§ 405(g). This section, so it is argued, provides for review “after any final decision of the Secretary made after a hearing to which he was a party.” Whether or not there shall be such a hearing is entirely within the control of the applicant. He can fail to exercise such right and let the finality of denial of benefits mature before the provisions of § 405(g) or (h) become procedurally useable. The regulation, § 404.937, providing that res judicata maybring finality to denial of benefits, does not impair the right of review provided in § 405 of the statute. There have been some District Court cases which appear to be in conflict with the foregoing by refusing to apply res judicata where there was no hearing. Gilliam v. Gardner, 284 F.Supp. 529 (D. S.C.1968); Townend v. Cohen, 296 F. Supp. 789 (W.D.Pa.1969); Liles v. Finch, S.D.Ohio, No. 7,092 (March 18, 1970). Without setting out our analysis of them, we are satisfied that either their facts forbid their being considered as analogous to the matter at bar, or we respectfully decline to follow them. We consider that the following cases represent the better rule and are supportive of what we have said: Domozik v. Cohen, 413 F.2d 5 (3rd Cir. 1969); Grose v. Cohen, 406 F.2d 823 (4th Cir. 1969); Easley v. Finch, 431 F.2d 1351 (4th Cir. 1970); Leviner v. Richardson, 443 F.2d 1338 (4th Cir. 1971). In Leviner v. Richardson, swpra, the Fourth Circuit dealt specifically with the contention that res judicata may not apply until a hearing has been had. The Court said: “The sole legal question in this case is whether the doctrine of res judicata is applicable where no hearing was requested on the prior claim so that the Secretary’s determination became final without a hearing. The only Court of Appeals which has considered the question is that of the Third Circuit. In Domozik v. Cohen, 413 F. 2d 5 (3 Cir. 1969) (per curiam), it was held that where a claimant filed an application for disability benefits which was denied on the ground that disability was absent on the terminal date of his insured status and where the claimant failed to exercise his right to reconsideration and to a hearing, the denial was nevertheless res judicata of a subsequent application for the same benefits on the same grounds. We agree.” 443 F.2d at 1342 (Emphasis supplied.) In the ease before us appellant, at the time of the first denial and thereafter, was told of her right to a reexamination. After she had employed counsel, she was again invited to reopen the matter and, if she chose, to present additional evidence to sustain her claim. This she declined to do. The Act of Congress and the Regulations validly adopted thereunder exhibit much leniency in setting up the procedures to be employed by anyone seeking social security benefits. Notwithstanding the provisions of 20 C.F.R. § 404.-937 which provides for application of res judicata where timely use of the review procedures have not been employed, the Regulation gives an additional opportunity to overturn a decision of the Secretary. Regulation § 404.957 provides for reopening within four years of an initial decision upon a showing of “good cause”. 20 C.F.R. § 404.958(c) provides: “ ‘Good cause’ shall be deemed to exist where: ****** (c) There is an error as to such determination or decision on the face of the evidence on which such determination or decision is based.” Such a reopening has not been applied for within the period provided. The right to receive social security-benefits does not derive from the common law or the United States Constitution. It came into being by Act of Congress. Such Act and the regulations validly adopted are binding on us. We are not at liberty to ignore them. Judgment affirmed. . There was some confusion as to the date of her accident. She later gave the date as February 28, 1959 and also as February 27, 1959. We attach no importance to these discrepancies. . This pleading does not attack the validity of the Secretary’s first denial of benefits to plaintiff, neither is it in form or substance an attempt to obtain a reopening of the original and unappealed decision, as permitted by 20 C.F.R. § 404.957. The “good cause” for which such a reopening may be granted is defined in 20 C.F.R. § 404.958(e) as follows: “There is an error as to such determination or decision on the face of the evidence on which such determination or decision is based.” 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_r_natpr	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. In re Delores C. BROWN, Debtor. Delores C. BROWN, Plaintiff, v. PENNSYLVANIA STATE EMPLOYEES CREDIT UNION. Appeal of PENNSYLVANIA STATE EMPLOYEES CREDIT UNION. No. 85-5121. United States Court of Appeals, Third Circuit. Argued Aug. 5, 1986. Decided Oct. 15, 1986. James H. Turner (argued), Turner & O’Connell, Harrisburg, Pa., for appellant. Anthony DiSanto (argued), Law Office of Raymond Kleiman, Harrisburg, Pa., for appellee. Francis J. Capaldo, amicus curiae, Pennsylvania Credit Union League, Harrisburg, Pa. Before SEITZ, ADAMS and STAPLE-TON, Circuit Judges. OPINION OF THE COURT SEITZ, Circuit Judge. The Pennsylvania State Employees Credit Union (the “Credit Union”) appeals from the district court’s order reversing the bankruptcy court and remanding the case for consideration of sanctions under 11 U.S.C. § 362(h). I. On May 1, 1984, Delores Brown filed a voluntary petition for bankruptcy under Chapter 7 of the Bankruptcy Code. One of the debts she is seeking to discharge is a debt incurred from a personal line of credit established with the Credit Union. After receiving notice of Brown’s bankruptcy petition, the Credit Union sent her a letter detailing its policy towards bankrupt members. The present dispute centers on the following language in the letter: It is the Credit Union’s policy to deny future services to members when any portion of the debt is discharged in bankruptcy. However, if the obligation is reaffirmed with court approval, you would remain eligible for services as though the bankruptcy had not occurred. Brown filed a complaint with the bankruptcy court, alleging that this language violates 11 U.S.C. §§ 362(a)(6), 524(a)(2), and 525, and seeking injunctive relief and damages. The bankruptcy court found that the letter did not violate the Code’s antidiscrimination provision, section 525, because this provision applies only to governmental units. It also rejected her claim that the letter was an attempt to collect a discharged debt in violation of section 524(a)(2) on the ground that the section does not require a creditor to continue to do business with a debtor. Finally, although the bankruptcy court found that the letter violated the automatic stay, section 362(a)(6), it refused to impose any damages against the Credit Union because the letter constituted only a technical violation of the provision. The district court reversed the bankruptcy court’s decision as to the violation of the automatic stay. The court found that the letter was an attempt to collect on a prepetition debt, and that the attempt was more than a technical violation of section 362(a)(6). After stating that it did not believe punitive damages were appropriate, it remanded the case to the bankruptcy court for a determination of damages under section 362(h). II. Before this court may reach the merits of this case, we must determine whether we have jurisdiction over the appeal. Under 28 U.S.C. § 158(d), circuit courts have jurisdiction over bankruptcy cases in which district courts have entered “final decisions, judgments, orders and decrees.” We recognize that the courts “have consistently considered finality in a more pragmatic and less technical way in bankruptcy cases than in other cases.” In re Amatex Corp., 755 F.2d 1034, 1039 (3d Cir.1985). Because of the unique nature of bankruptcy cases, we have often permitted review of orders that are considered interlocutory in other contexts. See, e.g., In re Pacor, Inc., 743 F.2d 984 (3d Cir.1984); In re Marin Motor Oil, Inc., 689 F.2d 445 (3d Cir.1982), cert. denied, 459 U.S. 1207, 103 S.Ct. 1196, 75 L.Ed.2d 440 (1983). By allowing parties to appeal discrete issues within a single bankruptcy proceeding, we have sought to avoid the waste of resources that would result from insisting upon the completion of the proceedings pri- or to any appeal. Despite the pragmatic approach this court has taken toward bankruptcy appeals, however, we have also expressed our “general reluctance to adopt an expansive interpretation of finality.” Amatex, 755 F.2d at 1040; see Marin Motor Oil, 689 F.2d at 448. In this case, the bankruptcy court entered a final order. The district court, however, reversed the bankruptcy court and remanded the case to that court for a determination of damages under section 362(h) of the Bankruptcy Code. In non-bankruptcy cases, an order is not final until both liability and damages are established. Fireman’s Fund Insurance Co. v. Joseph J. Biafore, Inc., 526 F.2d 170 (3d Cir.1975). The question before us is whether this traditional rule of finality applies in bankruptcy cases. In Marin Motor Oil, this court held that “when the bankruptcy court issues what is indisputably a final order, and the district court issues an order affirming or reversing, the district court’s order is also final for purposes of section 1293(b).” 689 F.2d at 449. The Marin Motor Oil holding, however, involved a different factual setting from the one in this case. In Mar rin Motor Oil, the trustee appealed the district court’s order granting intervention to a creditor’s committee. In hearing the appeal, this court avoided the potential waste of litigation efforts that would have resulted had we reversed the district court after settlement had been reached. Similarly, in Amatex, we permitted an appeal of the district court’s denial of a voice for future claimants in the reorganization of an asbestos manufacturer in order to prevent the possibility of wasting several years of bankruptcy proceedings. 755 F.2d at 1040. Marin Motor Oil and Amatex stand for the proposition that this court must consider finality functionally in bankruptcy cases. 755 F.2d at 1039. Because bankruptcy cases involve numerous parties with different claims, the court must consider the practical consequences of delaying resolution of the issue presented. Where the issue is likely to affect the distribution of the debtor’s assets, or the relationship among the creditors, the most pragmatic response will usually be to hear the appeal immediately. This does not mean, however, that there are no jurisdictional limits imposed by section 158(d). District courts may hear both final and interlocutory orders from the bankruptcy courts under section 158(a) of the Bankruptcy Code. The circuit courts, on the other hand, are limited to final orders. Congress, therefore, intended to restrict the ability of parties to a bankruptcy proceeding to appeal district court orders. In this case, damages have not been assessed against the Credit Union. If we upheld the district court’s order, there is a likelihood that we would be faced with a second appeal in this case. A decision by this court at this time, therefore, may not end the litigation over the Credit Union’s alleged violation of the automatic stay. This case is distinguishable from In re Saco Local Development Corp., 711 F.2d 441 (1st Cir.1983). In Saco, the First Circuit held that it could hear a trustee’s appeal of a bankruptcy court’s ruling on the priority of a creditor, even though the amount of money the creditor would eventually receive was undetermined. The dispute between the creditor and the bankruptcy trustee was decided by the order establishing the creditor’s priority. Essential to the court’s reasoning was the fact that the creditor had “nothing more to do than await the outcome of third-party litigation.” 711 F.2d at 446. In this case, by contrast, the parties may have further litigation in this dispute. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98 (3d Cir.1981), does not control this case. In Universal Minerals, we permitted an appeal despite the fact the district court had remanded the case to the bankruptcy court for an accounting. One of the primary reasons for finding the finality requirement satisfied was that a reversal of the district court “would be preclusive of any further litigation on the relevant cause of action.” 669 F.2d at 101, quoting Cox Broadcasting Co. v. Cohn, 420 U.S. 469, 482-83, 95 S.Ct. 1029, 1039-40, 43 L.Ed.2d 328 (1975). We decline, however, to apply the reasoning of the Universal Minerals court to this case, even though a reversal of the district court would end the litigation. Universal Minerals involved a dispute over whether some property belonged to the debtor. In this case, the debtor brought an action against the creditor seeking damages for a violation of the Bankruptcy Code. The bankruptcy court’s decision on the issue will not impact upon the distribution of the debtor’s assets. Requiring the parties to resolve fully this dispute does not present the threat of a later appeal undoing years of bankruptcy proceedings. To expand the concept of finality to this case would involve an unwarranted step beyond our cases. The district court’s order does not affect either the debtor’s estate or the other creditors involved in the bankruptcy proceeding. Therefore, we hold that where a district court’s order does not affect the distribution of the debt- or’s assets or the relationship among the creditors, the traditional finality requirements must generally be satisfied before the order is appealable. The appeal, therefore, will be dismissed. . Section 362(h) of the Code provides that an individual injured by a willful violation of a stay "shall recover actual damages, including costs and attorney’s fees, and, in appropriate circumstances may recover punitive damages.” . This court has the responsibility to raise the issue of appellate jurisdiction sua sponte. Aetna Insurance Co. v. Newton, 398 F.2d 729 (3d Cir.1968). Because the issue was not raised in either party’s brief, we requested the parties to submit supplemental briefs on this issue. . 28 U.S.C. § 1293(b) was replaced by 28 U.S.C. § 158(d) when Congress enacted the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, § 104(a), 98 Stat. 333, 341. Because both statutes contain the finality requirement, courts have applied the cases brought under section 1293(b) to section 158(d) cases. See, e.g., In re Commercial Contractors, Inc., 771 F.2d 1373, 1374 n. 1 (10th Cir.1985); In re Stanton, 766 F.2d 1283, 1285 n. 3 (9th Cir. 1985). This court has expressed its opinion that section 158(d) did not make a substantive change in the statute. See Pacor, 743 F.2d at 987 n. 4. We, accordingly, will rely on the section 1293(b) cases in this case. . Although Amatex involved an appeal under 28 U.S.C. § 1291, the court relied on the § 1293 cases to inform its decision on the issue of finality. Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_r_fiduc	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. FEDERAL RESERVE BANK OF RICHMOND v. EARLY. Circuit Court of Appeals, Fourth Circuit. January 14, 1929. No. 2750. Maxwell G. Wallace, of Richmond, Va., for appellant. R. E. Whiting, of Columbia, S. C., for appellee. George P. Barse, of Washington, D. C., for Comptroller of the Currency (F. G-. Await, of Washington, D. C., on the brief), amicus curias. Before PARKER and NORTHCOTT, Circuit Judges, and WILLIAM C. COLEMAN, District Judge. PARKER, Circuit Judge. This action was instituted in the court below by the receiver of the Farmers’ & Merchants’ Bank of Lake City, S. C., to recover of the Federal Reserve Bank of Richmond, Va., a reserve deposit balance of $22,088.48 alleged to be owing by the Reserve Bank to the Farmers’ & Merchants’ Bank at the time of the failure of the latter, and also to recover the sum of $4,115.15, being the surrender value; with accrued dividends, of 78 shares of stock in the Reservo Bank owned by the Farmers’ & Merchants’ Bank at the time of its failure. The Reserve Bank admitted the deposit balance' and the liability on the stock, but pleaded the right to apply the deposit balance on checks drawn on the Farmers’ & Merchants’ Bank which it had received for collection and under its rules had forwarded to the latter bank for the purpose of effecting collection. As to the amount due on the stock, it pleaded the right to apply this as a set-off against the balance remaining due- on the cheeks after applying the deposit balance. The facts were stipulated and a jury trial was duly waived. The trial judge held as a matter of law that the Reserve Bank was not entitled to apply the deposit balance, or set off the stock liability, as claimed, and gave judgment in favor of the receiver for the full amount demanded. The Reserve Bank has appealed. The checks which the Reserve Bank claims the right to charge against the account of the failed bank, or upon which it seeks to apply the balance of that account, are cheeks which were sent to it for collection. It was handling them as collection agent under its clearance and collection system, which it had established under the authority to act as a clearing house for its member banks. See section 16 of Federal Reserve Act (12 USCA §§ 248 (m), 360). This collection system, which was agreed to by the forwarding banks, as well as by the banks upon which the cheeks were drawn, was characterized, so far as the cheeks here are concerned, by the following provisions: (1) The Reserve Bank was acting only as agent of the forwarding banks, and assumed no liability, except for its own negligence; (2) it was authorized to send the checks direct to the drawee bank for collection; (3) the amount of any cheek for which payment “in actually and finally collected funds” was not received by the Reserve Bank was authorized to be charged back to the forwarding bank, regardless of whether or not the chock itself could be returned; and (4) the eheeks, unless promptly returned by the drawee bank, were to be charged to its account with the Reserve Bank at the expiration of a designated transit time, in this case three days, but the latter bank reserved the right to so charge them at any time when in any particular case it was deemed neeessary to do so. This last provision, becanso of its importance to the questions here involved, we give in the exact language of the circular sent out hy tho Reserve Bank to its member banks, as follows: “ * * The amount of any cash letter to a member bank is chargeable against available fund:; in tho reserve account of' such member at the expiration of such transit time, which date will be shown on each cash letter. Tho right is reserved, however, to charge a cash letter to the reserve account of a member bank at any time when in any particular ease we deem it necessary to do so.” The balance of the insolvent bank which the Reserve Bank seeks to apply on the checks in controversy is a deposit balance in an account maintained in accordance with section 19 of the Federal Reserve Act (12 U. USCA §§ 461-464). It was subject to be checked against or withdrawn by the member bank for tho purpose of meeting existing liabilities, but under the regulations and subject to tho penalties prescribed by the Federal Reserve Board. 12 USCA § 464. These regulations, however, fixed the reserve requirements and prescribed penalties for deficiencies in the reserve. Regulation D, Series of 1924. Tho stock liability, against which the Reserve Bank seeks to set off the balance due on tho checks in controversy, arises out of tho ownership of 78 shares of its stock by tho insolvent bank. The law provides that, upon the insolvency of a member bank, such stock shall be canceled and that cash paid thereon, with interest'from date of last dividend, shall be first applied to all debts of tho insolvent bank to the Reserve Bank, and the balance, if any, be paid to the receiver of the insolvent bank. 12 USCA § 288. The case arose in the following manner: On October 7, 1926, the Reseive Bank forwarded for collection to tho insolvent hank checks drawn against the latter amounting to $14,900.62. On October 8th it forwarded chocks amounting to $20,170.71. The insolvent bank received the first lot of cheeks on October 8ih, and the second on October 9th. It immediately acknowledged receipt of them in each case, and with the exception of a few small checks, which were dishonored and returned, it marked them paid and charged them on its books to the accounts of the various drawers. The bank closed its doors on October 9ih, and a receiver was appointed for its affairs. At that time its reserve balance with tho Reservo Bank was $22,088.48. Tho Reservo Bank did not attempt to charge any of the cheeks to the account of the failed bank until after notice had been received of its failure. On October 31th, however, it did charge the first lot of checks against it, and on tho following day the second lot. Tho latter, however, were later credited to the account of the failed bank and charged against tho customers of the Reserve Bank, from whom they had been received for collection, although the cheeks themselves were not, of course, returned. Tho Reserve Bank contends that Ihe first lot of cheeks should be paid in full from the balance in the account of the insolvent bank, and that the balance remaining in its account should be applied pro rata on the second lot. Upon these facts two questions arise.: (1) Whether the deposit balance in favor of tho insolvent bank should be applied on the cheeks in question, as contended by the Reserve Bank; and (2) whether the Reserve Bank can set olí the balance due on the cheeks against its stock liability. We shall consider these separately, as they are governed by entirely different principles. The first question, we think, should be answered in the affirmative. The cheeks were forwarded by the Reserve Bank to the insolvent bank under an, agreement that they should bo charged against its account at the expiration of three days, unless returned immediately. They were so sent because the owners, for whom the Reserve Bank was acting as agent, had consented to the arrangement. As a substitute for the right to have them presented through another bank and collected in cash, the owners had agreed that they bo sent direct to the drawee, under the agreement that, if not promptly returned, they be charged against the drawee’s reserve balance. When, therefore, they were accepted by the drawee, the owners had the right to demand that they be charged against tho drawee’s account, and that the balance in that account be applied by ¡he Reserve Bank to their payment. The only question that can arise is: When does this right of the owners of the checks become fixed, so as to constitute it a charge upon the reserve balance? We think that it becomes so fixed when the drawee bank, either unequivocally accepts tho cheeks, as in this case, or, hy failing to return them promptly, becomes chargeable with them under the terms of the agreement. When tho checks are accepted by the drawee, and charged to the accounts of the various drawers, tho drawers and indorsers are released, and all rights arising out of the cheeks themselves are extinguished. See Federal Reserve Bank v. Malloy, 264 U. S. 160, 44 S. Ct. 296, 68 L. Ed. 617, 31 A. L. R. 1261; Clove v. Craven Chemical Co. (C. C. A. 4) 18 F.(2d) 711, 52 A. L. R. 980. Ry accepting them, therefore, the drawee not only unequivocally manifests its acquiescence that they be charged to its reserve account, but it also releases the parties to whom the holders could look for payment in event of dishonor. The owners have consented that this be done only upon the agreement that the checks be charged to the reserve account of the drawee with the Reserve Bank. When it is done, and the drawers and indorsers are released, surely the right of the owners to have them so charged becomes fixed, without necessity for further action. And this right, we think, depends, not upon the theory that the Reserve Bank is the owner of the cheeks, or that it has the right of set-off against the insolvent bank, but upon the fact that the contract of the parties has created an equitable charge upon the, reserve account of the drawee bank, and that such agreement operates as an equitable assignment of so mueh thereof as may be necessary to pay the cheeks when they are unequivocally accepted by the drawee. Under familiar principles of equity, such an equitable charge upon a fund arises in favor of a party when he becomes entitled to have his claim paid from that fund. See 3 Pomeroy’s Equity Jurisprudence (4th Ed.) §§ 1234, 1235 and 1280; Fourth Street Nat. Bank v. Yardley, 165 U. S. 634, 644,17 S. Ct. 439, 41 L. Ed. 855; Hurley v. Atchison, Topeka & Santa Fé R. Co., 213 U. S. 126, 29 S. Ct. 466, 53 L. Ed. 729; Walker v. Brown, 165 U. S. 664, 17 S. Ct. 453, 41 L. Ed. 865; Ketchum v. St. Louis, 101 U. S. 306, 317, 25 L. Ed. 999; Parlin & Orendorff Implement Co. v. Moulden (C. C. A. 5th) 228 F. 111, L. R. A. 1917B, 130, certiorari denied 241 U. S. 669, 36 S. Ct. 553, 60 L. Ed. 1230; In re Hollins (C. C. A. 2d) 215 F. 41, L. R. A. 1915B, 438. It is objected that the cheek is not to be charged to the account until the end of the transit time, which in this ease is three days, and that in the meantime the account is subject to depletion by withdrawal, and it is argued that it cannot be said to be subject to a lien or charge for the payment of the checks until they are actually charged against it. But we think it is the right which accrues co the owners of the cheeks to have them charged to the reserve account of the drawee when the latter has unequivocally accepted them, and not the mere entry in the books of the bank, which is the determinative factor. It is true that the reserve account of the drawee bank is subject to withdrawals, and varies from time to time, and that, between the acceptance of the checks by the drawee and the charge entry by the Reserve Bank, the reserve account may have been depleted, as in this case, until it is less than the amount of the cheeks. This, however, cannot affect the right of the owners of the checks, which has already accrued, to have them charged against the reserve account, or to have the balance remaining in the account at the time of the charging applied, so far as it will go, toward their payment. The depletion of the account may affect the value of the right of the owners of the checks; we do not see how it can affeet the existence of the right. It is analogous to the right of the holder of a check in those jurisdictions where the giving of a cheek is held to be an equitable assignment pro tanto of the funds on which it is drawn. In such case the withdrawal of the funds before the presentation of the check may defeat the right of the holder; but this does not impair the holder’s right in the fund, if it is not in fact withdrawn before the insolvency of .the drawer. It is said that there can be no lien where the account is absolutely under the control of the drawee. But the account here was not under the control of the drawee. It was under the control of the Reserve Bank, which not only could have refused to honor checks and drafts drawn against it, but also- had the right at any time to charge against it the cash letters outstanding. Of course, until the cheeks are charged against the account, the right of the owners is not that of a lien upon the exact deposit balance which exists when they are accepted by the drawee, but the right to a charge against the fluctuating balance, the amount of which is made certain either by the expiration of the three-day transit period, or by the earlier charging of the cheeks under the right reserved. “Id centum est quod eertum reddi potest.” Although in this case the transit period had not ended at the time of the- closing of the drawee bank, the right of the owners of the checks to have them charged against the reserve balance of the drawee had become fixed and irrevocable, and the failure of the bank fixed the amount of the reseiwe balance applicable to their payment. In that the rights of the parties depend upon the transactions which occurred prior to the insolvency and not upon the book entries made in carrying them out, the case is not unlike the ease of McDonald, Receiver, V. Chemical National Bank, 174 U. S. 610, 19 S. Ct. 787, 43 L. Ed. 1106. In’ that case-it appeared that it was the custom of the failed Capital National Bank to send to the Chemical Bank checks and other cash items, which were credited to the account of the Capital Bank, which was frequently overdrawn. Shortly before a receiver was appointed for the Capital Bank, it mailed a number of cheeks and other cash items to tho Chemical Bank, which were not received by the latter until after the receiver had taken charge, and consequently were not credited prior to insolvency. It was held that, notwithstanding this fact, the Chemical Bank was entitled to retain the items and credit same on the account of the Capital Bank. The decision was based upon the fact that under the course of dealing between the parties the right of tho Chemical Bank to the checks and other items arose when, they were deposited in tho mails, just as here we think that under tho agreement of the parties the right of the owners of the checks to have same charged against the reserve account of the drawee bank arose and became fixed when that bank accepted them. The receiver argues that the right to charge the cheeks against the reserve account of the drawee is hut the exercise of a power of attorney which is revoked by insolvency, and that tho situation of the Reserve Bank, therefore, is that of a bank against which a check is drawn, and which has no authority to pay the check after the insolvency of the drawer. It is argued that the Reserve Bank is in the same situation as a collecting hank, which has accepted a check in payment of checks held for collection, where tho drawer of the cheek fails before the check is collected. We do not think, however, that tho eases are analogous. Under the federal rule and under the Uniform Negotiable Instruments Act, when a check is accepted in payment, it is not an assignment of funds, nor is it chargeable against particular funds. It is a mere order upon the drawee, which is revoked by the insolvency of the drawer. Here, however, we have a contract which provides that, if the cheeks forwarded for collection are accepted by the drawer, his liability for them shall be chargeable against and paid out of a particularly designated fund, his reserve account with the Federal Reserve Bank. It is not a question of an order upon a third party, which such third party may honor or not, as he sees fit (National Bank of the Republic v. Millard, 10 Wall. 152, 19 L. Ed. 897); but of a binding agreement in which the holder of tho fund is also the collecting agent. We think it falls clearly within tho principle announced by Mr. Justice White in Fourth Street Nat. Bank v. Yardley, 165 U. S. 634, 644, 17 S. Ct. 439, 440 (41 L. Ed. 855), as follows: “Whilst an equitable assignment or lien will not arise against a deposit account solely by reason of a check drawn against the same, yet the authorities establish that if in the transaction connected with the delivery of the check it was the understanding and agreement of the parties that an advance about to be made should be a charge on and be satisfied out of a specified fund, a court of equity will lend its aid to carry such agreement into effect as against the drawer of the cheek, mere volunteers, and parties charged with notice.” It is said that the ease of Equitable Trust Co. v. First Nat. Bank of Trinidad, 48 S-Ct. 167, 72 L. Ed. 313, is authority against the position of the Reserve Bank, but w© do not think so. In that case the Trinidad bank had drawn a draft on a bank in Italy; and had arranged with New York bankers to provide the drawee with funds, so that tho draft could be honored, sending to the New York bankers funds for that purpose. The New York hankers had an account with the Italian hank, but no funds were designated out of which the draft of the Trinidad bank was to be paid. Upon the bankruptcy of the New York bankers, the Italian bank refused to pay the drafts which bankrupts had guaranteed, and their trustee in bankruptcy collected the balance to their credit in the Italian bank. The Bank of Trinidad claimed priority on this fund, on the ground that it was charged with a trust in its favor. Its claim was denied, for the reason that no fund was designated from which the draft was to bo paid, and no fund was assigned for the purpose of taking care of it; the ground of the decision being thus succinctly stated by Mr. Justice Holmes: “What the parties meant to establish and what the respondent got was the assurance of a credit abroad to the extent of its check as in the ease of a letter ©f credit, not an attenuated property right in m¡ account to which no special funds were attached and the particulars of which neither the respondent nor the purchaser of the cheek could know.” In the case at bar, however, the cheeks were sent to the drawee upon the distinct and definite agreement that they were to be paid out of funds in the reserve account of to© drawee by charging them to that account, In tho ease cited, the Now York bankers failed before the draft of the Bank of Trinidad was presented. In the ease at bar to© cheeks were accepted by tho failed bank, and the right to charge them against the reserve account of the drawee had become fixed before its failure. We see nothing in the Bank of Trinidad Case which would justify the holding that under such circumstances the cheeks were not a charge upon the reserve account of the drawee. With respect to the deposit balance, therefore, our conclusion is that this is not recoverable by the receiver, but should he applied by the Reserve Bank upon the cheeks forwarded for collection. The same conclusion was reached in Federal Reserve Bank v. First National Bank (D. C.) 277 F. 300, and in Keyes, Receiver, v. Federal Reserve Bank, an unreported decision of Judge Page Moms of the District of Minnesota. And see, also, Storing v. First Nat. Bank (C. C. A. 8th) 28 F.(2d) 587, and Midland National Bank & Trust Co. v. First State Bank of Sioux Falls (Minn.) 222 N. W. 274, decided November 30, 1928. On the second question, we do not think that the Reserve Bank has the right to set off the balance due by the insolvent bank on the cheeks against its stock liability. The Reserve Bank was not the owner of these cheeks. It was merely an agent for collection, and, although it credited them to the accounts of the forwarding banks, this was upon agreement that they might be charged back, if not collected, and the second lot' of cheeks has been charged back. The stock liability is a liability created by statute, which provides that it “shall be first applied to all debts of the insolvent member bank to the Federal Reserve Bank, and the balance, if any, shall be paid to the receiver of the insolvent bank.” 12 USCA 288. It is perfectly clear that the liability of the insolvent member bank for these cheeks is a liability owing to the owners of the checks, in which the Reserve Bank is not interested, except as collection agent, and is not “a debt of the insolvent member bank to the Federal Reserve Bank,” within the meaning of the statute. Even in the absence of a statutory direc1tion as to how the liability should be applied, a set-off of checks held for collection against such a liability would not be allowed, for the reason that demands to he set off against each other must be mutual; that is, they must be due to and from the same parties and in the same capacity. 14 R. C. L. 656; 24 R. C. L. 858; Morse on Banks and Banking (6th Ed.) 334; Bank of the Metropolis v. New England Bank, 6 How. 212, 12 L. Ed. 409; Smith v. Bath L. & B. Ass’n, 126 Me. 59, 136 A. 284, 50 A. L. R. 526; Yardley v. Clothier (C. C. A.) 51 F. 506, 17 L. R. A. 462. Our conclusion, therefore, is that the District Judge erred as a matter of law in finding for plaintiff with respect to the first cause of action, which relates to the deposit account, hut that his finding with respect to the second cause of action, which relates to the stock liability, is correct. The judgment rendered will be set aside, therefore, and a new trial will be awarded on the first cause of action. Reversed in part. Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number. Answer:
songer_appel1_8_3	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant. Donal M. BRUBAKER, Individually, as Parent and Next Friend of Brian Michael Brubaker, a minor, and as Administrator of the Estate of Shirley Brubaker, Deceased, Plaintiff-Appellant, v. John CAVANAUGH, M.D., Defendant-Appellee. No. 82-1981. United States Court of Appeals, Tenth Circuit. Aug. 22, 1984. Jerry R. Palmer, P.A., Topeka, Kan., for plaintiff-appellant. Charles L. Davis, Jr., Topeka, Kan. (Gary D. McCallister, James G. Keller and Davis, Unrein, Hummer & McCallister, Topeka, Kan., with him on the brief), for defendant-appellee. Before SETH, BREITENSTEIN and SEYMOUR, Circuit Judges. BREITENSTEIN, Circuit Judge. Plaintiff-appellant in this diversity action appeals from an order of the district court 542 F.Supp. 944 granting summary judgment for the defendant on the ground that the action is barred by the applicable Kansas statute of limitation. We affirm. The facts as alleged by the plaintiff are taken as true for the purposes of this appeal. In this medical malpractice action, plaintiff Donal Brubaker, as administrator of the estate of his wife, Shirley Brubaker, and as father of their son, Brian, seeks damages for personal injury, wrongful death, wrongful birth, and wrongful life. Plaintiff alleges that defendant, Dr. John Cavanaugh, treated Paul Studebaker and his family, including Paul Studebaker’s daughter, Shirley, the plaintiffs wife. Dr. Cavanaugh treated Paul Studebaker beginning June 22, 1959, and continuing to his death in 1960 from cancer of the colon. In December, 1959, Cavanaugh diagnosed Studebaker as having multiple polyposis, a disease which passes to the next generation at a known rate of 50 percent and which can lead to cancer of the colon if not treated. Cavanaugh failed to advise the Studebaker family of the hereditary nature of the disease or the fact that timely diagnosis and treatment could eliminate the risk of cancer. Although Shirley Studebaker Brubaker saw Dr. Cavanaugh several times over a period of years after her father died and complained of problems symptomatic of the disease, plaintiff alleges that the doctor never warned her or anyone in the family. Shirley Brubaker was last seen by the defendant as a patient on December 18, 1968. In October, 1979, Shirley was diagnosed by another doctor as having multiple familial polyposis. Plaintiff further alleges that due to the doctor’s failure to warn her, Shirley Brubaker had children, including a son, Brian, who was born in 1971. He was diagnosed in 1980 as having multiple familial polypoS1S- This action was brought November 20, 1980. Shirley Brubaker died in 1981. Her husband, Donal Brubaker, was appointed administrator of her estate and filed the amended complaint. In 1982 the district court granted defendant’s motion for summary judgment, finding that all causes of action were barred by the statute of limitations applicable to health care professionals The portions of the statute of limitations, Kan.Stat.Ann. 60-513, which apply to medical malpractice read: ‘60-513. Actions limited to two years. (a) The following actions shall be brought within two (2) years. (7) An action arising out of the rendering of or failure to render professional services by a health care provider, not arising on contract. ****** (e) A cause of action arising out of the rendering of or the failure to render professional services by a health care provider shall be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action, unless the fact of injury is not reasonably ascer-tamable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall such an action be commenced more than four (4) years beyond the time of the act giving rise to the cause of action.” (Emphasis supplied.) The statute establishes a “discovery rule.” In cases such as this where the injury is not discovered until sometime after the alleged negligent act, the plaintiff has two years from the date of discovery to bring suit. The “discovery rule” is limited in that no action maY be commenced more than four years after the act or omission alleged to have caused the injury, As the trial court noted, the duty to inform paul Studebaker and his family of the nature of the disease arose at the time it was diagnosed, and it was breached during the time of treatment. The latest possible date on which any negligent act could have occurred was December 18, 1968, the date on which the defendant last examined Shirley Brubaker. The statute would thus bar an action brought later than December 18, 1972. rr . . . . . , , , The Kansas statute was interpreted and applied by the Kansas Supreme Court in Stephens v. Snyder Clinic Ass’n, 230 Kan. 115> 681 P.2d 222, 226, which said: , , . „ .. ., The effect of the statute of limitations requires an unfortunate result in the present case, especially since plaintiff’s injury was not ascertainable before the statute extinguished her right to bring the action, and her suit would have been timely had the amended statute not intervened. It is clear, however, that the legislature has the authority to set statutes of limitation, that the classification of <health care providers’ for beneficial treatment is justified and reasonable, and without constitutional infirmity.” Plaintiff argues that the statute of limitations is unconstitutional as applied to him ¡n that it violates due process. He claims that Shirley Brubaker was in a special class 0f injured persons because, when the four year limitation period passed, she still had not been diagnosed and did not know of the injury. He argues that due process is vio-iated by a statute that bars an action before au necessary elements constituting the cause of action are present. Some reasonable time must be allowed for filing an action following discovery of an injury. This argument was analyzed and rejected in Jewson v. Mayo Clinic, 8 Cir., 691 F.2d 405. Quoting Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628 the court noted, 691 F.2d at 411, that: “[Statutes of limitation] are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the avoidable and unavoidable delay.” The court continued, 691 F.2d at 411: “They sometimes expire before a claimant has sustained any injury, ... or before he knows he has sustained an injury,____ If the limitation period is otherwise reasonable, a claimant is not thereby deprived of his right to due process.” (Citations omitted.) In the case at bar the duty to inform the family arose in 1959 when Dr. Cavanaugh undertook the treatment and diagnosed Paul Studebaker, and extended no later than December 18, 1968 when he last treated Shirley Brubaker. The state has a legitimate interest in preventing stale claims. The statute provides a reasonable length of time in which to bring suit. Although it works a hardship on particular plaintiffs, there is no violation of due process in its application. Plaintiff argues that the statute violates his equal protection rights in two respects. First, it protects only health care providers and not other professionals who'might also be faced with rising malpractice rates. Secondly, it deprives one narrow class of injured persons, those who cannot discover the injury until after their rights are barred, of a remedy. In a case such as this, we look only to whether there is a rational relationship between the classification and some legitimate governmental purpose in determining whether the statute violates the equal protection clause. See Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 1080, 67 L.Ed.2d 186 and Barwick v. Celotex Corp., 4 Cir., 736 F.2d 946, p. 958 (1984). As plaintiff concedes, it is generally within the sound discretion of the legislature to enact statutes of limitation. Such statutes carry a strong presumption of constitutionality. Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367,1376, 4 L.Ed.2d 1435. Plaintiff argues that Kan.Stat.Ann. 60-513, as amended in 1976, unreasonably distinguishes between the four year limitation period for “health care providers” and the ten year limitation period for other tort-feasors. This argument was rejected by the Kansas Supreme Court in Stephens v. Snyder Clinic Association, 230 Kan. 115, 631 P.2d 222. In upholding the statute against an equal protection challenge, the court said, 631 P.2d at 234-235: “The 1976 amendment to K.S.A. 60-513 was the legislature’s attempt to assure continued quality health care for Kansans by combating the rapidly rising cost of medical malpractice insurance and the increasing reluctance of insurance underwriters to underwrite medical professionals. One of the principal causes of the increased costs and unavailability of medical malpractice insurance was attributed to the ‘long tail,’ or the length of time after the negligent conduct, allowed for the discovery of the injury and the filing of suit thereon____ Reduction of the discovery period was considered to be the obvious compromise to assure continued availability of malpractice insurance while protecting the injured parties’ causes of action____” The court went on to say that the public interest in solving the medical malpractice problem is discussed in depth in State ex rel. Schneider v. Liggett, 223 Kan. 610, 576 P.2d 221, which held that there is a reasonable basis for treating malpractice actions against health care providers differently from cases involving other tortfeasors. We conclude, as did the Kansas Supreme Court, that a rational relation exists between the shorter limitation period for health care providers and the legitimate objective of providing quality health care in Kansas. Plaintiff recites much evidence that there is no such relation, but he cites nothing which indicates that the legislature’s studied choice, made in a context in which all interested parties are able to contribute, was irrational. Plaintiff argues that the equal protection clause is violated because it denies a remedy to those injured persons who cannot discover the injury until their rights to sue are barred. Although this harsh effect may result in some cases, the statute makes no distinction. It simply cuts off all remedies after the four-year period has passed. The statute does not violate the equal protection clause. Plaintiff urges that we adopt a “continuing tort” theory of liability by holding that the doctor’s duty continued as long as he undertook it. Specifically, plaintiff argues that by asking Mrs. Studebaker (Shirley Brubaker’s mother) how her children were, the doctor’s duty extended well into the mid-seventies. See Appellant’s brief at 37. In earlier malpractice cases, the Kansas Supreme Court rejected the continuous treatment or physician-patient relationship theories under which a cause of action would not begin to run as long as the physician continues to treat the patient for the injury which resulted from the negligent act, or the professional relationship exists. See Hecht v. First National Bank and Trust Co., 208 Kan. 84, 490 P.2d 649; and Becker v. Floersch, 153 Kan. 374, 110 P.2d 752. In Hecht, supra, 490 P.2d at 656-657, the court said: “An examination of the cases in which either of the two doctrines (physician-patient relationship or continuous treatment) was adopted reveals that generally the treatment was a judicial effort to soften the harshness of the statutory accrual rule existing in the particular jurisdiction at the time. The Kansas legislature preempted policy making on the subject by enacting in 1963 the additional provision of 60-513 and has given the matter further consideration by enacting in 1970 additional provisions relating to injuries resulting from ionizing radia-tion____ The legislature did not see fit to mention either ‘physician-patient relationship’ or ‘continuous treatment’ as an element in measuring the time in which a cause of action accrues. We are not inclined to do so by judicially legislating.” Even if Kansas recognized the “physician-patient” or the “continuous treatment” exceptions to the statute of limitations, the physician-patient relationship ended on December 18, 1968 when Shirley Brubaker last saw the defendant professionally. A finding that a duty extended because the defendant asked the plaintiff’s mother how her children were and whether they were getting their examinations, where there was no physician-patient relationship, would effectively defeat any statute of limitations. Affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant? A. trustee in bankruptcy - institution B. trustee in bankruptcy - individual C. executor or administrator of estate - institution D. executor or administrator of estate - individual E. trustees of private and charitable trusts - institution F. trustee of private and charitable trust - individual G. conservators, guardians and court appointed trustees for minors, mentally incompetent H. other fiduciary or trustee I. specific subcategory not ascertained Answer:
songer_circuit	I	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 F. DELNO, Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Appellee. No. 19348. United States Court of Appeals Ninth Circuit. June 7, 1965. J. A. Pardini, Elda Granelli, Julian Pardini, San Francisco, Cal., for appellant. Cecil F. Poole, U. S. Atty., Robert S. Marder, Charles E. Collett, Asst. U. S. Attys., San Francisco, Cal., for appellee. Before HAMLIN, JERTBERG, and BROWNING, Circuit Judges. BROWNING, Circuit Judge. This is an appeal from a summary judgment sustaining a decision of the Appeals Council of the Social Security Administration which denied appellant' Delno’s application for old-age insurance benefits under section 202(a) of the Social Security Act, 42 U.S.C.A. § 402(a). Appellant and his wife purchased an undivided one-half interest in a thirty-unit apartment house in 1956, and entered into a contract for the operation of the property with the couple owning the other one-half interest. It was agreed that income and operating expenditures would be divided equally between the two couples. Appellant was to “act as manager of said property and apartment house, collecting the rents and accounting for all income and expenditures.” In addition to his share of profits, he was to be paid $300 per month, later increased to $400, “as an operating expense * * * when the operation shows a net profit to the parties thereto.” The general purpose of the old-age, survivor and disability insurance provisions of Title II of the Social Security Act is to protect workers and their dependents from the risk of loss of income due to the insured’s old age, death, or disability. Accordingly, entitlement to benefits is based upon the receipt of income from labor, which old age, death, or disability would interrupt; and not upon the receipt of income from the investment of capital, which these events would presumably not affect. The ultimate problem in this case is to determine whether the statutory provisions and interpretive regulations which have been drawn with this general distinction in mind require that the payments which appellant received be treated as investment income rather than income from labor. Under the scheme of the Act, qualifying income may be received either as “wages” (42 U.S.C.A. § 409) or “net earnings from self-employment” (42 U.S. C.A. § 411(a)). Appellant contends that the income in question falls in either one or the other of the statutory categories. I Appellant’s first line of argument is that his income as “manager” constituted “wages” paid to him as an “employee” of a “partnership” created by the agreement of February 1, 1956, and that further inquiry into the nature of the payments is barred by the interposition of the partnership entity, just as it would be if the employer were a corporation, under our decisions in Stark v. Flemming, 283 F.2d 410 (9th Cir. 1960) and Flemming v. Lindgren, 275 F.2d 596 (9th Cir. 1960). The Appeals Council concluded that appellant was not an “employee” within the meaning of the Act. Section 210 (j) (2) of the Act, 42 U.S.C.A. § 410(j) (2), defines the term as including those who would occupy an employee status “under the usual common law rules.” The Appeals Council pointed out that “such common law rules, as explained in section 404.1004 of the Social Security Administration Regulations No. 4 (20 C.F.R. 404.1004), stress the right of the ‘employer’ to exercise control over the individual alleged to be an employee with respect to the manner in which the services are performed.” And the Council held that “the record in the instant case does not establish that the claimant was subject to such control, or even to a ‘right’ of control which could make him an employee of the other partners either singly or in combination.” While we do not agree with the overriding emphasis which the Council, and the regulation, appear to place upon the factor of control, considering the record as a whole we think the Council’s conclusion that appellant was not an “employee” was a permissible one under generally accepted criteria for determining the existence of the employee-employer relationship. II The government impliedly concedes that if appellant is excluded from the category of “employees” earning “wages”, he should be included in the alternative class of persons receiving “net earnings from self-employment” derived from “trade or business carried on” by such persons or by partnerships of which they are members. 42 U.S.C.A. § 411(a). We think this concession is proper. The premise of the system established by Part II of the Act is that all gainfully employed persons are to be covered, except as specifically excluded. The language of the Act is therefore to be interpreted in favor of coverage. Since appellant was a member of a partnership which operated a sizable apartment house, the income which he received was clearly “self-employment” income derived from a “trade or business” within the meaning of the Act. The government argues, however, that appellant’s income fell within an express statutory exclusion. In furtherance of the general purpose of the Act, section 211(a) “does withdraw from consideration as ‘net earnings from self-employment’ the sort of income arising from passive property ownership. It excludes by name real estate rentals, dividends, interest and certain capital gains and losses. ’ Bernstein v. Ribicoff, 299 F.2d 248; 253 (3d Cir. 1962). The Appeals Council thought that appellant’s income fell within the statutory exclusion of “rentals from real estate” found in section 211(a) (l). The Committee reports accompanying the bill which included section 211(a) (1) of the Act make it clear that not all payments which might be considered “rent” in ordinary parlance are to be excluded from self-employment net income. Thus, “payments for the use or occupancy of entire private residences or living units in duplex or multiple-housing units are generally rentals from real estate,” but “payments for the use or occupancy of rooms or other space where services are also rendered to the occupant, such as for the use or occupancy of rooms or other quarters in hotels, boarding houses, or apartment houses furnishing hotel services * * * do not constitute rentals from real estate,” within the meaning of section 211 (a) (1) The apparent intent of Congress was that section 211(a) (1) should be applied to exclude only payments for use of space, and, by implication, such services as are required to maintain the space in condition for occupancy. If the owner performs additional services of such substantial nature that compensation for them can be said to constitute a material part of the payment made by the tenant, the “rent” received then consists in part of income attributable to> the performance of labor which is not incidental to the realization of return from passive investment. In such circumstances, the entire payment is to be included in computing the recipient’s “net earnings from self-employment.” The agency has adopted regulations purporting to implement Congress’s intention. . After the initial administrative rejection of appellant’s claim on the ground that the income which he received was rental income, appellant requested a hearing, stating that he had furnished tenants a variety of services other than those required for the protection and maintenance of the property, including supplying linens and towels, cleaning apartments, emptying wastebaskets, providing laundry service, and cleaning and servicing the swimming pool. At the hear-mg, appellant supplemented this written submission by testimony that nineteen of the thirty available units were rented as furnished apartments, that he entered all apartments using his own key in accordanee with a provision in the leases, that waste was collected from baskets in two thirds of the apartments, that windows of all apartments were washed monthly, and that kitchens were washed down and stoves cleaned in all apartments at two-month intervals. He testified that he also devoted substantial time to the maintenance and operation of the swimming pool and its associated filtering and chlorinating equipment. The hearing examiner found “that the extensive services rendered by claimant” came within the “services to occupant” exception to the exclusion of rental income. The Appeals Council purported to accept the hearing examiner’s findings of fact, but nonetheless concluded that the payments which appellant received fell within the rental income exclusion. We think the Council’s conclusion may have been induced by the application of erroneous standards. The record indicates that the Appeals Council applied the “services to occupant” exception narrowly, and included borderline items in the rental exclusion. The general statutory preference for coverage would seem to require the opposite approach. Moreover, there is specific evidence that Congress intended the rental exclusion to be narrowly restricted to payments for occupancy only. These considerations, as well as the general purposes of the Act, dictate that any service not clearly required to maintain the property in condition for occupancy be considered work performed for the tenant, and not for the conservation of invested capital. The administrative agency must determine anew in light of the proper standard whether substantial services not necessary to the maintenance of the property were performed. We therefore do not attempt to evaluate all of the many and varied services which appellant offered. We do suggest, however, that the considerable daily labor required to keep the swimming pool in operating condition was not necessary to the maintenance of the rented space in condition for occupancy; and that the same may well be true of the time expended in servicing the washers, dryers, and other facilities in the laundry. To comport with the statutory purpose, the language of the regulation requiring that services be “other than those usually or customarily rendered in connection with the rental of rooms or other space for occupancy only” must be read with emphasis upon the closing phrase, “for occupancy only.” Otherwise, the continuing expansion of the services which are commonly offered by operators of modern apartment developments would result in a concurrent expansion of the rental exception and reduction in labor income qualifying for coverage. It may also be well to point out that services are not automatically within the exclusion simply because they may be classifiable in the general category of “maintenance and repair.” The essential question remains whether the maintenance and repair is of the kind necessary to protect the property investment and maintain the space in condition for occupancy. Similarly, it is not determinative that the services were performed for the tenants as a group rather than for each tenant individually. We think the Council erred in another respect. Having determined that appellant had expended substantial effort upon activities which the Council regarded as involving maintenance of the property in condition for occupancy, the Council accorded little independent consideration to evidence indicating that appellant had also devoted substantial time to furnishing other types of service. Evidence that appellant devoted a great deal of time to the former did not establish, as the Council assumed, that he devoted little time to the latter. There was affirmative evidence that he did in fact devote much time to other services, as we have pointed out. Appellant may have exaggerated the time which he devoted to all of his work, but there was nothing to indicate that his tendency to puff applied more to one category of service than to the other. If appellant did perform substantial additional services, it would be irrelevant that an even greater amount of time was devoted to services designed to protect the property. The Council also erred in holding that non-excluded services were gratuitously performed because the leases did not obligate the owners to perform them. Appellant had no intention of conferring a gratuity. The services were rendered as a part of appellant’s total effort to satisfy his tenants and thus assure the profitable operation of the business. They were a portion of the total package of rights and services which was extended to the tenants and for which the tenants were willing to pay, and the record indicates that their availability played a part in maintaining full occupancy of the apartments. It was no doubt irrelevant to the tenants that they may have had no legal right to compel the performance of these services, and we think it equally irrelevant to the application of section 211(a) (1). Finally, the Appeals Council gave no separate consideration to the payments received from the tenants of the nineteen furnished apartments, although the record indicated that more nonexcluded services were offered to these tenants than to the others. The regulations provide, properly we think, that if the payments received from any of the tenants qualified for exception from the exclusion of rental income, these payments were to be included in determining net earnings from self-employment, even if payments from other tenants might not qualify. The judgment of the district court is vacated, with directions to remand to the Secretary for such further proceedings as he may consider appropriate in the light of this opinion. . Social Security Bd. v. Nierotko, 327 U.S. 358, 364, 66 S.Ct. 637, 90 L.Ed. 718 (1946); S.Rep. No. 1669, 81st Cong., 2d Sess. (1950) (1950 U.S.Code Cong. Serv., p. 3288); David, 14 Ind. & Lab. Rel. Rev. 10, 11-12 (1960). . Hearings on an Analysis of the Social Security System Before a Sub-Committee of the House Committee on Ways and Means, 83d Cong., 1st Sess. 459, 504-05 (1953). See also Celebrezze v. Miller, 333 F.2d 29, 30 (5th Cir. 1964); Celebrezze v. Maxwell, 315 F.2d 727, 728 (5th Cir. 1963); Bernstein v. Ribicoff, 299 F.2d 248, 253-254 (3d Cir. 1962). . See also Brannon v. Ribicoff, 200 F. Supp. 697, 703 (D.C. Mont. 1961). . See Broden, Law of Social Security and Unemployment Insurance 30-31, 90-96 (1962). . Since the nature of the relationship could not be determined by interpretation of the contract alone, due to its ambiguity, a question of fact was presented to be determined by the Appeals Council from all of the evidence, including the agreement (Miller v. Flemming, 275 F.2d 763, 765 (9th Cir. 1960)), and the Council’s determination of the issue is conclusive if supported by substantial evidence. 42 U.S.C.A. § 405(g); McMullen v. Celebrezze, 335 F.2d 811, 814 (9th Cir. 1964). . Schottland, 46 Calif. L. Rev. 315, 319 (1958) ; David, 14 Ind. & Lab. Rel. Rev. 10,13-14 (1960). . St. Luke’s Hosp. Ass’n v. United States, 333 F.2d 157,164 (6th Cir. 1964); Brown & Bartlett v. United States, 330 F.2d 692, 693-694 (6th Cir. 1964) ; Celebrezze v. Kilborn, 322 F.2d 166, 168 (5th Cir. 1963); Ewing v. McLean, 189 F.2d 887, 892 19th Cir. 1951). . Sec. 211(a) of the Act, 42 U.S.C.A. § 411(a) (1964) provides in part: “The term ‘net earnings from self-employment’ means the gross income, as computed under [the Internal Revenue Code of 1954], derived by an individual from any trade or business carried on by such individual, less the deductions allowed under [the Internal Revenue Code of 1954] which are attributable to such trade or business, plus his distributive share (whether or not distributed) of the ordinary net income or loss, as computed under [the Internal Revenue Code of 1954], from any trade or business carried on by a partnership of which he is a member; except that in computing such gross income and deductions and such distributive share of partnership ordinary net income or loss — (1) There shall be excluded rentals from real estate and from personal property leased with the real estate * * , together with the deductions attributable thereto, unless such rentals are received in the course of a trade or business as a real estate dealer * * »> . S.Rep. No. 1669, 81st Cong., 2d Sess. (1950) (1950 U.S.Code Cong.Serv. p. 3454). The comment in full reads: “Payments for the use or occupancy of entire private residences or living units in duplex or multiple-housing units are generally rentals from real estate. Except in the case of real-estate dealers, such payments are excluded under paragraph (1), even though in part attributable to personal property furnished under the lease. On the other hand, payments for the use or occupancy of rooms or other space where services are also rendered to the occupant, such as for the use or occupancy of rooms or other quarters; in hotels, boarding houses, or apartment houses furnishing hotel services,, or in tourist camps or tourist homes,, or for the use or occupancy of space itt parking lots, warehouses, or storage' garages do not constitute rentals from real estate.” . Congress realized that the income of self-employed persons is in most instances a combination of income from both labor and invested capital, and deliberately chose not to attempt the difficult, if not impossible, task of separating one from the other. Congress recognized that no substantial distortion would result, since in any event § 211(b) (1) of the Act (42 U.S.C.A. § 411(b) (1)) imposed a ceiling of from $3,600 to $4,800 on the total annual net earnings from self-employment which may be included in determining eligibility for benefits. Hearings on H.R. 2893 (Social Security) Before the House Committee on Ways and Means, 81st Cong., 1st Sess. 1362-65 (1949). See also Hearings Before the Subcommittee on the Analysis of the Social Security System of the House Committee on Ways and Means, 83d Cong., 1st Sess., at 459, 504-07 (1953). . Sec. 404.1052(a) (2), (3), and (4) of the Social Security Administration Regulations, 20 C.F.R. § 404.1052(a) (2), (3), and (4) provide: “(2) Payments for the use or occupancy of entire private residences or living quarters in duplex or multiple-housing units are generally rentals from real estate. Except in the case of real estate dealers, such payments are excluded in determining net earnings from self-employment even though such payments are in part attributable to personal property furnished under the lease. (3) Payments for the use or occupancy of rooms or other space where services are also rendered to the occupant, such as for the use or occupancy of rooms or other quarters in hotels, boarding houses, or apartment houses furnishing hotel service, or in tourist camps or tourist homes, or for the use or occupancy of space in parking lots, warehouses, or storage garages, do not constitute rentals from real estate; consequently, such payments are included in determining net earnings from self-employment. Generally, services are considered rendered to the occupant if they are primarily for his conveniences and are other than those usually or customarily rendered in connection with the rental of rooms or other space for occupancy only. The supplying of maid service, for example, constitutes such service, whereas, the furnishing of heat and light, the cleaning of public entrances, exits, stairways and lobbies, the collection of trash, and so forth, are not considered as services rendered to the occupant. (4) Except in the case of a real estate dealer, where an individual or a partnership is engaged in a trade or business the income of which is classifiable in part as rentals from real estate, only that portion of such income which is not classifiable as rentals from real estate, and the expenses attributable to such portion, will be included in determining net earnings from self-employment. Example. A, an individual, owns a building containing four apartments. During the taxable year, he receives $1,400 from apartments numbered 1 and 2, which are rented without services rendered to the occupants, and $3,600 from apartments numbered 3 and 4, which are rented with services rendered to the occupants. His fixed expenses for the four apartments aggregate $1,200 during the taxable year. In addition, he has $500 of expenses attributable to the services rendered to the occupants of apartments 3 and 4. In determining his net earnings from self-employment, A includes the $3,-600 received from apartments 3 and 4, and the expenses of $1,100 attributable thereto. The rentals and expense attributable to apartments 1 and 2 are excluded. Therefore, A has $2,500 of net earnings from self-employment for the taxable year.” . “* * * I furnished personal services to tenants on request: furnishing linen .& towels, mopping & sweeping floors, dusting & cleaning the apartments, cleaning out tenants’ sewers once a week, cleaning bathroom fixtures, emptying wastebaskets, and providing laundry service. I also myself every day scrubbed the sides of the swimming pool, cleaned its filters, & added chlorine & water $ $ * 19 . For example, during hearings before a Subcommittee of the House Ways and Means Committee, 83d Cong., 1st Sess. (1953), concerned with an Analysis of the Social Security System (supra note 10), § 211(a) (1) was described as an exclusion of “pure rental income” (supra note 10 at 504) and Robert M. Ball, Acting Director, Bureau of Old Age and Survivors Insurance, testified that “the attempt was to rule out a few types of income which by and large were investment income entirely.” Supra note 10 at 505. . It is important to note that the exclusion of payments for labor performed in the maintenance of investment property does not reflect an affirmative, competing legislative purpose to be weighed equally with the purposes for which the Act was in fact enacted. If the owner does not hire another to perform such labor, he must do it himself; if he does it himself, the portion of his income which is attributable to it will be interrupted by old age, disability, or death. This is the very risk against which the Act was designed to afford protection. Supra note 1 and related text. However, because Congress “did not think that it would be advisable to consider all income from all rentals,” a line had to be drawn, and exclusion of compensation for some personal labor was simply the unavoidable practical consequence of the line that was drawn. Analysis of the Social Security System, supra note 10 at 505. . It also appears that the Appeals Council may have misread the entry of time spent “disposing of refuse into cans” as referring to collection of trash from hallways, etc. The transcript indicates that the reference is to the emptying of wastebaskets removed from individual apartments. . Sec. 404.1052(a) (3), supra note 11. . Supra note 11. But see Conklin v. Celebrezze (319 F.24 569, 571 (7th Cir. 1963). . Stark v. Flemming, 283 F.2d 410, 411 (9th Cir. 1960); Flemming v. Lindgren, 275 F.2d 596, 598 (9th Cir. 1960). 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_r_natpr	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 "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Leonard P. MATLOVICH, Appellant, v. SECRETARY OF The AIR FORCE and Colonel Alton J. Thogersen, Appellees. No. 76-2110. United States Court of Appeals, District of Columbia Circuit. Argued May 15, 1978. Decided Dec. 6, 1978. E. Carrington Boggan, New York City, for appellant. Vincent B. Terlep, Jr., Atty., Civ. Div., Dept, of Justice, Washington, D. C.; with whom Earl J. Silbert, U. S. Atty., Barbara Allen Babcock, Asst. Atty. Gen., and Ronald Glancz, Atty., Civ. Div., Dept, of Justice, Washington, D. C., were on the brief, for appellees. Before WRIGHT, Chief Judge, ROBINSON, Circuit Judge, and DAVIS, Judge, United States Court of Claims. Opinion for the court filed by Judge DAVIS. Sitting by designation pursuant to 28 U.S.C. § 293(a) (1976). DAVIS, Judge: In March 1975, appellant Leonard P. Matlovich, after some twelve years of excellent service in the military, wrote to the Secretary of the Air Force, through his commanding officers, that he had concluded that his “sexual preferences are homosexual as opposed to heterosexual.” He added that in his view his sexual preferences would in no way interfere with his Air Force duties and that he considered himself fully qualified for further military service. He asked that the provision in AFM 39-12 (Change 4) Oct. 21,1970, para. 2-103, relating to the discharge of homosexuals be waived in his case. At that time Matlovieh was a Technical Sergeant assigned to the 4510th Support Squadron, Tactical Air Command, Langley Air Force Base, Virginia. His letter triggered an investigation by the Air Force Office of Special Investigation during which appellant provided information concerning his homosexual experiences since 1973; he stated that these were all consensual and occurred in private, while he was off-duty and off-base, with males over twenty-one. He also said that he had had such relations with two other members of the Air Force (one of whom had been discharged by that time), neither of whom had worked for him (he added that “as any responsible NCO [non-commissioned officer] I would always refrain from such a relationship”). As a result of the investigation, involuntary administrative discharge proceedings were begun against Matlovich on the ground of his homosexual activity. An Administrative Discharge Board met in September 1975 and held a four-day hearing at which appellant was represented by counsel. In addition to general testimony on homosexuality, appellant presented evidence on his own service in the Air Force and his ability to continue to give effective service. It was stipulated that he had committed homosexual acts during his current enlistment period. The Board so found and recommended that he be given a general discharge for unfitness, based on his homosexual acts. Matlovich’s commanding officer at Langley Air Force Base accepted the Board’s recommendation of discharge but determined that the discharge should be honorable. The Secretary of the Air Force then declined to waive the provisions of AFM 39-12, supra, and directed that the honorable discharge be executed. This was done on October 22, 1975. Appellant immediately applied to the Air Force Board for the Correction of Military Records (AFBCMR) to oyerturn his discharge and also amended his complaint below (see note 3) to seek reinstatement, as well as a declaratory judgment that the discharge was invalid. The AFBCMR refused to correct appellant’s records and the Secretary of the Air Force adopted that tribunal’s findings and recommendations. Thereafter both sides filed motions for summary judgment in the court below. It was stipulated, among other things, that the Air Force had in the past retained Air Force members on active duty who had engaged in homosexual activity. After argument, Judge Gesell granted appellees’ motion for summary judgment in an oral opinion. He held, first, that there is no constitutional right to engage in homosexual activity; second, that under the standards he deemed to govern judicial review of military determinations there is a rational basis for the Air Force policy of separating airmen found to have engaged in homosexual conduct; and, third, that appellant had not proved that an exception had to be made in his case. At the same time the judge recognized the superior quality of Matlovich’s service and expressed his personal view that “it would appear that the Armed Forces might well be advised to move toward a more discriminatory and informed approach” to the problem of homosexuality — “to approach it in perhaps a more sensitive and precise way.” I On this appeal from the District Court’s award of judgment to the appellees, the parties first present to us the basic issue of whether private consensual homosexual activities between adults is protected by the Constitution. The Government urges that that question has been settled negatively by Doe v. Commonwealth’s Attorney, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976), summarily affirming 403 F.Supp. 1199 (E.D.Va.1975); that ruling, though summary, is said to be binding on us under the rule of Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). Appellant’s response is that, after Doe, the Supreme Court indicated that the issue was still open. See Carey v. Population Services Intl, 431 U.S. 678, 688 n.5, 594 n.17, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). Appellees’ riposte is that the reference in Carey to private consensual sexual behavior was confined by its context though not in terms to heterosexual conduct. Appellant insists, in turn, that the Court meant everything it said. II We do not reach these questions because a narrower problem looming before us requires remand of this case to the Air Force, and after further action by that Service renewed consideration by the District Court. The Air Force regulation expressly contemplates that exceptions can be made to the general policy of separating homosexuals (see note 1, supra), and the record shows that the Air Force has in the past retained members on active duty who had engaged in homosexual activity. With respect to Matlovich the Air Force said that it had considered whether to make an exception in his case but had decided against it. But what disturbs us is that it is impossible to tell on what grounds the Service refused to make an exception or how it distinguished this case from the ones in which homosexuals have been retained. The regulation (AFM 39-12, para. 2-103) gives only the most general of guidance when it limits exceptions to those “where the most unusual circumstances exist and provided that the airman’s ability to perform military service has not been compromised.” Also, “an exception is not warranted simply because the airman has extensive service” (emphasis added) or because of intoxication. No other pertinent standards are laid down. In this instance the Administrative Discharge Board was given by its Legal Advis- or only the most general of instructions on this point. After paraphrasing the exception provision of the regulation, the Legal Advisor said: “What constitutes most unusual circumstances cannot be defined with any great degree of precision. It must be based upon your experience with human nature, your understanding of the orderly conduct of the affairs of man, the very nature of the military environment as a separate and distinct segment of society with the full knowledge that military members are governed by a more strict set of rules of conduct and standards than is required and expected of the general public. The same rules apply to your understanding of what constitutes compromise of a military member’s ability to perform military service. You must consider all these factors that have been legally presented to you during this hearing.” No more light is shed by the Administrative Discharge Board’s conclusory finding, without any real explanation, that no exception should be made. The Correction Board is similarly unrevealing. It recognized that Matlovich had had an “outstanding” record but it then concluded summarily — without saying what was lacking — that that was not enough. The board went so far as to say that even if unusual circumstances existed that would not require retention; the existence of unusual circumstances “merely permits the retention if the service considers such action appropriate.” Obviously, the board did not consider such action “appropriate” here but it gives no hint why it would not be appropriate to retain appellant. The board merely concludes “that an outstanding military record without other unusual circumstances is not sufficient basis to compel a member’s retention” — and that the discharge board and the Secretary acted fairly. In confirming the Correction Board’s determination, the Secretary of the Air Force likewise said that an outstanding record was not enough and found no other “unusual circumstances” — but, again, he gave no hint (aside from a reference to instances involving intoxication, young airmen, and undue influence of a superior) what “unusual circumstances” there could be or what was missing in Matlovich’s case. What we have, then, is a serviceman with an admittedly outstanding record of considerable duration, with minimal sexual involvement with Air Force personnel and none with those with whom he worked and with substantial testimony that the Air Force community would be able to accept his homosexuality. Neither the Correction Board nor the Secretary (in confirming that board) suggested that his ability to perform military service had been compromised, and we do not understand the Administrative Discharge Board to have made such a finding either. What is missing, the Air Force says, are the “unusual circumstances” which have to exist to warrant retention even if the other conditions are satisfied. But what are “unusual circumstances,” or what they have been in past cases, is left uncertain and unknown. We are at sea as to the circumstances— aside from the exception for youths — in which the Air Force makes exceptions to its policy of eliminating homosexuals and when it refuses to make an exception. The absence of articulated standards, policies, or considerations — plus the absence of any reasoned explanation in this particular case-— makes it impossible to decide whether or not there has been an abuse of discretion in this instance or whether improper factors have played a material role. We suppose that everyone would admit that the Air Force could not decide, under its all-inclusive but unarticulated rubric, to retain only black homosexuals or only white ones, or homosexuals of one religion but not of others, or homosexuals of one ethnic background but not of others, or only homosexuals who were proteges of senior officers. We do not suppose that such blatantly improper distinctions entered into the decision in this case, but the almost-total lack of specificity in the Air Force’s determinations leads one to consider the possibility, for instance, whether Matlovich’s failure of retention may have been affected by his “going public” with his homosexuality and the publicity surrounding his case, and that if his homosexuality had been discovered and handled by the Air Force, without public notice, the result might have been different. If that factor entered into the refusal to retain, both appellant and the reviewing court are entitled to know it — so that appellant can challenge the propriety of reliance on that consideration and, if he does, the court can pass upon that contention. We do not say at this stage, because we do not know, that the Air Force cannot justify appellant’s discharge. What we say is that the Air Force should explicate more fully its reasons for refusing to retain appellant — as its regulation provides that it may do and its practice shows that it has done in other eases — so that the court can decide if it was arbitrary, capricious, or unlawful in exercising its discretion whether or not to retain Matlovich. Ill The normal rule where a discretionary administrative decision is to be reviewed by a court (other than on a de novo basis) is that the agency must give sufficient indication of the grounds for its exercise of discretion that the reviewing tribunal can appraise that determination under the appropriate standards of review (and the applicant for relief can challenge it). This basic concept has been reiterated time and again — in differing formulations and contexts but always centering on the need for the court, and the complaining party, to be given some helpful insight into the agency’s reasoning. See, e. g., United States v. Chicago, M., St. P. & P. R.R., 294 U.S. 499, 510-11, 55 S.Ct. 462, 467, 79 L.Ed. 1023 (1935) (“We must know what a decision means before the duty becomes ours to say whether it is right or wrong”); SEC v. Chenery Corp., 332 U.S. 194, 196-97, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947) (“It will not do for a court to be compelled to guess at the theory underlying the agency’s action * * * ); Baltimore & Ohio R.R. v. Aberdeen & Rockfish R.R., 393 U.S. 87, 92, 89 S.Ct. 280, 21 L.Ed.2d 219 (1968); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); Dunlop v. Backowski, 421 U.S. 560, 571-72, 573-74, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975); Kleppe v. Delta Mining, Inc., 423 U.S. 403, 409, 96 S.Ct. 816, 46 L.Ed.2d 591 (1976); Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 86, 88, 439 F.2d 584, 596, 598 (1971); Greater Boston Television Corp. v. F.C.C., 143 U.S.App.D.C. 383, 393, 444 F.2d 841, 851 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971); Standard Rate & Data Service, Inc. v. United States Postal Service, 189 U.S.App.D.C. 315 at 324, 584 F.2d 473 at 482; Public Media Center v. F.C.C., 190 U.S.App.D.C. 425 at 434-435, 587 F.2d 1322 at 1331-1332 (1978). The fundamental principle of reasoned explanation embodied in these (and comparable) decisions serves at least three interrelated purposes: enabling the court to give' proper review to the administrative determination; helping to keep the administrative agency within proper authority and discretion, as well as helping to avoid and prevent arbitrary, discriminatory, and irrational action by the agency; and informing the aggrieved person of the grounds of the administrative action so that he can plan his course of action (including the seeking of judicial review). We know of no reason why this umbrella principle should be inapplicable to the Air Force’s decision not to retain appellant — as its regulation expressly contemplated that it could do. The explicit provision for exceptions to the overall policy of separating homosexuals is binding on the Air Force, Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Roberts v. Vance, 119 U.S.App.D.C. 367, 370, 343 F.2d 236, 239 (1964), just as much as the general directive calling for discharge of homosexuals. And the procedure established for processing these contested cases shows that the Service was expected to support its determinations of separation by some reasoned explanation. The general Defense Department Regulations on enlisted administrative separations of all types — applicable to each of the armed services — describes an administrative discharge board (such as acted in this case) as “appointed to render findings based on facts obtaining, or believed to obtain, in a case and to recommend retention in the Service or discharge, with reason for and the type of separation or discharge certificate to be furnished.” 32 C.F.R. § 41.3(h) (1976). The enlisted man entitled to or granted such a board can have counsel and present available witnesses (through oral testimony or by deposition). 32 C.F.R. § 41.5(c). The board record shall be as prescribed by the Secretary of the particular Military Department but, “as a minimum, shall contain a verbatim record of the findings and recommendations”; if the board recommends discharge, it shall be “for a specified reason.” 32 C.F.R. § 41.-5(b). At the next level — that of the discharge authority (here, the commanding officer at Langley Air Force Base) — the regulations seem to preclude that officer from acting less favorably to the serviceman than the board recommended without indicating his reasons for the more severe treatment (see 32 C.F.R. § 41.5(d)); for instance, where the board recommends retention, the discharge authority may recommend separation to the Secretary “if he believes that separation is warranted by the circumstances of the particular case.” 32 C.F.R. § 41.5(d)(6). The same assumption that a reasoned explanation should exist and be given permeates the provisions on discharges for unsuitability and misconduct. The former prefaces its listing of specific grounds of unsuitability (including “homosexual or other aberrant sexual tendencies”) with the general requirements that the type of discharge shall be “as warranted by the member’s military record” and separation should be directed “when it has been determined that an individual is unsuitable for further military service.” 32 C.F.R. § 41.7(g). Similarly, determination of the type of misconduct separation calls for appraisal of “the particular circumstances in a given case” and separation for specific types of misconduct (including “sexual perversion * * * homosexual acts”) follow “when it has been determined that an individual is unqualified for further military service.” 32 C.F.R. § 41.7(i). These Defense Department directives are implemented and pointed up by Air Force regulations — including those contained in the portion of the Air Force Manual governing separation of enlisted personnel for unsuitability, unfitness or misconduct— which consistently stress the need for reasoned explanations and determinations in these circumstances. The letter of notification to the airman should give “specific reasons for the proposed discharge” which shall include an “itemization of the factual details which constitute recommendation for the allegations of unsuitability, unfitness or misconduct upon which recommendation for elimination is based.” AFM 39-12, paras. 2-18(a)(3), 2-60(a)(3), l-25(c)(2), 2-9(a)(3), l-25(a)(2). The administrative discharge board is primarily a “fact-finding and recommending board.” Its obligation is to “develop and review all information concerning the matter under consideration to arrive at clear logical findings of fact as to each allegation in the letter of notification and to recommend, on the basis of the findings, what action should be taken in the case.” AFM 39-12, para. 3-1; see also para. 2-18. These boards are also instructed (AFM 39-12, para. 3-6a) to follow the procedures in Air Force Regulations (AFR) 11-1 (“Administrative Practices: Boards of Officers for Conducting Investigations”). With respect to findings, AFR 11-1, para. 13. declares that the findings “will be the substance of the facts material to the issue as established by the evidence,” and such finding must be supported by evidence of record and “[a] finding should be made on each point in question before the board.” Recommendations are to be “appropriate to and consistent with the findings as well as consonant with applicable laws, regulations, policies and customs of the service, with due consideration for the best interests of the Government and the person concerned.” AFR 11-1, para. 14. To' us, this is the clear equivalent of an explicit requirement for a statement of reasons. Following the board proceedings, the convening authority gives his recommendation and forwards the complete file to the discharge authority. If the former disagrees with the board he must give his “reasons therefor.” AFM 39-12, para. l-31a. As for the discharge authority, the Air Force directives make it plain that he can agree with the board without making his own independent findings but that he cannot himself depart from the board to the detriment of the airman; if he thinks more severe action is warranted, or if he thinks higher authority should consider the matter in any case, he can forward the case “with his recommendation and reasons therefor” for Secretarial decision. AFM 39-12 (Change 6) May 12,1972, at 29, Table 2-B-1, n.1. In the light of these Defense Department and Air Force directives, we cannot escape the conclusion that the military has itself provided that in cases of this type a reasoned explanation should be made for any detrimental action ordered. The whole system of regulations is infused with this concept. And since the Air Force regulation on homosexuality (AFM 39-12, para. 2-103) expressly contemplates that retention in the service is an alternative in proper cases, the procedural regulations we have just summarized demand some reasoned explanation why that alternative is rejected in the case at hand. The history of this matter within the Air Force shows that it considered itself bound to give such reasons because it purported to do so, all along the line. The problem, as we have pointed out, is that no such reasoned explanation was given in a form which is intelligible to this court or permits any meaningful judicial review. It is established, of course, that the federal courts have the power and the duty to inquire whether a military discharge was properly issued under the Constitution, statutes, and regulations. See, e. g., Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958); Van Bourg v. Nitze, 128 U.S.App.D.C. 301, 307, 388 F.2d 557, 563 (1967); Hodges v. Callaway, 499 F.2d 417, 423 (5th Cir. 1974). In connection with such review the court can and should enforce a regulatory requirement for a meaningful explanation of the administrative determination. Van Bourg v. Nitze, supra, was such a case. 128 U.S.App.D.C. at 309, 388 F.2d at 565. So were Olenick v. Brucker, 107 U.S.App.D.C. 5, 273 F.2d 819 (1959), and Davis v. Brucker, 107 U.S.App.D.C. 152, 275 F.2d 181 (1960). A parallel line-of-decisions involves an application for discharge from service as a conscientious objector; the regulations controlling those requests required a statement of reasons for an adverse decision. This directive has been judicially recognized and enforced. Perhaps the leading decision is Judge Leventhal’s opinion for the Second Circuit in United States ex rel. Checkman v. Laird, 469 F.2d 773, 779-83, 787 (2d Cir. 1972). As that discussion pointed out, (i) “where the range of executive responsibility embraces the latitude to find in favor of the claimant on an issue, the matter must be considered, and if the conclusion is adverse, reasons must be stated, with support in a record basis in fact” (469 F.2d at 781); (ii) “the proper focus of a reviewing court is on the reasons given by the [board] and not on reasons that may come to light if and when a court rummages throughout the record in an effort to reconstruct on what basis the board might have decided the matter” (469 F.2d at 783); and (iii) the regulatory requirement for reasons “is a meaningful requirement, and one that cannot meaningfully be satisfied by a bare recitation * * of the ultimate statutory [regulatory] criteria * * * ” (469 F.2d at 787). Appellees seem to suggest that, in the nature of things, these principles cannot be used for the retention exception at issue here — that it is impossible for the service to specify “where the most unusual circumstances exist” and what constitutes a compromise of the airman’s “ability to perform military service.” We cannot accept such a contention. This problem is no more difficult than that presented in the conscientious objector cases, and there is no valid reason why a statement cannot be given which will show the reviewing court that improper considerations were not taken into account, that the particular airman was not treated differently from others in the same position, and that there is a rational basis for the refusal to retain this serviceman. The mere conclusion, tracking the terms of the regulation, that sufficient “unusual circumstances” do not exist in the particular case is inadequate compliance with the reasons requirement. See United States ex rel. Checkman v. Laird, supra. Undoubtedly the Air Force was much more specific and precise in its thinking when it passed upon Sgt. Matlovich’s case — and there is no good ground why he and the court should be screened off from that reasoning. That is true whatever the scope of judicial review of the service’s exercise of its discretion, a separate issue which we do not now touch. There are two means by which an administrative entity can develop standards for rational action in an area of formal or informal adjudication. The first is by advance promulgation of written rules, directives or formulated criteria; the other is through case-by-case decision making. See Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 86, 88, 439 F.2d 584, 596, 598 (1971); Standard Rate and Data Service, Inc. v. United States Postal Service, 189 U.S.App.D.C. 315, 584 F.2d 473 (1978) (concurring opinion of Judge Leventhal). There are advantages to the former method — in Judge Leventhal’s words, supra, “rulemaking assures that any modification in position will represent a generalized approach to a general problem, avoiding the uneasiness that results from the greater possibility of discrimination in a case-by-case approach” — but, as in Environmental Defense Fund, Inc. and Standard Rate & Data Service, Inc., supra, we leave to the Air Force the choice of the path it will pursue to clarify its policy on retention of homosexuals and the application of those standards to this case. In either event, the Secretary of the Air Force may do so through such permissible means as he considers appropriate. Accordingly, the decision granting summary judgment to the Government is vacated and remanded with instructions to remand to the Air Force for further proceedings consistent with this opinion. Appellant can of course seek judicial relief from any adverse determination made on this remand. Vacated and remanded. . This regulation provided for a general policy of discharging Air Force members determined to have performed homosexual acts. Exceptions to the policy were contemplated if “the most unusual circumstances exist and provided the airman’s ability to perform military service has not been compromised.” . This was Colonel Alton J. Thogersen, the second of the two appellees. . On the day before, October 21st, appellant filed the present action seeking to enjoin the discharge as invalid and for a declaratory judgment to that effect. A temporary restraining order was denied by the District Court and the discharge was then effected. . In his oral opinion, Judge Gesell said of Matlovich: “He has had a most commendable, highly useful service in the military over a long period of time, starting with the Air Force in 1963. The record fully discloses his qualifications and need only be briefly mentioned by the Court for purposes of this decision. “Here is a man who volunteered for assignment to Viet Nam, who served in Viet Nam with distinction, who was awarded the Bronze Star while only an Airman First Class, engaged in hazardous duty on a volunteer basis on more than one occasion, wounded in a mine explosion, revolunteered, has excelled in the" Service as a training officer, as a counselling officer and in the various social action programs and race-relation programs of the military, and has at all times been rated at the highest possible ratings by his superiors in all aspects of his performance, receiving in addition to the Bronze ' Star, the Purple Heart, two Air Force Commendation Medals and a Meritorious Service Medal.” . The Court said there that it had “not definitely answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private consensual sexual] behavior among adults” — and that it did not purport to answer that question in Carey. . In addition there are somewhat more specific criteria for cases involving participation in homosexual acts prior to entry into the Air Force, AFM 39-12, para. 2-103(d), but those are not applicable to Sgt. Matlovich whose homosexual activity occurred after entry. . The record before us contains nothing to the contrary. Judge Gesell’s evaluation of appellant’s service is quoted supra, at note 4. . We do not understand the Secretary’s reference (in confirming the Correction Board) to “youthful curiosity, intoxication, or undue influence of a person senior in years or grade” as exhausting the list of “unusual circumstances” even for past cases; the Secretary goes on to say summarily that he found no “other unusual circumstances” warranting an exception in Matlovich’s case (emphasis added). . The Air Force has agreed that it does not have an active program to identify and discharge homosexuals; the discharges only occur when homosexuals come to the official attention of the Air Force. Moreover, the Air Force stipulated that it does not seek to suppress heterosexual activity which is technically in violation of the Uniform Code of Military Justice or state laws. . Of course, this assumes, without deciding, that it is generally constitutional to separate servicemen who engage in private consensual homosexual conduct with adults, off-duty and off-base. . In the same general class are those rulings invalidating administrative action because the agency had no articulated standards governing its discretionary determinations, or requiring the adoption of such standards. See Hornsby v. Allen, 326 F.2d 605, 610, 612 (5th Cir.), rehearing denied, 330 F.2d 55 (1964); Holmes v. New York City Housing Authority, 398 F.2d 262, Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. Answer:
sc_issuearea	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. SMITH v. OHIO No. 89-5999. Decided March 5, 1990 Per Curiam. This case raises the single question whether a warrantless search that provides probable cause for an arrest can nonetheless be justified as an incident of that arrest. A divided Ohio Supreme Court answered that question in the affirmative, reasoning that the search was neither remote in time nor place from the arrest. We disagree. On a June evening, as petitioner and a companion exited a private residence and entered the parking lot of a YMCA, they were approached by two plainclothes officers of the Ash-land, Ohio, Police Department. The officers were driving-in an unmarked police vehicle. Petitioner was carrying a brown paper grocery bag with the words “Kash ’n Karry” and “Loaded with Low Prices” printed on the outside in a manner that the officers later described as “gingerly.” Neither officer knew petitioner or his companion. One of the two officers, Officer Thomas, exited the vehicle and, without identifying himself, asked petitioner to “‘come here a minute.’” 45 Ohio St. 3d 255, 256, 544 N. E. 2d 239, 240 (1989). Petitioner did not respond and kept walking. When Officer Thomas identified himself as a police officer, petitioner “threw the sack he was carrying onto the hood of [his] car and turned to face Thomas who was approaching.” Ibid. Officer Thomas asked petitioner what the bag contained; petitioner did not respond; Officer Thomas then rebuffed petitioner’s attempt to protect the bag, pushed petitioner’s hand away, and opened the bag. The drug paraphernalia discovered within provided probable cause for the arrest and evidence sufficient to support petitioner’s conviction for drug abuse. No contention has been raised in this case that the officer’s reaching for the bag involved a self-protective action necessary for the officer’s safety. See Terry v. Ohio, 392 U. S. 1 (1968). Although the Fourth Amendment may permit a brief detention of property on the basis of only “reasonable, articulable suspicion” that it contains contraband or evidence of criminal activity, United States v. Place, 462 U. S. 696, 702 (1983), it proscribes — except in certain well-defined circumstances — the search of that property unless accomplished pursuant to judicial warrant issued upon probable cause. See, e. g., Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 619 (1989); Mincey v. Arizona, 437 U. S. 385, 390 (1978); Katz v. United States, 389 U. S. 347, 357 (1967). That guarantee protects alike the “traveler who carries a toothbrush and a few articles of clothing in a paper bag” and “the sophisticated executive with the locked attaché case.” United States v. Ross, 456 U. S. 798, 822 (1982). The Ohio Supreme Court upheld the warrantless search of petitioner’s bag under the exception for searches incident to arrest. See United States v. Chadwick, 433 U. S. 1, 14-15 (1977); Chimel v. California, 395 U. S. 752, 763 (1969). The court stated that petitioner was not arrested until after the contraband was discovered in the search of the bag. 45 Ohio St. 3d, at 257, 258, 544 N. E. 2d, at 241, 242. It nonetheless held that the search was constitutional because its fruits justified the arrest that followed. That reasoning, however, “justifying] the arrest by the search and at the same time . . . the search by the arrest,” just “will not do.” Johnson v. United States, 333 U. S. 10, 16-17 (1948). As we have had occasion in the past to observe, “[i]t is axiomatic that an incident search may not precede an arrest and serve as part of its justification.” Sibron v. New York, 392 U. S. 40, 63 (1968); see also Henry v. United States, 361 U. S. 98, 102 (1959); Rawlings v. Kentucky, 448 U. S. 98, 111, n. 6 (1980). The exception for searches incident to arrest permits the police to search a lawfully arrested person and areas within his immediate control. Contrary to the Ohio Supreme Court’s reasoning, it does not permit the police to search any citizen without a warrant or probable cause so long as an arrest immediately follows. The State does not defend the reasoning of the Ohio Supreme Court, but rather contends that petitioner abandoned the bag when he threw it on his car and turned to face Officer Thomas. See Abel v. United States, 362 U. S. 217, 241 (1960); Hester v. United States, 265 U. S. 57, 58 (1924). That argument was unanimously rejected by the Ohio Supreme Court, 45 Ohio St. 3d, at 263, n. 6, 544 N. E. 2d, at 246, n. 6; id., at 266, 544 N. E. 2d, at 249 (Sweeney, J., dissenting); id., at 273-274, 544 N. E. 2d, at 255, n. 10 (Wright, J., dissenting), and we have no reason to disturb its conclusion. As the state court properly recognized, a citizen who attempts to protect his private property from inspection, after throwing it on a car to respond to a police officer’s inquiry, clearly has not abandoned that property. Cf. Rios v. United States, 364 U. S. 253, 262, n. 6 (1960). The motion for leave to proceed informa pauperis and the petition for writ of certiorari are granted, and the judgment of the Supreme Court of Ohio is Reversed. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:
songer_initiate	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. Eloise BEARD, as Administratrix for the Estate of Jeff Beard, the Deceased, Plaintiff-Appellant, v. Stanley B. ROBINSON, Roy Martin Mitchell, and Certain Officers of the Federal Bureau of Investigation, whose true identities are unknown to the plaintiff, Defendants-Appellees. No. 76-1708. United States Court of Appeals, Seventh Circuit. Argued Feb. 8, 1977. Decided Sept. 28, 1977. Harold C. Hirshman, Chicago, Ill., for plaintiff-appellant. Thomas P. Sullivan, U. S. Atty., Alexandra M. Kwoka, Asst. U. S. Atty., Ronald S. Barliant, Chicago, Ill, for defendants-appellees. Before BAUER and WOOD, Circuit Judges, and SHARP, District Judge. The Hon. Allen Sharp, United States District Court for the Northern District of Indiana, is sitting by designation. BAUER, Circuit Judge. In this appeal we must determine whether damage claims brought against a state officer under the Civil Rights Acts, 42 U.S.C. § 1981, et seq., and against federal officers under the Fourth Amendment survive the death of the injured party, and whether the claims are time-barred. The district court held that some of the claims did not survive the death of the injured party and that the other claims were time-barred. We reverse. I. Plaintiff Eloise Beard brought this action in the district court as administratrix of the Estate of Jeff Beard, who allegedly was murdered by the defendants. Plaintiff sued Stanley Robinson, a Chicago policeman at the time of the events underlying the suit, under the Civil Rights Acts, 42 U.S.C. § 1981, et seq., and the other defendants, Federal Bureau of Investigation personnel, under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The complaint alleges that the defendants conspired to deprive, and actually deprived, Jeff Beard of his constitutional rights in the course of an FBI investigation into corruption among members of the Chicago Police Department. As part of the investigation, the FBI purportedly employed defendant William O’Neal to covertly gather information about the Department by engaging in criminal acts with Robinson and others. Defendant Roy Mitchell served as O’Neal’s FBI contact. With the assistance of Mitchell and other unknown FBI agents, Robinson and O’Neal allegedly planned and committed Jeff Beard’s murder on or about May 17, 1972, when they seized Beard in Chicago under the pretext that they had a warrant for his arrest, searched and handcuffed him, and drove him to Indiana, where Robinson clubbed and shot him to death. No warrant for Beard’s arrest ever existed. The complaint, filed on September 27, 1975, seeks both compensatory and punitive damages from the defendants for violating Beard’s rights under the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the Constitution. Upon motion of the defendants, the district court dismissed the complaint. The court reasoned that our decision in Spence v. Staras, 507 F.2d 554, 557 (7th Cir. 1974), mandates that federal civil rights actions survive for the benefit of an injured party’s estate only to the extent that the applicable state law permits such claims to survive. Looking to the Illinois Survival Act, Ill.Rev. Stat. ch. 3, § 339, the court concluded that the instant claims survived only insofar as they sought damages for the physical injuries Beard suffered. Relying on Jones v. Jones, 410 F.2d 365 (7th Cir. 1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970), the court then dismissed the action altogether because the physical injury claims were barred by Illinois’s two-year statute of limitations. Ill.Rev.Stat. ch. 83, § 15. II. Survival We turn first to the question of whether the claims alleged survive Beard’s death. Plaintiff presents several theories for the survival of her action. She argues that the action as a whole survives (1) under the Illinois Survival Act, both as an action to recover damages for “injuries] to the person” and as an action “against officers for misfeasance, malfeasance, or non-feasance”; (2) under Illinois common law; and (3) under federal common law. We hold, as a matter of federal law, that under Illinois law the action survives “against officers for misfeasance, malfeasance or non-feasance” and thus need not consider plaintiff’s other arguments. Neither the Civil Rights Acts nor the Supreme Court’s decision in Bivens speaks to the abatement or survival of actions brought thereunder. Faced with the absence of a governing federal rule of decision, most courts that have considered the question of the survival of federal civil rights claims have looked to state law, either on the authority of 42 U.S.C. § 1988 or simply because reference to state law obviated the need to fashion an independent federal common law rule. E.g., Spence v. Staras, 507 F.2d 554, 557 (7th Cir. 1974); Hall v. Wooten, 506 F.2d 564 (6th Cir. 1974); Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); Pritchard v. Smith, 289 F.2d 153 (8th Cir. 1961). At least one court has found it necessary to fashion an independent federal common law rule when state law, which would have defeated the survival of the federal claim, was deemed inconsistent with the strong federal policy of insuring the survival of federal remedies for violations of federal civil rights. Shaw v. Garrison, 545 F.2d 980 (5th Cir. 1977). Because we believe the borrowing of state law in the circumstances of this case is completely consistent with the federal policies underlying Bivens and the Civil Rights Acts, we have no occasion to fashion an independent federal common law rule here. With respect to plaintiff’s civil rights claims, 42 U.S.C. § 1988 authorizes our reference to state law insofar as it is “not inconsistent with the Constitution and laws of the United States.” With respect to plaintiff’s Bivens claim, the adoption of state law likewise seems warranted since it is consistent with the federal policies underlying Bivens. The applicable Illinois law that we adopt as the governing federal rule is found in the Illinois Survival Act, Ill.Rev.Stat. ch. 3, § 339, which provides: “In addition to the actions which survive by the common law, the following also survive: actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property or for the detention or conversion of personal property, actions against officers for misfeasance, malfeasance, or nonfeasance of themselves or their deputies, actions for fraud or deceit, and actions provided in Section 14 of Article VI of ‘An Act relating to alcoholic liquors’, approved January 31, 1934, as amended.” In view of the Illinois Supreme Court’s declaration that this act is “remedial in its nature and is to be liberally construed,” McDaniel v. Bullard, 34 Ill.2d 487, 491, 216 N.E.2d 140, 143 (1966), we believe the district court erred in relying on Kent v. Muscarello, 9 Ill.App.3d 738, 293 N.E.2d 6 (2d Dist. 1973), for the proposition that this action does not survive as an action “against officers for misfeasance, malfeasance, or nonfeasance of themselves or their deputies.” To be sure, Kent held that a malicious prosecution action against two Barrington, Illinois policemen did not survive the death of the injured party. Kents holding that the policemen were not “officers” for the purposes of the Illinois Survival Act, however, was based on the fact that the policemen were not deemed “officers” at common law, by statute or by municipal ordinance. For the latter proposition, Kent relied on Krawiec v. Industrial Commission, 372 Ill. 560, 564, 25 N.E.2d 27 (1939), which held that policemen of the City of Chicago Heights, Illinois were not made officers of the City by municipal ordinance and thus were entitled to recover under the Illinois Workmen’s Compensation Act. However, Krawiec itself distinguished City of Chicago v. Industrial Commission, 291 Ill. 23, 125 N.E. 705 (1920), which held that City of Chicago policemen were made officers by city ordinances and thus were not entitled to workmen’s compensation benefits. Since City of Chicago has not been overruled by the Illinois Supreme Court and thus still stands for the proposition that Chicago policemen are officers of the v City, we feel compelled to follow City of - Chicago and hold that Chicago policemen are also “officers” for purposes of the Illinois Survival Act. Accordingly, we hold that the instant action brought against defendant Robinson, sued in his capacity as a Chicago policeman, survives Beard’s death. See Holmes v. Silver Cross Hospital of Joliet, Illinois, 340 F.Supp. 125, 129 (N.D.Ill.1972). Moreover, inasmuch as FBI agents are deemed federal officers under federal law, see Lowenstein v. Rooney, 401 F.Supp. 952, 960-62 (E.D.N.Y.1975), we believe that plaintiff’s Bivens action also can be characterized as an action “against officers” within the meaning of the Illinois Survival Act. Accordingly, adopting as federal law the Illinois Survival Act, we hold that plaintiff’s Bivens action against the federal defendants survives as well. III. Statute of Limitations Neither the Civil Rights Acts nor Bivens fixes a time limit within which suits brought thereunder must be commenced. As to plaintiff’s civil rights claims, however, precedents establish that the applicable limitations period is that which a court of the State where the federal court sits would apply had the action been brought there. O’Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914); Duncan v. Nelson, 466 F.2d 939, 941 (7th Cir.), cert. denied, 409 U.S. 894, 93 S.Ct. 116, 34 L.Ed.2d 152 (1972); see 42 U.S.C. § 1988. Hence, we look to Illinois law to determine the statute of limitations applicable to defendant Robinson. As to plaintiff’s Bivens claims, the parties to this action agree that the applicable limitations period is that which would govern an analogous action brought in a court of the forum state. Regan v. Sullivan, 417 F.Supp. 399 (E.D.N.Y.1976); Lombard v. Board of Education of the City of New York, 407 F.Supp. 1166, 1171 (E.D.N.Y.1976), rev’d on other grounds, 502 F.2d 631 (2d Cir. 1974); Ervin v. Lanier, 404 F.Supp. 15, 20 (E.D.N.Y.1975); see Fine v. City of New York, 529 F.2d 70, 76-77 (2d Cir. 1975). Accordingly, we will also look to Illinois law to determine the statute of limitations applicable to the federal defendants. We note, however, that our borrowing of state limitations periods to determine the timeliness of both these claims is conditioned on the state limitations period being consistent with the policies underlying the federal rights of action. Occidental Life Insurance Co. v. EEOC, - U.S. -, -, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977); see 42 U.S.C. § 1988. Although the parties agree that we should look to Illinois law to determine the applicable statute of limitations, they disagree as to which Illinois statute of limitations should be applied. The plaintiff, relying on Wakat v. Harlib, 253 F.2d 59 (7th Cir. 1958), argues that Illinois’s five-year statute of limitations governing “all civil actions not otherwise provided for” by the Illinois Limitations Act, Ill.Rev.Stat. ch. 83, § 16, governs both her claims. Plaintiff notes that under Illinois law, this limitations period applies to causes of action created by statute, Blakeslee’s Storage Warehouses v. City of Chicago, 369 Ill. 480, 17 N.E.2d 1, 4 (1938); Parmelee v. Price, 208 Ill. 544, 70 N.E. 725 (1904); Gibralter Ins. Co. v. Varkalis, 115 Ill.App.2d 130, 253 N.E.2d 605, 608-09 (1969), aff’d 46 Ill.2d 481, 263 N.E.2d 823 (1970); Lyons v. Morgan County, 313 Ill.App. 296, 40 N.E.2d 103 (1942), and that the action created by the Civil Rights Acts is such a cause of action. The same statute of limitations should govern the claims brought against the federal officers, says plaintiff, because the Bivens action is analogous to actions brought under the Civil Rights Acts, and it would be incongruous to apply a different limitations period to such .actions merely because federal rather than state officers are being sued. The defendants, relying on Jones v. Jones, 410 F.2d 365 (7th Cir. 1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970), argue that Illinois’s two-year statute of limitations for “injuries] to the person, false imprisonment, and abduction,” Ill.Rev.Stat. ch. 83, § 15, should be applied to plaintiff’s civil rights claims because the actions governed by this statute are the substantive offenses that most closely resemble the misconduct in which the defendants here are alleged to have engaged. With respect to the Bivens action, defendants contend that the two-year limitations period should also govern because (1) Bivens actions are not based upon a statutory liability like civil rights actions, but are actions to redress “constitutional torts,” and (2) the two-year statute of limitations governing the instant civil rights claims should be applied to the analogous Bivens claims as well. We turn first to the question of which state statute of limitations period applies to plaintiff’s statutory civil rights claims and confess at the outset that the state of the law in this Circuit regarding the limitations period applicable to claims brought under federal civil rights acts is less than lucid. In Wakat v. Harlib, supra, the plaintiff sued several Chicago police officers who arrested him without a warrant or probable cause and detained him six days without charging him with a crime, without allowing him to see an attorney, and without allowing him to appear before a judge for a bail hearing. The officers also coerced him into signing a confession later used in court to convict him, searched his home and workplace, and seized his personal property without a warrant or probable cause. The plaintiff’s action was based on 42 U.S.C. §§ 1983 and 1985, and we held his claims were governed by Illinois’s five-year statute of limitations covering causes of action created by statute. Subsequently, Wakat’s holding was followed or cited without disapproval in at least the following cases: Inada v. Sullivan, 523 F.2d 485 (7th Cir. 1975); Duncan v. Nelson, 466 F.2d 939, 941 (7th Cir.), cert. denied, 409 U.S. 894, 93 S.Ct. 116, 34 L.Ed.2d 152 (1972); Rinehart v. Locke, 454 F.2d 313, 315 (7th Cir. 1971); Weber v. Consumers Digest, Inc., 440 F.2d 729, 731 (7th Cir. 1971); Baker v. F. & F. Investment, 420 F.2d 1191, 1197-98 (7th Cir.), cert. denied sub nom. Universal Builder’s Inc. v. Clark, 400 U.S. 821, 91 S.Ct. 40, 27 L.Ed.2d 49 (1970); Amen v. Crimmins, 379 F.Supp. 777, 779 (N.D.Ill.1974); Holmes v. Silver Cross Hospital of Joliet, Illinois, 340 F.Supp. 125, 128 (N.D.Ill.1972). In Jones v. Jones, supra, however, we took a different tack toward the problem of ascertaining the applicable limitations period for federal civil rights claims. The Jones plaintiff had brought suit under 42 U.S.C. § 1983 against his ex-wife, members of her family, her lawyers, and judges of the Illinois Circuit and Appellate Courts for combining to deprive him of his constitutional rights in a series of court actions involving his ex-wife’s claims for alimony and child support that ultimately resulted in his serving a jail term. After determining that the judges were immune from suit and that the lawyers could not be sued under the Civil Rights Acts because they were not acting under color of state law, we looked to “the substance of the alleged injury” to determine the applicable limitations period and held that the two-year statute of limitations contained in Ill.Rev.Stat. ch. 83, § 15 governed the action against the remaining defendants because the damages sought resulted from an injury to the plaintiff’s person, false imprisonment, and malicious prosecution. We attempted to distinguish Wakat on the ground that the earlier case involved a conspiracy claim brought under 42 U.S.C. § 1985, rather than a Section 1983 claim. Subsequently, Jones was cited with approval in Baker v. F. & F. Investment Co., 489 F.2d 829, 837 (7th Cir. 1973), and followed by at least three district courts in the Circuit. Cage v. Bitoy, 406 F.Supp. 1220 (N.D.Ill.1976); Klein v. Springborn, 327 F.Supp. 1289, 1290 (N.D.Ill. 1971); Skrapits v. Skala, 314 F.Supp. 510 (N.D.Ill.1970). Upon reflection, it seems to us that Wakat and Jones cannot stand together, for underlying the inconsistent results reached therein are two inconsistent approaches to determining the applicable statute of limitations. The Wakat approach treats all claims founded on the Civil Rights Acts as governed by the five-year Illinois statute of limitations applicable to all statutory causes of action that do not contain their own limitations periods. Jones, on the other hand, looks beyond the fact that a statutory cause of action has been alleged and seeks to characterize the facts underlying plaintiff’s claim in terms of traditional common law torts for purposes of determining the applicable state statute of limitations. Faced with these two conflicting approaches that have generated inconsistent results within the Circuit, we now believe it is necessary to overrule Jones and adopt the Wakat rule as the law of the Circuit for the following reasons. We believe our choice of the Wakat rule is compelled by the fundamental differences between a civil rights action and a common law tort. The Civil Rights Acts do not create “a body of general federal tort law.” Paul v. Davis, 424 U.S. 693, 701, 9S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976). Rather, they “creat[e] rights and impos[e] obligations different from any which would exist at common law in the absence of statute. A given state of facts may of course givf rise to a cause of action in common-law tort as well as to a cause of action under Section 1983, but the elements of the two are not the same. The elements of an action under Section 1983 are (1) the denial under color of state law (2) of a right secured by the Constitution and laws of the United States. Neither of these elements would be required to make out a cause of action in common-law tort; both might be present without creating common-law tort liability.” Smith v. Cre-mins, 308 F.2d 187, 190 (9th Cir. 1962) (footnote and citations omitted). As Justice Harlan suggested with regard to the Civil Rights Acts, “a deprivation of a constitutional right is significantly different from and more serious than a violation of a state right and therefore deserves a different remedy even though the same act may constitute both a state tort and the deprivation of a constitutional right.” Monroe v. Pape, 365 U.S. 167, 194, 81 S.Ct. 473, 488, 5 L.Ed.2d 492 (1961) (concurring opinion). By following the Wakat approach of applying a uniform statute of limitations, we avoid the often strained process of characterizing civil rights claims as common law torts, and the “inconsistency and confusion [that] would result if the single cause of action created by Congress were fragmented in accordance with analogies drawn to rights created by state law and the several different periods of limitation applicable to each state-created right were applied to the single federal cause of action.” Smith v. Cremins, supra at 190. Moreover, we note that the Wakat approach of looking to a general state statute of limitations prevails in most of our sister circuits, while the Jones approach of looking to the underlying tort to determine the applicable state statute of limitations has «been followed consistently only by the ’Third Circuit. We thus hold that the Illinois five-year statute of limitations applies to statutory claims brought under the Civil Rights Acts. Jones v. Jones, 410 F.2d 365 (7th Cir. 1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970), is hereby overruled. Turning to the Bivens claims, we recognize plaintiffs argument for application of the same statute of limitations that we apply to civil rights claims is a compelling one. A contrary result could lead to the incongruous application of inconsistent limitations periods to different members of a single conspiracy, based solely on whether an officer alleged to have committed the constitutional violation was employed by the state or federal government. Cf. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339, 1346-47 (2d Cir. 1972) (immunity of state and federal officers). On the other hand, since Bivens actions are not creatures of statute, the state law rationale used above for application of the five-year statute of limitations is not appropriate to Bivens claims. With these considerations in mind, we look to the Illinois statutes of limitations that we might apply. Again we are faced with a choice between the two-year limitations periods for torts in Ill.Rev.Stat. ch. 83, § 15, and the five-year limitations period for “actions not otherwise provided for” in Ill.Rev.Stat. ch. 83, § 16. We can eliminate the first choice for the same reasons we refused to apply the Illinois statute of limitations for torts to the state defendant here. Like civil rights claims, Bivens claims for the deprivation of constitutional rights cannot be equated with state tort claims. Both the elements of the two types of claims and the underlying rights asserted are distinctly different. Regan v. Sullivan, 417 F.Supp. 399, 403 (E.D.N.Y.1976). The Supreme Court recognized these differences in Bivens itself: “[A]s our cases make clear, the Fourth Amendment operates as a limitation upon the exercise of federal power regardless of whether the State in whose jurisdiction that power is exercised would prohibit or penalize the identical act if engaged in by a private citizen.” 403 U.S. at 392, 91 S.Ct. at 2002. “The interests protected by state laws regulating trespass and the invasion of privacy, and those protected by the Fourth Amendment’s guarantee against searches and seizures, may be inconsistent or even hostile.” 403 U.S. at 394, 91 S.Ct. at 2003. The only other applicable statute of limitations is the five-year catch-all period of limitations we applied to the instant civil rights claims. For those claims, we held that the five-year period applied because they were based on a liability created by statute, for which Illinois courts apply the five-year limitations period. For Bivens -type claims, we think it inappropriate to apply the five-year statute of limitations on that basis, but apply that statute because no other Illinois statute of limitations can appropriately be applied. This conclusion is reinforced by the knowledge that an identical statute of limitations period will be applied to all the defendants in this action, thus avoiding the inconsistent result of applying different statutes of limitations to defendants who are charged with engaging in a single conspiracy. In summary, we hold that this survivors action may be brought by the plaintiff and that her claims are not time-barred. Accordingly, the district court’s judgment is reversed, and the case is remanded for further proceedings. REVERSED and REMANDED. . Ill.Rev.Stat. ch. 3, § 339 provides: “In addition to the actions which survive by the common law, the following also survive: actions of replevin, actions to recover damages for an injury to the person (except slander or libel), actions to recover damages for an injury to real or personal property, actions against officers for misfeasance, malfeasance, or nonfeasance of themselves or their deputies, actions for fraud or deceit, and actions provided in Section 14 of Article VI of ‘An Act relating to alcoholic liquors’, approved January 31, 1934, as amended.” . 42 U.S.C. § 1988 provides in pertinent part: “The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the Constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.” . State survival statutes commonly have been adopted as a matter of federal law for application to other federal causes of action for which there is no federal rule regarding abatement or survival. E. g., Cox v. Roth, 348 U.S. 207, 75 S.Ct. 242, 99 L.Ed. 260 (1955) (Jones Act); Just v. Chambers, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903 (1941) (admiralty tort); Van Beeck v. Sabine Towing Co., 300 U.S. 342, 57 S.Ct. 452, 81 L.Ed. 685 (1937) (Merchant Marine Act). See also the other cases cited in Brazier v. Cherry, supra, and Pritchard v. Smith, supra. . Ill.Rev.Stat. ch. 83, § 16 provides: “Except as provided in Section 2-725 of the ‘Uniform Commercial Code’, approved July 31, 1961, as amended, and Section 11-13 of ‘the Illinois Public Aid Code’, approved April 11, 1967, as amended, actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.” . Ill.Rev.Stat. ch. 83, § 15 provides: “Actions for damages for an injury to the person, or for false imprisonment, or malicious prosecution, or for a statutory penalty, or for abduction, or for seduction, or for criminal conversation, shall be commenced within two years next after the cause of action accrued.” . Apart from the Jones Court’s failure to recognize that Wakat was based on 42 U.S.C. § 1983 as well as Section 1985 and thus could not be distinguished merely on that ground, Wakat’s reasoning could have been applied without strain to the Jones facts; the action brought by Jones under 42 U.S.C. § 1983 could just as well have been characterized as a statutory right of action governed by Illinois’s five-year statute of limitations. Likewise, the damages Wakat sought arose from injuries that could have been characterized as injuries to his person, false imprisonment, and abduction, all mentioned in Ill.Rev.Stat. ch. 83, § 15. In view of our overruling Jones, the portions of this opinion relative to our holding have been circulated among all the judges of this Court in regular active service. No judge favored a rehearing en banc with respect to that holding. Judge Tone did not participate in the Court’s action. . E. g., Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir. 1974); Howell v. Cataldi, 464 F.2d 272, 277 (3d Cir. 1972). The Second and Ninth Circuits uniformly apply state limitations periods for statutory causes of action. E. g., Rosenberg v. Martin, 478 F.2d 520, 526 (2d Cir.), cert. denied, 414 U.S. 872, 94 S.Ct. 102, 38 L.Ed.2d 90 (1973); Swan v. Bd. of Higher Education of the City of New York, 319 F.2d 56, 60 (2d Cir. 1963); Donovan v. Reinbold, 433 F.2d 738, 741-42 (9th Cir. 1970); Smith v. Cremins, 308 F.2d 187 (9th Cir. 1962). The Fourth Circuit, in cases arising out of Virginia, applies that State’s general limitations period for personal injuries rather than its shorter limitations period for intentional torts. That court reasons that a federal civil rights action is more serious than a common law tort and thus deserves a longer statute of limitations. Almond v. Kent, 459 F.2d 200, 203-04 (4th Cir. 1972), followed in Runyon v. McCrary, 427 U.S. 160, 179-82, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), and Allen v. Gifford, 462 F.2d 615 (4th Cir. 1972). There is a split in authority in the Fifth Circuit. Some cases apply state limitations periods for statutory actions. White v. Padgett, 475 F.2d 79, 85 (5th Cir.), cert. denied, 414 U.S 861, 94 S.Ct. 78, 38 L.Ed.2d 112 (1973); Franklin v. City of Marks, 439 F.2d 665 (5th Cir. 1971); Nevels v. Wilson, 423 F.2d 691 (5th Cir. 1970). Others apply the state statute of limitations that would govern a common law action that could be brought in a state court upon the same facts. Shaw v. McCorkle, 537 F.2d 1289 (5th Cir. 1976); Shank v. Spruill, 406 F.2d 756 (5th Cir. 1969); Beard v. Stephens, 372 F.2d 685 (5th Cir. 1967). The most recent cases in the Sixth Circuit have applied state limitations periods for statutory actions. Mason v. Owens-Illinois, Inc., 517 F.2d 520 (6th Cir. 1975); Garner v. Stephens, 460 F.2d 1144 (6th Cir. 1972). Contra, Madison v. Wood, 410 F.2d 564 (6th Cir. 1969); Bufalino v. Michigan Bell Tel. Co., 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_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. CAMBIST FILMS, INC., a Corporation, Appellant, v. Robert W. DUGGAN, District Attorney for Allegheny County, Commonwealth of Pennsylvania, Edward G. Crone, Chief of Detectives, Allegheny County, Commonwealth of Pennsylvania, Joseph M. Loughran, District Attorney for West-moreland County, Commonwealth of Pennsylvania and Edward Gordon, Chief of Detectives of Westmoreland County, Commonwealth of Pennsylvania. No. 17985. United States Court of Appeals Third Circuit. Argued Nov. 7, 1969. Decided Dec. 30, 1969. David F. Alpern, Alpern & Alpern, Pittsburgh, Pa., for appellant. Henry A. Martin, Asst. Dist. Atty., Greensburg, Pa. (Joseph M. Loughran, Dist. Atty., Greensburg, Pa., on the brief), for appellee. Before MARIS, SEITZ and STAHL, Circuit Judges. OPINION OF THE COURT MARIS, Circuit Judge. The plaintiff in this case is the owner of distribution rights to a motion picture film, titled “The Female”. In March, 1969 the plaintiff contracted with four theatres in Allegheny County and one in Westmoreland County, both in the Western District of Pennsylvania, to exhibit the picture for a week’s run. On March 7 and 8, 1969 Allegheny County detectives viewed a portion of the showing of the film at each of the four theatres in that county, after which they seized the prints of the film being projected at those theatres without warrants, alleging the picture to be obscene, and instituted criminal proceedings against the theatre managers for violation of the Pennsylvania obscenity statute. 18 P.S.(Pa.) § 4524. On March 13, 1969 Westmoreland County detectives viewed the entire showing of the film at the theatre at which it was being shown in that county and then seized, without a warrant, the print of the film being projected in that theatre and instituted criminal proceedings against the theatre manager and the projectionist. On March 17, 1969 the plaintiff filed the present action in the District Court for the Western District of Pennsylvania against the district attorneys of Allegheny and Westmoreland Counties and their chiefs of detectives for an order to compel the return of the prints and an injunction against any criminal prosecutions arising out of the seizure of the prints. After a hearing the district court filed an opinion, 1969, 298 F.Supp. 1148, and entered an order directing the Allegheny County defendants to return the prints seized in that county and dismissing the action as to the Westmore-land County defendants. The order did not enjoin any of the criminal prosecutions. From the order dismissing the action as to the Westmoreland County defendants the plaintiff took the appeal which is now before us. Briefly stated, the rationale of the district court was that the seizure of the film prints without a warrant was lawful if made incident to a lawful arrest without a warrant for a crime committed in the presence of the arresting officer. The court further reasoned that the arrest in Westmoreland County was lawful because the arresting officers were in a position to determine that the film was obscene, having viewed it in its entirety, but that the arrests in Allegheny County were not valid, and therefore the seizures were invalid, because the officers, not having viewed the film in its entirety, were not in a position to determine that “its dominant theme, taken as a whole, [had] an appeal to prurient interest”, the test laid down by the Pennsylvania statute. 18 P.S.(Pa.) § 4524(a). We cannot agree with the basic premise of the district court that police officers may, after viewing a motion picture themselves, determine whether it is obscene and, if they determine it to be obscene, proceed to arrest the exhibitor and seize the film without a warrant. On the contrary, it is now settled that the First and Fourteenth Amendments to the Constitution require that there be an adversary judicial hearing and determination of obscenity before a warrant may be issued to search and seize alleged obscene materials. Marcus v. Search Warrants, 1961, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127; A Quantity of Copies of Books v. State of Kansas, 1964, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809. Such a hearing and determination is, a fortiori, required where officers, as in this case, seize without a search warrant materials alleged by them to be obscene. For such a nonjudieial ex parte determination does not afford the owner due process of law. State v. Parisi, 1962, 76 N.J.Super. 115, 183 A.2d 801; Stentel v. Smith, 1963, 18 A.D.2d 458, 240 N.Y.S.2d 200; Flack v. Municipal Court for Anaheim-Fullerton J. D., 1967, 66 Cal.2d 981, 59 Cal.Rptr. 872, 429 P.2d 192; City News Center, Inc. v. Carson, D.C.Fla.1969, 298 F. Supp. 706; Sokolic v. Ryan, D.C.Ga.1969, 304 F.Supp. 213. We are in complete accord with the views expressed by the Supreme Court of California in Flack v. Municipal Court, supra, in which case, which involved facts similar to those in the present case, the court said: [59 Cal. Rptr. at 878, 879, 429 P.2d at 198, 199] “While it is settled that in the ordinary case a search incident to an arrest is not ‘unreasonable’ if the arrest itself is lawful * * * the First Amendmént compels more restrictive rules in cases in which the arrest and search relate to alleged obscenity. The lesson of Marcus, Quantity of Books * * * is that since constitutionally protected speech is involved, ‘Determination by police officers of the status of suspected books, papers, etc. — whether to be classified as obscene or not obscene — is not enough protection to the owner to constitute due process.’ (Italics added) ■3v “* * * It is incongruous to condemn, as vesting too abundant discretion in the enforcing officer, a search and seizure made on an overly broad warrant * * * while permitting officers an unfettered discretion in seizures effected without a warrant under the guise of being incident to arrest. In both circumstances constitutionally compelled procedural safeguards are lacking * * *” It follows that the seizure of the print of the plaintiff’s film “The Female” by the Westmoreland County detectives on March 13, 1969 was illegal and that so much of the order entered by the district court as dismissed the action against the Westmoreland County defendants must be reversed and the cause remanded for the entry of an appropriate order directing those defendants to return the print to the plaintiff. In its notice of appeal the plaintiff complained of the failure of the order of the district court to enjoin the prosecution of the criminal cases arising in connection with the seizure of the film prints. This point, if pressed, would involve the more difficult question of the power of a federal court to interfere with the prosecution of a criminal case in the state court. However, it was not pressed on appeal and we do not consider it. So much of the order of the district court as dismissed the action with respect to defendants Joseph M. Loughran and Edward Gordon will be reversed and the cause will be remanded to the district court with directions to enter an order directing those defendants forthwith to return to the plaintiff the print of the motion picture film, titled “The Female”, which was seized by Westmore-land County detectives on March 13, 1969. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
sc_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. MOYA et ux. v. DeBACA, dba DeBACA & CO. CREDIT & COLLECTION AGENCY, et al. No. 996, Misc. Decided June 23, 1969. William G. Fitzpatrick, Jr., for appellants. Claud S. Mann for DeBaca et al., and Boston E. Witt, Attorney General, and James V. Noble, Assistant Attorney General, for the State of New Mexico, appellees. Per Curiam. The motion for leave to proceed in forma pauperis is granted. The motion to dismiss is granted and the appeal is dismissed. Mr. Justice Harlan and Mr. Justice Brennan would vacate the judgment and remand the case in light of Sniadach v. Family Finance Corp. of Bay View, ante, p. 337. 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_summary	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". ROSENBERG et al. v. McLAUGHLIN, Collector of Internal Revenue. No. 6872. Circuit Court of Appeals, Ninth Circuit. June 19, 1933. As Modified on Denial of Rehearing Sept. 6, 1933. Adolphus E. Graupner, of San Francisco, Cal., for appellants. I. M. Pockham, U. S. Atty., and Esther B. Phillips, Asst. U. S. Atty., both of San Francisco, Cal. (C. M. Charest, Gen. Counsel, and J. C. Swayze and Charles K. Hoover, Attys., Bureau of Internal Revenue, all of Washington, D. C., of counsel), for appellee. Before WILBUR and SAWTELLE, Circuit Judges, and KERRIGAN, District Judge. KERRIGAN, District Judge. Appellants have sought by a bill in equity to enjoin the sale of an undivided interest in certain real property under distraint proceedings to collect a deficiency in federal estate tax. This interest was part of the estate of Isidore Rosenberg, deceased, the father of appellants, who will be hereafter referred to as the testator. The appeal is from the order granting the collector’s motion to dismiss the bill of complaint. If the collector has no right to proceed by distraint to collect the deficiency in question, appellants are entitled to injunctive relief. The issues are narrowed, and the only questions involved relate to the right of the Bureau of Internal Revenue to proceed by way of distraint under the state of facts alleged in the bill of complaint. The testator died May 23, 1923, while the Revenue Act of 1921 (42 Stat. 227) was in force. Less than a year after his death his.widow, who was the executrix of his estate, filed an estate tax return showing a tax due of $7,791.04 a.nd paid the tax on the same day. Afterwards, and prior to the distribution of the estate, the executrix filed a claim for refund. While the claim for refund was pending, the estate was distributed. Shortly thereafter the executrix died. When it became apparent that a refund would be allowed, one of the appellants was appointed administrator with the will annexed of the testator’s estate. A refund in the sum of $4,-787.60 was paid to the administrator June 5, 1925, and distributed to the heirs. Subsequent to the effective date of the Revenue Act of 192-6, the commissioner determined a deficiency in tax against the estate in the sum of ■ $7,839.07, being $3,501.47 more than the refund and mailed to the administrator the notice required by section 308 (a) of the Revenue Act of 1926. (26 USCA § 1101.) The administrator appealed to the Board of Tax Appeals and the commissioner’s determination of the deficiency was upheld on February 27, 1929. Appeal of Rosenberg, 14 B. T. A. 1340. The commissioner on July 27,1929, assessed the additional estate tax in the full amount of the deficiency, notwithstanding the payment of the $3,501.47 by the administrator previous to the assessment. Thereafter the appellee mailed notice of distraint to the administrator for. the imp aid balance of the deficiency. Appellants are the children of the testa^tor and his widow and are the sole heirs and distributees of the testator’s estate either in their own right or as distributees of their mother’s estate. Appellants contend: First, that the only method by which the deficiency may be collected is by transferee proceedings under section 316 (a) of the Revenue Act of 1926 (26 USCA § 1119 (a), and, second, if the government is not restricted to that remedy, that there is no existing lien upon the property for the deficiency. The appellee contends that the transferee proceedings are an additional and alternative remedy for the collection of the tax and that there is a valid and subsisting lien on the property enforceable by distraint. The collector was not restricted to the transferee proceedings provided by section 316 (a) of the Revenue Act of 1926 to collect a deficiency in tax against an estate which had been distributed before the determination of the deficiency, and might follow any. other valid procedure for collection. The use of the word “shall,” upon which great stress is laid by appellants, is not mandatory and does not confine the collector to a single method of procedure. A similar question of statutory interpretation was before this court in regard to section 280 (a) of the same act (26 USCA § 1069 (a), which provides for transferee proceedings to collect income taxes. In the case of Leighton v. U. S. (C. C. A.) 61 F.(2d) 530, affirmed by the Supreme Court on May 29, 1933, 53 S. Ct. 719, 77 L. Ed. -, it was contended that the collector was precluded from proceeding to collect the tax by suit in equity to impress the property in the hands of transferees with a trust by the new section, and fcould only enforce collection by means of transferee proceedings. In •that ease there was a deficiency in income tax determined against a corporation after its property had been distributed to its stockholders. Section 280 (a) is word for word the same as section 316 (a) except in so far as one deals with income tax and the other deals with estate tax. The word “shall” is used in exactly the same context in both statutes. It was held in that ease that the use of “shall” did not make the procedure mandatory, and that the remedy was not exclusive but cumulative on the authority of Phillips v. Commissioner, 283 U. S. 589, 51 S. Ct. 608, 610, 75 L. Ed. 1289, and U. S. v. Updike, 281 U. S. 489, 50 S. Ct. 367, 74 L. Ed. 984. Two quotations from the case of Phillips v. Commissioner, supra, may well be repeated here. “This remedy is in addition to proceedings to enforce the tax lien or actions at law and in equity.” Further in the opinion it is said, “The power of Congress to provide an additional remedy for the enforcement of existing liabilities is clear.” There is no valid reason for distinguishing between the two statutes and the decision in the Leigh-ton Case is conclusive upon this point. The only remaining question is: Is there a valid and subsisting lien upon the property enforceable by distraint? If such a lien attached to the property it arose under section 409 of' the Revenue Act of 1921 (42 Stat. 283) which provided: “That unless the tax is sooner paid in full, it shall be a lien for ten years upon the gross estate of the decedent, except that such part of the gross estate as is used for the payment of charges against the estate and expenses of its administration, allowed by any court having jurisdiction thereof, shall be divested of such lien. * * # )) It is argued by the appellants that the clause “unless the tax is sooner paid in full” ¡refers to the due date of the tax as provided in section 407 of the same act, which is one year from the date of the decedent’s death; and that no lien arises until such due date. Appellants further argue that the tax in the instant ease having been returned, and the amount returned having been paid in full prior to such due date, no tax lien ever attached to the propert3’’. These contentions are not in accord with the law. The language used in Page v. Skinner (C. C. A. 8) 298 F. 731, 732, though assailed as merely dicta, correctly states the law as to when the property is impressed with the tax lien. “The imposition took effect at the time of death and the tax became at once a lien on the property of the estate, enforceable by sale, if not paid, on proceedings in court. N. Y. Trust Co. v. Eisner, 256 U. S. 345, 41 S. Ct. 506, 65 L. Ed. 963, 16 A. L. R. 660.” One test of the accrual of a tax so that the tax is saved from the effect of repealing statutes has been whether or not a lien for the tax attached to .the property before the repeal and it has been held in a line of inheritanee tax eases commencing with Hertz v. Woodman, 218 U. S. 205, 30 S. Ct. 621, 54 L, Ed. 1001, that the tax accrued or was imposed at the decedent’s death and the estate of the decedent was impressed with a lien at the same time. U. S. v. Ayer (C. C. A. 1) 12 F.(2d) 194; Crooks v. Loose (C. C. A. 8) 36 F.(2d) 571; O’Brien v. Sturgess (D. C.) 39 F.(2d) 950, affirmed (C. C. A. 3) 45 F.(2d) 1017; Ewbank v. U. S. (D. C.) 37 F.(2d) 383, affirmed (C. C. A. 7) 50 F.(2d) 409; U. S. v. Cruiksliank et al. (D. C.) 48 F.(2d) 352. The thing’ that is taxed is the transfer of the decedent’s estate upon his death. The full amount of the tax is fixed as a liability at that time as provided by the statutes ilion in force and the gross estate of the decedent is impressed with a lien for the full amount of the tax. In the light of these, principles, it is clear that the clause of said section 409, “unless the tax is sooner paid in full,” refers to the termination of the lien by payment in full during the ten-year period-mot to the imposition of the lien on the due date of the tax. Reliance is placed upon the language used in U. S. v. Woodward, 256 U. S. 632, 41 S. Ct. 615, 65 L. Ed. 1131, to the effect that an estate tax accrues one year after death if so provided by statute, and appellants argue therefrom that there is neither liability nor lien for the tax prior to accrual. This ease was not one concerned .with the incidence of the tax. It considered the term accrual from the standpoint of permissible deduction under an income tax provision. The effect of the decision in the Woodward Case was limited to a narrow and different proposition in the ease of U. S. v. Mitchell, 271 U. S. 9, 46 S. Ct. 418, 70 L. Ed. 799. Applying these principles to the instant case, it follows that a lien for the full amount of the estate tax was impressed upon the gross estate of Isidore Rosenberg at the date of his death. Since the correct amount of the tax has never been paid in full, there is a present lien upon the property for the unpaid portion of the tax. The fact that the deficiency determined included the amount of the refund does not affect our conclusions. In the case of Levy v. Commissioner (C. C. A.) 48 F.(2d) 725, in this circuit it was held that the amount of a refund might properly be included in the determination of a deficiency. We are not confronted with the same situation as in the ease of Kelley v. U. S., 30 F.(2d) 193 (C. C. A. 9), where there was no deficiency determined and the only amount claimed was that of the refund. The payment of the difference between the amount of the deficiency and that of the refund after the determination of the deficiency docs not affect the existence of the tax lien. The collector has the right to enforce the lien by distraint and sale as provided in sections 3187 and 3188 of the Revised Statutes (26 USCA §§ 116, 117). Although these sections apply to the enforcement of general liens created under Revised Statutes, § 3186, (26 USCA § 115) they also apply to the enforcement of special liens created by other statutes. Blacklock v. U. S., 208 U. S. 75, 28 S. Ct. 228, 52 L. Ed. 396. A tax lien on property may he enforced by seizure and sale under a warrant of distraint where, at the time the lion attached, the property belonged to the person liable to pay the tax. Hartman v. Bean, 99 U. S. 393, 25 L. Ed. 455; Mansfield v. Excelsior Refinery Co., 133 U. S. 326,10 S. Ct. 825, 34 L. Ed. 162; Blacklock v. U. S., supra. For estate tax purposes, the executor or ndministiator is the person liable to pay the tax. Since the estate tax lien attaches immediately upon the death of a decedent, the property at that time may be regarded as belonging to the taxpayer, that is, the administrator or executor. Property which constituted the decedent’s estate and passed into the hands of the executor or administrator was impressed with the lien and is subject to seizure and sale. Judgment affirmed. 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_procedur	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. MINNEAPOLIS NAT. BANK OF MINNEAPOLIS, KAN., et al. v. LIBERTY NAT. BANK OF KANSAS CITY. No. 1028. Circuit Court of Appeals, Tenth Circuit. Aug. 7, 1934. La Rue Royee, of Salina, Kan. (C. W. Burch and B. I. Litowieh, both of Salina, Kan., on the brief), for appellants. Wallace Sutherland, of Kansas City, Mo. (A. L. Cooper, E. A. Neel, and William E. Kemp, all of Kansas City, Mo., on the brief), for appellee. Before PHILLIPS, MeDERMOTT, and BRATTON, Circuit Judges. BRATTON, Circuit Judge. This is a suit instituted by Liberty National Bank, of Kansas City, Mo., against Minneapolis National Bank, of Minneapolis, Ottawa County, Kan., a failed national bank -in process of liquidation, and J. G. Hammond, its receiver to establish a trust against the assets of the bank and to compel its payment as a preferred claim, or in the alternative as a common claim. Goldie C. Morton was engaged in the business of raising, buying, feeding, and fattening cattle in Ottawa county for sale on the market. For many years prior to the events giving rise to this litigation, he had been a customer of Minneapolis Bank of which Roy C. Gafford was president. and directing officer. Morton and Gafford were intimate personal friends, and for about fifteen years Gafford bad arranged credit for Morton with which to conduct his business. Gafford frequently charged Morton’s notes to his account in the bank as they matured, paying them in that manner. The financial needs of cattle growers in that part of the state were beyond the ability of the local banks to serve. As a result, the officers of the hanks located in Ottawa eounty organized the Central Kansas Cattle Loan Company which made loans to stockmen and rediscounted the notes with outside banks. The Guaranteed Finance Investment Company was organized later for a similar1 purpose. Gafford was elected president of both companies. Morton secured loans through one and perhaps both of those sources, and plaintiff rediscounted notes and mortgages executed by other stockmen in that manner. But in October, 1928, plaintiff discontinued that practice and determined to take future notes and mortgages direct from the stoekgrower to itself, using its own forms for that purpose. It made Morton a loan of $17,000 in .December, 1928, taking therefor a note due ninety-one days thereafter secured by a chattel morí gage on two hundred and sixty head of cattle then being fed for the market, one hundred and fifty hogs, and five thousand bushels of corn. Gafford arranged with plaintiff to make the loan. The, proceeds, less a discount charge thereon, were credited to the Minneapolis bank on the hooks of plaintiff. The Minneapolis bank then credited Morton’s account with a corresponding sum. The mortgage was filed for record in Ottawa county four days after its execution and it forbade the sale or removal of the chattels from their then location without the written consent of the mortgagee. In January, 1929, less than a month after the noto and mortgage were executed and without plaintiff’s knowledge or consent, Morton shipped one hundred and forty head of the cattle to Kansas City and'sold them on the market, the sales being made by commission companies. The commission companies, proceeding through regular clearing house channels and in compliance with general directions theretofore received from the Minneapolis bank, deposited the proceeds, aggregating $13,806.32, in Fidelity National Bank and that hank planed them to the credit of the Minneapolis bank. The credit slips relating thereto merely stated that such deposits had been made by direction of Morton. The Minneapolis bank thereupon credited Morton’s checking account with that sum. It was subsequently checked out, the account being overdrawn on January 22d, 23d, and 26th. The Minneapolis hank closed February 9th. At that time the balance in Morton’s account was $6,963.26, but he owed the bank about $21,000, and the receiver thereafter credited the note with the balance on deposit. Plaintiff was a depositary of the Minneapolis bank, and at the time the latter closed its balance on deposit with the former was $2,2,67.17. After learning all the facts, plaintiff instituted suits in Missouri to recover from the commission companies and certain packing companies the value of the cattle sold by the-former and purchased by the latter. A settlement was effected through which the commission companies paid plaintiff $3,600, of which $600 was applied to attorneys’ fees and expenses and $3,000 to the Morton, note. Plaintiff also applied the balance on its books to the credit of the Minneapolis bank on the note in the nature of a set-off. These credits, together with others not involved here, reduced the note to $5,686.03. Plaintiff sought recovery in that amount and its establishment as a preferred claim, contending that at the time the Minneapolis hank received the deposits made to its credit in the Fidelity National Bank, at the time it placed the sum to Morton’s credit, and at the time it was subsequently withdrawn and expended, it knew that the money represented proceeds of sales of cattle covered by plaintiff’s mortgage and that its acts constituted a wrongful misappropriation, misapplication, and retention of such money. Defendants denied knowledge of the source of the money in question and specifically contended, among other things, that by the institution of the suits against the commission companies and the packing companies, with knowledge of all the facts, plaintiff barred and estopped itself to maintain this action. A cross-petition was interposed, in which it was alleged that plaintiff wrongfully applied the $3,267.17 on the Morton note as a set-off, and recovery for that sum was prayed. The court rendered judgment for plaintiff for the full amount sought, established and allowed it as a preferred claim, directed the receiver to pay it as such, and denied recovery on the cross-petition. The ease is here on appeal. It is urged at the outset that plaintiff erroneously instituted this action at law. The relief sought is equitable in nature, that is io impress a trust upon the assets of the bank now in the custody of the receiver, but the parties treated the suit as one at law. No request was made that it be transferred to the equity side of the docket and the question now raised was not otherwise presented to the trial court. Trial by jury was waived in writing.' All issues were tried fully and defendants were not prejudiced by the procedure followed. Arkansas Anthracite Coal & Land Co. v. Stokes (C. C. A.) 277 F. 625. In these circumstances, we treat the case as one in equity and review the record accordingly. Liberty Oil Co. v. Condon Nat. Bank, 260 U. S. 235, 43 S. Ct. 118, 67 L. Ed. 232. The effect of the institution of the suits against the commission companies and the packing companies in Missouri, followed by-settlement and payment of a substantial sum, is the next question engaging our attention. The suits were plainly for conversion of mortgaged property with recovery of the price paid or the market value of the chattels as the remedy. The doctrine of election of remedies is a harsh one disfavored in equity, and should not be unduly extended. Friedrichsen v. Renard, 247 U. S. 207, 38 S. Ct. 450, 62 L. Ed. 1075; Metropolitan Life Ins. Co. v. Childs Co., 230 N. Y. 285, 130 N. E. 295, 14 A. L. R. 658. But if two inconsistent remedies are' available, the exercise of one by any decisive act such as the institution of a suit with full knowledge of the facts, precludes the subsequent exercise of the other. Upon learning all the facts plaintiff was entitled either to disaffirm the voidable transaction and sue for recovery of the converted chattels and if recovery in specie could not be had, then for their market value, or to affirm the sale and pursue the proceeds thereof into the hands of the Minneapolis bank if it had knowledge of the facts relating to the source of the fund. Both remedies were appropriate, but they were inconsistent because the former rested upon a disaffirmance of the transaction and the latter upon ratification of it. The institution of the suits in Missouri, followed by settlement and acceptance of the money paid in discharge of the claim there asserted, constituted an election to repudiate the transaction in toto and to claim the cattle or their value. After thus exercising its election of remedy, plaintiff cannot now affirm the sale, pursue the proceeds thereof and assert that the Minneapolis bank received them impressed with a trust in its favor. Those positions are inconsistent. Taking one constitutes an estoppel against assuming the other. United States v. Oregon Lumber Co., 260 U. S. 290, 43 S. Ct. 100, 67 L. Ed. 261; Midland Savings & Loan Co. v. Trademen’s Nat. Bank (C. C. A.) 57 F.(2d) 686. In an effort to avoid that barrier, plaintiff relies upon a provision contained in the written stipulation through which the suits in Missouri were settled, in which it was recited that the parties thereto should not be prejudiced in their right to file claims, suits or actions against the Minneapolis bank or its receiver. That does not change the situation. Neither the Minneapolis bank nor its receiver was a party to the agreement and hence they are not foreclosed from effectively urging the institution of the suits and their settlement in the manner indicated as an estoppel against plaintiff now asserting an inconsistent remedy here. Coming to the cross-petition, the doctrine of set-off or counterclaim usually implies and rests upon the existence of reciprocal demands, mutual and subsisting between the same parties. It cannot be invoked if there is lack of mutuality in obligation. For the reasons previously discussed, the Minneapolis bank was not indebted to plaintiff in any sum. It follows that plaintiff wrongfully applied the deposit because there was no obligation to off-set, nor any debt against which it could be charged as a counterclaim. Libby v. Hopkins, 104 U. S. 303, 26 L. Ed. 769. The receiver, therefore, was entitled to judgment against plaintiff on the cross-petition. The judgment is reversed, and the cause remanded for further proceedings not inconsistent herewith. Reversed and remanded. 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	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. ARMOUR & COMPANY, Respondent. No. 3353. Circuit Court of Appeals, Tenth Circuit. June 30, 1947. Mozart G. Ratner, of Washington, D. C. (Gerhard P. Van Arkel, Gen. Counsel, Morris P. Glushien, Associate Gen. Counsel, A. Norman Somers, Asst Gen. Counsel, Joseph B. Robison, and Arnold Ordman, all of Washington, D. G, on the brief), for Petitioner. Kenaz Huffman, of Denver, Colo. (Frederick R. Baird, Ray F. Feagans, and Paul E. Blanchard, all of Chicago, 111., and Huffman, Sutliff & Rogers, of Denver, Colo., on the brief), for respondent. Before BRATTON, HUXMAN, and MURRAH, Circuit Judges. PER CURIAM. On the authority of National Labor Relations Board v. Jones & Laughlin Steel Corp., 67 S.Ct. 1274, and National Labor Relations Board v. E. C. Atkins & Co., 67 S.Ct. 1265, an order of enforcement will be entered herein. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_origin	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. AGUDO et al. v. SANCHO, Treasurer of Puerto Rico. No. 3179. Circuit Court of Appeals, First Circuit. March 15, 1937. Leopoldo Feliu, of San Juan, P. R., for appellants. William C. Rigby and Nathan R. Margold, both of Washington, D. C., and B. Fernandez Garcia, of San Juan, P. R., for appellee. Before BINGHAM, WILSON, and MORTON, Circuit Judges. BINGHAM, Circuit Judge. This is a complaint in the nature of an action at law to recover license taxes in the amount of $32,825, alleged to have been paid under protest, on the ground that the statute of Puerto Rico imposing the tax is illegal and void. In the District Court of San Juan, where the action was brought, the defendant demurred to the complaint on the ground that it did not state facts sufficient to sustain a cause of action. ’ In that court the demurrer was sustained for the reason that the plaintiffs in bringing their complaint under Act No. 8 of April 19, 1927, had not complied with the provisions of sections 1 and 5 of that act in that they had not attached to their complaint receipts for the taxes paid under protest or certified copies of them, and therefore could not maintain their action. The plaintiffs, however, were granted ten days in which to amend their complaint by attaching such receipts, but failed to avail themselves of the opportunity. Instead they requested the District Court to decide whether the statute imposing the tax was a valid law. In compliance with this request the District Court took under consideration that question and held that the statute imposing the tax was a valid one. The plaintiffs appealed to the Supreme Court of Puerto Rico, and in their assignments of error complained that the District Court erred in sustaining the demurrer upon both grounds. In the Supreme Court the judgment of the District Court was affirmed upon the second ground. The first ground was not passed upon for the reason, as it said, that it “would have only been important ■ in case the bill [the Act in question] had been declared invalid.” It is from this judgment that the present appeal is prosecuted. By their assignments of error in this court the appellants’ only complaint is that the Supreme Court erred in holding that the statute imposing the tax was a valid law. It appears in the complaint, and in the “concurrent resolution” there referred to, that the plaintiffs Antonio and Ramon Agudo were partners doing business as Agudo Bros, and were the owners of a number of slot machines on which, up to April 25, 1933, they had paid taxes at the rate of $10 every three months on each machine without objection; that, after that time, the treasurer of Puerto Rico, by reason of the legislation in question, required that they pay a tax of $75 every three months on each slot machine which they owned and used in their business; and that, thereafter, for a given length of time, they paid the increased taxes under protest, and then brought this suit to recover the increased amount which they had been required to pay over and above the $10 quarterly for each machine, which they had previously paid. The underlying question is , whether the statute under which the increased taxes were levied and paid was a valid law. In regard to this it appears that the bill increasing the amount of the tax quarterly per machine was duly passed by both Houses of the Legislature of Puerto Rico; that the only question as to the bill having become a valid law is that the enrolling clerk, whose duty it was to make a fair copy of the bill as it passed both Houses and transmit it to the Governor for his approval, in enrolling the bill which he sent to the Governor, through error or otherwise, failed to insert in the enrolled bill the clause contained in the bill as it passed both Houses — “a tax of seventy-five ($75) dollars a quarter is levied” — and in its place inserted the words “a tax is levied which shall not exceed seventy-five ($75) dollars a quarter.” When the Legislature discovered the mistake it passed the “concurrent resolution” referred to in the complaint and sent it to the Governor in an endeavor to bring the matter to his attention and effect a correction. The Governor having this information, which contained a complete copy of the bill as it passed both Houses and was recorded in their journals, and having the enrolled bill before him, struck out the clause inserted during the enrollment of the bill and restored the clause which had been omitted and which was contained in the bill as it passed both Houses of the Legislature. It is because of what took place in the enrollment of the bill, and the action of the Governor in making the correction before approving and attesting it with his signature, that the plaintiffs base their contention that the bill never became a valid law, — that the Governor, in doing what he did, acted in contravention of the provisions of section 34 of the Organic Act of Puerto Rico of March 2, 1917 (chapter 145, 39 Stat. 951, 960-962 [48 U.S.C.A. § 822 et seq.]). The facts in this case do not disclose that any of the provisions of section 34 of the Organic Act of Puerto Rico were not complied with or were in any way violated. It is not claimed that the bill as originally drawn was not properly passed in each House and entered upon the journal of each House, nor that the presiding officer of each House did not, in the presence of the House over which he presided, sign the bill after its title had been publicly read, nor that the fact of signing was not entered in the journal of each body. The provisions of that section contemplate that upon the passage of a bill by both Houses it shall be presented to the Governor for his approval and, if he approves it, he shall do so within ten days thereafter. But there is no provision in the Organic Act and no statute of Puerto Rico has been called to our attention, and none has been found by us, providing how or by whom a bill passed by the two Houses shall be prepared for presentation and presented to the Governor. Section 34 of the Organic Act undoubtedly contemplates that the Legislature should transmit to the Governor for his action a fair copy of the bill as passed by the two Houses so that he may act thereon as provided in that section, and this is clearly what the Legislature was attempting to do through the so-called enrollment clerk. It is idle to say that, if the enrollment clerk, as an instrumentality of the Legislature, failed to send a fair copy of the bill to the Governor, the Legislature might not; on becoming aware of the error and while still in session, cause its correction by duly notifying the Governor of the error; and this is what the Legislature did by its concurrent resolution, for at the end of that resolution it set forth the entire bill as it passed each House of the Legislature, so that the Governor had before him a true copy of the bill and simply corrected the bill as enrolled by the clerk to conform to the truth and as requested by the Legislature in its resolution. What was done was not an attempt to amend the bill, as the plaintiffs seem to think. There was no occasion for changing or amending the bill as it passed both Houses. The only thing done or attempted was to have a true copy of the bill as passed by both Houses presented to the Governor for his approval and signature, and this was done, not in violation of, but in fulfillment of, the requirements of section 34 of the Organic Act. See State ex rel. Ball v. Hall (1935) 130 Neb. 18, 263 N.W. 400; Opinion of Justices, 76 N.H. 601, 81 A. 170; Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L. Ed. 294; Harwood v. Wentworth, 162 U.S. 547, 16 S.Ct. 890, 40 L.Ed. 1069; Flint v. Stone Tracy Co., 220 U.S. 107, 143, 31 S.Ct. 342, 55 L.Ed. 389, Arin.Cas.l912B, 1312. We are also of the opinion that the District Court of San Juan did not err with relation to the first question: Whether the plaintiffs having failed to attach to their complaint, in accordance with section 5 of Act No. 8 of April 19, 1927, the receipts which they were required to obtain (section 1 of the act) upon paying taxes under protest, could maintain their complaint? This question is open to the appellee, in support of the judgment, though he did not take a cross-appeal. Morley Construction Co. et al. v. Maryland Construction Co., 299 U.S. -, 57 S.Ct. 325, 81 L.Ed. -, decided February 1, 1937. Section 1 of that act provides that a taxpayer aggrieved by having to pay a tax shall, on making payment, obtain a tax receipt signed by the collector or official in charge of the collection of taxes “specifically stating whether the said protest refers to the whole or to a part of the tax paid under protest, and setting forth the exact amount protested.” Section 3 provides that the taxpayer “who shall have paid under protest the whole or part of any tax may, within the term of one year from the date of payment, sue the Treasurer of Puerto Rico * * * to secure the return of the amount protested.” In that section it is also further provided that if the final decision is favorable to the taxpayer “the Treasurer of Puerto Rico shall proceed to return to him the amount directed in the decision” with interest “from the date of the filing of the complaint in court or on the petition of the taxpayer, the Treasurer shall credit him with the total amount to be returned, to be applied to the payment of any tax already due and unpaid or to become due in the future; Provided, That said credit may be transferred by the taxpayer, and then the Treasurer of Puerto Rico shall credit it to the assignees, for all purposes of the law.” And Section 5 provides that “any taxpayer filing a claim [complaint] against the Treasurer of Puertp Rico in accordance with the provisions of this Act, shall attach to the said claim [complaint] the receipt for the tax paid under protest, or a certified copy thereof.” It is apparent from a reading of the act that the procurement of the tax receipts on making the payments, the attachment of them to the complaint, and the bringing of a suit within one year from the date of payment to recover the protested taxes, are conditions to the maintenance of the suit there authorized against the people of Puerto Rico or its treasurer. The requirement that the tax receipt shall be attached to the complaint is manifestly reasonable, especially in view of the provisions in section 3 that the credit, if any, arising therefrom may be transferred by the taxpayer and that the treasurer shall credit it to the assignee. A like question was before this court in Long v. Norman, 289 F. 5. In that case one question was whether the provisions of section 98, chapter 60, of the General Laws of Massachusetts of 1921 afforded an adequate remedy for the recovery of a tax paid under protest and whether the conditions imposed were reasonable. There the statute required that a suit to recover the tax should be commenced within three months after its payment, and after the taxpayer had signed a written protest. We held that the requirements that the taxpayer, on paying the tax, made a written protest and bring suit within three months were reasonable. And in doing so we said at page 9 of 289 F. “The only restriction upon its exercise [the exercise of the remedy] is that the tax shall be paid under a written protest signed by the aggrieved party, and suit commenced within three months thereafter — entirely reasonable conditions.” Here the tax receipts, if obtained on the payment of the tax and, at the time of the commencement' of the suit, were owned and controlled by the plaintiffs, could readily have been attached to the complaint when filed, or certified copies of them attached, but they were not and, so far as the record discloses, never have been, though ample' opportunity to do so was afforded in the District Court of San Juan. . The judgment of the Supreme Court of Puerto Rico is affirmed, with costs to the appellee in this court. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_genresp2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. AMERICAN LAKES PAPER CO. V. NEKOOSA-EDWARDS PAPER CO. et al. No. 5454. Circuit Court of Appeals, Seventh Circuit. May 20, 1936. Cyril A. Soans and William E. Anderson, both of Chicago, 111., for appellant. Merrell E. Clark and John Vaughan Groner, both of New York City, and Charles W. Hills, Jr., of Chicago, 111., for appellees. Before SPARKS and ALSCHULER, Circuit Judges, and BRIGGLE, District Judge. SPARKS, Circuit Judge. Appellant sued the Nekoosa-Edwards Paper Company for infringement of claims 1 to 12, inclusive, of Seaborne Letters Patent, No. 1,517,018. The Nekoosa. Company was the customer of appellee B. F. Goodrich Rubber Company. That company intervened and assumed the defense, which was non-infringement, and invalidity on account of lack of invention. The District Court sustained both defenses and dismissed the bill, and from that decree this appeal is prosecuted. The patent was issued November 25, 1924, upon an application filed November 24, 1923, and all rights thereunder were assigned to American Lakes Paper Company. The patent is for a “Paper Making Machine,” but the alleged invention is confined to watermarking rolls for such machines. The specified object was “to provide improved means whereby a web of paper as it passes through a paper making machine may be impressed with designs or marks commonly termed ‘watermarks’ which serve to identify or give distinctive character to the paper.” As illustrative of the disclosure, Seaborne in his specification, and appellant in its brief, set forth with some particularity the prior state of the art. ■ The impression of “watermarks” for two purposes is emphasized: (1) To identify bond or other writing paper in such a manner and at such stage of its manufacture that the “identification marks” will not be so distinct as to interfere with writing or typing thereon, (2) to give distinctive character to the paper, or “decorative marking,” commonly used in wrapping paper, in such manner and at such stage in its manufacture, that the design is impressed in the surface of the finished paper and is clearly visible at all times. In the prior art the marking rolls for those purposes commonly consisted of two distinct types, which, together with their alleged disadvantages, the patentee and appellant set forth. The roll which in the prior art was commonly used for “decorative marking” is typified throughout the record and argument by United States Patent No. 733,709, issued to Farwell, July 14, 1903. Such roll was ordinarily used in conjunction with the drying cylinder of the machine and was provided with a metal design-bearing surface which was “crowned” to compensate for the springing of the roll, and was wrapped with muslin through which the design was impressed upon the paper. As a disadvantage of this type, appellant notes the expense and delay occasioned by the frequency with which the muslin wrappings had to be replaced. The other type of marking roll formerly used in machines to which the alleged invention relates is typified in the record and argument by United States Reissue Patent No. 12,218, to Behrend as of May 10, 1904, In his specification, Seaborne said that this type “comprises one or more rolls upon the peripheries of which are secured marking types or plates of resilient material * * * made as narrow, endless bands of soft rubber, the types or impression surfaces upon the bands consists of harder rubber vulcanized to the soft rubber bands which afford a cushion for the impression types or surfaces. In practice this * * * marking roll is found objectionable for a variety of reasons, the most serious one of which is that it is impossible to vulcanize the soft rubber on to the surface of the metal roll or otherwise rigidly and satisfactorily attach it thereto, so that the soft rubber base or cushion will not slip or creep slightly under the strain or force necessary to effect the impression to the paper web. Such creeping or slipping of the soft rubber that forms a cushion for the harder rubber type or impression surfaces speedily destroys the accuracy of the impressions upon the paper web, and also hastens the wearing out of the marking types or surfaces and of the cushions carrying the same.” Another objection urged by patentee to this type was the inequality of impression upon the paper web when marking very wide webs, caused by the tendency of the long roll to spring at its center. Patentee further noted the “mechanical limitation^ to the width of rubber bands that can be made and adapted for slipping over the ends of the rolls, and any inequality of pressure at different points of the roll must necessarily cause such bauds to unequally slip or creep and thus destroy the uniformity of the impressions produced thereby.” Claims 4, 8 and 12 are typical of the several groups of claims and are set forth in the margin. It was claimed by Seaborne, and is now urged by appellant, that all the objections to Farwell and Behrend, and their types, as hereinbefore referred to were met and fully overcome by the patent in suit. We insert Seaborne’s Figure 4: H is a metal cyclinder which is covered with a layer of hard rubber, h, vulcanized thereon and forming preferably a continuous sleeve or tube around the surface of FI. Over h and vulcanized thereto is another layer or sleeve of soft rubber, h1, and over the layer of soft rubber, h*, and vulcanized thereto, is an outer layer or sleeve of hard rubber, h2. The soft rubber layer, h1, affords a cushion for the outer layer, h2, of hard rubber in or on the surface of which is to be formed the designs, type, or the like, whereby the marking or ornamenting of the paper web will be effected. Any designs which are desired to be impressed upon the surface of the paper web will be ground, formed or cut upon the outer surface of h2. When it is desired to modify or soften the effect of the marking roll and to give the impressions an appearance resembling a fabric weave, the outer surface of h2 may be covered with one or more layers of textile fabric, such as muslin or the like, K. This, after being wrapped around the roll, will have its ends suitably fastened to prevent it from slipping or working loose. It may be in tubular form so as to be slipped over the end of the roll and shrunk thereon. By providing the surface of H with a layer of hard rubber vulcanized thereto, all possibility of any slipping or creeping occurring between IF and h is avoided, and h affords a hard rubber base to which the soft rubber layer, h1, of the cover may be securely vulcanized. The patent further describes a modification of the alleged invention in which the marking surface, instead of being an endless sleeve of -hard rubber, consists of a number of spaced individual, hard rubber marking plates, each of which is backed by cushion rubber. This modification was subsequently eliminated by disclaimer, which will be discussed later. We mention it at this time in order to get a complete picture of patentee’s disclosure. A consideration of the prior art is quite convincing that the patent disclosure here must be confined to the particular means for anchoring the cushion layer to the metal core. The location of the Seaborne roll was not new. His preferred location was adjacent the drying cylinder, as in Farwell, but he permitted a variation in location so as to permit cooperation with any other roll, as in Behrend. It was not novel to crown a very long roll in order to compensate for springing; nor to grind or cut or form the designs in or on the outer surface of h2; nor to wrap the marking roll with muslin if desired, for these features were all disclosed by Farwell. The hard rubber design-bearing surface backed by a cushion of soft rubber was likewise disclosed by Behrend, and the most serious objection urged to Behrend by Seaborne was the impossibility of vulcanizing the soft rubber cushion to the metal core. It was the effect of this supposed impossibility which he claimed to have circumvented by his disclosure. His solution of the problem was merely the interposition between the metal roll and the soft rubber cushion of a layer of hard rubber to which both the metal surface and the soft rubber cushion could be satisfactorily secured. The District Court, however, found that this expedient was not new but that it had been common and well-known in the rubber roll art for many decades. That conclusion seems to be amply supported by the prior patents and prior uses introduced in evidence, and we adhere to the ruling. Mayall, No. 125,595; Fukuda, No. 1,417,240; Hett, No. 662,862; Schmitz German Patent, No. 71,762. It is quite true that the rolls of these cited patents, save Schmitz, were never used for making decorated wrapping paper, but they were extensively used in closely related fields, and the rubber layers performed precisely the same functions as in the patent in suit. Schmitz disclosed a paper mill press roll converted into a watermarking roll by applying a design-bearing device of the same material as the roll or its coating, but of a particular degree of hardness. It is urged, however, that Schmitz did not contemplate using the entire outer surface of the press-roll covering as a marking surface; that the markers were to be detachably secured to the roll surface, and there was no engraved ■sleeve. There is no limitation, however, in Schmitz on the proportion of the marking surface to be used, and he merely suggests the expediency of an interchangeable cover. He likewise is not limited as to the manner of making the desired mark. It is obvious that Seaborne merely secured the cushion rubber of Behrend to the metal surface by interposing a layer of hard rubber. This was not doing what theretofore had been impossible. He merely used an expedient in the art of rubber rolls which had been used continuously and extensively for many years. The evidence discloses that the Cincinnati Rubber Company did precisely what Seaborne did at a later date, and Seaborne was merely the first to consider the act as involving inventive genius. We think he did nothing more than bring together old elements, in a mechanism involving no new principle, to produce an old result. This is not invention. Altoona Public Theatres, Inc., v. American Tri-Ergon Corporation. 294 U.S. 477, 55 S.Ct. 455, 79 L.Ed. 1005; Pennsylvania R. Co. v. Locomotive Truck Co., 110 U.S. 490, 4 S.Ct. 220, 28 L.Ed. 222; Catón Printing Co. v. Daniels Mfg. Co. (C.C.A.) 72 F.(2d) 993. It is urged that Seaborne anticipated the conception as embodied in the Cincinnati roll. A fair construction of the testimony in this suit discloses that the Cincinnati roll was conceived in July, 1922, by one Arnold. Its construction by the Cincinnati Rubber Company was formally ordered by the New York & Pennsylvania Company on January 26, 1923, and it was completed and shipped to the last named company on June 30, 1923. The Seaborne roll was manufactured by Stowe-Woodward, Inc. It was ordered on February 23, 1923, and completed and shipped to the Seaborne Company on August 29, 1923. Arnold acted as salesman for both manufacturing companies. Seaborne and Arnold were acquaintances and had discussed watermarking rolls as early as July, 1922, at which time Arnold told Seaborne that he, Arnold, felt that he could build a roll with a glorified Behrend marking band type, that is to say, the Cincinnati roll. Seaborne testified that in that same conversation, “Mr. Arnold told me it was for a South American republic, he did not care to tell me where he was sending it, but it turned out to be, I understand, for Cuban stamps.” Appellant, however, seeks to overcome Arnold as an anticipation because Arnold failed to apply for a patent and made no opposition to Seaborne’s application. This contention cannot be sustained. Arnold never regarded the Cincinnati roll as anything but a “glorified Behrend marker,” and quite properly considered it as not disclosing inventive genius. His business was that of roll-salesman. Up to the time of his testimony, he, through his principal, Stowe-Woodward, Inc., had made all of Seaborne’s marking rolls. His profits came through his sales, and the fact that he did not oppose his customer’s application for the patent can not be considered sufficient to overcome the admitted anticipatory facts. This is not a contest between appellant and Arnold, but.is a contest between appellant on the one side and appellees and the pub-lie on the other. Under these circumstances, Arnold was not required to oppose his customer’s application for the patent, and the fact that he did not do so will not limit the rights of appellees or the public. It is further contended by appellant that the presumption of validity shifts the burden upon appellees to prove that Seaborne was not the first inventor. This rule we recognize, but it is not to be applied where, as here, anticipation has been proved. Consolidated Ry. Electric Lighting & Equipment Co. v. Adams & Westlake Co. (C.C.A.) 161 F. 343; Moline Plow Co. v. Rock Island Plow Co. (C.C.A.) 212 F. 727. A perusal of all the evidence convinces us that the District Court was right in holding that Seaborne’s conception did not antedate Arnold’s. It is further contended by appellant that the effect of the Cincinnati roll as an apticipation is overcome by two disclaimers filed by appellant as assignee of Seaborne. The first was filed on July 24, 1933, before the trial and after the depositions establishing that defense had been taken. The original specifications provided that the designs on the outermost cover, h2, should be ground, formed or cut. None of the claims said anything about how the design should be imparted to the outer surface. In the Cincinnati roll the design was formed by molding. This disclaimer seeks to distinguish the patent from the Cincinnati roll by eliminating the word “formed” from the specification and by converting the claimed invention from the one originally covered to one which consisted in applying a design to a marking stirface by grinding or cutting as distinguished from forming. The District Court found that it had been common practice in the rubber roll art for many years, to produce surface designs either by grinding or cutting, or by molding, and that those methods had long been well recognized mechanical equivalents. The evidence fully supports this finding. The distinction sought to be raised by this disclaimer is not a sufficient basis for invention. The second disclaimer was filed after the District Court’s decision upholding the Cincinnati defense. The Cincinnati roll was made up of a number of strips or sleeves vulcanized together at their edges, instead of being made of a single continuous piece as called for in claim 8. It will be noted, as hereinbefore stated, that Seaborne had referred to a permissible modification of his alleged invention, in that instead of the outer or marking roll being a continuous sleeve, it might be a series of marking plates, illustrated by certain figures referred to in the second disclaimer. The purpose of this disclaimer was to eliminate these figures and all parts of the specification relating to them; to eliminate from the scope of each and all of the claims any marking roll whose engraved hard rubber cover was not continuous; and to limit the scope of each and all of the claims to a marking roll with a single one-piece outer hard rubber sleeve in which the design was engraved. It is -further to be noted that the original patent stated that the designs should be “ground, formed, or cut;” the first disclaimer eliminated the word “formed;” and the second disclaimer eliminates the words “ground” and “cut” and inserts the word “engraved,” which is nowhere found in the original patent. It is clear that the Cincinnati roll, although made up of several sections, constitutes a continuous outer sleeve or cover. It is urged by appellant that its outer surface without seams is better for “all over” designs such as spider webs and the like, but nowhere in the patent is an “all over” design mentioned. Even so, it would hardly amount to invention to eliminate a vulcanized joint. We are convinced that the disclaimers purport to change the character of the invention for which the patent was originally granted, and for that reason, among others, we think the claims are invalid. The filing of the disclaimers was an effort to avoid the clear anticipation of the Cincinnati roll, and it has resulted in a defeat of the claims of the patent under the rulings in the following cases: Altoona Public Theatres, Inc., v. American Tri-Ergon Corporation, supra; Hailes v. Albany Stove Co, 123 U.S. 582, 8 S.Ct. 262, 31 L.Ed. 284; Fruehauf Trailer Co. v. Highway Trailer Co. (D.C.) 54 F.(2d) 691, affirmed (C.C.A.) 67 F.(2d) 558; General Motors Corporation v. Rubsam Corporation (C.C.A.) 65 F.(2d) 217; Corn Products Refining Co. v. Penick & Ford (C.C.A.) 63 F.(2d) 26; Albany Steam Trap Co. v. Worthington (C.C.A.) 79 F. 966. The District Court’s ruling was right in holding the claims invalid for anticipation and lack of invention. It is unnecessary to dwell at length on the question of infringement. Appellees’ roll omits the interposition of the hard rubber layer for anchoring the cushion of soft rubber to the metal core, the tiling above all, upon which appellant relied to give life to his patent. He said it was impossible to vulcanize soft rubber to the surface of a metal roll or otherwise rigidly and satisfactorily attach it thereto. But appellees have accomplished that which Seaborne said was impossible, and they have done it by the use of a patented cement palled “vulca-lock.” Clearly, there was no infringement. Decree affirmed. “4. In a paper-making machine, the combination with a suitable cylinder or roll, of a marking roll comprising a body having thereon a cushioning layer of soft rubber and an outer sleeve of hard mbber provided with a marking surface.” “8. In a paper-making machine, the combination with a suitable cylinder or roll, of a marking roll comprising a body having thereon a continuous sleeve of hard rubber, a continuous sleeve of soft rubber vulcanized to said hard rubber sleeve and an outer continuous sleeve of hard rubber vulcanized to said soft rubber sleeve and provided with a marking surface.” “12. In a paper-making machine, the combination with a suitable cylinder or roll, of a marking roll comprising a body having thereon a plurality of cylindrical covers or sleeves of rubber uniied together, the outermost sleeve or cover being provided with a marking surface and being. of harder rubber than the sleeve beneath it, said outermost sleeve being thickest about the central portion of the roll and gradually diminishing in thickness towards the ends of the roll.” Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_genapel1	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. UNITED STATES of America, Plaintiff-Appellee, v. Manapurath Eappen JOHNSON, Defendant-Appellant. No. 91-3369. United States Court of Appeals, Seventh Circuit. Argued Dec. 17, 1991. Decided April 24, 1992. James G. Hoofnagle, Jr., Asst. U.S. Atty., John L. Sullivan, Crim. Div., Jerome N. Krulewitch, Asst. U.S. Atty. (argued), Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee. James W. Reilley, Dianne Ruthman, Reil-ley & Associates, Des Plaines, Ill., Nathan T. Notkin (argued), Chicago, Ill., for defendant-appellant. Before POSNER, FLAUM and RIPPLE, Circuit Judges. FLAUM, Circuit Judge. On August 16, 1991, defendant Manapu-rath Eappen Johnson filed a “Petition for Writ of Audita Querela, Writ of Coram Nobis, or a Writ under the All-Writs Act” (“petition”), requesting that his 1983 criminal conviction be vacated. The district court denied the petition. 773 F.Supp. 114. Johnson now appeals that denial, asking this Court to remand the case to the district court with instructions to review the equities as a basis for the issuance of a writ of audita querela. We decline to do so because a writ of audita querela may not be issued on purely equitable grounds. Johnson, a 50-year-old native and citizen of India, was admitted to the United States as a permanent resident in 1976. Johnson pled guilty in 1983 to conspiracy to distribute and distribution of a controlled substance — approximately 13 pounds of opium — in violation of 21 U.S.C. §§ 841(a)(1) and 846. He was sentenced to two years imprisonment, with execution of that sentence suspended during a five-year probationary period which included a condition that Johnson reside and participate in the work release program at the Metropolitan Correctional Center for a period of four months. The district court also imposed a special parole term of seven years. Johnson has since completed the sentence. In October 1983, the Immigration and Naturalization Service (“INS”) initiated deportation proceedings. Johnson conceded deportability, and filed a petition for discretionary relief from deportation pursuant to § 212(c) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101, 1182 (“Act”). At a hearing in May 1984, the immigration judge determined that Johnson’s case did not warrant a favorable exercise of discretion after weighing the equities against the serious nature of the misconduct. The Board of Immigration Appeals (“Board”) affirmed in July 1989, noting that the immigration judge’s decision was fully supported by the record and that all the evidence presented was considered before denying relief. We affirmed the Board in an unpublished order, 907 F.2d 153 (7th Cir.1990). Johnson then filed a motion to reopen deportation proceedings which the Board denied. Our review of that denial is the subject of a separate opinion. See Johnson v. INS, 962 F.2d 574 (7th Cir.1992). Continuing his campaign to avoid deportation, Johnson then filed a Petition for Writ of Audita Querela, asking the district court to vacate his 1983 criminal conviction on purely equitable grounds. Referring to Johnson as a productive member of society, the petition recited the equities in Johnson’s favor: the ownership and operation of a travel agency since 1979, the ownership of a retirement home in Florida, the citizenship of his wife, the permanent residency of his two sons, and the successful completion of his sentence. These equities, Johnson argued, required that the writ be issued to avoid the injustice of certain deportation. While expressing sympathy for Johnson’s personal circumstances, the district court held that issuance of the writ depended solely on the existence of a legal defect in the underlying criminal conviction — or a defect in the sentence that would taint the conviction — and denied Johnson’s petition. The issues before us — issuance of a writ of audita querela on purely equitable grounds independent of a legal defect in the underlying conviction or sentence and availability of audita querela in criminal proceedings — involve solely questions of law and, as such, are reviewed de novo. Oneida Tribe of Indians v. Wisconsin, 951 F.2d 757, 760 (7th Cir.1991). Johnson claims that district court judges should be allowed, on a case-by-case basis, to grant relief through a writ of audita querela from the consequences of a conviction where those consequences aré grossly inequitable. Arguing that audita querela is a necessary postconviction remedy, Johnson relies primarily on two district court decisions awarding audita querela relief on solely equitable grounds. In United States v. Salgado, 692 F.Supp. 1265, 1269-70 (E.D.Wash.1988), the court utilized au-dita querela to vacate an alien’s 24-year-old tax evasion conviction so that the alien could take advantage of amnesty rights granted under the Immigration Reform and Control Act of 1988. 8 U.S.C. § 1255(a). The district court in United States v. Ghebreziabher, 701 F.Supp. 115, 116-17 (E.D.La.1988), employed audita querela to vacate one of three food stamp convictions so that an alien would be eligible for amnesty rights. Johnson argues that harsh consequences often attend immigration disputes, thereby necessitating the creation of a equitable remedy to correct gross unfairness. Johnson’s counsel freely conceded at oral argument that there existed no legal defect in Johnson’s 1983 conviction or sentence. The government’s response — that Johnson is indeed attempting to create a new postconviction remedy not founded on legal principles — draws support from the consensus of the circuits that audita querela, if available at all in criminal proceedings, can be used only to correct legal defects in an underlying criminal conviction or sentence arising subsequent to a conviction. See United States v. Reyes, 945 F.2d 862, 866 (5th Cir.1991); United States v. Holder, 936 F.2d 1, 3 (1st Cir.1991); and United States v. Ayala, 894 F.2d 425, 426 (D.C.Cir.1990). Under the government’s line of reasoning, Johnson is foreclosed from relief by writ of audita querela without the requisite showing of legal defect. Audita querela is an old common-law writ permitting a defendant to obtain “relief against a judgment or execution because of some defense or discharge arising subsequent to the rendition of the judgment.” 11 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2867, at 235 (1973). Reyes, Holder, and Ayala, also immigration-based cases, specifically rejected the analysis of the Ghebreziabher and Salgado courts and required the post-judgment defense or discharge to be a legal defect, not an objection based solely on equitable grounds. Reyes, 945 F.2d at 866; Holder, 936 F.2d at 3; and Ayala, 894 F.2d at 429. We agree. In our only relatively recent brush with audita querela, we held that the writ could not be invoked by a defendant challenging the legality of his sentence who could otherwise raise that challenge under 28 U.S.C. § 2255. United States v. Kimberlin, 675 F.2d 866, 869 (7th Cir.1982). In defining audita querela, we noted that the procedure is used to obtain relief from a judgment. Id. The Salgado court focused on that portion of the definition and used it as justification to award relief solely on equitable grounds, ignoring the subsequent defense or discharge requirement. 692 F.Supp. at 1269. As the government points out, a claim that a criminal conviction is inequitable or unfair, or even grossly unfair, does not constitute a defense to, or discharge from, that conviction. Audita querela is not a wand which may be waved over an otherwise valid criminal conviction, causing its disappearance; rather, it provides relief from the consequences of a conviction when a defense or discharge arises subsequent to entry of the final judgment. The defense or discharge must be a legal defect in the conviction, or in the sentence which taints the conviction. Equities or gross injustice, in themselves, will not satisfy the legal objection requirement and will not provide a basis for relief. Creation of a new equitable remedy in the federal post-conviction relief scheme raises serious constitutional concerns. See Reyes, 945 F.2d at 866; Holder, 936 F.2d at 5. We have a delicately balanced system— one that depends on a separation of powers. In this instance, Congress is vested with the power to enact immigration legislation, including deportation standards. The executive is empowered to prosecute criminal offenses. Vacating a valid conviction through the purely equitable use of audita querela amounts to an end run around properly .enacted immigration legislation and essentially rewrites § 241(a)(ll) of the Act, which provides for deportation of an alien convicted of a violation of the Controlled Substances Act. The courts may not tinker with this balance without sufficient statutory, or even historical, authority. Requiring a legal defect as a prerequisite to relief via audita querela assures us that the writ will not disturb this fine balance. The government also argues that the writ of audita querela does not provide any relief additional to the post-conviction relief provided by 28 U.S.C. § 2255 and coram nobis and should therefore be unavailable in criminal proceedings. Noting the recent gain in popularity of audita querela in the immigration context, the government asks us to abolish the writ in criminal cases. Although Rule 60(b) of the Federal Rules of Civil Procedure abolishes the writ of audita querela in civil cases, this court has stated that the abolition does not necessarily carry over to criminal proceedings. The Supreme Court in United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), held that the abolition of the writ of coram nobis, also under Fed. R.Civ.P. 60(b), was limited only to civil proceedings. Using Morgan as guidance, we cannot conclude that audita querela is necessarily unavailable (or, for that matter, available) in criminal proceedings. Coram nobis performs a legitimate and viable task in postconviction proceedings and the Supreme Court has found it to be a necessary component of postconviction relief. Morgan, 346 U.S. at 512, 74 S.Ct. at 253. As we have previously stated, audita querela would be available under Morgan if the criminal defendant could show such relief was “necessary to plug a gap in the system of federal postconviction remedies.” Kimberlin, 675 F.2d at 869. While we continue to question the extent of the viability of audita querela given the availability of coram nobis and § 2255, we decline the invitation to finally resolve the tension between outright abolition and the possibility of that one case where a writ of audita querela is precisely the relief merited. Perhaps the immigration setting, with its often grave personal repercussions, lends itself to the notion that there needs to be some equitable tool to set things “right.” The gap-filling allowed by Morgan does not, however, permit the redefinition of the writ of audita querela. The district court quite properly determined that a writ of audita querela does not provide a purely equitable basis of relief from an otherwise valid criminal conviction. Any legal objection to Johnson’s underlying conviction or sentence is notably absent, and he has failed to establish any right to the relief he has requested. Accordingly, the decision of the district court is Affirmed. . Even though Johnson’s petition in the district court prayed for relief on alternative grounds, supporting memoranda addressed only audita querela. The district court judge noted that nonreliance on coram nobis and the All-Writs Act was legally appropriate, as Johnson could not even arguably satisfy the requirements for the invocation of either. On appeal, Johnson again addresses only audita querela in his briefs and that issue alone is before this court. See Zelazny v. Lyng, 853 F.2d 540, 542 n. 1 (7th Cir.1988); see also United States v. Holder, 936 F.2d 1, 2 n. 3 (1st Cir.1991) (petition also sought relief on alternative grounds, but only argued for relief under audita querela, thereby waiving the alternative avenues of relief). .- In July 1990, Johnson filed a motion to vacate or set aside sentence and stay deportation, pursuant to 28 U.S.C. § 2255. At an August 9, 1990 hearing on the motion, the district court determined that the motion was factually inadequate and continued the motion generally to give Johnson an opportunity to supplement his factual allegations. Johnson apparently has never responded, abandoning this tact for the time being. On that same day, a stay of deportation was entered by another district court judge, acting in his capacity as emergency judge, under the All-Writs Act. The district court granted the government’s motion to vacate the stay of deportation on October 30, 1991. This court granted Johnson’s motion to stay deportation pending appeal in Case No, 90-2290 as the Immigration and Naturalization Service offered no objection. The request for a stay in the instant case was denied as unnecessary. . District courts, other than the Ghebreziabher and Salgado courts, offer conflicting opinions on the availability of audita querela. In United States v. Garcia-Hernandez, 755 F.Supp. 232, 235 (C.D.Ill.1991), the court (agreeing with the federal appellate courts) held that the writ of audita querela, if available, could,only furnish a basis for vacation of a conviction if the defendant raised a legal objection which could not be resolved under current post-conviction remedies. The court in United States v. Acholonu, 717 F.Supp. 709 (D.Nev.1989) found that audita querela was available in federal criminal proceedings to vacate a conviction when a subsequent defense or discharge arose, but declined to decide whether the writ would be available to correct an injustice based on equitable considerations. The All-Writs Act, rather than audita querela, was used by the court in United States v. Grajeda-Perez, 727 F.Supp. 1374 (E.D.Wash. 1989) as the equitable remedy to vacate a conviction. Noting that audita querela is used to obtain relief from consequences of a judgment, not vacate a conviction, the Grajeda-Perez court refused to invoke audita querela. See also United States v. Javanmard, 767 F.Supp. 1109 (D.Kan.1991) (audita querela not appropriate remedy to vacate criminal conviction; however, All-Writs Act available to provide relief based on purely equitable grounds). 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_direct1	D	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. M. W. LOVELESS, dba Loveless Manufacturing Company, a sole proprietorship, Appellant, v. UNIVERSAL CARLOADING & DISTRIBUTING COMPANY, Inc., a corporation, Appellee. No. 5075. United States Court of Appeals Tenth Circuit. July 29, 1955. John M. Wheeler, Tulsa, Okl. (Wheeler & Wheeler, John Wheeler, Jr. and Robert L. Wheeler, Tulsa, Okl., were with him on the brief), for appellant. William J. Treadgill, Tulsa, Okl. (Joseph N. Shidler, Tulsa, Okl., was with him on the brief), for appellee. Before BRATTON and MURRAH, Circuit Judges, and WALLACE, District Judge. MURRAH, Circuit Judge. M. W. Loveless, dba Loveless Manufacturing Company, sued Universal Car-loading & Distributing Company, Inc. as the- terminating carrier, for damages to machinery shipped under a bill of lading in interstate commerce. The case was removed from the state court to the federal court on requisite diversity of citizenship and amount in controversy and as one arising under the laws of the United States. The undisputed facts are that Loveless orally notified Universal’s local manager, Gillam, on May 5, 1952, that he would not accept delivery of the damaged goods. One of Universal’s ware-housemen then inspected the machinery, noting upon the consignment memo the extent of apparent damage and signing his name thereto. After extensive negotiations between Loveless and Gillam, Loveless agreed to accept the machinery and install it, with the understanding that a formal claim for ultimately ascertained damages could be filed at any time within two years. And on the same date Gillam wrote Loveless enclosing the consignment memo, stating: “You will note this freight bill carries notation as to damage noted on arrival. “Inasmuch as this does not nor is intended to cover probable damage that might exist due to apparent rough handling on the part of the carriers, we have notified both the Prisco and the New York Central that the shipment had shifted approximately five feet and that the lags holding the machine to the skids had been pulled away from the machine, indicating that the car had been terrifically humped somewhere along the line. “This will protect you in the event claim will be filed, for a period of up to two years. As you explained it will be possible to determine the damage, if any, long before that time, but just to make sure, we have notified the carriers that claim will be filed, undetermined amount at some future date * * * ” The machine did not function properly from the time of installation, but Loveless did not present a formal claim for the damages until December, 1953, 19 months after delivery. Universal denied the claim solely on the ground that not having been filed within 9 months of the delivery date, it was barred by Sec. 2(b) of the bill of lading, which provides in presently material part that: “As a condition precedent to recovery, claims must be filed in writ-' ing with the * * * carrier * * * within nine months after delivery of the property * * * ” and “ * * * Where claims are not filed * * * in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid.” The decisive question is whether the writings between the parties can be said to be a claim “in writing” within the meaning of Sec. 2(b) as judicially construed and applied. Loveless contends that the notation by Appellee’s warehouseman on the consignment memo together with the letter from Appellee’s local manager to him, constitute a substantial compliance with the notice requirements of Sec. 2(b) of the bill of lading; and that in any event actual knowledge of the damages by Universal served as timely notice to initiate the necessary investigation by the carrier and thus excused the filing of a claim. Loveless also pleads estop-pel to assert non-compliance with Sec. 2(b) having acted to his prejudice upon representations of the local manager that he had two years within which to file a claim. While the trial court was impressed with the equities of Loveless’ contentions, it was nevertheless constrained to deny the claim on the grounds that neither the notation on the consignment memo nor the letter written by. Gillam, separately or together, constituted a sufficient claim “in writing” as required by Sec. 2(b) of the bill of lading; and that the facts did not justify the imposition of equitable estoppel. The Carmack Amendment to the Interstate Commerce Act, Title 49 U.S.C. A. § 20(11), specifically requires the carrier to issue a bill of lading for property received for transportation in interstate commerce. And it also forbids the carrier from contracting for the filing of claims within a shorter period than nine months. While the statute does not specifically provide that notice of claim shall be in writing, or for that matter in any other particular form, Sec. 2(b) has historically been incorporated in the uniform bill of lading as a safeguard against tariff abuses and discriminations. The requirement in 2(b) that the notice of claim shall be “in writing” has come to be an integral part of the uniform published tariffs and regulations which the carrier may not waive or be estopped to assert. Georgia, Fla. & Ala. Ry. Co. v. Blish Milling Co., 241 U. S. 190, 36 S.Ct. 541, 60 L.Ed. 948; Chesapeake & Ohio Ry. Co. v. Martin, 283 U. S. 209, 21 S.Ct. 453, 75 L.Ed. 983; Insurance Co. of North America v. Newtowne Mfg. Co., 1 Cir., 187 F.2d 675; Burns v. Chicago, M., St. P. & P. R. Co., 8 Cir., 192 F.2d 472; Delphi Frosted Foods Corp. v. Illinois Cent. R. Co., 6 Cir., 188 F.2d 343. To satisfy the requirements of Sec. 2(b) the writing need not be in any particular form. It is sufficient if it apprises the carrier that damages have occurred for which reparations are expected, so that the carrier may make a prompt investigation consistent with the “practical exigencies of the situation.” Georgia, Fla. & Ala. Ry. Co. v. Blish, supra; Thompson v. James G. McCarrick Co., 5 Cir., 205 F.2d 897; Insurance Co. of North America v. Newtowne Mfg. Co., supra; Minot Beverage Co. v. Minneapolis & St. Louis Ry. Co., D.C., 65 F.Supp. 293. Thus the practical construction of Sec. 2(b) has been satisfied by an exchange of telegrams between the shipper and the carrier the last of which claimed damages for the total loss, Georgia, Fla. & Ala. Ry. Co. v. Blish, supra; by a timely informal letter from the shipper’s agent to the carrier stating that a claim “will be filed against you” on a specified shipment, Minot Beverage Co. v. Minneapolis & St. Louis Ry. Co., supra; and by writings entitled “statements of protest” and “placement notices" filed with the carrier's agent stating damages, identifying the shipment, and containing the notation “this is consignee’s claim”, Thompson v. James G. McCarrick Co., supra. Formal written notice was deemed unnecessary in Hopper Paper Co. v. Baltimore & O. R. Co., 7 Cir., 178 F.2d 179, 182, where the carrier had actual knowledge of the damage and had notified the shipper thereof. “In such a situation a formal notice by plaintiff to the defendant could not have accomplished anything more. * * * ” and “ * * * the carrier may not use the provisions of the bill of lading to shield itself from the liability imposed upon it by the statute and the common law for its negligent destruction of the shipper’s property. To hold otherwise would not be construing the bill of lading ‘in a practical way.’ ” As against the contention that dispensation with the requirements of the formal written notice would open the door to widespread discrimination, hence frustration of the purpose of the Interstate Commerce Act, the court took the view that actual knowledge in lieu of written notice was neither discriminatory nor a preference in favor of one particular shipper at the expense of another but rather a mode of proof “applicable alike to all railroads and in favor of all shippers.” While the Hopper case was deemed “perhaps out of line with * * * other cases” in Insurance Co. of North America v. Newtowne Mfg. Co., supra [187 F.2d 681], the court was at pains to point out that in the Hopper case the carrier at least “knew that the loss had occurred during the transportation on its line and had so advised the shipper by telegram.” Whereas in the Newtowne case the carrier had no record of having accepted any shipment, had no knowledge of the loss, and denied responsibility for it. Notice or knowledge of the loss was in issue. In these circumstances the court refused to open the door to possible abuses by admitting oral proof of actual notice or knowledge. The Hopper case was again distinguished in Delphi Frosted Foods Corp. v. Illinois Cent. R. Co., supra, where the shipper’s customers who had contracted to purchase portions of the shipment gave notice of the damage to the delivering carrier. The case went off on the theory that the person damaged, not having filed the claim, the notice given did not substantially comply with the requirements of the bill of lading. The Hopper case was also distinguished in the light of its “unusual circumstances” in Northern Pac. Ry. Co. v. Mackie, 9 Cir., 195 F.2d 641, where the carrier’s written report noted the damages and that the consignee would call for final inspection, but specifically denied that it was an acknowledgment of liability. And in the language of Sec. 2(b) the report stated that a claim must be filed in writing with the carrier within nine months after the delivery of the property. Neither the consignee nor the shipper called for final inspection and no formal claim was submitted within nine months of the delivery. The trial court rejected the carrier’s plea of untimeliness, but the case was reversed on the grounds that to disregard the condition precedent to recovery incorporated in the bill of lading would “under the circumstances shown, open the door to evasions of the spirit and purpose of the Act * * * ” See also Louda v. Prague Assurance-National Corp., 1952, 347 Ill.App. 211, 106 N.E.2d 757 and Cf. Public Service Electric & Gas Co. v. Reading Co., 1951, 13 N.J.Super. 383, 80 A.2d 473. Loveless leans heavily upon the holding and philosophy of the Hopper case, as indeed he may, for we think his facts outweigh the considerations which prompted the court’s decision in the Hopper case. In both cases the carrier acknowledged the damages and the cause thereof. In the Hopper case, however, the extent of the damages was immediately known and nothing prevented the immediate filing of a formal claim for the complete loss. In our case the extent of the damages was not at once ascertainable, the parties agreeing that when they were the shipper would file a claim “at some future date.” Universal so notified the originating and intermediate carriers. After the damages were ascertained, a formal written claim for the amount thereof was filed, and the carrier does not now contend that it was in any manner prejudiced by the failure to receive the formal claim within the nine-month period. In the Hopper case actual knowledge without more constituted the written claim. Here, however, we have not only a notation of the fact of damages written upon the face of the freight bill, but more important, we have an acknowledgment in writing by the carrier that damages were sustained by carelessness in transit, and that a formal claim would be filed at some future date when the damages were ascertained. Such writing is nonetheless a claim “in writing” within the purposes of Sec. 2(b) simply because it takes the form of an acknowledgment of the damages and the cause thereof in the hand of him who is to be held liable when the extent thereof is determined. Certainly it is no perversion of public policy to denominate the carrier’s acknowledgment of damages and liability a claim “in writing” to be formalized when the extent of damages is determinable. To so construe the writing leaves no doors open for abuses and discriminations which the stipulation in Sec. 2(b) was intended to prevent. And we therefore hold the written acknowledgment of damages to be a claim in writing within the meaning and purposes of Sec. 2(b) of the bill of lading. The judgment is accordingly reversed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
sc_lcdisagreement	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent. EDMONDS v. COMPAGNIE GENERALE TRANSATLANTIQUE No. 78-479. Argued March 19, 1979 Decided June 27, 1979 White, J., delivered the opinion of the Court, in which BtjRGER, C. J., and Brennan, Stewart, and Rehnquist, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Marshall and Stevens, JJ., joined, post, p. 273. Powell, J., took no part in the consideration or decision of the case. Calvin W. Breit argued the cause for petitioner. With him on the briefs was C. Arthur Rutter, Jr. Charles F. Tucker argued the cause for respondent. With him on the brief was John B. King, Jr. Briefs of amici curiae urging reversal were filed by David R. Owen for Liberty Mutual Insurance Co.; and by Thomas D. Wilcox for the National Association of Stevedores. Briefs of amici curiae urging affirmance were filed by Randall C. Cole- man for American Export Lines, Inc., et al.; and by Gray don S. Staring for the Pacific Merchant Shipping Association. Paul S. Edelman, Arthur Abarbanel, and Bernard M. Goldstein filed a brief for the Association of Trial Lawyers of America as amicus curiae. Mr. Justice White delivered the opinion of the Court. On March 3, 1974, the S.S. Atlantic Cognac, a container-ship owned by respondent, arrived at the Portsmouth Marine Terminal, Va. Petitioner, a longshoreman, was then employed by the Nacirema Operating Co., a stevedoring concern that the shipowner had engaged to unload cargo from the vessel. The longshoreman was injured in the course of that work, and he received benefits for that injury from his employer under the Longshoremen’s and Harbor Workers’ Compensation Act. 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seg. In addition, the longshoreman brought this negligence action against the shipowner in Federal District Court. A jury determined that the longshoreman had suffered total damages of $100,000, that he was responsible for 10% of the total negligence resulting in his injury, that the stevedore’s fault, through a co-employee’s negligence, contributed 70%, and that the shipowner was accountable for 20%. Following an established principle of maritime law, the District Court reduced the award to the longshoreman by the 10% attributed to his own negligence. But also in accordance with maritime law, and the common law as well, the court refused further to reduce the award against the shipowner in proportion to the fault of the employer. The United States Court of Appeals for the Fourth Circuit, with two judges dissenting, reversed en banc, holding that the 1972 Amendments to the Act, 86 Stat. 1251, had altered the traditional admiralty rule by making the shipowner liable only for that share of the total damages equivalent to the ratio of its fault to the total fault. 577 F. 2d 1153, 1155-1156 (1978). Other Courts of Appeals have reached the contrary conclusion. We granted certiorari to resolve this conflict, 439 U. S. 952 (1978), and, once again, we have before us a question of the meaning of the 1972 Amendments. I Admiralty law is judge-made law to a great extent, United States v. Reliable Transfer Co., 421 U. S. 397, 409 (1975); Fitzgerald v. United States Lines Co., 374 U. S. 16, 20 (1963), and a longshoreman’s maritime tort action against a shipowner was recognized long before the 1972 Amendments, see Pope & Talbot, Inc. v. Hawn, 346 U. S. 406, 413-414 (1953), as it has been since. As that law had evolved by 1972, a longshoreman’s award in a suit against a negligent shipowner would be reduced by that portion of the damages assignable to the longshoreman’s own negligence; but, as a matter of maritime tort law, the shipowner would be responsible to the longshoreman in full for the remainder, even if the stevedore’s negligence contributed to the injuries. This latter rule is in accord with the common law, which allows an injured party to sue a tortfeasor for the full amount of damages for an indivisible injury that the tortfeasor’s negligence was a substantial factor in causing, even if the concurrent negligence of others contributed to the incident. The problem we face today, as was true of similar problems the Court has dealt with in the past, is complicated by the overlap of loss-allocating mechanisms that are guided by somewhat inconsistent principles. The liability of the ship to the longshoreman is determined by a combination of judge-made and statutory law and, in the present context, depends on a showing of negligence or some other culpability. The longshoreman-victim, however, and his stevedore-employer— also a tortfeasor in this case — are participants in a workers’ compensation scheme that affords benefits to the longshoreman regardless of the employer’s fault and provides that the stevedore’s only liability for the longshoreman’s injury is to the longshoreman in the amount specified in the statute. 33 U. S. C. § 905. We have more than once attempted to reconcile these systems. We first held that the shipowner could not circumvent the exclusive-remedy provision by obtaining contribution from the concurrent tortfeasor employer. Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U. S. 282 (1952); Pope & Talbot, Inc. v. Hawn, supra; see Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U. S. 106, 111-113 (1974). As a matter of maritime law, we also held that a longshoreman working on a vessel was entitled to the warranty of seaworthiness, Seas Shipping Co. v. Sieracki, 328 U. S. 85, 94 (1946), which amounted to liability without fault for most onboard injuries. However, we went on to hold, as a matter of contract law, that the shipowner could obtain from the stevedore an express or implied warranty of workmanlike service that might result in indemnification of the shipowner for its liability to the longshoreman. Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U. S. 124 (1956). Against this background, Congress acted in 1972, among other things, to eliminate the shipowner’s liability to the longshoreman for unseaworthiness and the stevedore’s liability to the shipowner for unworkmanlike service resulting in injury to the longshoreman — in other words, to overrule Sieracki and Ryan. See Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249, 260-261, and n. 18 (1977); Cooper Stevedoring Co. v. Fritz Kopke, Inc., supra, at 113 n. 6. Though admitting that nothing in either the statute or its history expressly indicates that Congress intended to modify as well the existing rules governing the longshoreman’s maritime negligence suit against the shipowner by diminishing damages recoverable from the latter on the basis of the proportionate fault of the nonparty stevedore, 577 F. 2d, at 1155, and n. 2, the en banc Court of Appeals found that such a result was necessary to reconcile two sentences added in 1972 as part of 33 U. S. C. § 905 (b). The two sentences state: “In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel.” 33 U. S. C. §905 (b). The Court of Appeals described the perceived conflict in this fashion: “The first sentence says that if the injury is caused by the negligence of a vessel the longshoreman may recover, but the second sentence says he may not recover anything of the ship if his injury was caused by the negligence of a person providing stevedoring services. The sentences are irreconcilable if read to mean that any negligence on the part of the ship will warrant recovery while any negligence on the part of the stevedore will defeat it. They may be harmonized only if read in apportioned terms.” 577 F. 2d, at 1155. For a number of reasons, we are unpersuaded that Congress intended to upset a “long-established and familiar principle]” of maritime law by imposing a proportionate-fault rule. Cf. Isbrandtsen Co. v. Johnson, 343 U. S. 779, 783 (1952). A In the first place, the conflict seen by the Court of Appeals is largely one of its own creation. Both sides admit that each sentence may be read so as not to conflict with the other. The first sentence addresses the recurring situation, reflected by the facts in this case, where the party injured by the negligence of the vessel is a longshoreman employed by a steve-doring concern. In these circumstances, the longshoreman may sue the vessel as a third party, but his employer, the stevedore, is not to be liable directly or indirectly for any damages that may be recovered. This first sentence overrules Ryan and prevents the vessel from recouping from the stevedore any of the damages that the longshoreman may recover from the vessel. But the sentence neither expressly nor implicitly purports to overrule or modify the traditional rule that the longshoreman may recover the total amount of his damages from the vessel if the latter’s negligence is a contributing cause of his injury, even if the stevedore, whose limited liability is fixed by statute, is partly to blame. The second sentence of the paragraph is expressly addressed to the different and less familiar arrangement where the injured longshoreman loading or unloading the ship is employed by the vessel itself, not by a separate stevedoring company— in short, to the situation where the ship is its own stevedore. In this situation, the second sentence places some limitations on suits against the vessel for injuries caused during its steve-doring operations. Whatever these limitations may be, there is no conflict between the two sentences, and one arises only if the second sentence is read, as the Court of Appeals read it, as applying to all injured longshoremen, whether employed by the ship or by an independent stevedore. Nothing in the legislative history advises this construction of the sentence, and we see no reason to depart from the language of the statute in this respect. Respondent insists that, even though the two sentences may deal with different business arrangements, problems still arise. If under the first sentence a third-party suit against the vessel is authorized when any part of the negligence causing the injury is that of the vessel, it is argued that suit against the vessel under the second sentence should be barred when any part of the negligence causing the injury is that of a coworker also providing stevedoring services to the vessel. Under this interpretation, the employee of the independent stevedore could recover from the ship where the stevedore was responsible for 99% of the negligence, though a ship’s employee performing stevedoring services could not hold the vessel liable if his co-worker’s negligence was the slightest cause of the injury. This is said to be preposterous and contrary to the legislative intent to treat the vessel that provides its own stevedoring services just like other shipowners when and if it negligently causes injury in its capacity as a shipowner and just like other stevedores when it negligently injures in the course of providing its own loading or unloading services. Aside from the fact that the problem suggested would arise only in the application of the second sentence, which is not involved in this case, the argument that the words “caused by the negligence of” in the two sentences must be given the same meaning and that they cannot have the meaning ascribed to them by petitioner’s construction of the first sentence, logically leads to the conclusion that the injured longshoreman should never be able to bring suit against the vessel unless it is the sole cause of the injury. This is a doubly absurd conclusion. It is supported by no one, and to avoid it, it is necessary only to construe the second sentence to permit a third-party suit against the vessel providing its own loading and unloading services when negligence in its nonstevedoring capacity contributes to the injury. The second sentence means no more than that all longshoremen are to be treated the same whether their employer is an independent stevedore or a shipowner-stevedore and that all stevedores are to be treated the same whether they are independent or an arm of the shipowner itself. This leaves the question of the measure of recovery against a shipowner, whether or not it is doing its own stevedoring, when as shipowner it is only partially responsible for the negligence, but we are quite unable to distill from the face of the obviously awkward wording of the two sentences any indication that Congress intended to modify the pre-existing rule that a longshoreman who is injured by the concurrent negligence of the stevedore and the ship may recover for the entire amount of his injuries from the ship. B The legislative history strongly counsels against the Court of Appeals’ interpretation of the statute, which modifies the longshoreman’s pre-existing rights against the negligent vessel. The reports and debates leading up to the 1972 Amendments contain not a word of this concept. This silence is most eloquent, for such reticence while contemplating an important and controversial change in existing law is unlikely. Moreover, the general statements appearing in the legislative history concerning § 905 (b) are inconsistent with what respondent argues was in the back of the legislators’ minds about this specific issue. The Committees repeatedly refer to the refusal to limit the shipowner’s liability for negligence, which they felt left the vessel in the same position as a land-based third party whose negligence injures an employee. Because an employee generally may recover in full from a third-party concurrent tortfeasor, these statements are hardly indicative of an intent to modify the law in the respect found by the Court of Appeals. At the very least, one would expect some hint of a purpose to work such a change, but there was none. The shipowner denies that the legislative history is so one-sided, relying upon statements that vessels “will not be chargeable with the negligence of the stevedore or [the] employees of the stevedore.” S. Rep. 11; see 577 F. 2d, at 1156 n. 2. But in context these declarations deal only with removal of the shipowner’s liability under the warranty of seaworthiness for acts of the stevedore — even nonnegligent ones. C Finally, we note that the proportionate-fault rule adopted by the Court of Appeals itself produces consequences that we doubt Congress intended. It may remove some inequities, but it creates others and appears to shift some burdens to the longshoreman. As we have said, § 905 permits the injured longshoreman to sue the vessel and exempts the employer from any liability to the vessel for any damages that may be recovered. Congress clearly contemplated that the employee be free to sue the third-party vessel, to prove negligence and causation on the vessel’s part, and to have the total damages set by the court or jury without regard to the benefits he has received or to which he may be entitled under the Act. Furthermore, under the traditional rule, the employee may recover from the ship the entire amount of the damages so determined. If he recovers less than the statutory benefits, his employer is still liable for the statutory amount. Under this arrangement, it is true that the ship will be liable for all of the damages found by the judge or jury; yet its negligence may have been only a minor cause of the injury. The stevedore-employer may have been predominantly responsible ; yet its liability is limited by the Act, and if it has lien rights on the longshoreman’s recovery it may be out-of-pocket even less. Under the Court of Appeals’ proportionate-fault rule, however, there will be many circumstances where the longshoreman will not be able to recover in any way the full amount of the damages determined in his suit against the vessel. If, for example, his damages are at least twice the benefits paid or payable under the Act and the ship is less than 50% at fault, the total of his statutory benefits plus the reduced recovery from the ship will not equal his total damages. More generally, it would appear that if the stevedore’s proportionate fault is more than the proportion of compensation to actual damages, the longshoreman will always fall short of recovering the amount that the factfinder has determined is necessary to remedy his total injury, even though the diminution is due not to his fault, but to that of his employer. But the impact of the proportionate-fault rule on the longshoreman does not stop there. Under § 933 (b), an administrative order for benefits operates as an assignment to the stevedore-employer of the longshoreman’s rights against the third party unless the longshoreman sues within six months. And a corresponding judicially created lien in the employer’s favor operates where the longshoreman himself sues. In the past, this lien has been for the benefits paid up to the amount of the recovery.' And under § 933 (c), which Congress left intact in 1972, where the stevedore-employer sues the vessel as statutory assignee it may retain from any recovery an amount equal in general to the expenses of the suit, the costs of medical services and supplies it provided the employee, all compensation benefits paid, the present value of benefits to be paid, plus one-fifth of whatever might remain. Under the Court of Appeals’ proportionate-fault system, the longshoreman would get very little, if any, of the diminished recovery obtained by his employer. Indeed, unless the vessel’s proportionate fault exceeded the ratio of compensation benefits to total damages, the longshoreman would receive nothing from the third-party action, and the negligent stevedore might recoup all the compensation benefits it had paid. Some inequity appears inevitable in the present statutory scheme, but we find nothing to indicate and should not presume that Congress intended to place the burden of the inequity on the longshoreman whom the Act seeks to protect. Further, the 1972 Amendments make quite clear that “the employer shall not be liable to the vessel for such damages directly or indirectly,” 33 U. S. C. § 905 (b) (emphasis supplied), and that with the disappearance of the ship’s contribution and indemnity right against the stevedore the latter should no longer have to appear routinely in suits between longshoreman and shipowner. Consequently, as we have done before, we must reject a “theory that nowhere appears in the Act, that was never mentioned by Congress during the legislative process, that does not comport with Congress' intent, and that restricts ... a remedial Act . . . Northeast Marine Terminal Co. v. Caputo, 432 U. S., at 278-279. II Of course, our conclusion that Congress did not intend to change the judicially created rule that the shipowner can be made to pay all the damages not due to the plaintiff’s own negligence does not decide whether we are free to and should change that role so as to make the vessel liable only for the damages in proportion to its own negligence. Indeed, some amici in support of respondent share the view that Congress did not change the rule but argue that this Court should do so. We disagree. Though we recently acknowledged the sound arguments supporting division of damages between parties before the court on the basis of their comparative fault, see United States v. Reliable Transfer Co., 421 U. S. 397 (1975), we are mindful that here we deal with an interface of statutory and judge-made law. In 1972 Congress aligned the rights and liabilities of stevedores, shipowners, and longshoremen in light of the rules of maritime law that it chose not to change. “One of the most controversial and difficult issues which [Congress was] required to resolve . . . concern [ed] the liability of vessels, as third parties, to pay damages to longshoremen who are injured while engaged in stevedoring operations.” S. Rep. 8. By now changing what we have already established that Congress understood to be the law, and did not itself wish to modify, we might knock out of kilter this delicate balance. As our cases advise, we should stay our hand in these circumstances. Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U. S., at 112; Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U. S., at 285-286. Once Congress has relied upon conditions that the courts have created, we are not as free as we would otherwise be to change them. A change in the conditions would effectively alter the statute by causing it to reach different results than Congress envisioned. Indeed, Congress might have intended to adopt the existing maritime rule even for third-party actions under the Act that are not within the admiralty jurisdiction, though we need not and do not reach that issue today. Accordingly, we reverse the judgment below and remand for proceedings consistent with this opinion. It is so ordered. Mr. Justice Powell took no part in the consideration or decision of this case. The District Court set aside a jury verdict for the longshoreman in an earlier trial because of errors in the jury instructions. The plaintiff’s negligence is not an absolute bar to recovery under maritime law, which accepts the concept of comparative negligence of plaintiff and defendant. Pope & Talbot, Inc. v. Hawn, 346 U. S. 406, 408-409 (1953); The Max Morris, 137 U. S. 1, 15 (1890); see n. 23, infra. A panel of the Court of Appeals had earlier reached a similar conclusion. 558 F. 2d 186, 193-194 (1977); see n. 26, infra. Zapico v. Bucyrus-Erie Co., 579 F. 2d 714, 725 (CA2 1978); Samuels v. Empresa Lineas Maritimas Argentinas, 573 F. 2d 884, 887-889 (CA5 1978), cert. pending, No. 78-795; Dodge v. Mitsui Shintaku Ginko K. K. Tokyo, 528 F. 2d 669, 671-673 (CA9 1975), cert. denied, 425 U. S. 944 (1976); Shellman v. United States Lines, Inc., 528 F. 2d 675, 679-680 (CA9 1975), cert. denied, 425 U. S. 936 (1976). See also Cella v. Partenreederei MS Ravenna, 529 F. 2d 15, 20 (CA1 1975) (indicating agreement with Dodge, supra), cert. denied, 425 U. S. 975 (1976); Marant v. Farrell Lines, Inc., 550 F. 2d 142, 145-147 (CA3 1977) (discussing but reserving the issue); id., at 147-152 (Van Dusen, J., concurring) (expressing concern over validity of apportionment of damages). See also Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249 (1977); Director, Workers’ Compensation Programs v. Rasmussen, 440 U. S. 29 (1979); P. C. Pfeiffer Co. v. Diverson Ford, No. 78-425 (to be reargued October Term 1979). Title 33 U. S. C. § 933 (a), which was unchanged in 1972, states that when a longshoreman “determines that some person other than the employer or a person or persons in his employ is liable in damages, he need not elect whether to receive . . . compensation or to recover damages against such third person.” Section 905 (b), which was added in 1972, states that the longshoreman “may bring an action against [the shipowner] as a third party in accordance with the provisions of section 933 . . . .” See, e. g., Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U. S. 106, 108, 113 (1974) (longshoreman could have recovered entire damages from shipowner responsible for 50% of the total fault); Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U. S. 282, 283 (1952) (shipowner responsible for 25% of negligence required to pay 100% of damages, and contribution unavailable from negligent shoreside contractor, an employer under the Act). See also The Atlas, 93 U. S. 302 (1876); The Juniata, 93 U. S. 337 (1876). We stated the common-law rale in The Atlas and adopted it as part of admiralty jurisprudence: “Nothing is more clear than the right of a plaintiff, having suffered such a loss, to sue in a common-law action all the wrong-doers, or any one of them, at his election; and it is equally clear, that, if he did not contribute to the disaster, he is entitled to judgment in either case for the full amount of his loss.” 93 U. S., at 315. Restatement (Second) of Torts §§433A, 875, and 879 (1965 and 1979); T. Cooley, Law of Torts 142-144 (1879); W. Prosser, Law of Torts § 47, pp. 297-299, and § 52, pp. 314r-315 (4th ed. 1971); cf. Washington & Georgetown R. Co. v. Hickey, 166 U. S. 521, 527 (1897). A tortfeasor is not relieved of liability for the entire harm he caused just because another’s negligence was also a factor in effecting the injury. “Nor are the damages against him diminished.” Restatement, supra, § 879, Comment a. Likewise, under traditional tort law, a plaintiff obtaining a judgment against more than one concurrent tortfeasor may satisfy it against any one of them. Id., § 886. A concurrent tortfeasor generally may seek contribution from another, id., § 886A, but he is not relieved from liability for the entire damages even when the nondefendant tortfeasor is immune from liability. Id., § 880. These principles, of course, are inapplicable where the injury is divisible and the causation of each part can be separately assigned to each tortfeasor. Id., §§ 433A (1) and 881. Generally, workers’ compensation benefits are not intended to compensate for an employee’s entire losses. 1 A. Larson, Law of Workmen’s Compensation § 2.50 (1978). The 1972 Amendments to the Act, however, make a determined effort to narrow the gap between the harm, suffered and the benefits payable. See, e. g., Mitchell v. Trawler Racer, Inc., 362 U. S. 539, 549-550 (1960). The Amendments also increased compensation benefits, expanded the Act’s geographic coverage, and instituted a new means of adjudicating compensation cases. Robertson, Jurisdiction, Shipowner Negligence and Stevedore Immunities under the 1972 Amendments to the Longshoremen’s Act, 28 Mercer L. Rev. 515, 516 (1977). The first proposals in the legislative movement that produced the 1972 Amendments would have made all shipowners statutory employers, not just those also acting as stevedores, and thus cut off any tort action by the longshoreman. S. 525, 92d Cong., 1st Sess., § 1 (1971), Legislative History of the Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1972 (Committee Print compiled for the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare), pp. 393-394 (1972). Congress ultimately decided to preserve the longshoremen’s tort action against shipowners acting as shipowners. In Jackson v. Lykes Bros. S. S. Co., 386 U. S. 731 (1967), and Reed v. The Yaka, 373 U. S. 410 (1963), we upheld a longshoreman’s negligence or unseaworthiness action against the shipowner-stevedore. See S. Rep. No. 92-1125, p. 11 (1972) (hereinafter S. Rep.) (“Accordingly, the bill provides in the case of a longshoreman who is employed directly by the vessel there will be no action for damages if the injury was caused by the negligence of persons engaged in performing longshoring services”) (emphasis supplied). The House Report, H. R. Rep. No. 92-1441 (1972), is identical to the Senate Report in all respects material to this case. Accordingly, further references will be only to the Senate Report. In many cases, of course, the shipowner whose act or omission contributed only a very small percentage of the total negligence will avoid liability on the ground of lack of causation. S. Rep. 11-12. In the Senate hearings, a plaintiff's lawyer mentioned diminution of damages as a possible solution so long as the shipowner’s liability for unseaworthiness was retained. The only committee member present rejected this proposal, and Congress apparently never gave it serious consideration. See Hearings on S. 2318, S. 525, and S. 1547 before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 92d Cong., 2d Sess., 354-355 (1972). Laborers’ International Union, Local No. 1057 v. NLRB, 186 U. S. App. D. C. 13, 20, 567 F. 2d 1006, 1013 (1977). The debate over § 905 (b) involved the removal of the shipowner’s liability for unseaworthiness. That occurred as a concomitant of ending liability under the stevedore’s warranty of workmanlike service, which was a quid pro quo for increasing the compensation benefits. See S. Rep. 9-10. Some Congressmen objected to removing the vessel’s liability for unseaworthiness because that would deny millions of dollars of relief for longshoremen’s injuries. 118 Cong. Rec. 36382-36384 (1972) (Reps. Eckhardt, Dent, and Ashley). Indeed, the concern shared by some Congressmen over any modification of third-party actions “had political ramifications which . . . resulted in forestalling any improvements in the . . . Act for over twelve years.” S. Rep. 9. Those Congressmen likely would have assailed the diminution of the longshoreman’s recovery in proportion to the stevedore’s fault if they had any inkling that the Amendments did that. Id., at 2, 5, 10. Id., at 8 (“where a longshoreman or other worker covered under this Act is injured through the fault of the vessel, the vessel should be liable for damages as a third party, just as land-based third parties in non-maritime pursuits are liable for damages when, through their fault, a worker is injured”); accord, id., at 10 and 11. See n. 8, supra; 2A Larson, supra n. 9, §75.22, at 14-263; Soule, Toward an Equitable and Rational Allocation of Employee Injury Losses in Cases with Third Party Liability, 1979 Ins. Counsel J. 201, 202-208. S. Rep. 9-11. E. g., Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U. S. 315 (1964). The shipowner also relies upon the Reports’ reference to “comparative negligence,” S. Rep. 12, but in context it is obvious that Congress alluded only, and not erroneously, see Prosser, Comparative Negligence, 51 Mich. L. Rev. 465 n. 2 (1953), to the comparative negligence of the plaintiff longshoreman and the defendant shipowner — a concept that, unlike the proposal before us today, was well established in admiralty. See S. Rep. 12; 33 U. S. C. §905 (a); n. 2, supra. It would be particularly curious for Congress to refer expressly to the established principle of comparative negligence, yet say not a word about adopting a new rule limiting the liability of the shipowner on the basis of the nonparty employer’s negligence. See Zapico v. Bucyrus-Erie Co., 579 F. 2d, at 725 (“one is still left to wonder why the longshoreman injured by the negligence of a third party should recover less when his employer has also been negligent than when the employer has been without fault”). See The Etna, 138 E. 2d 37 (CA3 1943). The original Fourth Circuit panel opinion would have made the shipowner liable for an amount equal not just to his proportionate fault, but also to the employer's lien. 558 F. 2d, at 194. The en banc court 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_respond1_1_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". HIGLEY v. COMMISSIONER OF INTERNAL REVENUE. No. 9720. Circuit Court of Appeals, Eighth Circuit. Feb. 16, 1934. Park Chamberlain, of New York City (Don Barnes, of Cedar Rapids, Iowa, and Simpson, Thacher & Bartlett, of New York City, on the brief), for petitioner. J. Louis Monarch, Sp. Asst. to Atty. Gen. (Sewall Key, Sp. Asst. to Atty. Gen., and E. Barrett Prettyman, Gen. Counsel, Bureau of Internal Revenue, and Lewis S. Pendleton, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for respondent. Before STONE, SANBORN, and VAN VALKENBURGH, Circuit Judges. STONE, Circuit Judge. This is a petition to review a redetermination of taxes on the estate of Elmer A. Higley by the Board of Tax Appeals. Elmer A. Higley died in September, 1926, leaving a wife and three adult children. There was no will and no administration of the estate. In November, 1927, Fred M. Higley (one of tbe children) made a return for federal estate tax on the departmental form. In the “jurat” of the return, he recites that the return is “for myself and all the beneficiaries named in schedule £E’ hereto attached.” Schedule E is “Transfers.” Thereunder property valued at $465,398.85 is put down as “description is contained in the Schedule hereto attached” and as nontaxable. The schedule referred to as “hereto attached” was a lengthy document stating, in detail, the condition of the estate; the formation by decedent of a corporation sole to which he had transferred practically all of his property some years before death; the creation of four separate trusts (-one for the widow and one for each of the three children) by decedent shortly after formation of the corporation to which was distributed all but one share of the stock of the corporation; the value of the properties held by the corporation; an argument that the trusts were not in contemplation of death; and reasons for not seasonably filing an estate tax return. This attached schedule was under oath, and affiant “states that this return is made by him in behalf of the widow and all of the heirs at law of the said Elmer A. Higley, who are the beneficiaries of the trusts which are set out in this report.” The only property seheduled in the return as belonging to the estate was one small piece of real estate valued at $1,520. The Commissioner determined that the entire property in the four trust estates should bo included in the estate and subjected to the tax. He assessed a deficiency of $18,-229.06. Notice of this deficiency was ad-; dressed only to “Fred M. Higley, Beneficiary, Estate of Elmer A. Higley.” Thereafter a petition for redetermination was filed with the Board by the widow and the three children. The substance of this petition was that the property in the trust estates was not subject to the estate tax, for various reasons set forth. There was an extended hearing before the Board resulting in findings that the trusts were in contemplation of death and taxable as determined by the Commissioner. Of its own motion, the Board examined its jurisdiction over the parties. As to that it held as follows: That neither a legal representative of the estate of the decedent nor the trustee (a hank) was a party; that the notice of deficiency was addressed only to Fred M. Higley, and therefore it had no jurisdiction over the widow and the two other children; that it had jurisdiction only of Fred M. Higley. The result of these views as to jurisdiction was that the petition was dismissed as to the widow and two children and retained as to Fred M. Hig'ley. Then the Board examined his liability for the “estate tax” and determined that he was a “transferee,” within section 315 (b) Revenue Act of 1926 (26 USCA § 1115 (b), and liable for the entire estate tax “to the extent of the value of the property received by such transferee.” The Board found it unnecessary to determine whether he was a “benefieiary,” within the meaning of the section. Since it was admitted that the value of the trust estate of which ho was the beneficiary was much more than the tax against the entire estate, the Board determined that he' was liable for the entire tax of $18,229.06, with the right to he reimbursed “by a just and equitable contribution from other persons who are subject to a liability for the estate taxes.” In conformity with such determination, the Board entered an order of re-determination “that there is a deficiency in tax with respect to the petitioner Fred M. Higley, in the amount of $18,229.06.” Fred M. Higley petitions for this review. The contest here is along two lines: First, that this trust property is not subject to the estate tax; second, that there is no personal liability on this petitioner for any of the estate tax, if such be assessable. It seems so clear to us that the second of these propositions is sound that it is unnecessary to examine the liability of this_ property to the tax. For onr purposes, we will assume, though not examining nor deciding, that this trust property is liable for the estate tax, and that the only question is whether this petitioner is personally liable to pay sueh tax. The facts material to determination of this question are as follows: Some years before his death, decedent formed a corporation sole to whieh he transferred all of his property, with trivial exceptions. This corporation had 2,250 shares of par value $100. Within a month thereafter, he created four entirely distinct trusts with the same trustee (Merchants’ National Bank of Cedar Rapids, Iowa); the beneficiaries being, separately, the widow and each of the three children. The trust for the widow was in 749 shares of the stock in the corporation (he having retained one share for himself). The trust for each of the children was in separate blocks of 500 shares each. The trust instrument provided that “The Income of the Trust Fund” was to be dividends from shares of stock or other securities belonging to the trust fund (there were no “other securities”), and that the trustee should vote the stock for the creator thereof “as sole director and officer of sueh corporation” until he be unable, mentally or physically, to act as such (in which eventuality, the stoek was to be so voted for his wife); that the creator of the trust might change the trustees, and that the trust should endure for six years after his death when it might he terminated by the beneficiary (except as to the daughter, such termination extended only to half the estate in the trust for her). No trust has or could have been terminated at the date the order of redetermination was entered by the Board — within six years after death of the creator of the trusts. On the above facts, the legal question here is whether a beneficiary of an existing trust is personally liable to pay an estate tax levied under the Revenue Act of 1926 against an estate of whieh the trust corpus is a taxable part. This is a question of construction of statutes applicable to the situation. The statute involved here is section 315 (b) Revenue Act 1926 (44 Stat. 9, 80, 26 USCA § 1115 (b). It reads as follows: “If (1) the decedent makes a transfer, by trust or otherwise, of any property in contemplation of or intended to take effect in possession or enjoyment at or after his death (except in the ease of a bona fide sale for an adequate and full consideration in money, or money’s worth) or (2) if insurance passes under a contract executed by the decedent in favor of a specific beneficiary, and if in either ease the tax in respect thereto is not paid when due, then the transferee, trustee, or beneficiary shall be personally liable for such tax, and sueh property, to the extent of the decedent’s interest therein at the time of such transfer, or to the extent of sueh beneficiary’s interest under sueh contract of insurance, shall be subject to a like lien equal to the amount of such tax. Any part of'such property sold by sueh transferee or trustee to a bona fide purchaser for an adequate and full consideration in money or money’s worth shall be divested of the lien and a like lien shall then attach to all the property of such transferee or trustee, except any part sold to a bona fide purchaser for an adequate and full consideration in money or money’s worth.” This section expressly imposes a personal liability on “the transferee, trustee, or beneficiary.” Obviously, the congressional definition of each of these words is to be found in their use in this section, if possible. The section deals with two general classes of disposition, before death, of property by the decedent. The first of these is “transfers”; the second is “insurance.” “Transfers” expressly include trusts. While cestui que trus-■tent are ordinarily called “beneficiaries,” both in legal and every-day speech, yet it is obvious the use of the word “beneficiary” in this section applies only to insurance policy beneficiaries. It is so used specifically in the first sentence, and it is entirely omitted in the second sentence whieh is not concerned with insurance but is with trust estates. If a trust beneficiary is to be personally liable under this section, it must be because he is a “transferee.” In a broad sense, and irrespective of this section, such a beneficiary might be regarded as a “transferee” under a trust instrument. In the same sense, a trustee, who takes the entire legal title, is eertainly a “transferee” under such an instrument. In short, one (the trustee) would always be regarded as a transferee and the other (the beneficiary) might be so regarded. The question here is the meaning intended in this section. The section expressly covers transfers other than trusts. The employment of the word “transferee” must apply to sueh other transfers, and the presence of the word is readily explainable in that connection. But, in addition, the word “trustee” is employed in connection with trusts only. The result is that the application of “transferee” to trust beneficiaries is at least doubtful and the statute iu that respect ambiguous. In sueh a situation the beneficiary is entitled to a favorable construction because liability for taxation must clearly appear. Miller v. Standard Nut Margarine Co., 284 U. S. 498, 508, 52 S. Ct. 260, 76 L. Ed. 422; U. S. v. Updike, 281 U. S. 489, 496, 50 S. Ct. 367, 74 L. Ed. 984; U. S. v. Merriam, 263 U. S. 179, 187, 188, 44 S. Ct. 69, 68 L. Ed. 240, 29 A. L. R. 1547. Passing from consideration of this section alone to consideration of it as a part of the general scheme of collecting this estate tax, the position of petitioner is further strengthened. Throughout this chapter (Estate Taxes) runs the clear plan as to collection. The prime reliance is the property subject to the tax. Upon this a lien for the taxes is placed. As further assurance, a personal liability is placed upon those who are in position to disposo of the property and possibly delay or defeat collection. Upon them is placed a strong personal incentive to see that the tax is properly and promptly paid. This burden, is placed only upon those (executors, administrators, fiduciaries, transferees, trustees, and insurance beneficiaries) who have such legal title, control, and possession as would afford opportunity to dispose of the property primarily liable for the payment of the tax. A trust beneficiary may or may not occupy such a position, dependent npon the terms of the trust, but all opportunity for him to take advantage thereof is anticipated and guarded against by placing upon the trustee a personal liability and by attaching the lien to the trust property. Although Congress has legislated repeatedly in ¡his matter, it lias in no instance used language clearly providing personal liability of a eostui quo trust. Again, the results flowing from such a personal liability easily explain why Congress would not impose it, and they argue for a construction of doubtful language against such construction. It is common knowledge that the most usual purpose of creating trusts in contemplation of or to be enjoyed after death of the creator thereof is to provide for children or other dependents. Very often such trusts pass only the income from a trust estate to the beneficiary. To require such beneficiary to be personally liable for the estate tax (in whole or part) would result in dire hardship in many instances. It is very natural to presume that Congress deemed payment of the tax sufficiently secured by a lien on the property and by imposing a personal liability on the trustee without going further and placing this real hardship on beneficiaries who would often ho hopelessly unable to bear it. While Congress might have the power to place such a personal liability upon trust beneficiaries who did not renounce the trust, yet it would require clear expression of such intent, and it cannot be spelled out from language (as that here) which can be given an esitirely natural and useful meaning and application excluding such intent. The cause should be remanded, with instruction to enter an order disallowing the determination of a deficiency as to this tax against this petitioner. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_appel1_1_4	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant. John H. HENNESSY, Jr., as an Individual and d/b/a Business Systems and Service Company, a Proprietorship, Plaintiff-Appellant, v. Otis A. SCHMIDT, Defendant-Appellee. No. 74-2079. United States Court of Appeals, Seventh Circuit. Argued May 23, 1975. Decided Aug. 22, 1975. William M. Freivogel, Michael J. Critelli, Chicago, Ill., for plaintiff-appellant. Lloyd P. Douglas, Edward J. Kelly, Chicago, Ill., for defendant-appellee. Before SWYGERT and SPRECHER, Circuit Judges, and EAST , Senior District Judge. Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation. EAST, Senior District Judge. In the District Court proceedings, the plaintiff John H. Hennessy, Jr., doing business as Business Systems and Service Company (hereinafter Hennessy) sought to recover from the defendant Otis A. Schmidt (hereinafter Schmidt) the sum of $25,000 damages upon an alleged breach of a sales commission contract for obtaining a sale of corporate stock owned by Schmidt. Following a trial without a jury, the District Court found adversely to Hennessy and entered a judgment for Schmidt. Hennessy appeals and we reverse. THE DISTRICT COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW We recite the pertinent parts of the findings of fact for the factual background of the parties and the cause and the conclusions of law to facilitate our course of disposition on appeal: Findings: “3. Schmidt and A1 Ruck (‘Ruck’) [were] the principal owners of the common stock of S & R Industries, Inc. “4. In 1970, for reasons not material to this action and not fully developed at the trial, Schmidt was voted out of operating control and thus sought to sell his interest in S & R Industries. “5. By virtue of letters exchanged on June 22, 24, 26, and July 22, 1970, Schmidt and Hennessy entered an agreement whereby Hennessy would receive a specific commission [of five percent of the purchase price] if he produced a buyer of Schmidt’s stock in S & R Industries at a suitable price. “6. This agreement was not an exclusive arrangement wherein Hennessy would receive compensation no matter who was the proximate cause of the sale. “7. At the time Schmidt and Hennessy made the agreement a lawsuit was pending in the Illinois State court. The parties to the lawsuit [involving the operation of S & R Industries] were Schmidt and Ruck. This suit was initiated in December of 1970. “8. Pursuant to the agreement Hennessy performed a number of services in the form of telephone calls and letters in an attempt to sell Schmidt’s shares of S & R Industries. “9. By the end of January, 1971, no buyer could be found for Schmidt’s stock. From that point on Hennessy directed his attention to negotiating a purchase by Ruck and arranging for financing through Central National Bank. “10. Hennessy performed his services with the approval of Schmidt as demonstrated by Schmidt’s letter to Hennessy on October 8, 1971.” “13. Hennessy did not assist in the preparation of the final papers that made up the settlement agreement and the sale of the shares, nor did he attend the closing. “14. Schmidt’s attorney, Edward Kelly, [Kelly] negotiated with Ruck and the corporation regarding the settlement of the lawsuit by the purchase of Schmidt’s shares.” We find record evidence supporting each of the above specific findings. We do note, however, that the substance of finding 13 is literally correct in that Hennessy did not physically assist (as a scrivener) in the preparation of the final papers that made up the settlement agreement and the sale of the shares and that he did not physically attend the closing session. Also, we note that the literal reading of finding of fact 14 is correct only to the extent of Kelly’s participation in the negotiations for Ruck’s purchase of Schmidt’s shares, and is clearly erroneous to the extent the finding might negate Hennessy’s negotiations for Ruck’s purchase of Schmidt’s shares. The District Court, under the label of findings of fact, further found: “11. Schmidt’s stock was sold to Ruck as a direct result of the settlement reached by Ruck and Schmidt in the lawsuit which was filed in state court. “12. Hennessy never participated in the negotiations nor did he procure the agreement that entered the state court litigation.” We deem those two “findings” to be mere conclusionary results rather than specific facts, and without the effect of an established ultimate fact reached from a consideration of contradictory evidence or different inferences reasonably drawn or inferred. Conclusions: “2. The substantive law of the State of Illinois shall be applied in this ease. “3. In a suit by a broker for a commission, he must normally prove, by a preponderance of the evidence, that he procured a purchaser ready, willing and able to purchase on the seller’s terms. Or, that the sale was the proximate result of the broker’s efforts, or that he was the procuring cause of the sale. Waghorne v. Hogstrom, 11 Ill. App.2d 345, 137 N.E.2d 497 (1956) (an unpublished full opinion); Camp v. Hollis, 332 Ill.App. 60, 74 N.E.2d 31 (1947); Klyczek v. Dubuque Fire and Marine Insurance Company, 325 Ill. App. 696, 60 N.E.2d 648 (1945) (abst.); Murawska v. Boeger, 219 Ill.App. 241 (1920). “4. A broker is not deemed to be the procuring cause merely because he may have influenced the purchase to some extent. Rather, he must be the one who effects the sale or through whose efforts the sale is brought about. Waghorne v. Hogstrom, supra; White v. Sellmyer, 157 Ill.App. 435 (1910); Commercial National Bank v. Hawkins, 35 Ill.App. 463 (1889). “5. In this case there is no doubt that the parties entered into a legally binding contract. However, it is undisputed that it was not of an exclusive nature. Thus, Schmidt was free to negotiate a sale with other parties. Friend v. Charles W. Triggs Co., 147 Ill.App. 427 (1909); Chicago Title and Trust Co. v. Guild, 323 Ill.App. 608, 56 N.E.2d 659 (1944). “6. Although plaintiff contended that he engaged in correspondence of over 30 letters, made in excess of 50 telephone calls, assisted in arranging bank financing, made an analysis of bookkeeping deficiencies, etc., no evidence was presented which conclusively showed the plaintiff’s activities were the proximate cause of the sale. “7. ... In order to be successful on the merit of this claim for a 5% commission, plaintiff had to demonstrate performance of all the conditions. As a condition precedent to the payment of the commission the plaintiff’s efforts had to be the proximate cause of the sale. “8. The defendant was not liable to the plaintiff for services rendered pursuant to the aforementioned agreement. . . ” DISCUSSION At the outset, it is manifest from a reading of the conclusion of law numbered 6 that the District Court ignored the proper and valid rule or test for viewing and weighing Hennessy’s evidence and making findings of fact in accordance with the “preponderance of the evidence” as recited in conclusion of law numbered 3, and erroneously viewed and weighed Hennessy’s evidence and made its finding of fact under the non-applicable stricter rule or test of conclusive proof. The District Court by applying the stricter improper conclusive proof rule or test in this case placed a higher burden of proof upon Hennessy than is lawfully required. See Hurzon v. Schmitz, 262 Ill.App. 337 (1931); also 32A C.J.S. Evidence § 1020 (1964) at 641-43. We are satisfied that the District Court in applying the conclusive proof rule or test foreclosed itself from making further findings upon facts under Hennessy’s evidence which the court may have found to be proven under the preponderance of the evidence rule or test. For example, specific findings of fact of the full extent and effect, if any, in causing or procuring Ruck’s purchase of Schmidt’s stock through Hennessy’s efforts expended “in correspondence of over 30 letters, [making] in excess of 50 telephone calls, assisted in arranging bank financing, [making] an analysis of bookkeeping deficiencies, etc.” These factors were not specifically dealt with and were lumped by the District Court in conclusion of law No. 6. There is among the items of “correspondence” in Hennessy’s efforts to revive negotiations between Ruck and Schmidt Hennessy’s proposed letter to Ruck of Schmidt’s willingness to seriously consider any fair offer for the shares from Ruck (Plaintiff’s Exhibit 13) which was turned over to Kelly and Kelly’s redrafted letter or Schmidt’s willingness to deal addressed and finally transmitted to Ruck (Plaintiff’s Exhibit 14). The letter may well have been the catalyst of the ultimate purchase by Ruck. The Kelly letter (Plaintiff’s Exhibit 14) is on its face a plagiarism of Hennessy’s proposal (Plaintiff’s Exhibit 13); yet it and the followup letters of Hennessy to Ruck were not specifically dealt with in the District Court’s findings. CONCLUSION We conclude that the findings of fact as found by the District Court under the improper rule or test of conclusive proof are tainted and unlawfully made. It follows that without properly determined findings, the conclusions of law, together with the judgment for Ruck predicated thereon, collapse and must be vacated and the case remanded, for reconsideration. In view of the apparent importance the District Court placed upon the lack of Hennessy’s assistance in the preparation of final papers and appearance at the closing session of the sale-purchase of stock transaction, we further conclude that the District Court erred in adopting, under the authorities relied upon, the classical real estate broker’s test of performance in determining the proximate cause or procurement of the sale of Schmidt’s corporate stock to Ruck. Waghorne involved the sale of residential real estate; Camp was concerned with the sale of the Palmer House hotel; Klyczek, a land sale; Murawska, a coal yard; and Commercial Bank, a sale of land. Suffice to say, the role of the real estate broker has traditionally been the guiding hand throughout the transaction, including the preparation, either personal or through legal counsel, execution and delivery of the instruments of transfer, either manually or through escrow. Hennessy’s role in the instant transaction is readily distinguishable from that of the conventional real estate broker. In the first instance, Hennessy’s mission was to find a purchaser of Schmidt’s shares by a sale of all the capital stock of the S & R Industries. The principal stockholders, Schmidt and Ruck, were at irrevocable loggerheads and embroiled in a lawsuit. There was no prospective purchaser in such a picture until Hennessy revived the parties’ interest in Schmidt’s prior offer to sell his shares to Ruck by his proposed letter to Ruck and his subsequent innovative suggestion proposing the use of a common basis for measuring the value of the stock, book value, and the suggestion of the $500,000 purchase price with corporate income tax advantage to Ruck. Interestingly enough, coincidental or procurement by Hennessy, that price became the ultimate sales price. Also there is some evidence in the record by which Hennessy claims to prove that he was excluded by Kelly from attending the final sessions of the closing of the sale-purchase transaction of Schmidt’s shares. Hennessy is entitled to have the evidence in the case weighed and determined under an appropriate standard and test. We are satisfied that a more appropriate test to be applied in the reconsideration of whether Hennessy’s performance was the proximate cause or procurement of the sale of Schmidt’s shares to Ruck is the finder’s or business opportunity broker’s fee test as delineated in Modern Tackle Co. v. Bradley Industries, 11 Ill.App.3d 502, 297 N.E.2d 688 (1st Dist. 1973). See also Diversification Consultants, Inc. v. Candy-Gram, Inc., 130 Ill.App.2d 1029, 264 N.E.2d 788 (1st Dist. 1970); Schaller v. Litton Industries Inc., 307 F.Supp. 126 (E.D.Wis.1969); and Chiagouris v. Continental Trailways, 50 Ill.App.2d 196, 200 N.E. 399 (1st Dist. 1964). Accordingly the District Court’s findings of fact and its conclusions of law, as a whole, together with the judgment based thereon, are each vacated and the cause remanded to the District Court for further proceedings consistent herewith. Judgment vacated and remanded. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant? A. bank B. insurance C. savings and loan D. credit union E. other pension fund F. other financial institution or investment company G. unclear Answer:
sc_respondentstate	05	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. MISSISSIPPI v. ARKANSAS No. 48, Orig. Argued December 5, 1973 Decided February 26, 1974 Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, White, Marshall, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 294. Mitchell E. Ward argued the cause for plaintiff. With him on the brief were Albioun F. Summer, Attorney General of Mississippi, and Martin R. McLendon, Assistant Attorney General. William H. Drew argued the cause for defendant. With him on the brief was Jim Guy Tucker, Attorney General of Arkansas. Mr. Justice Blackmun delivered the opinion of the Court. Mississippi, prompted by the pendency of private title litigation in the Arkansas courts, instituted this original action against Arkansas in November 1970. The bill of complaint, which accompanied the motion for leave to file, prayed that the boundary line between the two States, in the old bed of the Mississippi River from the upstream end to the downstream end of Tarpley Cut-off, that is, the Spanish Moss Bend-Luna Bar-Carter Point area where Arkansas’ Chicot County and Mississippi’s Washington County adjoin, be fixed and determined. The river was originally established as the boundary between the States by their respective Acts of Admission. Mississippi’s Act, 3 Stat. 348 (1817), described the line as “up” the river. Arkansas’ Act, 5 Stat. 50 (1836), described the line as “up the middle of the main channel of the said river.” See, also, Arkansas’ Constitution, Art. 1 (1874). Over 50 years ago the question whether there was any difference in the meaning' of these two descriptions was resolved and the boundary was determined to be “the middle of the main navigable channel, and not along the line equidistant between the banks.” Arkansas v. Mississippi, 250 U. S. 39, 43 (1919). That decision was in conformity with the rule of the thalweg enunciated in Iowa v. Illinois,, 147 U. S. 1, 7-8, 13 (1893), and followed, in the absence of special circumstances, in many subsequent cases. See, for example, Minnesota v. Wisconsin, 252 U. S. 273, 281-282 (1920); New Jersey v. Delaware, 291 U. S. 361, 379-380 (1934); Arkansas v. Tennessee, 310 U. S. 563, 571 (1940). Arkansas responded to Mississippi’s motion and moved that leave to file be denied and that the complaint be dismissed. The motion for leave to file, however, was granted. 400 U. S. 1019 (1971). Thereafter, the Honorable Clifford O’Sullivan was appointed Special Master. 402 U. S. 926 (1971). The Master’s report eventually issued and was ordered filed. 411 U. S. 913 (1973). Arkansas’ exceptions to the report and Mississippi’s response to those exceptions were forthcoming in due course and the case has been argued to this Court. Prior to 1935 Spanish Moss Bend was on the thalweg, or primary channel, of the Mississippi River. It has not been the thalweg, however, since the Tarpley Cut-off was established about five miles to the east in 1935 by the United States Army Corps of Engineers. The present controversy focuses on what is known as Luna Bar on the eastern bank of the old river at Spanish Moss Bend. The issue simply is whether Luna Bar came into being by gradual migration of the river westward, or, instead, by some avulsive process, also to the westward. Depending on the resolution of this factual issue, legal consequences ensue in line with established principles conceded by the two States to be the law relating to riparian accretion and avulsion. Nebraska v. Iowa, 143 U. S. 359 (1892); Missouri v. Nebraska, 196 U. S. 23 (1904); Bonelli Cattle Co. v. Arizona, 414 U. S. 313, 325-327 (1973). These principles need no reiteration here. It suffices to say that if Luna Bar was formed by accretion, this litigation is to be resolved in favor of Mississippi, and, contrarily, if Luna Bar resulted from an avulsion, the suit is to be resolved in favor of Arkansas. Upon our independent review of the record, we find ourselves in complete agreement and accord with the findings of fact made by the Special Master. Report 34. We therefore affirm those findings, overrule Arkansas’ exceptions to the Master’s report, confirm that report, and in general accept the Master’s recommendations for a decree. We deem it unnecessary to outline at length the evidence adduced, or to reproduce here the detailed analysis of that evidence made by the Special Master. We note only that the dissent would regard the case as close because of three factors: (1) certain testimony as to ancient trees on Luna Bar indicated by the presence of three stumps that could not have lived and died there in the last 100 years, (2) some testimony as to soil on the bar “not compatible with the soil that would result from accretion,” post, at 298, and (3) the bar’s “hard core . . . elevation,” post, at 299-300, that coincides with the elevation “on the adjacent Arkansas bank.” These factors, in our view, would be pertinent except that they reflect only the approach and testimony of Arkansas’ witnesses and overlook pertinent and persuasive testimony to the opposite effect from expert witnesses for Mississippi. The latter are the witnesses that the Special Master credited, as do we, in the evaluation of the conflicting testimony. Arkansas conceded that Mississippi made out a prima facie case of accretion. Tr. of Oral Arg. 19. In addition, the Master was impressed with the total absence of any known historical reference to an avulsion in this area that changed the course of the river by the necessary half mile. And the dissent acknowledges, post, at 295, as to how “Mississippi made its case,” and concedes that the testimony “gives force to the argument that accretion formed Luna Bar,” that there was testimony that in the Mississippi River “avulsion would shorten the course of the river, while here the course was lengthened,” and that Mississippi's experts knew of no instance “where avulsion had worked the way Arkansas claims.” So far as the ancient tree stumps are concerned, Mississippi presented evidence from forestry experts that the forest on Luna Bar was one predominantly of pioneer species with the expected small accompanying, scattered areas of secondary and climax trees, and with no tree more than 37 years old. This is consistent with the first appearance of growth upon Luna Bar depicted in early Mississippi River Commission charts showing the bar to be barren and without vegetation. Report 10. Mississippi's position as to the three particular stumps was that they had been washed in by floodwaters in preceding years; that one had moss on its roots, a condition incompatible with growth in place; and that, at the point where another allegedly was found in 1972, the elevation of the bar was at least 10 feet above what it had been 90 years earlier. Thus the stump necessarily should have been deep in the undersoil of the bar and not on its surface at the time of its removal. Report 11. The soil composition is purely a matter of conflicting testimony and we are persuaded by Mississippi's evidence. Deep borings, of course, would be below the riverbed, and would be expected to be consistent throughout the area on both sides of the river. And, as noted above, charts of 1882 and 1894, admitted into evidence, show Luna Bar as a dry sandbar with no vegetation. The claim of similar elevations, too, encounters strong and convincing opposing authority. Dr. Charles R. Kolb, a highly qualified expert for Mississippi, testified that his study disclosed that the Arkansas bank, from the first comparative recordings until fairly recent times, was about 12 feet higher than Luna Bar. Report 15, 19. R. 354-357. And there is an absence of levee formations on Luna Bar, as contrasted with the presence of pre-1860 levees on the Arkansas bank. We agree with the Special Master’s evaluation of the evidence and conclude, as he did, that Arkansas did not sustain its burden of rebutting Mississippi’s conceded prima facie case, a burden the Arkansas court has described as “considerable.” Pannell v. Earls, 252 Ark. 385, 388, 483 S. W. 2d 440, 442 (1972). Upon our own consideration and our independent review of the entire record, of the report filed by the Special Master, of the exceptions filed thereto, and of the argument thereon, a decree is accordingly entered. It is so ordered. [For decree adopted and entered by the Court, see post, p. 302.] See Arkansas Land & Cattle Co. v. Anderson-Tully Co., 248 Ark. 495, 452 S. W. 2d 632 (1970), a 4-3 decision of the Supreme Court of Arkansas. Mississippi's Constitution of 1890, Art. 2, however, reads, “up the middle of the Mississippi river, or thread of the stream.” Other orders are reported at 402 U. S. 939 (1971) and at 403 U. S. 951 (1971). Although the precedent is not binding in this original action between the two States, it is not without interest to note that in private litigation Luna Bar has been determined to be in Mississippi. Anderson-Tully Co. v. Walls, 266 F. Supp. 804 (ND Miss. 1967). Another private suit involving the issue is the one mentioned above as pending in the Arkansas state courts. Arkansas Land & Cattle Co. v. Anderson-Tully Co., supra. Further proceedings in that litigation were stayed on February 16, 1971, by the Chancery Court of Chicot County, Arkansas, until final judgment in the present action. Special counsel for the respective States here were counsel for the private parties in the cited federal and state court cases. Question: What state is associated with the respondent? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
sc_partywinning	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. INTERNATIONAL LADIES’ GARMENT WORKERS’ UNION, UPPER SOUTH DEPARTMENT, AFL-CIO v. QUALITY MANUFACTURING CO. et al. No. 73-765. Argued November 18, 1974 Decided February 19, 1975 Bernard Dunau argued the cause for petitioner. With him on the briefs were Max Zimny, Bernard Bubenstein, and Bernard P. Jeweler. John E. Jenkins, Jr., argued the cause and filed a brief for respondent Quality Manufacturing Co. Solicitor General Bork, Peter G. Nash, John S. Irving, Patrick Hardin, Norton J. Gome, and Linda Sher filed a brief for respondent National Labor Relations Board. Jerry Kronenberg and Milton Smith filed a brief for the Chamber of Commerce of the United States as amicus curiae urging affirmance. Me. Justice Brennan delivered the opinion of the Court. We set this case for argument with No. 73-1363, NLRB v. Weingarten, Inc., ante, p. 251, 416 U. S. 968 (1974). The National Labor Relations Board held in this case, as it held in Weingarten, that the denial by respondent employer (hereinafter respondent) of an employee’s request that her union representative be present at an investigatory interview which the employee reasonably believed might result in disciplinary action, constituted an unfair labor practice in violation of § 8 (a)(1) of the National Labor Relations Act, as amended, 61 Stat. 140, 29 U. S. C. § 158 (a)(1), because it interfered with, restrained, and coerced the individual right of the employee, protected by § 7 of the Act, 29 U. S. C. § 157, “to engage in . . . concerted activities for . . . mutual aid or protection . . . ,” 195 N. L. R. B. 197 (1972). The Court of Appeals for the Fourth Circuit held, as the Court of Appeals for the Fifth Circuit held in Weingarten, that this was an impermissible construction of § 7 and denied enforcement of so much of the Board’s order as directed respondent to cease and desist from requiring an employee requesting such representation to take part in such an interview without that representation if the employee reasonably feared disciplinary action, and also refused enforcement of provisions that directed respondent to offer reinstatement, with backpay, to the employees who were discharged for asserting this right. 481 F. 2d 1018 (1973). We reverse. Respondent, a manufacturer of women’s clothing, discharged Catherine King on October 16, 1969, after she refused to attend an interview with the company president without union representation. That same day, the company discharged shop chairlady Delila Mulford for her persistence in seeking to represent King at the interview, and assistant chairlady Martha Cochran for filing grievances on behalf of King and Mulford. The events leading to the discharges began on October 10, 1969, when Mulford, King, and two other employees met with Lawrence Gerlach, Sr., the company president; Mary Kathryn Gerlach, his wife and company production manager; and Lawrence Gerlach, Jr., their son and general manager, to complain that they were unable to make a satisfactory wage under the piecework system then in effect. The meeting ended on an acrimonious note when Gerlach, Jr., ordered the employees to return to work and told them that they were free to “go elsewhere” if they were dissatisfied with the company. Later that day, Mrs. Gerlach noticed that King had shut off her machine and was speakingHo several other workers who had also stopped their machines. When ordered to resume production, King told Mrs. Gerlach to mind her own business. Thereupon Mrs. Gerlach directed King to report to Gerlach, Sr.’s office. King complied, but on her way to the office asked union chairlady Mulford to accompany her. Gerlach, Sr., met King and Mulford in the anteroom to his office. He told Mulford to return to work, and ordered King into his office alone. Neither woman complied, and King stated that she would not submit to an interview in the absence of her union representative. At this, Gerlach, Sr., told both women to return to their work stations. That Sunday, October 12, Mrs. Gerlach phoned Mulford and told her that she was suspended for two days. The Board found that the suspension was motivated by Mulford’s attempt to represent King at the interview with Gerlach, Sr. 195 N. L. R. B., at 199. On Monday, October 13, when King reported for work her timecard was missing from the rack, indicating under plant practice that she was wanted in the president’s office. Before going to the office, however, King asked assistant chairlady Cochran to accompany her. They were met at the president’s office by Mrs. Gerlach who told Cochran to go directly to work if she wanted to keep her job because the president wanted to take up with King where they left off on Friday. Cochran replied: “Well, Mrs. Gerlach, I’m sorry, but if that’s what you want to talk to her about, that is Union business and she has asked me to represent her.” Gerlach, Sr., told King he would not return her timecard until she met with him alone in his office. King and Cochran then waited outside the president’s office all day, and during this time Cochran’s timecard was also removed from the rack. Again on the morning of October 14, Gerlach, Sr., told King he would not return her timecard until she agreed to meet with him alone. When Cochran asked about her timecard, Gerlach replied that she was suspended for two days for being away from her machine. The Board termed this reason “pretextual,” and found that in fact Cochran’s attempt to represent King was the reason for the suspension. Neither King nor Cochran worked that day. Much the same transpired the next day, but" tins time Mulford, whose two-day suspension had expired, was also present. After King refused to meet in private with Gerlach, Sr., she and Cochran left the plant, and Mulford returned to work. Finally, on October 16, all three women went to the president’s office. Mrs. Gerlach gave Cochran her time-card and she returned to work. Gerlach, Sr., told King if she refused again to meet with him alone she would be fired. King walked out. Mulford then asked if she could return to work, and Gerlach, Sr., replied: “No, you’ve abandoned your job. You’re finished.” Later that same day, Cochran attempted to present grievances on behalf of King, Mulford, and herself to Gerlach, Jr. He stated he was about to leave town and had no time for such things. When she put the list of grievances on his desk, he picked them up and threw them into the wastebasket. He then pulled Cochran's timecard and told her: “You worked this morning, but you're not working this afternoon.” When Cochran asked Gerlach, Sr., if she had been fired he replied: “Just go home. You wanted to draw unemployment now go on and draw it.” The Board found that “[t]here can be no doubt that under the facts and circumstances of this case King had reasonable grounds to believe that disciplinary action might result from the Employer's investigation of her conduct.” 195 N. L. R. B., at 199. King, therefore, had a reasonable basis for desiring union representation, and the Board found that respondent discharged her for insisting on that right. The Board found further that Mulford and Cochran were suspended, and Mulford discharged, because they insisted on representing King at the interview. Since Mulford and Cochran were engaging in a protected concerted activity, the suspensions and Mulford’s discharge violated §8 (a)(1). Finally, the Board determined that respondent discharged Cochran because she sought to file grievances on behalf of King, Mulford, and herself, and that this discharge was in violation of §§ 8 (a) (1) and (3). On these facts, our decision today in No. 73-1363, NLRB v. Weingarten, Inc., ante, p. 251, clearly requires reversal of the judgment of the Court of Appeals insofar as enforcement of the Board’s order was denied. The judgment is accordingly reversed and the case remanded to the Court of Appeals with direction to enter a new judgment enforcing the Board’s order in its entirety. It is so ordered. [For dissenting opinion of Mr. Chief Justice Burger, see ante, p. 268.] Mr. Justice Powell, with whom Mr. Justice Stewart joins, dissenting. For the reasons stated in my dissent in NLRB v. Weingarten, Inc., ante, p. 269,1 dissent. Later that day, Cochran telephoned Gerlach, Sr.’s secretary to learn whether Gerlach wanted her to report to work the next day. The secretary told her: “He said no.” Cochran then asked the secretary to “tell him that he can reach me at my home phone when he needs me.” Cochran was never notified to return to work. The Trial Examiner found, and the Board agreed, that Cochran was discharged, and that she did not abandon her job. 195 N. L. R. B. 197, 199 n. 9. The Court of Appeals enforced that portion of the Board’s order relating to Cochran’s discharge. The court determined that there was substantial evidence to support the Board’s finding that she was discharged because she sought to engage in the protected union aetivity of filing grievances on behalf of King, Mulford, and herself. The company has not filed a cross-petition, and that aspect of the Court of Appeals’ decision is not before us. Brennan v. Arnheim & Neely, Inc., 410 U. S. 512, 516 (1973); NLRB v. International Van Lines, 409 U. S. 48, 52 n. 4 (1972); Alaska Ind. Bd. v. Chugach Assn., 356 U. S. 320, 325 (1958). We do not address respondent’s objection that it was denied procedural due process because the Board based its order upon a theory of liability under § 8 (a) (1) allegedly not charged or litigated before the Board. The argument is that respondent participated in the proceedings upon the premise that the issue for decision was whether respondent had decided upon discipline prior to the interview, so as to constitute the interview disciplinary and not investigatory in nature, and had no prior notice that, instead of deciding that question, the Board’s decision would turn upon a finding that the employee had “reasonable grounds to fear . . . discipline” at the interview. But respondent failed to file a petition for reconsideration as permitted by Board Rules and Regulations § 102.48 (d)(1), 29 CFR § 102.48 (d)(1), that provides that any material error in the Board’s decision may be asserted through a motion for “reconsideration, rehearing, or reopening of the record.” Respondent therefore cannot assert its objection on appeal “unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” 29 U. S. C. § 160 (e). Respondent did not suggest any “extraordinary circumstances” in either the Court of Appeals or in this Court. The objection therefore may not be considered. NLRB v. Mine Workers, 355 U. S. 453, 463-464 (1958); Glaziers’ Local No. 568 v. NLRB, 132 U. S. App. D. C. 394, 399-400, 408 F. 2d 197, 202-203 (1969). Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case? A. Yes B. No Answer:
songer_appel2_1_3	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. EAGLE FIRE COMPANY OF NEW YORK, an insurance corporation, and Firemen’s Insurance Company of Newark, New Jersey, an insurance corporation, Appellants, v. Pearl L. SNYDER, Appellee. No. 9690. United States Court of Appeals Tenth Circuit. April 11, 1968. Clarence P. Green, Oklahoma City, Okl., for appellants. Gus Rinehart, Oklahoma City, Okl., and W. B. Edwards, Seminole, Okl, for appellee. Before PICKETT, LEWIS and BREITENSTEIN, Circuit Judges. PICKETT, Circuit Judge. Pearl L. Snyder brought this action under the terms of an insurance policy issued to her by Eagle Fire Company of New York and Fireman’s Insurance Company of Newark, New Jersey , to recover for the loss of her 4-unit apartment house and its contents. The policy provided limits of liability for loss by fire and explosion in the amounts of $18,000 on the building, and $6,000 on the personal property. The building was ravaged by an explosion and fire on March 4, 1966. The insurance company admitted the policy coverage, but denied liability to the extent claimed by Mrs. Snyder. The policy limited liability to “the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property * * * .” Upon trial, the jury awarded the insured $10,000 for damage to the building, and $2,000 for the personalty. The sole question presented on appeal is whether the insured sustained the burden of proof necessary to establish the cash value of the property at the time of the loss. Although the evidence of the value is very meager, under the broad rule applicable in Oklahoma, we think it is adequate to sustain the verdict. In Oklahoma, a contract of fire insurance is one of indemnity whereby the insurer agrees to protect the insured against certain stated types of loss to the extent of the coverage stipulated in the policy. When the insured property is totally destroyed, the liability under the policy is the actual cash value thereof at the time of loss. This value is to be determined by relevant factors, including the original cost, replacement cost, the age of the insured property, the condition in which it has been maintained, and the location, use and profit likely to accrue therefrom. American Ins. Co. v. Treasurer, School Dist. No. 87, 10 Cir., 273 F.2d 757; First Nat’l Ins. Co. of America v. Norton, 10 Cir., 238 F.2d 949; Duncan Bros. v. Robinson, Okl., 294 P.2d 822; Rochester American Ins. Co. v. Short, 207 Okl. 669, 252 P.2d 490; National-Ben Franklin Fire Ins. Co. v. Short, 207 Okl. 673, 252 P.2d 495. See, also, Pinet v. New Hampshire Fire Ins. Co., 100 N.H. 346, 126 A.2d 262, 61 A.L.R.2d 706, Anno. 718. Mrs. Snyder, as the owner, testified that the 4-unit apartment house was constructed in 1950 at a cost of over $22,000; that she had furnished the apartments; that the rentals therefrom varied from $40 to $55 per month without utilities; and that she had redecorated the apartments within the year pri- or to the fire. Photographs were introduced from which a jury could have inferred that the property was kept in good condition. Mrs. Snyder listed all of.the furniture and other personal property which she testified was destroyed by the fire, and gave her estimate of the value of each item at the time of the fire. She further testified that she did not keep an accurate record of the different purchases, but was able to supply the cost of some of the larger items and the approximate date of purchase. The total value of the personalty was fixed at $2,791. A building contractor testified that he inspected the building, and that in his opinion the damage caused by the explosion and fire was so extensive that it could not be repaired, and that the cost of replacement would be $35,000. A witness for the insurance company testified that the building could be repaired at a cost of $5,685.67. There was also evidence that the value of the furniture and other personal property was considerably less than that fixed by Mrs. Snyder. The jury resolved this conflict. Affirmed. . It was admitted that Firemen’s Insurance Company of Newark, New Jersey had assumed the obligations as insurer and was obligated to hold Eagle Fire Company of New York harmless. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_origin	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. Robert J. DAIGLE et al., Plaintiffs, Appellants, v. Frank A. HALL et al., Defendants, Appellees. No. 77-1281. United States Court of Appeals, First Circuit. Argued Sept. 14, 1977. Decided Nov. 9, 1977. Dennis P. Flanagan, Boston, Mass., for appellants. Michael C. Donahue, Asst. Atty. Gen., Chief, Violent Crime Unit, Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and John P. Corbett, Asst. Atty. Gen., Boston, Mass., were on brief, for appellees. Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and WOLLENBERG, District Judge. Of the Northern District of California, sitting by designation. COFFIN, Chief Judge. Appellants, inmates in the Massachusetts Correctional Institution at Walpole, brought this suit alleging that their transfers from the general population to the Departmental Segregation Unit (DSU) deprived them of due process of law. We must first decide what process, if any, was due. In Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976), the Supreme Court held that “[a]s long as the conditions or degree of confinement to which the prisoner is subjected are within the sentence imposed upon him and are not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.” Id. at 242, 96 S.Ct. at 2547. It is clear to us that both of these conditions exist in this case. First, the DSU is part of the Massachusetts prison system to which these inmates were sentenced. We are pointed to nothing in tfye order of the sentencing judge that puts the DSU beyond the bounds of their sentences. No liberty interest springs up to protect inmates from transfer to DSU simply because they are originally placed in the less unpleasant surroundings of the general population. See Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Second, we have already held that conditions of confinement in the DSU at Walpole do not of themselves violate the Eighth Amendment. O’Brien v. Moriarty, 489 F.2d 941 (1st Cir. 1974). Appellants have not demonstrated that conditions have so deteriorated as to require a contrary conclusion in this case. Thus freedom from transfer between the general population and DSU is not a “liberty interest” protected by the Fourteenth Amendment in itself. This conclusion was, of course, implicit in our decision in Four Certain Unnamed Inmates v. Hall, 550 F.2d 1291 (1st Cir. 1977), in which we denied any due process relief to inmates who, like the inmates in this case, were transferred from the general population to the DSU at Walpole. As we recognized there, appellants, in order to trigger federal guarantees of procedural due process, must show “some right or justifiable expectation rooted in state law that [they] will not be transferred except for misbehavior or upon the occurrence of other specified events.” Id. at 1292, quoting Montayne v. Haymes, supra, 427 U.S. at 242, 96 S.Ct. 2543. Because Four Certain Unnamed Inmates was decided under the same statute and regulations that governed the transfer in this case, we ought not to have to address the issue again. We do so only because in that case we did not expressly distinguish the statutes and regulations dealt with in Meachum v. Fano, supra, and Lombardo v. Meachum, 548 F.2d 13 (1st Cir. 1977), governing transfer between institutions, from those relevant to transfers within an institution. Mass.Gen.Laws Ann., ch. 127, § 39 (1974), authorizes transfer to the DSU of inmates “whose continued retention in the general institution population is detrimental to the program of the institution.” Retention in the general population may become “detrimental” for any number of reasons. The statute does not “confer upon individual inmates a right not to be transferred absent a showing that specified events have occurred.” Lombardo, supra, 548 F.2d at 15. Nor does D.O. 4450.1 confer such a right. Paragraph 1, the statement of the DSU’s purpose, states that DSU is necessary to house inmates who behave disruptively, creating “serious management problems and/or security hazards.” It does not attempt to set out a precise standard against which one might measure an inmate and conclude that he was outside the purpose of the DSU. It does not say who does not belong in the DSU. Moreover, to the extent it does comment on the type of inmate who will be placed in the DSU, it merely explains the statutory standard, defining “detrimental to the program of the institution” to mean “creating serious management problems and/or security hazards for staff and/or inmates.” The definitional paragraph, 13.2, merely sets out a list of examples of types of inmates who may be confined in the DSU. It does not define any groups who may not be confined in the DSU. Appellants claim that in general, and in their particular cases, specific acts of major misconduct trigger transfers to the DSU. Meachum v. Fano, supra, 427 U.S. at 228, 96 S.Ct. at 2540, however, renders that fact immaterial, so long as the prison official’s discretion is not limited to acts of serious misconduct, because “no legal interest or right . . . would have been violated by their transfer whether or not their misconduct had been proved in accordance with procedures that might be required by the Due Process Clause in other circumstances.” As we have found, the same is true in this context. In addition to their Fourteenth and Eighth Amendment claims, appellants argue that the district court abused its discretion in refusing to accept supplemental pleadings and in refusing to certify certain questions for decision by a state court. Neither claim merits extended discussion. The supplemental pleadings would have greatly broadened the cause of action. The court decided that the original cause of action should be dismissed on its substance. The claims included in the supplemental pleadings are not barred should appellants choose to bring a new suit. The requested abstention concerned an issue of state law that was not particularly difficult — the meaning of the statute and regulations discussed above. We hold that the court did not abuse its discretion in either instance. Appellants now assert that even if they lose on all their federal claims, we should at least remand the case for determination of whether appellees violated state law by failing to observe their own regulations. This claim, however, was never raised below. Appellants relied exclusively on federal causes of action. There is no pendent state law claim for us to consider. Affirmed. . Even so, the regulations governing reclassification, which we held do not impose substantive standards on the transfer decision, Lombardo, supra; Four Certain Unnamed Inmates, supra, apply equally to either context. . Given this finding, we can see no significance to the fact that the prison officials chose to give hearings before some transfers to the DSU, but not before those precipitated by an act that was being referred to a district attorney for investigation. . See Lombardo v. Meachum, 548 F.2d 13, 16 (1st Cir. 1977). Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_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". Randolph W. COPELAND, Petitioner, v. RAILROAD RETIREMENT BOARD, Respondent. No. 20130. United States Court of Appeals Fifth Circuit. Jan. 29, 1964. Thomas N. Crawford, Jr., Birmingham, Ala., for petitioner. Myles F. Gibbons, Gen. Counsel, Railroad Retirement Board, Chicago, 111., David B. Schreiber, Associate General; Counsel, Railroad Retirement Board, Edward E. Reilly, David M. Goldman, Railroad Retirement Board, Chicago, 111., of counsel, for respondent. Before CAMERON and WISDOM,. Circuit Judges, and DeVANE, District. Judge. CAMERON, Circuit Judge. This appeal involves the question of whether there was substantial evidence to support the Railroad Retirement Board’s finding that the petitioner’s physical or mental condition was not such that he was unable to engage in any regular employment. Petitioner, a forty-six year old railroad laborer, applied for an annuity under § 2(a) (5) of the Railroad Retirement Act, on the ground that his “permanent physical or mental condition” was such that he was “unable to engage in any regular employment.” He worked for the Alabama Great Southern Railroad Company as a “bridge builder,” from October 6, 1941 to September 19, 1958, having been disqualified for service by a medical officer of the Railroad. Petitioner has a fifth grade education, and has a history of only menial arduous work. Since petitioner is less than sixty years of age and is credited with less than twenty years of service as an employee under the Railroad Retirement Act, it is impossible for him to be eligible for any type of annuity other than the one under § 2(a) (5) of the Act. Application for an annuity was filed on November 14, 1958. A succession of doctors employed by both the Board and the petitioner found that he was highly nervous, underweight, arthritic, deaf in left ear, and had several other physical disabilities. Psychiatric tests revealed a congenital low intelligence, but no markedly identifiable mental disorders other than extreme apathy. Several doctors expressed an opinion that the petitioner was unfit to continue performing heavy manual labor. The test here is whether the claimant is capable of engaging in “any” gainful employment. Subsequent to the filing of the application petitioner was accorded a general physical examination by a designated Board examiner, Dr. M. P. Hughes. Dr. Hughes reported his diagnosis as “arthritis right elbow, shoulder and spine,” and a loss of hearing in the left ear; on this medical evidence he concluded that petitioner was not then able to work at his last occupation or some other type of work, and that it was questionable whether his condition could be expected to improve, or that he would be able in the future to do any type of work. The Director of Retirement Claims arranged for petitioner to undergo an orth-opaedic examination at the V. A. Hospital in Birmingham on December 23, 1958, where it was concluded that petitioner was not permanently disabled from work in all regular employment. The report of the examination by Dr. Cas Reagan stated that the petitioner was a “small, slender fellow, who weighed 122 pounds;” that petitioner stated his weight had been between 136 and 140 pounds a year earlier; that petitioner had many complaints, especially with respect to the right shoulder, right elbow and lower back; and that “ * * * there is no acute joint tenderness today. However, he is unable to elevate his right arm above the level of his right shoulder, due to arthritis, which he claims in his right shoulder. There is no periarticular tenderness but definite limitation of motion. The lumbo-sacral region, bending forward he can reach about 6" below the knees and there is a slight amount of muscle-rigidity in the lower lumbar region. The lateral movements are limited and so are the backward movements. He cannot flex his right elbow due to pain. He complains considerably of the right knee and says one week ago it was swollen but apparently today there is no swelling but there is limitation of movement and pain on extension and flexion of the right knee * * The X-rays taken at the V. A. Hospital of the right elbow, right shoulder and spine revealed general normality in the bones, joints and interspaces with changes only minimal where they occurred. Petitioner’s family physician, Dr. C. D. Killian, stated: “This man will not be able to return to his employment nor will he be able to do any type of manual labor again and, as I understand it, this is his only qualification. In my professional judgment I would classify him as being totally and permanently disabled.” Dr. A. I. Chenoweth stated, “Mr. Copeland is totally and permanently disqualified- for any gainful employment by reason of arthritis and anxiety tension state with an inadequate personality and an inactive duodenal ulcer.” Nearly a year after petitioner’s application had been filed he underwent a neuropsychiatric examination which showed a mental age of eight years with final diagnosis of (1) mental deficiency and (2) chronic anxiety reaction. On January 12, 1960, Dr. John N. Chit-wood of Birmingham, Alabama examined petitioner and concluded, “In my opinion this man is permanently and totally disabled to perform any type of work.” Dr. Glenn Barnes was of the opinion that “Mr. Copeland does have osteoarthritis but not of sufficient degree to totally incapacitate him. A psychiatric evaluation is, however, suggested, as I feel that he probably has a personality defect.” A general and neuropsychiatric examination was conducted by Dr. Henry Spira on November 24, 1959. Dr. Spira reported, “There is no objective evidence of swelling, edema, deformity, ankylosis, or any muscular atrophy * * . There is no objective evidence of any arthritic change or any muscular weakness or atrophy. Subjectively, however, the patient complains of severe pain on flexion of the trunk and he is hardly able to make a fist or stand on his heels or his toes. There is a marked difference’ between subjective complaints and objective findings. * * The only abnormality found with respect to the nervous system was complete deafness of the left ear. * * * ” Dr. Spira further stated “Perhaps the most outstanding factor in the patient’s general attitude was the fact that he exaggerated his symptoms.” After a psychiatric evaluation on July 18, 1961, Dr. James Sussex summarized that “this man is considered to show impairment of intellectual functions and of general adjustment to a degree inconsistent with any mental, emotional or other psychiatric disorder, disease or defect which can be demonstrated in this single examination.” Petitioner, citing decisions under the Social Security Act, and contending that the standards which the courts have applied in interpreting the disability provisions under that Act apply also in the interpretation of the disability provisions of the Railroad Retirement Act, argues that there was not substantial evidence to support the Railroad Retirement Board’s finding that petitioner’s physical and mental condition was not such that he was unable to engage in any regular employment. It is claimed on behalf of the Board that the tests provided by the two Acts are not identical. § 11 of the Railroad Retirement Act, under which this action was brought, incorporates by reference the judicial review provisions of the Railroad Unemployment Insurance Act, 45 U.S.C. § 355(f), which provides that: “The findings of the Board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive.” The standards prescribed in the Social Security Act are of like import: “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, * * A painstaking examination of the evidence, some of which has been discussed supra, leads us to the conclusion that the finding of the Board was not supported by substantial evidence. The decision of the Railroad Retirement Board is, therefore, reversed and the case remanded for such proceedings as are consistent with this opinion. Reversed and remanded. [Judge DeVANE participated in the hearing and decision of this case, but died before the foregoing opinion was written.] . 45 U.S.C.A. § 228b (a) (5). . E.g., Butler v. Fleming, 5 Cir., 1961, 288 F.2d 591; Ferran v. Flemming, 5 Cir., 1961, 293 F.2d 568; and cf. the opinion of Judge Rives, sitting as District Judge of the Middle District of Alabama, in Aaron v. Fleming, 1958, 168 F.Supp. 291. . 45 U.S.C. § 228 (k). . 42 U.S.C. § 405(g). 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_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. Lewis M. WAGNER, Appellant, v. READING COMPANY. No. 18119. United States Court of Appeals, Third Circuit. Argued Feb. 19, 1970. Decided June 23, 1970. Rehearing Denied July 27, 1970. F. Ross Crumlish, Crumlish & Kania, Philadelphia, Pa., for appellant. Denis V. Brenan, Morgan, Lewis & Bockius, Philadelphia, Pa., for appellee. Before KALODNER and VAN DUSEN, Circuit Judges, and FULLAM, District Judge. OPINION OF THE COURT VAN DUSEN, Circuit Judge. This case is before the court on appeal from a March 19, 1969, judgment on a verdict for plaintiff in an action under the Federal Employers’ Liability Act, 45 U.S.C. § 51 ff., for damages suffered by the plaintiff as the result of an accident during a train movement on the “Columbia Annex Run.” Wagner was conductor of a train crew assigned on March 19, 1965, to transfer cars from a main track of the railroad onto a siding, crossing a road and entering an industrial plant in Columbia, Pennsylvania. He left the engine which his crew was using and entered the plant to make sure that it was safe to move the cars and was crushed between two cars when a fellow employee allegedly moved the train without authorization or signal from the plaintiff, who was in charge. The defendant offered evidence aimed at showing that Wagner himself had given the signal which caused the cars to move. The jury found for the plaintiff but reduced its award of $11,-100. by 40% on the basis of contributory negligence. The trial judge denied plaintiff’s motion for a new trial, and Wagner now asserts several grounds for reversal on this appeal. Cross-Examination of Medical Witness As soon as the injury occurred, Wagner was taken to Columbia Hospital, where he was examined and operated on by Dr. Paul J. Rowan who supervised his convalescence until his release from the hospital. Dr. Rowan testified that, after x-rays were taken, exploratory surgery was performed on the plaintiff which revealed that his stomach and other internal organs had been pushed out of place, and that four of plaintiff’s ribs had been fractured. He removed plaintiff’s spleen and moved the misplaced internal organs to their proper position. Dr. Rowan notified defendant that the plaintiff was able to resume work on May 17, 1965, approximately two months after the accident. During his testimony he made reference to hospital reports made during plaintiff’s treatment which were subsequently introduced into evidence at the close of plaintiff’s case. [1] On cross-examination, defendant’s counsel was permitted to ask Dr. Rowan, over objection, if during surgery he had discovered or detected an esophageal hiatal hernia. He answered that he had not. Plaintiff contended at trial, and he has renewed his contention on appeal, that this was improper cross-examination since it was beyond the scope of his direct examination of the doctor. We disagree. Initially it may be observed that the determination of the extent or limitation upon cross-examination of witnesses is a matter of discretion with the trial court. See Thorp v. American Aviation and General Insurance Co., 212 F.2d 821 (3rd Cir. 1954). Where, as here, a general treating physician has testified on direct examination to his diagnosis and treatment of injuries he discovered in a patient’s chest and abdominal region, it is no abuse of discretion to permit a question aimed at negating an injury to organs in this region. Our conclusion is supported by the statement in the x-ray reports to which Dr. Rowan referred during direct examination that no such hernia existed (see plaintiff’s Exhibit P-3, x-ray report of 3/30/65). Exclusion of Wage Records from August 1966 to Time of Trial The plaintiff testified that, after being released to return to work in May of 1965, he could not cope with the long hours required on the Columbia Annex Run where he had been working at the time of the injury, so that he took a lower paying position in the defendant’s Coatesville Yard until January 21, 1966. At that time, thinking that he would be able to perform the duties, he returned to the Columbia Annex Run, where he worked until August 1966. He left the Columbia Annex Run in that month “Because, as I stated before, after we start making a lot of overtime, and after eight hours or more I start hurting more through the chest cavity. As I get tireder I hurt more.” At that time, he went to work at the defendant’s Lancaster freight run, where he was not required to work overtime. Dr. Rowan testified that he certified that plaintiff could return “to his usual work” on May 17, 1965. However, in response to a question on cross-examination which implied that Wagner had fully recovered at that point, the doctor replied: “I concluded that he had reached maximum medical benefit, and that aside from the sequela which I have mentioned, he had recovered to the point where medical science could bring him.” He also testified that the plaintiff would have “sequela,” including adhesions in the abdomen and permanent scarring in the left chest cavity, and that these residual effects of the accident would cause “distress.” When the plaintiff sought to introduce wage records to demonstrate a differential in pay between what he could have earned had he stayed at the Columbia Annex Run and what he earned after August of 1966 on the Lancaster Run and on similar work prior to trial, the trial judge excluded the evidence over timely objection. After careful consideration of the record, we have concluded that the possible loss of earnings after August 1966 should have been left to the jury and this ruling excluding the wage records was prejudicial error, requiring a partial new trial. Contrary to defendant’s contention, plaintiff’s medical witness did not testify that plaintiff was “fully recovered” when he released him for work in May of 1965. Rather, as noted above, he testified that he had recovered “to the point where medical science could bring him.” In view of his testimony that certain residual effects of the accident would cause the plaintiff distress, plaintiff was clearly competent tq testify to the existence of pain in his chest cavity and the jury could have believed that this pain made the longer hours on the Columbia Annex Run intolerable, as plaintiff claimed. In the context of this claim, we do not believe that medical testimony was required to establish plaintiff's inability to work when such inability was allegedly caused by pain which medical testimony had already established was the result of the accident in question. See Schultz v. City of Pittsburgh, 370 Pa. 271, 88 A.2d 74 (1952); Tabuteau v. London Guarantee & Accident Co., 351 Pa. 183, 40 A.2d 396 (1945). The case of Dixon v. Pennsylvania Railroad Company, 378 F.2d 392 (3rd Cir. 1967), relied on by the defendant, is clearly inapplicable. There a railroad signalman claimed a future loss of earnings from his alleged inability to climb, which purportedly arose from an injury suffered to his right leg. His own doctor, however, testified that the ability to climb could be determined only by climbing and the signalman had not tested his leg by attempting to climb. His employer’s doctors had cleared him for climbing work about a year after the accident. We sustained the District Court’s refusal to submit this issue to the jury on the grounds that a jury verdict would have been “sheer conjecture.” Such was not the case here, where plaintiff had in fact attempted to perform the disputed task for some six months and medical testimony had established that the pain which he claimed necessitated his taking another position was a result of the accident. Because the above-described exclusion of evidence only concerned the damage issues, plaintiff is entitled to a new trial solely on those issues. Any award of damages at the new trial will bear interest from March 19, 1969. Since the record justifies the jury’s findings of negligence and contributory negligence, the assessment of damages portion of the March 19, 1969, judgment will be vacated and the cause remanded for a new trial solely on the issue of damages, in accordance with the foregoing opinion. . The District Court opinion of June 27, 1969, denying plaintiff’s motion for a new trial, is presently unreported. . Because this contention is rejected on the merits, it is not necessary to pass on defendant’s assertion that plaintiff’s failure to raise this issue in his motion for a new trial bars him from arguing it as error on appeal. See Kiernan v. Van Schaik, 347 F.2d 775, 777 (3rd Cir. 1965); accord, Joseph T. Ryerson & Son, Inc. v. H. A. Crane & Brother, Inc., 417 F.2d 1263, 1265 n. 2 (3rd Cir. 1969). . Defendant’s brief suggests that its interest in the condition was based on an answer by plaintiff to an interrogatory listing hiatal hernia as a medical condition for which he was going to demand damages at trial. Brief for Appellee at p. 5. . Plaintiff’s claim that it was error for the trial judge to refuse to permit him to examine a second medical witness is without merit, since the record shows that he voluntarily withdrew the witness. . Plaintiff’s counsel in response to a request for an offer of proof, stated that he planned to ask the company’s record clerk to testify: “ * * * that there is a difference in wages from what he earned when he went back to work and the wages that his replacement earned until January 21, 1966, and that after he had left the Columbia Annex job in August of 1966 until the present time the wages of those who have replaced him were different from what he had earned since then.” . Contrary to defendant's contention (pp. 8-9 of its brief), an examination of the pre-trial memoranda does not establish any limitation on the period of plaintiff’s wage loss claim. If defendant was uncertain of plaintiff’s wage claim, it should have moved that a more specific statement of this claim be stated by plaintiff in an amended pre-trial memorandum. Plaintiff’s Memorandum states (par. B(d) of Document 5): “Wage loss to be determined upon receipt of wage and absence statements.” There is no showing of exactly when such statements were furnished to plaintiff by defendant, but such statements concerning plaintiff had been furnished by the time of the first trial in December 1968 (see notes of Official Court Reporter of hearing on 3/13/69). The transcript of the first trial shows that plaintiff claimed on December 17, 1968, a wage loss from “January 20, 1966 until the present”. Also, by subpoena dated March 6, 1969, and served Friday, March 7 (ten days prior to trial, which started March 17, 1969), plaintiff demanded “all wage and absence records of the individual or individuals who worked in Mr. Wagner’s place on. the Columbia Annex run from March 1965 to the present” (see Document 17). At that time defendant was well aware of plaintiff’s wage claim and his counsel stated it in this language during a hearing sur Motion to Quash the Subpoena on March 13: “What my suggestion was, apparently his claim is that the plaintiff could have worked but was unable to because of a physical disability causally related to the accident, could have worked on the Columbia Annex job from March of 1965 until the present.” It is significant that the District Court did not state that it was excluding the wage records due to a limitation on plaintiff’s wage claim as expressed at the pretrial stage of the case, but the exclusion apparently was due to alleged insufficient evidence that plaintiff wanted to work on the Columbia Annex Run even if his physical condition permitted. At N.T. 155 the court stated: “ * * * I don’t have any evidence before me from which I can conclude, except a self-serving statement by himself that his not working on these various jobs was due to his physical condition.” We believe that plaintiff’s contention that he would in fact have worked on the Columbia Annex Run was an issue for determination by the jury. . Also plaintiff contends that the trial judge erred in permitting defendant to show that the defendant had paid the plaintiff’s medical bills which were introduced in evidence, especially since defendant was reimbursed for such expenses by an insurance carrier. Whereas the “collateral source rule” permits a plaintiff to recover such expenses although he has been reimbursed by his own insurance carrier or where a showing has been made that the defendant itself has paid the bills, intending a gift to the plaintiff, we have found no authority for the proposition that payment by the defendant's insurance carrier qualifies as a “collateral source” within this rule and permits plaintiff to recover for damages already paid for by the defendant. Cf. Feeley v. United States, 337 F.2d 924 (3rd Cir. 1964). . Since defendant’s objection to the improperly excluded evidence has been the cause of the delay in the final assessment of the item of damages, interest should run from March 19, 1969, on the total damages as ultimately computed. . We have considered the other issues raised by the plaintiff on this appeal and find them to be without merit, Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_stpolicy	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". SHENANDOAH VALLEY POULTRY COMPANY, INC., Plaintiff-Appellant, v. ARMOUR AND COMPANY, Defendant-Appellee. No. 87-2964. United States Court of Appeals, Seventh Circuit. Argued April 22, 1988. Decided Aug. 10,1988. Marilyn R. Ratliff, Kahn, Dees, Donovan & Kahn, Evansville, Ind., for plaintiff-appellant. Robert H. Hahn, Bamberger, Foreman, Oswald & Hahn, Evansville, Ind., for defendant-appellee. Before WOOD, Jr. and POSNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge. ESCHBACH, Senior Circuit Judge. Appellant Shenandoah Valley Poultry Company (“Shenandoah”) appeals from the district court’s entry of judgment for Armour and Company (“Armour”) following a bench trial in this diversity matter. I The parties’ dispute arose out of the circumstances surrounding Shenandoah’s November 1982 purchase from Armour of a turkey hatchery located in Patoka, Indiana and a turkey processing plant and related facilities in the Washington, Indiana area. In late 1981, Armour made the decision to sell all of its turkey producing facilities nationwide. It retained a former employee, Donald Wharton, to coordinate the sale of those facilities. Around the same time, Douglas Gregory was hired as General Manager of Armour’s entire Indiana turkey raising and processing operation. Gregory had been made General Manager for the purpose of improving the efficiency of the overall operation and to prepare it for sale. After Shenandoah’s initial inquiry in June 1982, Gregory was explicitly instructed by Armour not to become involved in the negotiations between Armour and Shenandoah. He and Armour had agreed that his employment with Armour would terminate when the Indiana facilities were sold. On August 12 and 13, 1982, Shenandoah and Armour reached a tentative agreement that Shenandoah would purchase the Indiana operations. A Poultry Plant Net Assets Purchase Agreement (the “Purchase Agreement”) was signed by the parties on October 8, 1982 and the purchase was closed on November 8 and 9, 1982. Shenandoah took over operation of the hatchery, processing plant and related facilities on November 1, 1982. It retained Gregory as the General Manager of the overall operation. His employment with Shenandoah commenced on November 1, 1982. This controversy centers on a contract for the supply of turkey eggs to the Pato-ka, Indiana hatchery that Armour entered into with Western Turkey Egg Service (“Western”) in June 1982. The contract between Western and Armour (the “Western contract”) provided, inter alia, that Western was to supply the Patoka hatchery with 70,000 turkey eggs per week from September 27, 1982, until August 31, 1983. The eggs were priced at 49 cents each, F.O.B. at the Patoka hatchery, with a guaranteed fertility rate of 80 percent. In anticipation that the hatchery might be sold, Armour had secured a cancellation clause in the contract whereby the egg supply agreement could be cancelled for the period from January 1, 1983 through August 31, 1983, provided Western was given notice of the cancellation by December 1, 1982. Among the operating contract assignments signed by Shenandoah President Thomas Ferrara at the November 8 and 9, 1982 closing was an “Assignment and Assumption Agreement” whereby Armour assigned to Shenandoah its rights, title and interest in the agreement “between Armour and Company and Western Turkey Egg Service, dated June 22, 1982, for the purchase of turkey eggs.” The signed Agreement was mailed by Armour to Western President Herb Chafin on November 9, 1982. On November 15, 1982, Chafin signed a “Consent to Assignment and Acceptance” printed on the second page of the Assignment and Assumption Agreement, below the signature of Shenandoah President Ferrara, and returned two copies to Armour. The Comptroller of Armour’s Washington area operations, John Goshins-ka, testified that he kept one copy and gave the other to Shenandoah’s Comptroller, George Wray, on November 19, 1982. Sometime in November or December of 1982, General Manager Gregory’s dissatisfaction with the fertility rate and quality of the eggs provided by Western prompted him to begin checking the availability of turkey eggs from other sources. His investigation revealed that turkey eggs with a guaranteed fertility rate of 85 percent were readily available at 46 cents each. The district court expressly found that in June 1982 Gregory had received the Armour interoffice memorandum, dated June 22, 1982, describing the terms of the Western contract and the court concluded that Gregory was aware of the option to cancel provision that contract incorporated. Nevertheless, . Gregory did not contact Western President Chafin until sometime after December 1, 1982 to inform him of Shenandoah’s desire to exercise the option to cancel the January 1, 1983 to August 31, 1983 portion of the egg supply contract. Chafin refused to allow Shenandoah to exercise the expired option. In the months following, Shenandoah’s dissatisfaction with the turkey eggs provided by Western grew. Shenandoah eventually began adjusting the price it paid to Western for the eggs. Western at first refused to accept the reduced payments. However, Shenandoah and Western eventually reached an agreement settling their dispute and entered into a mutual covenant not to sue. Shenandoah brought the present action against Armour on May 23, 1983. II The complaint in this action is of three counts. Count I is a breach of contract claim seeking compensatory and consequential damages and attorneys’ fees, expenses and costs based on the contention that Armour breached its duty under the Purchase Agreement to disclose the existence and terms of the Western contract in the manner required by the Agreement. Count II seeks the same relief as Count I and alleges intentional misrepresentation and fraud by Armour based on its purported failure to give appellant adequate notice of the Western contract. Count III seeks punitive damages based on the contract breach and misrepresentation/fraud alleged in Counts I and II. In its analysis, the district court several times pointed to the “interrelated” nature of Shenandoah’s claims of contract breach and misrepresentation/fraud against Armour. Thus, with regard to the contract breach claim, the court identified the key question to be whether the execution of the Assignment and Assumption Agreement pertaining to the Western contract constituted a modification of the October 8, 1982 Purchase Agreement. The district court believed that if such a modification of the Purchase Agreement was worked by the Assignment and Assumption Agreement, Armour’s arguable failure to satisfy its obligation under the Purchase Agreement to include the Western contract in the list of contracts that were to be assigned to and assumed by Shenandoah would be ameliorated. However, the district court observed that such an effect could be attributed to the execution of the Assignment and Assumption Agreement only if that act was legitimate (i.e., if the assignment and assumption by Shenandoah was not procured by intentional misrepresentation or fraud on Armour’s part). The first, and primary, reason cited by the district court for entering judgment against Shenandoah was the undisputed fact that Douglas Gregory was aware of the Western contract and its cancellation clause. In that regard, the district court stated: “On November 1, 1982, Mr. Gregory became the manager of Shenandoah’s Washington operations. He had a month to discuss the matter with his superiors and to cancel Shenandoah’s obligations under the agreement. Instead ... Mr. Gregory concentrated on improving the processing plant.” The court viewed Gregory’s knowledge of the cancellation option in the Western contract and his failure to exercise that option during the month of November 1982 as “fatal” to Shenandoah’s breach of contract claim. It found no merit in Shenandoah’s contention that Gregory’s knowledge of the Western contract and its terms could not be imputed to it because Gregory gained that knowledge before his employment with Shenandoah commenced, while he was still employed by Armour. Instead, it imputed Gregory’s knowledge of the Western contract to Shenandoah, effective the date his employment with Shenandoah commenced, November 1, 1982. In beginning its analysis of whether Shenandoah’s assumption of the Western contract was procured by Armour through acts of misrepresentation and fraud, the district court noted several facts in the record that “are not easily explained.” However, after discussing those facts, it concluded that Shenandoah had failed to prove either fraud or intentional misrepresentation by Armour. Because it perceived no motivation on Armour’s part to have Shenandoah assume the Western contract, the court found no basis for holding that Armour knowingly misrepresented or hid the Western contract from Shenandoah. Further, it stated that Shenandoah had not shown that the signature of its President, Mr. Ferrara, on the Western assignment document had been fraudulently obtained by substituting (in place of an unsigned second page of that document) a page containing Mr. Ferrara’s signature. Thus, the district court clearly and unequivocally rejected Shenandoah’s claims of misrepresentation and fraud against Armour. Based on these key findings as to Shenandoah’s two substantive claims against Armour, the district court entered judgment for Armour. Ill Shenandoah’s appeal is narrowly focused. It contends that this case presents a question of law as to whether the district court erred when it held that Douglas Gregory’s knowledge of the Western contract was a “complete defense” to appellant’s claims of breach of contract and misrepresentation (and fraud). We see only one possible question of law presented by Shenandoah’s appeal. That question is whether, as a matter of Indiana law, the district court correctly concluded that Gregory’s undisputed knowledge of the existence and terms of the Western contract could be imputed to Shenandoah. Our review on this question of law is de novo. Curtis v. Thompson, 840 F.2d 1291, 1296 (7th Cir.1988). See also United States v. L’Allier, 838 F.2d 234, 240 (7th Cir.1988) (holding that a district court’s determination of a question of law is reviewed de novo). Three cases are the focus of our inquiry. The most significant is the opinion of the Indiana Supreme Court in Prudential Insurance Co. of America v. Winans, 263 Ind. 111, 113, 325 N.E.2d 204, 206 (1975), which establishes the following straightforward rule of Indiana law: “Generally the knowledge of an agent acting within the scope of his authority is imputed to his principal.” In City of Indianapolis v. Bates, 137 Ind.App. 227, 205 N.E.2d 839 (Ind.1965), cited by the Indiana Supreme Court in Winans and relied on by Shenandoah, the former Appellate Court of Indiana stated: “A principal is charged with the knowledge of that which his agent by ordinary care could have known where the agent has received sufficient information to awaken inquiry.” Bates, 137 Ind.App. at 241, 205 N.E.2d at 847 (citing Travelers Ins. Co. v. Eviston, 110 Ind.App. 143, 37 N.E.2d 310 (1941)). After articulating the general rule cited above, the Appellate Court in Bates went on to state: Knowledge of material facts acquired by an agent in the course of his employment, and within the scope of his authority, is the knowledge of the principal, and where no actual knowledge of the principal is shown, the rule will be given the effect on the theory of constructive knowledge, resting on the legal principle that it is the duty of the agent to disclose to his principal all material facts coming to his knowledge, and, upon the presumption that he has discharged that duty. Id. (citing National Mutual Ins. Co. of Celina, Ohio v. Bales, 81 Ind.App. 302, 139 N.E. 703 (1923)). In Jones v. City of Logansport, 436 N.E. 2d 1138 (Ind.App.1982), a plaintiff employee of a construction subcontractor brought suit against the city and its prime contractor on a sewage treatment plant construction project. The plaintiff was injured when a crane he was operating came into contact with uninsulated high voltage electrical lines. In appealing the grant of summary judgment for the city by the state trial court, the plaintiff argued that the agent the city had hired to oversee the construction project was aware of the presence at the construction site of uninsulated electrical lines and that this knowledge could therefore be imputed to the city. The Indiana Court of Appeals rejected this assertion by the plaintiff/appellant because of its finding that the agent was not responsible for safety matters at the sewage plant construction site. Thus, because the agent did not have a duty to ameliorate the purportedly unsafe condition, the court of appeals held that any knowledge the agent may have had of the alleged unsafe condition could not be imputed to its principal, the city. In so holding, the court set forth this qualification as to the scope of matters within the knowledge of an agent that can be imputed to his/her principal. “An agent’s knowledge will be imputed to the principal only when the matter is within the scope of the agent’s authority and with reference to matters over which the agent’s authority extends.” Jones, 436 N.E.2d at 1151. In its initial brief, Shenandoah states that it “does not dispute the general rule [of Indiana law] that knowledge of an agent can be imputed to the principal, even though the information of which the agent has knowledge is never actually communicated to the principal.” However, it submits that under Indiana law, this general rule is limited to circumstances where the agent’s knowledge is acquired in the course of the agent’s employment with the principal. It cites Bates and Jones in support of that assertion. Our research leads us to conclude that Shenandoah misconstrues the controlling Indiana law. We are convinced that under Indiana law, the knowledge General Manager Gregory had of the existence and terms of the Western contract, including the December 1, 1982 deadline for cancellation of the balance of the contract, can properly be imputed to Shenandoah. Gregory was in charge of the entire hatchery and processing plant operation and all of the related facilities. The Western contract for the supply of turkey eggs to the hatchery certainly fell within the scope of Gregory’s authority to act on behalf of his employer, Shenandoah, as of November 1, 1982 and thereafter. See Winans, 263 Ind. at 113, 325 N.E.2d at 206; Jones, 436 N.E.2d at 1151. As of November 1, 1982, Gregory was Shenandoah’s agent. Because his knowledge of the terms of the Western contract was material to the operation of the hatchery and processing plant operation, Gregory, as Shenandoah’s agent, had a duty to disclose that knowledge to his principal. Bates, 137 Ind.App. at 421, 205 N.E.2d at 847. Thus, regardless of whether Gregory discharged his duty to disclose the terms of the Western contract to Shenandoah, Shenandoah can be charged with constructive knowledge of those contract terms, including the cancellation option. Id. The fact that Gregory was not involved in the negotiations that led to Shenandoah’s purchase of the Washington, Indiana operation from Armour is immaterial to the question of whether his knowledge of the Western contract can be imputed to Shenandoah. It also is of no consequence that Gregory may have obtained the knowledge of the Western contract as early as four months before he became an employee of Shenandoah, while he was still employed by Armour. See Restatement (Second) of Agency § 276 (1957) (“Except for knowledge acquired confidentially, the time, place, or manner in which knowledge is acquired by a servant or other agent is immaterial in determining the liability of his principal because of it.”) See also id., comment a (“Since the mind of the agent cannot be divided into compartments, the principal should be bound by whatever knowledge the agent has irrespective of its source or time of acquisition unless it is the kind of knowledge which the agent can properly disregard in the specific case because of having acquired it confidentially.”). Therefore, we conclude that the district court did not err when it determined that Gregory’s knowledge of the Western contract could be imputed to Shenandoah. IV But for the previously-addressed contention as to the propriety of the imputation of Gregory’s knowledge, Shenandoah does not assert that the district court relied on improper legal standards in entering judgment in favor of Armour. Rather, the remainder of its argument is devoted to attempts to rebut the district court’s findings of fact. Consequently, the balance of our review of the district court’s actions will be limited to a clear error analysis. Fed.R.Civ.P. 52(a). See Andre v. Bendix Corp., 841 F.2d 172, 176 (7th Cir.1988) (holding that on review, pursuant to Fed.R. Civ.P. 52(a), the findings of fact of a district court “shall not be set aside unless clearly erroneous”); see also EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 310 (7th Cir.1988). As noted previously, the district court’s decision to grant judgment for Armour was based on several key findings of fact. The district court concluded that Shenandoah failed to prove an act of fraud or misrepresentation on Armour’s part. Thus, it determined, in effect, that the signature of Shenandoah President Thomas Ferrera on the Western Turkey Egg Service Assumption and Assignment Agreement was genuine and that the document was binding on Shenandoah. The district court also determined that Shenandoah, through Douglas Gregory, had knowledge both of the nature of Western’s past performance and of the cancellation option incorporated in the Western contract. Shenandoah does not directly challenge the district court’s finding that it failed to prove intentional misrepresentation or fraud by Armour. The contentions it raises as to the inferences warranted by the evidence do not support a finding of clear error with regard to this first crucial finding of fact by the district court. Accordingly, we must accept the district court’s holding that Armour did not commit an act of intentional misrepresentation or fraud and we need not further evaluate the propriety of the district court's rejection of appellant’s Count II claims. There are two discernible bases for the district court’s entry of judgment for Armour on Shenandoah’s Count I breach of contract claim. First, it is apparent from the manner in which the district court framed its analysis that in rejecting appellant’s misrepresentation/fraud claim, the court effectively concluded that Shenandoah’s execution of the Assignment and Assumption Agreement pertaining to the Western contract rendered inconsequential Armour’s arguable technical breach of its obligation under the October 8, 1982 Purchase Agreement to expressly inform Shenandoah of the existence of the Western contract. The second basis for the district court’s rejection of Shenandoah’s breach of contract claim is found in its analysis of the significance of General Manager Gregory’s knowledge of the terms of the Western contract and his, and Shenandoah’s, failure to exercise the cancellation option provided by that contract in a timely manner. The district court’s opinion does not employ proximate cause terminology. Nevertheless, it is clear that the key to the court’s denial of appellant’s Count I breach of contract claim was its conclusion that Shenandoah’s injury resulted, not from Armour’s arguable technical breach of the Purchase Agreement, but rather from Shenandoah’s own failure, during the month of November 1982, to exercise the cancellation option in the Western contract. Thus, the district court stated: “Mr. Gregory’s knowledge of the terms of the Western contract and the fact that it could have been cancelled for the first month of his employment with Shenandoah are fatal to the breach of contract claim.” It is clearly established in Indiana law that a plaintiff can recover damages for breach of contract only when he/she is able to establish that the purported breach was the proximate cause of his/her injury. See Terre Haute Regional Hospital, Inc. v. El-Issa, M.D., 470 N.E.2d 1371, 1382 (Ind.App.1984) (“In a breach of contract action only those damages proximately resulting from the breach are recoverable.”); Alber v. Standard Heating & Air Conditioning, Inc., 476 N.E.2d 507, 511 (Ind.App.1985) (“Generally, a breaching party is liable for all injuries proximately resulting from his wrongful acts.”); Tipton County Abstract Co. v. Heritage Federal Savings and Loan Association, 416 N.E.2d 850, 853 (Ind.App.1981) (stating that a defendant in a breach of contract suit cannot be held liable “for damages caused by factors other than his breach” and “[i]t is axiomatic that a breaching party is only liable for losses caused by his breach”). The district court’s tacit focus on the proximate cause question establishes that it applied the correct legal standard for evaluating the effect of Gregory’s knowledge of the Western contract on Shenandoah’s breach of contract claim against Armour. Accordingly, our scrutiny of that aspect of the district court’s holding is limited to a review of the soundness of its implied finding of fact that it was Shenandoah’s failure to act to cancel the Western contract during the period from November 1,1982 through December 1,1982 that was the proximate cause of the injury it claims to have incurred. Having evaluated all of the relevant evidence in the record, we are unable to deem that finding of fact by the district court to have been clear error. V The district court’s determination that Shenandoah failed to prove that Armour engaged in either an act of fraud or intentional misrepresentation against Shenandoah is unchallenged and must be accepted. We have ascertained that the district court did not err when it found that Shenandoah’s own inaction during the period from November 1, 1982 through December 1, 1982 was the proximate cause of its injury. Accordingly, we will affirm. The judgment of the district court is Affirmed. . Section 2.1 of the October 8, 1982, Poultry Plant Net Assets Purchase Agreement between Shenandoah and Armour states: Seller agrees to sell, convey, assign, transfer and deliver to Buyer, or to cause the same to be done, and Buyer agrees to purchase, accept, assume and take delivery of the following properties, assets and rights of Seller used in or related to its current conduct of the Business, on the closing date defined in Section 12.1 (the "Closing Date”): (d) "Contracts”: The contracts leases, licenses, permits and other agreements described in Exhibit "E”, to the extent they shall not have been terminated on or before the take-over date defined in Section 12.1 (the “Take-over Date”) and are assignable. Section 5.1(a) of the Purchase Agreement provided that Shenandoah, as buyer, would assume, inter alia, the liabilities contained in the contracts accruing on the Take-over Date which were assigned to it on the closing date. Shenandoah's breach of contract claim (as well as its misrepresentation/fraud claim) against Armour was triggered by Armour's failure to list the Western contract in Exhibit "E” of the Purchase Agreement. . In its brief, Shenandoah did not make any express reference to the allegation of fraud raised by Count II of its complaint. . Nothing in Winans, Bates or Jones indicates the qualification asserted by Shenandoah, i.e., that the knowledge of an agent-employee will be imputed to his/her principal/employer only if the agent obtained that knowledge while employed by that principal. It is true that the knowledge imputed to the principal in Winans was acquired by the agent in the course of his employment with the principal. The same was true in Bates. The second portion of Bates which we quote in the text does make reference to the ”[k]now-ledge of material facts acquired by an agent in the course of employment" being imputed to the agent's principal. 137 Ind.App. at 241, 205 N.E. 2d at 847. It is this portion of the opinion in Bates that Shenandoah apparently relies on to support its contention that the knowledge of General Manager Gregory as to the existence and terms of the Western contract cannot be imputed to it. The language of Bates cited immediately above followed the Indiana Appellate Court’s statement of the previously discussed broad, general rule of imputation of an agent's knowledge to the principal. Given that fact, we believe the subsequent language in Bates to be only an adaptation of the general, controlling rule to the specific facts present in that case and not a rearticulation or narrowing of the rule itself. We find Shenandoah’s interpretation of Bates unpersuasive. . There is no evidence in the record to indicate that Gregory acquired his knowledge of the Western contract confidentially. . We have previously ascertained a suitable basis for affirming the district court's judgment as it pertains to Shenandoah’s misrepresentation/fraud claim against Armour. However, as an alternative basis for that holding, we note that Indiana law also requires as a prerequisite for the recovery of damages in a misrepresentation/fraud case proof by plaintiff that the defendant’s tortious actions were a proximate cause of his/her injuries. Captain & Co. v. Stenberg, 505 N.E.2d 88, 98 (Ind.App.1987) (holding that a plaintiff is entitled to recover for fraudulent [mis]representation when his/her injury is “the proximate consequence of [his/her] reliance on the fraudulent representations.” The court went on to state: "Obviously, the recovery must be limited to those damages which were the proximate result of the deceptive act.”). We have determined that the district court’s implied finding that Shenandoah’s inaction, and not the actions of Armour, was the proximate cause of Shenandoah’s injuries was not clear error. Thus, even if Shenandoah had proven that Armour engaged in an act of misrepresentation and/or fraud, appellant would not be able to recover damages because of its failure to establish the necessary proximate cause nexus between its injuries and the conduct of Armour. Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_typeiss	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Plaintiff-Appellant, v. Barbara B. BLUM, as Commissioner of Social Services of the State of New York, et al., Defendants-Appellees. No. 936, Docket 81-6251. United States Court of Appeals, Second Circuit. Argued April 2, 1982. Decided May 4, 1982. Peter F. Nadel, New York City (Rosen-man, Colin, Freund, Lewis & Cohen, Stephen L. Ratner, Edward S. Kornreich, New York City, of counsel), for plaintiff-appellant. J. D. Pope, Asst. U. S. Atty., S. D. N. Y., New York City (John S. Martin, Jr., U. S. Atty., S. D. N. Y., Richard N. Papper, Asst. U. S. Atty., New York City, of counsel), for defendant-appellee, Secretary of the Department of Health and Human Services. Neal Johnston, Asst. Atty. Gen. of N. Y., New York City (Robert Abrams, Atty. Gen. of N. Y., New York City, of counsel), for Barbara B. Blum, David Axelrod and Howard F. Miller, defendants-appellees. Before FEINBERG, Chief Judge, WINTER, Circuit Judge, and MISHLER, District Judge. Senior United States District Judge for the Eastern District of New York, sitting by designation. FEINBERG, Chief Judge: This appeal concerns one in a long series of challenges to the methodology chosen by the State of New York, with the approval of the Secretary of the United States Department of Health and Human Services, for computing Medicaid reimbursement under the Medicaid Act, 42 U.S.C. §§ 1396 et seq. (1976). This particular challenge was brought by the New York City Health and Hospitals Corporation (HHC), a public benefit corporation that operates many health care facilities, including municipal hospitals, and alleges a conflict between the State’s 1980 Plan for Medical Assistance, N.Y.Admin.Code tit. 10, § 86 (approved Jan. 1, 1980) on the one hand, and the Medicaid Act and the Professional Standards Review Organizations (PSRO) Act, 42 U.S.C. §§ 1320c et seq., on the other hand. It comes to us as an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) of an order of the United States District Court for the Southern District of New York, Charles L. Brieant, Jr., J., denying a motion by HHC for summary judgment on the first of five counts in HHC’s complaint against three state officials and the Secretary. We also have before us a motion by appellees to dismiss the appeal on the ground that it is moot and that § 1292(b) certification was improvidently granted. Because we agree that this case is not properly in this court, we grant the motion to dismiss and remand the case to the district court for further proceedings. I. The complicated procedural context in which we find ourselves arose as follows. On September 29, 1980, HHC filed a complaint against appellees for declaratory and injunctive relief, claiming that the State improperly calculated the rate at which HHC hospitals were reimbursed for the treatment of 1980 Medicaid patients. In the challenged plan, the State sought to control the costs of Medicaid by basing reimbursement rates on how economically the hospitals that claimed reimbursement were run. To do that, a complicated plan, described in greater detail in Judge Brieant’s memorandum and order of July 6,1981, was employed. For purposes of this appeal, it is sufficient to note that the State did not reimburse a hospital for its actual 1980-in-curred costs. Rather, the State calculated a per diem reimbursement rate for 1980 based on each hospital’s performance in 1978. Hospitals were divided into “peer groups” according to their size, location, and other characteristics. The State then set ceilings for per diem costs for hospitals in each peer group based on the average actual costs of running the hospitals in that group in 1978. In order to determine the 1980 reimbursement rate for a given hospital, the State used that hospital’s actual 1978 costs, but disallowed all 1978 costs over its peer group’s ceiling. The State also took factors other than costs into account in determining the 1980 rate. Critical to this appeal is the fact that the State set ceilings on the number of days that it was appropriate to keep a patient in the hospital. Patients were categorized into 493 treatment groups and hospitals were categorized into four hospital groups. The State then calculated the average length of stay (LOS) of a patient in each treatment group in each hospital group for the year 1978. As with the cost ceilings, per diem rates for 1980 were lowered if, in 1978, a hospital kept its patients longer than the LOS ceiling allowed. In the first count of the complaint, which is in issue here, HHC contends that a reimbursement rate that is based on a LOS factor conflicts with the PSRO Act. In the PSRO Act, Congress placed authority to oversee certain aspects of health care reimbursement under Medicaid and Medicare into the hands of special review boards composed of licensed doctors. Under the Act that was in effect in 1978 and 1980, if a hospital had a PSRO, then the PSRO was given conclusive authority to determine how many days’ worth of services would be reimbursed under Medicaid, §§ 1320c-4(a)(1)(A) and 1320c-7(c), Greater New York Hospital Association v. Blum, 634 F.2d 668, 671 (2d Cir. 1980). HHC argues that the conclusiveness of the PSRO determination of an appropriate length of stay is undermined if the State can penalize a hospital for what the State considers an excessive LOS by simply lowering the per diem rate for each PSRO-approved day. Both sides moved for summary judgment on this count and, in addition, the Secretary moved for dismissal for failure to state a claim upon which relief can be granted. Judge Brieant denied all motions by order dated July 6, 1981. He reasoned that since the Medicaid Act only gives the HHC the right to its “reasonable cost of inpatient hospital services,” § 1396a(a)(13)(D), HHC would have standing to challenge the reimbursement formula only if the formula served to deny HHC’s hospitals a reasonable cost. He therefore concluded that HHC’s standing was a factual issue to be determined by a full trial, and that summary judgment was inappropriate. Subsequently, on July 24, 1981, Judge Brieant certified four questions as involving controlling questions of law, in substantial dispute, whose resolution would advance the ultimate termination of litigation. HHC petitioned this court for leave to appeal under 28 U.S.C. § 1292(b), and on December 11, 1981, a panel of this court accepted the following question for review: [Assuming the length of stay provision in the New York State Medical Assistance Plan conflicts with the requirements of the PSRO Act] whether HHC has standing to assert injury, or is entitled to relief, based on the use of the “length of stay” factor in calculating the Medicaid per diem reimbursement rates in the absence of a showing that use of the calculated per diem rate has denied HHC reimbursement of its “reasonable cost” as required by the Medicaid Act, 42 U.S.C. § 1396a(a)(13)(D). In August 1981, however, an important change was made in the relevant federal law: PSRO determinations were eliminated from Medicaid, 42 U.S.C.A. § 1320c-4(a)(1)(A) and 1320e-7(c) (West Supp. 1975-81), and the states, which had formerly been required to get federal approval for their payment plans, were given plenary authority to determine “reasonable and adequate” reimbursement rates, compare § 1396a(a)(13)(D) (1976) with 42 U.S.C.A. § 1396a(a)(13)(D) (West Supp. 1975-1981). Contending that this case was made moot, and, in any event, was not appropriate for interlocutory appeal, appellees moved to have the certification vacated as improvidently granted. On February 9, 1981, a panel of the court referred the motions to the panel hearing the appeal and recommended that the parties apply to the district judge to see whether he was inclined to modify or withdraw his certification. This application resulted in a memorandum and order dated February 11,1982, in which Judge Brieant declined to decertify the question, although he did offer the modification set out in the margin. II. We can easily understand how this question came to be appealed in this manner. Standing “generally is a matter dealt with at the earliest stages of litigation, usually on the pleadings. ... ” Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91,115 n.31, 99 S.Ct. 1601, 1615 n.31, 60 L.Ed.2d 66 (1979). Since a litigant cannot maintain his cause of action without demonstrating his standing, disposition of that issue often presents the type of controlling question suitable for interlocutory review. Nonetheless, upon careful consideration, we find that the certified question is not now ripe for review. There are a number of fundamental problems with the appeal as now presented to us. Thus, there is no district court ruling on the overall issue of HHC's standing to bring the claim alleged in count one of the complaint. The district judge refused to hold that HHC had standing as a matter of law; but neither did he rule that HHC did not have standing. The trial judge was of the view that HHC’s standing was a factual issue to be determined after a full trial on the question whether the reimbursement formula denied HHC reimbursement of its “reasonable cost” under 42 U.S.C. § 1396a(a)(13)(D). But HHC’s first cause of action — the only one before us — does not allege that it was denied reasonable costs under that section. The crux of that cause of action is that the LOS penalty provision conflicts with the PSRO Act. Although the district court expressed a belief that the LOS ceiling “may conflict” with the PSRO Act and certified that issue, the judge did not decide the issue. Nor did the district court discuss whether the PSRO Act provides a private cause of action to a hospital, a question that was specifically left open by this court in Greater New York Hospital Association v. Blum, 634 F.2d at 672 n.8. Indeed, if such a cause of action exists, plaintiff would seem the logical party to seek to enjoin an alleged conflict between the LOS provision and the PSRO Act. Appellant argues that that even if the PSRO Act does not provide it with a cause of action, it nonetheless has the right to challenge the LOS penalty under the Medicaid Act. This is true, HHC claims, because § 1396a(a)(13)(D) defines “reasonable cost” as that “determined in accordance with methods and standards, consistent with section 1320a-l of this title, which shall be ... approved by the Secretary ... . ” Since the Secretary is required to apply the PSRO Act, any violation of that Act necessarily reduces HHC’s reimbursement below the statutory reasonable costs, giving HHC the right to sue. Put in this way, a key question again becomes whether the LOS provision violates federal law, an issue not decided by the district court. Section 1292(b) was not designed to bring up the merits without prior adjudication in the trial court; the section allows interlocutory appeal of orders — not interlocutory appeal of issues. Consequently, there has to be an order to appeal from that decides the merits of the “controlling question” certified. Fed.R.App.P. 5(b) states “The petition shall contain a statement of the facts necessary to an understanding of the controlling question of law determined by the order of the district court .. .. ” (Emphasis added). While it is true that, as already indicated, the district judge denied summary judgment on the ground that HHC lacked standing as a matter of law, the certified question is based on an assumed conflict between the LOS penalty and federal law, and the district judge has not decided whether the conflict in fact exists. Appellant is therefore apparently asking us for an advisory decision based on a premise that may be destroyed. This we should not do, see Oneida Indian Nation of New York State v. County of Oneida, 622 F.2d 624, 628 (2d Cir. 1980). See also Nickert v. Puget Sound Tug & Barge Co., 480 F.2d 1039 (9th Cir. 1973) (per curiam). In the latter case, the trial court’s order stated that if at the trial on the merits, it is found that X is true, then partial summary judgment will be entered in favor of the defendant. It then certified to the circuit court the question whether a finding of X required judgment for defendant as a matter of law. The Ninth Circuit vacated the certification on the ground that “The trial court’s announcement of its opinion on this question of law, although characterized as partial summary judgment, is nothing more nor less than an hypothetical, advisory opinion. It is subject to revision or reversal at any time .... ” Id. at 1041. Another problem with the certified question is that it might relate to an issue that is now moot. Significant changes have been made in the relevant federal law, and under the general rule, appellant’s case must be evaluated under the law as it stands now, Fusari v. Steinberg, 419 U.S. 379, 387, 95 S.Ct. 533, 538, 42 L.Ed.2d 521 (1975). While we can imagine several situations that might make the controversy still live, the determination of mootness should be made, in the first instance, in the district court. A finding there that the case is moot would make our standing pronouncement merely advisory. In view of the foregoing discussion, we feel compelled to dismiss the appeal because the § 1292(b) certification was improperly granted. After the ease is returned to the district court, however, HHC need not follow the same course of attempting to obtain swift appellate review by the certification route. We understand HHC’s concern for quick relief, particularly in view of its claim that some of its constituent hospitals are “bleeding to death” because of appellee’s disallowance of many millions of dollars of reimbursement. We see no reason, however, why HHC cannot seek a preliminary injunction, a course it apparently decided not to follow in the trial court, as the judge pointed out in a footnote in his July 6 memorandum. This route offers the potential of providing HHC with the relief it claims it needs. If the trial court finds HHC’s arguments persuasive, the court could enjoin further, arguably incorrect, payments for 1980 pendente lite and preserve the viability of the appeal and the prospective nature of the relief sought. Also the trial court’s decision either to grant a preliminary injunction or to deny it would be appealable immediately under § 1292(a)(1), allowing rapid determination of various important issues of public law. Most importantly, the process of deciding whether to issue the injunction will more fully crystallize the questions, create a better record, and give us the benefit of the trial court’s thinking on each of the important subissues involved. We realize that a decision to grant a preliminary injunction turns on the likelihood of HHC’s success on the merits, and not on the definitive correctness of its position. Nevertheless, adjudication of the application would require the court to determine first, whether it is likely that the PSRO Act creates a right of action in favor of hospitals subject to PSRO oversight. The court would also be required to decide whether it is likely that the LOS provision conflicts with the PSRO Act, and that the controversy is still a live one. A preliminary injunction will not, of course, necessarily avoid a later, time-consuming trial. But neither would a decision on the certified question. Three other counts remain to be tried, and in addition, framing a permanent injunction may well require the district court to take extensive evidence on whether the state could contain costs in other ways consistent with the PSRO Act. We also realize that HHC would like to have a decree framed in a manner that would further its cause in the state court, where it is suing to recoup reimbursements that had been denied by reason of the LOS penalty. But that alone would not justify our entertaining an appeal we would otherwise dismiss, cf. Hospital Association of New York State, Inc. v. Toia, 577 F.2d 790, 798 (2d Cir. 1978). The appeal is dismissed on the ground that § 1292(b) certification was improvidently granted, and the case is remanded to the district court. . Judge Brieant summarized the five counts in the complaint as follows: 1. The LOS ceiling, incorporated in the State Plan, is inconsistent with the exclusive statutory authority of the PSROs to determine appropriate lengths of stay in each case. Implementation by the State Defendants accordingly violates the PSRO Act and Regulations promulgated thereunder; and the Secretary’s approval is therefore arbitrary, capricious and invalid. 2. The LOS ceiling violates the Medicaid Act’s requirement of reimbursement of “reasonable costs”; and the Secretary’s approval of the LOS provisions is therefore invalid because: (a) a double penalty is imposed on hospitals because the LOS ceiling and the PSRO determinations could result in a disallowance of the same routine costs; (b) the LOS ceiling fails to take account of factors special to plaintiffs hospitals, such as the higher proportion of patients from lower socio-economic groups, admitted on emergency bases and requiring longer term care than those less socially disadvantaged having the same ailment; which in turn results in medically necessary longer lengths of stay; (c) the LOS ceiling results in an disallowance of all routine costs incurred on excess days although only a small portion of the costs are attributable to the longer stay; (d) use of imputed days, resulting from under-utilization of certain services, in calculating the LOS ceiling is not related to hospital efficiency or the reasonableness of the costs incurred. 3. The LOS ceiling violates the Medicaid Act’s requirement that “methods and standards” for the determination of reasonable costs be included in the State Plan and approved by the Secretary. In the absence of standards, the grant of discretion to the State to determine LOS ceilings is impermissible. The Secretary’s approval of the plan is therefore arbitrary and capricious. 4. Contrary to the requirements of the Medicaid Act and the regulations promulgated thereunder, see 42 U.S.C. § 1396a(a)(4) and implementing regulation 42 C.F.R. § 431.-12(e), the State did not consult the Medical Care Advisory Committee [established pursuant to N. Y. Social Services Act, § 365-c(2)] prior to the implementation of the Plan. Count Five is asserted only against the State Defendants: 5. The State Defendants have excluded from reimbursement all costs incurred on PSRO disallowed days although the fixed costs are reasonable costs which ought to be reimbursed. The defendants moved for summary judgment on all counts and the plaintiff moved for summary judgment on most counts. Judge Brieant denied all motions except for the State defendant’s motion on count five. That motion was granted, but his decision is not before us at this time. . The other questions certified by Judge Brieant, which were not accepted for review by the panel, were: 1. Whether the “length of stay” provisions in the New York State Medical Assist- . anee Plan, 10 N.Y.C.R.R. § 86-1.14(c), adopted pursuant to Title XIX of the Social Security Act, 42 U.S.C. § 1396, et seq., conflict with the requirements of the Professional Standards Review Organizations Act, 42 U.S.C. §§ 1320c, et seq. 3. Whether as a matter of law, the approval of the “length of stay” provisions in the New York State Medical Assistance Plan by the Secretary of the United States Department of Health and Human Services is invalid as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” within the meaning of 5 U.S.C. § 706(2)(A), or as in excess of his statutory authority under the Medicaid Act, 42 U.S.C. § 1396a. 4. Whether summary judgment should have been entered for plaintiff HHC on Count 1 of its complaint. . “Whether plaintiff-appellant HHC has standing to assert injury, or is entitled to relief under any provision of Title 19 of the Social Security Act, 42 U.S.C. § 1396a, et seq., as the same has been from time to time amended, based on the use of the ‘Length of Stay’ factor, as set forth in the 1980 and 1981 New York Medical Assistance Plans, in calculating the Medicaid per diem reimbursement rates for service rendered by HHC in 1980 or 1981, or in the reasonable future, in the absence of a showing that use of a calculated per diem rate including a ‘Length of Stay’ factor, has denied or will deny HHC reimbursement of its reasonable cost as required by the Medicaid Act, 42 U.S.C. § 1396a(a)(13)(D) as in effect in 1980 and 1981, or by Federal Regulation 447.252, as adopted September 30, 1981 with respect to reimbursement for Medicaid services rendered thereafter and in the future to Medicaid patients.” The government asserts to us that: It should be noted that the revised question refers to facts, laws and claims that HHC has never presented to the district court, that the defendants have never been notified of, and that none of the parties has had an opportunity to brief. . For example, if many of the reimbursements for 1980 have not as yet been made, the controversy as to how these should be calculated prevents the case from being moot. At oral argument, an argument was made that since the LOS ceiling was based on 1978, when very few of the hospitals were subject to PSRO supervision, the LOS penalty could not conflict with the PSRO Act. If that is the case, then perhaps a conflict would arise if a LOS penalty were applied to 1982 reimbursements based on the length of stay of patients subject to PSRO in 1980. The argument would be that since PSRO determinations were conclusive in 1980, the 1982 reimbursements plan might violate federal law even though that law has since been changed. . Relief for past violations of the PSRO Act would not be obtainable in federal court by reason of the eleventh amendment, Edelman v. Jordon, 415 U.S. 651, 666-68, 94 S.Ct. 1347, 1357-58, 39 L.Ed.2d 662 (1974). We are informed by the parties that a state court action was also filed, and has been stayed pending resolution of the questions in federal court. . HHC seems to assume that if the LOS penalty were declared illegal, then HHC would be entitled to all the costs disallowed by reason of excessive numbers of in-patient days in 1978. However, the State claims that various other formulas are available to it, arguably including the possibility of basing the rates solely on the efficiency of processing non-PSRO patients, thereby making probable a trial on such issues in any event. 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_numresp	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of 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. Miss Florence Ella HATTON et al., Plaintiffs-Appellants, v. COUNTY BOARD OF EDUCATION OF MAURY COUNTY, TENNESSEE, et al., Defendants-Appellees. Nos. 19388, 19614. United States Court of Appeals, Sixth Circuit. Feb. 26, 1970. No. 19388: Conrad K. Harper, New York City, Avon N. Williams, Jr., Z. Alexander Looby, Nashville, Tenn., Jack Greenberg, James M. Nabrit, III, Franklin E. White, W. Haywood Burns, New York City, on brief, for appellants. Charles A. Trost, Columbia, Tenn., Pride Tomlinson, Jr., Maury County Atty., Columbia, Tenn., on brief; Courtney & Trost, Columbia, Tenn., of counsel, for appellees. No. 19614: Jack Kershaw, Nashville, Tenn., for appellants. Sylvia Drew, New York City, Jack Greenberg, James M. Nabrit, III, Norman J. Chachkin, New York City, Avon N. Williams, Jr., Nashville, Tenn., on brief, for appellees. Before PHILLIPS, Chief Judge, CELEBREZZE, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge. PHILLIPS, Chief Judge. Two separate appeals have been perfected in this school desegregation case involving the school system of Maury County, Tennessee. In No. 19,388 the appellant is Miss Florence Ella Hatton, a Negro school teacher who was discharged by the County Board of Education. She sought an injunction to compel her reinstatement as a teacher in the Maury County School system with backpay from the date of her dismissal until the date of reinstatement, claiming deprivation of her rights under the Due Process and Equal Protection clauses of the Fourteenth Amendment and Sec. 601 of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000d. The District Court denied relief. Miss Hatton appeals. In No. 19,614 the appellants are five petitioners who sought to intervene in the school desegregation action as defendants and cross-plaintiffs and as citizens of Maury County for the purpose of opposing the desegregation plan submitted by the County Board of Education in compliance with the order of the District Court. The District Court refused to grant leave to intervene. Petitioners appeal from the order of the District Court denying intervention. No. 19,388 Miss Hatton was graduated from Tennessee State University with the degree of bachelor of science and holds a certificate as an elementary school teacher issued by the Tennessee Department of Education. At the time of her discharge she had been employed by the County Board of Education for six years and was entitled to all tenure rights provided by the State Teachers’ Tenure Law, T.C.A. Sec. 49-1401 et seq. She acquired tenure at the conclusion of the 1965-66 school year when she taught in an all-Negro two-teacher elementary school. For two years prior to her discharge Miss Hatton had been assigned to the all-Negro Macedonia elementary school as part of an all-Negro faculty. She served as fourth grade homeroom teacher, instructor of health and physical education and social studies and part-time librarian. This position was funded under a federal program providing educational opportunities to disadvantaged and economically deprived children, known as Title One of Public Law 89-10, 20 U.S.C.A. § 241a et seq. Miss Hatton was re-employed by the County Board of Education to teach at the Macedonia school for the 1968-69 school year and participated in the in-service training program from August 21, 1968, to August 26, 1968. Two days before the opening of school she was notified that her position at the Macedonia school had been eliminated due to declining enrollment and a decrease in Title One funds. The District Court held that the failure of the Board of Education to re-employ Miss Hatton was not due to the fact that she was a member of the Negro race. The Board contended that Miss Hatton is an incompetent teacher. The District Court declined to make a finding on the question of incompeteney, pointing out that this could become an issue under the Tennessee Teachers’ Tenure Law. We reverse for failure of the Board of Education to comply with the standards required by this Court in Rolfe v. County Board of Education of Lincoln County, Tennessee, 391 F.2d 77 (6th Cir.), which we consider to be controlling in the present case. See also Hill v. Franklin County Board of Education, 390 F.2d 583 (6th Cir.). Rolfe involved two non-tenure Negro teachers. Miss Hatton is in a stronger position to claim the right of continued employment because she is a tenure teacher. Although the remedies under the State Teachers’ Tenure Law are in the State courts and not the federal courts, we find it significant in the present case that non-tenure white teachers have been employed in the Maury County School System after the discharge of Miss Hatton, while she, a Negro tenure teacher, remained unemployed. T.C.A. Sec. 49-1410 provides that a tenure teacher who has been dismissed because of abolition of position shall be placed on a preferred list for re-employment in the first vacancy he or she is qualified by training and experience to fill. If the Board of Education discharged this teacher because of incompetence, the Tenure law prescribes the procedure to be followed, including a written notice and copy of charges, T.C.A. Sec. 49-1415, and a hearing before the Board of Education, T.C.A. Sec. 49-1416. The term “incompetence” is defined in the State statute. T.C.A. Sec. 49-1401(9). These prcedures were not followed with respect to Miss Hatton. We reverse the judgment in No. 19,-388 and remand the case to the District Court with instructions to issue an appropriate order directing the reinstatement of Miss Florence Ella Hatton as a teacher in the Maury County School System and that she be paid from the date of her dischárge to the date of reinstatement at not less than the salary contracted for the 1968-69 school year. No. 19,614 We hold that the District Judge did not abuse his discretion in refusing to permit petitioners to intervene and that these petitioners were not entitled to intervene as a matter of right under Rule 24(a), Fed.R.Civ.P. We agree with the order of the District Court, which is made an appendix to this opinion. The judgment of the District Court in No. 19,388 is reversed and remanded. The order in No. 19,614 is affirmed. APPENDIX ORDER At the conclusion of a hearing held in this case on October 8 and 9, 1968, this court held, inter alia, that the freedom-of-choice plan under which the defendant County Board of Education of Maury County, Tennessee, had been operating the County’s public schools had failed to dismantle effectively the dual system of education in the county. Therefore, in accordance with the recent Supreme Court decisions in Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed. 2d 716 (1968) and its companion cases, the court directed the Board of Education to submit a plan designed to effect the complete desegregation of all the schools in the County school system by the beginning of the 1969-70 school year. Defendants filed such a plan with the court on February 7, 1969. On that same date a motion to intervene was filed by five petitioners who assert that they are citizens of Maury County, and that they are parents of children attending the County’s public schools. Plaintiffs have filed a brief in opposition to the proposed intervention. In their proposed pleading petitioners assert that they represent “the large majority” of the citizens of Maury County, “ * * * who believe that they should have the right to choose the school they wish to patronize, regardless of race, creed, or color, and that they should not be compelled to attend a school for purpose of achieving racial balance.” By their petition, they seek, in substance, to re-litigate the issues heretofore decided by the Supreme Court in its various school desegregation cases, by offering evidence which would tend to indicate that “ * * * compulsory association in the schools will work great injury upon members of both races.” 1. Intervention of Right. — Petitioners maintain that they should be permitted to intervene as of right under Rule 24(a) of the Federal Rules of Civil Procedure. That rule provides in relevant part: “(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: * * (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” The first requirement of the Rule is that the applicant have an interest in the subject matter of the action. The provision on interest quoted above was added by the 1966 amendments to the Federal Rules of Civil Procedure. Since the amendment there has been a dearth of cases defining the kind of interest required by the Rule. The only Supreme Court case touching on the question is Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 87 S.Ct. 932, 17 L.Ed.2d 814 (1967). In that case the Court did not provide clear guidelines to follow in determining the sufficiency of an applicant’s interest. However, a fair interpretation of the decision would indicate that the term “interest” in the amended Rule 24(a) should be construed liberally. In this case the only interest claimed by the petitioners is that they are residents of Maury County and parents of children enrolled in the County’s public schools. Although the interest claimed is of a general and indefinite character, it would seem to the Court to be sufficient to permit intervention under the liberal construction of the Rule suggested in Cascade. Although petitioners would seem to have a sufficient interest in the suit to intervene, this is not dispositive of their motion, for Rule 24(a) further requires the applicant to show that his interest is not adequately represented by existing parties to the litigation. Upon consideration, the court is of the opinion that petitioners have failed to make this showing of inadequate representation. There is nothing in petitioner’s motion papers to indicate that their interests as residents of Maury County and parents of children attending the public schools are not being adequately represented by the present defendants. The record indicates that the defendants have advanced every reasonable defense to this action, and petitioners have made no allegation of collusion, bad faith, or gross negligence on the part of the Board of Education in defending the suit. Petitioners seem to rely on the fact that, because the plaintiffs had standing as parents to bring suit against the School Board, they, as parents, should be allowed to intervene. This contention is without merit. Intervention is concerned with something more than standing to sue. It is concerned with protecting an interest which can only be protected through intervention in the current proceeding. This is not the situation here. Accordingly, therefore, petitioners’ motion to intervene as of right under Rule 24(a) is denied. Hobson v. Hansen, 44 F.R.D. 18 (D.D.C. 1968). 2. Permissive Intervention. — Petitioners also contend that they should be permitted to intervene permissively under Rule 24(b) of the Federal Rules. That Rule provides, in relevant part: “(b) Permissive Intervention. Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. * * * In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” As the Rule clearly indicates, permissive intervention is, by definition, in the discretion of the trial court. See 4 Moore’s Federal Practice ¶ 24.10 [4] (2d ed. 1968). Upon consideration, the court is of the opinion that to permit intervention here would unduly delay and prejudice the rights of the present plaintiffs, particularly since the legal position which the petitioners seek to advance is well settled adversely to them. Accordingly, petitioners’ motion to intervene permissively under Rule 24(b) is denied. It is so ordered. . Raney v. Board of Education of Gould School District, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968); Monroe v. Board of Commissioners of Jackson, Tenn., 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). . In its original order, entered October 17, 1968, the court ordered the defendants to submit two plans, one calling for the desegregation of Grades 7 through 12 at the beginning of the second semester of the current school year, and one providing for the complete desegregation of all grades by the beginning of the 1969-70 school year. Defendants were permitted to offer reasons why desegregation of Grades 7 through 12 could not be accomplished effectively during the current school year. Defendants submitted a plan as called for in the order of October 17, 1968, and a hearing was held at which defendants offered evidence to establish that mid-year desegregation of Grades 7 through 12 could not be accomplished. By order entered December 13, 1968, the court ruled that defendants had established that mid-year desegregation could not be effectively accomplished. . The petitioners are Leonard C. Hickman, Jack Loveless, W. H. Thomas, James Bryant and John G. Whitehead. . Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955); Green v. County School Board of New Kent County, supra; and eases cited in note 1, supra. . The Fifth Circuit has held that “* * intervention in school cases is not a matter of right but of discretion upon good cause being shown.” Stell v. Savannah Chatham County Board of Education, 333 F.2d 55, 60 (5th Cir.), cert. denied, 379 U.S. 933, 85 S.Ct. 332, 13 L.Ed.2d 344 (1964), citing St. Helena Parish School Board v. Hall, 287 F.2d 376 (5th Cir.), cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33 (1961). However these decisions were reached prior to the 1966 revision of Buie 24(a). Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_r_fed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Darren HARRIS, Defendant-Appellant. No. 90-5038. United States Court of Appeals, Tenth Circuit. Sept. 11, 1991. James L. Swartz, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., with him, on the brief), Tulsa, Okl., for plaintiff-appellee. C.W. Hack of Flowers, Harman, Hack & Finlayson, P.A., Tulsa, Oklahoma, for defendant-appellant. Before SEYMOUR, MOORE and MCWILLIAMS, Circuit Judges. McWILLIAMS, Circuit Judge. Darren Harris and five others were charged with conspiring with each other, and others, from August 1, 1988, to July 20, 1989, in Tulsa, Oklahoma, in violation of 21 U.S.C. § 846 as follows: (1) to knowingly and intentionally distribute a mixture or substance which contained cocaine base, a Schedule II controlled substance, in an amount in excess of fifty grams, in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)( 1)(A)(iii); and (2) to knowingly and intentionally possess with an intent to distribute cocaine in an amount in excess of five hundred grams, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(l)(B)(ii). Harris was tried jointly with four of the other five defendants and the jury found him guilty of conspiring to knowingly and intentionally distribute in excess of fifty grams of a mixture or substance which contained cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(l)(A)(iii). The district court sentenced Harris under the Sentencing Guidelines to 360 months imprisonment. The conspiracy for which Harris was convicted allegedly took place from August 1, 1988, to July 20, 1989. Harris was born on June 19, 1971, and became eighteen years of age on June 19, 1989. Before trial, as well as during trial, counsel argued that the district court had no jurisdiction over Harris because he was a juvenile when all acts occurring before June 19, 1989, were committed, and that after June 19, 1989, Harris himself did nothing in furtherance of the conspiracy. The government’s position on this matter was that Harris did commit acts in furtherance of the conspiracy after reaching his eighteenth birthday. The district court agreed with the government, as do we. There is much evidence that Harris was a member of the conspiracy from March, 1989, until his eighteenth birthday on June 19, 1989. One Willie Junior Louis testified that he left his apartment in Tulsa, Oklahoma in charge of a girlfriend when he made a trip to Oklahoma City in March, 1989. Louis went on to testify that on his return, he found out that the defendants, including Harris, had moved their “crack cocaine” business into his apartment. According to Louis, during the ensuing five or six weeks the defendants ran their business out of his apartment. Louis described how the defendants, including Harris, would cut up rock cocaine with a razor, sell it directly to customers who came to the door, and give it to “runners” who would then sell it to passing motorists on the nearby streets. Louis further testified that these “runners” would later return to the apartment with the money received from the sales made. Additionally, Louis testified as to some weapons possessed by Harris. On June 19, 1989, Harris moved from Tulsa, Oklahoma, to Denver, Colorado, his mother desiring to get him out of his poor environment in Tulsa. On July 6, 1989, Harris, however, returned to Tulsa for a visit. Two foot-patrol officers assigned to the North Tulsa area testified that on July 9, 1989, they saw Harris, Reggie LeRoy (a co-defendant), and others in the vicinity of Louis’ apartment complex, flagging down cars, going to the stopped vehicles, putting their hands toward the persons in the car, and then pulling their hands back. One officer testified that in his experience this type of activity indicates “cocaine dealing.” Harris was arrested at the time of this incident. No drugs were found on him, although he had some $600 in currency on his person. We think the testimony of these two officers was sufficient to show participation by Harris in the conspiracy after he became eighteen years of age. Such was also corroborated by the statements made by Ward Price, a leader in the conspiracy, to Officer Witt. In this latter regard, Price, in June and July, 1989, attempted to draw Officer Witt, posing as a “crooked cop,” into the conspiracy. In the course of Price’s conversations with Officer Witt, many of which were audio-taped, Darren Harris’ name was mentioned. We have this date held in companion appeals that Price’s statements were in furtherance of the conspiracy. In those conversations Price said that although the conspiracy was a profitable one, there were problems and he offered Witt money in exchange for his assistance. In United States v. Cruz, 805 F.2d 1464 (11th Cir.1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1631, 95 L.Ed.2d 204 cert. denied, 482 U.S. 930, 107 S.Ct. 3215, 96 L.Ed.2d 702 (1987), the Eleventh Circuit held that the district court had jurisdiction to try the defendant, who had been charged with conspiracy to possess cocaine with intent to distribute, even through he was a juvenile at the time he entered into that conspiracy, since the government had presented evidence from which the jury could infer that the defendant’s involvement continued after he turned eighteen. Id. at 1475-77. See also, United States v. Gjonaj, 861 F.2d 143, 144 (6th Cir.1988); and United States v. Spoone, 741 F.2d 680, 687 (4th Cir.1984), cert. denied, 469 U.S. 1162, 105 S.Ct. 917, 83 L.Ed.2d 929 (1985). There being evidence that Harris committed acts in furtherance of the conspiracy after attaining the age of eighteen, the district court in the instant case had jurisdiction to try him. Further, the evidence was legally sufficient to support the jury’s verdict. Harris’ remaining argument in this court is that in imposing sentence the district court did not comply with the Sentencing Guidelines. Prior to sentencing, a presentence report was prepared, and, as required by Fed.R.Crim.P. 32(c)(3), was given Harris and his counsel. Counsel filed several specific objections to statements contained in the presentence report, the first of which was directed at the statement in the presentence report that “the organization was responsible for the distribution of at least seven (7) kilograms of crack-cocaine at various locations in the Tulsa area.” In response to those objections, the probation officer filed an addendum in which he basically stood by the challenged statements. At sentencing, the district court listened to the statements of counsel and, in effect, overruled the objections and accepted the report. On appeal, Harris complains that the district court did not follow the mandate of Fed.R.Crim.P. 32(c)(3)(D), which provides that if a defendant challenges the factual accuracy of statements contained in the presentence report, “the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing” (emphasis added). That same rule also provides that a written record of such finding or determination shall be appended to the pre-sentence report. From the record before us it would appear that the district court did not make the findings or determinations required by Fed.R.Crim.P. 32(c)(3)(D). In United States v. Alvarado, 909 F.2d 1443, 1445 (10th Cir.1990), decided after sentence was imposed in the instant case, we held that Fed.R.Crim.P. 32(c)(3)(D) requires that when a defendant challenges information in his presentence report the district court must either make a factual finding regarding the accuracy of the challenged information or expressly state that in imposing sentence he is not taking into consideration the challenged statement. In Alvarado we remanded for resentencing, commenting that such findings or determinations must be made not only for use by the correctional system, but also so that “we know the facts upon which the district judge re-lie[d].” Id. at 1445. See also United States v. Forker, 928 F.2d 365 (11th Cir.1991) (citing Alvarado). Harris’ objections to the presentence report were not perfunctory but were specific. The court did not comply with Fed. R.Crim.P. 32(c)(3)(D) and its counterpart, U.S.S.G. § 6A1.3. Judgment of conviction affirmed, but sentence is vacated' and case remanded for resentencing. . 18 U.S.C. § 5032 provides in pertinent part that "[a] juvenile alleged to have committed an act of juvenile delinquency ... shall not be proceeded against in any court of the United States" except when the Attorney General certifies, inter alia, that “the juvenile court or other appropriate court of a State does not have jurisdiction or refuses to assume jurisdiction over said juvenile.... If the Attorney General does not so certify, such juvenile shall be surrendered to the appropriate legal authorities of [the] State." 18 U.S.C. § 5031 defines “juvenile” as "a person who has not attained his eighteenth birthday_” That same statute defines "juvenile delinquency" as “the violation of a law of the United States committed by a person prior to his eighteenth birthday which would have been a crime if committed by an adult.” . At trial, all concerned apparently thought that the words "cocaine” and “crack” and the phrase "cocaine base" were synonyms. . The amount of the drug involved bears on the base offense level. Insofar as our review of the record has revealed, there is no indication, either in the trial transcript or in the presentence report, that Harris was involved in the conspiracy in question prior to March, 1989. As indicated, Harris was arrested on July 9, 1989. . The record before us does not contain the transcript of Harris’ sentencing hearing. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
sc_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. WADE. No. 334. Argued February 16, 1967. Decided June 12, 1967. Beatrice Rosenberg argued the cause for the United States. With her on the brief were Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Nathan Lewin and Ronald L. Gainer. Weldon Holcomb argued the cause and filed a brief for respondent. Mr. Justice Brennan delivered the opinion of the Court. The question here is whether courtroom identifications of an accused at trial are to be excluded from evidence because the accused was exhibited to the witnesses before trial at a post-indictment lineup conducted for identification purposes without notice to and in the absence of the accused’s appointed counsel. The federally insured bank in Eustace, Texas, was robbed on September 21, 1964. A man with a small strip of tape on each side of his face entered the bank, pointed a pistol at the female cashier and the vice president, the only persons in the bank at the time, and forced them to fill a pillowcase with the bank’s money. The man then drove away with an accomplice who had been waiting in a stolen car outside the bank. On March 23, 1965, an indictment was returned against respondent, Wade, and two others for conspiring to rob the bank, and against Wade and the accomplice for the robbery itself. Wade was arrested on April 2, and counsel was appointed to represent him on April 26. Fifteen days later an FBI agent, without notice to Wade’s lawyer, arranged to have the two bank employees observe a lineup made up of Wade and five or six other prisoners and conducted in a courtroom of the local county courthouse. Each person in the line wore strips of tape such as allegedly worn by the robber and upon direction each said something like "put the money in the bag,” the words allegedly uttered by the robber. Both bank employees identified Wade in the lineup as the bank robber. At trial, the two employees, when asked on direct examination if the robber was in the courtroom, pointed to Wade. The prior lineup identification was then elicited from both employees on cross-examination. At the close of testimony, Wade’s counsel moved for a judgment of acquittal or, alternatively, to strike the bank officials’ courtroom identifications on the ground that conduct of the lineup, without notice to and in the absence of his appointed counsel, violated his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to the assistance of counsel. The motion was denied, and Wade was convicted. The Court of Appeals for the Fifth Circuit reversed the conviction and ordered a new trial at which the in-court identification evidence was to be excluded, holding that, though the lineup did not violate Wade’s Fifth Amendment rights, “the lineup, held as it was, in the absence of counsel, already chosen to represent appellant, was a violation of his Sixth Amendment rights . . . .” 358 F. 2d 557, 560. We granted certiorari, 385 U. S. 811, and set the case for oral argument with No. 223, Gilbert v. California, post, p. 263, and No. 254, Stovall v. Denno, post, p. 293, which present similar questions. We reverse the judgment of the Court of Appeals and remand to that court with direction to enter a new judgment vacating the conviction and remanding the case to the District Court for further proceedings consistent with this opinion. I. Neither the lineup itself nor anything shown by this record that'Wade was required to do in the lineup violated his privilege against self-incrimination. We have only recently reaffirmed that the privilege “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature ....” Schmerber v. California, 384 U. S. 757, 761. We there held that compelling a suspect to submit to a withdrawal of a sample of his blood for analysis for alcohol content and the admission in evidence of the analysis report were not compulsion to those ends. That holding was supported by the opinion in Holt v. United States, 218 U. S. 245, in which case a question arose as to whether a blouse belonged to the defendant. A witness testified at trial that the defendant put on the blouse and it had fit him. The defendant argued that the admission of the testimony was error because compelling him to put on the blouse was a violation of his privilege. The Court rejected the claim as “an extravagant extension of the Fifth Amendment,” Mr. Justice Holmes saying for the Court: “[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.” 218 U. S., at 252-253. The Court in Holt, however, put aside any constitutional questions which might be involved in compelling an accused, as here, to exhibit himself before victims of or witnesses to an alleged crime; the Court stated, “we need not consider how far a court would go in compelling a man to exhibit himself.” Id., at 253. We have no doubt that compelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance. It is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have. It is no different from compelling Schmerber to provide a blood sample or Holt to wear the blouse, and, as in those instances, is not within the cover of the privilege. Similarly, compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a “testimonial” nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt. We held in Schmerber, supra, at 761, that the distinction to be drawn under the Fifth Amendment privilege against self-incrimination is one between an accused’s “communications” in whatever form, vocal or physical, and “compulsion which makes a suspect or accused the source of ‘real or physical evidence,’ ” Schmerber, supra, at 764. We recognized that “both federal and state courts have usually held that . . . [the privilege] offers no protection against compulsion to submit to' fingerprinting, photography, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” Id., at 764. None of these activities becomes testimonial within the scope of the privilege because required of the accused in a pretrial lineup. Moreover, it deserves emphasis that this case presents no question of the admissibility in evidence of anything Wade said or did at the lineup which implicates his privilege. The Government offered no such evidence as part of its case, and what came out about the lineup proceedings on Wade’s cross-examination of the bank employees involved no violation of Wade’s privilege. II. The fact that the lineup involved no violation of Wade’s privilege against self-incrimination does not, however, dispose of his contention that the courtroom identifications should have been excluded because the lineup was conducted without notice to and in the absence of his counsel. Our rejection of the right to counsel claim in Schmerber rested on our conclusion in that case that “[n]o issue of counsel’s ability to assist petitioner in respect of any rights he did possess is presented.” 384 U. S., at 766. In contrast, in this case it is urged that the assistance of counsel at the lineup was indispensable to protect Wade’s most basic right as a criminal defendant — his right- to a fair trial at which the witnesses against him might be meaningfully cross-examined. The Framers of the Bill of Rights envisaged a broader role for counsel than under the practice then prevailing in England of merely advising his client in “matters of law,” and eschewing any responsibility for “matters of fact.” The constitutions in at least 11 of the 13 States expressly or impliedly abolished this distinction. Powell v. Alabama, 287 U. S. 45, 60-65; Note, 73 Yale L. J. 1000, 1030-1033 (1964). “Though the colonial provisions about counsel were in accord on few things, they agreed on the necessity of abolishing the facts-law distinction; the colonists appreciated that if a defendant were forced to stand alone against the state, his case was foredoomed.” 73 Yale L. J., supra, at 1033-1034. This background is reflected in the scope given by our decisions to the Sixth Amendment’s guarantee to an accused of the assistance of counsel for his defense. When the Bill of Rights was adopted, there were no organized police forces as we know them today. The accused confronted the prosecutor and the witnesses against him, and the evidence was marshalled, largely at the trial itself. In contrast, today’s law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused’s fate and reduce the trial itself to a mere formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to “critical” stages of the proceedings. The guarantee reads: “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” (Emphasis supplied.) The plain wording of this guarantee thus encompasses counsel’s assistance whenever necessary to assure a meaningful “defence.” As early as Powell v. Alabama, supra, we recognized that the period from arraignment to trial was “perhaps the most critical period of the proceedings . . . ,” id., at 57, during which the accused “requires the guiding hand of counsel. . .,” id., at 69, if the guarantee is not to prove an empty right. That principle has since been applied to require the assistance of counsel at the type of arraignment — for example, that provided by Alabama — where certain rights might be sacrificed or lost: “What happens there may affect the whole trial. Available defenses may be irretrievably lost, if not then and there asserted . . . .” Hamilton v. Alabama, 368 U. S. 52, 54. See White v. Maryland, 373 U. S. 59. The principle was also applied in Massiah v. United States, 377 U. S. 201, where we held that incriminating statements of the defendant should have been excluded from evidence when it appeared that they were overheard by federal agents who, without notice to the defendant’s lawyer, arranged a meeting between the defendant and an accomplice turned informant. We said, quoting a concurring opinion in Spano v. New York, 360 U. S. 315, 326, that “[a]nything less . . . might deny a defendant ‘effective representation by counsel at the only stage when legal aid and advice would help him.’ ” 377 U. S., at 204. In Escobedo v. Illinois, 378 U. S. 478, we drew upon the rationale of Hamilton and Massiah in holding that the right to counsel was guaranteed at the point where the accused, prior to arraignment, was subjected to secret interrogation despite repeated requests to see his lawyer. We again noted the necessity of counsel’s presence if the accused was to have a fair opportunity to present a defense at the trial itself: “The rule sought by the State here, however, would make the trial no more than an appeal from the interrogation; and the ‘right to use counsel at the formal trial [would be] a very hollow thing [if], for all practical purposes, the conviction is already assured by pretrial examination’.... ‘One can imagine a cynical prosecutor saying: “Let them have the most illustrious counsel, now. They can’t escape the noose. There is nothing that counsel can do for them at the trial.” ’ ” 378 U. S., at 487-488. Finally in Miranda v. Arizona, 384 U. S. 436, the rules established for custodial interrogation included the right to the presence of counsel. The result was rested on our finding that this and the other rules were necessary to safeguard the privilege against self-incrimination from being jeopardized by such interrogation. Of course, nothing decided or said in the opinions in the cited cases links the right to counsel only to protection of Fifth Amendment rights. Rather those decisions “no more than reflect a constitutional principle established as long ago as Powell v. Alabama . . . .” Massiah v. United States, supra, at 205. It is central to that principle that in addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial. The security of that right is as much the aim of the right to counsel as it is of the other guarantees of the Sixth Amendment — the right of the accused to a speedy and public trial by an impartial jury, his right to be informed of the nature and cause of the accusation, and his right to be confronted with the witnesses against him and to have compulsory process for obtaining witnesses in his favor. The presence of counsel at such critical confrontations, as at the trial itself, operates to assure that the accused’s interests will be protected consistently with our adversary theory of criminal prosecution. Cf. Pointer v. Texas, 380 U. S. 400. In sum, the principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice. III. The Government characterizes the lineup as a mere preparatory step in the gathering of the prosecution’s evidence, not different — for Sixth Amendment purposes — from various other preparatory steps, such as systematized or scientific analyzing of the accused’s fingerprints, blood sample, clothing, hair, and the like. We think there are differences which preclude such stages being characterized as critical stages at which the accused has the right to the presence of his counsel. Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government's expert witnesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel's absence at such stages might derogate from his right to a fair trial. IV. But the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: “What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent — not due to the brutalities of ancient criminal procedure.” The Case of Sacco and Vanzetti 30 (1927). A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commentator has observed that “[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor — ■ perhaps it is responsible for more such errors than all other factors combined.” Wall, Eye-Witness Identification in Criminal Cases 26. Suggestion can be created intentionally or unintentionally in many subtle ways. And the dangers for the suspect are particularly grave when the witness’ opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest. Moreover, “[i]t is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.” The pretrial confrontation for purpose of identification may take the form of a lineup, also known as an “identification parade” or “showup,” as in the present case, or presentation of the suspect alone to the witness, as in Stovall v. Denno, supra. It is obvious that risks of suggestion attend either form of confrontation and increase the dangers inhering in eyewitness identification. But as is the case with secret interrogations, there is serious difficulty in depicting what transpires at lineups and other forms of identification confrontations. “Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on . . . .” Miranda v. Arizona, supra, at 448. For the same reasons, the defense can seldom reconstruct the manner and mode of lineup identification for judge or jury at trial. Those participating in a lineup with the accused may often be police officers; in any event, the participants’ names are rarely recorded or divulged at trial. The impediments to an objective observation are increased when the victim is the witness. Lineups are prevalent in rape and robbery prosecutions and present a particular hazard that a victim’s understandable outrage may excite vengeful or spiteful motives. In any event, neither witnesses nor lineup participants are apt to be alert for conditions prejudicial to the suspect. And if they were, it would likely be of scant benefit to the suspect since neither witnesses nor lineup participants are likely to be schooled in the detection of suggestive influences. Improper influences may go undetected by a suspect, guilty or not, who experiences the emotional tension which we might expect in one being confronted with potential accusers. Even when he does observe abuse, if he has a criminal record he may be reluctant to take the stand and open up the admission of prior convictions. Moreover, any protestations by the suspect of the fairness of the lineup made at trial are likely to be in vain; the jury’s choice is between the accused’s unsupported version and that of the police officers present. In short, the accused’s inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness’ courtroom identification. What facts have been disclosed in specific cases about the conduct of pretrial confrontations for identification illustrate both the potential for substantial prejudice to the accused at that stage and the need for its revelation at trial. A commentator provides some striking examples: “In a Canadian case . . . the defendant had been picked out of a line-up of six men, of which he was the only Oriental. In other cases, a black-haired suspect was placed among a group of light-haired persons, tall suspects have been made to stand with short non-suspects, and, in a case where the perpetrator of the crime was known to be a youth, a suspect under twenty was placed in a line-up with five other persons, all of whom were forty or over.” Similarly state reports, in the course of describing prior identifications admitted as evidence of guilt, reveal numerous instances of suggestive procedures, for example, that all in the lineup but the suspect were known to the identifying witness, that the other participants in a lineup were grossly dissimilar in appearance to the suspect, that only the suspect was required to wear distinctive clothing which the culprit allegedly wore, that the witness is told by the police that they have caught the culprit after which the defendant is brought before the witness alone or is viewed in jail, that the suspect is pointed out before or during a lineup, and that the participants in the lineup are asked to try on an article of clothing which fits only the suspect. The potential for improper influence is illustrated by the circumstances, insofar as they appear, surrounding the prior identifications in the three cases we decide today. In the present case, the testimony of the identifying witnesses elicited on cross-examination revealed that those witnesses were taken to the courthouse and seated in the courtroom to await assembly of the lineup. The courtroom faced on a hallway observable to the witnesses through an open door. The cashier testified that she saw Wade “standing in the hall” within sight of an FBI agent. Five or six other prisoners later appeared in the hall. The vice president testified that he saw a person in the hall in the custody of the agent who “resembled the person that we identified as the one that had entered the bank.” The lineup in Gilbert, supra, was conducted in an auditorium in which some 100 witnesses to several alleged state and federal robberies charged to Gilbert made wholesale identifications of Gilbert as the robber in each other’s presence, a procedure said to be fraught with dangers of suggestion. And the vice of suggestion created by the identification in Stovall, supra, was the presentation to the witness of the suspect alone handcuffed to police officers. It is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed guilty by the police. See Frankfurter, The Case of Sacco and Vanzetti 31-32. The few cases that have surfaced therefore reveal the existence of a process attended with hazards of serious unfairness to the criminal accused and strongly suggest the plight of the more numerous defendants who are unable to ferret out suggestive influences in the secrecy of the confrontation. We do not assume that these risks are the result of police procedures intentionally designed to prejudice an accused. Rather we assume they derive from the dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification. Williams & Hammelmann, in one of the most comprehensive studies of such forms of identification, said, “[T]he fact that the police themselves have, in a given case, little or no doubt that the man put up for identification has committed the offense, and that their chief pre-occupation is with the problem of getting sufficient proof, because he has not 'come clean,’ involves a danger that this persuasion may communicate itself even in a doubtful case to the witness in some way . . . .” Identification Parades, Part I, [1963] Crim. L. Rev. 479, 483. Insofar as the accused’s conviction may rest on a courtroom identification in fact the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him. Pointer v. Texas, 380 U. S. 400. And even though cross-examination is a precious safeguard to a fair trial, it cannot be viewed as an absolute assurance of accuracy and reliability. Thus in the present context, where so many variables and pitfalls exist, the first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself. The trial which might determine the accused’s fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness — “that’s the man.” Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was “as much entitled to such aid [of counsel] ... as at the trial itself.” Powell v. Alabama, 287 U. S. 45, 57. Thus both Wade and his counsel should have been notified of the impending lineup, and counsel’s presence should have been a requisite to conduct of the lineup, absent an “intelligent waiver.” See Carnley v. Cochran, 369 U. S. 506. No substantial countervailing policy considerations have been advanced against the requirement of the presence of counsel. Concern is expressed that the requirement will forestall prompt identifications and result in obstruction of the confrontations. As for the first, we note that in the two cases in which the right to counsel is today held to apply, counsel had already been appointed and no argument is made in either case that notice to counsel would have prejudicially delayed the confrontations. Moreover, we leave open the question whether the presence of substitute counsel might not suffice where notification and presence of the suspect’s own counsel would result in prejudicial delay. And to refuse to recognize the right to counsel for fear that counsel will obstruct the course of justice is contrary to the basic assumptions upon which this Court has operated in Sixth Amendment cases. We rejected similar logic in Miranda v. Arizona concerning presence of counsel during custodial interrogation, 384 U. S., at 480-481: “[A]n attorney is merely exercising the good professional judgment he has been taught. This is not cause for considering the attorney a menace to law enforcement. He is merely carrying out what he is sworn to do under his oath — to protect to the extent of his ability the rights of his client. In fulfilling this responsibility the attorney plays a vital role in the administration of criminal justice under our Constitution.” In our view counsel can hardly impede legitimate law enforcement; on the contrary, for the reasons expressed, law enforcement may be assisted by preventing the infiltration, of taint in the prosecution’s identification evidence. That result cannot help the guilty avoid conviction but can only help assure that the right man has been brought to justice. Legislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as “critical.” But neither Congress nor the federal authorities have seen fit to provide a solution. What we hold today “in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect.” Miranda v. Arizona, supra, at 467. V. We come now to the question whether the denial of Wade’s motion to strike the courtroom identification by the bank witnesses at trial because of the absence of his counsel at the lineup required, as the Court of Appeals held, the grant of a new trial at which such evidence is to be excluded. We do not think this disposition can be justified without first giving the Government the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification. See Murphy v. Waterfront Commission, 378 U. S. 52, 79, n. 18. Where, as here, the admissibility of evidence of the lineup identification itself is not involved, a per se rule of exclusion of courtroom identification would be unjustified. See Nardone v. United States, 308 U. S. 338, 341. A rule limited solely to the exclusion of testimony concerning identification at the lineup itself, without regard to admissibility of the courtroom identification, would render the right to counsel an empty one. The lineup is most often used, as in the present case, to crystallize the witnesses’ identification of the defendant for future reference. We have already noted that the lineup identification will have that effect. The State may then rest upon the witnesses’ unequivocal courtroom identification, and not mention the pretrial identification as part of the State’s case at trial. Counsel is then in the predicament in which Wade’s counsel found himself — realizing that possible unfairness at the lineup may be the sole means of attack upon the unequivocal courtroom identification, and having to probe in the dark in an attempt to discover and reveal unfairness, whde bolstering the government witness’ courtroom identification by bringing out and dwelling upon his prior identification. Since counsel’s presence at the lineup would equip him to attack not only the lineup identification but the courtroom identification as well, limiting the impact of violation of the right to counsel to exclusion of evidence only of identification at the lineup itself disregards a critical element of that right. We think it follows that the proper test to be applied in these situations is that quoted in Wong Sun v. United States, 371 U. S. 471, 488, “ ‘[W]hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Maguire, Evidence of Guilt 221 (1959).” See also Hoffa v. United States, 385 U. S. 293, 309. Application of this test in the present context requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup. We doubt that the Court of Appeals applied the prop'er test for exclusion of the in-court identification of the two witnesses. The court stated that “it cannot be said with any certainty that they would have recognized appellant at the time of trial if this intervening lineup had not occurred,” and that the testimony of the two witnesses “may well have been colored by the illegal procedure [and] was prejudicial.” 358 F. 2d, at 560. Moreover, the court was persuaded, in part, by the “compulsory verbal responses made by Wade at the instance of the Special Agent.” Ibid. This implies the erroneous holding that Wade’s privilege against self-incrimination was violated so that the denial of counsel required exclusion. On the record now before us we cannot make the determination whether the in-court identifications had an independent origin. This was not an issue at trial, although there is some evidence relevant to a determination. That inquiry is most properly made in the District Court. We therefore think the appropriate procedure to be followed is to vacate the conviction pending a hearing to determine whether the in-court identifications had an independent source, or whether, in any event, the introduction of the evidence was harmless error, Chapman v. California, 386 U. S. 18, and for the District Court to reinstate the conviction or order a new trial, as may be proper. See United States v. Shotwell Mfg. Co., 355 U. S. 233, 245-246. The judgment of the Court of Appeals is vacated and the case is remanded to that court with direction to enter a new judgment vacating the conviction and remanding the case to the District Court for further proceedings consistent with this opinion. It is so ordered. The Chief Justice joins the opinion of the Court except for Part I, from which he dissents for the reasons expressed in the opinion of Mr. Justice Foutas. Mr. Justice Douglas joins the opinion of the Court except for Part I. On that phase of the case he adheres to the dissenting views in Schmerber v. California, 384 U. S. 757, 772-779, since he believes that compulsory lineup violates the privilege against self-incrimination contained in the Fifth Amendment. Holt was decided before Weeks v. United States, 232 U. S. 383, fashioned the rule excluding illegally obtained evidence in a federal prosecution. The Court therefore followed Adams v. New York, 192 U. S. 585, in holding that, in any event, “when he is exhibited, whether voluntarily or by order, and even if the order goes too far, the evidence, if material,'is competent.” 218 U. S., at 253. See Powell v. Alabama, 287 U. S. 45, 60-65; Beaney, Right to Counsel in American Courts 8-26. See Note, 73 Yale L. J. 1000, 1040-1042 (1964); Comment, 53 Calif. L. Rev. 337, 347-348 (1965). See, e. g., Powell v. Alabama, 287 U. S. 45; Hamilton v. Alabama, 368 U. S. 52; White v. Maryland, 373 U. S. 59; Escobedo v. Illinois, 378 U. S. 478; Massiah v. United States, 377 U. S. 201. See cases cited n. 4, supra; Avery v. Alabama, 308 U. S. 444, 446. Borchard, Convicting the Innocent; Frank & Frank, Not Guilty; Wall, Eye-Witness Identification in Criminal Cases; 3 Wigmore, Evidence § 786a (3d ed. 1940); Rolph, Personal Identity; Gross, Criminal Investigation 47-54 (Jackson ed. 1962); Williams, Proof of Guilt 83-98 (1955); Wills, Circumstantial Evidence 192-205 (7th ed. 1937); Wigmore, The Science of Judicial Proof §§ 250-253 (3d ed. 1937). See Wall, supra, n. 6, at 26-65; Murray, The Criminal Lineup at Home and Abroad, 1966 Utah L. Rev. 610; Napley, Problems of Effecting the Presentation of the Case for a Defendant, 66 Col. L. Rev. 94, 98-99 (1966); Williams, Identification Parades, [1955] Crim. L. Rev. (Eng.) 525; Paul, Identification of Accused Persons, 12 Austl. L. J. 42 (1938); Houts, From Evidence to Proof 25; Williams & Hammelmann, Identification Parades, Parts I & II, [1963] Crim. L. Rev. 479-490, 545-555; Gorphe, Showing Prisoners to Witnesses for Identification, 1 Am. J. Police Sci. 79 (1930); Wigmore, The Science of Judicial Proof, supra, n. 6, at §253; Devlin, The Criminal Prosecution in England 70; Williams, Proof of Guilt 95-97. Williams & Hammelmann, Identification Parades, Part I, [1963] Crim. L. Rev. 479, 482. Williams & Hammelmann, Identification Parades, Part I, supra, n. 7. See Wall, supra, n. 6, at 57-59; see, e. g., People v. Boney, 28 Ill. 2d 505, 192 N. E. 2d 920 (1963); People v. James, 218 Cal. App. 2d 166, 32 Cal. Rptr. 283 (1963). See Rolph, Personal Identity 50: “The bright burden Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
sc_adminaction_is	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. GENERAL MOTORS CORP. v. DISTRICT OF COLUMBIA. No. 352. Argued March 10, 1965. Decided April 27, 1965. Donald K. Barnes argued the cause for petitioner. With him on the briefs were Aloysius F. Power, Thomas J. Hughes, Seymour S. Mintz, William T. Plumb, Jr., and E. Barrett Prettyman, Jr. Henry E. Wixon argued the cause for respondent. With him on the brief were Chester H. Cray and Milton D. Korman. Mr. Justice Stewart delivered the opinion of the Court. The District of Columbia Income and Franchise Tax Act of 1947 imposes a tax of 5% on the taxable income of every corporation, foreign or domestic, for the privilege of engaging in any trade or business within the District. The Act further provides that “[t]he measure of the franchise tax shall be that portion of the net income of the corporation ... as is fairly attributable to any trade or business carried on or engaged in within the District and such other net income as is derived from sources within the District.” The Act does not attempt to define a specific method whereby the portion of income “fairly attributable” to the District is to be determined, but authorizes the District Commissioners to prescribe regulations for such determination. However, the Commissioners’ discretion in devising such regulations is not unfettered, as the Act further commands: “If the trade or business of any corporation ... is carried on or engaged in both within and without the District, the net income derived therefrom shall ... be deemed to be income from sources within and without the District.” Acting pursuant to the authority delegated to formulate regulations governing the allocation of income, the District Commissioners promulgated regulations which provide: “Where income for any taxable year is derived from the manufacture and sale or purchase and sale of tangible personal property, the portion thereof to be apportioned to the District shall be such percentage of the total of such income as the District sales made during such taxable year bear to the total sales made everywhere during such taxable year.” The petitioner, General Motors Corporation (G. M.), seeks reyiew of an en banc decision of the Court of Appeals for the District of Columbia Circuit which approved the application of these regulations in determining the proportion of its total net income allocable to the District for the purpose of computing the franchise tax due. General Motors attacks this method of computation on the grounds that it attributes to the District an unreasonably high proportion of its total income and that it is therefore both unauthorized by the relevant sections of the statute, and violative of the Interstate Commerce and Due Process Clauses of the Constitution. We agree that this method of allocation is not authorized by the D. C. Code and therefore reverse the judgment of the Court of Appeals without reaching the constitutional questions raised. General Motors is engaged in the manufacture and sale of motor vehicles, parts, and accessories. A Delaware corporation, the petitioner maintains its principal offices in New York and Detroit. It carries on no manufacturing operations within the District of Columbia, but it makes substantial sales to customers located within the District, chiefly retail automobile dealers. During the years in question, 1957 and 1958, its volume of sales to such customers aggregated $37,185,704 and $32,542,519, respectively. Orders for these sales were received and filled outside the District, and the products were shipped to customers from G. M. manufacturing plants in Maryland, Delaware, and Michigan. It is the claim of G. M. that the use of the “sales-factor formula” in the regulations is beyond the authority of the statute, because that formula taxes more of its net income than is “fairly attributable” to its District of Columbia business, particularly in light of the statutory provision which provides that the net income of a business carried on both within and without the District shall be deemed to be from sources within and without the District. We agree that the Commissioners exceeded their statutory authority by allocating income to the District in disregard of the express restrictions of the law. We are normally content to leave undisturbed decisions by the Court of Appeals for the District of Columbia Circuit concerning the import of legislation governing the affairs of the District. However, at times application of the District Code has an impact not confined to the Potomac’s shores, but reaching far beyond. This is such a case, for approval of the District Commissioners’ regulations lends sanction to an apportionment formula seriously at variance with those prevailing in the vast majority of States and creates substantial dangers of multiple taxation. Where a decision is of such significance to interstate commerce, and where the result reached involves statutorily unsupportable exertions of administrative power, the traditional reasons underlying our customary refusal to review interpretations of District law do not apply. It is of course clear that the District Code does not expressly prescribe the use of any particular formula for the apportionment of income to sources within and without the District. On the contrary, the Code expressly authorizes the District Commissioners to promulgate regulations for the detailed apportionment of the income of multistate enterprises. But neither does the Code leave the Commissioners wholly unguided in their exercise of this authority. The Commissioners’ authority is clearly limited by the provision (§ 47-1580a) which requires that the net income of a corporation doing business inside and outside the District be deemed to arise from sources situated in like fashion. To understand the meaning of this limitation, we need but take the simple example of a corporation which has its manufacturing facilities located wholly in Maryland and sells all of its products in the District of Columbia. Application of the Commissioners’ formula would result in the allocation of 100% of the corporation’s income to the District. Yet there can be no doubt that the business of the corporation is carried on both within and without the District, viz., manufacture in Maryland and sales in the District. The statute does not say that net income shall be deemed to be derived from sources within and without the District only where the sales of any corporation are made both within and without the District, which is the effect of the Commissioners’ regulation. The statute is phrased more broadly and commands apportionment of income to sources within and without the District whenever “the trade or business of any corporation ... is carried on or engaged in both within and without the District.” As it is clear that some part of the trade or business of this hypothetical corporation is carried on without the District, the conclusion follows that the Commissioners must “deem” some part of the income of this corporation to be derived from sources outside the District. It is said that the Commissioners’ regulations are within the statutory grant of authority because the language “the net income derived therefrom” in § 47-1580a must be read to mean the total income of the corporation and not the “net income arising from activities in the District.” The section must be so read, it is argued, because this reading least restricts the discretion of the Commissioners in devising apportionment formulae, and the traditional canon of broad construction of revenue measures demands that restrictions on the Commissioners’ discretion be minimized. Applying this approach to the case at hand, it is argued that the Commissioners fulfilled their statutory obligation in apportioning the total income of G. M. to sources inside and outside the District in accordance with the geographical distribution of the company’s sales. Where, as in this case, some portion of a corporation’s income is derived from manufacture and sale outside the District, there is no question that the statute requires the Commissioners to allocate that portion to sources outside the District. However, it does not follow that the malting of.that kind of allocation alone relieves the Commissioners of their statutory responsibility to apportion that part of a corporation’s income arising from manufacture outside and sale inside the District limits. As to this segment of its income, G. M. is in precisely the same situation as the hypothetical corporation manufacturing wholly in Maryland and selling solely in the District; that is, it is carrying on a business partly within and partly without the District limits. It is not enough under the statute to require apportionment of income derived from District sales only in the case where the taxed corporation has no sales outside the District. The inescapable and determinative fact in both the hypothetical case and the case before us is that the company carries on business both inside and outside the District with respect to the income which it derives from the sales made within the District. Consequently, § 47-1580a requires that some portion of this income be deemed to arise from sources outside the District.' The conclusion which we reach by analysis of the plain language of the statute also finds support in the consequences which a contrary view would have for the overall pattern of taxation of income derived from interstate commerce. The great majority of States imposing corporate income taxes apportion the total income of a corporation by application of a three-factor formula which gives equal weight to the geographical distribution of plant, payroll, and sales. The use of an apportionment formula based wholly on the sales factor, in the context of general use of the three-factor approach, will ordinarily result in multiple taxation of corporate net income; for the States in which the property and payroll of the corporation are located will allocate to themselves 67% of the corporation’s income, whereas the jurisdictions in which the sales are made will allocate 100% of the income to themselves. Conversely, in some cases enterprises will have their payroll and plant located in the sales-factor jurisdictions and make their sales in the three-factor jurisdictions so that only 33% of their incomes will be subject to state taxation. In any case, the sheer inconsistency of the District formula with that generally prevailing may tend to result in the unhealthy fragmentation of enterprise and an uneconomic pattern of plant location, and so presents an added reason why this Court must give proper meaning to the relevant provisions of the District Code. Moreover, the result reached in this case is consistent with the concern which the Court has shown that state taxes imposed on income from interstate commerce be fairly apportioned. In upholding taxes imposed on corporate income by Connecticut and New York and apportioned in accordance with the geographical distribution of a corporation’s property, this Court carefully inquired into the reasonableness of the apportionment formulae used. “The profits of the corporation were largely earned by a series of transactions beginning with manufacture in Connecticut and ending with sale in other States. In this it was typical of a large part of the manufacturing business conducted in the State. The legislature in attempting to put upon this business its fair share of the burden of taxation was faced with the impossibility of allocating specifically the profits earned by the processes conducted within its borders. . . . There is . . . nothing in this record to show that the method of apportionment adopted by the State was inherently arbitrary, or that its application to this corporation produced an unreasonable result.” Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113, 120-121. See also Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm’n, 266 U. S. 271. While the Court has refrained from attempting to define any single appropriate method of apportionment, it has sought to ensure that the methods used display a modicum of reasonable relation to corporate activities within the State. The Court has approved formulae based on the geographical distribution of corporate property and those based on the standard three-factor formula. See, e. g., Underwood Typewriter Co. v. Chamberlain, supra; Butler Bros. v. McColgan, 315 U. S. 501. The standard three-factor formula can be justified as a rough, practical approximation of the distribution of either a corporation’s sources of income or the social costs which it generates. By contrast, the geographic distribution of a corporation’s sales is, by itself, of dubious significance in indicating the locus of either factor. We of course do not mean to take any position on the constitutionality of a state income tax based on the sales factor alone. For the present purpose, it is sufficient to note that the factors alluded to by this Court in justifying apportionment measures constitutionally challenged in the past lend little support to the use of an exclusively sales-oriented approach. In construing the District Code to prohibit the use of a sales-factor formula, we sacrifice none of the values which' our scrutiny of state apportionment measures has sought to protect. In sum, we find that the language of the authorizing statute does not permit the application of an apportionment formula which makes use of the sales factor alone. The conclusion which we draw from examination of the statutory language finds support in the conflict with other taxing jurisdictions which would result from a contrary view. It finds further support in the continuing concern for fair apportionment which this Court has displayed over the years in scrutinizing state taxing statutes. As the District Code confides in the Commissioners the authority to prescribe detailed regulations, it is not for us to make specific prescription, and we limit ourselves to holding that the present regulation is unauthorized by the statute. Accordingly, the judgment of the Court of Appeals for the District of Columbia Circuit is reversed and the case remanded for proceedings consistent with this opinion. Reversed and remanded. Mr. Justice Black and Mr. Justice Douglas, agreeing with the Court of Appeals that the tax here is authorized by the controlling statute, would affirm the judgment. D. C. Code 1961, §47-1571a. D. C. Code 1961, §47-1580. D. C. Code 1961, §47-1580a. Ibid. Section 10.2 (c) of the District of Columbia Income and Franchise Tax Regulations, relettered by amendment of July 24, 1956. 118 U. S. App. D. C. 381, 336 F. 2d 885, certiorari granted, 379 U. S. 887. An earlier decision (91 Wash. Law Rep. 650) of a panel of the Circuit Court, reversed by the decision here reviewed, had reached a contrary conclusion in affirming the decision of the'District of Columbia Tax Court (CCH D. C. Tax Rep. ¶ 200-006). Out of total sales of $9,461,855,874 in 1957 and $7,853,393,381 in 1958. This is not to say that the Commissioners need engage in detailed segmentation of corporate income to source and specific allocation thereof. All that is required is that the formula adopted for general application take account of the geographical spread of the major dimensions of a business. Of the 38 States requiring payment of such taxes, 26 employ varieties of a three-factor formula which takes into account the geographical distribution of a corporation’s payroll, property and sales, generally giving equal weight to each factor. Another three use substantially the same formula, replacing the payroll factor with the broader category of manufacturing costs. Yet another three make, use of a formula which incorporates the sales and property factors. Only four taxing jurisdictions use formulae based solely on the geographic distribution of corporate sales. See H. R. Rep. No. 1480, 88th Cong., 2d Sess., at 119. Question: Did administrative action occur in the context of the case? A. No B. Yes 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. SHEPARD v. UNITED STATES. No. 564. Circuit Court of Appeals, Tenth Circuit. Jan. 9, 1933. C. L. Kagey, of Wichita, Kan., and Harry W. Colmery, of Topeka, Kan. (Hal M. Black, of Wichita, Kan., Harry S. Class, of Denver, Colo., L. M. Kagey, of Wichita, Kan., L. W. LundbJade, of Beloit, Kan., A. E. Crane and Balfour S. Jeffrey, both of Topeka, Kan.,. Kagey & Black, of Wichita, Kan., Kagey,, Lundblado & Kagey, of Beloit, Kan., and Doran, Kline, Colmery & Cosgrove, of Topeka, Kan., on the brief), for appellant. S. M. Brewster, U. S. Atty., and L. E. Wyman, Asst. U. S. Atty., both of Topeka, Kan. (Donald Little and Dan B. Cowie, Asst. U. S. Attys., both of Topeka, Kan., on the brief), for the United States. Before LEWIS, COTTERAL, and PHILLIPS, Circuit Judges. COTTERAL, Circuit Judge. Charles A. Shepard was convicted of murdering his wife, Zenana Shepard, by poisoning, June 15,1929, on the United States Military Reservation, at Fort Riley, Kan. The verdict of the jury was returned without capital punishment and the defendant was sentenced to life imprisonment. He appeals, relying on eight assignments of error, which embrace complaints of: (1) The exclusion of jurors; (2) refusal to direct a verdict for the defendant; (3) the admission of incompetent evidence; and (4) prejudicial comments on the evidence. 1. The defendant exhausted his peremptory challenges. Ten additional jurors wore excused by the court, and others were called and retained. Those excused had read an article printed in the Kansas City Star, purporting to emanate from the defendant, shortly before the trial. One of them, interrogated by the court and counsel for both ■sides, believed the article was a statement by the defendant, and answered he thought it would be considered. The others of those jurors were’examined solely by the court, all had read the article, and they were excused -without allowing inquiry from counsel for the defendant. The objections were to the excuse of these jurors, and to the denial of a motion, to quash the panel on that ground. The view of the court was reflected in a remark that the defendant may not put his statement in a newspaper, get it to the jurors, and ask them to sit in the case. We quite agree it was not permissible for the defendant to create an atmosphere favorable to his defense and be tried by jurors subject to such influence. The newspaper article was introduced for the use of the court, but is not in the récord. The trial court has the duty to pass on the qualifications of the jurors. Its action is- not reviewable, unless it discloses an abuse of discretion. While there was no showing that the defendant wrote or inspired the article, the court had the discretion to- determine its effect; and no error arose because the court examined the jurors. Remus v. United States (C. C. A.) 291 F. 501; Assaid v. United States (C. C. A.) 10 F.(2d) 752; Hopt v. Utah, 120 U. S. 430, 435, 7 S. Ct. 614, 30 L. Ed. 708; Northern Pacific R. R. Co. v. Herbert, 116 U. S. 642, 646, 6 S. Ct. 590, 29 L. Ed. 755. In any event, the defendant'has no ground of complaint, as he was tried before an impartial jury. Hayes v. Missouri, 120 U. S. 68, 7 S. Ct. 350, 30 L. Ed. 578; Howard v. Kentucky, 200 U. S. 164, 26 S. Ct. 189, 50 L. Ed. 421. 2. The motion to direct a verdict is based on the insufficiency of evidence to warrant the conviction. The prosecution claims the defendant poisoned his wife, with the motive of marrying Grace Brandon, with whom he had become enamored. We condense the evidence of guilt to the point that will illustrate its sufficiency. The defendant and his wife were married .•at Los Angeles, in 1916. He is a medical officer in the United States Army, and was commissioned as a major during the World War. 'Since that time he has been stationed at various posts, and in 1928 was transferred to Fort Riley, Kan. His wife accompanied him. In that year, leaving his wife at Fort Riley, She took a flight surgeon’s course at Brooks Field, near San Antonio, Tex. While there, he met Grace Brandon and took her to dinners, dances, theaters, and other places of entertainment. He told her he and bis wife were not cong-enial, but kept up appearances for the sake of his rank and reputation. In November, 1928, at Neuvo Laredo, Mexico, he asked Miss Brandon to marry him if he should get a divorce; and she assented. The promise was repeatedly made. He protested his love for her, and frequently made her gifts of candy, flowers, jewelry, and other articles. He asked her to write to him at Junction City, Kan., where he rented a post office box. He wrote to her often, occasionally several times a day, until after his arrest. In his letters he spoke of their marriage, and shortly before his wife became ill he wrote Miss Brandon his wife had changed her mind about a divorce, and he was depressed because of her request for an excessive financial settlement; also, that he had made over to Miss Brandon his life insurance of about $30,000. The correspondence with her was addressed in affectionate terms. In May, 1929, a few days before Mrs. Shepard became ill, he ordered a canary bird sent to Miss Brandon, but it did not reach her until two days before Mrs. Shepard’s illness began. Soon after his return from San Antonio in December, 1928, the defendant obtained some bichloride of mercury tablets from the pharmacist at the post dispensary. He obtained other such tablets there in March, 1929, and in the following month he obtained a prescription for a like tablet dissolved in eight ounces of alcohol. In his. statement made to the agents of the Department of Justice he denied the fact, but in his testimony said all doctors carried the tablets for disinfectant purposes. He also obtained from the dispensary about two hundred empty capsules. He had access to the dispensary and had the keys to it every five or six days, as officer of the day. Mrs.' Shepard enjoyed good health. In the afternoon of May 20, 1929, she went to Junction City to mail a letter. After her return defendant gave her a ginger ale highball. Later that evening, Mrs. Gertrude Skow, in answer to a call from Mrs. Shepard during her absence, telephoned the Shepard home and talked with the defendant, who told her that Mrs. Shepard was desperately ill and the doctor was there. She and Mrs. Constance Gates, another friend of Mrs. Shepard (both wives of army officers), called at the Shepard home but did not see her, and were told by the defendant she had gotten some bad liquor. Major Edward J. Striekler, a psychiatrist summoned by defendant, called at 8 o’clock. At about 9 o’clock, defendant called Mrs. Skew, asking her to stay with Mrs. Shepard until he could go for a nurse. He met Clara Brown, a nurse from Topeka, at Junction City, and she arrived that night. He told the nurse Mrs. Shepard had a nervous breakdown, and she need not keep a record of the ease. Mrs. Shepard was found delirious and vomiting, and her eyes were dilated. The defendant prepared capsules for Mrs. Shepard and the nurse gave them to her, one at a time. He said the capsules contained sodium bicarbonate and luminol. There were others he said contained bismuth. The next day, the defendant told Alice McDonald he did not think the patient would get well. Mrs. Shepard suffered and had hemorrhages. Defendant told Major Martin Du Frenne he thought she was a chronie alcoholic, and had a chronie appendix. He also told Major Paul R. Hawley she had heart trouble. But no evidence was found of either condition. Her mouth became sore and foul and a dentist prescribed a wash containing mercuric chloride, but she used only a little of it. She lingered until she died on June 15, 1929. The defendant opposed an autopsy asked by the officers, but yielded when it was ordered by General Symonds. The viscera were examined by several specialists and revealed the presence of mercury, taken in small doses. They agreed it was the cause of the dqath. This is practically conceded by counsel for the defendant. Shepard went with the remains to Los Angeles for cremation. Before he left, he, advised Miss Brandon of the time of his departure, and stated that he would be at the Roslyn Hotel. He wired her the night of his arrival. On Juno 29, he wired General Ireland a request for a transfer to the hospital at Fort Sam Houston, near San Antonio. He wrote to Miss Brandon while en route from Los Angeles to Port Riley. Immediately after his return, he obtained leave to go to Denver to sell some lots, but went directly to San Antonio, arriving there on June 30. The day previous, he wired Miss Brandon from Waco he would telephone her on arrival at hotel, signing, “Love, Charlie.” He met her and while driving with her, proposed a secret marriage. On her refusal, they fixed their wedding date for August, 1930. He continued to send her gifts and bought her a car. He made repeated efforts to obtain a transfer to San Antonio. There was such an array of circumstances pointing to defendant’s guilt as to leave no doubt of its sufficiency to withstand the motion for a directed verdict. 3. The main testimony objected to was that of Sergeant J. C. Glesser and the nurse, Clara Brown, admitted in rebuttal. The sergeant testified that on the fourth or fifth day of her illness, Mrs. Shepard said she believed she was being poisoned. Nurse Brown testified Mrs. Shepard said on the second day of her illness “she was being poisoned,” and “Doctor Shepard has poisoned me.” The testimony of these witnesses was not admissible as dying declarations. There was testimony that Mrs. Shepard said she would not get well, had made threats of suicide, and did not want to recover; and it is a fair inference she believed, she would not recover. But there is no' evidence that she believed death was impending or about to ensue. Death need not actually follow as anticipated, but it is necessary that the patient believe it to be imminent. It is then an exception to the rule excluding hearsay arises, the temptation to falsehood being removed. Mattox v. United States, 146 U. S. 140, 13 S. Ct. 50, 36 L. Ed. 917; Wigmore on Evidence (2d Ed.) vol. 3, §§ 1440,1441. The testimony of Sergeant Grosser was that the statement of Mrs. Shepard was not one of fact but opinion, and for that reason it was not admissible as a dying declaration. Wigmore on Evidence (2d Ed.) vol. 3, § 1447 ; 30 C. J. p. 274; Ehrhardt v. People, 51 Colo. 205, 117 P. 164. But we are convinced the declarations were admissible to rebut the theory of suicide, advanced by the defense. The statements imputed to Mrs. Shepard that she contemplated suicide and did not expect or want to get well, reflected the state of her mind and tended- to show the poison was self-administered.' To rebut that testimony, the declarations that her .husband had poisoned her and she believed she had been poisoned were clearly competent as tending to show a different state of mind. State v. Kuhn, 117 Iowa, 216, 90 N. W. 733; 30 C. J. p. 165; Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, 12 S. Ct. 909, 36 L. Ed. 706; State v. Hayward, 62 Minn. 474, 65 N. W. 63; Commonwealth v. Trefethen, 157 Mass. 180, 31 N. E. 961, 24 L. R. A. 235. It is argued that as the testimony was not of dying declarations, it was error to admit it, unless the jury was instructed as to the purpose for which it might be considered. There is authority for the contention. It was held error to omit the instruction whore the evidence was long or involved, in a conspiracy case. Minner v. United States (C. C. A.) 57 F.(2d) 506. But the general rule, which should be applied here, requires the adverse party to request such an instruction when he desires the benefit of it, and it was not done in this case. Butler v. United States (C. C. A.) 53 F.(2d) 800; Moffatt v. United States (C. C. A.) 232 F. 522; Hallowell v. United States (C. C. A.) 253 F. 865; Id. (C. C. A.) 258 F. 237, certiorari denied 249 U. S. 615, 39 S. Ct. 390, 63 L. Ed. 803; Id., 251 U. S. 559, 40 S. Ct. 180, 64 L. Ed. 413; Stassi v. United States (C. C. A.) 50 F.(2d) 526. Instead, when the instructions were finished, counsel for the defendant stated he was satisfied with them. This foreclosed objections to them. Mann v. United States (C. C. A.) 49 F.(2d) 131; Najera v. Bombardieri (C. C. A.) 46 F.(2d) 281; Wong Tai v. United States, 273 U. S. 77, 47 S. Ct. 300, 71 L. Ed. 545. Objection is urged to the introduction in evidence of various letters which were written by defendant to Miss Brandon, those he wrote to the concerns from which the gifts were obtained by him for her, and to the articles sent to her. The argument is the court abused its discretion in admitting' those exhibits. The obvious answer is they tended to establish a motive on defendant’s part to penetrate the crime charged. There is no force whatever in the objection., The account given by the defendant to tfie agents of the Department of Justice is assailed. He stated he was advised as to his constitutional rights and made his statement freely and voluntarily. An admission given under such circumstances is properly received in evidence. Perovich v. United States, 205 U. S. 86, 91, 27 S. Ct. 456, 51 L. Ed. 722; O’Neill v. United States (C. C. A.) 19 F.(2d) 322. The introduction of Mrs. Shepard’s letters to her kin and mother were also questioned. They were offered to show the frame of her mind as being opposed to suicide. They were admissible on the same grounds as were her conversations. 4. Finally, it is urged that the court, indulged in prejudicial comments upon the evidence, in ruling upon the objections. Those pointed out by counsel do not sustain their complaint. There were unwarranted remarks to counsel in different instances, but they were insufficient to constitute reversible error. The charge to the jury is assailed, in that it reviewed the evidence in favor of the prosecution in more detail than that favoring the defense. This was a natural course, in view of the burden to establish the offense by circumstantial evidence. But it suffices to say that the charge was accepted as satisfactory by the defendant’s counsel. We are of the opinion that the record discloses no material error, and for that reason the judgment in this ease is affirmed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. 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. MELVIN LLOYD CO. et al. v. STONITE PRODUCTS CO. et al. No. 7636. Circuit Court of Appeals, Third Circuit. May 13, 1941. Isaac J. Silin, of Erie, Pa. (Brooks, Curtze & Silin, of Erie, Pa., on the brief), for appellants. A. D. Caesar, of Philadelphia, Pa., (Caesar & Rivise, of Philadelphia, Pa., and David S. Gifford, of Erie, Pa., on the brief), for appellees. Before BIGGS, MARIS, and JONES, Circuit Judges. MARIS, Circuit Judge. Stonite Products Company was sued jointly with Lowe Supply Company in the District Court for the Western District of Pennsylvania for infringement of a patent for a boiler stand'. Both defendants are Pennsylvania corporations. Each was served where it had its principal place of business, Lowe in the Western District, Stonite in the Eastern District of Pennsylvania. Lowe defaulted and the suit proceeded to judgment against it. Stonite entered a special appearance and moved to dismiss or quash the return of service. The district court granted the motion, quashed the return of service and dismissed the cause of action as to Stonite for the reason that the venue as to it was not laid in the district" where acts of infringement are alleged to have occurred and where Stonite has a regular and established place of business. 36 F.Supp. 29. This appeal followed. The controversy centers about the construction of Sections 48 and 52 of the Judicial Code, the former dealing with venue in patent infringement suits, the latter a general statute as to venue in the district courts in those states which have been divided into two or more judicial districts. Section 48 (28 U.S.C.A. § 109) provides: “In suits brought for the infringement of letters patent the district courts of the United States shall have jurisdiction, in law or in equity, in the district of which the defendant is an inhabitant, or in any district in which the defendant, whether a person, partnership, or corporation, shall have committed acts of infringement and have a regular and established place of business. If such suit is brought in a district of which the defendant is not an inhabitant, but in which such defendant has a regular and established place of business, service of process, summons, or subpcena upon the defendant may be made by service upon the agent or agents engaged in conducting such business in the district in which suit is brought.” Section 52 (28 U.S.C.A. § 113) provides: “When a State contains more than one district, every suit not of a local nature, in the district court thereof, against a single defendant, inhabitant of such State, must be brought in the district where he resides; but if there are two or more defendants, residing in different districts of the State, it may be brought in either district, and a duplicate writ may be issued against the defendants, directed to the marshal of any other district in which any defendant resides. The clerk issuing the duplicate writ shall indorse thereon that it is a true copy of a writ sued out of the court of the proper district; and such original and duplicate writs, when executed and returned into the office from which they issue, shall constitute and be proceeded on as one suit; and upon any judgment or decree rendered therein, execution may be issued, directed to the marshal of any district in the same State.” The question for our determination is whether Section 52 is applicable to patent cases as well as to all other cases not of a local nature or whether venue in patent cases must be determined solely under the provisions of Section 48. In other words, is Section 48 inconsistent with Section 52? In determining whether these two sections are in conflict it is helpful to consider their legislative history and the reasons which led to their enactment. Section 48 was first enacted as the Act of March 3, 1897, 29 Stat. 695. In considering tha reasons for its enactment some historical review is necessary. Section 11 of the Judiciary Act of September 24, 1789, c. 20, 1 Stat. 79, (§ 739, Rev.Stat.) permitted suit to be instituted in the federal courts against an inhabitant of the United States in any district in which he was an inhabitant or in which he was found at the time of serving the writ. This provision was continued in the Act of March 3, 1875, c. 137, § 1, 18 Stat. 470. The right to serve process upon a defendant in any district in which he chanced to be frequently placed the venue of an action in a district quite distant from the scene of the controversy and the residence of the parties, with resulting hardship to a defendant who had to defend a suit at a great distance from his home and the homes of his witnesses. It was to remedy this hardship by limiting venue that Congress passed the Act of March 3, 1887, c. 373, 24 Stat. 552, in which it provided for the bringing of suit only in the district where the defendant was an inhabitant except where the jurisdiction was founded on the fact that the action was between citizens of different states, in which case suit could be brought in the district of the residence of either the plaintiff or the defendant. Although this act might readily have been construed as being applicable to all cases in which the circuit and district courts had jurisdiction the Supreme Court stated in Re Hohorst, 150 U.S. 653, 14 S.Ct. 221, 37 L.Ed. 1211, that it did not apply to an alien or foreign corporation sued in the United States. By way of dictum the court stated that the act applied only to cases in which the federal courts had concurrent jurisdiction with state courts and was, therefore, inapplicable to a suit for infringement of a patent since the federal courts had exclusive jurisdiction over patent litigation. After the decision of the Hohorst case there was considerable disagreement in the lower federal courts as to whether the dictum in that case went so far as to exclude patent litigation from the restricted venue prescribed by the Act of 1887. In 1895, however, the Supreme Court in Re Keasbey & Mattison Co., 160 U.S. 221, 16 S.Ct. 273, 40 L.Ed. 402, again by way of dictum once more stated that the Act of 1887 did not apply to patent litigation. Convinced by this reiteration the lower federal courts thereafter held that suit could be brought against a defendant in a patent infringement suit wherever process could be served upon him. Westinghouse Air-Brake Co. v. Great Northern Ry. Co., 2 Cir., 88 F. 258. On March 3, 1897, Congress passed the act which afterward became Section 48 of the Judicial Code. It provided for the bringing of patent suits either in the district where the defendant was an inhabitant or in the district where the infringement took place and where the defendant maintained a regular ánd established place of business. This act brought the venue of patent litigation more nearly into line with that of all other suits in the federal courts. By reason of the peculiar nature of patent infringements, however, the act preserved the right to bring suit in any district where the defendant maintained a business place provided acts of infringement had taken place in that district. But the unrestricted right to bring suit wherever the defendant could be served was not retained. It will thus be seen that the Act of 1897 restricted rather than enlarged the venue previously existing in patent cases, although still retaining for such cases a wider venue than was permitted in other litigation. See the illuminating discussion of this subject by Judge Coxe in Bowers v. Atlantic, G. & P. Co., C.C., 104 F. 887. We now turn to the consideration of Section 52 of the Judicial Code which had its origin in the Act of May 4, 1858, c. 27, 11 Stat. 272. Originally' the federal judicial districts were coextensive with the states. Section 2 of the Judiciary Act of 1789, 1 Stat. 73, provided for thirteen federal districts corresponding to the eleven states which first ratified the Constitution and the districts of Maine and Kentucky. Section 3 of the act created a court for each district. Within a few years Congress found it expedient to divide certain of the states into two or more judicial districts In a state thus divided one who desired to sue a number of defendants living in the state found it necessary to bring more.than one suit if the defendants did not all reside in the same district. However, the idea that state lines should be used to delimit venue jurisdiction in the federal courts still persisted. It is clear that Congress had this idea in mind when, in dividing the State of Alabama into two judicial districts by the Act of March 10, 1824, c. 28, § 6, 4 Stat. 10, it provided: “That all suits hereafter to be brought, in either of the courts aforesaid, not of a local naturej shall be brought only in the district where the defendant shall reside; but if there be more than one defendant, and some of them reside in the northern, and some in the southern district, the plaintiff may sue in either, and send a 'duplicate writ to the other, on which he shall endorse that it is part of a suit brought in the district from which it is sent; and the said writs, when executed and returned, shall constitute one suit, and be proceeded in accordingly.” Similar provisions were made in many later acts. In 1858 Congress passed the general act to the same effect which was afterwards incorporated into the Judicial Code as Section 52. Before the division of a state into judicial districts a plaintiff had the right to bring a single suit against any number of defendants residing anywhere within the state. The sole purpose of the Act of 1858 was to preserve to a plaintiff, after the division of the state into judicial districts, the same right to bring one suit against any number of residents of the state, even though they might happen to live in different districts. The act eliminated any possible prejudice to a plaintiff resulting from the division of a state into judicial districts. It will thus be seen that the Act of 1858 related only to venue in a geographical situation thought to require special treatment, whereas the Act of 1897 related solely to venue in a special type of case. That Congress considered the two acts to be consistent with each other may fairly be inferred from the fact that they were incorporated into the Judicial Code as Sections 52 and 48 respectively, without any suggestion that Section 52 which in terms applies to “every suit” does not apply to a patent suit or that the venue for patent suits provided by Section 48 is to be deemed exclusive of the venue prescribed by Section 52 for all cases in those particular states which are divided into judicial districts. In this connection it is to be noted that Section 52 does expressly except from its purview suits of a local nature. The failure to include in the exception suits for patent infringement is a strong indication that such suits are intended to be governed by its provisions. Our historical review reveals that Congress has always accorded to patent litigants a broader venue than that extended to other civil litigants. In the light of this legislative history it hardly seems likely that Congress intended by the Act of 1897 to withdraw from patent litigants the state-wide venue which it had accorded from the beginning to all others. We find no support in the Judicial Code or in the statutes which preceded it nor do we see any basis in logic for the proposition that of all parties desiring to institute civil litigation a patent owner alone should be prejudiced by the fact that the state in which the alleged infringers of his patent reside has been divided into judicial districts. We have seen that the subject matter of the two sections is distinct. Under these circumstances each should be given full effect if possible. In a broad sense, of course, each deals with the general problem of venue. If in this sense the sections may be deemed in pari materia they should be construed in harmony with each other so as to give effect to each, if reasonably possible. The Star, 16 U.S. 78, 3 Wheat. 78, 4 L.Ed. 338; The United States v. Freeman, 44 U.S. 556, 3 How. 556, 11 L.Ed. 724; United States v. Stewart, 311 U.S. 60, 61 S.Ct. 102, 85 L.Ed. -. We think there is no lack of harmony between .'Section 48 which provides that the judicial district of which the defendant is an inhabitant shall be the proper venue for a personal action brought for the infringement of a patent and Section 52 which in practical effect provides that where the defendants in any personal action reside in two or more judicial districts within a state all the districts involved shall be treated as a single district for the purpose of venue jurisdiction over the defendants. Section 52 thus merely enlarges the meaning of the phrase “the district of which the defendant is an inhabitant” which appears in Section 48. We think that the construction of these sections of the Judicial Code was correctly indicated by Judge Dickinson in Zell v. Erie Bronze Co., D.C.E.D.Pa., 273 F. 833, 837, as follows: “The genesis of these several acts of Congress and the order in which they appear in the present Judicial Code are all consistent with this thought, that a defendant in any kind of a case may be sued in his own district, and there alone, except that where diversity of citizenship is a sole ground of jurisdiction he may also be sued, if service can there be had upon him, in the district of the plaintiff, and that in patent suits the infringer may be sued in the district in which he commits acts of infringement, if he there maintains an office, etc.; that where there are several defendants the plaintiff may proceed against the defendant who is an inhabitant of the district in which the suit is brought, and if all of the defendants reside within the same state, although in different districts, they may all be sued in the district of any one of them, extraterritorial service being made upon those out of the districts.” We conclude that the provisions of Section 52 authorizing a single suit to be brought against defendants residing in different districts in a state divided into judicial districts apply to patent suits to the same extent as to other non local suits and that the district court erred in holding otherwise. A different conclusion was reached by the Circuit Cottrt of Appeals for the Ninth Circuit in Motoshaver, Inc. v. Schick Dry Shaver, Inc., 100 F.2d 236, but for the reasons already suggested we think that the court in that case in holding Section 52 inapplicable to patent cases failed to give that section its proper effect. The judgment of the district court is reversed and the cause is remanded with directions to reinstate the complaint against the defendant Stonite Products Company. In Allen v. Blunt, 1 Blatchf. 480, Fed. Cas.No.215, Justice Nelson sitting at circuit construed the venue provision of Section 11 of the Judiciary Act of September 24, 1789, 1 Stat. 79, as a general provision applicable to all suits in the federal courts, including a suit for the infringement of a patent. Act of April 29, 1802, c. 31, § 7, 2 Stat. 162, three districts in North Carolina; Act of April 29, 1802, c. 31, § 16, 2 Stat. 165, two districts in Tennessee; Act of April 9, 1814, c. 49, 3 Stat. 120, two districts in New York; Act of April 20, 1818, c. 108, 3 Stat. 462, two districts in Pennsylvania; Act of February 21, 1823, c. 11, 3 Stat. 726, two districts in South Carolina; Act of March 3, 1823, c. 44, 3 Stat. 774, two districts in Louisiana. Mississippi. Act of June 18, 1838, c. 115, § 4, 5 Stat. 248; Tennessee. Act of January 18, 1839, c. 3, § 7, 5 Stat. 314; Alabama. Act of February 6, 1839, c. 20, § 5, 5 Stat. 315; Georgia. Act of August 11, 1848, c. 151, § 5, 9 Stat. 281; Iowa. Act of March 3, 1849, c. 124, § 3, 9 Stat. 411; Ohio. Act of February 10, 1855, c. 73, § 9, 10 Stat. 606. See Petri v. Creelman Lumber Co., 199 U.S. 487, 498, 26 S.Ct. 133, 50 L.Ed. 281. 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_numappel	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Ernestine A. LUTHER, Defendant-Appellant. No. 74-3178. United States Court of Appeals, Ninth Circuit. July 30, 1975. Kirkpatrick W. Dilling, Chicago, Ill., for defendant-appellant. Herbert Hoffman, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee. Before KOELSCH, CHOY and GOODWIN, Circuit Judges. OPINION PER CURIAM: Mrs. Luther was convicted of smuggling merchandise in violation of 18 U.S.C. § 545, and she appeals. We affirm. Mrs. Luther was stopped at the primary inspection area at the port of entry in San Ysidro. She failed to make any declaration in response to the routine question by the customs officer. An inspection of her car then revealed 3,600 Wobe-mugos laetrile capsules of German origin in the trunk. Her car keys were taken from her and she was directed to wait in the secondary inspection area. She was questioned there by Special Agent Nadel, who had been informed by telephone of the incident concerning Mrs. Luther. He knew that Mrs. Luther had failed to declare the medicine as required, and that the medicine was unauthorized for entry because of its foreign label. Upon viewing the Wobe-mugos capsules, however, he determined that they were of such little value that he would only make an administrative seizure. Holding the bag containing the capsules, he questioned Mrs. Luther over the public counter in the inspection area to verify her identification and her possession of the undeclared medicine. He then offered Mrs. Luther a receipt and told her she could leave. Mrs. Luther chose to remain while a call was made to see if Wobe-mugos were authorized by the Food and Drug Administration. Upon learning that the capsules would be held she obtained her car keys and left. The next day Agent Nadel learned that the quantity of laetrile possessed by Mrs. Luther was worth $1,200. Surmising that a seizure of some importance had taken place, he obtained a warrant and arrested Mrs. Luther at her home. Only at that point were Miranda warnings given. Appellant urges that when questioned at the secondary inspection office at the port of entry in San Ysidro, she was deprived of her freedom of action in a significant way and was in custody as conceived in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). She contends that statements obtained at that time were inadmissible because no Miranda warning was given her. We hold that the interrogation was not custodial in nature for the purposes of Miranda and, consequently, that the testimony of Agent Nadel was properly admitted. By “custodial interrogation” the Miranda Court meant questioning initiated after a person was taken into custody or otherwise deprived of his freedom in any significant way. In this circuit an objective reasonable man test is employed in determining whether a person is in custody. The factors to be considered are the language used to summon him, the physical surroundings of the interrogation, the extent to which he is confronted with evidence of his guilt, and pressure exerted to detain him. If the person reasonably believes that he cannot leave freely, he is considered in custody and a Miranda warning is required. Lowe v. United States, 407 F.2d 1391, 1397 (9th Cir. 1969). Applying these rules to the present case, we find that the temporary detention was not significant. Mrs. Luther was summoned from among the other persons in the secondary inspection area when Agent Nadel held up her capsules and asked to whom they belonged. The physical surroundings were a public counter. Rather than the compelling atmosphere of apprehension and arrest, it is plain that at most an administrative seizure was taking place and that the agent was merely filling out a form to that end. Her car keys were held pending the identification check, but any deleterious effect of this is negated by the fact that she was not charged or arrested and was told that she could leave. We hold that where a person is not charged, arrested, or otherwise confronted with guilt, there is an atmosphere of mere administrative routine, and the person is told she is free to go, the circumstances do not amount to a deprivation of freedom in a significant way and are not equivalent to the compelling atmosphere to which Miranda was directed. We do not consider the agent’s belated intent to arrest; we instead examine the actual circumstances at the time of the confrontation and gauge their effect on the person under the “reasonable man” test. Lowe v. United States, supra. Appellant cites Chavez-Martinez v. United States, 407 F.2d 535 (9th Cir. 1969), cert. denied 396 U.S. 858, 90 S.Ct. 124, 24 L.Ed.2d 109 (1969), for the proposition that Miranda warnings should have been given to Mrs. Luther because probable cause existed. Implicit to the holding in Chavez is the element of custody. The suspect was confined under guard in the customs office, confronted with her concealment of heroin, and arrested on the spot. Contrary to this, Mrs. Luther was free to wander the customs area, was unconfronted with a charge of smuggling, and was told in good faith that she could leave. Appellant also claims that the evidence was insufficient to support the verdict. Appellant failed to make a motion for judgment of acquittal at trial. Such a failure operates to waive the benefits of the motion unless the appellate court finds that a manifest miscarriage of justice would thereby result. Beckett v. United States, 379 F.2d 863 (9th Cir. 1967). Finding no such result here, we do not consider appellant’s claim of insufficiency of the evidence. We do not consider appellant’s other arguments because they were raised for the first time in her reply brief. Only a miscarriage of justice would compel the consideration of such untimely contentions. Again, we find no such injustice resulting here. Affirmed. . Wobe-mugos is a potent laetrile medicine coveted by some cancer victims. It is unlicensed in this country. Question: What is the total number of appellants in the case? Answer with a number. Answer:
songer_r_fed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America v. Louis L. DUNN, Appellant. No. 24597. United States Court of Appeals, District of Columbia Circuit. Argued Nov. 4, 1971. Decided Jan. 26, 1972. Mr. Stephen P. Oggel, La Jolla, Cal. (appointed by this court) for appellant. Mr. Charles F. Flynn, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., at the time the brief was filed, and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee. Before DANAHER, Senior Circuit Judge, and McGOWAN and TAMM, Circuit Judges. I. TAMM, Circuit Judge: The question presented in this appeal is whether an lS^-month delay between arrest and trial is violative of the Sixth Amendment’s guaranteed right to a speedy trial. During a large portion of this time appellant was in custody, either in prison or St. Elizabeths Hospital. On November 2, 1968, appellant was arrested and charged with two counts of assault with intent to commit rape and with enticing a minor child to take indecent liberties with her in violation of D.C.Code, § 22-501 and § 22-3501 (b). The chronology of what transpired between November 2, 1968 and May 14, 1970, the date on which the trial commenced, is so disturbing to us that we set it out in full. Following the arrest on November 2, 1968, appellant was held for arraignment which took place on November 4, 1968. At this time appellant was committed to St. Elizabeths Hospital by the District of Columbia Court of General Sessions (now the Superior Court of the District of Columbia) to determine appellant’s competency. This was done as a result of a request by appellant’s court-appointed counsel. Some two months later, on January 2, 1969, St. Elizabeths staff certified that Dunn was competent and responsible and able to stand trial. On January 7, 1969 the Court of General Sessions called the ease but was forced to grant a continuance as the report from St. Elizabeths had not yet been received. The case was again called on January 14, 1969, and again continued for lack of a report from St. Elizabeths. On January 28, 1969 the letter from St. Elizabeths, certifying that appellant was competent, was finally received. At this time the court denied appellant’s motion to dismiss and the case was set down for preliminary hearing on February 4, 1969. On that day the arresting officer was unable to attend since he was in North Carolina on emergency leave and the case was dismissed for want of prosecution; the appellant was released from custody after being detained for 95 days. On February 14, 1969 a new arrest warrant was issued charging the same offenses. However, in this instance the charges were brought not in General Sessions, but rather, in the United States District Court for the District of Columbia. On May 2, 1969 Dunn was arrested on a charge of disorderly conduct and confined to the D.C. Jail, at which time appellant first became aware of the outstanding warrant in the instant case. Counsel for appellant was appointed by the court and a preliminary hearing was conducted on May 8, 1969, the result of which being the defendant’s incarceration to await action by the grand jury. On June 18, 1969, the appellant was again committed to St. Elizabeths for another mental competency examination by order of the District Court, acting at the request of officials of the D. C. Jail, where appellant had fought with another prisoner and set a fire. This was an ex parte proceeding, at which neither appellant nor his court-appointed counsel was present. Neither Judge Curran nor the Assistant United States Attorney was aware of appellant’s earlier commitment to St. Elizabeths. On July 1, 1969 the grand jury returned an indictment charging appellant with the above-mentioned offenses. Despite Judge Curran’s June 18, 1969 commitment order, Dunn remained in D. C. Jail until July 28, 1969, when he physically entered St. Elizabeths. Two days later appellant’s counsel at trial filed a motion to dismiss the indictment for failure to prosecute. This motion was argued on August 22, 1969, and although it was not then decided, yet another commitment order was signed. In the interim St. Elizabeths informed the court and the Government that appellant had previously been examined and found competent in January 1969. This communication was dated September 29, 1969. In the ensuing months the case was called three times— on October 3, 1969, December 3, 1969, and January 5, 1970. In each instance the case had to be continued for lack of any report from St. Elizabeths relating to appellant’s mental competence. In each of these three instances Dunn’s counsel moved for dismissal, but each time the judge postponed ruling on the motion. Finally, after being incarcerated at St. Elizabeths since July 28, 1969, the Hospital reported, on February 20, 1970, that Dunn was both responsible and competent to stand trial. Competence was judicially certificated on February 24, 1970. A conference was held on March 20, 1970, and trial was scheduled for and took place on May 14 and 15, 1970. Despite continuous attempts by appellant to obtain pre-trial release he remained in custody until trial commenced, notwithstanding a favorable recommendation for conditional release received on March 31, 1970 from the D. C. Bail Agency, which was rejected on April 14, 1970 by the Court of General Sessions. In determining where the fault lies for each of these delays, the Government, in a memorandum requested by this court, asserts that of the total delay, 323 days are attributable to St. Elizabeths Hospital, the reason for 99 days of delay is unclear, while 56 days can be attributed to the courts, 55 to the appellant and 23 days for divers reasons all attributable to the Government. In the memorandum submitted by the appellant, 499 days of delay are computed as being attributable to the Government and 60 days to appellant. The parties are not always agreed as to which delays are attributable to which party, but it is interesting to note that their end results are approximately the same. Even by attributing the initial 60-day commitment at St. Elizabeths to appellant, which the Government does not seek to do, the total delay attributable to the Government would still be approximately 440 days. We find a delay of this nature to be both unexplainable and unjustifiable in light of the Constitution, Federal Rules of Criminal Procedure, the case law, and in fact, our entire historical and jurisprudential commitment to the concept of the speedy dispensing of justice. It is not surprising that in drafting the Bill of Rights our founding fathers included the following in what was to become the Sixth Amendment to the Constitution : In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, .... At the time the Republic was in its embryonic stage the concept of speedy trial had a 610-year history. Writing for the Court in Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), Mr. Chief Justice Warren went to great lengths in setting out the history of an accused’s right tó a speedy trial. We quote at length from Klopfer in the hope of renewing the historical perspective of the precious Sixth Amendment guarantee: We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. That right has its roots at the very foundation of our English law heritage. Its first articulation in modern jurisprudence appears to have been made in Magna Carta (1215), wherein it was written, “We will sell to no man, we will not deny or defer to ’any man either justice or right”, but evidence of recognition of the right to speedy justice in even earlier times is found in the Assize of Clarendon (1166). By the late thirteenth century, justices, armed with commissions of gaol delivery and/or oyer and terminer were visiting the countryside three times a year. These justices, Sir Edward Coke wrote in Part II of his Institutes, “have not suffered the prisoner to be long detained, but at their next coming have given the prisoner full and speedy justice, . . . without detaining him long in prison.” To Coke, prolonged detention without trial would have been contrary to the law and custom of England; but he also believed that the delay in trial, by itself, would be an improper denial of justice. In his explication of Chapter 29 of the Magna Carta, he wrote that the words “We will sell to no man, we will not deny or defer to any man either justice or right” had the following effect: “And therefore, every subject of this realme, for injury done to him in bonis, terris, vel persona, by any other subject, be he ecclesiasticall, or temporall, free, or bond, man, or woman, old, or young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without any deniall, and speedily without delay.” Coke’s Institutes were read in the American Colonies by virtually every student of the law. Indeed, Thomas Jefferson wrote that at the time he studied law (1762-1767), “Coke Lyttleton was the universal elementary book of law students.” And to John Rutledge of South Carolina, the Institutes seemed “to be almost the foundation of our law.” To Coke, in turn, Magna Carta was one of the fundamental bases of English liberty. Thus, it is not surprising that when George Mason drafted the first of the colonial bills of rights, he set forth a principle of Magna Carta, using phraseology similar to that of Coke’s explication: “[I]n all capital or criminal prosecutions,” the Virginia Declaration of Rights of 1776 provided, “a man hath a right . . . to a speedy trial . . . . ” That this right was considered fundamental at this early period in our history is evidenced by its guarantee in the constitutions of several of the States of the new nation, as well as by its prominent position in the Sixth Amendment. Today, each of the 50 States guarantees the right to a speedy trial to its citizens. Klopfer v. North Carolina, supra, at 223-226, 87 S.Ct. at 993-995. This somewhat lengthy dissertation clearly establishes the basic nature of this fundamental right, all too frequently paid only token lip-service by the courts. Nowhere is the right to speedy trial seriously doubted, although in some cases there has been significant delay which has been explained away by the court as being nonprejudicial to the defendant, or as being a safeguard to defendant’s right to a fair trial, or by stating the delay is merely relative and must be measured against the rights of the public. Even though the cases decrying delays and simultaneously affirming convictions are many, the Chief Justice wrote only recently: The right to a speedy trial is not a theoretical or abstract right but one rooted in hard reality in the need to have charges promptly exposed. If the case for the prosecution calls on the accused to meet charges rather than rest on the infirmities of the prosecution’s case, as is the defendant’s right, the time to meet them is when the case is fresh. Stale claims have never been favored by the law, and far less so in criminal cases. Although a great many accused persons seek to put off the confrontation as long as possible, the right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial. This is brought sharply into focus when, as here, the accused presses for an early confrontation with his accusers and with the State. Crowded dockets, the lack of judges or lawyers, and other factors no doubt make some delays inevitable. Dickey v. Florida, 398 U.S. 30, 37-38, 90 S.Ct. 1564, 1568-1569, 26 L.Ed.2d 26 (1970). In practice Congress has placed a provision in the Federal Rules of Criminal Procedure which requires dismissal of a case against a defendant in the case of undue delay. “If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint.” Rule 48(b), Fed.R.Crim.P. Similarly, Congress has placed an even greater onus on the district court in cases where the defendant is incarcerated rather than released on bail. Rule 46(h), Fed.R.Crim. P. It is clear that “the burden is on the Government, not the defense, to bring a case to trial.” Smith v. United States, 135 U.S.App.D.C. 284, 288, 418 F.2d 1120, 1124 (1969), citing McNeill v. United States, No. 21,570, (D.C.Cir. June 4, 1968) (unreported). In certain cases this court has found the delay alleged by defendants not to be “arbitrary, capricious, or vexatious” and has consequently allowed convictions in such cases to stand. In such cases we have either dealt with delays which were not of long duration, Hedgepeth v. United States, 124 U.S.App.D.C. 291, 364 F. 2d 684 (1966); Harling v. United States, 130 U.S.App.D.C. 327, 401 F.2d 392 (1968), cert. denied, 393 U.S. 1068, 89 S. Ct. 725, 21 L.Ed.2d 711 (1969), or where the case has been of such a complicated nature as to require more time than would usually be permissible, Hanrahan v. United States, 121 U.S.App.D.C. 134, 348 F.2d 363 (1965); Mann v. United States, 113 U.S.App.D.C. 27, 304 F.2d 394, cert. denied, 371 U.S. 896, 83 S.Ct. 194, 9 L.Ed.2d 127 (1962). In other instances, it has been said that a deliberately slow pace should be taken in order to protect the rights of the accused. In Blunt v. United States, 131 U.S.App.D.C. 306, 404 F.2d 1283 (1968), cert. denied, 394 U.S. 909, 89 S.Ct. 1021, 21 L.Ed.2d 221 (1969), this court held a 21-month delay to be permissible where 15 of the 21 months were devoted to mental examinations of the defendant. In Blunt, we said: “where a principal cause of postponement is the deliberate pace of the system of safeguards designed to protect the accused, the courts have been exceedingly reluctant to find constitutional infirmity even in very long delays.” Blunt v. United States, supra,, 131 U.S.App. D.C. at 310, 404 F.2d at 1287. Similarly, we have allowed convictions to stand in certain instances where the administration of justice has dictated that certain priorities be followed in dealing with criminal cases. In Wilkins v. United States, 129 U.S.App.D.C. 397, 395 F. 2d 620 (1968), we allowed a conviction to stand where there had been a 16V2-month delay which had been occasioned by a policy of bringing imprisoned defendants to trial prior to defendants who had been released pending trial. The Supreme Court held that a 19-month delay was not violative of the Sixth Amendment when there had been more than one indictment. We cannot agree that the passage of 19 months between the original arrests and the hearings on the later indictments itself demonstrates a violation of the Sixth Amendment’s guarantee of a speedy trial. This guarantee is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself. However, in large measure because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself. Therefore, this Court has consistently been of the view that “The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.” Beavers v. Haubert, 198 U.S. 77, 87 [, 25 S.Ct. 573, 576, 49 L.Ed. 950.] “Whether delay in completing a prosecution . amounts to an unconstitutional deprivation of rights depends upon circumstances. . . . The delay must not be purposeful or oppressive,” Pollard v. United States, 352 U.S. 354, 361 [, 77 S.Ct. 481, 486, 1 L.Ed.2d 393.] “[T]he essential ingredient is orderly expedition and not mere speed.” Smith v. United States, 360 U.S. 1, 10 [, 79 S.Ct. 991, 997, 3 L.Ed.2d 1041.] United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966) (footnote omitted). See also Hedgepeth v. United States, supra. Another line of decisions, however, holds that the delay in question is indeed violative of the defendant’s right to a speedy trial. In the case of Williams v. United States, 102 U.S.App.D.C. 51, 250 F.2d 19 (1957) we determined that defendant had been denied his right to a speedy trial after spending a year in St. Elizabeths Hospital and six years in prison. The Supreme Court has recently held that right to speedy trial would apply even to a defendant imprisoned in another jurisdiction, Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L. Ed.2d 607 (1969). Similarly, we have held a three-year delay in issuing an indictment while defendant was in a New York prison to be violative of basic constitutional rights. Taylor v. United States, 99 U.S.App.D.C. 183, 238 F.2d 259 (1956). We have also dismissed an indictment and reversed a conviction in a case where, because of appellant’s in-carceration in Maryland, his trial suffered a 21-month delay. Coleman v. United States, 142 U.S.App.D.C. 402, 442 F.2d 150 (1971). We held this to be violative in light of the fact that defendant could no longer find all of his witnesses and that the delay was so long. The abuses in all of these cases are evident to even the most untrained and least sensitive of observers, but an abuse need not be offensively blatant in order for the court to take notice. Admittedly we are blessed with 20/20 hindsight and certain cases which appeared not to be offensive at first blush prove to affect us differently after sufficient time for unhurried reconsideration. Accordingly, based on the record before us we reverse the conviction. Although it was not directly raised on appeal, there is one further issue to which we must speak. A substantial segment of the delay in this case can be directly attributed to St. Elizabeths Hospital. As the facts indicate, the trial had to be postponed time and again because of lack of a report from the Hospital. Even the Government attributes 323 days of the delay to the Hospital. It appears that Dunn was lost in the shuffle and only after repeated inquiry could a report on him be presented to the district court. We have recently taken St. Elizabeths to task with reference to the right of treatment, see In Re Curry, 147 U.S.App.D.C. 28, 452 F.2d 1360 (1971), and Ashe v. Robinson, 146 U.S.App.D.C. 220, 450 F. 2d 681 (1971). We now alert the responsible parties as to the duty of dealing with those the court sends for observation in such a manner as to expedite their stays as much as possible in light of contemporary, established and accepted medical standards. II. Criminal matters involving questions of a constitutional nature are by no means new to the courts of our land, nor are such matters infrequently dealt with by appellate courts in this or any other circuit. In this circuit a majority of our time is expended on criminal appeals involving a myriad of legal questions which impose a heavy burden on the court. We do not face a burden solely because of the quantity of such litigation, but rather, because we are hard-pressed to expedite all of those matters which we must consider — civil as well as criminal — in order to see that justice is done and the rights of the accused protected, for only then are the rights of the entire society protected. Under our doctrine of separation of powers, the administration of justice is the responsibility of the judiciary and it is a responsibility which the courts do not take lightly. This is the prime reason for our existence. All of this, of course, is all too familiar litany and it is therein that the problem lies. We in the judiciary, as those in the other branches of government, often engage in a plethora of verbiage and a paucity of action when dealing with questions of constitutional vintage. The problem of which I speak is amply exemplified by the manner in which the courts have dealt with the Sixth Amendment guarantee to a fair and speedy trial. Indeed, the right was recognized in the embryonic stage of our Republic when our founding fathers promulgated the Bill of Rights — the first ten amendments to the Constitution. The Fourth, Fifth, Sixth and Eighth Amendments were all designed to safeguard the rights of the populace and to guarantee protection from the type of tyrannical rule from which the Revolution sought to free a fledgling nation. The Fourth and Fifth Amendments were designed to protect all of the populace while the Sixth and Eighth Amendments aimed with specificity at the rights of those persons who stood accused in criminal prosecutions. The Sixth Amendment, certainly a most integral part of this most basic of all American documents, guarantees the rights of those accused. AMENDMENT VI 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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defense. So important, in fact, were these rights that the amendment was early construed as being applicable not only to citizens of the states, but also to the denizens of the District of Columbia, Callan v. Wilson, 127 U.S. 540, 88 S.Ct. 1301, 32 L.Ed. 223 (1888), and the inhabitants of the incorporated territories, Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879); Lovato v. New Mexico, 242 U.S. 199, 37 S.Ct. 107, 61 L.Ed. 244 (1916), although it has been deemed inapplicable to citizens of unincorporated territories, Balzac v. Porto Rico, 258 U.S. 298, 304-305, 42 S.Ct. 343, 66 L.Ed. 627 (1922). In 1905, the right to speedy trial suffered a major set-back which, as we shall see, it has never really been able to overcome. The United States Supreme Court, in the case of Beavers v. Haubert, 198 U.S. 77, 25 S.Ct. 573, 49 L.Ed. 950 (1905), stated that “[t]he right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances.” Id. at 87, 25 S.Ct. at 576. These two sentences have created a guise which has countenanced inaction where action should have lain, and has promoted injustice when justice has cried to be heard. In case after case the courts have spilled thousands of gratuitous words concerning the right to speedy trial and have proceeded to affirm conviction after conviction, thereby compounding injustice with further injustice. Let it not be said that I believe for a moment that such actions were attempts at subterfuge of this basic constitutional right, but rather, it is my belief that after looking at the teaching of the Court in Beavers, the doctrine has suffered an involuntary dilution and a gradual erosion. However, the time has come for jurists throughout the land to turn this ignominious tide. No less a judicial figure than the Chief Justice of the United States has spoken out about the deplorable delays in bringing both civil and criminal actions to prompt adjudication. As Mr. Chief Justice Burger said in his first State of the Judiciary Address to the American Bar Association in 1970: If ever the law is to have genuine deterrent effect on the criminal conduct giving us immediate concern, we must make some drastic changes. The most simple and most obvious remedy is to give the courts the manpower and tools — including the prosecutors and defense lawyers — to try criminal cases within sixty days after indictment and then see what happens. I predict it would sharply reduce the crime rate. Efficiency must never be the controlling test of criminal justice, but the work of the courts can be efficient without jeopardizing basic safeguards. Indeed the delays in trials are often one of the gravest threats to individual rights. Both the accused and the public are entitled to a prompt trial. Burger, The State of the Judiciary— 1970, 56 A.B.A.J. 929, 932 (1970). Nor has this been the only attempt to free us of this quagmire of judicial malig-nance. The Judicial Council of the United States Circuit Court for the Second Circuit has recently promulgated rules to assure the prompt disposition of criminal eases in that busy circuit. Under the terms of the rules in the Second Circuit a defendant who has been detained for ninety days without being brought to trial would, outside of a showing of extraordinary circumstances, be released in noncapital cases on bond or on his own recognizance. “This shall not apply to any defendant who is serving a term of imprisonment for another offense, nor to any defendant who, subsequent to release under this rule, has been charged with another crime or has violated the conditions of his release.” Rule 3, Second Circuit Rules Regarding Prompt Disposition of Criminal Cases, promulgated January 5, 1971, as amended May 24, 1971 at 2. These rules continue: 4. In all cases the government must be ready for trial within six months from the date of the arrest, service of summons, detention, or the filing of a complaint or of a formal charge upon which the defendant is to be tried (other than a sealed indictment), whichever is earliest. If the government is not ready for trial within such time, or within the periods as extended by the district court for good cause under rule 5, and if the defendant is charged only with non-capital offenses, then, upon application of the defendant or upon motion of the district court, after opportunity for argument, the charge shall be dismissed. Id. Among the various limitations contained in Rule 5 is the proceeding to determine competency, time for pretrial motions, interlocutory appeals, and trials on other charges. Similarly, delays in the interest of justice requested by the defendant or his counsel will not act as a prejudice to the government. While this undoubtedly increases the burden on all those involved in the criminal prosecution — viz., the police, the prosecutor, the defense counsel and the courts — these burdens must be borne with the ultimate realization that justice delayed is justice denied. It is not for us to determine here what steps should be taken to maximize judicial efficiency but I do point out the need for greater strides in this essential area. The American Bar Association authorized a three-year study in 1964 by a blue-ribbon panel known as the Advisory Committee on the Criminal Trial. In May 1967 the American Bar Association Project on Minimum Standards for Criminal Justice issued a tentative draft of a work entitled “Standards Relating to Speedy Trial.” This draft was approved by the A.B.A. House of Delegates in February 1968. The Introduction to the Approved Draft begins: CONGESTION in the trial courts of this country, particularly in urban centers, is currently one of the major problems of judicial administration. Notwithstanding the usual rule that criminal cases have priority over civil cases, this congestion has created serious difficulties for the administration of criminal justice. The continued pressures upon existing resources have been such that it is extremely difficult to dispose of all criminal cases with promptness and with fair procedures. American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial, Approved Draft, 1968, at 1. Part IV of the proposed standards relates to the consequences of denial of speedy trial. 4.1 Absolute discharge. If a defendant is not brought to trial before the running of the time for trial, as extended by excluded periods, the consequence should be absolute discharge. Such discharge should forever bar prosecution for the offense charged and for any other offense required to be joined with that offense. Failure of the defendant or his counsel to move for discharge prior to trial or entry of a plea of guilty should constitute waiver of the right to a speedy trial. Id. at 40. It was not long ago, in Smith v. United States, 135 U.S.App.D.C. 284, 418 F.2d 1120 (1969), that Judge Leventhal wrote: We have considered whether the time has come to adopt a rule that for persons in detention, a delay prior to trial of more than one year, not attributable to the defense, automatically calls for dismissal of the indictment, due to prejudice to the person. Certainly there must be some limit on such delay, and an indictment may be dismissed with no showing of prejudice to the defense, as appears from the extreme case that came before the court in Petition of Provoo, D.Md., 17 F.R.D. 183, affirmed 350 U.S. 857, 76 S Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
sc_decisiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. WASHINGTON STATE GRANGE v. WASHINGTON STATE REPUBLICAN PARTY et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 06-713. Argued October 1, 2007 Decided March 18, 2008 Robert M. McKenna, Attorney General of Washington, argued the cause for petitioners in both cases. With him on the briefs in No. 06-730 were Maureen Hart, Solicitor General, and James Kendrick Pharris, William Berggren Collins, and Jeffrey Todd Even, Deputy Solicitors General. Thomas Fitzgerald Ahearne filed briefs for petitioner in No. 06-713. John J. White, Jr., argued the cause for respondents in both cases. With him on the brief for Washington State Republican Party et al. was Kevin B. Hansen. David T. McDonald, John P. Krill, Jr., and Matthew J. Segal filed a brief in both cases for respondent Washington State Democratic Central Committee. Richard Shepard filed a brief in both cases for respondent Libertarian Party of Washington. Together with No. 06-730, Washington et al. v. Washington State Republican Party et al., also on certiorari to the same court. Briefs of amici curiae urging affirmance in both cases were filed for the California Democratic Party by Lance H. Olson, Deborah B. Caplan, and Richard C. Miadich; and for the Democratic National Committee by Joseph E. Sandler. Charles C. Foti, Jr., Attorney General of Louisiana, and William P. Bryan III filed a brief in both cases for the State of Louisiana as amicus curiae. Justice Thomas delivered the opinion of the Court. In 2004, voters in the State of Washington passed an initiative changing the State’s primary election system. The People’s Choice Initiative of 2004, or Initiative 872 (1-872), provides that candidates for office shall be identified on the ballot by their self-designated “party preference”; that voters may vote for any candidate; and that the top two votegetters for each office, regardless of party preference, advance to the general election. The Court of Appeals for the Ninth Circuit held 1-872 facially invalid as imposing an unconstitutional burden on state political parties’ First Amendment rights. Because 1-872 does not on its face impose a severe burden on political parties’ associational rights, and because respondents’ arguments to the contrary rest on factual assumptions about voter confusion that can be evaluated only in the context of an as-applied challenge, we reverse. I For most of the past century, Washington voters selected nominees for state and local offices using a blanket primary. From 1935 until 2003, the State used a blanket primary that placed candidates from all parties on one ballot and allowed voters to select a candidate from any party. See 1935 Wash. Laws §§1-5, pp. 60-64. Under this system, the candidate who won a plurality of votes within each major party became that party’s nominee in the general election. See 2003 Wash. Laws § 919, p. 775. California used a nearly identical primary in its own elections until our decision in California Democratic Party v. Jones, 530 U. S. 567 (2000). In Jones, four political parties challenged California’s blanket primary, arguing that it unconstitutionally burdened their associational rights by forcing them to associate with voters who did not share their beliefs. We agreed and struck down the blanket primary as inconsistent with the First Amendment. In so doing, we emphasized the importance of the nomination process as “ ‘the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community.’” Id., at 575 (quoting Tashjian v. Republican Party of Conn., 479 U. S. 208, 216 (1986)). We observed that a party’s right to exclude is central to its freedom of association, and is never “more important than in the process of selecting its nominee.” 530 U. S., at 575. California’s blanket primary, we concluded, severely burdened the parties’ freedom of association because it forced them to allow nonmembers to participate in selecting the parties’ nominees. That the parties retained the right to endorse their preferred candidates did not render the burden any less severe, as “[t]here is simply no substitute for a party’s selecting its own candidates.” Id., at 581. Because California’s blanket primary severely burdened the parties’ associational rights, we subjected it to strict scrutiny, carefully examining each of the state interests offered by California in support of its primary system. We rejected as illegitimate three of the asserted interests: “producing elected officials who better represent the electorate,” “expanding candidate debate beyond the scope of partisan concerns,” and ensuring “the right to an effective vote” by allowing nonmembers of a party to vote in the majority party’s primary in “ ‘safe’ ” districts. Id., at 582-584. We concluded that the remaining interests — promoting fairness, affording voters greater choice, increasing voter participation, and protecting privacy — were not compelling on the facts of the case. Even if they were, the partisan California primary was not narrowly tailored to further those interests because a nonpartisan blanket primary, in which the top two votegetters advance to the general election regardless of party affiliation, would accomplish each of those interests without burdening the parties’ associational rights. Id., at 585-586. The nonpartisan blanket primary had “all the characteristics of the partisan blanket primary, save the constitutionally crucial one: Primary voters [were] not choosing a party’s nominee.” Ibid. After our decision in Jones, the Court of Appeals for the Ninth Circuit struck down Washington’s primary as “materially indistinguishable from the California scheme.” Democratic Party of Washington State v. Reed, 343 F. 3d 1198, 1203 (2003). The Washington State Grange promptly proposed 1-872 as a replacement. It passed with nearly 60% of the vote and became effective in December 2004. Under 1-872, all elections for “partisan offices” are conducted in two stages: a primary and a general election. To participate in the primary, a candidate must file a “declaration of candidacy” form, on which he declares his “major or minor party preference, or independent status.” Wash. Rev. Code §29A.24.030 (Supp. 2005). Each candidate and his party preference (or independent status) is in turn designated on the primary election ballot. A political party cannot prevent a candidate who is unaffiliated with, or even repugnant to, the party from designating it as his party of preference. See App. 396-397, 595 (declaration of James K. Pharris, Exhibit C: Ruling Order, May 18, 2005, Wash. Admin. Code §434-215-015). In the primary election, voters may select “any candidate listed on the ballot, regardless of the party preference of the candidates or the voter.” Id., at 606, §434-262-012. The candidates with the highest and second-highest vote totals advance to the general election, regardless of their party preferences. Ibid. Thus, the general election may pit two candidates with the same party preference against one another. Each candidate’s party preference is listed on the general election ballot, and may not be changed between the primary and general elections. See id., at 601, § 434-230-040. Immediately after the State enacted regulations to implement 1-872, the Washington State Republican Party filed suit against a number of county auditors challenging the law on its face. The party contended that the new system violates its associational rights by usurping its right to nominate its own candidates and by forcing it to associate with candidates it does not endorse. The Washington State Democratic Central Committee and Libertarian Party of Washington State joined the suit as plaintiffs. The Washington State Grange joined as a defendant, and the State of Washington was substituted for the county auditors as defendant. The United States District Court for the Western District of Washington granted the political parties’ motions for summary judgment and enjoined the implementation of 1-872. See Washington State Republican Party v. Logan, 377 F. Supp. 2d 907, 932 (2005). The Court of Appeals affirmed. 460 F. 3d 1108, 1125 (CA9 2006). It held that the 1-872 primary severely burdens the political parties’ associational rights because the party-preference designation on the ballot creates a risk that primary winners will be perceived as the parties’ nominees and produces an “impression of associatio[n]” between a candidate and his party of preference even when the party does not associate, or wish to be associated, with the candidate. Id., at 1119. The Court of Appeals noted a “constitutionally significant distinction between ballots and other vehicles for political expression,” reasoning that the risk of perceived association is particularly acute when ballots include party labels because such labels are typically used to designate candidates’ views on issues of public concern. Id., at 1121. And it determined that the State’s interests underlying 1-872 were not sufficiently compelling to justify the severe burden on the parties’ association. Concluding that the provisions of 1-872 providing for the party-preference designation on the ballot were not severable, the court struck down 1-872 in its entirety. We granted certiorari, 549 U. S. 1251 (2007), to determine whether 1-872, on its face, violates the political parties’ associational rights. II Respondents object to 1-872 not in the context of an actual election, but in a facial challenge. Under United States v. Salerno, 481 U. S. 739 (1987), a plaintiff can only succeed in a facial challenge by “establish[ing] that no set of circumstances exists under which the Act would be valid,” i. e., that the law is unconstitutional in all of its applications. Id., at 745. While some Members of the Court have criticized the Salerno formulation, all agree that a facial challenge must fail where the statute has a “‘plainly legitimate sweep.’” Washington v. Glucksberg, 521 U. S. 702, 739-740, and n. 7 (1997) (Stevens, J., concurring in judgments). Washington’s primary system survives under either standard, as we explain below. In determining whether a law is facially invalid, we must be careful not to go beyond the statute’s facial requirements and speculate about “hypothetical” or “imaginary” cases. See United States v. Raines, 362 U. S. 17, 22 (1960) (“The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined”). The State has had no opportunity to implement 1-872, and its courts have had no occasion to construe the law in the context of actual disputes arising from the electoral context, or to accord the law a limiting construction to avoid constitutional questions. Cf. Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co., 226 U. S. 217, 220 (1912) (“How the state court may apply [a statute] to other cases, whether its general words may be treated as more or. less restrained, and how far parts of it may be sustained if others fail are matters upon which we need not speculate now”). Exercising judicial restraint in a facial challenge “frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy.” Raines, supra, at 22. Facial challenges are disfavored for several reasons. Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of “premature interpretation of statutes on the basis of factually barebones records.” Sabri v. United States, 541 U. S. 600, 609 (2004) (internal quotation marks and brackets omitted). Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither “ ‘anticipate a question of constitutional law in advance of the necessity of deciding it’ ” nor “ ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’” Ashwander v. TVA, 297 U. S. 288, 346-347 (1936) (Brandeis, J., concurring) (quoting Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39 (1885)). Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution. We must keep in mind that “ ‘[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’ ” Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 329 (2006) (quoting Regan v. Time, Inc., 468 U. S. 641, 652 (1984) (plurality opinion)). It is with these principles in view that we turn to the merits of respondents’ facial challenge to 1-872. A The States possess a “‘broad power to prescribe the “Times, Places and Manner of holding Elections for Senators and Representatives,” Art. I, § 4, cl. 1, which power is matched by state control over the election process for state offices.’ ” Clingman v. Beaver, 544 U. S. 581, 586 (2005) (quoting Tashjian, 479 U. S., at 217); Timmons v. Twin Cities Area New Party, 520 U. S. 351, 358 (1997) (same). This power is not absolute, but is “subject to the limitation that [it] may not be exercised in a way that violates . . . specific provisions of the Constitution.” Williams v. Rhodes, 393 U. S. 23, 29 (1968). In particular, the State has the “ ‘responsibility to observe the limits established by the First Amendment rights of the State’s citizens,’ ” including the freedom of political association. Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 222 (1989) (quoting Tashjian, supra, at 217). Election regulations that impose a severe burden on associational rights are subject to strict scrutiny, and we uphold them only if they are “narrowly tailored to serve a compelling state interest.” Clingman, supra, at 586; see also Rhodes, supra, at 31 (“ ‘[0]nly a compelling state interest in the regulation of a subject within the State’s constitutional power to regulate can justify limiting First Amendment freedoms’ ” (quoting NAACP v. Button, 371 U. S. 415, 438 (1963))). If a statute imposes only modest burdens, however, then “the State’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions” on election procedures. Anderson v. Celebrezze, 460 U. S. 780, 788 (1983). “Accordingly, we have repeatedly upheld reasonable, politically neutral regulations that have the effect of channeling expressive activity at the polls.” Burdick v. Takushi, 504 U. S. 428, 438 (1992). The parties do not dispute these general principles; rather, they disagree about whether 1-872 severely burdens respondents’ associational rights. That disagreement begins with Jones. Petitioners argue that the 1-872 primary is indistinguishable from the alternative Jones suggested would be constitutional. In Jones we noted that a nonpartisan blanket primary, where the top two votegetters proceed to the general election regardless of their party, was a less restrictive alternative to California’s system because such a primary does not nominate candidates. 530 U. S., at 585-586 (The nonpartisan blanket primary “has all the characteristics of the partisan blanket primary, save the constitutionally crucial one: Primary voters are not choosing a party’s nominee”). Petitioners are correct that we assumed that the nonpartisan primary we described in Jones would be constitutional. But that is not dispositive here because we had no occasion in Jones to determine whether a primary system that indicates each candidate’s party preference on the ballot, in effect, chooses the parties’ nominees. That question is now squarely before us. Respondents argue that 1-872 is unconstitutional under Jones because it has the same “constitutionally crucial” infirmity that doomed California’s blanket primary: It allows primary voters who are unaffiliated with a party to choose the party’s nominee. Respondents claim that candidates who progress to the general election under 1-872 will become the de facto nominees of the parties they prefer, thereby violating the parties’ right to choose their own standard bearers, see Timmons, supra, at 359, and altering their messages. They rely on our statement in Jones reaffirming “the special place the First Amendment reserves for, and the special protection it accords, the process by which a political party ‘select[s] a standard bearer who best represents the party’s ideologies and preferences.’” Jones, 530 U.S., at 575 (quoting Eu, supra, at 224). The flaw in this argument is that, unlike the California primary, the 1-872 primary does not, by its terms, choose parties’ nominees. The essence of nomination — the choice of a party representative — does not occur under 1-872. The law never refers to the candidates as nominees of any party, nor does it treat them as such. To the contrary, the election regulations specifically provide that the primary “does not serve to determine the nominees of a political party but serves to winnow the number of candidates to a final list of two for the general election.” App. 606, Wash. Admin. Code §434-262-012. The top two candidatés from the primary election proceed to the general election regardless of their party preferences. Whether parties nominate their own candidates outside the state-run primary is simply irrelevant. In fact, parties may now nominate candidates by whatever mechanism they choose because 1-872 repealed Washington’s prior regulations governing party nominations. Respondents counter that, even if the 1-872 primary does not actually choose parties’ nominees, it nevertheless burdens their associational rights because voters will assume that candidates on the general election ballot are the nominees of their preferred parties. This brings us to the heart of respondents’ case — and to the fatal flaw in their argument. At bottom, respondents’ objection to 1-872 is that voters will be confused by candidates’ party-preference designations. Respondents’ arguments are largely variations on this theme. Thus, they argue that even if voters do not assume that candidates on the general election ballot are the nominees of their parties, they will at least assume that the parties associate with, and approve of, them. This, they say, compels them to associate with candidates they do not endorse, alters the messages they wish to convey, and forces them to engage in counterspeech to disassociate themselves from the candidates and their positions on the issues. We reject each of these contentions for the same reason: They all depend, not on any facial requirement of 1-872, but on the possibility that voters will be confused as to the meaning of the party-preference designation. But respondents’ assertion that voters will misinterpret the party-preference designation is sheer speculation. It “depends upon the belief that voters can be ‘misled’ by party labels. But ‘[o]ur cases reflect a greater faith in the ability of individual voters to inform themselves about campaign issues.’” Tashjian, 479 U. S., at 220 (quoting Anderson, swpra, at 797). There is simply no basis to presume that a well-informed electorate will interpret a candidate’s party-preference designation to mean that the candidate is the party’s chosen nominee or representative or that the party associates with or approves of the candidate. See New York State Clubn Assn., Inc. v. City of New York, 487 U. S. 1, 13-14 (1988) (rejecting a facial challenge to a law regulating club membership and noting that “[w]e could hardly hold otherwise on the record before us, which contains no specific evidence on the characteristics of any club covered by the [l]aw”). This strikes us as especially true here, given that it was the voters of Washington themselves, rather than their elected representatives, who enacted 1-872. Of course, it is possible that voters will misinterpret the candidates’ party-preference designations as reflecting endorsement by the parties. But these cases involve a facial challenge, and we cannot strike down 1-872 on its face based on the mere possibility of voter confusion. See Yazoo, 226 U. S., at 219 (“[T]his court must deal with the case in hand and not with imaginary ones”); Pullman Co. v. Knott, 235 U. S. 23, 26 (1914) (A statute “is not to be upset upon hypothetical and unreal possibilities, if it would be good upon the facts as they are”). Because respondents brought their suit as a facial challenge, we have no evidentiary record against which to assess their assertions that voters will be confused. See Timmons, 520 U. S., at 375-376 (Stevens, J., dissenting) (rejecting judgments based on “imaginative theoretical sources of voter confusion” and “entirely hypothetical” outcomes). Indeed, because 1-872 has never been implemented, we do not even have ballots indicating how party preference will be displayed. It stands to reason that whether voters will be confused by the party-preference designations will depend in significant part on the form of the ballot. The Court of Appeals assumed that the ballot would not place abbreviations like “ ‘D’ ” and “ ‘R,’ ” or “ ‘Dem.’ ” and “‘Rep.’” after the names of candidates, but would instead “clearly state that a particular candidate ‘prefers’ a particular party.” 460 F. 3d, at 1121, n. 20. It thought that even such a clear statement did too little to eliminate the risk of voter confusion. But we see no reason to stop there. As long as we are speculating about the form of the ballot — and we can do no more than speculate in this facial challenge — we must, in fairness to the voters of the State of Washington who enacted 1-872 and in deference to the executive and judicial officials who are charged with implementing it, ask whether the ballot could conceivably be printed in such a way as to eliminate the possibility of widespread voter confusion and with it the perceived threat to the First Amendment. See Ayotte, 546 U. S., at 329 (noting that courts should not nullify more of a state law than necessary so as to avoid frustrating the intent of the people and their duly elected representatives); Ward v. Rock Against Racism, 491 U. S. 781, 795-796 (1989) (“ ‘[I]n evaluating a facial challenge to a state law, a federal court must... consider any limiting construction that a state court or enforcement agency has proffered’ ” (quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 494, n. 5 (1982))). It is not difficult to conceive of such a ballot. For example, petitioners propose that the actual 1-872 ballot could include prominent disclaimers explaining that party preference reflects only the self-designation of the candidate and not an official endorsement by the party. They also suggest that the ballots might note preference in the form of a candidate statement that emphasizes the candidate’s personal determination rather than the party’s acceptance of the candidate, such as “my party preference is the Republican Party.” Additionally, the State could decide to educate the public about the new primary ballots through advertising or explanatory materials mailed to voters along with their ballots. We are satisfied that there are a variety of ways in which the State could implement 1-872 that would eliminate any real threat of voter confusion. And without the specter of widespread voter confusion, respondents’ arguments about forced association and compelled speech fall flat. Our conclusion that these implementations of 1-872 would be consistent with the First Amendment is fatal to respondents’ facial challenge. See Schall v. Martin, 467 U. S. 253, 264 (1984) (a facial challenge fails where “at least some” constitutional applications exist). Each of their arguments rests on factual assumptions about voter confusion, and each fails for the same reason: In the absence of evidence, we cannot assume that Washington’s voters will be misled. See Jones, 530 U. S., at 600 (Stevens, J., dissenting) (“[A]n empirically debatable assumption ... is too thin a reed to support a credible First Amendment distinction” between permissible and impermissible burdens on association). That factual determination must await an as-applied challenge. On its face, 1-872 does not impose any severe burden on respondents’ associational rights. B Because we have concluded that 1-872 does not severely burden respondents, the State need not assert a compelling interest. See Clingman, 544 U. S., at 593 (“When a state electoral provision places no heavy burden on associational rights, ‘a State’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions’ ” (quoting Timmons, 520 U. S., at 358)). The State’s asserted interest in providing voters with relevant information about the candidates on the ballot is easily sufficient to sustain 1-872. See Anderson, 460 U. S., at 796 (“There can be no question about the legitimacy of the State’s interest in fostering informed and educated expressions of the popular will in a general election”). Ill Respondents ask this Court to invalidate a popularly enacted election process that has never been carried out. Immediately after implementing regulations were enacted, respondents obtained a permanent injunction against the enforcement of 1-872. The First Amendment does not require this extraordinary and precipitous nullification of the will of the people. Because 1-872 does not on its face provide for the nomination of candidates or compel political parties to associate with or endorse candidates, and because there is no basis in this facial challenge for presuming that candidates’ party-preference designations will confuse voters, 1-872 does not on its face severely burden respondents’ associational rights. We accordingly hold that 1-872 is facially constitutional. The judgment of the Court of Appeals is reversed. It is so ordered. The term “blanket primary” refers to a system in which “any person, regardless of party affiliation, may vote for a party’s nominee.” California Democratic Party v. Jones, 530 U. S. 567, 576, n. 6 (2000). A blanket primary is distinct from an “open primary,” in which a person may vote for any party’s nominees, but must choose among that party’s nominees for all offices, ibid., and the more traditional “closed primary,” in which “only persons who are members of the political party . . . can vote on its nominee,” id., at 570. The Washington State Grange is a fraternal, social, and civic organization chartered by the National Grange in 1889. Although originally formed to represent the interests of farmers, the organization has advocated a variety of goals, including women’s suffrage, rural electrification, protection of water resources, and universal telephone service. The State Grange also supported the Washington constitutional amendment establishing initiatives and referendums and sponsored the 1934 blanket primary initiative. Respondents make much of the fact that the promoters of 1-872 presented it to Washington voters as a way to preserve the primary system in place from 1935 to 2003. But our task is not to judge 1-872 based on its promoters’ assertions about its similarity, or lack thereof, to the unconstitutional primary; we must evaluate the constitutionality of 1-872 on its own terms. Whether the language of 1-872 was purposely drafted to survive a Jones-type constitutional challenge is irrelevant to whether it has successfully done so. “ ‘Partisan office’ means a public office for which a candidate may indicate a political party preference on his or her declaration of candidacy and have that preference appear on the primary and general election ballot in conjunction with his or her name.” Wash. Rev. Code §29A.04.110 (Supp. 2005). This is not a hypothetical outcome. The Court of Appeals observed that, had the 1996 gubernatorial primary been conducted under the L-872 system, two Democratic candidates and no Republican candidate would have advanced from the primary to the general election. See 460 F. 3d 1108,1114, n. 8 (CA9 2006). Our eases recognize a second type of facial challenge in the First Amendment context under which a law may be overturned as impermissibly overbroad because a “substantial number” of its applications are unconstitutional, ‘“judged in relation to the statute’s plainly legitimate sweep.’ ” New York v. Ferber, 458 U. S. 747, 769-771 (1982) (quoting Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973)). We generally do not apply the “‘strong medicine’” of overbreadth analysis where the parties fail to describe the instances of arguable overbreadth of the contested law. See New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 14 (1988). It is true that parties may no longer indicate their nominees on the ballot, but that is unexceptionable: The First Amendment does not give political parties a right to have their nominees designated as such on the ballot. See Timmons v. Twin Cities Area New Party, 520 U. S. 351, 362-363 (1997) (“We are unpersuaded, however, by the party’s contention that it has a right to use the ballot itself to send a particularized message, to its candidate and to the voters, about the nature of its support for the candidate”). Parties do not gain such a right simply because the State affords candidates the opportunity to indicate their party preference on the ballot. “Ballots serve primarily to elect candidates, not as forums for political expression.” Id., at 363. Washington counties have broad authority to conduct elections entirely by mail ballot rather than at in-person polling places. See Wash. Rev. Code § 29A.48.010. As a result, over 90% of Washington voters now vote by mail. See Tr. of Oral Arg. 11. Respondents rely on Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995) (holding that a State may not require a parade to include a group if the parade’s organizer disagrees with the group’s message), and Boy Scouts of America v. Dale, 530 U. S. 640 (2000) (holding that the Boy Scouts’ freedom of expressive association was violated by a state law requiring the organization to admit a homosexual scoutmaster). In those cases, actual association threatened to distort the groups’ intended messages. We are aware of no case in which the mere impression of association was held to place a severe burden on a group’s First Amendment rights, but we need not decide that question here. Relying on Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1 (1986) (holding that a state agency may not require a utility company to include a third-party newsletter in its billing envelope), respondents argue that the threat of voter confusion will force them to speak to clarify their positions. Because 1-872 does not actually force the parties to speak, however, Pacific Gas & Elec, is inapposite. 1-872 does not require the parties to reproduce another’s speech against their will; nor does it co-opt the parties’ own conduits for speech. Rather, it simply provides a place on the ballot for candidates to designate their party preferences. Facilitation of speech to which a political party may choose to respond does not amount to forcing the political party to speak. Cf. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 64-65 (2006). Respondent Libertarian Party Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_subevid	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent." 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". Ernestine ROBLES et al., Appellants, v. ENVIRONMENTAL PROTECTION AGENCY, Appellee. No. 72-2470. United States Court of Appeals, Fourth Circuit. Argued April 3, 1973. Decided Sept. 11, 1973. Victor H. Kramer, Washington, D. C. (Richard B. Wolf, Washington, D. C., and Joel Zeldin, on brief) for appellants. Andrew J. Graham, Asst. U. S. Atty. (George Beall, U. S. Atty., on brief), for appellee. Before CRAVEN, RUSSELL and WIDENER, Circuit Judges. DONALD RUSSELL, Circuit Judge: This is a bizarre case, illustrative of the ignorance by even scientists of the dangerous properties of radioactive waste materials and of the hazards that may result from such ignorance. It arose out of the practice by a uranium processing plant of making available free of charge its uranium tailings for use as clean fill dirt in connection with construction of private and public structures in the community of Grand Junction, Colorado, where the uranium processing plant was located. The practice, begun in 1950, continued until 1966, when the hazards incident to the use of such tailings were belatedly recognized. In the meantime, these tailings had been extensively used. Because of the obvious dangers connected with such use, the Environmental Protection Agency (hereinafter referred to as EPA), with the assistance of the Colorado Department of Health, undertook in 1970 to monitor the radiation levels in the homes and public structures where any of these tailings had been used. In addition, the homes and business or public structures were tested for radioactive emissions. In the course of this monitoring, some 15,000 homes were surveyed. The survey was extensive. In some of the homes an air sampler was placed for a week at a time on each of six occasions in the course of a year as a part of what was described as an “(I)n-door radon daughter concentration level.” In order to secure approval for such a survey from a homeowner, the government surveyors were instructed to advise orally the homeowner or occupier that the results of the survey would not be released to any one other than the owner or occupier and federal officials working on the problem. When the surveys were completed, the results were made available by the EPA to the Colorado Department of Health, in conjunction with which the survey was made. Through an arrangement with the Colorado Department of Health, the Development Director of the community can secure and make available to any “proper party” the results of the tests made on any specific structure. In addition, each owner of a structure surveyed has been given the results of the survey of his building. The plaintiffs at first made formal request upon the defendant for the results of the survey as it applied to all public and private structures in the community. It later modified this request to cover only those structures in which the radiation levels exceeded the Surgeon General’s “safety guidelines”. The agency responded to this request by offering to provide the results but with the names and addresses of homeowners or occupiers deleted. It based its refusal to supply any of this information upon the exemptions set forth in subdivisions (4) and (6) of Section 552(b), 5 U.S.C. This was unacceptable to the plaintiffs, who then filed this action under the Freedom of Information Act to compel disclosure. The defendant entered a motion to dismiss, and, in the alternative, a motion for summary judgment. The plaintiffs then submitted their cross-motion for summary judgment. When the motions came on for hearing, the District Court denied plaintiffs’ cross-motion and granted the defendant’s motion for summary judgment, finding that disclosure, though not exempt under subdivision (4), was exempted under subdivision (6) of the Act. The plaintiffs appeal. On this appeal, the defendant agency apparently concedes that it is obligated to disclose to the plaintiffs, without regard to their interest or want of interest, the information requested unless disclosure is “specifically” excused under one of the nine express exemptions set forth in the Freedom of Information Act, and that, in asserting an excuse for disclosure under any express exemption, “the burden is on” it “to sustain its action.” Whether conceded or not, this is the clear purport of the Act itself. Epstein v. Resor (9th Cir. 1970) 421 F.2d 930, 933, cert, denied 398 U.S. 965, 90 S.Ct. 2176, 26 L.Ed.2d 549. While it sought to excuse nondisclosure in this case under both exemptions (4) and (6) of the Act, its claim under (4) was disallowed by the District Court and, in this Court, the agency rests its right wholly upon exemption (6). Accordingly, the sole issue here is whether the District Court was correct in finding that the defendant agency had sustained its burden of establishing a right to exemption from disclosure of the requested information under exemption (6) of the Act. Exemption (6) is as follows: “(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy Obviously, the information requested was not included in any “personnel” or “medical” files as such. The basis for a claim of exemption must accordingly be found in the phrase, “similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” The term “similar” was used, it seems, to indicate that, while the exemption was not limited to strictly medical or personnel files, the files covered in this third category must have the same characteristics of confidentiality that ordinarily attach to information in medical or personnel files; that is, to such extent as they contain “ ‘intimate details’ of a ‘highly personal’ nature”, they are within the umbrella of the exemption. This is the real thrust of the exemption as it was construed in Getman v. N. L. R. B. (1971), 146 U.S.App.D.C. 209, 450 F.2d 670, 675. See, Note, Invasion of Privacy and the Freedom of Information Act: Getman v. N.L.R.B., 40 Geo.Wash.L.Rev. 527, 532 (1972). It would seem to.follow that the exemption applies only to information which relates to a specific person or individual, to “intimate details” of a “highly personal nature” in that individual’s employment record or health history or the like, and has no relevancy to information that deals with physical things, such as structures as in this case. The agency contends, however, that this is too simplistic an approach to the unique situation in this case. It is true, the agency argues, that, while the information sought by the plaintiffs relates strictly to the condition of structures, of buildings, and real estate, it was gathered, analyzed, and is of interest only as it relates to the possible effect of that condition on the health and well-being of the occupants of those structures, i.e., of specific persons and individuals. So viewed, in this broad context, the information, the agency contends, comes within the definition of information of a “highly personal nature”, as contemplated in exemption (6). It must be conceded that there is a certain persuasiveness to this argument. The survey of the homes in the community was engaged in because of concern for personal health and safety; it was not an engineering survey to determine the structural adequacy or nature of the structures. And the reason for the health concern was the possibility that continued occupancy of the building might expose the occupants and even their progeny to hazards of health and even biological impairments. It is suggested that these potential health impairments could affect adversely employment opportunities and might even reduce marriage possibilities of the occupants. Assuming, however, that it is possible to analogize these records to health records, it does not follow automatically that such records are exempt from disclosure. The statutory exemption does not simply cover any files that may be regarded as “similar” to health files. “Similar files”, in order to qualify under the exemption, must fit the additional qualifications set forth in the exemption, i.e., they must contain information “the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” The use of the term “clearly” in this qualification, which was not inadvertent but purposeful on the part of Congress, was, itself, a “clear” instruction to the Courts that, in determining the issue whether a disclosure would constitute “a clearly unwarranted invasion of personal privacy”, they should “tilt the balance in favor of disclosure”. Getman v. N.L.R.B. supra, at 674 of 450 F.2d. In resolving against disclosure, the District Court relied strongly on the fact that the agency had in some instances promised the householder that the results of the survey would be kept confidential. While, perhaps, a promise of confidentiality is a factor to be considered, it is not enough to defeat the right of disclosure that the agency “received the file under a pledge of confidentiality to the one who supplied it. Undertakings of that nature cannot, in and of themselves, override the Act.” Ackerly v. Ley (1969), 137 U.S.App.D.C. 133, 420 F.2d 1336, 1339-1340, n. 3; Legal Aid Society of Alameda County v. Shultz (D.C.Cal.1972) 349 F.Supp. 771, 776; Davis, supra, at 164. Particularly in this case is the alleged promise of confidentiality unavailing as an excuse. In the first place, the promise was given by the door-to-door surveyors only where confidentiality was specifically inquired about by a householder. The agency has offered no proof of how many householders in the community had received such promise. Even more important is the fact that the information has not been held in confidence. The results of the survey are available to- the Colorado Department of Health. This Department, seemingly with the approval of EPA, readily makes available on request the results of the survey as to any specific structure through the City Director of Development. This practice is well known to the EPA, which offers proof of the practice in support of its claim to exemption by reason of its promise of confidentiality. And it is of some significance that, so far as the record indicates, no householder has objected to this disclosure by the City Director of Development. Finally, it should be pointed out that this claim, that a promise of confidentiality supports the award of an exemption, is entirely inapplicable to public buildings. “The ambiguous wording of exemption 6 and the traditional problems in securing the right to privacy may preclude creation of a completely satisfactory test.” 40 Geo.Wash.L.Rev. 527, at p. 540 (1972). Another reason urged by the agency for its denial of disclosure is that the need of the public, as well as the interest of the plaintiffs, in securing the information “is negligible.” This argument misconceives the plain intent of the Act. As Professor Davis has so convincingly emphasized, the earlier provision in the Administrative Procedure Act “provided for disclosure ‘to persons properly and directly concerned.’ That was changed to ‘any person’ ”, demonstrating beyond argument that disclosure was never to “depend upon the interest or lack of interest of the party seeking disclosure.” Davis, supra, Section 3A.4 at 120 ; Bannercraft Clothing Company v. Renegotiation Board (1972) 151 U.S.App.D.C. 174, 466 F.2d 345, 352, n. 6, cert, granted 410 U.S. 907, 93 S.Ct. 967, 35 L.Ed.2d 269; Sterling Drug, Inc. v. F.T.C. (1971), 146 U.S.App. D.C. 237, 450 F.2d 698, 705; Skolnick v. Parsons (7th Cir. 1968) 397 F.2d 523, 525. Equally .unpersuasive is the argument that disclosure should be refused because it “would do more harm than good”. Such an argument has nothing to do with “personal privacy” but is rather an argument that courts, in disposing of actions under the Act, may exercise discretion to grant or deny equity relief. While such argument has received some limited support, the better reasoned authorities find no basis for this balancing of equities in the application of the Act; indeed, the very language of the Act seems to preclude its exercise. Wellford v. Hardin (4th Cir. 1971) 444 F.2d 21, 24-25; Soucie v. David (1971) 145 U.S.App.D.C. 144, 448 F.2d 1067, 1077; Getman v. N.L.R.B., supra, at 677 of 450 F.2d; and Bannercraft Clothing Co. v. Renegotiation Board, supra, at 353 of 466 F.2d; cf., however, General Services Administration v. Benson (9th Cir. 1969) 415 F.2d 878, 880, and Davis, supra, See. 3A.6, pp. 123-4. Moreover, the claim of public harm is at best ambiguous. The only harm suggested by the agency involves the individuals whose homes were surveyed. Presumably, these individuals knew of the practice of the City Development Director of making available the information in question to any proper person requesting it. Yet no concerned individual, so far as this record shows, has ever objected; nor has the defendant agency instanced one case in which an individual householder has complained of any harm suffered by him as a result of disclosure. Nor, for that matter, has the defendant agency attempted in this case to show that any “specific governmental interests” will be harmed by the disclosure requested by the plaintiffs. Cf. Bristol-Meyers Company v. F.T.C. (1970) 138 U.S.App.D.C. 22, 424 F.2d 935, 938, cert, denied 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52. The agency suggests that the information sought is of such a recondite scientific nature that the ordinary citizen could not properly evaluate or understand it. No one would question the ignorance of the general public — and perhaps, the scientific world, too — as to the possible harmful aspects of radioactive materials. The same could no doubt be said of much governmental information. Even census data is subject to misinterpretation and has prompted violent controversy even among experts. But the mere circumstance that information may not be fully understood is not among the “specific” exemptions authorized under the Act. Actually, it may well be that the very fact that the government so adamantly opposes release may give free rein to unbridled fear for the worst on the part of the people of this community ; whereas, the release of the surveys, even though not fully understood, may have a beneficial, calming effect on the reasonable apprehensions of these citizens. The Government has, it developed, embarked recently since discovery of the danger on a remedial program intended to remove or minimize the hazard of radioactive injury to the occupiers of these structures. The District Court felt that such a program militated against a determination that there was any public need for or benefit to result from disclosure. In balancing equities, it thought this of moment. But, as we have already observed, the right to disclosure under the Act is not to be resolved by a balancing of equities or a weighing of need or even benefit. The only ground for denial of disclosure in this situation is that the disclosure would represent a “clearly unwarranted invasion of personal privacy.” For the reasons given, we are unable to find any reasonable basis for finding such a “clearly unwarranted basis.” Reversed, with direction to the District Court to enter a decree granting disclosure as provided in Section 552, 5 U.S.C. . These tailings are described as a sand-like by-product of the uranium processing plant’s mining operations. . 5 U.S.C., Section 552. suvra . Of., the language of Professor Davis in Administrative Law, 1970 Supp., Section 3A.22 at 164, where, in discussing exemption (6) and particularly the qualifying term “personal privacy”, he says : “I think ‘personal privacy’ always relates to individuals.” . One commentator has found this language unsatisfactory, adding that: . Cf., Wellford v. Hardin (D.C.Md.1970) 315 F.Supp. 175, 178, aff’d (4th Cir.) 444 F.2d 21. . In further elaboration on this point, Professor Davis, in his authoritative text, has said, at 121: “ * * * For instance, the sixth exemption in subsection (e) authorizes withholding of medical files if disclosure ‘would constitute a clearly unwarranted invasion of personal privacy.’ If the officer or judge finds that the disclosure will be an unwarranted invasion but is in doubt whether it is ‘clearly unwarranted,’ a natural approach to decision would be to weigh the privacy interest against the interest of the party seeking the information, so that disclosure would be made to one with a legitimate need but not to one who is malevolently motivated or an officious intermeddler. But under the Act such a balancing is inappropriate. All parties are equal in satisfying the words ‘any person.’ ” . Benson states the role of the court in actions under the Act as follows : “In exercising the equity jurisdiction conferred by the Freedom of Information Act, the court must weigh the effects of the disclosure and nondisclosure, according to the traditional equity principles, and determine the best course to follow in the given circumstances. The effect on the public is the primary consideration.” (415 F.2d at 880). Question: Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_genapel1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. Walter D. BEEZER v. BALTIMORE & OHIO RAILROAD COMPANY, a Corporation, Appellant. No. 10945. United States Court of Appeals Third Circuit. Argued March 19, 1953. Decided April 16, 1953. Vincent M. Casey, Pittsburgh, Pa. (Marvin D. Power, Margiotti & Casey, Pittsburgh, Pa., on the brief), for appellant. E. V. Buckley, Pittsburgh, Pa. (Mercer & Buckley, Pittsburgh, Pa., on the brief), for appellee. Before BIGGS, Chief Judge, and MARIS and GOODRICH, Circuit Judges. PER CURIAM. The appellant contends that the judgment of the court below should be reversed, asserting that no actionable negligence was shown on its part which was the proximate cause of the accident, that the verdict was against the weight of the evidence, that the evidence as to the impaired physical condition of the plaintiff was insufficient, and that the verdict was excessive. Every contention made is fully answered by the opinion of Judge Stewart. See 107 F.Supp. 361. Since we perceive no error, the judgment of the court below will be 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_decuncon	H	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether the court declared any statute or administrative action unconstitutional. Only explicit statements in the opinion that some provision is unconstitutional should be used. Procedural violations of the constitution in the courts below are not counted as judicial review (e.g., if the trial court threw out evidence obtained in a search and seizure because of a 4th Amendment violation, the action would not count as judicial review). RHODE ISLAND FEDERATION OF TEACHERS, AFL-CIO et al., Plaintiffs-Appellees, v. John H. NORBERG, Defendant-Appellant. No. 79-1660. United States Court of Appeals, First Circuit. Argued May 5, 1980. Decided Sept. 17, 1980. William G. Brody, Asst. Atty. Gen., Providence, R. I., with whom Dennis J. Roberts, II, Atty. Gen., and John S. Foley, Sp. Asst. Atty. Gen., Providence, R. I., were on brief, for defendant-appellant. Lynette Labinger, Providence, R. I., with whom Julius C. Michaelson and Abedon, Michaelson, Stanzler, Biener, Skolnik & Lipsey, Providence, R. I., were on brief, for plaintiffs-appellees. Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges. BOWNES, Circuit Judge. The principal question presented by this appeal is whether the district court properly concluded that a Rhode Island statute granting a state income tax deduction for tuition, textbook and transportation expenses incurred in sending dependents to primary and secondary schools in New England contravenes the Establishment Clause of the first amendment. Although judicial responses to the complexities of modern society have transformed the once “high and impregnable” wall erected between church and state by the first amendment, Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), into a “blurred, indistinct and variable barrier,” Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 2112, 29 L.Ed.2d 745 (1971), we agree with the district court’s conclusion that, if allowed to stand, the statute would form an unconstitutional bridge between church and state. In May of 1979, Rhode Island Governor Garrahy signed an amendment to the Rhode Island income tax statute allowing as a deduction from gross income amounts paid to others for tuition, transportation and textbooks in sending dependents to public and private schools in New England. R.I.Gen.Law § 44-30-12(c)(2). The deduction was limited to five hundred dollars for each dependent enrolled in kindergarten or grades one through six and seven hundred dollars for each dependent enrolled in grades seven through twelve. The term “textbooks” included only secular instructional material and equipment. Id. In August of 1979, a coalition of individuals and labor and civic organizations brought suit pursuant to 42 U.S.C. § 1983 alleging violation of the first amendment, as applied to the states by the fourteenth amendment, challenging the constitutionality of the statute and seeking injunctive relief against its enforcement by John H. Norberg, Tax Administrator of the State of Rhode Island. A temporary restraining order issued pending a hearing on the merits. After the hearing, the district court found the statute violative of the Establishment Clause of the first amendment and enjoined its enforcement. Rhode Island Federation of Teachers v. Norberg, 479 F.Supp. 1364 (D.R.I.1979). The State contends, on appeal, that the district court erred in concluding that (1) the tuition deduction had the primary effect of advancing religion; (2) the textbook and instructional materials and equipment deduction would have necessitated surveillance of the choice and use of materials selected, resulting in excessive government entanglement with religion; and (3) the transportation deduction could not be severed from the unconstitutional portions of the statute. We discuss these issues seriatim. The Tuition Deduction The State challenges the district court’s conclusion that the primary effect of the tuition deduction was to advance religion on two grounds. First, the State argues that the court erred in assuming that the receipt of a tax benefit by parents whose children attend sectarian schools would result in receipt of a benefit by religious schools themselves. Second, the State contends that the court erred in applying Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973), to this case, asserting instead that the case is controlled by Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). In regard to the first argument, we observe that the district court found “that the primary effect of the tuition tax deduction is the advancement of religion,” Rhode Island Federation of Teachers v. Norberg, 479 F.Supp. at 1371 (emphasis added), not religious institutions, as implied by the State. There is no requirement in this case that the plaintiffs prove that religious schools are directly benefited by the tuition deduction. It is sufficient that the plaintiffs show that a primary effect of the tuition deduction is to confer a special benefit on the parents who choose to send their children to sectarian institutions. The law carries the rest of the plaintiffs’ burden, assuming, as a matter of common sense and experience, that conferral of a benefit for the performance of a religious act will make people more likely to continue to perform the act or to begin to perform it if they are not already doing so. The Supreme Court has stated in declaring tuition reimbursement grants for attendance at sectarian schools unconstitutional: [I]f the grants are offered as an incentive to parents to send their children to sectarian schools by making unrestricted cash payments to them, the Establishment Clause is violated whether or not the actual dollars given eventually find their way into the sectarian institutions. Committee for Public Education v. Nyquist, 413 U.S. at 786, 93 S.Ct. at 2972. The Court made clear that conferral of similar benefits by tax device is equally unconstitutional, regardless of whether the dollars not paid in taxes ever reach the religious institution: In practical terms there would appear to be little difference, for purposes of determining whether such aid has the effect of advancing religion, between the tax benefit allowed here and the tuition grant allowed under § 2. The qualifying parent under either program receives the same form of encouragement and reward for sending his children to nonpublic schools. The only difference is that one parent receives an actual cash payment while the other is allowed to reduce by an arbitrary amount the sum he would otherwise be obliged to pay over to the State. Id. at 790-91, 93 S.Ct. at 1274. By encouraging parents to send their dependents to religious institutions, the tax benefits aid the institutions themselves: Special tax benefits, however, cannot be squared with the principle of neutrality established by the decisions of this Court. To the contrary, insofar as such benefits render assistance to parents who send their children to sectarian schools, their purpose and inevitable effect are to aid and advance those religious institutions. Id. at 793, 93 S.Ct. at 2975-2976. Since the statute is facially neutral and does not speak in terms of sectarian schools, the more important question is whether the district court properly concluded that the tuition deduction had the primary effect of conferring a tax benefit on parents who send their children to sectarian schools. After reviewing the facts found by the district court, undisputed here by the State, and analyzing the facts which may properly be inferred as flowing from the Rhode Island income tax statute, we find the district court’s conclusion to be sound. The Rhode Island income tax system, like that of some other states, piggybacks on the federal income tax system. Rhode Island taxpayers may determine their state income tax liability in either of two ways. The first method simply sets the State tax at nineteen percent of the taxpayer’s federal income tax. R.I.Gen.Law § 44-30-2(a). The second method requires reference to tax tables prepared by the State Tax Administrator. R.I.Gen.Law § 44-30-3. Use of the tax tables requires determination of the taxpayer’s “Rhode Island income,” R.I. Gen.Law § 44-30-12(a), a term describing the taxpayer’s federal adjusted gross income further adjusted by additions and deductions provided by Rhode Island law, including those at issue here. The tax tables are designed to produce a tax of not more than five dollars less, if no Rhode Island deductions are taken, than would be produced by application of the nineteen percent Rhode Island tax rate to the taxpayer’s federal income tax. The main purpose of the tax tables, however, is to allow the taking of Rhode Island deductions. Accordingly, we may infer that a person would benefit from the tuition tax deduction if the person (1) owed a federal income tax, and (2) sent one or more dependents to a qualifying primary or secondary school in New England, and (3) paid money to others for the tuition of any dependents attending qualifying schools. For practical purposes, the amount of tax benefit received by particular taxpayers would depend upon the amount of the deduction and their federal income tax bracket. In some cases, if the deduction were large enough, the taxpayer would move into a lower federal tax bracket for purposes of computing Rhode Island’s tax. The Rhode Island Budget Office estimated at the time of enactment of the statute that eligible taxpayers would receive an average tax benefit of thirty-three dollars from the deduction. The facts found by the district court show the true color of the tuition deduction. The court found that, of the 29,387 students attending> nonpublic and tuition funded public schools in Rhode Island in 1979, ninety-four percent (27,397) attended sectarian schools. Although the district court received no evidence concerning the number of religious affiliation of students attending schools outside Rhode Island whose parents would be eligible for the Rhode Island income tax deduction, there was uncontradicted evidence that seventy — nine percent of the students enrolled in nonpublic schools in New England attend sectarian schools. From these facts, it drew the reasonable inference that “the overwhelming majority of parents eligible for the challenged tuition deduction send their children to sectarian schools.” Rhode Island Federation of Teachers v. Norberg, 479 F.Supp. at 1366. To that inference we add our conclusion that, because of the method of operation of the Rhode Island income tax statute, the tuition tax deduction would produce a tax benefit for any parent who owes a federal income tax. Given our knowledge of the broad impact of the federal income tax and since the class of parents is so large as to be very similar to the general class of federal taxpayers, we think it proper to conclude that the Rhode Island tuition deduction would confer a tax benefit along nearly solid sectarian lines. Cf. Minnesota Civil Liberties Union v. Roemer, 452 F.Supp. 1316, 1321 (D.Minn.1978) (a nearly identical statute found to confer no tax benefit unless it moved the taxpayer into a lower tax bracket). In discussing the State’s first argument, we have also presaged our response to the State’s contention that this case is controlled by Walz, rather than by Nyquist. We address the issue in full, however, because the State has vigorously attempted at each stage of this litigation to squeeze the tuition deduction beneath the protective umbrella of Walz. In Walz v. Tax Commission, the Supreme Court upheld a New York City property tax exemption for places of religious worship as part of a broad category of exemptions for religious, charitable, and educational institutions. 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697. The Court reasoned that, since places of worship were exempted from property taxation only as part of a broader class of properties owned by not-for-profit institutions, the exemption created only a minimal and remote involvement between church and state. Id. at 674-76, 90 S.Ct. at 1414—15, 25 L.Ed.2d 697. The Court also noted that exemption from taxation created less governmental involvement with religion than would taxation, and that exemption perpetuated a long established relationship between church and state in the United States. Id. at 676-80, 90 S.Ct. at 1415-17, 25 L.Ed.2d 697. Walz has been used for the premise, which the State relies on here, that an exemption which results in a sectarian benefit is more likely to pass constitutional muster than the direct grant of an equivalent benefit. Relying in part on this incorrect premise and in part on the equally flawed theory that conferral of benefits on the parents of sectarian students is constitutionally distinct from conferral of the same benefit on religious institutions, supporters of religious education have attempted in recent years to use a variety of tax devices to reduce the cost of religious education. In addition to the statute at issue here, these devices have included: income tax credits for the educational costs of students enrolled in nonpublic primary and secondary schools, Minnesota Civil Liberties Union v. Minnesota, 224 N.W.2d 344 (Minn. 1974), cert. denied, 421 U.S. 988, 95 S.Ct. 1990, 44 L.Ed.2d 477 (1975); income tax credits for expenses incurred by any parent, in excess of expenses incurred by parents generally, in sending dependents to a nonpublic primary or secondary school, Kosydar v. Wolman, 353 F.Supp. 744 (S.D.Ohio 1972), aff’d sub nom. Grit v. Wolman, 413 U.S. 901, 93 S.Ct. 3062, 37 L.Ed.2d 1021 (1973); an income tax deduction of $1,000 per dependent attending a nonpublic primary or secondary school. Public Funds for Public Schools v. Byrne, 444 F.Supp. 1228 (D.N.J. 1978), aff’d, 590 F.2d 514 (3d Cir. 1979); an income tax deduction of up to $700 per dependent for expenses incurred in attending a public or private primary or secondary school, Minnesota Civil Liberties Union v. Roemer, 452 F.Supp. 1316 (D.Minn.1978); and an income tax deduction for each dependent attending a nonpublic primary or secondary school, with eligibility for the deduction starting at an income of $5,000 and with the amount of the deduction decreasing as the taxpayer’s income increased, Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948. Except for the one in Roemer, all of these devices have been found to contravene the Establishment Clause. The pivotal factor in determining the constitutionality of tax devices affecting religious institutions or religious education has been the breadth of the affected class. In Walz, places of worship were only part of a broader class of nonprofit institutions. In all but one of the cases holding tax credits or deductions for educational expenses unconstitutional, the courts have found that most of the qualifying schools were sectarian. Committee for Public Education v. Nyquist, supra (85% of eligible schools sectarian); Public Funds for Public Schools v. Byrne, supra (95% of eligible schools sectarian); Kosydar v. Wolman, supra (98% of eligible schools sectarian). In the only ease in which a tax deduction for educational expenses has been upheld, the exact nature of the benefited class never became known because the parties stipulated that “some” students whose parents were eligible for the tax benefit attended sectarian schools. Minnesota Civil Liberties Union v. Roemer, 452 F.Supp. at 1318-19 n.2. The benefited class in Roemer included, at least on the face of the statute, the parents of both public and private school students. Id. Without evidence that more than “some” of the affected students attended sectarian schools, the deduction remained safely beneath the “minimal and remote involvement” umbrella of Walz. Thus, despite the near identity of the statutes in this case and in Roemer, the district court’s finding here that the overwhelming majority of the parents eligible for the tuition deduction send their children to sectarian schools denies the tuition deduction the protection of Walz and places it, as the district court found, within the proscription of Nyquist. Absent a class having primarily secular characteristics, as found in Walz and presumed to exist in Roemer, it cannot be said that the advantages flowing from the statute to the parents of sectarian school students will be incidental to secular ends and effects, Public Funds for Public Schools v. Byrne, 590 F.2d 514, 518-19 (3d Cir. 1979), or that conferral of the benefit will not, as the district court cautioned, “greatly increase the risk of religious rancor.” Rhode Island Federation of Teachers v. Norberg, 479 F.Supp. at 1367; see also Abington School District v. Schempp, 374 U.S. 203, 259, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring). The Textbook Deduction Finding the textbook and instructional materials deduction “constitutionally distinct” from the textbook loan programs upheld by the Supreme Court, e. g., Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977); Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975), the district court ruled the deduction unconstitutional because of its “potential for excessive entanglement between church and state.” Rhode Island Federation of Teachers v. Norberg, 479 F.Supp. at 1372. The court reasoned that the State would be obligated to ascertain that deductions were not taken for sectarian books and instructional materials and that instructional equipment was not used for sectarian purposes. The minimum surveillance required to fulfill these obligations, the court concluded, would result in excessive entanglement between church and state. On appeal, the State contends that the deduction would be taken by the parents, not by the religious institution, and that any entanglement will be between the state and the parent. The State also argues that, if the instructional materials start “as secular, nonideological and neutral, they will not change in use.” Meek v. Pittenger, 374 F.Supp. 639, 660 (E.D.Pa.1974). Our analysis compels rejection of both arguments. We start with the premise that the State could not permit deductions to be taken for sectarian books or instructional materials, see Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), or for instructional equipment that is used for sectarian purposes, see Wolman v. Walter, supra. Compare Levitt v. Committee for Public Education, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736 (1973) (reimbursement to religious schools of the cost of state mandated programs held unconstitutional because of the absence of an audit procedure to guarantee secular use of funds), with committee for Public Education v. Regan, 444 U.S. 646, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980) (successor statute, with audit procedure, upheld). We note that there is already on the books a Rhode Island statute requiring local school committees to loan science, mathematics, modern language and other approved secular textbooks to all Rhode Island schoolchildren. This, without more, gives the deduction a sectarian hue. The State’s premise, that if instructional materials are nonideological and neutral to start with they will not change in use, does not apply where the source of the materials is sectarian. Any surveillance effort will, of course, begin with the parents who take the deductions. We think it highly unlikely, however, especially in the case of textbooks and instructional materials, that the choice of materials will be made by the parent. If only to ensure that students study proper materials and are evaluated fairly, schools will be forced to provide some guidance on the purchase of educational materials. Thus, if a dispute arises as to the religious nature of a text or instructional materials, the dispute will eventually have to be resolved between the State and the affected religious institution. If the State disallows the deduction, the question is appealable to state court, and the State will be asked to define an article of faith as a matter of law. This is precisely the kind of affirmative entanglement of church and state the first amendment prohibits. Moreover, there is also present, at least, the seeds of conflict between parents and the state as to matters of religious faith. If the State contends a written document or other material is religious in nature, a parent may deny its relation to his faith so as to remain eligible for the tax deduction. The potential for' encouragement of the denial of faith, to facilitate its practice, is a perversion of the concepts of religious liberty the first amendment embodies and protects. See Abington School District v. Schompp, 374 U.S. at 259, 83 S.Ct. at 1591. The difficulty with this provision is not that the secular nature of the textbooks and instructional material for which deductions might be taken could not be guaranteed; it is that the involvement of church and state necessary to guarantee that result would excessively entangle church and state. See generally Surinach v. Pesquera de Busquets, 604 F.2d 73 (1st Cir. 1979). The district court correctly distinguished this case from those in which the state determines in advance of the purchase the secular nature of texts and instructional materials. We agree that continuing surveillance would be necessary to ensure that equipment which can be used for both secular and sectarian purposes, such as tape recorders and projectors, are used only for secular purposes. The Transportation Deduction We find no error in the district court’s conclusion that, because the transportation deduction was a minor part of the challenged statute, it could not be severed from the unconstitutional portions of the statute. The general savings or separability clause of the Rhode Island Income Tax Act, R.I.Gen.Law § 44-30-96, was enacted prior to the adoption of the deductions at issue here. While there is a presumption of separability where such a clause exists, Sutherland on Statutory Construction § 44.09 at 351 (4th ed.), the determining factor is whether the legislature would have enacted the transportation deduction independently of the tuition and textbook deductions. See Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 52 S.Ct. 559, 76 L.Ed. 1062 (1932). This necessitates divining the legislative intent of a legislative body that keeps no record of floor debate and chose not to include a separability clause in the challenged act. The legislature could have enacted the deductions in separate sections of the same act; it chose instead to include them in the same sentence. All three deductions have the same purpose as evidenced both by their design and their effect. Moreover, as the district court found, the fiscal note to the act and the fact that the State already requires local school committees to provide free transportation to all primary and secondary students in Rhode Island indicate that the transportation deduction was perceived by the legislature as a small part of the entire bill. In effect, the only persons likely to use this deduction would have been those whose dependents attended school outside Rhode Island. Considering all these factors, we think the district court was correct in inferring an intent to allow the transportation deduction to ride with the rest of the statute. See Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217; see also Sloan v. Lemon, 413 U.S. 825, 833-34, 93 S.Ct. 2982, 2987, 37 L.Ed.2d 939 (1973). Affirmed. . R.I.Gen.Law § 44-30-1 et seq. . R.I.Gen.Law § 44-30-12(c)(2) provides: (c) Modifications Reducing Federal Adjusted Gross Income.-There shall be subtracted from federal adjusted gross income ... (2) amounts paid to others, not to exceed five hundred ($500) dollars for each dependent in kindergarten through sixth grade and seven hundred ($700) dollars for each dependent in grades seven through twelve inclusive, for tuition, textbooks, and transportation of each dependent attending an elementary or secondary school situated in Rhode Island, Massachusetts, Connecticut, Vermont, New Hampshire, or Maine, wherein a resident of this state may legally fulfill the state’s compulsory attendance laws, which is not operated for profit, and which adheres to the provisions of the Civil Rights Act of 1964. As used in this section, “textbooks” shall mean and include books and other instructional materials and equipment used in elementary and secondary schools in teaching only those subjects legally and commonly taught in public elementary and secondary schools in this state and shall not include instructional books and materials used in the teaching of religious tenets, doctrines, or worship, the purpose of which is to inculcate such tenets, doctrines or worship. . For the 1978-79 school year, the average annual tuition nationwide in Catholic schools was $250 in primary schools and $700 in secondary schools. Comeback in Catholic Schools, U. S. News & World Rep., Mar. 20, 1978, at 54 quoted in Note, Government Neutrality and Separation of Church and State: Tuition Tax Credits, 92 Harv.L.Rev. 696, 701 n.30 (1979). . The first amendment provides in relevant part: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof!.] . Only expenses incurred in sending dependents to nonprofit institutions which satisfy Rhode Island’s compulsory attendant laws, and which comply with the antidiscrimination provisions of the Civil Rights Act of 1964, qualify for the deduction. R.I.Gen.Law § 44-30-12(c)(2). . For example, the Joneses, a family of four persons, has a federal adjusted gross income of $12,000. Using their standard personal exemptions, their federal taxable income is $8,000 and their tax is $702 (1979 Tax Rate Schedule). Their Rhode Island income tax would be $133.38 (.19 X $702). If the Jones family sends both children to a qualifying secondary school and incurs $700 in expenses for each, the deduction of $1,400 would reduce their Rhode Island income to $6,600. Since the Rhode Island tax tables are calculated to produce a tax of not more than five dollars less than would be produced by application of the nineteen percent rate of tax to the taxpayer’s federal income tax, the Jones’ savings flow, in effect, from operation of the changes of brackets and rates in the federal tax system. Thus, not only is their taxable income reduced by $1,400, but their effective marginal federal tax rate is reduced from 18% to 16% (1979 Tax Rate Schedule). Their Rhode Island tax would be $89.30 (.19 X $470), a saving of approximately forty-four dollars. . See Abington School District v. Schempp, 374 U.S. 203, 230, 83 S.Ct. 1560, 1575, 10 L.Ed.2d 844 (1963) (Douglas, J., concurring); “What may not be done directly may not be done indirectly lest the Establishment Clause become a mockery.” . In Minnesota Civil Liberties Union v. Minnesota, 224 N.W.2d 344 (Minn. 1974), cert. denied, 421 U.S. 988, 95 S.Ct. 1990, 44 L.Ed.2d 477 (1975), the court found no facts relating to the composition of the affected class. Instead, the court interpreted the primary effects test of Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973), to be, in fact, an “any effects” test. Minnesota Civil Liberties Union v. Minnesota, 224 N.W.2d at 353. This application of strict neutrality theory resulted in a finding of unconstitutionality. See generally L. Tribe, American Constitutional Law § 14-4 at 821 (1978). A subsequent attempt by the same plaintiffs to rely on the same theory in challenging another portion of the same statute in federal court failed for lack of a showing of primary effect. Minnesota Civil Liberties Union v. Roemer, 452 F.Supp. 1316 (D.Minn.1978). . R.I.Gen.Law § 16-23-2. . A fiscal note is the legislature’s estimate of the cost of implementing the bill and is part of the legislation. . R.I.Gen.Law § 16-21-1 et seq. Question: Did the court declare any statute or administrative action unconstitutional? A. no declarations of unconstitutionality B. act of Congress declared unconstitutional (facial invalidity) C. interpretation/application of federal law invalid D. federal administrative action or regulation unconstitutional on its face E. interpretation/application of administrative regs unconstitutional F. state constitution declared unconstitutional on its face G. interpretation/application of state constitution unconstitutional H. state law or regulation unconstitutional on its face I. interpretation/application of state law/regulation unconstitutional J. substate law or regulation unconstitutional on its face K. interpretation/application of substate law/regulation unconstitutional Answer:
sc_casedisposition	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. UNITED STATES v. MERSEY et al. No. 31. Argued November 10, 1959. Decided February 23, 1960. Eugene L. Grimm argu,ed the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Wilkey and Beatrice Rosenberg. Julius L. Schapira argued the cause and filed a brief for appellees. Me. Justice Clark delivered the opinion of the Court. The Congress has'provided in the Tariff Act of 1930, 46 Stat. 590, as amended, that imported articles be marked to indicate to an ultimate purchaser in the United States the English name of the country of origin. 19 U. S. C. § 1304. Pursuant to the Act, the. Secretary of. the Treasury adopted implementing regulations. This case tests the application of these provisions to the importation of 10 violins from the Soviet Zone of Germany. Appellees were charged with removing the labels from the violins with intent to conceal from, the ultimate purchasers in the United States the identity of the violins’ country of origin. The District Court dismissed the information, holding that the changing of the labels did not violate the Act because the applicable regulation appeared to require the Soviet Zone' marking only for tariff purposes rather than to apprise the ultimate purchasers of the place of origin. In any event, the court found, the intent of the regulation was not “manifested in a manner sufficiently clear and unambiguous to justify a criminal prosecution.” On appeal by the Government, the Court of Appeals held that the District Court’s opinion, interpreting the regulation, was tantamount to a construction of the statute upon which the information was founded; and hence, under the Criminal Appeals Act, 18 U. S. C. § 373Í, the order of dismissal was appealable directly to this Court rather than to the Court of Appeals. It was also of the opinion that the effect of the dismissal was to sustain a motion in bar, which, under § 3731, likewise required appeal to this Court. Accordingly, it certified the appeal, 261 F. 2d 40, and we postponed the question of jurisdiction to a hearing on the merits, 359 U. S. 951. We have concluded to accept the certification of the Court of Appeals and, on the merits, to affirm’ the- District Court judgment dismissing the information. Appellees, dealers in musical instruments in the United States, had purchased the violins' from importers and thereafter sold them to other dealers. Upon obtaining possession of the violins from the importers, appellees replaced labels marked “Germany/USSR Occupied,” then on each of the violins, with others inscribed “Made in Germany.” After resale of the violins,' an information was filed against appellees, charging that they removed the original labels attached to the violins with intent to conceal from the ultimate purchasers the identity of the country of origin. The Government’s theory was that the removal of the labels violated 19 U, S. C. § 1304 and its implementing regulations. I. Our first consideration is the jurisdictional issue. The Criminal Appeals Act specifies several conditions, any one of which permits a direct appeal by the Government to this Court, and makes our jurisdiction in such cases exclusive. ' In the event that-an appeal which should have been taken here is erroneously effected to a Court of Appeals, that court is directed to certify it here. Prior to 1907, the date of the original Act, the United States had no appeal whatever in criminal cases. As passed by the House, the bill gave the Government “the same right of review by writ of error-'that is given to the defendant.” However, in the Senate, the bill was amended so as to allow review from judgments setting aside indictments, “where the ground for such motion or demurrer is the invalidity or construction of the statute upon which the indictment is founded.” 41 Cong. Rec. 2819. The final language emerged from the Conference Committee of the two Houses. See H. R. Conf. Rep. No. 8113, 59th Cong., 2d Sess. As was stated by Senator Knox, one of. the proponents of the measure, a member of the Judiciary Committee and a former Attorney General .of the United' States, the bill “only proposed to give it [the Government] an appeal upon questions of law raised by the defendant to defeat the trial . . . .” 41 Cong. Rec. 2752. The bill was intended to create “the opportunity to settle important questions of law,” its “great purpose” being, “to secure the ultimate decision of the court of final resort on questions of law.” The situation sought to be remedied was outlined by Senator Patterson, also of the Judiciary Committee and a proponent óf the bill, in these words: “We have a district court in one jurisdiction holding that a law is ineffective for one reason or another— it may be that it is unconstitutional, or for some other reason — and we have a district court in another jurisdiction holding the reverse; and as the cases multiply in the several sections of the country we may find one half of the courts of the country arrayed against the other half of the courts of the country upon the same identical law; one half holding that it is entirely constitutional and the other half holding that it is unconstitutional.' So, Mr. President;- that confusion, that ridiculous condition, exists and must continue to exist, because, as the law now stands, . until a case involving the question shall go to the Supreme Court and it is brought there by the defendant, there can be no adjudication' by a court whose decision and judgment is controlling. . . . The bill is intended to cure a defect in the administration of justice . It therefore appears abundantly clear that the remedial purpose of the Act was to avert “the danger of frequent conflicts, real or apparent, in the decisions of the various district or circuit courts, and the unfortunate results thereof”; and to eliminate “the impossibility of the government’s obtaining final and uniform rulings by recourse to a higher court.” 20 Harv. L. Rev. 219. Moreover, the desirability of expedition in the determination of the validity of Acts of Congress, which is pointed to as a desideratum for direct appeal, applies equally to regulations. In practical operation, correction of a regulation by agency revision invariably awaits judicial action. The.information charged violations of 19 U. S. C. § 1304 “and the.regulations promulgated thereunder.” This section requires imported articles kr be marked “to indicate to an ultimate purchaser . . . the country of origin,” and imposes criminal sanctions on anyone who removes such a mark with intent to conceal the information contained therein.- The Secretary of the Treasury is authorized to implement it by appropriate regulations. The term “country,” as used by the Congress in requiring the markings, was defined by regulation to mean “the political entity known as a nation.” 19 CFR § 11.8. By Treasury Decision 51527, August 28,1946, Germany was to be considered the country of origin of articles manüfáctured or produced in all parts of Germany. Following a change in duty rates applicable to Soviet Zone products, T. D. 53210 was issued in 1953, providing that articles from Eastern Germany should be “marked to indicate Germany (Soviet occupied).” The issue posed to the District Court wás whether this last regulation carried with it the sanctions of § 1304. As we see it, a construction of the. regulation necessarily is an interpretation of the statute. An administrative regulation, of course, is not a “statute.” While in practical effect regulations may be called “little. laws,” they are at most but offspring of statutes. Congress alone may pass a statute,, and the Criminal Appeals Act calls, for direct appeals if the District Court’s dismissal is based upon the invalidity or construction of a statute. See United States v. Jones, 345 U. S. 377 (1953). This, Court has always construed the Criminal Appeals Act narrowly, limiting it strictly “to the instances specified.” United States v. Borden Co., 308 U. S. 188, 192 (1939). See also United States v. Swift & Co., 318 U. S. 442 (1943). Here the statute is not complete by itself, since it merely declares the range- of its operation and leaves to its progeny the means to be utilized in the effectuation of its command. But. it is the statute which creates the offense of the willful removal of the labels of origin and provides the punishment for violations. The regulations, on the other hand, prescribe the identifying language of the label itself, and assign the resulting tags to their respective geographical areas. Once promulgated, these regulations, called for by the statute itself, have the force of law, and violations thereof incur criminal prosecutions, just as if all the details had been incorporated into the congressional language. • The result is that neither the statute nor the regulations are complete without the other, and only together do they have, any force. In effect, therefore, the construction of one necessarily involves the construction of the other. The charges in the information are founded on § 1304 and its accompanying regulations, and the information was dismissed solely because its allegations did not state an offense under § 1304, as amplified by the regulations. When the statute and regulations are so inextricably intertwined, the dismissal must be held to involve the construction of the statute. This, we believe, gives recognition to the congressional purpose to give the Government the right of appeal upon “questions of law raised by the defendant to defeat the trial” and thus promptly to “secure the ultimate decision” of this Court, affording a desired “uniform enforcement of the law throughout the entire limits of the United States”’ In view of this conclusion, we. need not pass upon the claim that the District Court sustained in effect a “motion in bar.” Our disposition requires that the case come directly here, and accordingly we accept the certificate of the Court of Appeals and now turn to the merits. , II. , In 1946, the Treasury implemented the country-of-origin provisions of § 1304 by issuance of T. D. 51527, which provided that, “For the purposes of the marking provisions of the Tariff Act of 1930, . . . Germany shall bfe considered the country of origin of articles mamifac-tured ... in all parts of the German area subject to the authority of the Allied Control Commission and the United States, British, Soviet, and French zone Commanders . . . Thus the marking on articles produced in the Soviet Zone were required to be labeled “Made in Germany.” In 1951 the Congress directed the President to suspend or withdraw any reduction in the rates of custom duties or other concessions then applicable to the importation of articles manufactured in any areas dominated by the Soviet Union. 65 Stat. 73; 19 U. S. C. § 1362. In Proclamation No. 2935, 65 Stat. C25, the President suspended any reduction in rates of duty applicable to any articles manufactured in the Soviet Zone of Germany and the Soviet Sector of Berlin. Treasury Decision 52788, issued the same day, changed the rate of duty as provided in this proclamation. ' In 1953 the Secretary issued T. D. 53210, the regulation in controversy. This Treasury Decision is headed: “Tariff status, marking to indicate the name of the country of origin, and customs valuation of products of Germany, Poland, and Danzig.” The first paragraph of T. D. 53210 refers to the-presidential proclamation changing the structure of the rates of duty. The second paragraph specifies that, “For the purposes of the value provisions of section 402, Tariff Act of 1930,” Western Germany shall be treated as ono country, and “the Soviet Zone . . . shall be treated as another ‘country.’ ” The third paragraph is the one crucial to this prosecution: it provides that products of Western Germany shall be “marked to indicate Germany as the ‘country of origin,’ but products of th§ Soviet Zone . . . shall be marked to indicate Germany ('Soviet occupied) as the ‘country of origin.’ ” The District Court-concluded that T. D. 53210 was “issued primarily to establish mark; ings for purposes of the differences in the duties appl¿ cable”; thus the indication of Soviet Zone origin would not be required beyond entry into this country, the stage at which duty is payable. We agree with the District -Court, It appears that T. D. 53210, unlike T. D. 51527, is aimed at the collection of duties rather than the protection of the ultimate purchaser in the United States. Its caption indicates that it deals with “tariff status” and “customs valuation,” and the marking requirements are but aids thereof. Taking up the body of the document, we note that the first paragraph deals entirely with the fact that Soviet-dominated areas “shall not receive reduced rates of duty,” while Western Germany and the Western Sectors of Berlin shall “continue to receive most-favored-nation treatment.” The second paragraph is introduced by the phrase, “For the purposes of the value provisions” of the Tariff Act, and provides that “the Soviet Zone . . . shall be treated as another ‘country.’ ” This language, as well as the make-up of the regulation, suggests that the third paragraph (the one involved here), requiring distinctive marking for Soviet Zone products, is but another step, in the implementation of .the tariff changes. It contains no reference to the requirement of § 1304 that the article be marked in a “conspicuous place,” “legibly, indelibly, and permanently,” so that an “ultimate purchaser in the United States”' would’ be on notice. We note that •appellees placed on the violins the labels “Made in Germany” as required by T. D. 51527. In the context of criminal prosecution, we must apply the rule of strict construction when interpreting this regulation and statute. United States v. Halseth, 342 U. S. 277, 280 (1952); United States v. Wiltberger, 5 Wheat. 76, 95-96 (1820). A reading of the regulation leaves the distinct impression that it was intended to protect and expedite the collection of customs duties. Certainly its emphasis on duties and its silence on the protection of the public from deceit support the conclusion that the old provisions were to continue insofar as markings after importation are concerned. If the intent were otherwise, it should not have been left to implication. There must be more to support criminal sanctions: businessmen must not .be left to guess the meaning of regulations. The appellees insist that they changed the labels in good faith, believing their actions to be permissible under the law. There is nothing in the record to the contrary. A United States district .judge concurred in their reading of the regulation. In the framework of criminal prosecution, unclarity alone is enough to resolve the doubts in favor of defendants. Accordingly, the judgment of the District Court is Affirmed. “19 U. S. C. § 1304. Marking of imported articles and containers. “(a) Marking of articles. , "... [E] very article of foreign origin . . . imported into the United States shall be marked in a conspicuous place as legibly,, indelibly, and permanently as the nature of the article (or container) will permit in such manner as to indicate to an ultimate purchaser in’¡the United States the English name of the country of origin of the article. The Secretary of. the Treasury may by regulations— “(1) Determine the character of words and phrases or abbreviations thereof which shall be acceptable as indicating the country of origin . . . ; “ (2) Require the addition of any other words or symbols which may be appropriate to prevent’ deception or mistake as to the origin of the article ....■■ “(e) Penalties. “If any person shall, with intent to conceal the information given thereby or contained therein, deface, destroy,' remove, alter, cover, obscure, or obliterate any mark required under the provisions of this chapter, he shall, upon conviction, be fined not more than $5,000 or imprisoned not more than one year, or both.” 18 U. S. C. § 3731xprovides, in part: “An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all' criminal cases in the following instances:- “From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment or information is founded. “From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy. “If an appeal shall be taken pursuant to this section to any court of appeals which, in the opinion of such court, should have been taken directly to the Supreme Court’ of the United States, such court shall certify the case to the Supreme Court of the United States, which shall thereupon have jurisdiction to hear and determine the case to, the same extent as if an appeal had been taken directly to that Court.” In addition to the substantive charges, there was a count alleging conspiracy so to alter the labels. Senator Bacon, a member of the Judiciary Committee. 41 Cong. Rec. 2195-2196. 41 Cong. Rec. 2753. See also comments of Senator Clarke, who, after discussing the matter with Senator Nelson, the manager of the bill on the floor, stated: “[W]henever the validity of a statute has been adversely decided by a trial court . . . the Government ought to have the right to promptly submit that to the tribunal having authority, to. dispose of such questions in order that there may be a uniform enforcement of the-.law throughout the entire-limits of the United States.” 41 Cong. Rec. 2820. Several months later, T. D. 53281 was issued, providing alternative wordings for the Soviet Zone labels. Vom Baur, Federal Administrative Law, § 490, at 489. Since we hold that T. D. 53210 deals only with the collection of duties, its marking provisions supersede those of T. D.-51527'only as thé latter relate thereto. 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_fedlaw	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. Donald G. GRIFFIN, Petitioner-Appellant, v. WARDEN, MARYLAND CORRECTIONAL ADJUSTMENT CENTER; Attorney General of the State of Maryland, Respondents-Appellees. No. 91-6066. United States Court of Appeals, Fourth Circuit. Argued April 10, 1992. Decided July 28, 1992. Mark Lawrence Gitomer, Cardin & Gi-tomer, P.A., Baltimore, Md., argued, for petitioner-appellant. Gary Eugene Bair, Asst. Atty. Gen., Crim. Appeals Div., Baltimore, Md., argued (J. Joseph Curran, Jr., Atty. Gen. of Maryland, Crim. Appeals Div., on brief), for respondents-appellees. Before ERVIN, Chief Judge, and HALL and PHILLIPS, Circuit Judges. OPINION K.K. HALL, Circuit Judge: Donald Griffin appeals a final order of the district court denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Concluding that Griffin was denied the minimum level of effective assistance of counsel guaranteed to him by the Sixth Amendment, we reverse. I. At 3:45 p.m. on July 24, 1983, a Rite-Aid Drug Store in Baltimore, Maryland, was robbed by two men armed with handguns. Two security guards were shot and wounded during the robbery. Two days later, one of the security guards picked appellant Donald Griffin out of a photo array. When he learned that he was wanted in connection with the robbery, Griffin surrendered to police. He was charged with robbery and using a handgun during a crime of violence. Attorney Charles Howard entered an appearance for Griffin in December, 1983, and represented him when he tendered a not guilty plea. On or about February 22, 1984, Griffin and his mother, Dorothy Josey, provided attorney Howard with a list of five alibi witnesses. Howard failed to contact these witnesses or to respond to the state’s discovery requests, among which were requests to be notified of intent to rely on alibi and for the identities of alibi witnesses. See Md.Rule 4-263. From his personal standpoint, Howard had moré serious concerns than his representation of Griffin.' On June 1, 1984, he was disbarred for misappropriating client funds, commingling funds, failing to keep records, and neglecting a legal matter. In concluding that the ultimate sanction of disbarment was warranted, the Maryland Court of Appeals pointed out that it had previously reprimanded Howard for neglecting cases, including, on three occasions, failing to be present when a case was called. Attorney Grievance Comm’n v. Howard, 299 Md. 731, 737-738, 475 A.2d 466 (1984), citing, Attorney Grievance Comm’n v. Howard, 282 Md. 515, 385 A.2d 1191 (1978). George David, who shared office space with Howard, took over Griffin’s file. Howard advised David to “take a plea” for Griffin. David, expecting Griffin to plead guilty, did nothing. He contacted no witnesses, though he “imagine[s]” he “glanced” at the file, and he failed to confirm that the state’s discovery requests had been answered. At a hearing on October 25, 1984, four months after he entered his appearance in Howard’s stead, David met his client for the first time. At this hearing, David expected Griffin to plead guilty. Griffin refused. On November 19, 1984,' Griffin’s case was scheduled for trial. David still expected Griffin to change his mind and plead guilty, and he had done nothing more to prepare for trial. Instead, Griffin reiterated his not guilty plea and told the court he was “uncomfortable” with his attorney. Just before the jury was brought into the courtroom, this colloquy, a harbinger of the events we address today, ensued: THE COURT: Now, Mr. Griffin, have you had an opportunity to discuss your case adequately with Mr. David? Have you talked it over with him? THE DEFENDANT: Somewhat. I haven’t talked at all with him. THE COURT: Was there anything you wanted to tell him that you haven’t told him? THE DEFENDANT: I haven’t seen my true bill indictment papers or nothing. I ain’t seen nothing. THE COURT: All right. Show it to him, Mr. David. Anything else other than that? THE DEFENDANT: No, not really. I just wanted to know everything they charging me with. The state’s evidence at trial consisted of two eyewitness identifications by the security guards. Because David had failed to contact any of Griffin’s witnesses, only one — Dorothy Josey, Griffin’s mother— was present. She was there only because Griffin himself had been able to get a message to her through a cellmate that the trial was about to be held. Attorney David called Josey to the stand. When he asked a question that would have prompted alibi testimony, the state objected. At a bench conference, the court ruled that the testimony would not be permitted because of David’s (and Howard’s) failure to notify the state of Griffin’s intent to rely on an alibi. David offered two excuses for the failure to respond to the state’s discovery request, both of which were confessions of his own dereliction. First, he told the court that “any discovery ... would have been propounded to Charles Howard and I don’t know if he replied or not.” Moments later, he said “it’s been my impression ... that this case was going to be pleaded all the way up until this morning.” Unable to elicit the alibi evidence, David asked Griffin’s mother no further questions. Griffin then testified on his own behalf. He stated that he was at home in his pajamas at the time of the robbery, and that soon thereafter he went with Rodney Staples and Perry Payne to Eddie Williams’ house. On closing argument, the prosecutor attacked Griffin’s story, and specifically referred to the lack of corroboration of his alibi. In other words, the state got double mileage out of the failure to notify it of the alibi defense — it was able to exclude evidence corroborating Griffin’s story and then emphasize the lack of corroboration to the jury. Griffin was convicted of robbery and use of a handgun in connection with a crime of violence. He was sentenced to two consecutive twenty-year terms. He appealed. The Court of Special Appeals affirmed, holding that the trial court acted within its discretion in refusing to admit the alibi testimony. Griffin v. State, No. 166 (Md.Ct.Spec.App., October 21, 1985). The appellate court had harsh words for attorney David, however: “Appellant’s trial counsel’s excuse that he thought there would be a plea bargain is no justification for neglecting to discover alibi witnesses and reveal them to the State.” Griffin’s petition for certiorari to the Court of Appeals of Maryland was denied. On October 1, 1987, Griffin filed a petition for post-conviction relief in state trial court, in which he argued that he had been denied effective assistance of counsel. An evidentiary hearing was held, at which Griffin, his five alibi witnesses, and both attorneys — Howard and David — testified. The state court denied relief. Griffin v. State, P.C.P.A. No. 6113 (Baltimore (Md.) City Cir. Ct., June 1, 1988). The Court of Special Appeals denied leave to appeal on December 7, 1988. On December 6, 1990, Griffin filed this petition in district court under 28 U.S.C. § 2254. Adopting the reasoning of the state court, which we discuss below, the district court denied the petition without a hearing on April 2, 1991. Griffin appeals. II. The Supreme Court has devised a two-step inquiry to determine whether a lawyer’s poor performance has deprived an accused of his Sixth Amendment right to assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show that his attorney’s performance was deficient. “Deficient performance” is not merely below-average performance; rather, the attorney’s actions must fall below the wide range of professionally competent performance. Second, the defendant must show that he was prejudiced by the substandard performance. “Prejudice” is a “reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068. Because effectiveness of counsel is a mixed question of law and fact, we owe no special deference to the finding of the state court on the question. Id. at 698, 104 S.Ct. at 2070. III. The “deficient performance” prong is easily met here. An attorney’s failure to present available exculpatory evidence is ordinarily deficient, “unless some cogent tactical or other consideration justified it.” Washington v. Murray, 952 F.2d 1472, 1476 (4th Cir.1991). Accord, Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990), appeal after remand 961 F.2d 113 (8th Cir.1992) (failure to interview alibi witnesses was deficient performance under first Strickland factor); Harris v. Reed, 894 F.2d 871, 878 (7th Cir.1990) (failure to call witnesses to contradict eyewitness identification of defendant was ineffective assistance); Grooms v. Solem, 923 F.2d 88, 90 (8th Cir.1991) (“it is unreasonable not to make some effort to contact [alibi witnesses] to ascertain whether their testimony would aid the defense”). As we will discuss below, the “cogent tactical considerations” that the state court bestowed on David for failing to present Griffin’s alibi witnesses are exercises in retrospective sophistry. From the attorney's perspective at the time of trial, no reasonable excuse for failing to notify the state of Griffin’s alibi and to secure the attendance of alibi witnesses appears or is even suggested in the evidentiary record. Indeed, David’s statements at the bench conference are unambiguous admissions of unpardonable neglect. We hold that counsel’s performance was deficient. IY. We thus turn to the second Strickland factor: was Griffin prejudiced, i.e., does the attorney’s deficient performance undermine confidence in the outcome? The state post-conviction court focused on this prong, but its decision invokes speculation and hindsight to evade the stark prejudice we find apparent. A synopsis of the state court’s analysis of the testimony of the alibi witnesses will illustrate. A. Joseph “Eddie” Williams and his mother, Beatrice Williams, both testified that Griffin arrived at their house at 4 p.m. on the date of the robbery, where he remained, watching sports and eating chicken, until nightfall. The state court concluded that this evidence did not establish an alibi because it “[did] not cover the period in question.” The court’s conclusion is strained, at best. The Williams’ house is three to four miles from the site of the robbery. Griffin testified that it takes twenty to twenty-five minutes to drive that distance because of numerous stoplights. Finally, the court ignored the trial testimony of one of the Rite Aid security guards, who testified that the robbers entered the store at 3:45 p.m. and did not leave until ten to fifteen minutes later. B. Rodney Staples testified that he arrived at Griffin’s house between 3:00 and 3:15 p.m. on the day of the robbery. He stated that soon thereafter he and Griffin went to the Williams’ house to watch sports. Inasmuch as this testimony clearly “covers” the period in question, the state court took a different tack. Staples had been picked out of a photo array by one of the security guards and identified as one of the robbers. Therefore, concluded the state court, it may have been sound trial strategy not to call Staples, i.e. if he were an accomplice, and the state could show that when he was on the stand, it could have hurt Griffin’s case. This reasoning is thoroughly disingenuous. David did not even talk to Staples, let alone make some strategic decision not to call him. Strickland and its progeny certainly teach indulgence of the on-the-spot decisions of defense attorneys. On the other hand, courts should not conjure up tactical decisions an attorney could have made, but plainly did not. The illogic of this “approach” is pellucidly depicted by this case, where the attorney’s incompetent performance deprived him of the opportunity to even make a tactical decision about putting Staples on the stand. A court should “evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689,104 S.Ct. at 2065. Tolerance of tactical miscalculations is one thing; fabrication of tactical excuses is quite another. Kimmelman v. Morrison, 477 U.S. 365, 386-387, 106 S.Ct. 2574, 2588-2589, 91 L.Ed.2d 305 (1986) (hindsight cannot be used to supply a reasonable reason for decision of counsel); Harris, 894 F.2d at 878 (same). C. Griffin’s mother testified that her son was at home until he left to go to the Williams’ shortly after 4:00 p.m. The state court faulted this testimony because of discrepancies between it and other alibi testimony in estimates of times. Inasmuch as the state court discounted all the other alibi evidence, the court’s insistence that Griffin’s mother’s testimony be strictly consistent with it is a plain fallacy. The state court also credited David’s testimony that he was afraid Griffin’s mother would commit perjury as a sound reason not to put her on the stand. Again, this retro-speculative reasoning (advanced, we must note, in the sworn testimony of an officer of the court) bizarrely ignores, and is utterly belied by, the actual course of the trial. David put Griffin’s mother on the stand. He tried to introduce her testimony establishing an alibi. He failed because of his disregard of professional duty. The tug on his conscience not to sponsor perjured testimony is revisionist history. D. Monica Tyson testified that she talked briefly with Griffin between 3:30 and 4:00 p.m., when Griffin was seated on his front porch in his pajamas. The state court ruled that this testimony “did not affirmatively demonstrate that [Griffin] was at home when the crime was committed.” This last quote brings us to a legal error that complements the tortured logic of the state court’s factual analysis — an overly-strict legal standard for the second Strickland prong. The court stated that Griffin had to “demonstrate affirmatively that, but for trial counsel’s unprofessional errors, the result would have been different.” Strickland is not so demanding. If a petitioner establishes a reasonable probability that the result would have been different, prejudice is established. Moreover, a “reasonable probability” is simply “a probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694, 104 S.Ct. at 2068. Our confidence in the outcome is very much undermined. Eyewitness identification evidence, uncorroborated by a fingerprint, gun, confession, or coconspirator testimony, is a thin thread to shackle a man for forty years. Moreover, it is precisely the sort of evidence that an alibi defense refutes best. Lawrence, 900 F.2d at 130; cf. Montgomery v. Petersen, 846 F.2d 407, 415-416 (7th Cir.1988) (where trial was “swearing match” between biased witnesses, counsel’s failure to call unbiased alibi witness was prejudicial); Harris, 894 F.2d at 879 (failure to call two witnesses who would have identified someone else as perpetrator prejudicial where prosecution relied on single eyewitness identification). This excerpt from the prosecutor’s closing argument, to which we referred earlier, demonstrates the narrow scope of the state’s case and the prejudice that resulted to Griffin from his inability to introduce alibi evidence (emphasis added): The entire case hinges on the credibility of the witnesses. Who do you believe? Do you believe ... the security officers, who were trained as security officers in identification, who have positively identified Donald Gary Griffin as the individual responsible for shooting them on July 24th, 1983 or do you believe Donald Gary Griffin, who makes the self-serving statement, I was at home at the time that the alleged incident took place, I had been out all night, I did not return home until seven o’clock that morning, I was in my pajamas at 3:30 in the afternoon when friends of mine, none of which you heard from, come in and they went to a friend’s house? The judgment of the district court is reversed, and the case is remanded with instructions to grant the writ. Unless the state elects to retry him within sixty days from the issuance of the writ, Griffin should be released. REVERSED AND REMANDED WITH INSTRUCTIONS. . A criminal defendant’s right to present witnesses is of course protected by the Compulsory Process Clause of the Sixth Amendment, and trial courts must take this right into account in sanctioning a defendant for noncompliance with a discovery rule. Since the Maryland courts considered Griffin’s direct appeal, the United States Supreme Court has held that the extreme sanction of preclusion is constitutional under some circumstances, and at least where a discovery rule is willfully violated by the defendant in hopes of gaining a tactical advantage. Taylor v. Illinois, 484 U.S. 400, 415, 108 S.Ct. 646, 656, 98 L.Ed.2d 798 (1988). In any event, Griffin has not asserted a Taylor-style compulsory process claim on collateral review in either the state or federal courts. . Staples has never been formally charged with complicity in the robbery. . Griffin’s mother corroborated that Tyson had spoken to her son, though she estimated the time as 3:20 to 3:30 p.m. . Because of our disposition of Griffin’s ineffectiveness claim, we do not address his contention that the state court unconstitutionally punished him, through an increased sentence, for exercising his right to a jury trial. Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_district	H	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". DENVER POLICEMEN’S PROTECTIVE ASSOCIATION, Larry Kier, Paul Lopez, Jesse Brezzel, Harry Mills, Paul Selander and Daniel Hendricks, Plaintiffs-Appellants, v. Alvin LICHTENSTEIN, a judge of the Second Judicial District Court; The District Court for the Second Judicial District, City and County of Denver, State of Colorado; and Michael Lee Cole, Defendants-Appellees. No. 80-1313. United States Court of Appeals, Tenth Circuit. Sept. 18, 1981. Jon L. Holm of Holm & Dill, Denver, Colo., for plaintiffs-appellants. J. Stephen Phillips, First Asst. Atty. Gen., the State of Colo., Denver, Colo. (J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., and Mary J. Mullarkey, Sol. Gen., the State of Colo., Denver, Colo., with him on the brief), for defendants-appellees. Before SETH, Chief Judge, BARRETT and SEYMOUR, Circuit Judges. BARRETT, Circuit Judge. This appeal is from the district court’s dismissal of appellants’ complaint for failure to state a claim upon which relief can be granted. The appellants are the Denver Policemen’s Protective Association and individual officers of the Denver police force, hereinafter collectively referred to as the Association. The alleged cause of action arose from an order compelling discovery of police investigative files issued by Judge Lichtenstein of the Second Judicial District Court in and for the City and County of Denver. This order was entered following a hearing on a pretrial motion filed in the case of People v. Cole, Criminal Action No. 79CR0664. The defendant in that case, Michael Cole, who is an appellee here, was arrested for assaulting a police officer. In preparation of his defense, Mr. Cole filed a motion to compel discovery of personnel and staff inspection bureau (SIB) files of each police officer present at his arrest. His purpose in requesting the files was discovery of potentially exculpatory material. Judge Lichtenstein granted Cole’s motion with the understanding that the court would review the requested material in camera to ascertain if it included exculpatory material. The People sought a writ of mandamus in the Colorado Supreme Court to have Judge Lichtenstein’s order vacated. The Colorado Supreme Court dismissed the petition without prejudice. At a subsequent hearing on the motion, Judge Lichtenstein ordered Mr. Cole to issue a subpoena duces tecum to Police Chief Arthur Dill. The People, joined by the Association, filed a motion to quash the subpoena or for protective orders. At the hearing on this motion, Judge Lichtenstein indicated he had reviewed the requested files in camera. He found, after applying a balancing test, that Michael Cole was not entitled to the personnel files but that some of the material in the SIB files was exculpatory. He then ordered in camera inspection of the SIB filed by counsel for the parties. This order was stayed to allow the Association to petition the Colorado Supreme Court for rehearing on the writ of mandamus. The Colorado Supreme Court again denied the petition. The Association then brought an action, from which the instant appeal has been taken, in the United States District Court for the District of Colorado based upon 42 U.S.C.A. § 1983. The Association sought a preliminary injunction and a permanent injunction against defense counsel’s discovery of SIB files in the case of People v. Cole. It also sought a permanent injunction against future discovery orders for SIB files by Judge Lichtenstein and the District Court of the Second Judicial District. Defendants, Judge Lictenstein and Michael Cole, filed a motion to dismiss for lack of jurisdiction and failure to state a claim. The District Court conducted an evidentiary hearing on the plaintiffs’ motion for preliminary injunction. Plaintiffs presented testimony of some five police personnel and certain documentary evidence. The defendants offered in evidence a copy of the Colorado Open Records statute. These matters were before the court and properly considered in relation to the defendants’ motion to dismiss. The District Court dismissed the case for failure to state a claim in light of the Colorado Supreme Court decision in Martinelli v. District Court in and for the City and County of Denver, 612 P.2d 1083 (Colo. 1980) [hereinafter referred to as Martinelli]. The Martinelli decision was handed down in the interim of filing this suit and the District Court’s dismissal order. .The Association contends that the District Court erred in dismissing its complaint in that Judge Lichtenstein’s order compelling discovery, (1) violated the police officers’ right to privacy in the SIB files, (2) violated a governmental-executive privilege in the files, and (3) denied the police officers equal protection in regard to their right to privacy and privilege against self-incrimination. I. To establish a cause of action under 42 U.S.C.A. § 1983, a party must show that the defendant acted under color of state law and, in so doing, deprived the plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States. Parralt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Smart v. Villar, 547 F.2d 112 (10th Cir. 1976). Thus, in effect, we are asked to decide if the District Court was implicitly correct in finding that Judge Lichtenstein did not deprive the Association of its rights by ordering discovery of the SIB files. More specifically, the issue is whether or not police investigative files are subject to discovery and if so, under what circumstances. The Association contends that the officers and citizens who make statements in the course of an investigation have a right to privacy in the SIB files. The Association defines this right to privacy as a right to confidentiality. It is, specifically, a right to prevent disclosure of personal matters. Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977). The United States Supreme Court again identified this right in Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), wherein the Court said, We may agree with appellant that, at least when government intervention is at stake, public officials, including the President, are not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity. [Emphasis added]. Id. at 457, 97 S.Ct. at 2797. While the SIB files at issue here may have some personal data in them, the documents subject to Judge Lichtenstein’s order did not contain personal data. Those documents related simply to the officers’ work as police officers. [Testimony of Captain Pennel, R., Vol. II, p. 45], In Martinelli, the Colorado Supreme Court recognized that personal data which is not of a highly personal or sensitive nature may not fall within the zone of confidentiality. Martinelli at p. 1092. In some circumstances the SIB files may contain personal data which could give rise to a right to confidentiality. However, the Association concedes that a right to confidentiality in the files is not absolute. The Association acknowledges the balancing test as set out in Martinelli. In applying this test the court must consider, (1) if the party asserting the right has a legitimate expectation of privacy, (2) if disclosure serves a compelling state interest, and (3) if disclosure can be made in the least intrusive manner. Martinelli at 1091. The expectation of privacy is found in the fact that statements by officers taken in the course of investigation are made with the understanding that they are confidential and will not be used for other purposes. The Association attempts, however, to bolster the right to privacy with a Fifth Amendment privilege. The attempt must fail. The connection between the Fifth Amendment privilege against self-incrimination and the right to privacy was discounted in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). Assuming that the police officers have a legitimate expectation of privacy, the right may be overridden by a compelling state interest. The compelling state interest involved here is ascertainment of the truth. We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense. United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974). Wood v. Breier, 54 F.R.D. 7 (E.D.Wis. 1972), involved a § 1983 action by a citizen against police, wherein the court found that the police chief was not entitled to a protective order preventing discovery of police investigative files. The court said: Thus, it is of special import that suits brought under this statute be resolved by a determination of the truth rather than by a determination that the truth shall remain hidden. 54 F.R.D. at p. 11. Inasmuch as the instant case involves a “swearing match” between the accused and police officers, ascertainment of the truth is of particular importance. Another compelling state interest in discovery of the SIB files is the defendant’s right to exculpatory material. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) teaches us that discovery of exculpatory material is a compelling state interest and is, indeed, an integral part of the right to a fair trial. Judge Lichtenstein and Judge Matsch both pertinently observed that when the only prosecution witnesses are the police officers involved, anything that goes to their credibility may be exculpatory. At any rate, Judge Lichtenstein balanced this right to exculpatory material against the officers’ right to privacy and determined that the defendant’s right to exculpatory material prevailed. In our view this decision was not erroneous. Finally, in discussing the right to privacy, we find that Judge Lichtenstein permitted disclosure of the SIB files in a manner least intrusive on any right to confidentiality the officers may have had. After in camera review, Judge Lichtenstein deleted all materials concerning personal data. In camera inspection has been sanctioned as an appropriate means of disclosure. Nixon v. Administrator of General Services, supra; United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953); United States v. O’Neill, 619 F.2d 222 (3d Cir. 1980); Martinelli, supra. It is our view that Judge Lichtenstein correctly applied the balancing test and took every precaution to protect any right to privacy the police officers may have had in the SIB files. There was not “such a gross abuse of privacy as to amount to an abridgement of fundamental constitutional guarantees ...” Baker v. Howard, 419 F.2d 376, 377 (9th Cir. 1969). The District Court implicitly so found in granting the motion to dismiss. The Association claims that it is not being afforded equal protection of its right to privacy. We find no merit in this argument. It is ironic, we believe, that the Association asserts that its right to privacy is the same as a citizen’s, no greater or no less, while at the same time asserting that SIB files should be afforded greater protection than citizens’ “rap” sheets, which it concedes are routinely discoverable. For purposes of the right to privacy, we fail to discern any distinction between “rap” sheets and SIB files. Both involve investigative materials concerning a person, whether that person be an ordinary citizen or a police officer. II. The Association contends that disclosure of SIB files would violate their executive or governmental privilege. We recognize that the distinction between “rap” sheets and SIB files may have some importance relative to the issue of executive privilege. The executive privilege allows governmental department heads to prevent disclosure of documents within their control, if nondisclosure would serve the public interest. The privilege is not absolute. The government’s interest in maintaining confidentiality must be weighed against the interest of those who seek discovery of the material. Nixon v. Administrator of General Services, supra; United States v. Reynolds, supra; United States v. O’Neill, supra. The Association asserts that the government interest in confidentiality is of paramount importance because if they cannot guarantee confidentiality, citizens and police officers alike will be reluctant to make statements or likely fail to be completely candid in their statements. They further assert that lack of such statements will impede future investigations and ultimately interfere with the proper functioning of the police department. Judge Lichtenstein’s discovery order did not mandate wholesale disclosure of SIB files in every case. The balancing test as applied here and the rules of evidence concerning relevancy and materiality provide safeguards against unlimited review. A trial judge is adequately equipped with the rules of criminal procedure to protect the confidentiality of a witness who fears reprisals. This factor is one to consider in applying the balancing test on a case-to-case basis. Thus, a complete ban on disclosure of SIB files is not necessary to protect the government’s or the public’s interest. Moreover, it is doubtful that citizens and police officers will absolutely refuse to cooperate in investigations because of a few isolated instances of disclosure. This is evidenced by the fact that, in the past, other Denver police department SIB files have been turned over pursuant to subpoenas. The argument that governmental processes would be frustrated has been rejected by the Supreme Court in United States v. Nixon, supra, at 712, 94 S.Ct. at 3109. In Wood v. Breier, supra, the court rejected the same argument made by the defendant Milwaukee Police Department. The court said: The danger of doing harm to the Milwaukee Police Department by allowing discovery of this file is not nearly so great as the harm that would surely result to the efficacy of our entire legal structure, including the Milwaukee Police Department, if a case such as this were won because the truth was hidden. 54 F.R.D. at p. 3. We are not unmindful that the Association has an interest in keeping its files confidential. However, this interest is outweighed by Mr. Cole’s interest in and necessity for the materials. In the case of In re Irving, 600 F.2d 1027, 1036 (2d Cir. 1979), cert. denied, 444 U.S. 866, 100 S.Ct. 137, 62 L.Ed.2d 89 (1979) the court discussed the balancing test when a governmental privilege was asserted, and stated: Indeed, the considerations supporting disclosure in the case at bar are even stronger than those in Nixon in that the rights of defendants are at stake rather than the interests of the prosecution. Judge Lichtenstein was careful to limit disclosure of the SIB files so as not to unduly interfere with governmental processes. He specifically instructed counsel that any opinions or policy decisions of investigative officers were exempt from discovery. He personally reviewed counsel’s notes to make sure that they so limited their discovery. In further support of their executive privilege claim, the Association asserts that the Colorado Legislature recognized a public interest in maintaining confidentiality by carving out exceptions for police investigative records in the Colorado Open Records Laws, C.R.S. 24-72-101 et seq. (1973), as amended, and the Colorado Criminal Justice Act, C.R.S. 24-72-301 et seq., (1973), as amended. The applicability of these statutes in a similar situation was discussed in Martinelli. As to the legislative intent, the Martinelli court found: We construe this limiting language, in the context of this case, as a reference to the rules of civil procedure and as expressive of the legislative intent that a court should consider and weigh whether disclosure would be contrary to public interest. 612 P.2d at p. 1093. Even though Judge Lichtenstein did not have the benefit of the Martinelli opinion at the time of his order, his actions were in accordance with Martinelli. In the interest of comity, we shall defer to the Colorado State Supreme Court’s interpretation of Colorado statutory law. Federal courts are directed to give full faith and credit to state court proceedings to the same extent they are afforded full faith and credit in the courts of that state. 28 U.S.C.A. § 1738 (1976). See also: Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed. 2d 308 (1980). Nevertheless, the Association contends that § 1983 is an appropriate vehicle for statutory interpretation when federal constitutional issues are involved. In Allen v. McCurry, supra, the court said: [N]othing in the language or legislative history of § 1983 proves any congressional intent to deny binding effect to a state court judgment or decision when the state court, acting within its proper jurisdiction, has given the parties a full and fair opportunity to litigate federal claims, and thereby has shown itself willing and able to protect federal rights. 449 U.S. at p. 90, 101 S.Ct. at 413. See also: Spence v. Latting, 512 F.2d 93 (10th Cir. 1975), cert. denied, 423 U.S. 896, 96 S.Ct. 198, 46 L.Ed.2d 129 (1975). Consequently, we hold that the Association’s executive privilege was not denied to the extent necessary to raise a claim under § 1983. III. The Association further asserts a § 1983 claim on the contention that they are being denied equal protection in that they are not being accorded the same privilege against self-incrimination as other witnesses. The privilege against self-incrimination allows any witness or party in a civil, criminal or administrative hearing to refuse to answer a question if he believes the answer may provide evidence of a crime or may lead to evidence of a crime he has committed. Testimony from the record in the instant case reveals that officers are compelled by threat of suspension to give a statement when a complaint is filed against them. However, if the investigators believe that criminal charges may result from the investigation, the officer is advised of his rights and if he refuses, he is not required to give a statement. We recognize that there may be cases where the investigators are mistaken in their belief that no criminal charges will result and an incriminating statement will be compelled. In such circumstances, the Fifth Amendment privileges could still be asserted when disclosure is sought. Such a situation does not exist here. There is no evidence of any pending or potential criminal charges against any of the officers. Thus, we must conclude that the statements made by these officers and contained in their SIB files are not of an incriminating nature. Therefore the officers do not have a valid Fifth Amendment claim. See Fisher v. United States, supra; United States v. Cotton, 567 F.2d 958 (10th Cir. 1977), cert. denied, 436 U.S. 959, 98 S.Ct. 3076, 57 L.Ed.2d 1125 (1978); Bradt v. Smith, 634 F.2d 796 (5th Cir. 1981), petition for cert. filed 50 U.S. L.W. 3026 (U.S. May 19, 1981) (No. 80 2042). Further, it does not appear that any of the officers specifically claimed a Fifth Amendment privilege in the proceedings before Judge Lichtenstein. Consequently, the officers cannot now claim that Judge Lichtenstein violated their Fifth Amendment right. In summary, we do not find any error in the District Court’s dismissal of the complaint. WE AFFIRM. . The Association does not have standing to assert the privacy rights of citizens. Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). . Judge Lichtenstein found that the defendant Mr. Cole had made a showing that the requested materials were relevant and material. Absent an abuse of discretion, it is for the trial judge to decide if material is relevant. No abuse of discretion is apparent here. Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979), cert. denied, 444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 188 (1979); New Mexico Savings & Loan Assoc. v. U.S. Fidelity & Guaranty Co., 454 F.2d 328 (10th Cir. 1972). . Although the Federal District Court did not decide this case on principles of res judicata, it should be noted that there was an identity of parties in Martinelli and the case at bar. The plaintiff in Martinelli was the Denver Police Department which necessarily entails the individual police officers. The plaintiff herein is the Denver Police Department Protective Association which is composed of and represents officers of the Denver Police Department. Also, the defendants in Martinelli were a judge of the Second Judicial District Court in and for the City and County of Denver and the court itself. The defendant court in Martinelli necessarily entails Judge Lichtenstein. . Q [By Mr. Jon Holm, Counsel for Plaintiffs-Appellants] And Exhibit No. 17? A [By Captain Lawrence Pennel] Exhibit No. 17 is the form statement that is read by every officer before he makes a statement to the Staff Inspection Bureau investigator. It is signed by him, and it says in effect the statement ordering him that he must make a statement regarding this incident that occurred while he was a member of the Denver Police Department, telling him that if he does not make a statement he is subject to immediate suspension and further disciplinary action. In it it says that the purpose is not to be used anywhere outside the disciplinary action in the Department, and he specifically says he keeps his right to self-discrimination [sic] with the 14th Amendment. Q Is there a present regulation of the Denver Police Department relating to the making of these statements, that is, is a police officer required to make a statement to your bureau upon request? A We divide into two different categories. If it is a possible criminal action the officer is advised of his rights. Q Miranda rights? A Right. Of course, at that time he can get a lawyer and go from there. If he refuses to make a statement he will not be asked, but on a case we feel is not criminal in nature we order him to make a statement regarding his activities in that complaint. Q And is he, in fact, subject to disciplinary action if he does not follow that order? A Yes. Subject to immediate suspension and the hearing the next day in Division Chief’s office. Q Is it true that any time an officer is required to make a statement that he is advised of both rights as record in Exhibit 17, and is required to sign that form prior to making a statement? A Yes, sir, he is. Every statement he does sign this. 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_respond1_7_5	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 respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). N. C. LEE, Individually and for the Use and Benefit of himself and the children of Nellie Lee, deceased, Plaintiff-Appellee, v. SOUTHERN RAILWAY COMPANY, Defendant-Appellant. R. R. GRIGSBY, Jr., Administrator of the Estate of Ruby Carolyn Lee, deceased, Plaintiff-Appellee, v. SOUTHERN RAILWAY COMPANY, Defendant-Appellant. Nos. 14706, 14707. United States Court of Appeals Sixth Circuit. June 13, 1962. A. B. Bowman and Harry N. Fortune, Johnson City, Tenn., Phillips & Hale, Rogersville, Tenn., Simmonds, Bowman & Herndon, Johnson City, Tenn., of counsel, for defendant-appellant. H. E. Wilson, Kingsport, Tenn., Tom Rogan, Rogersville, Tenn., on brief; Wilson, Worley & Gamble, Kingsport, Tenn., of counsel, for plaintiffs-appellees. Before MILLER, Chief Judge, and McALLISTER and O’SULLIVAN, Circuit Judges. McALLISTER, Circuit Judge. In these cases, brought to recover damages for the death of appellees’ decedents, resulting from the alleged negligence of appellant, jury verdicts were returned in favor of appellees, on which judgments were entered. A review of the record discloses that the evidence presented a case for the jury on the question of appellant’s liability for negligence. Appellant claims that the trial court erred in refusing to charge the jury, as requested by appellant, that “if contributory negligence appears during the plaintiffs’ evidence, then the burden of proof of contributory negligence remains on the plaintiffs.” In Stewart v. Nashville, 96 Tenn. 50, 33 S.W. 613, 614 (1896) the court said that if, in proving the injury, and, in proving that defendant’s neglect is the proximate cause of it, “there is anything in the evidence from which concurring negligence on the plaintiff’s part may be inferred, then the burden would be on him to rebut or explain this. But, if the plaintiff can make out his case without such disclosure, and the defendant relies on contributory negligence, either to defeat or mitigate recovery, as to this defense, he becomes the actor, and his duty is to make it good by evidence, occupying with regard to it, the same attitude as does the party who relies on a release or payment when sued on a contract. * * * “When to these considerations is added the force of the presumption, which is in accord with common experience * * , that any man of sound mind will ordinarily avoid personal injuries, it seems to us that the rule which imposes upon the plaintiff the burden of showing care when there is nothing to suggest the want of it, in such a case as this, is unsound, and not in harmony with the general rules of evidence. And this is the view taken by a great number of courts. In these courts the rule obtains that the plaintiff has discharged his full duty when he has shown his injury and that the negligence of the defendants was its proximate cause. It then devolves upon the defendants to show contributory negligence as a matter of defense, the presumption being in favor of the plaintiff, that he was, at the time of the accident, in the exercise of due care, and that the injury was caused wholly by the defendant’s negligent conduct.” The court went on to say that the proper rule was that where the plaintiff’s contributory fault does not appear upon his own testimony, the burden of proof to establish it rests upon defendant; and that the plaintiff is not bound to prove affirmatively that he was himself free from negligence. However, the court did say that where the duty of showing contributory negligence rested upon defendant, plaintiff must make out his case in full; and, where the circumstances attending the injury were such as to raise a presumption against him in respect to the exercise of due care, the law requires him to establish affirmatively his freedom from contributory negligence. There are certain expressions in the foregoing opinion that are susceptible of the construction placed upon them by appellant, notably, the statement that where contributory negligence may be inferred from the evidence adduced by plaintiff, the burden is on the plaintiff to rebut or explain this. However, in Memphis Street Railway Company v. Aycock, 11 Tenn.App. 260-268 (cert. denied by Tennessee Supreme Court, 1930) the Tennessee Court of Appeals held that if plaintiff’s proof made out a case of contributory negligence, defendant might be relieved of the necessity of introducing any proof in order to carry the burden, but that nevertheless the burden of proof was upon the defendant. The court said: “[The] whole contention of defendant * * is set out as follows : “ ‘The error herein committed is that the court did not properly charge the jury with reference to the burden of proof on the issue of contributory negligence, where the plaintiff’s own proof shows that he is guilty of such negligence. The court had charged the jury that the burden was on the defendant, and totally failed in any place to charge the jury that the burden was not on the defendant, if the plaintiff’s own proof showed that he was guilty of contributory negligence which proximately caused the accident.’ * * * “This burden of proof may be made out from plaintiff’s own negligence or otherwise. If plaintiff’s proof makes out a case of contributory negligence, the defendant may be relieved of the necessity of introducing any proof in order to carry the burden, but this does not at all change the rule that the burden of proof is upon the defendant.” From the foregoing, it appears that, in Tennessee, the burden of proving contributory negligence is upon the defendant, and that this burden does not shift. Whatever may be said of the force of appellant’s argument as to the legal proposition it advances, the requested instruction was inapplicable, since it is our conclusion, from a review of the record, that there was nothing in plaintiffs’ proof, from which contributory negligence of the decedents might be inferred, and nothing in the evidence to raise a presumption against decedents’ exercise of due care. The trial court was therefore not in error in failing to give the instruction requested by appellant. Appellant submits that the trial court erred in refusing to strike a paragraph in the complaint which alleged that appellant’s engine was not equipped as required by law in that it failed to furnish the fireman an emergency brake that was accessible to him, and failed to instruct him prior to the accident, on the use of such brake. In its instructions to the jury, the court mentioned this allegation in the complaint and appellant’s denial that it was guilty of any negligence therein. From the appendices, constituting the record before us, there seems to have been little importance attached to this particular claim of negligence. The trial court merely mentioned the claim and appellant’s denial. At the conclusion of the instructions to the jury, after objections were made by appellant’s counsel to certain of them, the trial court asked counsel for all parties if there were any other objections to the charge, or any special requests for further instructions. None were mentioned or suggested with regard to the matter of the equipment of the engine, with which we are here concerned, and counsel for appellant stated that there were no objections, other than those previously addressed to the court. We are, therefore, of the view that appellant’s claim that it was reversible error on the part of the trial court to refuse to strike the specified portion of the complaint is without merit. In accordance with the foregoing, the judgment of the district court is affirmed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
sc_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. COHEN, EXECUTRIX, et al. v. BENEFICIAL INDUSTRIAL LOAN CORP. et al. NO. 442. Argued April 18, 1949. Decided June 20, 1949. Charles Hershenstein and Philip B. Kurland argued the cause for petitioners in No; 442 and respondents in No. 512. With them on the brief were Edward J. O’Mara, Samuel Dreskin and David F. Cohen. John M. Harlan argued the cause for the Beneficial Industrial Loan Corp., respondent in No. 442 and petitioner in No. 512. With him on the brief were Charles Danzig and Walter Pond. Briefs of amici curiae in support of petitioners in No. 442 and respondents in No. 512 were filed by Julius Levy for Weinberger; and by Lewis M. Dabney, Jr. Mr. Justice Jackson delivered the opinion of the Court. The ultimate question here is whether a federal court, having jurisdiction of a stockholder’s derivative action only because the parties are of diverse citizenship, must apply a statute of the forum state which makes the plaintiff, if unsuccessful,, liable for the reasonable expenses, including attorney’s fees, of the defense and entitles the corporation to require security for their payment. Petitioners’ decedent, as plaintiff, brought in the United States District Court. for New Jersey an action 'in the right of the Beneficial Industrial Loan Corporation, a Delaware corporation doing business in New Jersey. The defendants were the corporation and certain of its managers and directors. The complaint alleged generally that since 1929 the individual defendants engaged in a continuing and. successful conspiracy to enrich themselves at the expense of the corporation. Specific charges of mismanagement and fraud extended over a period of eighteen years and the assets allegedly wasted or diverted thereby were said to exceed $100,000,000. The stockholder had demanded that the corporation institute proceedings for its recovery but, by their control of the corporation, the individual defendants prevented it from doing so. This stockholder, therefore, sought to assert the right of the corporation. One of 16,000 stockholders, he owned 100 of its more than two million shares, so that his holdings, together with 150 shares held by the intervenor, approximated 0.0125% of the outstanding stock and had a market value that had never exceeded $9,000. The action was brought in 1943, and various proceedings had been taken therein when, in 1945, New Jersey enacted the statute which is here involved. Its general effect is to make a plaintiff having so small an interest liable for the reasonable expenses and attorney’s fees of the defense if he fails to make good his complaint and to entitle the corporation to indemnity before the case can be prosecuted. These conditions are made applicable to pending actions. The corporate defendant therefore moved to require security, pointed to its by-laws by which it might be required to indemnify the individual defendants, and averred that a bond of $125,000. would be appropriate. The District Court was of the opinion that the state enactment is not applicable to such an action- when pending in a federal court, 7 F. R. D. 352. The Court of Appeals was of a contrary opinion and reversed, 170 F. 2d 44, and we granted certiorari. 336 U. S. 917. Appealability. At the threshold we are met with the question whether the District Court’s order refusing to apply the statute was an appealable one. Title 28 U. S. C. § 1291 provides, as did its predecessors, for appeal only “from all final decisions of the district courts,” except when direct appeal to this Court is provided. Section 1292 allows appeals also from certain interlocutory orders, decrees and'judgments, not material to this case except as they indicate the purpose to allow appeals from orders other than final judgments when they have a final and irreparable effect on the rights of the parties. It is obvious that, if . Congress had . allowed appeals only from those final judgments which terminate an action, this order would not be appealable. The effect of the statute is to disallow appeal-from any decision which is tentative', informal or incomplete. Appeal gives the upper court a power of review, not one of intervention. So long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal. But the District Court’s action upon this application was concluded and closed and its decision final in that sense before the appeal was taken. Nor does the Statute permit appeals, even from fully consummated decisions, where they are but steps towards final judgment in which they will merge. The . purpose is to combine in one review all stages of the proceeding that effectively may be reviewed and corrécted if and when final judgment results. But this order of the District Court did not make any step toward final disposition of the merits of the case and will not be merged in final judgment. When that time comes, it will be too late effectively to review the present order, and the rights conferred by the statute, if ít is applicable, will have been lost, probably irreparably. We conclude that the matters embraced in the decision appealed from are not of such an interlocutory-nature as to affect, or to be affected by, decision of the merits of this .case. This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole, case is adjudicated. ' The Court has long given this provision of the statute this practical rather than a technical construction. Bank of Columbia v. Sweeny, 1 Pet. 567, 569; United States v. River Rouge Co., 269 U. S. 411, 414; Cobbledick v. United States, 309 U. S. 323, 328. We hold this order appealable because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it. But we do not mean that every order fixing security is subject to appeal. Here it is the right to security that presents a serious and unsettled question. If the right were admitted or clear and ,the order involved only an exercise of discretion as to the amount of security, a matter the statute makes subject to reconsideration from time to time, appealability would present a different question. Since this order may be reviewed on appeal, the petition in No. 512, whereby the corporation asserts the right to ■compel security by mandamus, is dismissed. Constitutionality. Petitioners deny the validity of the statute under the Federal Constitution and the New. Jersey Constitution. The latter question is ultimately for the state courts, and since they have made no contrary determination^ we shall presume in the circumstances of this case that the statute conforms with the state constitution. Federal constitutional questions we must consider, because a federal court would not give effect, in either a diversity or nondiversity case, to a state statute‘that violates the Constitution of the United States. The background of stockholder litigation with which this statute deals requires no more than general notice. As business enterprise increasingly sought the advantages of incorporation, management became vested with almost uncontrolled discretion in handling other people’s money. .The- vast aggregate of funds committed to corporate control came to be drawn to a considerable extent from numerous and scattered holders of small interests. The director was not subject to an effective accountability. That created strong temptation for managers to profit personally at expense of their trust. Thé business code became all too tolerant of such practices. Corporate laws were lax and were not sélf-enforcing, and stockholders, in face of gravest abuses, were singularly impotent in obtaining redress of abuses of trust. Equity came to the relief of the stockholder, who had no standing to bring civil action at law against faithless directors and managers. . Equity, however, allowed him to step into the corporation’s shoes and to seek in its right the restitution he could not demand in his own. It required him first to demand that the corporation vindicate its own rights, but when, as was usual, -those who perpetrated the wrongs also were able to obstruct any remedy, equity would hear and adjudge the corporation’s cause through its stockholder with the corporation as a defendant, albeit a rather nominal one. This remedy, born of stockholder helplessness, was long the chief regulator of corporate management and has afforded no small incentive to avoid at least grosser forms of betrayal of stockholders’ interests. It is argited, and not without reason, that without it there would be little practical check on such abuses. Unfortunately, the remedy itself provided opportunity for abuse, which was not neglected. Suits sometimes were brought- not to. redress real wrongs, but to realize upon their nuisance value. . They were bought off by secret settlements in which any wrongs to the general body of share owners were compounded by the suing stockholder, who was. mollified by payments from corporate assets. These litigations were aptly characterized in professional slang as “strike suits.”- And it- was said that these suits were more commonly brought by small -and irresponsible than by large stockholders, because the former put less to risk and a small interest was more often within the capacity and, readiness of management to compromise than a large one. We need not determine the measure of these abuses or the evils they produced on the one hand or prevented" and redressed on the other. The Legislature of New Jersey, like that of other states, considered them sufficient to warrant some remedial measures. The, very nature of the stockholder’s derivative action makes it one in the regulation of which the legislature of a state has wide powers. Whatever theory one may hold as to the nature of the corporate entity, it remains a wholly artificial creation whose internal relations between management and stockholders are dependent upon state law and may be subject to most complete and penetrating regulation, either by public authority or by some form of stockholder action. Directors and managers, if not technically trustees, occupy positions of a fiduciary nature, and nothing in the Federal Constitution prohibits a state from imposing on them the strictest measure of responsibility, liability and accountability, either as a condition of assuming office or as a consequence of holding it. Likewise, a stockholder who brings suit on a cause' of action derived from the corporation assumes a position, not technically as a trustee perhaps, but one of a fiduciary character. He sues, not for himself alone, but as representative of a class comprising all who are similarly situated. The interests of all in the redress of the wrongs are taken into his hands, dependent upon his diligence, wisdom and integrity. And while the stockholders have chosen the corporate director or manager, they have no such election as to a plaintiff who steps forward to represent them. He is a self-chosen representative and a volunteer champion. The Federal Constitution does not oblige the state to place its litigating and adjudicating processes at the disposal of such a representative, at least without imposing standards of responsibility, liability and accountability which it considers will protect the interests he elects himself to represent. It is not without significance that this Court has found it necessary long ago in the Equity Rules and how in the Federal Rules of Civil Procedure to impose procedural regulations of the class action not applicable to any other. We conclude that the state has plenary power over this type of litigation. , In considering specific objections to the way in which the state has exercised its power in this particular statute, it should be unnecessary to say that we are concerned only with objections which go to constitutionality. The wisdom and the policy of this and similar statutes are involved in controversies amply debated in legal literature but not for us to judge, and hence not for us to remark upon. The Federal Constitution does not invalidate state legislation because it fails to embody the highest wisdom or .provide the best conceivable remedies. Nor can legislation be set aside by courts because of the-fact, if it be such, that'it has been sponsored and promoted by those who advantage from it. In dealing with such difficult and controversial subjects, only experience will verify or disclose weaknesses and defects of any policy and teach lessons which may be applied by amendment. Within the area of constitutionality, the states should not be restrained from devising experiments, even those we might think dubious, in the effort to preserve the maximum good which equity sought in creating the derivative stockholder’s action and at the same time to eliminate as much as possible its defects and evils. It is said that this statute transgresses the Due Process Clause by being “arbitrary, capricious and unreasonable”; the Equal Protection Clause by singling out small stockholders to burden most heavily; that it violates the Contract Clause; and that its application to pending litigation renders it unconstitutionally retroactive. The contention that this statute violates the Contract Clause of the Constitution is one in which we see not the slightest merit. Plaintiff’s suit is entertainéd by equity largely because he had no contract rights on which to base an action at law, and hence none which is impaired by this legislation. In considering whether the statute offends the Due Process Clause we can judge it only by its own terms, for it has had no interpretation or application as yet. It imposes liability and requires security for “the reasonable expenses, including counsel fees, which may be incurred” (emphasis supplied) by the corporation and by other parties defendant. The amount of security is subject to increase if the progress of the litigation reveals that it is inadequate, or to decrease if it is proved to be excessive. A state may set the terms on which it will permit litigations in its courts. No type of litigation is more susceptible of regulation than that of a fiduciary nature. And it cannot seriously be said that a state makes such unreasonable use of its power as to violate the Constitution when it provides liability and security for payment of reasonable expenses if a litigation of this character is adjudged to be tmsustainable. It is urged that such a requirement will foreclose resort by most stockholders to the only available judicial remedy for the protection of their rights. Of course, to require security for the payment of any kind of costs, or the necessity for bearing any kind of expense of litigation, has a deterring effect. But we deal with power, not wisdom; and we think, notwithstanding this tendency, it is within the power of a state to close its courts to this type of litigation if the condition of reasonable security is not met. The contention that the statute denies equal protection of the laws is based upon the fact that it enables a stockholder who owns 5% of a corporation’s outstanding shares, or $50,000 in market value, to proceed without either security or liability and imposes both upon those who elect to proceed with a smaller interest. We do not think the state is forbidden to use the amount of one’s financial, interest, which measures his individual injury from the misconduct to be redressed, as some measure of the good faith and responsibility of one who seeks at his own election to act a's custodian of the interests of all stockholders, and'as an indication that he volunteers for the large burdens of the litigation from a real sense of grievance and is not putting forward a claim to capitalize personally on its harassment value. These may not be the best ways of precluding “strike lawsuits,” but we are unable to say that a classification for these purposes, based upon the percentage or market value of the stock alleged to be injured by the wrongs, is an unconstitutional one. Where any classification is based on a percentage or an amount, it is necessarily somewhat arbitrary. It is difficult to say of many lines drawn by legislation that they give those just above and those just below the line a perfectly equal protection. A taxpayer with $10,000.01 of income does not think it is equality to tax him at a different rate than one who has $9,999.99, or to require returns from one just above and not from one just below a certain figure. It is difficult to say that a stockholder who has 49.99% of a company’s stock should be unable to elect any representative to its Board of Directors"while one who owns 50.01% may name the entire Board. If there is power, as we think there is, to draw a line based on considerations of proportion or amount, it is a rare case, of which this is not one, that a constitutional objection may be made to the particular point which the legislature has chosen. The contention also, is made that the provision which applies this statute to actions pending upon its enactment, in which no final judgment has been entered, renders it void under the Due Process Clause for retro-activity. While by its terms the statute applies to pending cases, it does not provide the manner of application; nor do. the New Jersey courts appear to have settled what its effect is to be. Its terms do not appear to require an interpretation that it creates new liability against the plaintiff for expenses incurred by the defense previous to its enactment. The statute would admit of a construction that plaintiff’s liability begins only from the time when the Act was passed or perhaps when the corporation’s application for security is granted and that security for expenses and counsel fees which “may be incurred” does not include those which have been incurred before one or the other of these periods. We would, not, for the purpose of considering constitutionality, construe the statute in absence of a state decision as imposing liability for events before its enactment. On this basis its alleged retroactivity amounts only to a stay of further proceedings unless and until security is furnished for expense incurred in the future, and does not extend either to destruction of an existing cause of action or to creation of a new liability for past events. The mere fact that a statute applies to a civil action retrospectively does not render it unconstitutional. Blount v. Windley, 95 U. S. 173, 180; Western Union Telegraph Co. v. L. & N. R. Co., 258 U. S. 13; Chase Securities Corp. v. Donaldson, 325 U. S. 304. Looking upon the statute as we haye indicated, its retroactive effect, if any, is certainly less drastic and prejudicial than that held not to be unconstitutional in these decisions. We do not find in the bare statute any such retroactive effect as renders it unconstitutional under the Due Process Clause, and of course we express, no opinion as to the effect of an application other than we have indicated; It is also contended that this statute may not be applied in this case because the cause of action derives from a Delaware corporation and hence' Delaware law governs it. But it is the plaintiff who has brought the case in New Jersey. The. trial will very likely involve questions of conflict of laws as to which the law of New Jersey will apply, Klaxon Co. v. Stentor Co., 313 U. S. 487; Griffin v. McCoach, 313 U. S. 498, and perhaps questions of full faith and credit. These are not before us now. A plaintiff cannot avail himself of the New Jersey forum and at the same time escape the terms on which it is made available, if the law is applicable to a federal court sitting in that State, which we later consider. We conclude, therefore, that, so far as the Federal Constitution is concerned, New Jersey’s security statute is a valid law of that State and the question remains as to whether it must be applied by federal courts in that State to suits brought therein on diversity grounds. Applicability in Federal Court. The Rules of Decision Act, in effect since the First Congress of the United States and now found at 28 U. S. C. § 1652, provides: “Thedaws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be-regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.” This Court in Erie R. Co. v. Tompkins, 304 U. S. 64, held that judicial decisions are laws of the states within its meaning. But Erie R. Co. v. Tompkins and its progeny have wrought a more far-reaching change in the relation of state and federal courts and the application of state law in the latter whereby in diversity cases the federal court administers the state system of law in all except details related to its own conduct of business. Guaranty Trust Co. v. York, 326 U. S. 99. The oniy substantial argument that this New Jersey statute is not applicable here is that its provisions are mere rules of procedure rather than rules of substantive law. Even if we were to agree that the New Jersey statute is procedural, it would not determine that it is not applicable. Rules which lawyers call procedural do not always exhaust their effect by regulating procedure. But this statute is not merely a regulation of procedure. With it or without it the main action takes the same course. However, it creates a new liability where none existed before, for it makes a stockholder who institutes a derivative action liable for the expense to which he puts the corporation and other defendants, if he does not make good his claims. Such liability is not usual and it goes beyond payment of what we know as “costs.” If all the Act did was to create this liability, it would clearly be substantive. But this new liability would be without meaning and value in many cases if it resulted in nothing but a judgment for expenses at or after the end of the case. Therefore, a procedure is prescribed by which the liability is insured by entitling the corporate defendant to a bond of indemnity before the outlay is incurred. We dp not think a statute which so conditions the stockholder’s action can be disregarded by the federal court as a mere procedural device. It is urged, however, that Federal Rule of Civil Procedure No. 23 deals with plaintiff’s right to maintain such an action in federal court and that therefore the subject is recognized as procedural and the federal rule alone prevails. Rule 23 requires the stockholder’s complaint to be verified by oath and-to show that the plaintiff was a stockholder at the time of the transaction of which he complains or that his share thereafter devolved upon him by operation of law. In other words, the federal court will not permit itself to be used to litigate a purchased grievance or become a party to speculation in wrongs done to corporations. It also requires a showing that an action is not a collusive one to confer jurisdiction and to set forth the facts showing that the plaintiff has endeavored to obtain his remedy through the corporation itself. It further provides^that the class action shall not be dismissed .or compromised without approval of the court, with notice to the members^ of the class. These provisions neither create nor exempt from liabilities, but require complete disclosure to the court and notice to the parties in interest. None conflict with the statute in question and all may be observed by a federal court, even if not applicable in state court. We see no reason why the policy stated m Guaranty Trust Co. v. York, 326 U. S. 99, should not apply. We hold that the New Jersey statute applies in federal courts and that the District Court erred in declining to fix the amount of indemnity reasonably to be exacted as a condition of further prosecution of the suit. The judgment of the Court of Appeals is Affirmed. Chapter 131, New Jersey Laws of 1945, provides in pertinent part as follows: "1. In any action instituted or maintained in the'right of any domestic or foreign corporation by the holder or holders of shares, or of voting trust certificates representing shares, of such corporation having a total par value or Stated capital value of less than five per centum (5%) of the aggregate par value or stated capital value of all the outstanding shares of such corporation’s stock of every class . . . unless the shares or voting trust certificates held by such holder or holders have a market value in excess of fifty thousand dollars ($50,000.00), the corporation in whose right such action is brought shall be entitled, at any stage of the proceeding before final judgment, to require the complainant or complainants to give security for the reasonable expenses, including counsel fees, which may be. incurred by it in connection with such action and by the other parties defendant’in connection therewith for which it may become subject pursuant to law, its certificate of incorporation, its by-laws or under equitable principles, to which the- corporation shall have recourse in such amount as the court having -jurisdiction shall determine upon the termination' of such action. The amount of such security may thereafter, from time to time, be increased or decreased in-the discretion of the court having jurisdiction of sucli action upon showing that the security provided has or may become inadequate or is excessive. “2. In any action, suit or proceeding brought or maintained in the right of a domestic or foreign corporation by- the holder or holders • of shares, or of voting trust certificates representing shares, of such corporation, it must be made to appear that the complainant was a shareholder - or the holder of a voting trust certificate at the time of the transaction of which he complains or that his share or voting trust certificate thereafter devolved upon him by operation of law. “3. ‘This act shall take effect immediately and shall apply to all such actions, suits or proceedings now pending in which no final judgment has been entered, • and to all future actions, suits and proceedings.” See New York General Corporation Law, § 61 — b; 12 Pa. Stat. Ann. § 1322; Laws of Maryland, 1945, c. 989; Wisconsin Stat. §180.13 (1945). Old Equity Rule 94, 104 U. S. ix; Equity Rule 27, 226 U. S. 649,656. Rule 23 (b). See Hornstein, Problems of Procedure in Stockholder’s Derivative Suits, 42 Col. L. R. 574; Hornstein, Directors’ Expenses in Stockholders’ Suits, 43 id. 301; Koessler, The Stockholder’s Suit: A Comparative View, 46 id. 238; Hornstein, New Aspects of Stockholders’ Derivative Suits, 47 id. 1; Carson, Current Phases of Derivative Actions Against Directors, 40 Mich. L. R. 1125; P. E. Jackson, Reorganization of the Corporate Concept And the Effect of Section 61-b of the New York General Corporation Law, A5 Am. Bankr. Rev. 323; Carson, Further Phases of Derivative Actions Against Director's, 29 Cornell L. Q. 431; House, Stockholders’ Suits And the Coudert-Mitchell Laws, 20 N. Y. U. L. Q. Rev. 377; Hornstein, The Death Knell of Stockholders’ Derivative Suits in New York, 32 California L. R. 123; Zlinkoff, The American Investor And the Constitutionality of Section 61-b of the New York General Corporation Law, 54 Yale E. J. 352. See Douglas, Directors Who Do Not Direct, 47 Harv. L. R. 1305. Daniel v. Family Insurance Co., 336 U. S. 220. 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:

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